YLR 2010 Judgments - Pakistan Legal Archive

Courts in this Volume

Election Tribunal Of Pakistan
Gilgit Baltistan Chief Court
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan

Shafaqat Wali for Respondent.

Date of heating: 14th April, 2010.

YLR 2010 Gilgit Baltistan Chief Court 1905 #

2010 Y L R 1905

[Gilgit]

Before Sahib Khan, J

PROVINCIAL GOVERNMENT through Secretary KA/NA Division and 10 others---Petitioners

Versus

LATIF SHAH through legal heirs and 7 others---Respondents

Civil Revision No.6 of 2009, decided on 19th March, 2010.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Failure to produce evidence---Debarring the party from production of evidence---Principle---Both the lower courts had debarred the petitioners from production of evidence---Validity---Petitioners were allowed a special chance subject to payment of heavy cost, but they had failed to produce their evidence for a considerable period of 8 years---Law and equity always favoured decision on merits and for that purpose each and every party was granted suitable time, enabling them to produce their respective evidence---Term `sufficient time' as had been provided in law could never be stretched in favour of any particular party for unending period---True sense and wisdom of legislature behind the provision was to provide opportunity to the parties for production of their evidence within a reasonable time for fair conclusion of the matter---Certain penal clauses provided in the Code of Civil Procedure were neither meant to show of power nor having less weight, but equally enforceable at the moment when the situation so demanded, like the other provision of the Code---Order XVII, R.3, C.P.C. was applicable whenever the situation so existed, particularly when the party was ignoring and causing delay---Record had revealed that the petitioners had not availed the opportunity granted by the Trial Court and even after the order of Appellate Court for about 8 years---Request of counsel for the petitioners for providing a further single opportunity, would amount to force a party not willing to act and furthermore, it would cause serious injustice and over burden the opposite party for no fault on his part---Losing and availing of opportunities provided under the law always play vital role in the fate of litigation in the case---Petitioners having lost their golden opportunity not once, but twice, were not entitled for any special treatment and concession---Impugned orders passed by the two courts below, were upheld by the Chief Court.

Assistant Advocate-General for Petitioners.

Manzoor Ahmad for Respondents.

Date of hearing: 19th March, 2010.

Islamabad

YLR 2010 ISLAMABAD 1339 #

2010 Y L R 1339

[Islamabad]

Before Muhammad Ramzan Chaudhry, J

ALLAMA IQBAL OPEN UNIVERSITY, ISLAMABAD through its Registrar---

Petitioner

Versus

MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN through

its Secretary and 2 others---Respondents

Writ Petition No. 649 of 2007, decided on 18th May, 2009.

Capital Development Authority (Imposition of Tax) Rules, 1981---

----Allama Iqbal Open University Act (XXXIX of 1974), S.3(3)---C.D.A. Notification No. S. R. O.24(I)/2001 dated 11-1-2001, Cl.4(6)---Constitution of Pakistan (1973), Arts.165 & 199---Constitutional petition---Exemption of Public property from taxation---Demand of Property tax by authorities from Allama Iqbal Open University---Validity---University was working in furtherance of the objectives of Ministry of Education, Federal Government, and could be considered as an attached department of the Ministry of Education and could be termed as Federal Government entity--Main source offending the University was the grant/financial assistance extended by the Federal Government through Higher Education Commission and Federal Government exercised over all control over the affairs of the University---University being a statutory corporation and not a corporation under the Companies Ordinance, 1984 or Cooperative Societies Act, 1925 and providing basic necessities was entitled to the benefit of Art.165 of the Constitution--- Objectives of the University was not a business/commercial rather was a non-profit organization---Students and public-at-large was the beneficiary of the University; State was direct beneficiary because its objectives of promotion of education and literacy were achieved through the University---Properties/assets including land and buildings of the University would revert to the Federal Government in the eventuality of its closure---University being Federal Educational Institution was operating under the Control of Ministry of Education, Government of Pakistan, as such, was not liable to pay the Property Tax---University fell under cl.4(6) of the C.D.A. S. R. O. No. 24(I)/2001 dated 11-1-2001, wherein the buildings and lands owned by the Federal or a Provincial Government were exempted 100% from the levy of property tax---Authorities had demanded the commercial property tax from the University which was contrary to law and facts of the case---Constitutional petition of the University was allowed in circumstances.

Central Board of Revenue v. SITE PLD 1985 SC 1997; Rice Export Corp. of Pakistan Ltd. V. Karachi Municipal Corporation PLD 1990 Kar.186; Chairman District Council, Rahim Yar Khan v. United Bank Ltd. 1986 CLC 1397; Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Ltd. 1993 SCMR 468; WAPDA v. Government of Sindh PLD 1998 Kar.209; Province N.-W.F.P. v. PTC PLD 2005 SC 670; Messrs Oxford University Press v. Commission of Income Tax 2007 PTD 1533 and Blacks Law Dictionary (8th Edition) ref.

Sardar Shahid Hanif and Malik Shoukat Nawaz Awan for Petitioner.

Mian Muhammad Hanif for Respondents Nos. 2 and 3.

Date of hearing: 23rd April, 2009.

YLR 2010 ISLAMABAD 1448 #

2010 Y L R 1448

[Islamabad]

Before Muhammad Ramzan Chaudhry and Muhammad Munir Peracha, JJ

NATIONAL LOGISTIC CELL(NLC) through General Manager Administration---Appellant

Versus

Messrs HAKAS (PVT.) LTD. through Chief Executive ---Respondent

R.F.A. No.15 of 2008, decided on 8th July, 2009.

Arbitration Act (X of 1940)---

----Ss.14, 7 & 39---Submission of award for making rule of the Court---Award was not filed in the Court by the arbitrator, but it was filed by one of the parties along with application under Ss.14 & 17 of Arbitration Act, 1940---Award was to be filed or caused to be filed in the Court by the arbitrator, either on the request of the parties or any one of them or on the direction of the Court---Mere handing over a signed copy of the award to a party would not mean that there was an implied authority from the arbitrator to file the award in Court on his behalf---Court before making the award, rule of the Court, was to apply its mind, whether there was cause to remit the award or any of the matters referred to arbitration for consideration or whether the award was liable to be set aside---Without doing such exercise, Court made the award rule of the Court on the only ground that no application for setting aside the award had been filed---Since the party filing the award had no express or implied authority on behalf of the arbitrator to file award, impugned order was patently illegal and same was set aside.

Muhammad Mushtaq Saigal and others v. Muhammad Wasi Saigal 2001 SCJ 96; Ashfaq Ali Qureshi v. Municipal Corporation Multan, 1984 SCMR 597; Nilkantha Sidramappa Nigashetti v. Kashinath Somanna Ningashetti and others AIR 1962 SC 666; Binod Bihari Singh v. Union of Indian 1994 SCMR 603; Kumbha Mawji v. Dominion of India AIR 1953 SC 313; Ganga Ram v Radha Kishan AIR 1952 Punjab 350; Messrs Awan Industries Ltd, v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65; Pakistan through General Manager, Pakistan Railway v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 ref.

Sheikh Azfar Amin for Appellant.

Barrister Gohar Ali Khan for Respondent.

Date of hearing: 10th June, 2009.

YLR 2010 ISLAMABAD 1468 #

2010 Y L R 1468

[Islamabad]

Before Syed Qalb-i-Abbas and Muhammad Amjad Iqbal Qureshi, JJ

AMJAD MASIH---Appellant

Versus

Mst. BUSHRA BIBI and another---Respondents

I.C.A. No.103 in Writ Petition No.831 of 2009, decided on 25th June, 2009.

Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Minor children, custody of---Contest between father and mother---Preferential right. of mother---Scope---No one could take care of minors more than their real mother for being their first institution---Depriving minors of company of their real mother would create deprivation in their lives, which could not be restored back---Principles.

The minor children need the company and protection of their mother more in their early age, then the grown-up children because if they are deprived of company of their mothers, this factor creates a deprivation in their lives, which can never be restored back. This goes without saying that no one in the world can take care of minor children more than their real mothers. This is also a hard fact that the children, who lose the company of their mothers in their early age, for one reason or the other, feel the sense of deprivation," wh1Ch goes life long with them and at times they become psycho cases. The mother plays role of first institution in the life of her minor children and one feels the warmth of lap of mother for the whole life even if grown old.

M. Tanveer Chaudhary, for Appellant.

YLR 2010 ISLAMABAD 1490 #

2010 Y L R 1490

[Islamabad]

Before Muhammad Ramzan Chaudhry, J

ZAFAR MEHMOOD---Petitioner

Versus

KHAN AYAZ KHAN and another---Respondents

Writ Petitions Nos.936 to 938 of 2008, decided on 24th April, 2009

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

----S.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on grounds of bona fide personal need, reconstruction and expiry of lease agreements---Ejectment petition had concurrently been allowed by the two courts below---Landlord in support of his oral version had placed on record documentary evidence as well which had revealed that he was carrying on business of sale and distribution of electronic components in rented premises; and he required the demised premises for his own bona fide personal use for establishing the said business in his own premises--Ejectment petitions filed by the landlord had been accepted mainly in view of his bona fide personal need---Other grounds taken by the landlord pertaining to the renovation of the shops and expiry of lease period were ancillary one---Validity---Landlord could not be non-suited merely on the ground that while filing the petition under S.17 of Islamabad Rent Restriction Ordinance, 2001 beside the ground of bona fide personal need he had also taken the ground of renovation of the demised premises and that the lease period had already been expired---Contention of counsel for the tenants that expiry of the lease period was not a valid ground available for their eviction under S.17 of the Islamabad Rent Restriction Ordinance, 2001; and that the grounds of bona fide personal need of the landlord as well as the reconstruction of demised premises, could not be taken together as both were destructive to each other, carried no weight in the facts and circumstances of the case---In absence of any illegality or legal infirmity in the impugned judgments concurrently passed by the courts below, same could not be interfered with by the High Court in exercise of its constitutional jurisdiction.

Captain Dr. Muhammad Rafiq v. Muhammad Abdul Hayee 1983 CLC 237 (Lah.); Mst. Munawar Sultana v. Additional District Judge, Islamabad and 2 others 2005 CLC 1119 (Lah.); Muhammad Akram v. 1st Additional District Judge, Nawabshah and 2 others 2008 MLD 1184; Khalilur Rehman v. The Controller of Post Offices, General Post Officers, Karachi and 2 others 1987 CLC 333 (Kai.); Messrs Service Industries Limited v. Muhammad Raghib and another 1986 SCMR 637; Shabbir and 2 others v. Mst. Ghulam Fatima 1987 CLC 1407 (Kar.) and Mirza Muhammad Sabir Baig v. Muhammad Saeed 1993 MLD 1217 (Kar.) rel.

Tahir Mehmood Abbasi for Petitioner.

Raza Farooq assisted by Muhammad Adil Khokhar for Respondents.

Date of hearing: 16th April, 2009.

YLR 2010 ISLAMABAD 1521 #

2010 Y L R 1521

[Islamabad]

Before Muhammad Amjad Iqbal Qureshi, J

ZULFIQAR AHMAD---Petitioner

Versus

NISAR BAIG, ADDITIONAL DISTRICT JUDGE, ISLAMABAD and 2 others---Respondents

Writ Petition No. 1009 of 2008, decided on 9th June, 2009.

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

----S.17---Ejectment petition---Grounds of bona fide personal need of landlord and expiry of lease agreement---Proof---Landlord during his deposition did not give any detail of alleged bona fide personal need and could not give any plausible reason as to why he needed demised premises---Plea of landlord that he wanted demised premises for his two wives and four children, who could not live together under one roof, was not taken in ejectment petition or during his examination-in-chief---Landlord during cross-examination deposed that he owned another house, wherein he was living along with family; and that he had rented out a portion thereof to a tenant---No provision existed in Islamabad Rent Restriction Ordinance, 2001 to allow eviction of tenant on ground of expiry of lease agreement---Ejectment petition was dismissed in circumstances.

M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453; Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398; Muhammad Ashraf v. Muhammad Adil Zaidi and 4 others 1999 MLD 3312; Muhammad Naseem Khan and 5 others v. United Bank Limited PLD 2002 SC 753; Said Muhammad v. Sultan Ahmed and 7 others 2000 CLC 387 and Haji Moinuddin v. Shafiquddin Qureshi and 3 others 2008 YLR 2939 ref.

Mst. Munawar Sultana v. Additional District Judge, Islamabad 2005 CLC 119 rel.

(b) Interpretation of statutes---

----Court can neither add to or delete any word from any section of statute---Principles.

Haji Muhammad Akram Malik for Petitioner.

Sardar Javed Khan for Respondent No.3.

YLR 2010 ISLAMABAD 1539 #

2010 Y L R 1539

[Islamabad]

Before Muhammad Munir Peracha, J

MUHAMMAD USMAN IQBAL JADOON through Special Attorney---Petitioner

Versus

Mst. SAADIA USMAN and 3 others---Respondents

Writ Petitions Nos. 1059, 1060 and 1063 of 2008, decided on 7th November, 2008.

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower and maintenance---Trial Judge granted decree for recovery of dower of Rs.5,00,000, in favour of wife and decree for maintenance at rate of Rs. 7, 000 per month each for wife and minor daughter---Appellate Court, however, enhanced rate of maintenance and fixed at Rs.10,000 for both wife and minor daughter---With that modification, judgment and decree of the trial Court was maintained by the Appellate Court---Validity---Appellate Court had rightly allowed maintenance to the wife and minor daughter as it was found that past maintenance could be ordered even in the absence of any agreement between the parties---Contention that maintenance of Rs.10,000 each per month for wife and minor daughter was excessive, was repelled as Appellate Court had considered all relevant facts and came to the conclusion that wife and minor were entitled to maintenance at the rate of Rs.10,000 each per month---No ground for interference regarding quantum of maintenance having been made out, constitutional petition was dismissed.

2006 YLR 33; Dr. Sabira Sultana v. Maqsood Sulari, Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384; Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976, Lah. 930; Mst. Hajiran Bibi v. Abdul Khaliq PLD 1981 Lah. 761 and Abdoor Futteh v. Zabunnessa (1881) 6 Cal.631 ref.

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

----S.10---Dower---Kinds and mode of payment of dower---Dower fixed with the agreement of the parties to the marriage, could be prompt or deferred or partly prompt and partly deferred---Prompt dower was payable immediately on demand---Deferred dower would be payable on a date or time agreed between the parties and it was more appropriate that date or tine agreed for payment of deferred dower be certain---Parties could agree that deferred dower would be payable on the happening of a certain event like divorce or death.

Mian Ishtiaq Hussain for Petitioner.

Barrister Zafarullah Khan and Mian Abdul Razzaq for Respondents.

Date of hearing: 9th October, 2008.

YLR 2010 ISLAMABAD 1560 #

2010 Y L R 1560

[Islamabad]

Before Syed Qalb-i-Hassan, J

MUHAMMAD SULEMAN KHAN---Plaintiff

Versus

INTERNATIONAL TABACCO MACHINERY PAKISTAN (PVT.) LTD. and 2 others---Respondents

CM Arbitration No.11 of 2009, decided on 21st July 2009.

Arbitration Act (I of 1940)---

----Ss.20 & 34---Filing arbitration agreement in the court---Application for--. Objection to jurisdiction of the court---Applicant had sought direction to the respondents to file relevant sale agreement in terms of S.20(4) of Arbitration Act, 1940 and for appointment of an arbitrator---Defendants in their counter affidavit had raised legal objections to the effect that according to clauses of the agreement, court had no jurisdiction to entertain the arbitration petition---Applicant, a registered partnership concern, having its head office at Karachi, entered into the agreement for purchase of business and assets with defendants---One defendant, a subsidiary company of the other defendant had its registered office at Islamabad---Whole evidence, in circumstances had to come from Islamabad comprising of documents and oral evidence; and taking of such evidence to Dubai would be inconvenient to the parties and also would be expensive---Objection of jurisdiction raised by the respondents, had no force and same was rejected.

Messrs Eckhardit and Co. Marine GmbH v. Muhammad Hanif PLD 1993 SC 42 and Messrs Uzin Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar and Company Ltd. 1993 SCMR 866 ref.

Jam Asif Mehmood for plaintiff.

Azid Nafees for the Respondents.

YLR 2010 ISLAMABAD 1573 #

2010 Y L R 1573

[Islamabad]

Before Muhammad Amjad Iqbal Qureshi, J

MUHAMMAD YOUNAS MARWAT---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior and 3 others---Respondents

Writ Petition No.51 of 2009, decided on 1st' June, 2009.

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

----Ss. 2 & 3(1)---National Accountability Ordinance (XVIII of 1999), S.9---Constitution of Pakistan (1973), Arts. 15 & 199---Constitutional petition---Former officer of National Bank of Pakistan joined Development Bank of Afghanistan in Kabul as Chief Executive---Charge of embezzlement of huge amount---Placing of petitioner's name on Exit Control List on recommendation of National Accountability Bureau (NAB) in view of complaint filed by State Bank of Pakistan on basis of photocopies supplied by Afghan Government---Validity---Inquiry initiated by NAB against petitioner was still pending as Afghan Government had not provided original documents pertaining to alleged charge---Petitioner while serving in National Bank of Pakistan had not caused any loss to Government of Pakistan---No proceedings regarding extradition were pending against petitioner---Impugned order was not showing any ground for placing petitioner's name on Exit Control List---Liberty of petitioner guaranteed by the Constitution could not be curtailed for an unlimited period and that too on basis of photocopies for not having any evidentiary value in absence of original document---Absence of reason for placing petitioner's name on Exit Control List would amount to denial of his right guaranteed under the Constitution---Petitioner should have first approached Ministry of Interior for redressal of his grievance---High Court directed petitioner to apply to Ministry of Interior for getting his name removed from Exit Control List.

Abdul Hafeez Pirzada and anotherv. Government of Pakistan and others 1989 CLC 79; Syed Abul Aala Moududi v. The State Bank of Pakistan and another PLD 1969 Lah. 608 and Habib Ullah Niazi v Federation of Pakistan PLD 2009 Kar. 243. ref.

Wajid Shamsul Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617 rel.

Raja Rizwan Abbasi for Petitioner.

Sh. Tanveer Ahmed for Respondents.

Abdul Rehman Bhatti, Federal Counsel.

Asghar Khan Assistant Director, NAB.

Abdul Waheed, Section Officer, Ministry of Interior.

YLR 2010 ISLAMABAD 1601 #

2010 Y L R 1601

[Islamabad]

Before Muhammad Munir Peracha, J

Messrs RAI FARMS and another---Plaintiffs

Versus

M.G. HERTZ (PVT.) LTD. and 4 others ---Respondents

Civil Suit No.459 of 2008 and C.Ms. Nos.432-S, 1260-S, 1273-S of 2009, 1216, 1220 and 1543 of 2008, decided on 7th July, 2009.

Civil Procedure Code (V of 1908)---

----O.IX, R.6 & O. XVII, R.2---Failure of defendant to appear---Where summons was served on the defendant and defendant did not appear, O. IX, R. 6, C.P.C. would be attracted---If defendant appeared before the Court after having been served, but on subsequent date failed to appear, O.XVII, R.2, C.P.C. would be applicable---If defendant was proceeded against ex parte, he had a right to show to the court that sufficient cause existed for his nonappearance---Order of court below whereby defendant was proceeded against ex parte and defence of defendant was struck off and order whereby application of defendant for setting aside ex parte proceedings, was dismissed, however was set aside by High Court, in exercise of its revisional powers, because ex parte decree was based on two erroneous orders.

Province of Punjab v. Lt.-Gen. (Retd.) Wajid Ali Burki PLD 1990 SC 813; Messrs Rehman Weaving Factory Regd. Bahawalpur v. Industrial Development Bank of Pakistan and Messrs Rehman Weaving Factory Regd. Bahawalpur v. Punjab Small Industries Corporation Lahore PLD 1981 SC 21; National Bank of Pakistan v. The Additional District Judge Lahore PLD 1985 Lah. 327, Ch. Ismail Khalid v. Commissioner, Ex-Officio Courts of Wards 1984 CLC 304; Muhammad Afzal v. Small Business Corporation 1997 CLC 180; Secretary Education Department Government of N.-W.F.P. Peshawar v. Afsandiar Khan, 2008 SCMR 287; Shahid Hameed v. Muhammad Ahmad Ameen, 2006 SCMR 631 and Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 rel.

Ch. Mushtaq Hussain for Plaintiffs.

Mian Ishtiaq Hussain, Tariq Mehmood Jehangiri and Barrister Masroor Shah with Ayub Tariq Addl. Director C.D.A. for Defendants.

Date of hearing: 26th June, 2009.

YLR 2010 ISLAMABAD 1618 #

2010 Y L R 1618

[Islamabad]

Before Muhammad Amjad Iqbal Qureshi, J

Messrs ADAPTIVE SOLUTIONS (PVT.) LTD.---Applicant

Versus

Messrs UTILITY STORES CORPORATION, ISLAMABAD---Respondent

C.M. No.698-S of 2009 in Civil Suit

No.205 of 2008, decided on 7th July, 2009.

Arbitration Act (I of 1940)---

----Ss.12 & 20---De novo arbitration proceedings---Objection application---Arbitrator duly appointed having failed to file the award, applicant submitted an application for revocation of authority of said arbitrator and for appointment of new arbitrator---New arbitrator was appointed for conducting de novo arbitration proceedings on all legal and factual matters pertaining to the agreement---Subsequently applicant submitted an application for taking up the proceedings from the stage where the proceedings were left by the former arbitrator---Applicant had alleged that order passed to the effect that de novo proceeding should be conducted was against the norms of justice, equity and established principles of law and procedure---Applicant had also alleged that order for de novo proceedings was obtained by way of fraud and misrepresentation---Said allegation did not find any support from the record as parties as well as their counsel were present before the High Court when order for conducting de novo proceedings by the arbitrator was passed---Order to the effect of recording de novo evidence passed by the arbitrator had never been appealed against by the applicant---Objection raised by the counsel for the applicant to the effect that de novo proceedings could not be ordered by the court, was without any force because the parties themselves had entered into an agreement which was presented before the court and the court had ordered for the same in view of agreement between the parties---No embargo existed in Arbitration Act, 1940 from which it could be inferred that no de novo proceedings could be ordered in a matter under arbitration---Objection application filed by the applicant stood dismissed being devoid of any force.

Mst. Shamim Akhtar v. Najma Baqai and 3 others 1977 SCMR 409; Agha Muhammad Hassan v. Mehraj Din PLD 1973 Lahore 95; Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 2003 YLR 410; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Ghulam Nabi v. Farrukh Latif and 2 others 1987 SCMR 608; Abdul Karim Moosa v. Mohini Bai and others 1973 SCMR 233; Quetta Club Ltd. Quetta Cantt. through its Administrator v. Muslim Khan and 2 others PLD 1983 Quetta 46; Province of Punjab v. Malik Ghulam Qasim 1993 CLC 589; Sardar Habibullah Khan v. Province of West Pakistan and others 1977 SCMR 266; Dost Muhammad v. Muhammad Ramzan and others 1979 SCMR 513 and Faisalabad Development Authority v. R.C.C. Limited through Managing Director 2003 YLR 2377 ref.

Muhammad Nawaz Kharral for Applicant.

Ch. Imtiaz Ahmed for Respondent.

YLR 2010 ISLAMABAD 1632 #

2010 Y L R 1632

[Islamabad]

Before Syed Intikhab Hussain Shah, J

ALI ABBAS KHAN---Petitioner

Versus

Mst. PALWASHA KHAN and 2 others---Respondent

Writ Petition No.143 and C.R. No.4 of 2009, decided on 5th May, 2009.

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

----Ss.5, 7 & 8---Constitution of Pakistan (1973), Art. 199---Constitution petitioner---Dissolution of marriage---Exercising power of Talaq-e-Tafweez---Respondent / wife sent a divorce deed to petitioner / husband on the basis of purported exercise of right of divorce allegedly delegated to her by the husband endorsed in column No.18 of Nikahnama--Wife also sent copy of divorce deed to the Chairman Arbitration Council along with notice under S. 8 of Muslim Family Laws Ordinance, 1961 for constitution of Arbitration Council---Husband had alleged that he never gave any right of divorce to wife nor any such powers were endorsed at the time of Nikah---Husband had also alleged that impugned order rendered by Chairman Arbitration Council was against the law and without authority as the "Shary Haqooq" as mentioned in column No.18 of Nikahnama, would not mean that he had delegated the right of divorce to wife---Husband had asserted that certificate of effectiveness of divorce was issued by the Council without any lawful authority---Wife had contended that she had rightly exercised the power of Talaq-e-Tafweez given to her by the husband in column No.18 of the Nikahnama and that Chairman Arbitration Council had rightly issued certificate of effectiveness of Talaq---Validity---Held, it was not a Shari Right of a wedded woman to get divorce upon herself without specific delegation of such power by the husband---Counsel for respondent / wife had not been able to prove that a woman could divorce upon her as a Shari Right---Words mentioned in column No.18 of Nikahnama, did not vest any power in wife to exercise right of Talaq-e-Tafweez---No power was delegated by the husband to wife to exercise right of Talaq-e-Tafweez upon her---If such type of words were allowed to be considered as a right of Talaq-e-Tafweez, it would mean that whatever was incorporated against column No.18, would be presumed as a Talaq-e-Tafweez---Husband in the present case had specifically denied that no such power was given to wife at the time of Nikah---Divorce deed, in circumstances, was executed without any legal basis by the wife and same had no value in the eye of law---Impugned order passed by Chairman Arbitration Council was also not in accordance with law and was liable to be set aside.

Farah Khan v. Tahir Hamid Khan 1998 MLD 85; Abdul Haseeb v. Chairman, Arbitration Council and others 2000 CLC 202 and Dr. Syed Qambar Murtaza Bokhari v. Chairman Arbitration and Reconciliation Committee and others 1995 CLC 1524 ref.

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

----Ss.7 & 8---Dissolution of marriage---In Islam a marriage could be dissolved; (i) By the husband at his will without the intervention of a court; (ii) By mutual consent of the husband and wife, without the intervention of a court, and (iii) By a judicial decree in the suit of the husband and wife---Wife could not divorce herself from her husband without his consent, except under a contract, but she could, in some cases, obtain a divorce by judicial decree---Section 7 of Muslim Family Laws Ordinance, 1961, regulates the procedure as to pronouncement of Talaq---Under Islamic Law a Muslim husband enjoys unfettered power to pronounce Talaq to his wife; it was also established principle of Islamic Jurisprudence that husband could delegate his power to his wife or to third person by way of contract.

Mulla's Muhammadan Law para. 305 (1) ref.

Mian Ishtiaq Hussain for Petitioner.

Tahir Mehmood Abbasi for Respondent No.1.

Date of hearing: 22nd April, 2009.

Karachi High Court Sindh

YLR 2010 KARACHI HIGH COURT SINDH 9 #

2010 Y L R 9

[Karachi]

Before Arshad Noor Khan, J

BAKHAT MAL---Applicant

Versus

GHULAM HYDER through Legal Representatives and others---Respondents

Civil Revision Application No.56 of 1987, decided on 14th April, 2009.

Specific Relief Act (I of 1877)---

----Ss.8, 12 & 39---Recovery of possession, specific performance of contract and cancellation of sale-deed---Concurrent findings of fact by two Courts below---Raising of new plea---Scope---Suit filed by plaintiff for recovery of possession, specific performance of contract and cancellation of sale-deed, was concurrently decreed in his favour by Trial Court and Lower Appellate Court---Plea raised by defendant was that he was statutory tenant, therefore, he could not be evicted otherwise than by due course of law--Validity---Such was a new plea raised at belated stage of proceedings and could not be acceded to---Jurisdiction vested with Courts below was exercised by them legally and the same was not fanciful, arbitrary or against material available on record---Judgment and decree passed by Courts below did not suffer from any illegality or infirmity so as to interfere in revision application---Revision was dismissed in circumstances.

A.M. Mubeen Khan for Applicant.

Respondent (in person).

Date of hearing: 14th April, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 13 #

2010 Y L R 13

[Karachi]

Before Bhajandas Tejwani, J

MUHAMMAD USMAN and 2 others---Applicants

Versus

THE STATE and another---Respondents

Criminal Revision Application No. S-51 of 2009, decided on 26th October, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.561-A, 87 & 88---Quashing of proceedings---Applicants had challenged the order issuing proclamation under Ss. 87 & 88, Cr. P. C. in sessions case against them and other co-accused nominated in the challan---Applicants had further prayed that proceedings pending before the Trial Court against them be quashed---Co-accused having similar and identical role had been acquitted by invoking the jurisdiction under S.265-K, Cr. P. C. ---Application, in circumstances was allowed and proceedings were quashed.

Syed Madad Ali Shah for Applicants.

Syed Meeral Shah, Dy. P.-G. for Respondents.

Complainant present in person.

YLR 2010 KARACHI HIGH COURT SINDH 23 #

2010 Y L R 23

[Karachi]

Before Arshad Noor Khan, J

NASEERUDDIN through Legal Heirs and 6 others---Applicants

Versus

Kazi ATTAF ALI and another---Respondents

Civil Revision No.12 of 1992 and C.M.As. Nos. 552, 553, 145, 300, 153, 60 and 69 of 2004 decided on 6th April, 2009.

Civil Procedure Code (V of 1908)---

----O.XXXIX, R. 2(3)---Contempt of Court Act (XXIV of 1976), Ss.3 & 4---Violation of injunction---Restoration of possession---Contempt of Court---Applicant alleged that respondents dispossessed him and an F.I.R. was lodged, which was thoroughly investigated and respondents participated in investigation---Investigating Officer opined that no offence of dispossession had been made out and submitted such report before Court and F.I.R. was disposed of as allegations of applicant were not established in investigation---Investigation showed that applicant was not found in possession of property in question from the date of order passed by High Court---Applicant was not in possession when revenue authorities inspected the site and it was not proved that respondents had dispossessed the applicant and rendered themselves liable for penal action under the provision of Contempt of Court Act, 1976---Application was dismissed in circumstances.

Haji Muhammad Hussain and 4 others v. Muhammad Abbas 2001 YLR 1767 distinguished.

S. Zaheer Hassan, Abdul Haque Kamboh and Noor Hassan Malik for Applicants.

Mukesh Kumar for Contemners with Qazi Aftab Ali and Qazi Sikandar Ali in person.

YLR 2010 KARACHI HIGH COURT SINDH 28 #

2010 Y L R 28

[Karachi]

Before Gulzar Ahmed and Malik M. Aqil Awan, JJ

MASOOD AHMED---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and another---Respondents

Constitution Petition No. D-2063 of 2008, decided on 6th June, 2009.

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

----S.2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing name in Exit Control List---Petitioner was aggrieved by the memorandum issued by the authorities whereby his name had been placed in Exit Control List---No grounds had been given in the impugned memorandum for putting the name of the petitioner on the Exit Control List---No material was on record to show that any case was pending against the petitioner in any Court---Merely investigation by the NAB Authorities, which seemed to be going on fora considerable long time, would not be a ground for depriving the petitioner of his constitutional right of living as a free citizen of Pakistan; and there appeared to be no reasonable ground on the basis of which he could be deprived of travelling abroad---Impugned memorandum whereby name of the petitioner was placed in Exit Control List, was set aside.

Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Karachi 705 and Khan Muhammad Mahar v. Federation of Pakistan PLD 2005 Karachi 252 ref.

Imdad Ali Ujjan for Petitioner.

Ashiq Raza, Dy. A.-G. for Respondent No.1.

Sanaullah Noor Ghori for Respondent No.2.

YLR 2010 KARACHI HIGH COURT SINDH 33 #

2010 Y L R 33

[Karachi]

Before Munib Ahmed Khan, J

Mirza SIRAJUDDIN through Legal Heirs and 6 others---Appellants

Versus

ABDUL GHAFFAR through Legal Heirs---Respondent

Second Appeal No.10 and C.M.A. No.1081 of 2007, decided on 28th April, 2009.

Civil Procedure Code (V of 1908)---

----S. 100---Second appeal---Decision during remand of proceedings--- Order passed by Supreme Court---Scope---Order of remand was set aside by Supreme Court on 16-1-2003---Appellants, according to direction of Supreme Court, instead of proceeding with appeal, withdrew the same on 17-3-2004, therefore, by doing so appellants conceded to both the orders of original Court as well as Lower Appellate Court---Execution was rightly filed by respondent and no exception could be taken to the same---In continuation of proceedings, the final order of the highest Court prevailed and all orders coming contrary to that were to be considered as merged into it and would have no force if they were coming in conflict with the order of the highest Court---Withdrawal of appeal by appellants after remand by Supreme Court was an act consented to the orders of lower Courts, which had been assailed in that appeal---Second appeal was dismissed in circumstances.

1992 SCMR 302 and AIR 1955 SC 576 ref.

Sajid Latif for Appellants.

Imran Ahmed for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 40 #

2010 YLR 40

[Karachi]

Before Abdul Rasheed Kalwar, J

MEENHAN KHAN---Applicant

Versus

S.P. INVESTIGATION HYDERABAD and 3 others---Respondents

Criminal Miscellaneous Application No.S-175 of 2007, decided on 23rd October, 2008.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.380 & 457---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Quashing of order---Application for---Impugned order was passed on the final report submitted by Investigating Officer wherein it had been stated that compromise had been entered into between the complainant and accused party---Case was recommended to be disposed of in class B', on that basis, however Superintendent of Police (Investigation) had not concurred with the said report and ordered for disposal of case under classA'---Acting on such order, a report under S.173, Cr.P.C. was submitted before the Magistrate who without having recourse to the material available with Police passed the impugned order---Sections 457 & 380, P.P.C. and S.14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, were non-compoundable---Magistrate had to apply his judicial mind while passing such order, which was conspicuously lacking, and it was not ipsi dixit of the police to decide the fate of a criminal case---Impugned order being not speaking one, no justification of such an order was found from the text of impugned order---Impugned order was set aside and case was remanded to the court of Judicial Magistrate, with the direction to pass proper, legal and speaking order afresh after affording an opportunity of being heard to the applicant, his witnesses and State Counsel.

Muhammad Sachal R. Awan for Applicant.

Mumtaz Alam Leghari Asstt. A.-G. along with P.I. Syed Manzoor Ali on behalf of S.P. (Investigation) and I.O./A.S.I. Rao M. Khalil for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 43 #

2010 Y L R 43

[Karachi]

Before Arshad Noor Khan, J

HASAN QAMAR ARIF---Applicant

Versus

CENTRAL BOARD OF REVENUE through Chairman and 2 others---Respondents

Civil Revision Application No.55 and C.M.A. No.330 of 2008, decided on 15th April, 2009.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration to the effect that cancellation of the construction contract of plaintiff by authorities was null and void and was of no legal effect and consequential relief thereby restraining the defendant to implement the cancellation order, was also prayed---Applicant for interim injunction was supposed to establish that there existed good prima facie case in his favour, balance of inconvenience also lay in his favour and that he would suffer irreparable loss and injury, if the injunction was refused---Sufficient material was available on record, which remained uncontroverted, to show that the applicant was at fault in completion of the construction work as per specification and, in case, he had any grievance he had ample opportunity to challenge the same by way of filing suit for damages which was the appropriate remedy---Remaining work of construction, given to someone else, was at the verge of completion which had also not been controverted by the applicant/plaintiff---If injunction was granted to the applicant, that would hamper the construction work which could not be suspended or stayed---Both Courts below had taken into consideration each and every aspect of the matter while refusing the injunction application which did not suffer from any illegality or from jurisdictional defect---Applicant/plaintiff, in circumstances, had not been able to make out a prima facie case against the concurrent findings of the courts below to grant him the discretionary relief.

Malik Manzoor Hussain v. Mohammad Bashir and others 1980 SCMR 366 fol.

Muhammad Shafi and others v. L.D.A. and others 1993 CLC 2482, Motosons v. Trustees of the Port of Karachi 1998 CLC 1261; Nasim Ahmed v. Salim Ahmad Khan 1990 CLC 1299; Mansur Ahmed v. Kalipada Chattopadhya and others PLD 1959 Dacca 498; Amir Ahmad v. Province of Punjab and others 1991 CLC 1624; Gulzar Masih and others v. Sardar Ali and others 1991 CLC 1455 and Noor Muhammad v. Civil Aviation Authority and another 1987 CLC 393 distinguished.

(b) Damages---

----Injunction, grant of---Scope---If the damages could be measured in terms of money, injunction could not be granted.

Applicant in person.

Bhajandas Tejwani for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 49 #

2010 Y L R 49

[Karachi]

Before Ghulam Sarwar Korai, J

MUHAMMAD RAFIQUE---Applicant

Versus

CIVIL JUDGE AND JUDICIAL MAGISTRATE NO.1 and 6 others---Respondents

Criminal Miscellaneous No.66 of 2009, decided on 6th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.182, 365-B & 392---Quashing of proceedings---Application for---Applicant lodged F.I.R. which was disposed of in "B" class vide order passed by Judicial Magistrate and applicant/complainant was ordered to be prosecuted under S.182, P.P.C.---In compliance of that order, a report was filed by S.H.O. concerned and thereafter proceedings against the applicant were initiated in the court of Judicial Magistrate---Counsel for the applicant had stated that he would be satisfied if the proceedings against applicant before the Trial Court be quashed---Though the F.I.R. under Ss.365-B & 392, P.P.C. was not proved during investigation and same was disposed of in "B" class, but taking action against applicant and proceedings under S.182, P.P.C., could not be required under the law---Proceedings were quashed in circumstances.

Muhammad Sachal Awal for Applicant.

YLR 2010 KARACHI HIGH COURT SINDH 50 #

2010 Y L R 50

[Karachi]

Before Khalid Ali Z. Qazi, J

ABDUL GHANI and 8 others---Plaintiffs

Versus

AHMAD HIMANI and 3 others---Respondent

Suit No.470 of 1992, decided on 29th May, 2009.

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

----Ss.8 & 42---Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), Ss.5 & 36(4)---Civil Procedure Code (V of 1908), S.9---Displaced Persons (Compensation and Rehabilitation) Act (XL VII of 1958), Ss.22 & 25---Suit for declaration of title and recovery of possession---Plaintiff filed suit in year 1992 claiming to be owner of suit property on basis of PTD issued in year 1962 in favour of his father (died in year 1972) after cancellation of sale between defendant's mother and its Hindu owner by order of Custodian (Judicial) in year 1950---Plea of defendant was that sale-deed executed in year 1947 in favour of his mother by Hindu owner of suit property was still intact and not cancelled--Proof---Such order of Custodian annexed with plaint showed twice his name and designation, whereas at relevant time no person by name appearing thereon was the Custodian---Certified copy of such order produced by plaintiff was bearing certain dates, which were not appearing an its copy annexed with plaint---Such order suffered from basic grammatical errors, which could not be expected from a Custodian on 1950s having status of a Judge of High Court---Such order was passed by Custodian (Judicial) of Evacuee Property of Sindh and Federal Capital, which post was not available at relevant time---Such order had been passed on application of a person not claiming any right in suit property, but was not passed in suo motu assumption of power by Custodian under S. 36(4) of Pakistan (Administration of Evacuee Property) Ordinance, 1949---Affidavit in support of such application was not available---Person alleged to have made such application continued to be Manager/Rent Controller of defendant's mother till her death in year 1982---Such order of Custodian relied upon by plaintiff was a forged document, thus, jurisdiction of civil Court was not barred---Documents produced by defendant confirmed that since 1947 till filing of present suit, defendant's mother and after her death, he had been dealing with suit property openly as rightful owner in possession thereof without any protest from plaintiff's father or plaintiff---Plaintiff had failed to show/prove that sale-deed in favour of defendant's mother was a fraudulent document---Genuineness of PTD issued in favour of plaintiff's father could not be verified in absence of transfer file--Plaintiff's father on basis of PTD till his death in year 1972 and thereafter plaintiff till filing of suit had not issued any notice to tenants, collected rent, paid taxes, applied for mutation or taken any action against defendant or his mother---Such unexplained inaction and delay on the part of plaintiff and his father showed that such PTD was forged document having no legal effect--Order of Custodian was forged, thus, all subsequent orders and actions based thereupon were also void---Suit was dismissed with costs.

PLD 2007 Lah 341 and 2007 MLD 355 ref.

Muhammad Sarwar v. Muhammad Ali 2002 SCMR 829; Abbasia Co-operative Bank v. Muhammad Ghaus PLD 1997 SC 3; Muhammad Raghib v. Abdul Razzak PLD 1994 Karachi 20; Khayam Films v. Bank of Bahawalpur 1982 CLC 1275; Qadir Bakhsh v. Ghulam Moeenuddin 1994 CLC 1949 and PLD 1958 SC (Pak) 104 rel.

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

----S. 9---Displaced Persons (Compensation and Rehabilitation) Act (XL VII of 1958), Ss. 22 & 25---Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), S.5---Forged and fabricated order of Custodian---Jurisdiction of civil Court---Scope---Bar of jurisdiction would apply in respect of lawful orders passed under a statute, but not such like order---Principles.

The bar against the finality of orders and ouster of jurisdiction are only applicable in respect of lawful orders passed under the statute and not orders, which are forged and fabricated.

Orders extraneous to the statute do not oust the jurisdiction of the Civil Court. The ouster of jurisdiction can only be inferred in respect of orders passed "under the statute", the latter term referring to only those orders, which could be lawfully passed under the Act. If unlawful orders do not oust the jurisdiction of civil Courts, one cannot imagine as to how forged and fabricated orders could oust the jurisdiction of civil Courts.

Muhammad Sarwar v. Muhammad Ali 2002 SCMR 829; Abbasia Co-operative Bank v. Muhammad Ghaus PLD 1997 SC 3 and Abdul Rauf v. Abdul Hamid PLD 1965 SC 671 rel.

---S.2---Civil Procedure Code (V of 1908), O.III, R.2(a)---Contract Act (IX of 1872), S.182---Power of attorney could be challenged only by principal and not by third party---Illustration.

Khayam Films v. Bank of Bahawalpur 1982 CLC 1275; Qadir Bakhsh v. Ghulam Moeenuddin 1994 CLC 1949 and Sadiq Ali Khan v. Abdur Rehman 1995 CLC 977 rel.

Faisal Kamal and Arshad Hussain for Plaintiffs.

Hamza I. Ali for Defendant No.1.

Defendants Nos.2 to 6 called Absent.

Date of hearing: 29th April, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 61 #

2010 Y L R 61

[Karachi]

Before Arshad Noor Khan, J

SHANKAR and 3 others---Applicants

Versus

RANJHO and others---Respondents

Civil Revision Applications Nos. S-13 to S-15 of 2006 and C.M.As. Nos.60, 65, 63 of 2008, decided on 11th May, 2009.

Specific Relief Act (I of 1877)---

----Ss.8 & 54---Civil Procedure Code (V of 1908), S.12(2)---Judgment and decree setting aside of---Maintainability---Merger of decree---Judgment passed by Trial Court was merged into the judgment and decree passed by Lower Appellate Court but Trial Court allowed application under S.12(2) C.P.C., set aside judgment and decree passed by Lower Appellate Court and passed a fresh decree---Fresh judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Plea raised by petitioner was that application under S.12(2) C.P.C. could only be filed before Lower Appellate Court and not before Trial Court---Validity---Application under S.12(2) C.P.C. was only maintainable before the Court who finally passed judgment and decree as judgment and decree passed by Trial Court stood merged in judgment and decree passed by higher forum, who affirmed or modified the judgment and decree---As Lower Appellate Court had finally passed judgment and decree and judgment and decree passed by Trial Court was merged into that of Lower Appellate Court, therefore, Trial Court was wholly incompetent to entertain and adjudicate upon application under S.12(2) C.P.C. and to set aside the judgment and decree passed by Lower Appellate Court---Order passed by Trial Court, setting aside of judgment and decree was passed beyond jurisdiction vested in the Court and subsequent order passed by Lower Appellate Court also suffered front legal infirmity and could not be sustained---Judgments and decrees passed by both the Courts below were set aside by High Court in exercise of revisional jurisdiction---Revision was allowed accordingly.

2004 SCMR 1247; 2006 SCMR 595; 2005 CLC 1511; Shabbir Hussain v. Mst. Anwar Sultan through 3 Legal Heirs 1986 CLC 903; Muhammad Yaqub v. Mst. Nooran 1983 CLC 1948; Muhammad Shafi v. Falak Sher 1999 CLC 361 and Land Acquisition Collector v. Said Muhammad NLR 1998 Civil 50 ref.

A.M. Mobeen Khan for Applicants (in R.As. Nos.13 and 14 of 2006).

Noor Hassan Malik for Applicants (in R.A. No.15 of 2006).

Nemo for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 68 #

2010 Y L R 68

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD JEHANGIR---Petitioner

Versus

Malik ABID HUSSAIN and 3 others---Respondents

C.P. No.194 of 2008, decided on 21st October, 2009.

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

----Ss.3 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ejectment of tenant---Subletting of premises---Concurrent findings of fact by two courts below---Shop in question was owned by Auqaf Department of Government and it was let out to respondent, who further sub let the same to petitioner---Rent Controller passed order of eviction against petitioner which order was maintained by Lower Appellate Court---Validity---Shop in question was public property and petitioner was not entitled to it because he had never been tenant of Auqaf Department---Respondent was also not entitled to the shop because he could not maintain ejectment application in view of S.3 of Sindh Rented Premises Ordinance, 1979---High Court declined to put respondent in possession because he sublet the premises without permission of the owner of property in question, he thus parted with possession of the premises---High Court directed that property be got vacated and Auqaf Department to take over the shop, whereafter the Department could let out the shop in accordance with rules and that too in the best interest of public exchequer---Courts below recorded findings of fact and had ordered ejectment, as the same was question of fact conclusively determined by two courts below---Petitioner failed to point out any infirmity in the orders passed by two courts below---Petition was disposed of accordingly.

Pakistan State Oil Company Limited v. Khaliq Raza Khan 1994 CLC 1866; Khaliq Raza Khan v. Messrs Pakistan State Oil Company Limited 1998 SCMR 2092; Afzal Ahmad Qureshi v. Mursaleen, 2001 SCMR 1434; Muhammad Naseeruddin v. Mst. Hashmat Bibi PLD 1993 Karachi 300 and Messrs Sattar Brothers v. Messrs Hanif Jee & Sons 2005 CLC 1696 ref.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---In constitutional jurisdiction, it is the justice which is to fostered and cause of justice is to be advanced---Constitutional jurisdiction cannot be invoked for perpetuating a wrong or to aid injustice.

Ghulam Raza Khokhar for Petitioner.

Ch. Abdul Rasheed for Respondent No .1.

Date of hearing: 6th October, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 77 #

2010 Y L R 77

[Karachi]

Before Muhammad Ismail Bhutto, J

Mst. RUKHSAT BANO and another---Applicants

Versus

GHULAM HUSSAIN and 4 others---Respondents

Criminal Revision Application No.102 and M.As. Nos.2897 and 2898 of 2009, decided on 30th July, 2009.

Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 7---Criminal Procedure Code (V of 1898), Ss.439 & 561-A---Quashing of order---Application for---Application filed by the applicants/complainants under Illegal Dispossession Act, 2005 was dismissed with the observation that allotment of the applicants having been suspended, case did not fall within the ambit of Illegal Dispossession Act, 2005 and no offence under S.3(1) of said Act was made out---Validity---Allotment of applicants admittedly was suspended by the Revenue Authorities, but without giving any chance of hearing to the parties---Applicants were not given the notice for suspension of their allotment---Sanad showing the allotment of the plot to the applicants reflected that at relevant time they were legally occupying the said plot---Order passed by the Trial Court was set aside and the Trial Court was directed to take cognizance against the respondents according to law.

Iran Mir Halepota for Applicants.

Shahzado Saleem Nahiyoon, APG. for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 84 #

2010 Y L R 84

[Karachi]

Before Arshad Noor Khan and Muhammad Ismail Bhutto, JJ

ABDULLAH---Petitioner

Versus

ADAMJEE INSURANCE COMPANY LIMITED through General Manager and 2 others---Respondents

Constitution Petition No. D-986 of 2007 and C.M.As .Nos.2432, 2433 of 2008, decided on 5th May, 2009.

Constitution of Pakistan (1973)---

----Art.199---Insurance Policy---Claim for damages---Car purchased by the petitioner was insured vide Insurance Policy in the sum of Rs.10,00,000---Immediately after insurance policy car in question met with the accident and the petitioner lodged claim before insurance company who after inspection of the car, accepted claim to the tune of Rs.2,00,000---Petitioner being dissatisfied with the said sanction of Rs. 2,00,000, filed constitutional petition seeking therein direction to the company to pay full amount of the insurance to the tune of Rs.10,00,000-Contention of petitioner was that car in question was completely damaged and was not in a position to ply on the road and that the Insurance Company by not paying full claim of the damaged car to the "tune of Rs.10,00,000, had violated the terms and conditions of the Insurance Policy---Validity---Petitioner, in support of his version, had not produced any concrete evidence to show that car in question Was completely damaged and was not in a position to get it repaired or ply the same on the road---Petitioner had not got the car examined by any private or the auto mobile companies, in order to say that car was completely damaged and was not in a position to get it repaired---Petitioner had not even challenged the assessment/ inspection report prepared by Examining Officer of ,the Insurance Company---No material was available on record to show that the vehicle in question was completely damaged and was not reparable after the accident---No illegality or any miscalculation of the claim of the petitioner was an record in respect of his car---Amount of Rs.2,00,000 as damage of the car having rightly been determined after inspection, same could not be interfered with.

Shaikh Amanullah for Petitioner.

Bhajandas Tejwani for Respondents Nos.1 and 2.

YLR 2010 KARACHI HIGH COURT SINDH 88 #

2010 Y L R 88

[Karachi]

Before Munib Ahmed Khan and Muhammad Ismail Bhutto, JJ

MOULA BUX and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.4 of 2008 and 10 of 2009, decided on 24th July, 2009.

Penal Code (XLV of 1860)---

----S.302---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Incident took place at the house of deceased accused---Complainant had stated in his F.I.R that he, along with other Police Officials, went to arrest an accused where encounter took place with the decoits who were seen in the head-lights of mobile and electric bulbs---Said encounter had taken place in the house of deceased accused, where Police had seen nine persons---Complainant and eye-witnesses who had participated in the encounter; and in their presence accused persons had surrendered themselves along with their respective weapons, had fully supported the version of prosecution---Said version was also supported by the medical evidence, so also circumstantial evidence of recovery of crime weapons---Prosecution had been able to make out a case against accused persons---Contentions by counsel for accused persons, had no force---Impugned judgments of the Trial Court, not wanting interference, appeals were dismissed, and impugned judgments were upheld.

Athar Iqbal Shaikh for Appellant (in Criminal Appeal No.4 of 2008).

Zulfiqar Ali Sangi for Appellant (in Criminal Appeal No.10 of 2009).

Zulfiqar Ali Jatoi, Dy. P.-G. for the State.

Date of hearing: 22nd July, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 104 #

2010 Y L R 104

[Karachi]

Before Khalid Ali Z. Qazi, J

AFTAB HUSSAIN through Sub-Attorney---Plaintiff

Versus

KARACHI PORT TRUST through Board of Trustees---Defendant

Suit No. 202 and C.M.As. Nos. 1227 and 1344 of 2006, decided on 14th April, 2009.

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

----O. VII, R.11---Rejection of plaint---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.

Younus Textile Mills v. Muhammad Fazal Tayyab 2004 MLD 1081; Raees Ghulam Sarwar Sadiq v. Mansoor Sadiq Zaidi and others PLD 2008 Kar. 458 and 2008 CLD 1056 rel.

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

----O.XXXIX, Rr.1, 2 & S.151---Application for seeking restraining order---Plaintiff had made out a prima facie good arguable case in his favour under the peculiar facts and circumstances of the case---Balance of convenience also lay in favour of plaintiff, and if he was ejected from the premises in question, he could not be compensated in terms of money---Application was allowed to the extent that the plaintiff would not be dispossessed from the premises in question subject to deposit of Rs. 5,00,000 with the Nazir of the court within specified period; and pay the municipal charges to the concerned departments within the specified period---Applicant was also directed to deposit the future rent in advance with the authority on or before specified date without fail.

----O.XXXIX, R.2(3)---Allegation of violation of Court orders--Nothing specific was on record to suggest that alleged contemners had violated the court order---Applicant having failed to establish even a prima facie violation of the court order by alleged contemners, no interference by the court was warranted---Application for contempt of court was dismissed.

Sabir Hussain for Plaintiff.

Muhammad Sarfraz Sulehry for Defendant.

YLR 2010 KARACHI HIGH COURT SINDH 112 #

2010 Y L R 112

[Karachi]

Before Syed Mahmood Alam Rizvi, J

FAYAZ AHMAD---Appellant

Versus

KISHAN LAL RAJA and 4 others---Respondents

Criminal Acquittal Appeal No. S-51 of 2006, decided on 17th April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.417, 155, 265-K & 537---Penal Code (XLV of 1860), Ss.420, 468, 471, 474 & 34---Appeal against acquittal---Impugned judgment of acquittal, was against the law and was based on misinterpretation of law by the Trial Court---Trial Court could not differentiate between S.155(2) & (3), Cr.P.C. and even ignored that it had already taken the cognizance of the case and framed the charge---Case should not be decided in slipshod manner without recording the evidence of the parties on the basis of a mere irregularity committed by the Police during investigation, even otherwise those irregularities were curable under S.537, Cr.P.C.--- Impugned judgment based on misinterpretation of law, was not sustainable---Appeal against order of acquittal was allowed and case was remanded to the Trial Court with direction to proceed with the case expeditiously.

Muhammad Yasin v. S.S.P. 2004 SCMR 868; Sastay Khan Masood v. State 2004 SCMR 1766; State v. Abdul Rehman 2005 SCMR 1544; Sarfraz v. State 2007 SCMR 830; State v. Abdali Shah 2009 SCMR 291 and Sanaullah v. S.H.O. PLD 2003 Lah. 228 rel.

Syed Madad Ali Shah for Appellant.

Noor Ahmad Memon for Respondents Nos.1 to 4.

Mumtaz Alam Leghari, Asstt. A.-G. for Respondent No.5.

Date of hearing: 17th April, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 119 #

2010 Y L R 119

[Karachi]

Before Munib Ahmad Khan and Pir Ali Shah, JJ

MEHFOOZ YAR KHAN---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY, KARACHI and another---Respondents

Civil Petition No. D-720 of 2005, decided on 6th February, 2008.

Karachi Building Control Authority Regulations---

----Regln. 3-2-21-1 (b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Conversion of residential flat into commercial one---Conversion in question had been challenged on the ground that entire project was for residential purpose and use of said flat as commercial one was causing severe hindrance in all respects including privacy---Counsel for the respondents had submitted that plot in question had been regularized under Regulations 3-2-21-1(b) of Karachi Building Control Authority Regulations---Validity---City District Government had incorrectly acted upon the law of Karachi Building Control Authority as City District Government had no power to act under said Regularization---In the present case, entire nature of use had been changed which was causing injuries to the residents thereof, which could not be permitted---Permission granted by City District Government for commercial use of flat in question, being not legal, same was recalled---Petition was allowed to the extent that said flat would be used for residential purposes.

Petitioner in person.

Manzoor Ahmed, Rehman Aziz Malik for Respondent.

Abdul Rehman, Amicus Curiae.

Shahid Jamil-ud-Din for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 126 #

2010 Y L R 126

[Karachi]

Before Mrs. Qaisar Iqbal, J

ABDULLAH alias SARDAR alias A. SATTAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1053 of 2008, decided on 29th September, 2008.

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

----Art.22---Holding of identification test---When necessary---Holding of identification test would become necessary in cases where names of the culprits were not given in the F.I.R.---Holding of such test was not only a check against fake implication, but was a good piece of evidence against genuine culprits---Holding of identification test, could not be dispensed with simply because accused, who had already committed the robbery, had been subsequently found in possession of robbed articles.

Farman Ali v. The State 1997 SCMR 971 ref.

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

----S.497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Complainant in the case was a solitary eye-witness of the robbed motorcycle---After arrest of accused, he ought to have been produced for identification test through him, which was absolutely necessary in the case---Counsel for accused had contended that the health of accused was deteriorating day by day and his life was at stake on account of infection in left leg which had made his life miserable---As accused was found in possession of robbed property, case against accused, at the best would fall under S.411, P.P.C.---Accused, in circumstances was entitled to concession of bail.

S. Afaq Ali for Applicant.

Qazi Wali Muhammad, A.A.-G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 131 #

2010 Y L R 131(1)

[Karachi]

Before Amir Hani Muslim, J

HAJI KHAN and 3 others---Applicants

Versus

AHMAD YOUNIS and 9 others---Respondents

Civil Revision Application No.S-7 of 2004, decided on 24th September, 2007.

Islamic law---

----Suit for pre-emption---Making of Talbs---Suit for pre-emption filed by the brother of applicant was decreed against which appeal was preferred---During pendency of appeal the pre-emptor died and appeal continued, though it stood abated on the death of the pre-emptor--Additionally it had been noticed that neither the place nor the witnesses nor the date was mentioned at the time of alleged Talbs' made by the pre-emptor, which by itself was sufficient to reverse the findings of the Trial Court---Since the appeal abated on the death of the pre-emptor and the date, place and the witnesses having not been mentioned at the time ofTalbs', revision petition being misconceived, was dismissed.

Malik Ghulam Nabi v. Member-III, Board of Revenue PLD 1990 SC 1043 ref.

Illahi Bux M. Kehar for Applicants.

Khadim Hussain M. Shaikh for Respondents Nos.6 to 10.

YLR 2010 KARACHI HIGH COURT SINDH 133 #

2010 Y L R 133

[Karachi]

Before Mrs. Yasmin Abbasey and Abdur Rahman Faruq Pirzada, JJ

NABI BUX and 5 other---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.17.of 2003, decided on 24th December 2008.

(a) Criminal trial---

----Burden of proof-Burden to prove its case beyond doubt always remains on the prosecution and it does not change or vary even in the case in which any defence plea is taken by the accused.

1993 SCMR 417 ref.

(b) Evidence---

----Interested witness---Evidence of an interested witness in a case of capital punishment cannot solely be made a basis for conviction, unless the same is corroborated by other independent and unimpeachable piece of evidence.

Rab Nawaz v. Sikandar Zulqarnain 1998 SCMR 25 and 1969 SCMR 777 ref.

----Appreciation of evidence---Ocular evidence did not inspire any confidence---Contradictory statements of eye-witnesses on minor points had created doubt about their presence at the scene of occurrence--Discrepancies had even occurred during investigation---No expert opinion was obtained regarding the recoveries made from the place of occurrence---Material evidence i.e., clothes of the deceased and the Jeep used in the incident along with its driver were not produced---Accused could not be believed to have created law and order situation and put the persons of the locality in undue harassment---Accused were acquitted on benefit of doubt in circumstances.

1993 SCMR 417; Rab Nawaz v. Sikandar Zulqarnain 1998 SCMR 25 and 1969 SCMR 777 ref.

Noor Hassan Malik for Appellants.

Muhammad Iqbal Mahar, Asstt. A.-G. for Respondent.

Date of hearing: 13th November, 2008.

YLR 2010 KARACHI HIGH COURT SINDH 140 #

2010 Y L R 140

[Karachi]

Before Maqbool Ahmed Awan, J

TAHIR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.35 of 2008, decided on 3rd June, 2009.

Penal Code (XLV of 1860)---

----S. 395---Appreciation of evidence---Benefit of doubt---Complainant and other witnesses had not disclosed the names, features and descriptions of accused---Accused were put to identification parade with unexplained delay of 10 days which had created serious doubt in prosecution case---Record revealed that before holding of identification parade, accused was shown to the witnesses---Identification parade, in circumstances, had become doubtful and lost its credibility---Prosecution had not produced the complainant at the time of identification parade to identify accused---Complainant, in his evidence, had deposed that he could not say whether accused present in the court was the same or not---Prosecution witness in his evidence had not specifically pointed out accused with his specific role at the time of identification parade---Prosecution had failed to prove evidence against accused and it was very difficult to say that accused was the same person who along with the other co-accused had committed the offence---View which was favourable to accused, could certainly be found by appreciating the prosecution case in its proper perspective---View to give benefit of doubt to accused was asserted in the safe administration of criminal justice---Accused voluntarily led the Police party to his house and produced the robbed cash before them, however it had not come in the evidence, whether the house from where accused produced the cash was in exclusive possession of accused---Not a single witness had identified accused in the identification parade---Prosecution had not been able to prove evidence against accused beyond reasonable doubt---Even the slightest possible doubt in the case of prosecution must go in favour of accused--Trial Court was not justified in not giving the benefit of doubt to accused, while on the basis of the same evidence, co-accused was acquitted---Prosecution having failed to prove the charge against accused, sentence passed against him was set aside.

Saathi M. Ishaque for Appellant.

Zafar Ahmad Khan for the State Counsel.

Date of hearing: 3rd June, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 155 #

2010 Y L R 155

[Karachi]

Before Shahid Anwar Bajwa, J

RAFIQUE USMAN---Appellant

Versus

AXACT CYBER SOLUTIONS through Proprietor and 2 others---Respondents

Second Appeal No.29 of 2005, decided on 20th October, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Limitation Act (IX of 1908), S.12---Civil Procedure Code (V of 1908), S.100---Second appeal---Reappraisal of evidence---Scope---Limitation, computation of---Suit filed by plaintiff was concurrently decreed in favour of plaintiff---Plea raised by plaintiff was that appeal was barred by limitation, whereas the contention of defendant was that there was no valid contract between the parties--Validity---When copying branch had itself estimated fee on 1-4-2005, the defendant was not required to deposit court fee stamps even before fee was estimated by copying branch---If there was gap between the date when fee was estimated and the date it was deposited, time between estimation and deposit would not be taken into reckoning for exclusion---Appeal was rightly filed in time, as defendant was entitled to exclusion of period from date on which application for certified copy was filed and when the copy was delivered---Presence of valid contract between parties was a question relating to appreciation of evidence and two courts below had appreciated evidence on such point and decreed the suit---High Court while hearing appeal under S.100, C.P. C., declined to embark upon reappraisal of evidence and to take another view---Second appeal was dismissed in circumstances.

PLD 2003 SC 410; 1986 MLD 1286; 1991 MLD 437; PLD 1984 SC 208; 1980 SCMR 36; 2008 SCMR 190, 1996 SCMR 137, PLJ 1996 SC 1128(sic), 2005 YLR 2003; PLD 1955 FC 38; PLD 1981 Karachi 170; 2001 CLC 104; 2007 CLC 36; PLD 2006 Karachi 155 and PLD 2006 Karachi 523 ref.

Salman Hamid for Appellant.

Abdul Karim Khan for Respondent No.1.

Manzoor Arain for Respondent No.2.

Date of hearing: 7th October, 2009.

2010 Y L R 192

[Karachi]

Before Faisal Arab, J

Messrs AAQIB BUILDERS through Proprietor---Plaintiff

Versus

CITY DISTRICT GOVERNMENT, KARACHI through Nazim, and 4 others-Defendants

Civil Suit No. 333 and C.M.A. No. 1664 of 2008, decided on 25th May, 2009.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Suit for recovery of amount for works done under contract of works and damages---Counsel for defendants had acknowledged that such work had been satisfactorily carried out and that bills for the work carried out by the plaintiff were not cleared for the only reason that authorities while awarding contract had exceeded its budgetary allocations---In view of the admission made by the counsel for defendants with regard to the work carried out by the plaintiff, no other option was, but to decree the suit with regard to the claim of the plaintiff for damages.

Muhammad Ikram Siddiqi for Plaintiff.

Tahahwar Ali Khan for Defendants Nos.1, 3 and 4.

Muhammad Idrees for Defendant No.2.

Qazi Majid, A.A.-G. for other Defendants.

2010 Y L R 210

[Karachi]

Before Sajjad Ali Shah, J

Mst. IZZAT ARA and 5 others---Applicants

Versus

MUHAMMAD SADDIQUE and another---Respondents

Revision Application No.27 of 2008, decided on 23rd February, 2009.

Civil Procedure Code (V of 1908)---

----S.12(2)---Specific Relief Act (I of 1877), S.8---Suit for possession---Challenging decree on ground of fraud and misrepresentation---Application under S.12(2), C.P.C. for setting aside decree passed in suit was filed 13 years after passing of decree---Applicants were under obligation to explain delay in filing said application as heavy burden was upon them to explain said delay---Bald statement that applicants acquired knowledge of such fraud in the year 2004, while application was filed on 1-12-2005, would not discharge such burden for the purpose of competency of their application under S.12(2), C.P.C.

Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 ref.

Hassan Mehmood Baig for Applicants.

Salahuddin Panhwar for Respondent No.1.

Muhammad Sharif Kashmeri for Respondent No.2.

Allah Bachayo Soomro, A.A.-G.

YLR 2010 KARACHI HIGH COURT SINDH 214 #

2010 Y L R 214

[Karachi]

Before Salman Ansari, J

MUHAMMAD SHAKEEL---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.222 of 2008, decided on 27th January, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 397---Penal Code (XLV of 1860), S.392/34---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Sentences in two cases---Application for running sentences concurrently---Applicant who was convicted and sentenced for two offences; under S.392/34, P.P.C. and S.13(e) of West Pakistan Arms Ordinance, 1965 in one occurrence, had prayed that sentences awarded to him in said two offences be ordered to run concurrently---Validity---Where on account of one occurrence, different offences were made out calling for different sentences and trials, provisions of S. 397, Cr.P.C. were applicable and sentences would run concurrently rather than consecutively---Provisions of S.397, Cr.P.C. had provided for sentences to run consecutively, unless ordered otherwise---Prosecution had conceded that the sentences in the case should run concurrently it would be just and proper that sentences awarded by the two courts below should run concurrently.

Muhammad Asif v. State PLD 2003 Lah. 512 rel.

Jamshed Ahmed Khokhar for Applicant.

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

YLR 2010 KARACHI HIGH COURT SINDH 219 #

2010 Y L R 219

[Karachi]

Before Maqbool Baqar, J

AL-HABIB ARCADE through President and 10 others---Plaintiffs

Versus

RASHEED AHMED and 2 others---Defendants

Suit No.604 and C.M.A. No. 4282 of 2009, decided on 21st August, 2009.

Electricity Act (IX of 1910)---

----S. 24---Disconnection of electricity supply---Suit against---Housing Project was completed in the year 1995 and the plaintiffs were inducted in their respective flats/units in the same year---Defendants applied for regular electricity connection and for individual meters for each unit as late as in February, 2003, but Electric Supply Company instead of disconnecting the facility, continued to supply electric power up to 4-4-2009---Parties seemed to have been negligent in the matter, mainly the defendants, were at fault, in as much as they did not care even to supply for the requisite connection any time before the year 2003---Entire burden of excessive rates/tariff should not be put on the plaintiffs---Since it was the defendants who had mainly been at fault they should bear 50% of the amount charged; and being charged in excess of the regular or normal individual residential connection rates---Out of the balance 50% of the excessive amount 25% would be borne by Electric Supply Company and 25% by the plaintiffs---Said amount could only be determined after proper accounts were prepared---Electric Supply Company was directed to restore the supply, though temporarily to the plaintiffs upon their making payment of 25% of the amount.

Saathi M. Ishaq and Naseer Hussain Jafri for Plaintiffs.

Syed Nadeemul Haq for Defendants Nos.1 and 2.

Suhail H.K. Rana for Defendant No.3 along with Ahsan Mustafa Manager, Business Operation Centre, KESC.

YLR 2010 KARACHI HIGH COURT SINDH 223 #

2010 Y L R 223

[Karachi]

Before Salman Ansari, J

SARFARAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.114 of 2006, decided on 15th January, 2009.

Penal Code (XLV of 1860)---

----S. 392---Appreciation of evidence---Benefit of doubt---Prosecution case was that on the hue and cry raised by the complainant and his friend, the chase had been taken by the police in which police had apprehended culprit from whom the Razor and the plastic bag containing mobile phone allegedly snatched by accused were recovered---Complainant had acted as witness of the alleged seizure/ recovery and memo of place of Wardat---Though both the witnesses had narrated the facts as given in F.I.R., but had failed to identify accused in the court--Prosecution witness who was friend of the complainant and who, at relevant time was accompanying the complainant, was declared hostile by the prosecution---Only police witnesses remained, in field, who supported the prosecution case of the incident which had taken place in a very crowded locality of the city---No other private witness had been associated regarding arrest, search and recovery---Accused, in circumstances, should have been given benefit of doubt---Accused was acquitted.

Fazalur Rehman Awan for Appellant.

Haji Abdul Majeed for the State.

Date of hearing: 28th October, 2008.

YLR 2010 KARACHI HIGH COURT SINDH 226 #

2010 Y L R 226

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD IQBAL---Applicant

Versus

Hakeem MOHSIN JAN---Respondent

Civil Revision Application No.17 of 2008 and C.M.A. No. 71 of 2009, decided on 27th March, 2009.

Limitation Act (IX of 1908)---

----S.5---Civil Procedure Code (V of 1908), S. 149---Time barred appeal---Condonation of delay---Scope---Lack of funds for court fee with petitioner---Extension of time---Petitioner filed appeal before Lower Appellate Court which was dismissed being barred by seven days---Plea raised by petitioner was that because of paucity of funds for court fee he could not file appeal within time---Validity---If petitioner did not have funds to pay court-fee, then he could have filed appeal without payment of court fee and sought further time from Court by filing application under S.149 C.P.C. for submission of court-fee-Neither appeal was filed in time nor any application under S.149 C.P.C. was filed before Lower Appellate Court---Plea raised by petitioner regarding his paucity to arrange court fee was not reasonable and plausible to condone delay of seven days in filing of appeal---After expiry of limitation period a valuable right stood accrued in favour of opposite party, which could not be snatched or brushed aside leniently---Party guilty of limitation was duty bound and under obligation to explain each days delay in submission of appeal, when period of limitation had expired---Petitioner did not explain delay of even a single day except general plea regarding his paucity to arrange court-fee-Delay in filing of appeal was not satisfactorily explained and a valuable right accrued in favour of respondent which could not be denied to him to reap the fruit of decree---High Court declined to interfere in the order passed by Lower Appellate Court, as jurisdiction vested in the Court was exercised legally and properly---Revision was dismissed in circumstances.

Sarfraz v. Muhammad Aslam Khan and another reported in 2001 SCMR 1062; Abdul Ghani v. Mst. Shaheen and others 2007 SCMR 834 and Mst. Afroz Qureshi v. Muhammad Ikram Siddiqui N.L.R. 1995 CLJ 549 distinguished.

Attaullah Shaikh v. WAPDA 2001 SCMR 269 rel.

Abdul Haleem Qureshi for Applicant.

Nemo for Respondent.

Date of hearing: '`27th March, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 234 #

2010 Y L R 234

[Karachi]

Before Mrs. Yasmin Abbasey, J

MUSHTAQUE AHMED and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.20 of 2007, decided on 24th November, 2008.

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

----Ss. 392 & 353---Appreciation of evidence---Members of raiding party were firm and confident in giving the details of the occurrence right from receiving a wireless message about commission of a car robbery and arresting the accused with the robbed car---No material contradiction could be pointed out in the statements of prosecution witnesses---Clear statement made by prosecution witness in cross-examination regarding both the accused being present in the robbed car and coming out of it in injured condition at the time of raid, having not been denied specifically, same would be deemed to have been admitted by them---Accused during their trial had been taking inconsistent defence pleas at different stages belying their stand of false implication---Recovery of pistols from the accused used by them in the commission of offence and recovery of crime empties from the place of incident, had not been disputed by them at any stage---Both the accused were proved on record to be habitual offenders, who had acted in a rebellious manner---Robbery of car had been proved against accused by satisfactory and sound evidence---Convictions and sentences of accused were maintained in circumstances.

Criminal Law 575 2nd Edn. 1961 ref.

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

----Ss. 392 & 353---Appreciation of evidence---Principles---Fact stated by a prosecution witness in his cross-examination, if not specifically denied, will be deemed to have been admitted.

----Punishment---Purpose---Purpose of punishment is to change the character of the offender by keeping him away from criminal activities and to prevent him from repetition of the same.

(d) Sentence---

----Punishment---Nature and impact---Punishment in all its forms is a loss of rights or advantages consequent on a breach of law and when it loses this quality it degenerates into an arbitrary act of violence that can produce nothing but had social effects.

Criminal Law 575 2nd Edn. 1961 ref.

Zulfiqar Ali Sangi for Appellants.

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

Date of hearing: 10th November, 2008.

YLR 2010 KARACHI HIGH COURT SINDH 239 #

2010 Y L R 239

[Karachi]

Before Munib Ahmed Khan, J

Khawaja MUHAMMAD USMAN and 3 others---Petitioners

Versus

SHAUKAT ALI and 3 others---Respondents

Constitutional Petition No.914 of 2002, decided on 7th May, 2009.

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

----S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Landlord and tenant, relationship--- Proof--- Raising of new plea---Tenants denied relationship of landlord and tenant between the parties and raised no other plea---Suit for declaration of title filed by tenants against landlord regarding premises was decided against them upto Supreme Court---Contention of tenants was that factory was running in premises, therefore, provisions of Sindh Rented Premises Ordinance, 1979, were not applicable---Validity---Tenants had only taken issue of non-existence of tenancy while no plea of applicability of Sindh Rented Premises Ordinance 1979, on the ground that premises was factory had been taken, therefore, such plea could not be allowed in Constitutional petition, nor even there was any stand nor any evidence brought on record in this regard---Basic issue in respect to tenancy and ownership, after decision by Civil Court and Lower Appellate Court including High Court as well as by Supreme Court had taken conclusive shape and the same could not be disputed in rent proceedings---Findings of both Rent Controller and Lower Appellate Court were totally contrary to findings of Civil Court---High Court set aside orders passed by both the Courts below and ejectment order was passed---Petition was allowed in circumstances.

1985 SCMR 2024; PLD 1976 SC 781; 1983 CLC 390; PLD 1993 Kar. 181; PLD 1965 SC 90 and 2007 PLC 64 ref.

Iqbal Kazi for Petitioners.

Raja Qureshi for Respondents.

Date of hearing: 5th May, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 244 #

2010 Y L R 244

[Karachi]

Before Salman Ansari, J

ANWAR RAZA alias MANNAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1168 of 2008, decided on 21st October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/393/34---Qatl-i-amd and robbery--Bail, grant of---Further inquiry---No eye-witness was available to name or identify the accused---Co-accused had not named accused in his confession--Accused had not been named in the F.I.R. and his confession to the police was of no evidentiary value---Fatal shot had not been attributed to the accused---Crime weapon had not been recovered from the accused--Case against accused requiring further inquiry, he was admitted to bail.

Gulzar Bukhari for Applicant.

Shahida Jatoi for the State.

YLR 2010 KARACHI HIGH COURT SINDH 247 #

2010 Y L R 247

[Karachi]

Before Arshad Noor Khan, J

PAKISTAN through Secretary Defence, Islamabad and another---Petitioners

Versus

MUHAMMAD PARYAL through Legal Heirs and others---Respondents

Civil Revisions Nos.17 and 31 of 2005, decided on 21st April, 2009.

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

----O.IX, Rr.8 & 9---Dismissal and restoration of suit---Filing of fresh suit on same cause of action---Validity---Plaintiff is precluded under O.IX, R.9 C.P.C. for filing of fresh suit on same cause of action---Whenever suit of plaintiff is dismissed for want of evidence of plaintiff and his witnesses, order for dismissal is passed under O.IX, R.8 C.P.C. and the same can only be set aside under O.IX, R.9 C.P.C.

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

----Ss. 4, 6 & 52---Specific Relief Act (I of 1877), Ss.42---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Acquisition of land---Bar to jurisdiction of Civil Court---Plaint was rejected under O. VII, R.11 C.P.C. by Trial Court as land in question was acquired by authorities for public purposes but Lower Appellate Court set aside the order passed by Trial Court---Validity---Notifications under Ss.4 and 6 of Land Acquisition Act, 1894, had already been issued and were available on record, therefore, civil suit challenging action of authorities in acquisition of land in question was not maintainable in view of S.52 of Land Acquisition Act, 1894---Lower Appellate Court did not exercise jurisdiction vesting in it legally and properly while setting aside order passed by Trial Court---High Court in exercise of revisional jurisdiction set aside the order passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Sikandar Ali and another v. Abdul Raheem @ Leemon 1996 CLC 1273 and Bashir Ahmed v. Moula Bux 1990 CLC 1241 rel.

Mrs. Irene Wahab v. Lahore Dioeesan Trust Association 2002 SCMR 300 and Dhani Bux v. Ali Sher and others 2007 YLR 2134: distinguished.

Abdul Sattar Chohan for Applicant (in Civil Revision No.17 of 2005).

Ali Haider Dareshani for the Applicant (in Civil Revision No.31 of 2005).

Muhammad Nawaz Soomro for Respondents (in Civil Revisions Nos. 17 and 31 of 2005).

Date of hearing: 21st April, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 254 #

2010 Y L R 254

[Karachi]

Before Syed Mahmood Alam Rizvi and Safdar Ali Bhatto, JJ

ABDUL QADIR---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.32 of 2009, decided on 2nd July, 2009.

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

----Ss.9(c) & 74---Criminal Procedure Code (V of 1898), Ss. 435, 439 & 516-A--- Custody of vehicle---Application filed by the applicant under S.516-A, Cr.P.C. for releasing vehicle in question having been dismissed by the Special Court, applicant had filed revision application against said order---Legal bar existed against release of vehicle involved in the trafficking of the narcotics---Counsel for the applicant had requested that he was ready to deposit rupees seven lacs with the Nazir of the court as security for the release of vehicle in question-S.P.P. had conceded to the offer made by the applicant, but had contended that vehicle could not be disposed of by the applicant or on his behalf; and if the same was not produced in the court at the time of evidence, it would be taken against the appellant for tampering with the evidence--In the interest of justice as well as of the applicant and also to save further devaluation of the vehicle, it was imperative, to grant request of the applicant---Applicant or his attorney was directed to deposit cash of rupees seven lacs with the Nazir of the court within 30 days---Nazir of the court was further directed to deposit said amount in some Government Profitable Scheme and no profit would be encashed by either party till the decision of the case--It was further directed that the vehicle would not be disposed of and would be produced before the Trial Court at the time of evidence.

Abdul Salam v. The State 2003 SCMR 244 and Imtiaz Javed v. The State 2009 P. Cr. LJ 254 rel.

Muhammad Azam for Applicant.

Muhammad Ali Warsi, Special Prosecutor ANF for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 256 #

2010 Y L R 256

[Karachi]

Before Munib Akhtar, J

TAJUDDIN---Plaintiff

Versus

FEROZUDDIN AHMED and 2 others---Dependents

Suit No.1073 of 2001 and C.M.A. No.8290 of 2007, decided on 28th September, 2009.

Civil Procedure Code (V of 1908)---

----O. I, R. 10(2)--- Tort--- Suit for damages---Striking out party---Application for---Defendant in the case through his application had sought to have himself removed from the array of defendants in the suit, contending that he neither was a necessary nor a proper party to the suit; he had submitted that no allegation had been made in the plaint against him nor any relief had been sought against him---Effect---Person must either be a necessary or a proper party to a suit and if not then he was stranger to the proceedings and ought not to be made a party thereto---Order I, R.10(2), C.P.C. had specially empowered the court to strike out any party, including a defendant at any stage of the proceedings either upon or without the application of any party thereto---If defendant was found to be neither a necessary nor a proper party then he could be struck out---Plaint had indicated that defendant/applicant was not a necessary party to the suit i.e. he was not a party, or without whose presence no effective decree could be made in favour of the plaintiff---Cause of action claimed by the plaintiff was based on the alleged mental torture, loss and damage suffered by him as a result of acts which were attributed, as per averment of the plaint itself, to either defendants and it was possible, if the plaintiff would succeed in establishing his claim, to pass a decree in his favour without defendant/applicant---Proper party was a party whose presence could be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit---Presence of defendant was not required for an effectual and complete determination and adjudication of the questions involved in the suit---Defendant/applicant in circumstances, was also not a proper party to the proceedings--Application was allowed and name of the defendant was struck out from the suit and deleted from the plaint.

Uzin Export Import Enterprises v. Union Bank of Middle East Ltd. PLD 1994 SC 95; Mahboob Siddiqui v. Nafeesullah Rizvi 1990 MLD 1137; Muhammad Abdul Malik Ludhianwi v. Sadruddin Hashwani 1988 CLC 1339 and Ali S. Habib v. Sher Afgan Khan Niazi 2004 SCMR 1627 ref.

Azizuddin Qureshi for Plaintiff.

Ali Mumtaz for Defendant No.2.

YLR 2010 KARACHI HIGH COURT SINDH 264 #

2010 Y L R 264

[Karachi]

Before Arshad Siraj Memon and Muhammad Iqbal Mahar, JJ

SOBE KHAN---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION NEW PIND, SUKKUR and another---Respondents

Criminal Miscellaneous Application No.D-159 of 2009, decided on 3rd July, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.491, 4, 9 & 10---Habeas corpus application---Violation of fundamental rights---Earlier, detenu had alleged that he was illegally confined to detention and an amount of Rs.98,500, was snatched from him by the person who had allegedly arrested him; later on in presence of three Police Officials, detenu made statement that said three Police Officials had not arrested him, but somebody else had arrested him and had robbed Rs.98,500 from him and that said person was not present in the court---Detenu admittedly was illegally detained by the Police Officials of Police Station concerned and S.H.O. thereof had confirmed in the court that detenu was not required in any case---In the present case, the fundamental rights of the detenu, like right of individual to be dealt with in accordance with law, security of person and safeguards as to arrest and detention, had been violated by the Police Officials---Detenu was illegally detained by the Police Officials of Police Station, without any case against him---All the Police Officials of the Police Station concerned were directed to personally bear the costs of compensation of Rs.5000 per day which would be deposited within specified period---Police personnel, (S.H.O.) who detained detenu, being present in the court, responsibility rested on him to explain the position but he was even unaware as to who detained detenu---Such stated affairs were deplorable---Case against said S.H.O. be registered on the direction of High Court under provisions of law including Art.155-C of Police Order, 2002 and S.342, P.P.C.---In respect of recovery of amount allegedly snatched/robbed from the detenu, S.P. (Investigation) was appointed as Investigating Officer for ascertaining the facts whether such amount was taken away from the detenu---If finding was in affirmative, Investigating Officer was directed to recover such amount from person who took the amount and pay to the detenu.

Government of Sindh v. Raees Farooq 1994 SCMR 1283 and Mazharuddin v. State 1998 PCr.LJ 1035 ref.

Shaikh Amanullah for Applicant.

Liaquat Ali Shar, Addl.A.-G. along with Inspector Sarfraz Hussain Mangi, S.I.P. Ali Murad Abbasi, S.H.O. and A.S.I. Malik Sultan Ahmed for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 274 #

2010 Y L R 274

[Karachi]

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

MUHAMMAD KHALID and 3 others---Petitioners

Versus

Messrs SHAFIQ TEXTILE MILLS LIMITED, KARACHI through Directors and 6 others---Respondents

Civil Petitions No.D-1834 of 2006 and Miscellaneous No. 8386 of 2007, decided on 27th November, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Encroachment---Settlement of the matter outside court---Petitioners had stated that they had agreed to compensate the respondents and other encroachers who had settled the matter outside the court in terms as narrated in the application---Grievance of the petitioners had been resolved, affectees had been compensated, delinquent officers had been penalized, the purpose of filing of the petition had been served out---Petition was disposed of as withdrawn.

Muhammad Ikram Siddiqui and Raza Hashmi for Petitioners.

Muhammad Jamil for Respondent No.3.

Manzoor Ahmed for CDGK Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 275 #

2010 Y L R 275

[Karachi]

Before Malik M. Aqil Awan, J

Malik MUHAMMAD AKRAM---Appellant

Versus

MAROOF BHASHA and 2 others---Respondents

Criminal Acquittal Appeal No.27 of 2009, decided on 10th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.417---Penal Code (XLV of 1860), Ss.406, 420 & 506-B---Appeal against acquittal---Simple case of sale agreement in respect of plot in question--Vendee/appellant in the present case, claimed that he paid considerable amount as earnest money to vendor out of settled consideration and after payment of the same the vendor resiled from honouring transaction---Remedy for appellant was to file suit for specific performance, but instead he adopted an unwarranted course of filing criminal case and right from the initiation of criminal case till its conclusion, it was never noticed by the Trial Court or any member of legal fraternity that such course would amount to abuse of the process of law---Even if the appellate court would come to the different view on the basis of recorded evidence, than that of Trial Court on appreciation of evidence, yet it was no ground for interference in the acquittal recorded by the Trial Court, unless some misreading or non-reading of evidence was pointed out which had resulted in grave miscarriage of justice---Appeal against acquittal was dismissed in limine.

Muhammad Irfan for Appellant.

Muhammad Imran Khan for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 281 #

2010 Y L R 281

[Karachi]

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

BLOCH KHAN and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Local Government, Karachi and 12 others---Respondents

Civil Petitions Nos.1576 and 1781 of 2007, decided on 30th November, 2007.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Interpretation of an agreement/contract---Controversy was in respect, to the interpretation of the agreement whereby contract had been assigned to respondent for receiving an amount of Rs.150 from every milking animal entering the limits of Karachi---Petitioner in both the petitions had contended that even after receiving that amount City District Government was receiving an amount from the petitioner in respect of said animals at yearly basis---Such factual position had been denied by the counsel for City District Government as according to him after entering of said animals in Karachi limits no further amount was collected; and that the contract had only been awarded as there was confusion in complaints towards the payment of licence fee to stop that---One time method therefore, had been adopted and that too through the Contractor---After the clarification from the counsel of City District Government, the Contractor was entitled to payment and to receive Rs.150 for each and every animal while entering in Karachi, was correct and same was upheld.

Muhammad Nazeer Tanoli for Petitioner (in Civil Petition No.D-1576 of 2007).

Patras Piyara for Petitioner (in Civil Petition No.D-1781 of 2007).

S. Khursheed Hashmi for Respondent.

Manzoor Ahmed for City District Government.

YLR 2010 KARACHI HIGH COURT SINDH 282 #

2010 Y L R 282

[Karachi]

Before Faisal Arab, J

AIJAZ MEHMOOD---Petitioner

Versus

Messrs HABIB BANK LIMITED and 2 others---Respondents

Constitutional Petitions Nos. S-441, 442, 460 and 461 of 2007, decided on 18th August, 2009.

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

----S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for fixation of fair rent---Petitioner/tenant had submitted that the person who initiated the legal proceedings against him was not authorized to initiate legal proceedings; and the power of attorney that had been executed in his favour was not based on any authorization of a resolution of the Board of Directors of Bank/Company---Petitioner had submitted that power of attorney required that at least two persons should have acted as attorney---When the power was conferred on any officer of the company by the Articles of Association, then there was no need for any resolution of the company---In the present case as the executants of the power of attorney were the members of the Executive Board of the Bank/Company, they derived powers from the Articles of Association---No separate resolution for appointment of attorney on behalf of the Bank/Company was needed--Requirement that at least two persons should have acted as attorney, admittedly two officers of the Bank/Company had signed the fair rent application before the Rent Controller---No legal infirmity existed in that respect, in circumstances---Proceedings were legally initiated by the officers of the company (Bank) who had acted on the basis of power of attorney.

PLD 1997 Kar. 62; PLD 1966 SC 684 and PLD 1971 SC 550 rel.

A. Nawaz Osmani for Petitioner.

Saleem Iqbal for Respondent No.1.

YLR 2010 KARACHI HIGH COURT SINDH 288 #

2010 Y L R 288

[Karachi]

Before Shahid Anwar Bajwa, J

Syed TANVEER ABBAS ZAIDI---Petitioner

Versus

VIIITH FAMILY JUDGE AND JUDICIAL MAGISTRATE EAST, KARACHI and another---Respondents

Constitutional Petition No.S-426 of 2009, decided on 22nd October, 2009.

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

---Ss.5 & 12-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Family dispute---Delay in trial---Suit for recovery of prompt dower, maintenance and dowry articles filed by wife was pending before Family Court and husband had been delaying the same on one pretext or the other---Validity---Contention of husband that wife refused to submit herself to cross-examination was not well founded, even before High Court, wife repeatedly made offer to undergo for cross-examination but husband appeared to have adopted hardened stance, thus court below had rightly rejected application filed by husband---Court below had rightly recorded that family matters should be decided as quickly as possible and according to mandate of S.12-A of West Pakistan Family Courts Act, 1964, matter should be decided within six months---High Court directed Family Court to allow a period of one month to husband for cross-examination of wife and after completing evidence of both the sides to decide the matter positively within a period of three months---Petition was dismissed accordingly.

Mst. Nasim Sharif v. Imtiaz Ali Khan and 3 others 2006 CLC 1393; Pir Mazharul Haq and others v. The State PLD 2005 SC 63; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Hakeem v. The State PLD 1963 Karachi (W.P.) Karachi 63; Ranjah v. The Stated PLD 1962 Baghadad-ul-Jadid 12; Nizamnddin and others v. The State 1991 PCr.LJ 1707; Muhammad Abbas v. The State 1972 PCr.LJ 649; Muhammad Shafi v. The State PLD 1967 SC 167 and Jalauddin Ahmed v. The Crown PLD 1957 Dacca 322 ref.

S.M. Gharib Nawaz Daccawala for Petitioner.

Abdul Karim Siddiqi for Respondent No.2.

Date of hearing: 7th October, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 293 #

2010 Y L R 293

[Karachi]

Before Bin Yamin, J

MUHAMMAD HUSSAIN and 7 others---Applicants

Versus

ABDUL WAHID and 2 others---Respondents

Criminal Miscellaneous No.163 and M.A. 3218 of 2008, decided on 12th August, 2008.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 561-A---Penal Code (XLV of 1860), Ss.324, 337-H(ii), 504, 506, 147, 148 & 149---Quashing of F.I.R.---Counsel for the applicants had contended that respondent had filed false case against the applicants; that the story of the case given in the application before the Justice of Peace under S.22-A, Cr.P.C. for issuance of direction to S.H.O. to register the F.I.R. and the story given before the Police after registration of the case were quite different---Counsel for applicants, however had admitted that neither any challan had been filed before the court against the applicants nor he had approached any court under S.265-K, Cr.P.C. for acquittal---Application could not be entertained for the reasons; firstly, as the matter was under investigation with the Police which had got ample power to declare case false and get such report approved by competent Magistrate, secondly, challan was filed against the accused before the court of law and they had the right to seek relief from the Trial Court by making application under S.265-K, Cr.P.C-Application under S. 561-A, Cr.P.C. was dismissed.

Ismail Memon for Applicants.

Naveed Ali Khokhar for the State.

YLR 2010 KARACHI HIGH COURT SINDH 297 #

2010 Y L R 297

[Karachi]

Before Arshad Noor Khan, J

FAZAL HUSSAIN SHAH through Legal Heirs and others---Petitioners

Versus

RUSTAM through Legal Heirs---Respondents

Civil Revision No.122 of 2004, decided on 27th April, 2009.

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

----S.25---Agreement for sale of immovable property without consideration---Scope---Sale agreement in which consideration for transfer of property is lacking, cannot be treated as valid agreement and cannot be enforced in view of S.25 of Contract Act, 1872.

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

----S.28---Contract Act (IX of 1872), S.25---Void agreement---Un-enforceable agreement to sell---Judgment at variance---Suit for specific performance of agreement to sell was decreed by Trial Court in favour of plaintiff but Lower Appellate Court allowed the appeal and dismissed the suit---Validity---Consideration of sale of land in question was totally lacking ab initio and it had not been established from evidence available on record to show that parties were close relatives inter se, who, out of love and affection transferred the property, thus such sale agreement was void agreement and could not be specifically enforced---By virtue of S.28 of Specific Relief Act, 1877, Court could refuse specific performance of contract on the ground that consideration was inadequate---Suit filed by plaintiff was completely barred under S.25 of Contract Act, 1872 and S.28 of Specific Relief Act, 1877---Lower Appellate Court had rightly reversed judgment and decree passed by Trial Court for specific performance of contract---There was no jurisdictional defect in the judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

Mst. Rehmat Bibi v Jhando Bibi 1992 SCMR 1510 and Dault Ali through Legal Heirs v. Ahmed through Legal Heirs PLD 2000 SC 792 distinguished.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Safia and another v. Muhammad Rafiq and others PLD 1993 SC 62 rel.

Parya Ram M. Vasvani for Petitioners.

Shaikh Amanullah for Respondent.

Date of hearing: 17th April, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 304 #

2010 Y L R 304

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

Mst. ZAINAB KHATOON---Petitioner

Versus

DISTRICT POLICE OFFICER QAMBAR/SHAHDAD KOT and 10 others---Respondents

Constitutional Petition No.S-362 of 2009, 3 decided on 6th July, 2009.

Penal Code (XLV of 1860)---

----S.365-B---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of proceedings---Petitioner prior to the F.I.R. had sworn an affidavit before the Justice of Peace and thereafter she sworn another free-will affidavit before the Civil Judge and Judicial Magistrate to the effect that she had performed Nikah with co-accused with her free will and consent being sui juris---Petitioner claimed that she was wedded wife of co-accused--Pendency of the proceedings in the Trial Court, would be the abuse of process of law---High Court had inherent jurisdiction that after submission of challan under S.173, Cr.P.C. before the competent court in fact alternate remedy by way of filing an application under S.265-K, Cr.P.C. was available before the Trial Court, but in circumstances of the case, recourse to it would be wastage of time.

PLD 2000 SC 122 ref.

Illahi Bakhsh Jamali for Petitioner.

Dareshani Ali Hyder "Ada" for the State.

YLR 2010 KARACHI HIGH COURT SINDH 309 #

2010 Y L R 309

[Karachi]

Before Arshad Noor Khan and Muhammad Ismail Bhutto, JJ

ABDUL RASHEED and 7 others---Petitioners

Versus

NASRULLAH and 8 others---Respondents

Constitutional Petition No.D-67 and C.M.A. No.146 of 2009, decided on 21st May, 2009.

Civil Procedure Code (V of 1908)---

----S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition--Non-framing of issues---Effect---During execution of decree, petitioners filed application under S.12(2), C.P.C. for setting aside of decree, which application was concurrently dismissed by Trial Court and Lower Appellate Court---Plea raised by petitioners was that issues should have been framed before deciding application under S.12 (2) C.P.C.---Validity---It was not mandatory and obligatory to frame issues in each and every application and to lead evidence---As petitioners had no right, title or interest in property in question which was solely encroached upon by defendant who also dismantled watercourse of plaintiffs, therefore, petitioners in no way had been prejudiced by judgment and decree passed by Trial Court---High Court in exercise of constitutional jurisdiction declined to interfere in the orders passed by two courts below---Petition was dismissed in circumstances.

Paryaram M. Vaswani for Petitioners.

Kunwar Muhammad Sultan for Respondents Nos. 1 to 3.

Liaquat Ali Shar, Addl. A.-G. for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 312 #

2010 Y L R 312

[Karachi]

Before Nadeem Azhar Siddiqi and Arshad Siraj Memon, JJ

IMRAN BHATTI and another---Petitioners

Versus

PROVINCE OF SINDH through Home Secretary, Karachi and 2 others-Respondents

Constitutional Petition No.D-1473 and C.M.A. No.7908 of 2009, decided on 23rd July, 2009.

Penal Code (XLV of 1860)---

----S. 496-A/34---Constitution of Pakistan (1973), Art.199---Quashing of F.I.R.---Coaccused/alleged abductee recorded her statement before the Judicial Magistrate that she with her free-will had married accused and she was not aware of her any previous marriage---Lady had also stated that she was adult and could marry with her free-will and that no one had committed any wrong with her---After the statement of alleged abductee before the Judicial Magistrate, it was clear she was never kidnapped and a false F.I.R. was got registered by the father of co-accused/alleged abductee---Powers could be exercised to prevent the abuse of process of the court in order to promote the ends of justice---High Court could quash F.I.R. where the complaint was frivolous and did not contain any definite accusation and apparently where no offence was made out; and there was no probability of conviction of accused---After the statement of alleged abductee that she was not kidnapped and that she had freely performed her Nikah with accused, F.I.R. registered against accused persons, appeared to be false and there was no probability of conviction of accused---Keeping the F.I.R. pending would amount to abuse of process of the court---F.I.R. was quashed in circumstances.

Saathi M. Ishaque for Petitioners

Muhammad Iqbal Awan, Asstt. P.-G. for Respondents Nos.1 and 2.

2010 Y L R 338

[Karachi]

Before Shahid Anwar Bajwa, J

SHAHZADA and another---Petitioners

Versus

MUHAMMAD USMAN and 2 others---Respondents

Constitutional Petition No.S-139 and C.M.A. No.1588 of 2007, decided on 7th October, 2009.

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

----Ss.15(2)(i)(vii) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment on ground of default in payment of rent and bona fide personal need---Rent Controller allowed ejectment application on the ground of personal bona fide need, whereas ground of default in payment of rent was rejected by the Rent Controller---Appellate Court concurred with the findings recorded by the Rent Controller---Validity---Landlord had not concealed any facts with regard to his bona fide personal need in respect of shop in question---Finding of fact had been concurred with by the Appellate Court---There being concurrent findings of facts, High Court would be loathed in entering upon adjudication or reappraisal of evidence where there were concurrent findings of facts by two forums below.

Allies Book Corporation v. Sultan Ahmed 2006 SCMR 152; Ghulam Muhammad Khan v. Muhammad Khalid 2000 CLC 764; PLD 1984 Karachi 14 and Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559 rel.

Attaullah Khan for Petitioner.

Nemo for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 346 #

2010 Y L R 346

[Karachi]

Before Amir Hani Muslim and Maqbool Ahmed Awan, JJ

ALLAHDINO and another---Petitioners

Versus

GHULAM MUSTAFA and 6 others---Respondents

Constitutional Petition No.D-113 and M.A. No. 424 of 2007, decided on 7th May, 2009.

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

----Ss.39(6) & 52---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes---Petitioner had impugned the order passed by the Election Tribunal by which application of the respondent for recounting of the votes was allowed---Respondent challenged election of the petitioner on the ground of concept podia by way of election petition---During pendency of election petition, the respondent made application for recounting of the votes---Election Tribunal ordered recounting of the votes, which had been challenged---Validity---Election Tribunal had not passed final order---Election Tribunal could order recounting of votes without recording evidence---Order passed by the Tribunal was interlocutory in nature which could not be impugned in constitutional petition---Petition being misconceived, was

dismissed.

Liaquat Ali v. Election Tribunal, Sialkot 2003 SCMR 1313; Moula Bux v. Muhammad Rahim 2003 CLC 310 and Muhammad Naeem Kasi v. Abdul Latif 2005 SCMR 1699 ref.

Syed Qaseem Ahmed for Petitioners.

Salahuddin Panhwar for Respondents.

Allah Bachayo Soomro, Addl. A.-G.

YLR 2010 KARACHI HIGH COURT SINDH 352 #

2010 Y L R 352

[Karachi]

Before Anwar Zaheer Jamali and Khawaja Naveed Ahmad, JJ

AMMANULLAH SOOMRO---Petitioner

Versus

PAKISTAN INTERNATIONAL AIR LINES CORPORATION through Managing Director/Chairman and another---Respondents

Constitutional Petition No.D-2105 of 2006 and Misc. Nos. 8538 of 2007, 9831 of 2008, decided on 30th October, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Civil Procedure Code (V of 1908), O.IX, R.7---Dismissal of constitutional petition for non-prosecution---Application for restoration of petition was accompanied with personal affidavit of counsel for petitioner, wherein he had stated that he was not aware about the fixation of the petition on relevant date---Petitioner having gone to his native place was stated to have not been informed about the date--Pleas taken by the petitioner and his counsel were not tenable for the reason that case had appeared in the daily cause list of the High Court; it was, in circumstances the professional obligation of counsel for the petitioner that he should have noted the hearing of the case for relevant date---Further, it was for the petitioner to have remained vigilant in pursuing his case---Even otherwise application for restoration of petition was also time barred and no application had been moved for seeking condonation of such delay.

Zulfiqar Ali v. Lal Din and others 1974 SCMR 162 ref.

Naveed Ali Khokhar for Petitioner.

Masood A. Khan for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 358 #

2010 Y L R 358

[Karachi]

Before Amir Hani Muslim, J

GULZAR NATHANI---Plaintiff

Versus

NAEEM AHMAD---Defendant

Civil Suit No.1413 of 2006, C.M.As.Nos.8197 and 4091 of 2007, decided on 17th March, 2009.

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

---Art.84---Specific Relief Act (I of 1877), Ss.8, 39 & 54---Comparison of signatures---Scope---Plaintiff had filed suit for possession, cancellation, recovery of articles, damages, permanent injunction against the defendant, whereas defendant had filed suit for specific performance of contract---Both suits were tagged for hearing in order to avoid any conflicting decision---High Court had ample powers to undertake exercise of comparing of signatures; no bar existed either in the Qanun-e-Shahadat, or in any other law which could restrict such comparison---High Court, in the intervening period directed the office to ensure that R&P of the suit filed by the defendant be tagged with the proceedings for hearing on the next date.

Ubaird-ur-Rehman for Plaintiff.

Syed Muhammad Haider for Defendant.

YLR 2010 KARACHI HIGH COURT SINDH 372 #

2010 Y L R 372

[Karachi]

Before Maqbool Baqar and Abdul Rehman Faruq Pirzada, JJ

Syed SALEEMUDDIN---Petitioner

Versus

PROVINCE OF SINDH through Registrar Properties and 3 others---Respondents

Constitutional Petition No.D-2071 and Miscellaneous No.9685 of 2008, decided on 7th April, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitution petition---Registration of conveyance deed in respect of plot of Housing Society---Issuance of NOC---Counsel for respondent Society had specifically stated that Society had no power to issue NOC as required by Sub-Registrar Town concerned---Counsel had further submitted that conveyance deed in respect of open plots had been/were being registered by the concerned Registrar without any B' Lease which was issued only after construction had been raised on the plots---Since according to the concerned Society no 'NOC' from them was required for registration of conveyance deed in respect of the Society's plot and further thatB' Lease was only granted after construction had been raised on the plots and since the subject plot was merely an open plot bounded by boundary walls, the Registrar should not have objected to the registration of its conveyance deed---Constitutional petition was disposed of with the directions to the Registrar to register the conveyance deed after fulfilling the required formalities without any further delay, and he was warned not to harass the people who would come for registration of documents on the flimsy grounds.

Noor Muhammad Dayo for Petitioner.

Syed Imran Asif.

Naveed Ahmed Khokhar holds brief for Abdul Sattar.

Shall Muhammad Memon, Addl. A.-G.

Ahmed Pirzada for Board of Revenue.

YLR 2010 KARACHI HIGH COURT SINDH 383 #

2010 Y L R 383

[Karachi]

Before Mushir Alam, J

MUHAMMAD SHOAIB and 3 others---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary Land Utilization Department and another---Defendants

Suit No.1369 of 2006, decided on 6th April, 2009.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiffs claimed right and title in the suit property on the basis of the purported entry, which claim of the plaintiffs was denied by the authorities alleging that said entry was fraudulent and fictitious---State Counsel had stated that since interim orders were operating, no action was taken---Authorities would be at liberty to take such action as could be permissible under the law in discharging public duties; and in case where the record was fictitious and fraudulent and ad interim orders were operating, it was their duty to apply to the court for vacation thereof, which invariably was not done by the public functionaries who allowed the matter to linger on in the court---Till such time the authorities would carry out the investigation and inquiry, the petitioner would not change the complexion of the property nor create any third party interest therein.

Sardar Sher Afzal for Plaintiffs.

Qazi Majid, Addl. A.-G. of Sindh for Defendants.

YLR 2010 KARACHI HIGH COURT SINDH 385 #

2010 Y L R 385

[Karachi]

Before Gulzar Ahmad, J

ASAD ALI AWAN---Plaintiff

Versus

Mian MUHAMMAD SHAKEEL through LRs. and others---Defendants

Suit No.704 of 2002, decided on 4th December, 2008.

Specific Relief Act (I of 1877)---

----Ss.8, 12 & 42---Colonization of Government Lands (Punjab) Act (V of 1912), S.24---Suit for specific performance, declaration, possession and damages---Area of one acre was leased out to the defendant for 30 years, out of which 10 ghuntas was for the poultry farming purpose, while 30 ghuntas was for wahi chahi---Report was submitted by the Mukhtiarkar to the D.D.O. R & R, informing him that the allottee had violated the terms of the lease, inasmuch as instead of using it for poultry farming and wahi chahi, commercial construction had been raised on the land by the lessee--Lease was liable to cancellation under S.24 of Colonization of Government Lands (Punjab) Act, 1912---Mukhtiarkar had stated that no action had been taken by the D.D.O. R & R---D.P.O. was directed to appear in the court and inform as to what action had been taken pursuant to the report of Mukhtiarkar---Merely pendency of present suit, would not be considered as an obstruction for taking action by the Board of Revenue.

Muhammad Shafi Siddiqui and Afaq Younus for Plaintiff.

Qazi Majid Ali, A.A.-G. along with Mukhtiarkar Keamari Town for Defendants.

2010 Y L R 425

[Karachi]

Before Nadeem Azhar Siddiqi and Sayed Mehmood Alam Rizvi, JJ

IBRAHIM JAT and others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. D-186 and Confirmation Case No. 6 of 2007 decided on 27th May, 2009.

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

----S.302(b)---Appreciation of evidence---Sentence, reduction in---Prosecution witnesses were consistent in their depositions regarding the shots fired by accused and absconding accused upon the deceased and in cross-examination their depositions had gone unchallenged---Defence in cross-examination had failed to challenge the incidence and the allegations against accused persons---No doubt the prosecution witnesses were related to each other and the deceased persons, but in absence of allegations of any ill-will against them their depositions could not be discarded only on account of relationship--Prosecution witnesses were fully corroborated by other four prosecution witnesses and no ill-will had been established against said witnesses and nothing had been said in defence against them---Ocular evidence was fully corroborated by medical evidence---Recovery of gun on the pointation of accused stood proved---From the report of the Ballistic Expert it was confirmed that the empties recovered from the place of incident, were fired from the gun recovered on the pointation of accused---Statement of one of the prosecution witnesses under S.161, Cr.P.C. though was recorded after one week of incident, but in absence of allegation of ulterior motives, mere delay in recording the statement, was not sufficient to discard the evidence of said witness---Crime weapon and crime empties though were sent to experts after considerable delay, but counsel for accused had failed to point out any question put to the Investigating Officer in that regard---Report had not been challenged in cross-examination of the Investigating Officer and no contradiction had been found in the deposition of the witnesses---Evidence of the prosecution witnesses inspired confidence and not shattered in cross-examination---Prosecution had fully proved the case against accused and no exception could be taken in that regard---However keeping in view that accused was in jail for the last about 10 years, while maintaining the conviction of accused, his sentence of death was altered to life imprisonment which would meet the ends of justice.

Syed Saeed Muhammad Shah v. State 1993 SCMR 550; Javaid Iqbal v. State 1998 SCMR 32; Akhtar Ali v. State 2006 SCMR 1466; Wall Muhammad v. State PLD 1982 SC 55; Hassan v. State 1969 PCr.LJ 1007; Syed Junaid alias K2 v. State 2000 SCMR 601; Mukhtar Ahmed v. State 2004 SCMR 220; Sharafat Ali v. State 2003 MLD 1583 and Mujahid Akhtar Khurram v. Abdul Hamid PLD 2004 SC 339 ref.

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

----S.302(b)---Appreciation of evidence---No allegation of any overt act against coaccused---Presence of accused at the place of incident was doubtful as prosecution witness in his deposition had said nothing about him---Recovery of hatchet from said co-accused on his pointation, was not proved---Co-accused had not participated in the commission of offence and his mere presence without any proof of some overt act in furtherance of common intention was not sufficient to convict him---Though presence of co-accused was shown at the place of incident armed with hatchet, but neither he used the same nor in any way participated in the alleged offence---Appeal of the said co-accused was allowed, he was acquitted by giving him benefit of doubt and was released.

Madad Ali Shah for Appellants.

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

Date of hearing: 19th May, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 437 #

2010 Y L R 437

[Karachi]

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

NATHA KHAN and another---Appellants

Versus

THE STATE---Respondent

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

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

----Ss.619(c)---Criminal Procedure Code (V of 1898), Ss.221, 222, 342 & 537---Possession of narcotic---Appreciation of evidence---Framing of charge---Case was of huge quantity of heroin for which only two punishments were provided in law, i.e. death or imprisonment for life and the Trial Court had taken the lenient view by awarding imprisonment for life---Trial Court, in such cases had to be very careful in framing the charge, which was the gist of the prosecution's story and the Judge had to see the Mashirnama of recovery and arrest, F.I.R. and challan; and thereafter, it had to frame the charge by writing the brief facts of the case---As far as statement under S.342, Cr.P.C. was concerned, whatever evidence the prosecution witnesses had placed on record against accused, same had to be placed through a questionnaire before him---Neither the Trial Judge had seen the memo of recovery and challan prior to framing the charge nor had he gone through the evidence recorded by the prosecution witnesses prior to preparing statements under S.342, Cr.P.C.---Said illegality could not be cured under S.537, Cr.P.C.---Best course, in circumstances was to remand the case to the Trial Court for fresh adjudication from the stage of the charge---Impugned judgment was set aside and case was remanded for fresh adjudication after framing the fresh charge.

Fazal-ur-Rahman Awan for Appellants.

Zafar Ahmad Khan Addl. P.-G. and Saifullah, A.A.-G. for Respondents.

Date of hearing: 4th December, 2008.

YLR 2010 KARACHI HIGH COURT SINDH 441 #

2010 Y L R 441

[Karachi]

Before Khalid Ali Z. Qazi and Syed Pir Ali Shah, JJ

MUHAMMAD SULLEMAN JATOI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-66 of 2006, decided on 18th March, 2009.

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

----S.9(c)---Possession of narcotic---Appreciation of evidence---Sentence, reduction in---Statements of the prosecution witnesses were in clear terms that accused was apprehended by them and the charas was recovered from the jeep which was being driven by him---Record revealed that 30 bundles of charas were recovered from the jeep; each of the bundle was weighing one kilogram--Prosecution in the case had led impeachable evidence, so far recovery of contraband charas was concerned; so also the arrest of accused on the spot---Only four bundles weighing four kilograms were referred to the Chemical Analyzer for his expert opinion---F.I.R. showed that the sample was not taken out from each bundle--Prosecution evidence was concrete so far as recovery of charas related, but the fact remained that the prosecution case was ambiguous; as sample from each bundle was not taken---Accused in such situation and under peculiar circumstances, could be held responsible for commission of offence on account of recovery of four kilograms only---Legally speaking accused could not be held responsible for the rest of the recovered charas for which no sample whatsoever was taken out and same remained unexamined and uncertified---When the punishment was provided on the basis of quantum of recovery of narcotic, then it should be main criteria for the prosecution to establish that entire recovered substance was narcotic and for that purpose it had to take all precautions and make the case fool proof---Case against accused was to be proved till finished by establishing that accused was involved in the matter of specific quantity of narcotic substance of which allegation had been levelled---Case property remained in possession of complainant, which was a matter of concern as it could happen that Police Officials, could sometime change the narcotic substance with other similar substance to gain some money---Impugned judgment required interference by the court to the extent that the prosecution on the basis of evidence adduced on the record had proved its case and brought home the guilt of accused for the commission of offence on account of recovery of four kilograms contraband charas; and case against accused stood proved for an offence which fell under S.9(c) of Control of Narcotic Substances Act, 1997; but since accused was a young man aged about 29/30 years; and was a first offender, while taking lenient view, conviction and sentence awarded to accused was modified to lesser punishment---Conviction and sentence awarded to accused by the Trial Court for imprisonment to life and fine of Rs.100,000, was reduced to that of fourteen years and fine Rs. 20,000.

Mohammad Chuttal v. The State 2001 YLR 654 and Imtiaz Ali v. The State 2006 MLD 1961 ref.

Habibullah Ghauri for Appellant.

Miss Rubina Dhamrah, State Counsel for the State.

Date of hearing: 17th February, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 447 #

2010 Y L R 447

[Karachi]

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

ABDUL MANAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.275 of 2007, decided on 7th November, 2008.

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

----Ss.9(c) & 25---Possession of narcotic---Appreciation of evidence---Witnesses were consistent on the material point and minor discrepancies pointed out were not sufficient to discredit the statements of said witnesses---No enmity or grudge was alleged against the complainant or the Prosecution witnesses to falsely implicate accused persons---Violation of S.103, Cr. P, C., carried no weight in view of S.25 of Control of Narcotic Substances Act, 1997, which had specifically ousted application of S.103, Cr. P. C. ---Chemical Examination Report, was positive with regard to narcotics recovered from accused---Both the prosecution witnesses were consistent that accused persons claimed ownership of bag containing narcotics---Defence plea to the effect that the narcotics were produced from local market was vague---Prosecution had produced sufficient material to connect accused persons in the commission of crime---Sentence awarded to accused persons was proper---Impugned judgment not calling for interference, appeal stood dismissed.

The State v. Muhammad Amin 1999 SCMR 1367 and Abdul Ghani v. The State 2001 PCr.LJ 2027 ref.

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

----Ss.9(c)---Possession of narcotic---Appreciation of evidence---Evidence of Police Officials---Police Officials could be good witnesses like 'any other witnesses from the public, unless sufficient evidence was available to exclude their evidence from consideration.

Inamullah Khan for Appellants.

Saifullah, Asstt. A.-G.of Sindh for the State.

Date of hearing: 21st October, 2008.

YLR 2010 KARACHI HIGH COURT SINDH 451 #

2010 Y L R 451

[Karachi]

Before Bin Yamin and Faisal Arab, JJ

MIRAN BALOUCH---Petitioner

Versus

THE STATE---Respondent

M.As. Nos. 802 of 2009 and 3111 of 2008 in Criminal Appeals Nos.149-150 of 2008, decided on 31st July, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.426 & 561-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Suspension of sentence---Application for---Accused was suffering from paralysis since 2004 and since that time no improvement was seen in his condition as neither he could walk nor sit as per report of the Doctors---Accused was being constantly advised since beginning to have physiotherapy, but no such facility was available in jail---If such situation was allowed to continue, same would be quite hazardous to life of accused and would also serve no useful purpose---Case for suspension of sentence and grant of bail having been made out, sentence awarded to accused was suspended and he was ordered to be released on his furnishing surety.

Aamir Mansoob Qureshi for the State

YLR 2010 KARACHI HIGH COURT SINDH 457 #

2010 Y L R 457

[Karachi]

Before Gulzar Ahmed, J

FAQIR MUHAMMAD and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-380 of 2009, decided on 5th October, 2009.

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

----S.498---Penal Code (XLV of 1860), Ss.365-B, 376(1), 382, 342, 452, 147 & 148---Kidnapping abducting or inducing woman to compel for marriage, rape, theft after preparations made for causing death, hurt, wrongful confinement and house trespass---Pre-arrest bail, refusal of---Delay in lodging of the F.I.R. was explained in the complaint itself---It was normal in cases of abduction of a woman that prompt F.I.R. was not lodged, rather family of alleged abductee in order to save their honour make their own effort to cause recovery of abductee, which would consume some time and it would not furnish valid ground of delay---Fact that alleged abductee in her statements under Ss.161 & 164, Cr.P.C. had not described the weapon and the robbed property as had been described in the F.I.R., related to the deeper appreciation of evidence, which exercise could not be undertaken at the bail stage---Allegations of robbery and abduction against accused persons were supported with the statements not only of the abductee, but also of other prosecution witnesses---There seemed to be specific implication of accused persons in the crime---No enmity or mala fide between the parties was pleaded---No ground of mala fide or victimization was alleged nor the ground of ulterior motive, irreparable loss or humiliation or disgrace or dishonour was pressed---Nothing was available to suggest prima facie that accused could not be connected with the commission of alleged crime---Bail application was dismissed, in circumstances.

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

----S.498---Grant of pre-arrest bail---Parameters.

For grant of pre-arrest bail following parameters have been laid down:

(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;

(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;

(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;

(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him;

(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that;

(f) in the absence of a reasonable and a justified cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 Supreme Court 427 fol.

Syed Ghulam Haider Shah for Applicants.

Muhammad Iqbal Kalhoro, Addl. P.-G., Sindh for the State.

YLR 2010 KARACHI HIGH COURT SINDH 462 #

2010 Y L R 462

[Karachi]

Before Munib Ahmad Khan and Muhammad Karim Khan Agha, JJ

Dr. ABDULLAH HAMID MEHMOOD--- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.16 of 2007, C.M.A. No. 2752 of 2008 and M.A. No. 1681 of 2009, decided on 20th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 540---Application to produce additional evidence---Applicant requested for producing additional evidence in the matter; one was Doctor who had examined applicant and his son, while other was one who had visited the place of incident on information of Rescue 15 and had submitted report regarding factual position of the incident---Submission of the applicant was that to meet the ends of justice the presence of said two witnesses was necessary---On the other hand prosecution strongly opposed the application on the ground that most of the witnesses had appeared before the Trial Court; that the factual position in respect of the injuries of the applicant and his son, was not the subject-matter of the appeal, as they were allegedly beaten by the public at the place of incident and that other person sought to be examined also was not necessary as ocular evidence in the matter was quite sufficient to be considered for the purpose of decision of appeal---Position of prosecution was quite right as no such request was made by the applicant in the Trial Court when the witnesses were produced---Even otherwise the additional evidence was not necessary as Police papers of both mashirnamas etc. had come on record, while fact in respect to information of Rescue 15 had also been spelled out in the facts of the case.

Mehmood A. Qureshi for Appellant.

Saleem Akhtar, Addl. P.-G., Sindh

and Saifullah, A.A.-G. for Respondent.

Arshad Mehmood for the Complainant.

YLR 2010 KARACHI HIGH COURT SINDH 464 #

2010 Y L R 464

[Karachi]

Before Ms. Rukhsana Ahmed, J

HAMEEDULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1198 of 2009, decided on 25th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, refusal of---Record showed that immediately after snatching mobile and money from the informant, accused went away, but in the meantime, Police mobile came at the place of incident; and on the narration of incident by the informant, they went behind accused, who were apprehended by the Policy party; and recovery of T.T. pistol along with live rounds with loaded magazine was also effected front the possession of accused---No enmity had been attributed by accused against the Police or the informant---Contention as regard non-compliance of the provisions of S.103, Cr.P.C. could not hold good, because the recovery was not effected from a building, but was effected from accused on the roadside at about 11-55 pm. (night), when they immediately after commission of alleged incident were going---Evidence by Policemen could not be discarded until and unless it was found that they had given evidence due to some mala fide---Street crime i.e. snatching of mobile phones, was rising day by day and people like accused for a very petty amount took lives of innocent persons upon resistance; and such type of accused had to be dealt with iron hands by the Police as well as by the courts so that in future they would not dare to commit such type of offence---No case for grant of bail having been made out, bail application was rejected.

1976 SCMR 72; 1986 PCr.LJ 249; PLD 1981 SC 635 and 1982 PCr.LJ 543 ref.

Shaikh Khalil-ur-Rehman for Applicant.

Muhammad Iqbal Awan, A.P. -G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 467 #

2010 Y L R 467

[Karachi]

Before Faisal Arab, J

GUL HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-428 of 2009, decided on 18th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302/324/337-H(i), 148 & 149---Qatl-i-amd and hurt by rash and negligent act---Bail, grant of---Further inquiry--Accused had been placed in column No.2 by the investigating authority---Case for further inquiry having been made out, accused had become entitled for grant of bail---Accused was released on bail in circumstances.

1982 SCMR 440; 1987 SCMR 1721; 1998 SCMR 1452 and 1992 SCMR 1857 ref.

Irfan Ahmed Qureshi for Applicant.

Shahid Shaikh, A.P.-G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 470 #

2010 Y L R 470

[Karachi]

Before Sajjad Ali Shah, J

ABDUL HAFEEZ JUNEJO---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.266 of 2009, decided on 20th October, 2009.

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

----Ss.302/337-K/34/316---Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance (XXIX of 2006), S.9---Qatl-i-amd and causing hurt to extort confession or to compel restoration of property---Change of charging section of Penal Code---Powers of District Public Prosecutor---Scope---Application of accused challenging legality of order of change of section of Penal Code---Applicant/accused originally was charged under Ss.316/337-K/34, P.P.C., but on the direction of District Public Prosecutor S. 316, P.P.C. was deleted and S.302, P.P.C. was incorporated---Counsel for applicant contended that such change of section of P.P.C. was made on the direction of District Public Prosecutor who had no authority to direct such change and that neither material produced was considered nor there was any application of mind through a speaking order---Validity---Conduct of prosecution on behalf of government was the responsibility of the Prosecutors and every report under S.173,, Cr.P.C. including the report for cancellation of F.I.R. or discharge of a suspect or an accused had to be filed in the court after same was scrutinized by the Public Prosecutor---Prosecutors had the powers to return such report to officer incharge of a Police Station or the Investigating Officer, if he found it defective for the removal of identified defect---As result of such scrutiny as an expert his opinion could be placed before the court for its convenience and consideration, without any binding force---Prosecutor having expertise in the field was in a better position to opine that on the basis of the investigated fact accused could be tried under a specific provision and in the present case, the fact that the accused persons being officers/ officials of Public, could not be ignored---In view of such clear mandate provided to the Prosecutor, the opinion of District Public Prosecutor appeared to be in consonance with such mandate and the acceptance thereof by the Investigating Officer followed by changes of section of Penal Code could not be questioned---Court was ultimately to decide the provisions with which accused was charged.

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

----Ss.170 & 173---Case to be sent to the Magistrate when evidence was sufficient---Report of police officer---Scope---Where the Investigating Officer proposed to terminate/cancel F.I.R. by proposing it to be a "false case" or "case of no evidence" or for any other reason, would submit report under Ss.169/173, Cr.P.C. then the Magistrate incharge in either case, whether he concurred or disagreed with such report was required to appreciate the report of Investigating Officer in the light of material collected during the investigation and then to pass just and fair speaking order reflecting judicious application of mind---Where however, upon completion of investigation the Investigating Officer under S.170, Cr.P.C. on the basis of material collected during such investigation on his report under S.173, Cr.P.C. proposed the trial of accused for an offence, then such principle was hardly applicable---Accused neither would become remediless in either case i.e. where the Magistrate upon taking cognizance of an offence proceeded to try it or send it up to the Court of Session for its trial nor would lose the presumption of innocence merely for the reason of being sent up for trial.

Muhammad Ashraf alias Bhuller v. State 2008 YLR 1462; Bahadur and another v. The State PLD 1985 S C 62; Muhammad Sharif and 8 others v. The State 1997 SCMR 304; Dawood Khan and 8 others v. Ahsan-ur-Rehman and 2 others 2006 MLD 663; Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518; Muhammad Daiem Shattari v. The State 2007 YLR 2038; Muhammad Aslam Khan v. The State 2007 MLD 1247; Said Jalal and 2 others v. The State and another 1972 SCMR 516; Habib v. The State 1983 SCMR 370 and Syed Saeed Muhammad Shah and another v. State 1993 SCMR 550 ref.

Amir Mansoob Qureshi and Mehmood Alam Rizvi for Applicant.

M.A. Qureshi, A.P.-G. for the State.

Shaikh Jawed Mir for the State.

YLR 2010 KARACHI HIGH COURT SINDH 477 #

2010 Y L R 477

[Karachi]

Before Ms. Rukhsana Ahmed, J

WAHEED BAIG---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.282 and M.As. Nos. 4134, 4135 of 2009, decided on 25th November, 2009.

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

----S.345(2)(7)---Penal Code (XLV of 1860), Ss.320/337-G---Qatl-i-Khata and hurt by rash or negligent driving---Compromise---All the offences shown in column Nos.1 & 2 of the table of subsection (2) of S.345, Cr.P.C. could only be compounded with the permission of the court before which any prosecution of such offence was pending which was prerequisite condition---Any settlement between the parties as regards the compromise of the offence before the prosecution of the case having started was ineffective one---Any compromise arrived at between the parties out of the court had no value in the eye of law.

2006 PCr.LJ 518; 1997 SCMR 1503; Naurang Rai v. Kidar Nath and another 29 Criminal Law Journal 1928; AIR 1937 Mad. 825; AIR 1968 All. 394 and 2001 PCr.LJ 241 rel.

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

----S.561-A---Quashing of proceedings---Application for---Powers of the High Court---Scope---Powers under S.561-A, Cr.P.C. were to be exercised sparingly and in extraordinary circumstances in the interest of justice and to check abuse of process of law---Such power was not meant to stifle the prosecution case so as to interrupt or divert course of criminal procedure---No case for quashing of proceedings having been made out, application was dismissed.

2008 PCr.LJ 11 ref.

Raza Hashmi for Applicant.

Abdul Rehman Kolachi, A.P.-G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 489 #

2010 Y L R 489

[Karachi]

Before Bhajandas Tejwani, J

GHULAM HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.664 and M.As. Nos. 2104, 2105 of 2009, decided on 25th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Haraabah---Bail, grant of---Inordinate delay of four months in lodging F.I.R.---In the present case, such offence was committed and the complainant/his nephew were victims of such incident, by which they were deprived of the heavy amount and the complainant should have immediately approached the Police, but he had chosen to involve himself in the negotiations with accused---Lodging of F.I.R. in such circumstances with consultation and false implication could not be ruled out, particularly when no recovery had been effected from the accused---Accused was released on bail, in circumstances.

Muhammad Saleem Jessar for Applicant.

Ali Raza Pathan, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 490 #

2010 Y L R 490

[Karachi]

Before Bin Yamin, J

Mst. SHAGUFTA SAEED---Petitioner

Versus

KHALID AZIZ LODHI and others---Respondents

C.P. No.S-195 of 2007, decided on 22nd August, 2008.

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

----Ss.15(2)(ii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Default in payment of rent---Ejectment application--- Ejectment application on ground of default in payment of rent, was allowed by the Rent Controller with direction to tenant to vacate the premises and handover its vacant possession to the landlady within sixty days---Appellate Court, however set aside order of Rent Controller---Validity---Fact that tenancy had started on the basis of rent agreement, executed between the parties, initially was admitted by the tenant at the time of reply given by his advocate, however, subsequently during the course of proceedings he denied the execution of rent agreement; and claimed that he was in possession of the premises prior to 1985---Such denial on the part of the tenant, appeared an afterthought and that plea had been taken by him only to avoid the question of default---Claim of tenant was that he had paid rent in dispute but had failed to discharge the burden thereof---Tenant had admitted that he was neither informed by the landlady nor by her attorney to pay rent to anybody else, but when he started depositing rent in the court, he as per his own admission started depositing the same to unconcerned persons which also amounted to not paying/tendering rent to the landlady by the tenant---Order passed by Rent Controller, was quite legal and appropriate in the circumstances of the case and as a result of misreading of evidence, same had been set aside by the Appellate Court---Order of Appellate Court being in violation of principles of Qanun-e-Shahadat, 1984 and the result of misreading of the evidence, same was not maintainable and was liable to be set aside---Constitutional petition was allowed with costs and order passed by the Appellate Court was set aside; as a consequence thereof order passed by Rent Controller was maintained---Tenant was directed to vacate the premises in question within 30 days and hand over its possession to the landlady.

Amir Saleem for Petitioner.

K.A. Wahab for Respondent No.1.

YLR 2010 KARACHI HIGH COURT SINDH 495 #

2010 Y L R 495

[Karachi]

Before Faisal Arab, J

MUHAMMAD ALI---Applicant

Versus

IVTH ADDITIONAL SESSIONS JUDGE, HYDERABAD and 8 others---Respondents

Criminal Revision Application No.S-45 of 2009, decided on 17th November, 2009.

Illegal Dispossession Act (XI of 2005)---

----Preamble, Ss. 3 & 5---Illegal Dispossession Act, 2005---Scope---Scope of Illegal Dispossession Act, 2005 could not be confined only to persons having antecedent of land grabbers or qabza group or Land mafia---Applicant could not be forced to first establish that the persons, who had illegally dispossessed him belonged to a group of land grabbers, qabza group or land mafia in order to maintain proceedings under Illegal Dispossession Act, 2005---Such could not be the intention of law makers---Section 3 of Illegal Dispossession Act, 2005 which defined the criminal act, clearly covered every act of dispossession committed by any person irrespective of the fact whether he committed such act individually or in consort with other persons; it was also not necessary that accused who had committed the illegal act of dispossession should already be known to be a member of land grabbers or qabza group or land mafia---Respondents in their defence claimed that they had not occupied any portion of land in question, and claimed that land belonging to Irrigation Department, had only been occupied by them---Held, to solve such rival claims it was necessary that the Revenue Record should be before the Trial Court for its examination---Question whether any portion of survey number in question had been occupied or encroached upon by the respondents or not was to be ascertained and in case the answer was in affirmative, only then cognizance of the offence was to be taken as it was a case of dispossession---Both the counsel in the present case having agreed to that legal position, impugned order was set aside and case was remanded to the Trial Court, which after examining the revenue record would decide whether survey number in question had been encroached upon by the respondents.

Irfan Ahmed Qureshi for Applicant.

Shahid Ahmed Shaikh, A.P.-G. for the State.

Mrs. Razia Ali Zaman Khan for Respondent No.9.

YLR 2010 KARACHI HIGH COURT SINDH 497 #

2010 Y L R 497

[Karachi]

Before Gulzar Ahmed and Malik M. Aqil Awan, JJ

Dr. Syed ZAFAR ABBAS---Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL and others---Respondents

C.P. No.169 of 2008, decided on 21st July, 2009.

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

----S. 3(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Condemned unheard---Plea of---Proof---Petitioner challenged notification in respect of result of election which had been conducted under the control of Pakistan Medical and Dental Council on the ground that he was condemned unheard---Respondent asserted that election was held pursuant to the judgment of Supreme Court in the year 2007 and the same was to be held within 6 weeks and respondent was rightly declared successful---Validity---Petitioner admitted having received notice of hearing on 19-12-2007 by which hearing was fixed on 27-12-2007 at "I"-Petitioner had given no details or evidence of making efforts for travelling to "I" which efforts of his did not bear fruit---In absence of fax and efforts on the part of petitioner to attend the hearing fixed before Secretary Health, "I", on 27-12-2007, it could not be said that petitioner was not provided an opportunity of hearing or had been condemned unheard rather petitioner on his volition had chosen not to attend the hearing---Constitutional petition was dismissed in limine.

Jam Masbooq Ali v. Shahnawaz Junejo 1996 SCMR 426 and Pakistan Medical and Dental Council v. Ziauddin Medical University PLD 2007 SC 323 ref.

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

----S.3(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election--- Schedule of election---Objection---Not raised---Effect---Petitioner did not raise any objection regarding schedule of election nor did he seek its postponement on the ground that sufficient time was not allowed to the voters to cast their votes by post---Validity---Dispute having been raised by the petitioner in his objection before the Secretary Health and petitioner having himself chosen not to attend the hearing and press such objection, he could not be allowed to agitate the merit of the decision taken by the Secretary Health.

Umema Khan for Petitioner.

Sohail H.K. Rana for Respondent No.1.

None present for Respondents Nos.2 and 4.

Shaukat Hayat for Respondent No.3.

Date of hearing: 21st May, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 501 #

2010 Y L R 501

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD NASIR and 2 others---Petitioners

Versus

HANFIA ALAMGIR JAMIA MASJID TRUST through General Secretary and 2 others---Respondents

Constitutional Petition No. S-542 of 2009 decided on 2nd December, 2009.

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

----S. 15---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Ejectment of tenant---Default in payment of rent---Effect---Landlord filed ejectment application on the grounds of subletting, impairment of property and default in payment of rent---Tenant contested ejectment on the ground that the tenant had sent rent through money order to the landlord who had refused to receive the same which consequently had been deposited by him in the Court---Rent Controller dismissed ejectment application---Appeal filed by landlord was allowed by Appellate Court on the ground of default and rest of the grounds were rejected---Validity---Default commenced in October, 2007, money order was sent on 27-8-2008 that was after filing of ejectment application which was filed in July, 2008---Tenant was obliged to pay rent and it was not obligation of landlord to collect the same---Judgment of the Trial Court was not sustainable---Constitutional petition was dismissed in limine.

Zulfiqar Hussain v. Mrs. Tazeem Chaudhry 1986 CLC 393 and Amir Ali Khan through Legal Heirs and others v. Masoodur Rehman Farooqui 2008 CLC 1134 ref.

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

----S. 15---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Leniency to tenant by landlord---Effect---If on one occasion landlord has been lenient to the tenant, there was noting in law absolving the tenant of his obligation to pay rent or to pay same in time.

Badar Munir for Petitioners.

M.S. Qureshi for Respondent No.1.

Date of hearing: 11th November, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 510 #

2010 Y L R 510

[Karachi]

Before Muhammad Athar Saeed, J

SAIF UR REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1042 and M.A. No.3874 of 2009, decided on 7th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/427/34---Attempt to Qatl-i-amd and mischief causing damage---Bail, grant of--Further inquiry---Trial Court had observed that the name of accused had been mentioned in the F.I.R. with the specific role, but in F.I.R. no where said specific role was mentioned---Assertion was general that the bullets were fired by accused---No evidence was available to the effect that back glass of the vehicle was damaged where the bullet hit it and no medical report of the injured person was on record---Further inquiry was needed to connect accused with the offence charged---Accused was entitled to bail, in circumstances.

Muhammad Nawaz for Applicant/ Accused.

Muhammad Iqbal Awan, A.P.-G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 513 #

2010 Y L R 513

[Karachi]

Before Shahid Anwar Bajwa, J

Mst. ANEETA TANVEER---Petitioner

Versus

MUHAMMAD YOUNUS and 3 others---Respondents

Constitution Petition No. S-471 of 2008, decided on 4th December, 2009.

Guardians and Wards Act (VIII of 1890)---

----Ss. 7, 10 & 25---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Marriage between the parties was dissolved by way of divorce through written deed---Dissolution of marriage was with mutual consent---Compromise was entered into between the parties with regard to custody of minor on application filed by the petitioner under S.491, Cr. P. C.---Custody of minor was with maternal grandfather of the minor by compromise as well as under the orders of two courts below---Family Court would exercise parental jurisdiction and must consider all aspects relevant to custody of minor; and decide as to what would be in the best interest of the minor---Any previous compromise or any previous order of the court, could not bind hands of the Family Court---Court could recall its previous order, provided sufficient grounds were made that after previous order, what were new and evolving circumstances keeping in view interest of minor---Compromise between the parties, must be looked at by the Family Court, but was not conclusive and binding, as far as Family Court was concerned---Court in appropriate circumstances, could pass an order, even setting at nought the compromise---Prime responsibility and obligation of Family Court was welfare of the minor, which was supreme and should not, in any circumstances be lost sight of---In the present case there were factors which had been considered by the courts below which clearly emerged; firstly, petitioner mother of minor had no source of income; secondly, she had remarried and had been blessed with three children after her remarriage; thirdly, her second husband was a stranger as far as minor was concerned; fourthly her second husband had not come in witness box to depose about his income and whether he was willing to shoulder responsibilities of minor; fifthly maternal grandfather was a retired servant and received pension; sixthly a maternal grandfather had his own house, whereas mother and step-father of minor lived in a rented house; seventhly real father of minor had no objection if child would remain with his maternal grandfather and eighthly, child had been receiving education while living with maternal grandfather---Two courts below, in circumstances, had rightly observed that for welfare of child, he should be under custody of his maternal grandfather with consent of father of the child.

Ayesha Tahir Shafiq v. Saad Amanullah Khan 2 others PLD 2001 Karachi 371 and Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 ref.

Mirza Sarfraz Ahmed for Petitioner.

Muhammad Abdullah for Respondent No.1.

Ch. Rasheed Ahmad for Respondent No.2.

Date of hearing: 4th December, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 523 #

2010 Y L R 523

[Karachi]

Before Salman Talibuddin, J

MANZOOR ALI---Applicant

Versus

THE STATE---Opponent

Criminal Bail Application No.S-269 in Sessions Case No. 37 of 2009, decided on 7th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---

Further inquiry---In view of conflicting results of two investigations, the delay in

recording the statements of the prosecution witnesses and the confessional statement;

and the fact that co-accused had been admitted to bail, case of accused required further inquiry and reconsideration on the basis of evidence entitling accused to bail---Bail was granted.

Muhammad Asif and another v. The State; 2009 MLD 546; Shahbaz v. The State 2007 P.Cr. LJ 1555; Ramzan v. The State 2007 P.Cr.LJ 1572; Liaqat Ali v. The State 1989 P.Cr. LJ 2472; Murtaza and 2 others v. The State 1996 P.Cr LJ 358; Muhammad Jamil v. Shoukat Ali 1996 SCMR 1685; Muhammad Khan v. Moula Bakhsh 1998 SCMR 570; Tooh v. The State 1875 P.Cr.LJ 440; Budho v. The State PLD 1965 W.P. Karachi 76; Jehangir and others v. The State 1996 P.Cr.LJ 283; Raza Muhammad Bhutto v. The State 2007 PCr.LJ 1979 and Malik Dino v. The State 2002 PCr.LJ 783 ref.

Abdul Aziz Memon for Applicant.

Muhammad Aslam Sipio for the State.

YLR 2010 KARACHI HIGH COURT SINDH 528 #

2010 Y L R 528

[Karachi]

Before Shahid Anwar Bajwa, J

SULTAN SHAH and 5 others---Applicants

Versus

PROVINCE OF SINDH through Secretary, Government of Sindh, Revenue Department and 4 others---Respondents

Civil Revision Application No.184 of 2008, decided on 19th November, 2009.

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

----Ss.42 & 54---Suit for declaration and perpetual injunction---Maintainability---Question of--Scope---Plaintiffs filed suit for declaration, possession and perpetual injunction in respect of the disputed property to the effect that plaintiffs being owners of 50 per cent share in the disputed property were in possession of the same and the defendants have encroached upon some portion of their land and some portion of the land of National Highway Department lying between the plaintiffs' claimed land and National Highway---Defendants contested suit on the ground that declaration claimed by plaintiffs was not permissible under S.42 of the Specific Relief Act, 1877 and no injunction could be granted in terms of S.54 of the said Act---Trial Court decreed the suit of the plaintiffs---Appeal filed by defendants was dismissed by Appellate Court---Validity---In prayer clause nowhere any right on the National Highway had been claimed---All that plaintiffs had claimed was ownership of the piece of land---Plaintiffs could claim declaration and then consequent relief of possession and perpetual injunction---High Court declined to interfere in revisional jurisdiction---Petition was dismissed by High Court.

Muhammad Afsar v. Muhammad Zaman and 4 others 2005 YLR 484; Zohr Ali v. Yusuf and 7 others 1986 CLC 1301; Government of N.-W.F.P. and another v Gul Muhammad Khan and 5 others 1996 SCMR 1858; Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214; Mehr and 4 others v. Mst. Sahib Jan alias Shah Begum and 10 others PLD 1973 Lah. 455; Rashid Ahmed v. Mst. Jiwan and 5 others 1997 Lahore 171; Ghulam Muhammad and others v. Murad Bakhsh and another PLD 1969 Lah. 95; Muhammad Suleman v. Wilayatullah Khan and 2 others 1990 CLC 110 and Lal Khan v. Faiz Ahmed and another 1986 SCMR 1962 ref.

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

----S. 115---Re visional jurisdiction---Interference--- Scope--- Scope of interference in revisional jurisdiction is quite limited---Revisional court can only interfere if the court below has exercised a jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.

----O. VII, R.3---Description of property---Identification---Objection of---Scope---Plaintiffs had clearly stated in their plaint all four sides of the land---What was required by O. VII, R.3, C.P.C. was "description of the property sufficient to identify it"---Four boundaries specified had been held by the two courts below sufficient to identify same---Record revealed that documents of private partition having been filed clearly showed separation of property and location of property---Objection of the applicants carried no weight.

Hussain Sheikh for Applicants.

Nazar Hussain Dhoon for Respondent No.3.

Raja Basantani for Respondents Nos.5 to 13.

Date of hearing: 19th October, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 542 #

2010 Y L R 542

[Karachi]

Before Salman Talibuddin, J

MUHAMMAD MITHAL and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.89 and M.As. Nos. 451, 452 of 2009 decided on 11th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Offences Against Property (Enforcement of Hudood), Ordinance (VI of 1979), S.17(3)---Haraabah---Bail, refusal of---Delay in lodging F.I.R. could constitute grounds of bail in circumstances where there was some reason, for example an existing enmity between the parties, to believe that the implication could be motivated---No such reason existed in the present case---Such was a case where the complainant and his family were robbed by three unknown persons, one of whom was holding a gun to the complainant's minor son at all times during the commission of the offence---Delay in lodging F.I.R. against unknown persons was sufficient explanation by the fact that the complainant had already undergone the trauma by being robbed by persons holding a gun to his minor son and had received threats of fatal retaliatory against the complainant and his family if a complaint was registered by him---Keeping in view the nature of robbed property which could easily be converted into cash, the fact that no recovery was made from accused, was also not a ground that would render a case of further inquiry---Accused had failed to make out a case entitling them to the grant of bail---Bail application was dismissed.

Barkat Ali v. The State 2006 MLD 431; Abdul Hameed Soomro v. The State 2004 MLD 413; Moula Bux v. The State 2003 PCr.LJ 394; Ahmed Nawaz v. The State 2007 YLR 2101 and Dr. Javed Akhtar v. State PLD 2007 SC 249 ref.

Mir Muhammad Mangrio for Applicants.

M. Aslam Sipio, State Council for the State.

YLR 2010 KARACHI HIGH COURT SINDH 547 #

2010 Y L R 547

[Karachi]

Before Anwar Zaheer Jamali, C.J. and Faisal Arab, J

MUHAMMAD ALI AFRIDI---Applicant

Versus

PROVINCE OF SINDH through Home Secretary, Karachi and others---

Respondents

Constitution Petition No.431 of 2008, decided on 4th February, 2009.

Penal Code (XLV of 1860)---

----S.489-F---Constitution of Pakistan (1973), Art.199---Dishonestly issuing a cheque--- Constitutional petition---Quashing of proceedings--- Counsel for the complainant had stated that without conceding to the allegation of mala fide or ulterior motive, complainant conceded that for the recovery of sums due in respect of dishonoured cheques issued by accused he would follow remedy before Banking Court, which was the appropriate remedy and; that he was not interested in pursuing the same being unwarranted by law in view of the clear language of S.24(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001---No useful purpose would be served, in circumstances if the proceedings were allowed to continue before the concerned court---Proceedings were quashed.

Nizar Ali Fazwani and another v. Messrs Pak Golf Leasing Company and another Criminal Miscellaneous. No. 76 of 2008 ref.

Ms. Samia Durrani for Petitioner.

Mrs. Halima Khan Addl.A.-G. for Respondents Nos. 1 and 2.

Irfan Haroon for Respondent No.3.

YLR 2010 KARACHI HIGH COURT SINDH 558 #

2010 Y L R 558

[Karachi]

Before Maqbool Ahmed Awan, J

AKHTAR HUSSAIN---Applicant

Versus

ABDUL WAHEED and 2 others---Respondents

Criminal Miscellaneous Application Nos.S-193 and 2542 of 2008, decided on 16th March 2009.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 561-A---Registration of criminal case on the order of Justice of Peace---Application for setting aside said order---Justice of Peace ordered registration of criminal case against applicant---Applicant being aggrieved and dissatisfied with said order of the Justice of Peace filed application for setting aside the same---Justice of Peace had passed the impugned order in the capacity of an administrative officer, but had also observed that in case the F.I.R. was declared to be false, the S.H.O. was empowered to take action against applicant/complainant under S.182, P.P.C.---Option was available for the applicant to approach the S.H.O. concerned and place before him the material in his defence whatsoever he possessed---No illegality, infirmity or discrepancy existed in the impugned order, which was a speaking order---Application was dismissed.

Ayaz Hussain Tunio for Applicant.

Muhammad Aslam Sipio, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 563 #

2010 Y L R 563

[Karachi]

Before Mushir Alam and Muhammad Athar Saeed, JJ

TARIQ HASHMI---Applicant

Versus

THE STATE---Respondent

Bail Application No.804 of 2009, decided on 9th December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497 (2)---Penal Code (XLV of 1860), Ss. 408/420/468/471/477-A/109/34---Criminal breach of trust, cheating, forgery, using as genuine a forged document, fraudulent, cancellation, destruction etc. of bill, falsification of accounts---Bail, grant of---Further inquiry---Documents by which Ijarah lease finance facilities had been finally sanctioned, by the Bank, were prepared by the Relationship Officers and were checked by another officer and provided the sanction after being recommended by a team of three officers; and their recommendations were approved by head of credit---Those facts had led to the conclusion that apparently, Ijarah finance was approved after going through the process of checks and approvals as per the Bank's procedure---Even otherwise nothing had been brought on the record that accused had knowingly connived with other accused for providing Ijarah Loans on the basis of manipulated documents---Further inquiry was needed to establish the prosecution case against accused---Accused was entitled to bail, in circumstances.

Mahmood A. Qureshi for the Applicant.

Irfan Haroon for the Complainant.

Mian Khan Malik, Dy. A.-G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 572 #

2010 Y L R 572

[Karachi]

Before Salman Talibuddin, J

ALI HUSSAIN alias ALI HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-246 of 2009, decided on 11th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.365-B---Kidnapping, abduction or inducing woman to compel for marriage---Bail, grant of---Delay in lodging the F.I.R. though was a ground for grant of bail, however, that was not a rule of universal application and was not always fatal to the prosecution's case---Where a child had been kidnapped, it was natural for the parents to concentrate their efforts on locating the child rather than lodging the F.I.R. promptly and no adverse inference was to be drawn against the prosecution in such cases on that ground alone---It was sufficient to connect accused with the commission of alleged offence---Bail application was dismissed, in circumstances.

Ayaz Ali Gopang for Applicant.

Muhammad Aslam Sipio, Standing Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 577 #

2010 Y L R 577

[Karachi]

Before Sarmad Jalal Osmany, C J

Mst. AYESHA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.761 of 2009, decided on 24th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.448/386/34---Sindh Public Property (Removal of Encroachment) Act (V of 1975), S.7---House trespass, extortion and encroachment---Interim bail, confirmation of---Whether or not accused was an encroacher and land-grabber, would depend upon the outcome of the civil suit pending between the parties---Civil suit between the parties should have been decided before the criminal proceedings were taken in hand---Interim bail granted to accused, was confirmed on the same terms and conditions.

Ms. Almas Faiyaz Farooqui for Applicant.

Sohail Jabbar, Dy. P.-G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 587 #

2010 Y L R 587

[Karachi]

Before Muhammad Athar Saeed, J

SAIF-UR-REHMAN----Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1043 and M.A. No. 3875 of 2009, decided on 7th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497 (2)---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Further inquiry---Trial Court had distorted the facts of the case as according to the F.I.R. the crime had taken place outside the house of a friend of the complainant, whereas the Trial Court had noted that incident had taken place inside the house of the complainant---According to the Trial Court the Police had collected sufficient material to prima facie connect accused with the commission of the crime, but he had not pointed out as to what sufficient material had been collected by the Police, except the identification by the complainant, which also was not according to law---No material was available with the prosecution to connect accused with the commission of crime---Accused had been shown to the complainant without conducting an identification parade in accordance with law---Such identification could not be relied upon---Even if the illegality of the identification process was the only point available to accused, it was enough to make him entitled for bail as further inquiry in accordance with law was needed to connect accused with the crime--Accused was admitted to bail, in circumstances.

Muhammad Nawaz for Applicant.

Muhammad Iqbal Awan, A.P.-G.

YLR 2010 KARACHI HIGH COURT SINDH 591 #

2010 Y L R 591

[Karachi]

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

PAKISTAN CRICKET BOARD through Manager National Stadium, Karachi-Petitioner

Versus

DIRECTOR/DISTRICT OFFICER, PROPERTY/ENTERTAINMENT TAX and another---Respondents

Constitutional Petition No.D-1525 and Miscellaneous No. 7208 of 2008, decided on 18th September 2008.

West Pakistan Entertainment Duty Act (X of 1958)---

----S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Demand for entertainment duty---Show-cause notice issued by respondent, had been challenged by the petitioner on the ground that entertainment duty demanded through such notice was contrary to S.8 of the Entertainment Duty Act, 1958 as well as the past practice---Counsel for the petitioner had submitted that petitioner/Board had been organizing matches since 2005 and no entertainment duty had been paid for the reason that petitioner/Board was exempted in terms of S.8 of Entertainment Duty Act, 1958---Demand letter was in respect of Rs.3,815,868, which had been followed by the impugned show-cause notice---Amount as mentioned in the show-cause notice was stated to be approximate and no figures for calculation of the excise duty were available---Department had no record to calculate the duty---Under S.8 of Entertainment Duty Act, 1958 specific exemption had been given from the entertainment duty, if the proceeds were being spent towards the charitable purposes; educational or sports etc.-Petitioner had been organizing the matches since the year 2005, but no entertainment duty had been demanded by. the department---Issue of exemption as well as calculation of the entertainment duty were to be scrutinized---Demand notice issued by the department, could not be approved---Department, however was directed to issue notice to the petitioner for calling of their entire record; and thereafter would calculate the taxes before making a demand on that and would see the past practice as to why the entertainment duty was not demanded from the petitioner from the year 2005 and whether the petitioner fell under the exemption.

Talib H. Rizvi and Tafazzul H. Rizvi for Petitioner.

Miran Muhammad Shah, A.A.-G. along with Shabbir Ahmed Sheikh, Director Excise and Taxation and Aftab Ahmed, E.T.I. for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 602 #

2010 Y L R 602

[Karachi]

Before Faisal Arab and Bin Yamin, JJ

MANZOOR---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.D-321 of 2006 and 42 of 2008, decided on 31st March, 2009.

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

----Ss. 9(c) & 25---Possession of narcotic--Appreciation of evidence---Official witnesses were as good as any independent witness---Simply for the reason that they being official witnesses, their evidence against accused should not be believed and same should be discarded, was not a sufficient ground---If defence side wanted that the evidence of the official witnesses should be discarded, it had to establish that the prosecution witnesses were hostile towards accused and had reason to falsely implicate him---Nothing of the sort in that regard was available on the record to show that there was any reason for the official witnesses to falsely depose against accused---Under S.25 of Control of Narcotic Substances Act, 1997, applicability of S.103, Cr.P.C. having been excluded, contention of counsel for accused regarding non-calling of the person from locality to witness the alleged recovery, did not carry any weight---Press clippings were neither relevant nor admissible in evidence, when accused had not examined the reporter of the newspaper who had given the report about the recovery of narcotics from the person other than accused---So far as examination of private person by accused in his defence was concerned, it was observed that the evidence of those defence witnesses was neither confidence inspiring nor convincing---Prosecution witnesses examined in the case had been consistent in their evidence regarding place, from where accused was arrested, about the time of arrest of accused and recovery of 20 kgs Charas effected from his possession---Both the witnesses of the prosecution in their evidence had supported each other on material points; nothing was on record to justify that their evidence should not be relied upon---Prosecution, in circumstances, had succeeded to prove its case against accused beyond any reasonable doubt---Judgment of the Trial Court which was quite correct and proper according to the facts and circumstances of the case and the law applicable, did not require any interference by the High Court.

1999 SCMR 1220; 1995 SCMR 1345; 2001 PCr.LJ 1312; 2008 SCMR 1616 and PLD 2004 SC 583 ref.

Suhail Muzaffar for Appellant.

Saifullah, A.A.-G. Sindh for the State.

Date of hearing: 24th March, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 611 #

2010 Y L R 611

[Karachi]

Before Khilji Arif Hussain and Arshad Siraj Memon, JJ

AERO ASIA INTERNATIONAL (PVT.) LTD. and another---Appellants

Versus

SHELL PAKISTAN LIMITED--- Respondent

High Court Appeal No.208 and C.M.A. No. 444 of 2008 in Suit No. 1338 of 2007, decided on 4th May, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2(2)---Arbitration Act (X of 1940), S.34---Leave to defend---Nonseeking of permission---Effect---Plaintiff filed suit for recovery of Rs.3, 47,19,197 on the basis of dishonoured cheques under O.XXXVII, R.1, C.P.C.---Defendant instead of seeking permission to defend the suit filed an application under S.34 of the Arbitration Act, 1940---Trial Court dismissed application filed under O.XXXVII, R.2 (2) C.P.C. and decreed the suit to the claimed amount---Validity---Defendant had not filed application for leave to defend, application under S.34 of the Arbitration Act, 1940 alone was not maintainable---High Court dismissed appeal in limine.

Ali Gohar Masroof for Appellant.

Arshad Hussain for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 622 #

2010 Y L R 622

[Karachi]

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

RIZWAN AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.154 of 2008, decided on 24th November, 2008.

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

----Ss.6 & 9---Possession of narcotic---Appreciation of evidence---Fine, reduction in---Recovery of narcotic was made from the possession of accused which was sent to the Chemical Examiner---No discrepancy was noticed in the oral evidence regarding case property and Chemical Examiner's report---Accused had sought reduction in the sentence awarded to him on the ground of mercy---Such prayer could not be entertained as in such like cases courts were required to award adequate punishment instead of showing sympathy---No case was made out requiring interference in the impugned judgment---Conviction and sentence awarded to accused were maintained, however fine was reduced from Rs.50,000 to Rs.10,000.

2008 SCMR 825 ref.

Rizwan Ahmed for Appellant.

Saifullah A.A.-G. for the State.

Date of hearing: 13th November, 2008.

YLR 2010 KARACHI HIGH COURT SINDH 626 #

2010 Y L R 626

[Karachi]

Before Ahmed Ali Shaikh, J

KHALID HUSSAIN---Applicant

Versus

THE STATE through Anti-Corruption Establishment Thatta---Respondent

Criminal Bail Application No.S-766 of 2009, decided on 17th December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.409/34---Prevention of Corruption Act (II of 1947), S.5(2)---Misappropriation and corruption---Bail, grant of---Co-accused were admitted to bail under similar allegations, and the case of accused was at par to the case of co-accused---Accused deserved the concession of bail under the doctrine of consistency---Accused was alleged to have absconded, but no proceedings under Ss.87 and 88, Cr.P.C. had been initiated against him---Accused could not be treated as absconder---Findings of inquiry had revealed that accused and his co-accused were not found responsible for misappropriation and at the most they had committed some minor irregularity---Accused were exonerated from the charge of misappropriation--- Accused was admitted to bail, in circumstances.

Muhammad Daud and another v. The State and another 2008 SCMR 173 and Khan Mir v. Amal Sherin alias Kamal and 2 and others 1989 SCMR 1987 ref.

Syed Ali Ashraf Shah for Applicant.

Shahid Ahmed Sheikh, Asstt. P.G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 633 #

2010 Y L R 633

[Karachi]

Before Khadim Hussain M. Shaikh, J

SHAH MURAD---Applicant

Versus

KHAIR MUHAMMAD and another---Respondents

Criminal Miscellaneous Application No.S-7 of 2009, decided on 20th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Cancellation of bail, application for---Amended charge was framed after about 9 months after arrest of accused---Tapedar was examined after more than one year of his arrest and thereafter only complainant was examined and after that there was no progress of the trial---Bail was granted to accused on the ground of hardship for his remaining in custody continuously for a period of more than four and half years and not on merits---No illegality or perversity was found in the impugned order whereby bail was granted to accused---Complainant having failed to make out the case for cancellation of bail his, application for cancellation of bail, was dismissed.

Ahsan Ahmed Qureshi for Applicant.

Naimatullah Bhurgari, State Counsel.

Khair Muhammad Chandio for Respondent No.1.

YLR 2010 KARACHI HIGH COURT SINDH 641 #

2010 Y L R 641

[Karachi]

Before Khadim Hussain M. Shaikh, J

SHAH MURAD BROHI---Petitioner

Versus

BASHIR AHMED and 2 others---Respondents

Criminal Transfer Application No.45 of 2009, decided on 20th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.526---Penal Code (XLV of 1860), S.302/34---Transfer of case---Application for--- Applicant/complainant filed application for transfer of case from the file of the court of Additional Sessions Judge, at place to any other court having jurisdiction only on the ground that the court was lying vacant since last one year---State Counsel and respondent had raised no objection---Amended charge was framed and thereafter only two prosecution witnesses were examined; thereafter no progress was made in the trial---Accordingly, sessions case was withdrawn from the file of court of Additional Sessions Judge and was made over to the court of another Additional Sessions Judge---Case was an old one pertaining to the year 2003 which needed to be disposed of expeditiously in view of National Judicial Policy---Transferee Court was directed to examine all the remaining prosecution witnesses at the earliest and to conclude the trial expeditiously.

Ahsaan Ahmed Qureshi for the Applicant.

Naimatullah Bhurgari, State Counsel.

Khair Muhammad for respondent No.3.

YLR 2010 KARACHI HIGH COURT SINDH 646 #

2010 Y L R 646

[Karachi]

Before Syed Mahmood Alam Rizvi, J

NIZAMUDDIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-516 of 2008, decided on 16th September, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Possession of norcotic---Bail, grant of---Further inquiry---When recovery of 1100 grams charas was made from accused, he was not entitled for bail due to the bar of S.51 of the Control of Narcotic Substances Act, 1997, especially when direct evidence was available against accused---Counsel for accused, however, had not argued the case on merits and instead he had demonstrated the mala fides and ulterior motives against Police Officer---Matter required further enquiry when the honest officer had conducted enquiry and reached the conclusion that cases registered against accused were false---Prosecution though had not filed application under S.494, Cr.P.C. for withdrawal of the case before the trial court, but prima facie, the case required further inquiry---Accused, in circumstances, was entitled for bail.

Muhammad Saleem Jessar for Applicant.

Naimatullah Bhurgri for the State.

YLR 2010 KARACHI HIGH COURT SINDH 648 #

2010 Y L R 648

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.126 of 2005, decided on 28th July, 2006.

(a) Criminal trial---

----Witness---Related witness--- Mere relationship or close association of prosecution witness with the deceased is not sufficient to hold him to be an interested witness, is the absence of any established hostility, animosity or motive on his part to depose falsely against the accused and his testimony would not be discarded on such ground alone.

2005 SCMR 1958 ref.

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

----S.302(b)---Appreciation of evidence---Prosecution evidence implicating the accused fully in the murder of the two deceased persons had inspired confidence and despite the existing enmity between the parties the prosecution witnesses could be safely relied upon---Air ticket issued in the name of accused by itself would not establish the plea of alibi taken by him and would not undo the entire ocular testimony clearly implicating him in the occurrence--Acquitted of accused of the charge under S.13(c) of the West Pakistan Arms, Ordinance, 1965, only on technical grounds had no bearing on the merits of the murder case---Minor contradictions in the prosecution evidence were of no significance---Conviction and sentence of accused were upheld in circumstances.

2003 PCr.LJ 657; 2004 PCr.LJ 1564; 2000 PCr.LJ 1360; PLD 1982 SC 429; 2005 SCMR 1110; Imtiaz Ahmad v. The State 2001 SCMR 1334; Woolmingtin's case 1935 AC 462 Talib Hussain v. State 1995 SCMR 1776 and 2005 SCMR 1958 ref.

Naveed Ahmed Khan for Appellant.

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

Date of hearing. 18th April, 2006.

YLR 2010 KARACHI HIGH COURT SINDH 659 #

2010 Y L R 659

[Karachi]

Before Shahid Anwar Bajwa, J

PROVINCE OF SINDH through Secretary, Forest Department, Karachi

and another---Applicants

Versus

Haji GUL MUHAMMAD HINGORO through L.Rs. and 7 others---Respondents

Civil Revisions Nos.136 ad 173 of 2002, decided on 24th December 2009.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Decree, setting aside of--Forum---Judgment and decree passed by Trial Court in favour of plaintiff was maintained by Lower Appellate Court, High Court and Supreme Court---Ten years after the judgment was passed by Supreme Court, defendant filed application under S.12(2), C.P.C. for setting aside of decree---Validity---Original order was passed by Trial Court and the same was maintained by Lower Appellate Court, High Court and Supreme Court, therefore, application under S.12(2), C.P.C. filed before Trial Court was competently filed---Judgment was passed by Trial Court on 4-3-1985, and decree was passed on 12-3-1985, while final order was passed by Supreme Court on 27-4-1992---Application under S.12(2), C.P.C. was filed on 20-2-2000, after lapse of ten years and averments made in application did not indicate that any fraud or misrepresentation had been perpetuated on the Court below---In earlier round of litigation, evidence was considered by the Courts, therefore, High Court declined to interfere with judgment and decree passed in favour of plaintiff---Revision was dismissed in circumstances.

Shabbir Hussain v. Mst. Anwar Sultan Through 3 Legal Heirs, 1986 CLC 903; Muhammad Yaqub v. Mst. Noran 983 CLC 1948; Secretary Ministry of Religions Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 and Khawaja Muhammad Yousaf v. Federal Government Through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 ref.

Assadullah Baloch, Asstt. P.-G. for Applicants (in C.R.As. Nos.136 and 137 of 2002).

Nariandas C.Motiani for Respondents (in C.R.As. Nos.136 and 137 of 2002).

Date of hearing 17th December, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 666 #

2010 Y L R 666

[Karachi]

Before Abdul Rasheed Kalwar, J

NAZIR AHMED alias AMIN alias LAMBA---Applicant

Versus

THE STATE---Respondent

Bail Application No.69 of 2009, decided on 3rd March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.395---Qanun-e-Shahadat (10 of 1984), Arts.38, 39 & 40---Dacoity---Bail, refusal of---Prosecution witness had identified and picked up accused in identification test---Such piece of ocular testimony could not be brushed aside---Deeper appreciation of allegation at bail stage was not permissible--- Authenticity of the identification, would be determined at the trial---Accused having pointed out the place of incident, his admission would not be covered under Art.38 but same would be covered under Arts.39 & 40 of Qanun-e-Shahadat, 1984, because only the accused knew as to where he had committed the offence---Police could never know that accused would point out the place of incident---Bail plea of accused, in circumstances, was rejected, in circumstances.

1997 MLD 1743; 1994 P.Cr.LJ 508 and 1982 SCMR 129 ref.

Mrs. Kausar Anwar Siddiqui, for Applicant.

Ms. Akhtar Rehana, A.P.-G. for The State.

YLR 2010 KARACHI HIGH COURT SINDH 673 #

2010 Y L R 673

[Karachi]

Before Maqbool Ahmed Awan, J

MUHAMMAD FAYAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.673 of 2009, decided on 29th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/353/186/34---Attempt to commit Qatl-i-amd and assault or criminal force to deter public servant front discharging of his duty---Bail, grant of---Further inquiry---Accused was apprehended by the Police at the spot along with T. T. pistol and magazine containing two bullets---No person from Police party sustained any injury in the encounter---Was yet to be seen whether accused had received injury at the hands of Police; and whether the incident of encounter between the Police party and accused party took place in the manner as claimed by the Police---No objection was raised by Additional Prosecutor-General to grant of bail to accused---Accused had made out a case for grant of bail as envisaged under subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Mirza Sarfraz Ahmed for the Applicant.

Rehan Akhtar, Addl. P.-G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 678 #

2010 Y L R 678

[Karachi]

Before Mrs. Qaiser Iqbal, J

WASIM AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.523 of 2007, decided on 23rd August, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Further inquiry-Ocular account had persistently established that no evidence was available with the prosecution---Complainant and his wife reached the place of incident after receiving information from the Police about the murder of their daughter---In absence of direct evidence, strong circumstantial evidence was required to connect accused with the commission of the crime, but no circumstantial evidence was prima facie available on the record to suggest' implication of accused in the commission of offence---Deep scrutiny of evidence was not permissible at the bail stage---Benefit of S.497(2), Cr.P.C., was extended in favour of accused, in circumstances and he was admitted to bail.

Saathi M. Ishaque for Applicant.

Fazal-ur-Rehman for the State.

YLR 2010 KARACHI HIGH COURT SINDH 693 #

2010 Y L R 693

[Karachi]

Before Muhammad Ismail Bhutto, J

ALI GOHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.507 of 2009, decided on 24th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.365-B, 367-A & 382---Kidnapping, abducting or inducing woman to compel for marriage etc. kidnapping or abducting in order to subject person to unnatural lust and theft after preparation made for causing death, hurt or restraint in order to the committing of the theft---Bail, grant of---Further inquiry---No role had been assigned to accused except his presence at the place of incident with pistol---Specific allegation of abduction of lady and taking of golden ornaments and other articles was levelled against the co-accused--Investigating Officer had let off four persons so also abductee had not implicated accused/applicant for the abduction and taking away golden ornaments--Accused having made out case for further inquiry, was admitted to bail.

Manzoor Hussain Larik for Applicant.

Dareshani Ali Haider Ada for the State.

YLR 2010 KARACHI HIGH COURT SINDH 697 #

2010 Y L R 697

[Karachi]

Before Muhammad Athar Saeed, J

THE STATE---Applicant

Versus

MUHAMMAD RIAZ---Respondent

Criminal Bail Application No.924 of 2009, decided on 30th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.371-A & 498---Selling person for the purpose of prostitution and enticing a married woman---Bail, grant of---Further inquiry---Main contention of the counsel for accused was that though the name of accused had been mentioned as one of the persons who enticed the complaint on the pretext of marriage, but no specific role had been assigned to him---From the provisions of S.371-A, P.P.C., it was clear that said provision only would apply to persons who sell any person with the intent that such person would be used for the purpose of prostitution or illicit intercourse---F.I.R., statement of alleged victim and other documents on record had not alleged that the complainant was intended to be sold to any prostitute or to any person who intended to use her for the purpose of prostitution or intercourse---From the statement of victim it did not transpire that she was sold to a prostitute or to person who intended to use her as a prostitute---Further inquiry was needed to connect accused with the charges and allegation under S.371-A, P.P.C.---Tentatively the prosecution had not made out a case which could be assumed to fall under S.371-A, P.P.C.---Maximum sentence provided under S.498, P.P.C. for inducing away married woman with intention to illicit intercourse, was two years which did not fall under prohibitory clause of S.497, Cr.P.C.---Accused, in circumstances was entitled to grant of bail.

Syed Nadeemul Haq for Applicant.

Khadim Hussain for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 704 #

2010 Y L R 704

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

JAMSHED ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.336 of 2009, decided on 23rd July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Attempt to commit qatl-i-amd---Bail, refusal of---Offence had taken place in the broad daylight and immediately after the incident the F.I.R. was lodged on the same day---Crime weapon along with two live empties had also been recovered from accused---Two eye-witnesses in their statements made under S.164, Cr.P. C. had assigned the role to accused that he along with co-accused fired with crime weapon at the deceased who died and one lady who was passing on the road at the time of incident had also sustained two injuries and died later on---Enmity shown in the F.I.R. was double edged weapon which could not be used for either side, however the motive was given that the deceased was killed on account of enmity---Accused having not made out a case of further inquiry, his bail application was dismissed being meritless.

Saifullah and another v. The State 2001 PCr.LJ 110; Ali Gul v. The State 2007 YLR 824; Lakhmir Kurio v. The State 2005 YLR 1467; Hussain Ahmed v. The State 2004 PCrLJ 669; Jaffar and others v. The State 1980 SCMR 784; Mst. Noor Habib v. Ghulam Raza and others 2009 SCMR 786 and Janan alias Jano Chandio v. The State PLD 2009 Kar. 265 ref.

Dareshani Ali Hyder for Applicant.

Manzoor Hussain Larik for the Complainant.

Agha Athar Hussain Pathan, A.A..-G for the State.

2010 Y L R 732

[Karachi]

Before Sajjad Ali Shah, J

ABDUL MALIK---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1121 of 2009, decided on 26th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---Further inquiry---Name of accused did not appear in the F.I.R., nor any incriminating material was recovered from his possession during investigation--Implication of accused was only on the basis of a belated statement of wife of deceased, wherein she stated that deceased was lastly seen with accused and one other person---Wife of deceased was also arrested on the basis of a statement made by the mother of deceased---Neither there was any eye-witness of the incident nor any incriminating material had been placed on record to suggest the involvement of accused in the commission of the offence---Regarding alleged disclosure of the place of incident by accused, it was the same from where the dead body was recovered, which not only found mention in the F.I.R., but also in the memo of inquest---Place of incident was not a secret place, disclosure whereof would disentitle accused from the concession of bail---Case being of further inquiry, accused was admitted to bail, in circumstances.

Aamir Mansoob for Applicant.

Abdullah Rajput, A.P.-G. along with Irshad Sahadato, I.O. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 737 #

2010 Y L R 737

[Karachi]

Before Shahid Anwar Bajwa, J

FAIZULLAH KHAN---Petitioner

Versus

MUHAMMAD SHAFI and others---Respondents

C. P. No.S-433 of 2007, decided on 23rd December, 2009.

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

----S. 15(2)-Ejectment petition---Bona fide personal need of landlord for himself or any of his family members---Extinguishment of such need i.e. cause of action---Situations stated.

If landlord being a doctor claims that he needs the premises to set up his Clinic and none of his children is a doctor, such need would stand extinguished on death of the landlord. There may be situations, where even if landlord is still alive, cause of action would extinguish with a death in the family. For example, if landlord claims that he needs the premises for use of his son and during pendency of the application, his son expires or if landlord claims that he needs the ground floor for use of his wife because she is disabled person and during pendency of proceedings she expires. In such situation, cause of action would stand extinguished.

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

----S. 15(2)---Civil Procedure Code (V of 1908), O. XXII, R.3(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Filing of ejectment petition by landlord through his son/attorney---Death of landlord during pendency of appeal filed against dismissal of ejectment petition by Rent Control---Filing of list of legal heirs of landlord after 90 days of his death---Acceptance of ejectment petition by Appellate Court---Validity---In absence of application having been made for impleading legal heirs of landlord within prescribed time, Appellate Court could pronounce judgment in appeal, which would have same force and effect as pronounced before his death---Impugned order was not non-est for lack of bringing on record legal heirs of landlord---High Court dismissed constitutional petition filed by tenant.

Usman Pirzada v. The Additional District and Sessions Judge Lahore and 7 others 1985 MLD 549; Mst. Iffat Masood and 2 others v. Rehmat Ali PLD 1990 Lah. 359; F.B. Davis v. Mrs. Shakar Khano Bai represented by Legal heirs 1986 MLD 1342; Mst. Surraya and 7 others v. Additional District Judge, Lahore and 8 others 1990 ALD 585; Nasir Ahmed Sheikh v. The State Life Insurance Corporation of Pakistan and another 1990 MLD 1261; Ravi Dutt Kapur v. Deputy Commissioner/ Collector, Jhang and 9 others 1999 CLC 500; Muhammad Aslam (through his L.R.) v. Wazir Muhammad PLD 1985 SC 46; Mst. Said Begum and others v. Nur Ahmed PLD 1978 SC 133; Mst. Anar Begum v. The Settlement and Rehabilitation Commissioner (Land), Multan Division, Multan and 3 others PLD 1973 Note 85; Muhammad Shafi and others v. Muhammad Ilyas 1986 SCMR 451; Rashid Ahmed and 8 others v. Muhammad Arshad PLD 1975 Lah. 1195; Ramzan Ali Shah v. Mst. Razia Sultana and others PLD 1968 Baghdad-ul-Jadid 1; Haji Muhammad Siddique v. District Judge, Peshawar and 11 others 1989 CLC 1296; Syeda Tahira Begum and others v. Syed Akram Ali and others 2003 SCMR 29 and Haji Ibrahim v. S. Rehmatullah (Represented by Legal Heirs) 1985 SCMR 241 ref.

Muhammad Sidiq v. Muhammad Sakhi through Fateh Muhammad PLD 1989 SC 755 rel.

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not go into factual controversies between parties and would refrain from doing so.

Abdul Rasheed for Petitioner.

Naveed Ahmed for Respondent No.1.

Date of hearing: 11th November, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 752 #

2010 Y L R 752

[Karachi]

Before Bin Yamin, J

NABI BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.741 of 2008, decided on 12th December, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(i), (ii), F(i), H(2), 504, 114, 147 & 148---Shajjah-i-khafifah, shajjah-imudihah, damiyah, punishment for hurt by rash or negligent act, intentional insult with intent to provoke breach of the peace, abettor present when offence is committed and punishment for rioting---Bail before arrest, grant of---Delay of about 13 hours in lodging the F.I.R.---Fact that the parties prior to the incident were not on good terms, was also available on the record---Injured, who was in attendance in court, appeared to be quite well---Counter cases had been registered by the parties against each other---Case for grant of bail before arrest to accused having been made out, bail before arrest earlier granted to accused, was confirmed, in circumstances.

Ghulam Mandi Sangi for Applicant.

Miss Rubina Dhamrah State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 756 #

2010 Y L R 756

[Karachi]

Before Ghulam Sarwar Korai, J

HASIL and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.356 of 2009, decided on 7th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302(b)/34---Qatl-i-amd---Bail, grant/refusal of---Direct role was attributed to the accused who allegedly made straight fire from DBBL gun towards deceased who was a young man aged about 35/36 years; while no role was alleged to the co-accused as he allegedly made aerial firing---Submission of counsel for accused persons needed deeper appreciation and bail application was to be decided with tentative assessment of the material available on record---Bail application of accused was dismissed, whereas bail application of co-accused was allowed.

Muhammad Azam v. The State 2008 SCMR 249; Saleh alias Muhammad Saleh v. The State 2008 PCr.L.J 113; Muhammad Maroof v. The State 2009 YLR 1952; Shahid and another v. The State 2009 YLR 56 and Amir v. The State PLD 1972 SC 277 ref.

Syed Madad Ali Shah for Applicants.

Shahid Ahmed Shaikh, A.P.-G. Sindh for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 760 #

2010 Y L R 760

[Karachi]

Before Bhajandas Tejwani, J

SABIR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-416 of 2009, decided on 21st October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.489-F & 420--- Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.20---Dishonestly issuing a cheque and cheating---Ad interim pre-arrest bail, confirmation of---Relationship of Financial Institution and customer existed between the complainant Bank and accused /customer and for repayment of the finance, four cheques were issued by customer---Offence, if any with which customer could be charged would be S.20 of Financial Institutions (Recovery of Finances) Ordinance, 2001; and cognizance could only be taken on the direct complaint by concerned Banking Court and S.20, Financial Institutions (Recovery of Finances) Ordinance, 2001 under which accused could be tried was bailable, non-cognizable and compoundable---Matter with regard to the cognizance taken by the Police was triable by the ordinary or Banking Court and applicability of S.20 of Financial Institutions (Recovery of Finances) Ordinance, 2001 in the matter required further inquiry---Interim bail already granted to accused, was confirmed, in circumstances.

Amjad Ali Sahito for Applicant.

Shahid Ahmed Shaikh, A.P.-G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 763 #

2010 Y L R 763

[Karachi]

Before Maqbool Baqar, J

ZOHRA BEGUM---Plaintiff

Versus

SAJIDA BEGUM---Defendant

Suit No.1466 of 2000, decided on 24th September, 2009.

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

----O. I, R.10(2)---'Necessary' and `proper party'---Distinction.

A necessary party is one in whose absence no effective decree can be passed, whereas a proper party is one whose presence before the Court is deemed necessary in order to enable it to effectually and completely adjudicate upon and settle all questions involved in the suit.

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

----S. 42---Civil Procedure Code (V of 1908), O.I, R. 10(2)---Suit for declaration---Plaintiff claiming to be real owner of suit property, while alleging its deceased owners to be his benamidar---Application by intervenor for his impleadment as party in the suit alleging execution of agreement of sale in his favour by defendants (legal heirs of deceased owner) in respect of suit property---Plea of intervenor that parties in his absence might obtain collusive decree to defeat his claim under such agreement---Validity---Question involved in the present suit requiring determination was as to whether deceased owner was holding suit property as a benamidar of plaintiff or not---Intervenor had entered into such agreement with defendants after four years of institution of present suit with full knowledge of plaintiff's claim--Intervenor had neither filed suit for specific performance of such agreement till yet nor could he be given any relief in present suit---Such plea of intervenor might have carried weight in case present suit would have been filed after execution of such agreement---Intervenor could not be impleaded just to supervise proceedings in present suit to watch his interest as pleaded---Presence of intervenor would not facilitate Court to decide such question involved therein as he was not a necessary or proper party---Application of intervenor was dismissed being misconceived.

Mushtaq A. Memon for Plaintiff.

Khawaja Naveed Ahmed for Defendant.

Imdad Bhatti for the Intervenor.

YLR 2010 KARACHI HIGH COURT SINDH 769 #

2010 Y L R 769

[Karachi]

Before Malik Muhammad Aqil Awan, J

HAYAT and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-226 of 2009, decided on 6th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 324, 392, 337-A(i), 337-F(i), 33 7-H(ii), 109, 504 & 506(2)---Attempt to commit qatl-i-amd, robbery, shoijah-i-khafifah, intentional insult with intent to provoke breach of the peace and criminal intimidation---Bail, grant of---Role assigned to the accused was that he on the pistol point snatched sum of Rs.50,000 from the complainant/injured along with some necessary documents, but neither said amount was recovered from him nor any unspecified document was recovered from him---Co-accused was shown to be armed with hatchet, whereas yet another co-accused had been attributed role of causing rifle fire which hit the complainant on the right leg---Another accused was also shown to be armed with hatchet and he was alleged a general role of causing injuries---No material evidence was available on record to connect the accused with offence under S.392, P.P.C. except the bare allegation in the F.I.R. which found no corroboration in the police papers---Main accused in the case appeared to be the co-accused who allegedly caused fire-arm injury on the right side of the leg which had been categorized in the medical certificate under S.337F(vi), P.P.C. punishable with seven years' R.I.---Bail was granted to all four accused persons, in circumstances.

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

Syed Madad Ali Shah for Applicants.

Aftab Ahmed Warraich for the Complainant.

Syed Meeral Shah, Dy. P.-G., Sindh for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 776 #

2010 Y L R 776

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD SHOAIB---Petitioner

Versus

Mst. FOUZIA and others---Respondents

Constitution Petition No.S-436 of 2006, heard on 13th January, 2009.

Guardians and Wards Act (VIII of 1890)---

----S. 5---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Welfare of minor---Both Family Court and Appellate Court had dismissed application of petitioner/father of the minor for custody of minor girl aged 14 years---Validity---Paramount duty of the court was to adjudicate the dispute of custody of minor, in line with the welfare of the minor girl who had been brought up since her birth by her mother/respondent--Minor girl aged about 14 years appeared in the court and met her father/petitioner in the court and expressed her willingness and desire to live with her mother---At that juncture taking into consideration the age of the minor girl impugned judgments of the court below to the effect that the custody of the minor should remain with the mother, could not be interfered with---Counsel for the petitioner had candidly conceded the best course in the interest of the minor was that the visitation arrangement made by the Appellate Court below be maintained---High Court fixed day and time for such visitation accordingly.

Sathi M. Ishaque for Petitioner.

Azizuddin Qureshi for Respondents

2010 Y L R 794

[Karachi]

Before Aamir Raza Naqvi, J

AACHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-472 and M.As. Nos.1858, 1859 of 2009, decided on 27th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)--Possession of narcotic---Bail, grant of---Documentation made at the time of recovery showed that samples were taken from each piece, but it was not mentioned that what was the quantity taken from each piece recovered out of 1250 grams from which only 10 grams were sent for Chemical Examination---In the present case the Control of Narcotic Substances (Government Analysts) Rules, 2001 had been violated, which also created doubt about the genuineness of recovery---Substance recovered had not properly been mentioned separately so far as the quantity separated was concerned, the exact quantity had become doubtful---Where quantity of narcotic substance was found marginally higher than 1000 grams, bail was invariably granted to accused---Accused having made out a case for grant of concession of bail, bail was granted.

Ansari Abdul Lateef for Applicant.

Shahid Ali Shaikh, A.P.G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 814 #

2010 Y L R 814

[Karachi]

Before Syed Mahmood Alam Rizvi, J

YAR MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1472 of 2008, decided on 26th January, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/324/504---Qatl-i-amd, attempt to commit qatl-i-amd and intentional insult with intent to provoke breach of the peace---Bail, grant of---For the last many months the witnesses were not appearing before the court--Complainant party though had engaged a counsel, but no serious efforts had been made to examine the witnesses and the Trial Court was compel-led to issue bailable warrants to the witnesses---Such was a fit case in which bail could have been granted to accused on the ground of hardship---Accused was admitted to bail, in circumstances.

Azizullah M. Buriro and Naveed Ahmed Khokhar for Applicant.

Zafar Ahmed Khan, Addl. P.-G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 815 #

2010 Y L R 815

[Karachi]

Before Shahid Anwar Bajwa, J

SARWAR ALI---Petitioner

Versus

IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI (EAST) and 2 others---Respondents

Constitutional Petitions Nos.S-423, S-424 and S-376 of 2007, decided on 7th December, 2009.

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

----S.15(2)---Ejectment petition---Bona fide personal need of landlord---Availability of other property to landlord or letting out of property by landlord just before filing of such petition or during its pendency---Validity---Tenant could not be given veto over landlord's right to decide and determine as to which property was more suitable for him---Duty of landlord to explain as to why other property or vacant property or property let out by him was not sufficient for his need---Principles stated.

It is right of landlord to decide and determine as to which premises is more suitable for him and tenant cannot be given veto over such right of landlord, but if in the same premises or same locality other property is available to landlord or which property landlord just recently let out prior to filing of ejectment application or during the pendency of ejectment application or which property is lying vacant and unused and if landlord has suppressed such facts in his ejectment application, the conclusion would be unavoidable; firstly in case of suppression, landlord has come to the Court with unclean hands, and secondly, burden would be shifted back to the landlord to at least, prima facie, say something, even if not strictly required to be proved it as to why other property or vacant property or property let out is not sufficient for his requirement.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197, Allies Book Corporation through L.Rs. v. Sultan Ahmed and others 2006 SCMR 152; Latif Ahmed v. Mst. Farrukh Sultan 1996 SCMR 1233; Mrs. Zehra Begun' v. Messrs Pakistan Burmah Shell Limited 1992 SCMR 943; Messrs F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178; Juma Sher v. Sabz Ali 1997 SCMR 1062 and Raees Ahmed Pasha v. Kamaluddin and others 2004 MLD 587 ref.

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

----S.15(2)---Ejectment petition---Bona fide personal need of shop by landlord for his son---Landlord owning several shops in same premises---Running of business by landlord's son in a shop in same premises---Possession of one shop given by landlord to another person---Landlord's statement during cross-examination that he could get shop from such person whenever he wanted---Validity---Burden was on landlord to establish as to why shop given to such person was not sufficient for his need---Burden was on landlord to establish as to why shop being used by his son for business was not sufficient for his need.

----S.15(2)---Ejectment petition---Bona fide personal need of shop by landlord---Plea of tenant that he constructed shop with his own funds, thus, he could not be evicted therefrom on any ground---Validity---Tenant had not produced on record any written agreement giving him any such right---Such plea was repelled in circumstances.

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

----S.54---Qanun-e-Shahadat (10 of 1984), Arts. 70 & 72---Oral testimony contrary to contents of sale deed---Evidentiary value---Such testimony could not be relied upon in presence of sale deed---Illustration.

Shahanshash Hussain for Petitioner (in C.Ps. Nos.S-423 ands-424 of 2007).

Mirza Waqar Hussain for Respondent No.3 (in C.Ps. Nos.S-423 and S-424 of 2007).

Muhammad Azhar Fareedi for Petitioner (in C.P. No. S-376 of 2007).

Mirza Waqar Hussain for Respondent No.1 (in C.P. No. S-376 of 2007).

Date of hearing: 19th November, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 833 #

2010 Y L R 833

[Karachi]

Before Bin Yamin, J

GHULAM MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 387 and M.A. No.1357 of 2008, decided on 12th August, 2008.

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

----S.497---Penal Code (XLV of 1860), Ss.392, 397, 341 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, dacoity, wrongfully restraining any person and haraaba---Bail, refusal of---Accused was arrested soon after the incident by Police along with robbed property as he was chased by the Police and complainant after incident--Name of other accused was given by the arrested accused and evidence had not been recorded so far---No case for grant of bail in the matter having been made out, their application for grant of bail, was rejected.

Advocate for Applicants called absent without intimation.

Naveed Ali Khokhar, A.A.-G.

YLR 2010 KARACHI HIGH COURT SINDH 844 #

2010 Y L R 844

[Karachi]

Before Muhammad Ismail Bhutto, J

RAHIB ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.566 of 2009, decided on 16th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 25---Possession of narcotic---Bail, grant of---Further inquiry---Only one K.G. of Charas in shape of pieces was allegedly recovered from accused, but neither number of pieces nor weight of each piece was given nor it was mentioned that from which piece of Charas ten grams was separated for chemical analysis---Accused could not be held responsible for joint recovery; as pleaded by prosecutor that on his information further 12 K. Gs. of Charas was recovered from the house of co-accused---Prosecution case was not that accused was relative of co-accused and it was not mentioned in the F.I.R that on whose information accused came to know about presence of Charas in the house of co-accused---Accused at the most, could be held responsible for quantity of one K.G. which was allegedly recovered from him and it fell under S.9 (b) of Control of Narcotic Substances Act, 1997, which did not fall within prohibitory clause of S.497, Cr. P. C. ---Sample was not taken from each piece of Charas and ten grams of Charas fell under S.9(a) of Control of Narcotic Substances Act, 1997, which carried punishment of two years---Accused had made out a case of further inquiry--Accused was enlarged on bail, in circumstances.

2007 MLD 1092; 2001 MLD 1922 and 2006 SCMR 1051 rel.

Ghulam Shabir Dayo for Applicant.

Zulfiqar Ali Sangi, S.P.P. for ANF.

YLR 2010 KARACHI HIGH COURT SINDH 850 #

2010 Y L R 850

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

LIAQUAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-462 of 2009, decided on 20th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.452, 365-B, 363, 147, 148 & 149---House trespass after preparation for hurt and kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, grant of---Further inquiry---F.I.R lodged against accused, revealed the allegation by the complainant that accused along with his companions duly armed, forcibly dragged daughter and niece of the complainant and then kidnapped them in jeep---Suit for dissolution of her marriage against her husband filed by alleged abductee was decreed on 22-5-2009, whereas the F.I.R was registered on 19-3-2009/about two months prior to date the suit was decreed---Copy of order passed by Justice of Peace dated 24-6-2009 on the harassment petition filed by alleged abductee against S.H.O., was also filed in which S.H.O. was restrained not to cause illegal harassment to alleged abduetee---Accused had been able to make out a case of further inquiry---Accused was admitted to bail, in circumstances.

Zulfiqar Ali Sangi for Applicant.

Sardar Ali Shah, A.P.G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 859 #

2010 Y L R 859

[Karachi]

Before Sarmad Jalal Osmany, C J

Mst. ABIDA KHATOON---Applicant

Versus

THE STATE and another---Respondents

Criminal Transfer Application No.23 of 2009, decided on 17th August, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.526 & 561-A---Transfer of case---Application for---Applicant/victim female in her application had prayed that proceedings pending in Trial Court at place Kha' be transferred to court at place Kha' since the applicant was under grave threat in her native village if she would go to appear before the Trial Court at placeKha'---Validity---As the victim of incident viz. the applicant herself had stated on oath before the High Court that she was never kidnapped by any one or by her present husband, then under no circumstances could she ever be convicted by any court of law---Consequently, further proceedings under the said F.I.R. would only result in subjecting her to the peril of a trial---Transfer application filed by the victim was converted into one under S. 561-A, Cr.P.C. and proceedings under F.I.R. were quashed.

Imdad Hyder Solangi and Naveed Ali Khokhar for Applicant.

Ms. Akhtar Rehana, Addl. P.G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 872 #

2010 Y L R 872

[Karachi]

Before Munib Ahmed Khan, J

AZMAT KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.249 of 2009, decided on 2nd April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 392/324/353/34---Robbery, attempt to commit qatl-i-amd and assault or criminal for to deter public servant from discharge of his duty---Bail, grant of---Further inquiry---Picture of the incident, which had been shown, could naturally involve several affected persons and several affected witnesses including some persons of the petrol pump which was in the vicinity, but no person from the petrol pump had been cited as a witness nor any other affected person; nor any property had been recovered from accused persons--Incident of firing and counter firing by the Police could be assessed from the recovery of the empties while there was no recovery of the empties---One pistol without magazine was recovered from accused while another found with another accused was only with one bullet---In view of said factual position in the matter, there might have been some persons in the shape of the complainant that they had also been affected by the looting spree on that date as stated by the complainant and absence thereof would create some doubt---Case, in circumstances, needed further investigation---Accused was admitted to bail, in circumstances.

Khair Muhammad, for Applicant.

Zafar Ahmed Khan Additional Prosecutor General for the State.

YLR 2010 KARACHI HIGH COURT SINDH 874 #

2010 Y L R 874

[Karachi]

Before Shahid Anwar Bajwa, J

FEROZUDDIN through Attorney and another---Petitioners

Versus

II-ADDITIONAL DISTRICT JUDGE, KARACHI EAST and another---Respondents

Constitutional Petition No.S-187 of 2008, decided on 22nd December, 2009.

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

----S.15---Constitution of Pakistan (1973), Art. 199--- Constitutional petition--Ejectment of tenant---Bona fide personal need of landlord---Use of premises by son of landlord---Tenant assailed eviction order on the ground that landlord neither mentioned name of his son for whom premises was required nor nature of business was disclosed---Validity---Landlord had clearly stated that he was an old man and was disabled person whose all sons were abroad and he wanted one of his sons to come back and establish business in demised premises and to look after him in his twilight years---Fact that landlord did not disclose name of his son, was not material and the fact that he did not disclose nature of business, his son would start was also not material---Landlord was an old man, he was disabled person, and it was reasonable and bona fide for an old father to desire that one of his sons should come, have means of livelihood and then help the father to take his last steps towards his grave---Such requirement of landlord was bona fide and it was not merely whim or fancy, it was a genuine need---Only on the ground that sons of landlord were in the land of opportunity called United States of America and would not like to come back to Pakistan, was not sufficient to belie bona fide of landlord---High Court declined to interfere in eviction order passed by Lower Appellate Court against tenant--Petition was allowed accordingly.

Akbar Ali v. Abdul Majid 1988 MLD 1412; Mst. Sanjeeda Begum and 9 others v. Muhammad Afsar 1992 MLD 1737; Haji Peer Muhammad v. Haji Abdul Rashid 1968 SCMR 959; Fakhruddin and others v. Muhammad Younus 1986 CLC 821; Fasahat Ali v. Mst. Noor Jehan Begum 1991 CLC 1902; M. Muhammad Sharif v. M.S. Sultan 1981 SCMR 844; Zahoor Din v. Mirza Ayub Baig 1981 SCMR 1081; Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559; Syed Jan Muhammad and another v. Syed Abdul Khair 2001 SCMR 1287; Mst. Bismillah Begum through Legal Heirs v. Mahji 1991 MLD 1303; Haji Mohibullah and Co. and others v. Khawaja Bahauddin 1990 SCMR 1070; Juma Sher v. Sabz Ali 1997 SCMR 1062; Muhammad Iqbal v. Syed Sohail Wajid Gillani 2004 SCMR 1607 and Muhammad Sharif and another v. Muhammad Afzal Soahil and others PLD 1981 SC 246 ref.

Muhammad Mujibur Rahman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537 and Dilshad Muhammad v. Mst. Zubaida Begum 1981 SCMR 895 distinguished.

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

---S.15---Ejectment of tenant---Rejection of majority of pleas---Effect---Mere fact that landlord raised number of grounds in his ejectment application and grounds other than personal bona fide need were rejected by the courts below, it does not ipso facto mean that ground of personal need was not bona fide.

----S.15-A---Protection to tenant---Scope---Tenant has sufficient remedy available to him, if after the premises are vacated and landlord does not start his business.

Mst. Zubeda through her son and General Attorney v. Muhammad Nadir 1998 MLD 3011 rel.

Syed Haider Imam Rizvi for Petitioner.

Ms. Sana Minhas for Respondent.

Date of hearing: 10th December, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 888 #

2010 Y L R 888

[Karachi]

Before Anwar Zaheer Jamali, J

RIZWAN HANIF and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.100 of 2008, decided on 15th September, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.420 & 506(2)---Cheating and criminal intimidation Pre-arrest bail, confirmation of---Dispute between the family of accused and the complainant; ' in such circumstances, the allegations contained in the F.I.R. could not be lightly accepted as true and correct, unless the complainant would succeed to establish such allegations---Lodging of F.I.R. after delay of 50 days, was also significant-Malts fide implication of accused in the commission of the alleged crime, could not be ruled out, in circumstances---Pre-arrest bail granted to accused, was confirmed, in circumstances.

Mahmood-ul-Hassan for Applicants.

Naveed Ali Khokhar for the State.

YLR 2010 KARACHI HIGH COURT SINDH 901 #

2010 Y L R 901

[Karachi]

Before Maqbool Ahmed Awan, J

MUHAMMAD SHAHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.532 of 2009, decided on 4th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.392/34---Bail, grant of---Further inquiry---Name, features, description of accused were not mentioned in the F.I.R.--Delay of four days in lodging F.I.R., had not been explained plausibly by the complainant---No identification parade of accused was held before the Magistrate---Accused having made out a case for further inquiry as envisaged under subsection (2) of S.497, Cr. P. C., accused was admitted to bail, in circumstances.

Saathi M. Ishaque for Applicant.

Ghulam Nabi Sair, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 902 #

2010 Y L R 902

[Karachi]

Before Muhammad Athar Saeed, J

ZAFAR H. ISMAIL---Appellant

Versus

Mrs. RUBINA ALI AAMIR---Respondent

First Rent Appeal No.8 of 2007, heard on 20th August, 2007.

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

----Ss. 17(2)(i)(8)(9) & 24---Ejectment of tenant on ground of default in payment of rent---Failure to comply with tentative rent order---Striking off defence of tenant---Landlady along with ejectment application had also filed application for direction to be issued to the tenant to deposit the arrears of rent and future monthly rent---Tenant continued to deposit the future monthly rent within the stipulated time, but failed to deposit the arrears in accordance with the tentative rent order---On filing application by the landlady under S.17(a) of the Cantonments Rent Restriction Act, 1963, Rent Controller allowed said application and directed the tenant to hand over physical possession of premises in question to the landlady immediately---Evidence on record had proved that tenant had deposited arrears of rent and future rent, though in the wrong court; which at the most was technical defence and striking off defence being penal action, should not be applied to technical default---Impugned order was set aside and case was remanded to Rent Controller, with directions to hear and dispose of the case on merits, within stipulated period.

Ismail v. Mst. Sara Bai and another 1987 CLC 1393; Babar Parvez v. Muhammad Saad 2000 CLC 1134; M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453 and Messrs Unique Services, Sole Proprietorship Concern v. Occupant Owners Welfare Association 2003 YLR 466 ref.

Mazhar Jafri for Appellant.

S.M. Awan for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 908 #

2010 Y L R 908

[Karachi]

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

ZOHAIB HASAN---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-144 of 2008 decided on 21st March, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational' institution---Admission---Petitioner applied for admission and passed his written aptitude test, but his name was not mentioned in the final list of the successful candidates---Validity---Contention of authorities was that out of 1050 candidates who applied and appeared in the aptitude test only 126 candidates qualified the same---Since almost all of them had given their first choice of the subject (MBA) all the 126 candidates were required to appear in interviews for the said subject---First 50 candidates were granted admission in MBA, whereas petitioner was at serial No.77 of the list of successful candidates---Petitioner had never mentioned his substitute subject and had applied for MBA only---Petitioner could not be admitted in MPA---Counsel for the petitioner, had raised new grounds without having any substance---Counsel for the authorities had clearly replied to all the queries raised by the counsel for the petitioner---Constitution petition was dismissed.

Muhammad Shahzad Qazi v. Chairman Joint Admission Committee, Khyber Medical College Ayub Medical College and 2 others 1998 MLD 1243; Hamza Khan v. Province of Balochistan through Secretary, Department of Education, Civil Secretariat, Quetta and others 1995 SCMR 711; Chairman, Selection Committee Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmed and another 1997 SCMR 15 and The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works 1994 SCMR 1548 ref.

Izhar Alam Farooqi for the Petitioner.

Muhammad Tasneem and Asif Mukhtar, Law Officer for Respondents Nos.2 and 3.

Date of hearing. 7th March, 2008.

YLR 2010 KARACHI HIGH COURT SINDH 926 #

2010 Y L R 926

[Karachi]

Before Ms. Rukhsana Ahmed, J

TANZIL-UR-REHMAN---Plaintiff

Versus

Mst. SEEMA BEGUM and 13 others---Defendants

Suit No.1137 and C.M.A. No.7285 of 2005, decided on 26th January, 2010.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Suit for declaration, possession and grant of interim injunction---Absence of plaintiff---Plaintiff admitted in plaint that his father along with other co-owners sold out his respective share to defendants under a registered conveyance deed---Plaintiff alleged that defendants were interfering into legal rights of plaintiff in respect of his share in suit property---Validity---Plaintiff apart from losing interest in pursuing the case had shown no cogent reason to support his prayer in application and failed to prove his claim over suit property---If plaintiff had any grievance, the remedy was to be directed against his own father who had sold the property to defendants---Application was dismissed in circumstances.

Kh. Shamsul Islam for Defendants.

YLR 2010 KARACHI HIGH COURT SINDH 952 #

2010 Y L R 952

[Karachi]

Before Amir Hani Muslim, J

Messrs MUHAMMAD JUNAID ---Plaintiff

Versus

KARACHI ELECTRICITY SUPPLY CORPORATION LTD.---Defendant

Suit No.434 of 2002 and C.M.As. Nos.6886, 4236, 2557 of 2009, 7392, 7393 of 2004, 5678, 6508 of 2005 and 7664 of 2007, decided on 28th January, 2010.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Electricity Act (IX of 1910), S.26---Partnership Act (IX of 1932), S.69---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration and permanent injunction filed by consumer (an unregistered firm) against Electric Supply Corporation---Removal of plaintiff's meter by defendant-Corporation without recourse to provisions of S.26 of Electricity Act, 1910---Application for rejection of plaint by an unregistered firm not barred by S.69 of Partnership Act, 1932---Defendant-Corporation was a public authority for being governed by and discharging its duties under Electricity Act, 1910---Any act in defiance of provision of said Act would be construed as a breach of statutory obligations, which could not be termed as breach of licence agreement entered into between the parties---Word "contract" used in S.69 of Partnership Act, 1932 was not synonymous to word "statutory obligation'', but had distinct meaning---Prohibition of filing of suit by an unregistered firm as contained in S.69 of Partnership Act, 1932 would not apply to a suit filed by such firm for enforcement of statutory obligation of defendant---Application for rejection of plaint was dismissed in circumstances.

Province of West Pak. v. Asghar Ali Muhammad Ali & Co. PLD 1968 Kar. 196 and United Cotton Factory Hyderabad v. Ahmad Khan PLD 1969 (WP) Karachi 774 ref.

Muhammad Shafi Siddiqui for Plaintiff.

Rafiq Ahmed Kalwar for Defendant.

YLR 2010 KARACHI HIGH COURT SINDH 962 #

2010 Y L R 962

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

NASIR KHAN---Petitioner

Versus

MUHAMMAD LATIF KAMBOO and others---Respondents

Constitutional Petition No.D-2272 of 2009, decided on 26th January, 2010.

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

----S.152---Qanun-e-Shahadat (10 of 1984), Arts.85, 87 & 88---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election dispute---Forged Matriculation certificate--- Proof---Certified copies of public documents---Petitioner was declared disqualified by Election Tribunal on the ground that his Matriculation certificate was forged and respondent was declared as returned candidate---Plea raised by petitioner was that Election Tribunal did not conduct proper inquiry regarding genuineness of the certificate in question---Validity---Election Tribunal was convinced to hold that Matriculation certificate of petitioner was forged one and it was also on account of evidence of an official of concerned Intermediate and Secondary Education Board, who also confirmed the fact of forged Matriculation certificate of petitioner---Election Tribunal reached to such conclusion not only on the basis of oral evidence of witnesses but on the basis of availability of public document and their certified copies issued and produced in evidence before Election Tribunal in terms of Arts.85 and 87 of Qanun-e-Shahadat, 1984---Matriculation certificate was a pubic document in terms of Art.85 of Qanun-e-Shahadat, 1984 and certified copies of the same issued by concerned officials and agencies were to be treated as public documents and production thereof in evidence could not be objected in terms of Arts.87 and 88 of Qanun-e-Shahadat, 1984, and the same were admissible in evidence without proof---Order passed by Election Tribunal declaring respondent as successful and petitioner as unsuccessful candidate did not suffer from any factual error or legal infirmity and High Court declined to interfere in the same---Petition was dismissed in circumstances. ?

Ghulam Muhammad Lali v. Imtiaz Ahmed Lali PLD 2006 Lah. 661; Irshad Ahmed and 6 others v. Abdul Hameed and 4 others 1985 CLC 1513; Sher Qayam v. Mir Zaman Khan, Advocate PLD 2003 Pesh. 90; Aslam v. Additional District and Sessions Judge, Okara/Election Tribunal for Tehsil Chunian 2004 YLR 592 and Raja Binyamin v. District and Sessions Judge, Lahore 2003 YLR 1217 rel.

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

----Arts. 47 & 88---Public document---Certified copy---Presumption---Certified copy is poof of public document presumption in general is being attached thereto---Attested copy of public document is admissible in evidence without any objection in terms of Arts.47 and 88 of Qanun-e-Shahadat, 1984.?

Khan Bahadur and 2 others through his legal heirs v. Ahmad Khan and others 1992 SCMR 1362 rel.

Syed Saeed Hasan Zaidi for Petitioners.

Ms. Rubina K. Durrani and Ch. Khalid Rahim Arain for Respondents.

Date of hearing: 10th December, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 991 #

2010 Y L R 991

[Karachi]

Before Ms. Rukhsana Ahmad, J

Messrs MEHRAN METAL CONTAINERS (PVT.) LTD.---Plaintiff

Versus

NATIONAL REFINERY LTD. Defendant

Suit No.1395 of 1998 decided on 19th February, 2010.

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

----Ss.30 & 33, proviso [as omitted vide Arbitration (Amendment) Ordinance (XXVII of 1977)---Objection as to existence or validity of award---Failure of objector to deposit in court or furnish security for amount payable by him under award---Effect---Proviso to S.33 of Arbitration Act, 1940 having been omitted by Arbitration (Amendment) Ordinance, 1977, objection petition was maintainable.

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

----S.30---Award, setting aside of---Powers of court---Scope---Court while examining validity of award could not act as a court of appeal---Principles.

PLD 1996 SC 108, PLD 1998 Kar. 79 and 1999 CLC 1777 rel.

----S.30---Award, objections to---Powers of court---Scope---While hearing objection to award, court could not undertake reappraisal of evidence---Court could only interfere, if there was error apparent on face of record.

1999 CLC 1698 and 1998 CLC 1671 rel.

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

---Ss.14 & 30---Making of award as rule of court---Jurisdiction of court---Scope---Award in substance would generally oust jurisdiction of court except for purpose of controlling arbitrators and preventing misconduct and for regulating procedure after award---Finality would be attached to award passed in accordance with decision of arbitrator.

1993 CLC 804 ref.

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

----S.30---Application for setting aside of award---Mistake as to incorrect calculation of damages/losses suffered by objector, ground of---Validity---Such mistake would not materially affect decision made by arbitrator.

PLD 1985 SC 69; PLD 1996 SC 108; 1992 CLC 1138; AIR 1952 Calcutta 440; PLD 1978 Kar. 827, 1987 CLC 383; 2006 SCMR 614; 2006 MLD 907; PLD 1996 SC 737; PLD 1997 Quetta 87; 2001 MLD 1955; 2008 CLD 85 and 2005 CLD 1330 ref.

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

----S.30---Award, setting aside of---Scope--Only question of law could be agitated under S.30 of Arbitration Act, 1940---Court might not agree with arbitrator on any point, but could not impose its judgment over judgment of the arbitrator.

2002 CLC 492; 1999 CLC 1698; 1998 CLC 1671; PLD 1996 SC 108; PLD 1998 Kar. 79 and 1999 CLC 1777 ref.

Agha Faisal for Plaintiff.

Liaquat Merchant for Defendant.

Date of hearing: 1st February, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 1024 #

2010 Y L R 1024

[Karachi]

Before Tufail H. Ebrahim, J

PERAC RESEARCH AND DEVELOPMENT FOUNDATION (PRDF), KARACHI---Plaintiff

Versus

NATIONAL REFINERY LIMITED and 2 others---Defendants

Suit No.186 of 2008 and C.M.A. No.8914 of 2006, decided on 23rd November, 2009.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1, 2 & Ss. 94, 151---Suit for declaration, cancellation of documents, recovery, permanent injunction and award of damages---Application for interim injunction---Counsel for the plaintiff had contended that defendant, in terms of the previous arrangement and as associated and subsidiary of the plaintiff had contributed 26,035 square yards of premises on licence basis to the plaintiff on the terms and conditions set out in the licence agreement---Plaintiff, further contended that the cause of dispute gave birth during the finalization of privatization proceedings of defendant when a revised licence agreement was unlawfully and fraudulently executed between the defendant and the plaintiff through other persons who had no lawful authority to act on behalf of the plaintiff, who in fact, were the employees of defendant---Plaintiff also contended that a registered agreement could not be amended or modified or novated or replaced by unregistered agreement; and that in said revised agreement new clauses had been added and old clauses had been modified without the consent and approval of the Board of Trustees of the plaintiff, which clauses were detrimental to the rights and interest of the plaintiff and contrary to the original terms and conditions of the old agree?ment---Validity---Prima facie, the revised licence agreement had been executed with the knowledge of the Board of Trustees of the plaintiff; but the legality of the said revised licence agreement could only be determined after the evidence of all the parties were recorded---Defendant, in circumstances, was directed not to evict the plaintiff from the suit land till the final adjudication of the suit, subject to the plaintiff not committing any breach of the licence agreement; and further subject to the payment of the original licence fee to the plaintiff and deposit of the net revised licence fee with the Nazir of the court, including arrears, if any, till final adjudication of the suit---Plaintiff was further directed not to raise new construction or create any third party interest or encumber the suit land in any manner.?

Khalid Siddiqi for Plaintiff.

Salman Talibuddin for Defendant No.1.

Junaid Farooqui for Defendants Nos.2 and 3.

2010 Y L R 1201

[Karachi]

Before Muhammad Tasnim, J

MASROOR HUSSAIN---Petitioner

Versus

Shaikh ABDUL ZAHID and another---Respondents

Constitutional Petition No. S-71 and C.M.As. Nos. 933, 934 of 2010, decided on 8th March, 2010.

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

----Ss. 2(F)(i), 15(2)(ii)(vii) & 16(1)---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Ejectment of tenant on grounds of default in payment of rent and personal need---Tentative rent order---Denial of relationship of landlord and tenant---Respondent/landlord filed ejectment application against petitioner/tenant on grounds of wilful default in payment of rent and personal need---Landlord had purchased premises in question through registered instrument---Along with main ejectment application landlord also filed application under S.16(1) of Sindh Rented Premises Ordinance, 1979 for deposit of arrears of rent and future monthly rent by the tenant---Rent Controller accepting application filed by landlord under S.16(1) of Sindh Rented Premises Ordinance, 1979, directed tenant to deposit arrears of rent up to specified period and also to tender future monthly rent of the premises---Counsel for the tenant had submitted that the tenant had filed suit for cancellation of documents and permanent injunction whereby he had sought cancellation of sale-deed executed in favour of respondent/ landlord---Contention of counsel for the tenant was that Rent Controller should not have passed the impugned tentative rent order, till decision of suit pending in civil court---Validity---Said suit had no relevance with the proceedings before the Rent Controller---Said proceedings and proceedings before civil court, were to be decided on merits after recording of evidence of the parties---Rent Controller while disposing of the main ejectment case would also decide issue of ownership/landlordship of the tenement in question after considering the evidence on record---Thereafter tenant would get chance to challenge the findings of Rent Controller through appeal before the Appellate Court---No observation with regard to ownership of the tenement in question could be passed in proceedings and it would be open to the parties to raise all legal and factual pleas before the courts where suit and rent case were pending---Tentative rent order passed by the Rent Controller being in accordance with law which had protected the interest of the tenant; did not call for any interference under Art.199 of the Constitution---Constitutional petition was dismissed.

Syed Amir Ali Shah for Petitioner.

YLR 2010 KARACHI HIGH COURT SINDH 1275 #

2010 Y L R 1275

[Karachi]

Before Shahid Anwar Bajwa, J

Mrs. GHAZALA PARVEEN---Applicant

Versus

SADIQ DANIEL and 18 others---Respondents

Criminal Revisions Applications Nos.144 and 145 of 2009, decided on 25th January, 2010.

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

----S. 497(5)--- Cancellation of bail---Scope---Section 497 (5), Cr. P. C. does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life and even if grant of bail is prohibited under S. 497(1), Cr. P. C. ---Discretion is left with the Court under S. 497(5), Cr. P. C; which in pari materia with the principles which apply to setting aside the orders of acquittal.

Muzafar Iqbal v. Muhammad Imran Aziz and another, 2004 SCMR 231 ref.

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

----S.497(5)--- Cancellation of bail---Scope---Once bail is granted by a competent Court for valid reasons on consideration of material available before it, then the Court higher in rank shall exercise considerable restraint in interfering with such order, because liberty of a man is equally precious and a guaranteed one which cannot be disturbed except in accordance with law and according to the salutary principles laid down in this regard.

Haji Khan Sherin and another v. Siraj and another 2006 PCr.LJ 252 ref.

----S.497(5)--- Cancellation of bail---Grounds for cancellation of bail and discretion of the Court.

Bail can be cancelled when:

(i) Exceptionally strong grounds such as abuse/misuse of concession of bail exist;

(ii) A Court cannot cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. the discretion is left in the Court under section 497(5), Cr.P.C.

(iii) Grounds for cancellation of bail are pari materia with the principles which apply to setting aside the orders of acquittal.

(iv) Bail can be recalled where the person on bail repeats the offence;

(v) Hampers the investigation;

(vi) Makes some efforts to tamper with the evidence;

(vii) Commits some acts of violence against the police;

(viii) Prosecutes the witnesses;

(ix) Manages to flee away from the country or beyond the control of sureties.

(x) Order of bail has been obtained through misrepresentation or suppression of facts.

Muzafar Iqbal v. Muhammad Imran Aziz and another 2004 SCMR 231; Qasim Khan v. Sharafat Khan 2003 YLR 2910, Muhammad Azam v. The State 1996 SCMR 71; Nazar Muhammad v. The State and another 1997 PCr.LJ 277; Haji Khan Sherin and another v. Siraj and another 2006 PCr.LJ 252 and Muhammad Azam v. State 1996 SCMR 71 ref.

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

----Ss.497(5) & 439---Penal Code (XLV of 1860), Ss. 354-A/337A(i)/147/148/149/ 506---Criminal assault on woman and stripping her of her clothes, causing hurt (Shajjah), rioting and criminal intimidation---Bail, cancellation of---Sessions Court had granted bail before arrest to accused under the impression that S. 354-A, P.P.C. was not included in the offences alleged against them, though the same had already been brought on record--Order granting bail in oblivion of an offence alleged against the accused would suffer from a mistake which would go to the root of allegations---Effect of the statements of fifteen witnesses in favour of accused which would be a defence plea and the question whether the door was broken by the accused or not, related to deeper appreciation of evidence and the same could not be gone into at bail stage---Propriety had demanded the scrutiny of the merits of allegations in the case;--Role of every one of the eighteen accused was not identical---As far as 5.354-A, P.P.C. was concerned, one respondent had allegedly commanded the other respondent to strip the complainant, other respondents had allegedly respectively pulled up shirt and pulled down shalwar of the complainant, yet the other one had allegedly bit the complainant on her shoulder, while the other respondents were cam followers or bystanders, who made hay of insult and disgrace of the complainant while sun of infamy was shining---Bail applications of the said respondents were consequently dismissed and interim bail granted to other respondents was confirmed in circumstances---Revision petitions were disposed of accordingly.

Sarfraz Khan v. The State and 2 others PLD 1988 SC 726 rel.

Zaitoon v. Muhammad Riaz and 3 others, PLD 1996 Pesh. 30; Allah Ditta and another v. The State 2003 MLD 1848; Naveed v. The State, 2004 YLR 2392; Mst. Qudrat Bibi v. Muhammad Iqabl and another, 2003 SCMR 68; Gul Zaman alias Gulla v. The State and another 2004 YLR 3335; Muhammad Safdar and others v. The State, 1983 SCMR 645; Arif Mateen Bhutta v. The State PLD 1984 Lah. 383; Sultan Ahmed v. Malik Niamat Hussain and another 1988 PCr.LJ 836; Muhammad Boota v. Abdul Hameed and 3 others, 2004 PCr.LJ 1447; Darya Khan v. Pasham Khan and another PLD 2005 Pesh. 183; Muhammad Shahzad Siddiq v. The State and another PLD 2009 SC 58; Muzafar Iqbal v. Muhammad Imran Aziz and another 2004 SCMR 231; Qasim Khan v. Sharafat Khan 2003 YLR 2910; The State v. Rashid Ahmed and another 1988 SCMR 1129; Mehr Ghulam Nabi v. Muhammad Shafique and another 1979 SCMR 479; Rashid Hussain v. The State 2003 YLR 1191; Shahnaz Bibi v. Gul Khan alias Haji Khan and another 1999 PCr.LJ 868; Piaro v. The State and another 1984 PCr.LJ 149; Nazar Muhammad v. The State and another 1977 PCr.I,J 277; State through Advocate-General, N.-W.F.P. v. Zubair and 4 others, PLD 1986 SC 173; Jamaluddin v. The State, 1985 SCMR 1949; Fatah Muhammad v. Raja Khan and another PLD 1981 SC 347; Haji Khan Sherin and another v. Siraj and another 2006 PCr.LJ 252; Aurang Zaib and 3 others v. The State 2009 PCr.LJ 1169; Muhammad Azam v. The State 1996 SCMR 71 and Asmatullah Khan v. Bazi Khan and others PLD 1980 SC 621 ref.

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

----S.497(2)--- Bail--- Further inquiry--Meaning---Case requiring further inquiry means that the material available to connect the accused with the alleged offence still has gaping holes which need to be filled and unanswered question or question which could be logically raised qua such connection between the accused and the offence, or dark spots, which have not yet received any or sufficient light from investigation.

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

----S.498--- Pre-arrest bail--- Ulterior motives---Valid consideration for grant of pre-arrest bail---Arrest for ulterior motives such as humiliation and unjustified harassment are valid considerations for grant of pre-arrest bail.

Jamaluddin v. The State 1985 SCMR 1949 ref.

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

----S.497 Bail---Principle---Court has to carve a balance and tread a path of moderation---Justice must be done to both the parties---While it is justice to provide relief to a wronged one, it is equally a justice to punish a wrong doer---Mere fact that by arrest a person would be humiliated would be no ground for grant of bail---Bail must be granted, refused or cancelled on the basis of merits of the case, the law and paradigms established by the superior Courts and on no other extraneous considerations, be they be of the nature of a sense of outrage against the accused or sense of pity on the accused.

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

----S.498---Pre-arrest bail---Scope---Right of pre-arrest bail is limited to Exceptional and rare cases, which are based on mala fides/enmity or where no offence is shown to have been committed on the bare reading of the F.I.R.

Muhammad Azam v. The State 1996 SCMR 71 ref.

Ms. Benish Qureshi for Applicant.

Dr. Farogh Naseem for Respondents Nos.2, 9 and 18.

Shoukat Hussain Zubedi for Respondents Nos. 1, 3, 4 and 5.

Iqbal Khurram for Respondents Nos. 6, 7, 12, 13, 14, 15 and 17.

Usman Farooq Baig and Denial Bakhsh for Respondent No.8.

Jawaid Akbar for Respondent No.10.

Abdullah Rajput, Assistant Prosecutor General for Respondent No.19.

Date of hearing: 3rd December, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 1317 #

2010 Y L R 1317

[Karachi]

Before Muhammad Athar Saeed, J

MUHAMMAD ASER JAN---Petitioner

Versus

BILQUIS BEGUM and 3 others---Respondents

Constitutional Petition No.S-540 and C.M.A. No. 3602 of 2005, decided on 20th February, 2006.

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

----S. 13---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition--Res judicata---Principle of---Applicability--Scope---Landlord filed three applications before the Rent Controller first application was withdrawn by landlord, during hearing of the second application, tenant filed an application under S.11 C.P.C. for rejection of application on the basis of res judicata---Rent Controller dismissed application of the tenant---Appeal filed by tenant was also dismissed by appellate court---Contention of the landlord was that doctrine of res judicata would not be applicable to the proceedings under Sindh Rented Premises Ordinance, 1979---Validity---High Court in its constitutional jurisdiction could not examine the facts of the case---High Court allowed the constitutional petition and remanded the case to appellate court to examine the ground raised by the tenant in appeal relating to the applicability of res judicata in light of facts and circumstances and to decide the same in accordance with law, within a period of three months---Constitutional petition was disposed of accordingly.

1999 CLC 1102; PLD 1982 SC 201; PLD 1985 SC 220; 1998 MLD 894 and Gatron Industries Limited v. Government of Pakistan and others 1999 SCMR 1072 ref.

Tanweer Ahmed for Petitioner.

G.M. Saleem for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 1322 #

2010 Y L R 1322

[Karachi]

Before Gulzar Ahmed and Irfan Sadat Khan, JJ

THE STATE/ANTI NARCOTICS FORCE through Deputy Director (Law), Karachi---Appellant

Versus

MUHAMMAD ADEEL HUSSAIN and another---Respondents

Criminal Acquittal Appeal No.242 and M.As. Nos. 4264, 4265 of 2009, decided on 27th January, 2010.

Limitation Act (IX of 1908)---

----Art. 157 & S.5---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 46 & 48---Criminal Procedure Code (V of 1898), S. 417---Possessing narcotics--Appeal against acquittal-Limitation--Condonation of delay, application for---Appeal against order of acquittal was filed with delay of 17 days along with application for condonation of delay---Applicant had neither given any plausible or justifiable reasons for delay in filing appeal, nor had explained delay of each day---Appellant having not been able to make out a case for condoning the delay in filing of the appeal, appeal and application for condonation of delay were dismissed.

Munawar Hussain alias Boby & 2 others v. The State 1993 SCMR 785 and Muhammad Sharif v. Jamshed Ali PLD 1966 Lah. 471; Amal Sherin and another v. The State PLD 2004 SC 371; Fatima Bibi and 5 others v. Sardar Ali and 3 others 2002 PCr.LJ 668; The State Through A.G. Sindh v. Ameer Bux 1981 SCMR 410; Nazar v. The State 1968 SCMR 71; Jalal Khan v. Lakhmir 1968 SCMR 1345, Muhammad Khan v. Sultan 1969 SCMR 82; Nur Muhammad v. The State 1972 SCMR 331; Government of the Punjab v. Muhammad Saleem PLD 1995 SC 396 and WAPDA v. M. A Rahid 2001 SCMR 722 rel.

Muhammad Ali Waris, Special, Prosecutor, ANF for the State.

YLR 2010 KARACHI HIGH COURT SINDH 1329 #

2010 Y L R 1329

[Karachi]

Before Shahid Anwar Bajwa, J

Syed WASIM SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 280 of 2009, decided on 19th November, 2009.

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

----Ss.561-A, 249-A & 265-K---West Pakistan Arms Ordinance (XX of 1965), S.13---Quashing of proceedings by High Court---Scope---Recovery of arms and ammunition---Application for quashing of F.I.R.---If accused instead of moving Trial Court directly would come to High Court under S.561-A, Cr.P.C., no bar or fetters existed on the power of High Court to entertain the application, when the case was made out for quashing of proceedings against applicant/accused---Powers of the High Court under S.561-A, Cr.P.C. were co-extensive with the power of the Trial Court under S.249-A, Cr.P.C. or as the case may be under S.265-K, Cr.P.C.

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

----S. 13--- Recovery of arms---Appreciation of evidence---Two F.I.Rs. were registered against accused and on second F.I.R. accused had -been acquitted under S.265-K, Cr.P.C.---Role assigned to accused in the first F.I.R. was direct, whereas in the second F.I.R. it was merely stated that on his pointation arms were recovered from the Bus---Second F.I.R. did not show the allegation that either accused was driver or had any dominion over the Bus---Acquittal of accused in second F.I.R. would not have effect on the case against him in the first F.I.R.---Incident of second F.I.R. was different and distinguishable---Case, in the first F.I.R. must proceed on its own merits---Charges had already been framed against accused and it was for the Trial Court to pronounce upon the guilt or innocence of accused.

Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293; Syed Muhammad Awais Shibli v. The State 1995 MLD 601; Mian Munir Ahmad v. The State 1985 SCMR 257; Ch. Gulzar Ahmad and another v. The State and another 2004 YLR 1321 and Ali S. Habib and another v. S.H.O. Margalla Police Station Islamabad and 3 others 2003 YLR 2126 ref.

M.P. Owais Ansari for Applicant. .

Zafar Ahmed Khan, Addl. Prosecutor-General for the State.

Date of hearing: 20th October, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 1357 #

2010 Y L R 1357

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD ARSHAD AFRIDI--- Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 77 of 2009, heard on 10th November, 2009.

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

----Ss.190 & 173---Final report of police officer---Scrutiny by Magistrate---Extent and scope---Magistrate while scrutinizing report under section 173, Cr. P. C. and passing an order thereon does not act as a court of law and his order is only an administrative order, which must be a speaking order giving valid reason for the conclusion; administrative nature of the order of Magistrate does not mean that he can act arbitrarily, the same may not be a judicial order but it must be a judicious order; Magistrate has power to disagree with the conclusion recorded in the police report; where Magistrate disagrees with the report, he has the option of ordering further inquiry or to take cognizance under section 190, Cr. P. C; Magistrate cannot order cancellation of an F.I.R. relating to an offence triable by a Court of Session, and Magistrate must consider the record of investigation conducted by the Investigating Officer.

Bahadur and another v. The State and another PLD 1985 SC 62; Dawood Khan and 8 others v. Ahsan-ur-Rehman 2006 MLD 663; Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518; Amir Abdullah Khan v. Additional Sessions Judge, Mianwali and another 2007 YLR 208; Federation of Pakistan and another v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Waqarul Haq v. State 1988 SCMR 1428; Falak Sher v. State PLD 1967 SC 425 and Sardar Ali and others v. The State PSLA No.66 of 1966 ref.

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

----Ss.457/395---Criminal Procedure Code (V of 1898), Ss.173 & 561-A---Quashing of orders---Magistrate after having disagreed with the police opinion to dispose of the case under `B' class had directed the Investigating Officer to submit challan against the accused in the court according to law---Validity---Names of witnesses had been given in the F.I.R. who had supported the version of the complainant regarding the incident---Police officials were to be involved in the case---Police for two months after lodging the F.I.R. did not act and the complainant had to approach the Judicial Magistrate for getting the F.I.R. lodged---Police officers were alleged to have committed a cognizable offence--- Order of the Magistrate was a speaking order---Magistrate while acting not as a court was not required to hear the complainant, but if on his own he had heard the complainant or his counsel who was present in court or who otherwise had requested to be heard, particularly when accusation were against police officials, then no prejudice should be deemed to have been caused to the police in the peculiar and exceptional circumstances of the case---No prejudice was demonstrated to have been caused by the said hearing of the Magistrate---No material was available to assist the court in scrutinizing police papers or to attempt to tangentially veer the court---Magistrate, thus, had not opened his own inquiry---Impugned orders was maintained and the petition was dismissed in circumstances.

Bahadur and another v. The State and another PLD 1985 SC 62; Dawood Khan and 8 others v. Ahsan-ur-Rehman 2006 MLD 663; Ch. Muhammad Ashraf v. The State 2006 PCr.L.J 518; Amir Abdullah Khan v. Additional Sessions Judge, Mianwali aid another 2007 YLR 208; Federation of Pakistan and another v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299,; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63;. Waqarul Haq v. State 1988 SCMR 1428; Falak Sher v. State PLD 1967 SC 425 and Sardar Ali and others v. The State PSLA No.66 of 1966 ref.

Aamir Mansoob Qureshi for Applicant.

Imtiaz Ali Jalbani Assistant Prosecutor General for the State.

YLR 2010 KARACHI HIGH COURT SINDH 1383 #

2010 Y L R 1383

[Karachi]

Before Faisal Arab, J

KIRAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 9 of 2010, decided on 29th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(1), second and third provisos [as inserted by Criminal Procedure Code (Amendment) Ordinance (XXXII of 2009)]---Penal Code (XLV of 1860), Ss.376-A & 342/34---Wrongful confinement---Grant of bail to woman---Second and third provisos as inserted to S.497(1), Cr.P.C. through amendment, had entitled a woman accused to be released on bail, unless reasonable grounds existed for believing that she was guilty of the offences like terrorism, financial corruption and murder, that were punishable with death sentence, life imprisonment or imprisonment up to ten years---If such was not the case, accused woman would be entitled to bail---In the present case, accused was a woman and alleged offences against her were not chargeable with any of the three categories of offences punishable with death sentence or the life imprisonment or imprisonment up to ten years---Accused woman, as of right had become entitled for bail under S.497(1), provisos, Cr.P.C.

Dilbar Ejaz. for Applicant.

Imtiaz Ali Jalbani, Assistant P.G.

YLR 2010 KARACHI HIGH COURT SINDH 1388 #

2010 Y L R 1388

[Karachi]

Before Shahid Anwar Bajwa, J

SHAHNAWAZ through legal heirs--- Applicant

Versus

ALI NAWAZ and others-Respondents

Civil Revision Application No.S-15 of 2004, decided on 22nd February, 2010.

(a) Islamic Law---

---Pre-emption---Making of Talbs---Plaintiff claimed right of pre-emption on the ground that suit property was adjacent, contiguous and connected with his house in which he was residing with his family for the last 17 years---Plaintiff had also claimed that he had made Talbs in accordance with law---Trial Court decreed the suit filed by the plaintiff, but Appellate Court set aside judgment and decree passed by the Trial Court---Validity---Plaintiff had fully proved that suit property was adjacent, contiguous and connected with his house--Plaintiff, in circumstances, had fully proved his right of pre-emption in respect of suit property being `Shafi-ul-Jaar' (owner of adjacent property).

(b) Islamic law---

----Pre-emption---Plaintiff in the plaint had stated that he had made Talb-i-Muwathibat at the same time and on the same day in presence of two witnesses he made Talb-i-Ishhad---Plaintiff appeared as his own witness and also produced two witnesses to prove making of Talbs in accordance with law---Both witnesses who proved making of Talbs by the plaintiff, remained unshaken in cross-examination---Plaintiff had fully established that not only the suit property was liable to be pre-empted but also he exercised both his Talbs in accordance with the requirements of the law---Judgment and decree of Appellate Court was set aside and that of the Trial Court were upheld.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Khani Zaman v. Shah Hussain PLD 1998 SC 121; Allah Dad v. Bashir Ahmed and another, PLD 2003 SC 488 and Sawan v. Abdullah, PLD 1998 Kar. 111 and Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 ref.

Illahi_ Bux M. Kehar for Applicant.

Gulab Rai C. Jessrani for Respondents.

Date of hearing: 22nd February, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 1418 #

2010 Y L R 1418

[Karachi]

Before Faisal Arab, J

ABDUL WAHAB---Petitioner

Versus

Mrs. SHAHANA NASIM--- Respondent

Civil Suit No.1207 of 2005, decided on 2nd March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Suit for specific performance of contract, declaration, damages and permanent injunction---Parties, in the present case, entered into an agreement to sell property for a total sale consideration of Rs.15,400,000---Plaintiff paid Rs.3,000,000 at the time of execution of sale agreement and the remaining balance sale consideration was to be paid on or before stipulated date---Plaintiff had sought extension in the period of payment; when defendant through her counsel wrote letter and asked the plaintiff to complete the transaction and make payment of balance sale consideration, the plaintiff in response sought deduction of Rs.1,500,000 as penalty; and stated that he would only be paying Rs.10,900,000 instead of the balance sale consideration of Rs.12,400,000-Basis of plaintiff's claim that transaction was not completed owing to non-supply of the copies of documents, was not established from the evidence and the plaintiff vide his letter, even sought reduction in the balance sale consideration, which had further proved that the plaintiff was not ready and willing to perform his part of obligation in its entirety---Plaintiff sought extension in the period for making payment of the balance sale consideration; which had established that he failed to arrange funds within the stipulated time to complete the transaction--- Plaintiff therefore, had disentitled himself from seeking relief of specific performance---In a contract of sale, if a purchaser would fail to perform his part of obligation and contract provided that upon such failure the earnest money would be liable for forfeiture, then the seller was entitled to forfeit the same--Such right of forfeiture was a kind of liquidated damages arising front the failure of the purchaser to honour the contractual obligation---Purchaser must face the consequences of his breach by paying monetary compensation for such breach as provided in the agreement---°n account of failure of the purchaser to complete the transaction, the seller could have also suffered some losses and would entitle the seller to forfeit specified suns without proving such losses---Defendant having failed to establish that she suffered any loss, counsel for the defendant had stated that defendant was ready and willing to return the entire amount of earnest money (Rs.3,000,000) to the plaintiff within 30 days, but not the interest---Relief for specific performance was declined and the entire amount of Rs.3,000,000 was ordered to be returned to the plaintiff along with simple interest at the rate of 12% per annum.

Neel Keshav for Petitioner.

Raja Muhammad Safeer for Respondent.

Date of hearing: 2nd March, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 1459 #

2010 Y L R 1459

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 244 of 2007, decided on 23rd December, 2009.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Question was whether the used bullet matched the alleged recovered pistol---Nothing was proved against accused; it could be concluded that as far as crime weapon/pistol was concerned, firstly that it had not been proved that said pistol was used in the commission of the crime and secondly recovery of the pistol from accused was doubtful---However, dying declaration had remained unshaken and could not be washed away---Accused had been proved guilty of having committed the crime alleged against him, considering the fact that crime weapon had not been recovered and sole testimony was the dying declaration; and that motive had not been unambiguously established, sentence of imprisonment for life was reduced to rigorous imprisonment for 10 years while the judgment of the court below was maintained in other respects.

Mehmoodul Hassan for Appellant.

Ms. Rahat Ehsan, D.P.-G. for the State.

Date of hearing: 2nd December, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 1472 #

2010 Y L R 1472

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD RAMZAN---Applicant

Versus

IST ADDITIONAL DISTRICT AND SESSIONS JUDGE and 3 others---Respondents

Criminal Revision Application No.141 of 2008, decided on 23rd December, 2009.

Penal Code (XLV of 1860)---

----Ss.452/386/392/365/353/109/34---House trespass, extortion, robbery, kidnapping, deterring public servant from discharge of his duty by using criminal force, abetment--- Dismissal of private complaint--- Validity---Statement of the complainant recorded under S. 200, Cr.P.C. and statements of witnesses recorded under S.202, Cr.P.C. were available before the Trial Court, which at such stage essentially had to see whether, prima facie, allegations against the accused were made out or not---It was not the stage for deeper appreciation of evidence or for giving benefit of doubt to accused---Private complaint was very clear, which was supported by the aforesaid statements of the complainant and other witnesses in material aspects, at least to the extent of establishing a prima facie case against the accused---Impugned order dismissing the complaint was, consequently, set aside and the matter was remanded to Trial Court with the direction to take cognizance, issue summons to accused persons and proceed with the trial in accordance with law---Revision petition was accepted accordingly.

Ilyas Mehmood for the Petitioner.

Muhammad Shafi Rajput for Respondent No.3.

Date of hearing: 23rd December, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 1486 #

2010 Y L R 1486

[Karachi]

Before Muhammad Tasnim, J

KHALIL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.167 of 2010, decided on 12th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Further inquiry---Prosecution had failed to produce any evidence which could connect accused with commission of offence---No recovery of any arm was effected from accused---Delay of twelve hours in lodging F.I.R. and explanation put forth by the prosecution was not tenable---Neither any recovery was made nor any role was assigned to accused, nor any recovery of robbed property was made from accused---Prima facie, a case of further inquiry having been made out, accused was admitted to bail, in circumstances.

Asif Raza v. The State 2006 PCr.LJ 1628; Wasim Riaz v. The State 2004 PCr.LJ 668; Nazeer Hussain v. The State 2007 PCr.LJ 946 and Abdul Sattar v. The State 2008 MLD 679 rel.

Muhammad Tahir Nizamani for Applicant.

Muhammad Iqbal Awan, Asstt. P.-G. of Sindh along with A.S.-I. Muhammad Mithal.

YLR 2010 KARACHI HIGH COURT SINDH 1505 #

2010 Y L R 1505

[Karachi]

Before Arshad Noor Khan, J

HOT KHAN and 3 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.S-235 of 2008, decided on 13th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Haraabah---Application for quashing of order---Respondent/complainant lodged F.I. R. against the applicants/accused and CIA to which case was transferred for investigation, which submitted report praying therein for disposal of the F.I.R. in "B" class---Magistrate did not concede to said report and ordered to proceed with the matter and applicants had filed application for quashing of order passed by the Magistrate---Contention of counsel for the applicants/accused was that relative of the respondent committed offence against the applicant, F.I.Rs. were lodged against the respondents and one of the respondents as counter-blast had lodged the F.I.R. against the applicants just to extend benefit to his relative---Contention advanced by the counsel for the applicant seemed not to be attractive or even persuasive for the reason that offence, if any committed by the relative of the respondent, it could not be said that the said one respondent was in league with his relative in those offences, which they had allegedly committed---In absence of any allegation regarding league of the said one respondent with his relative in commission of that offence, it could not be said that he, just to extend benefit to his relative, had falsely lodged the F.I.R.---F.I.R. lodged by the respondent was an independent F.I.R. wherein specific allegations and role had been attributed which required thorough probe and enquiry for which Magistrate took the cognizance of the same wherein the charge had also been framed against the applicants---Even otherwise the Magistrate was not obliged to follow the opinion of Police Officials; and he had all the powers to examine the evidence brought before him while submitting the report in "B" or "C" class---Order passed by the Magistrate seemed not to be illegal or suffered from any infirmity---Application for quashing of order of Magistrate, was dismissed, in circumstances.?

Sardar Akbar F. Ujjan for Applicants.

Muhammad Hamza Buriro for Respondents.

Imtiaz Ali Soomro Asstt. A.-G.

YLR 2010 KARACHI HIGH COURT SINDH 1512 #

2010 Y L R 1512

[Karachi]

Before Mrs. Yasmin Abbasey, J

GHULAM AKBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.275 of 2008, decided on 11th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.392---Robbery---Interim pre-arrest bail, confirmation of---Apart from the other grounds urged by counsel for accused, delay of one and a half month in registration of the F.I. R., was sufficient which had not been satisfactorily explained by the prosecution---Interim pre-arrest bail granted to accused was confirmed on the same terms and conditions.

Muhammad Hamzo Buriro for Applicant.

Imtiaz Ali Soomoro, Asstt. A.-G. for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 1515 #

2010 Y L R 1515

[Karachi]

Before Khadim Hussain M. Shaikh, J

GHULAM SARWAR and others---Applicants

Versus

Mst. AAISHA and 21 others---Respondents

Civil Revision Application No.21 of 2007, decided on 8th April, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss.115 & 151---Suit for declaration and permanent injunction---Suit for declaration and permanent injunction having been dismissed by the Trial Court, plaintiffs filed appeal against judgment of the Trial Court---Pending appeal, four defendants filed application under S.151, C.P.C. praying therein that the case be remanded to the Trial Court and they could be allowed to file their separate written statements---Trial Court dismissed said application and applicants had filed revision application---Applicants had already been arrayed as respondents in appeal before the Appellate Court which was already fixed---Appeal being continuity of the original lis, once the appeal was admitted, the entire matter was reopened on facts and law; on admission of appeal by the Appellate Court, Appellate court had seizin of the whole case.

Abdul Rehman Bhutto for Applicants.

Irshad Ali Chandio for Respondents Nos. 1 to 6.

YLR 2010 KARACHI HIGH COURT SINDH 1527 #

2010 Y L R 1527

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD NAEEM SAJID---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Application No. 330 of 2009, heard on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S.561-A---West Pakistan Arms Ordinance (XX of 1965), Ss.13(d) & 16(b)---Recovery of arms---Quashing of Proceedings---Application for---Foreigner from whom pistol was recovered, had alleged that said pistol was given to him by the applicant/accused---Both accused were arrested and were remanded for four days---Foreigner was granted bail, but applicant was sent up for judicial trial---Judicial Magistrate while granting bail to the foreigner had stated that he, before leaving the country should obtain the permission from the court; however on the same day when said foreigner was released, he left Pakistan---Counsel for applicant/accused had contended that even if it was assumed that weapon/pistol was given by the applicant to said foreigner, there was no ammunition with it (pistol) and that said weapon could not be used---Contention did not carry any substance---Even a pistol which had no bullet could be used to terrorize others, because the other person facing the pistol did not know whether there was any bullet in it or not---Applicant/accused, however was at liberty to move appropriate application before the Trial Court for quashing of proceedings; which application, if moved would be decided by the Trial Court in accordance with the law.

Ch. Muhammad Ashraf v. The State 1990 PCr.LJ 347; Malik Nazim-ud-Din Nazim v. Government of Punjab and others 2001 MLD 94; Abdul Ghafoor v. State PLD 1982 Kar. 469; Ali Haider v. Ijaz Hussain Malik, District Magistrate, Rawalpindi and anothers 1968 PCr.LJ 127 and Qasim v. Commissioner, Sukkur Division and others 1989 PCr.LJ 189 ref.

Khawaja Shamsul Islam for Petitioner.

M. Iqbal Awan, A.P.G.

YLR 2010 KARACHI HIGH COURT SINDH 1555 #

2010 Y L R 1555

[Karachi]

Before Shahid Anwar Bajwa, J

ZIAUDDIN PATHAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 236 of 2008, decided on 24th December, 2009.

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

----Ss.561-A & 249-A---Penal Code (XLV of 1860), Ss.420/466/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating, forgery of record of court and using as genuine a forged document---Quashing of order---Application for---Application filed by accused under S.249-A, Cr.P.C. for his acquittal having been dismissed by the Trial Court, accused filed application under S. 561-A, Cr.P.C. for quashing of said dismissal order---Act of wrong doing in the case was allegedly done somewhere in 2001---F.I.R. was registered on 20-12-2006; approval was given in December, 2008; and final challan was filed in January, 2009 which had spoken a lot about snail pace of bureaucratic work--Justice and fairness demanded that guilt or innocence of accused be decided at the earliest possible---Prolonged litigation was, in a sense, torture not only for accused, but also of the complainant and the prosecutor---Complainant had alleged that their property was in illegal possession of a person about whom the complainant had alleged that he had no title to that property---Application for quashing of order was dismissed and the Trial Court was directed to proceed with the trial with due dispatch.

(b) Interpretation of Statutes---

----All the Rules and Regulations were to foster the cause of justice and were to be used and interpreted in the aid of justice and not for thwarting or throttling or strangulating justice.

Abbad-ul-Husnain for the Applicant.

Shahzado Saleem Nahiyoon, A.P.G. for the State.

Date of hearing: 12th November, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 1566 #

2010 Y L R 1566

[Karachi]

Before Shahid Anwar Bajwa, J

S. SOHAIL HASAN through Attorney---Applicant

Versus

MIAN ABID MANZOOR and 9 others---Respondents

Criminal Revision Application No.120 of 2009, decided on 7th December, 2009.

Illegal Dispossession Act (XI of 2005)---

----Ss.3/4---Complaint failed by the petitioner against his illegal dispossession from the property by the respondents had been dismissed by Sessions Court on the ground of pendency of civil litigation between the parties---Validity---Complainant had allegedly been dispossessed from his property after promulgation of the Illegal Dispossession Act, 2005---Civil suits failed by both the parties qua the property in dispute against each other, could not deprive the complainant from the remedy available to him under the said Act---Illegal Dispossession Act, 2005, could not be checkmated by such devices and that could never be the intention of the Legislature---Owner or lawful occupier of the property could competently file the complaint by virtue of S.3 of the said Act---Impugned order was consequently set aside and the complaint was remanded to Trial Court for decision on merits in accordance with law.

Rahim Tahir v. Ahmed Jan and 2 others, PLD 2007 SC 423, Haji Taj Din and another v. Sh. Mujibullah and another, 2009 PCr.LJ 864 and Quaid. Johar v. Murtaza Ali and another, PLD 2008 Kar. 342 ref.

Muhammad Zahid for Applicant.

Mian Muhammad Akram for Respondents.

Muhammad Iqbal Awan, A.P.-G. for the State.

Date of hearing: 18th November, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 1580 #

2010 Y L R 1580

[Karachi]

Before Shahid Anwar Bajwa, J

Mst. ERAM and 4 others---Applicants

Versus

MUHAMMAD ADNAN CHOUDHRY and another---Respondents

Criminal Revision Applications Nos.158 and 305 of 2009, decided on 24th December, 2009.

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

----Ss.169, 170 & 173---Cancellation of F.I.R.---Powers of Investigating Officer and Magistrate---Investigating Officer can dispose of F.I.R. as cancelled if he finds the same false, founded on mistake of law or a dispute of civil nature or untraceable, after taking all necessary steps to the best of his endeavour and ability, but order of cancellation of F.I.R. must be obtained from a Magistrate competent to take cognizance of the offence and to try the case, or to send the matter for trial to higher Court.

Sufi Abdul Qadir v. The State and others 2000 PCr.LJ 520; Ghulam Shabbir v. The State 2000 PCr.LJ 1411; Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah. 680 and Ashique Hussain v. Sessions Judge, Lodhran and 3 others, PLD 2001 Lah. 271 ref.

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

----Ss.169, 170 & 173---Disposal of F.I.R. as cancelled only by the Magistrate having jurisdiction to take cognizance of the offence---Magistrate who is not competent to take cognizance of an offence, cannot concur with the police report and cannot cancel such an F.I.R.

Muhammad Zaffar Saleem v. The State, 2009 YLR 489; Abdul Qadir v. The State and others 2000 PCr.LJ 520; Ghulam Shabbir v. The State 2000 PCr.LJ 1411; Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah. 680 and Ashique Hussain v. Sessions Judge, Lodhran and 3 others, PLD 2001 Lah. 271 ref.

----S.173---Report of police officer to be examined judicially by Magistrate---Magistrate while exercising his powers under S.173, Cr.P.C. does not Act in a mechanical manner---Order of Magistrate must show his application of mind, his opinion must be supported by reasons and his conclusion must be laced with evidence showing application of judicial mind---Despite all this, order passed by Magistrate is not a judicial order, but is an administrative order, however, it must be a judicious order.

Bahadur and another v. The State and another PLD 1985 SC 62, Mushtaq Raj v. Magistrate 1st Class and others , 1994 PCr.LJ 497 and Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 ref.

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

----S. 439---Revisional jurisdiction---Scope---Revisional jurisdiction has to be exercised to further cause of justice---Revisional Court, is not a "toothless paper tiger" and it can always exercise its powers to correct manifest illegality or to prevent gross miscarriage of justice---Revisional Court has to see whether the process of the Court is being used for the purpose of advancing cause of justice or whether the process is being used for miscarriage of justice---Revisional powers should not be used to throttle any litigation, but High Court should not hesitate to exercise such powers on reaching the conclusion that litigation is being used as a tool to victimize a particular person.

Abdul Rehman Bajwa v .Sultan and 9 others PLD 1981 SC 522; Anwar and another v. Crown PLD L955 FC 185; Mushtaq Raj v. Magistrate Ist Class and others 1994 PCr.LJ 497; Asghar Ali v. The State Through Pakistan Coast Guards, Karachi, 1991 MLD 228; Karamat Hussain v. Faraqat Hussain and 20 others, 1988, PCr.LJ 2421; Mahr Mukhtar Ahmad and another v. S.11.0., Police Station Rangpur and 3 others 2005 YLR 1876 and Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 ref.

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

----S.561-A---Inherent power of High Court---Scope---Power under S.561-A, Cr.P.C. can always be used to prevent abuse of process of any Court or to secure ends of justice.

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

----Ss. 324/337-J/34---Attempt to commit Qatl-e-amd, causing hurt by poison---Trial

Court had summoned the accused in the compliant to face the trial---Validity---No

role or any specific act had been attributed to the four relatives of the main accused

in the complaint, in the statement of the complainant under S. 200, Cr.P.C. or in any statement of any of the witnesses recorded under S.202, Cr.P.C.-Cr. P. C. ---Section 34, P.P.C, therefore, was not applicable to the facts of the case---Administration of poison by the accused wife to her complainant husband was not witnessed by anybody---Contents of food had not been sent to chemical laboratory for analysis---After alleged administration of poison, complainant had been quite alert and active while attending to his meeting, going to school and to Airport and, thus, was not hurt by the poison---According to medical opinion of the Hospital level of Benzoliazepine was marginally in excess of the limit i.e., 237-3, against limit-of 200 mg/ml, which was never fatal and was present in many medicines---Complainant had been declared normal and alert by the Hospital--None of the charges could be proved against the accused---Complaint filed by the complainant was dismissed in circumstances.

Shahida Begum and others v. Muhammad Ramzan and others, 2008 MLD 182; NLR 2006 Cr.160; M. Ashraf and others v. The State, PLD 2005 Lah. 85; Bahadur and another v. The State and another PLD 1985 SC 62; Mushtaq Raj v. Magistrate Ist Class and others , 1994 PCr.LJ 497; Abdul Rehman Bajwa v. Sultan and 9 others, PLD 1981 SC 522; Muhammad Rafique and another v. The State and another 1999 PCr.LJ 1848; Asghar Ali v. The State Through Pakistan Coast Guards, Karachi, 1991 MLD 228; State through Advocate-General, Sindh v. Asif Ali Zardari, PLD 1999 Kar. 144; Karamat Hussain v. Faraqat Hussain and 20 others, 1988, PCr.LJ 2421; Mahr Mukhtar Ahmad and another v. S.H.O., Police Station Rangpur and 3 others, 2005 YLR 1876; Arif Ali Khan and another v. The State and 6 others, 1993 SCMR 187; Muhammad Zaffar Saleem v. The State, 2009 YLR 489; Zafar Sarwar v. The State, 1969 PCr.LJ 181, M. Ashraf and others v. The State, PLD 2005 Lah. 85; Sufi Abdul Qadir v. The State and others v. 2000 PCr.LJ 520; Ghulam Shabbir v The State, 2000 PCr.LJ 1411; Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah. 680; Ashique Hussain v. Sessions Judge, Lodhran and 3 others, PLD 2001 Lah. 271 and Anwar and another v. Crown PLD 1955 FC 185 ref.

Khawaja Navid Ahmed for Applicants (in Cr.R.A. No.158 of 2009).

Muhammad Ilyas Khan for Respondent and others (in Cr. R.A. No.158 of 2009).

Muhammad Ilyas Khan for Applicant (in Cr.M.A. No.305 of 2009).

Khawaja Navid Ahmed for Respondent (in Cr.M.A. No. 305 of 2009) .

Saleem Akhtar, Add. P.-G. for the State (in both Cr.M.As.)

YLR 2010 KARACHI HIGH COURT SINDH 1610 #

2010 Y L R 1610

[Karachi]

Before Maqbool Ahmad Awan, J

Miss FAREEDA---Applicant

Versus

THE STATE---Respondent

Cr. B.A.No.S-610 of 2008, decided on 13th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497, Proviso fifth---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing narcotics---Bail, grant of---F.I.R. had alleged that accused a woman was apprehended and 5 Kgs of charas was alleged to have been recovered from her possession and that she was apprehended by complainant party on the pointation of co-accused who during the course of interrogation alleged that she had purchased the narcotics from the accused---Accused, in circumstances was in custody for the last more than 8 months; and trial had not been concluded--- Accused in circumstances was entitled to bail under fifth Proviso of S.497, Cr. P. C. ---Accused having made out a case for grant of bail, she was granted bail, in circumstances.

Rehmat Zaman and another v. The State 2008 MLD 1589; Nazir Ahmed v. The State 2004 PCr.LJ 27; Muhammad Essa v. The State PLD 2008 Kar. 112; Sayed Ghulam Mustafa v. The State 2007 PCr.LJ 139 ref.

Ishrat Ali Lohar for Applicant.

Amjad Ali Sahito, S.P.P. for ANF.

YLR 2010 KARACHI HIGH COURT SINDH 1629 #

2010 Y L R 1629

[Karachi]

Before Ghulam Sarwar Korai, J

Syed SAYEED HAMID ---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE another---Respondents

Constitutional Petition No. S-52 and C.M.A. No.284 of 2010, decided on 31st March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan (1973), Art.199---Constitutional petition---Habeas corpus petition---Respondent filed application under S.491, Cr.P.C. against the petitioner alleging that female minor was in illegal and unlawful custody with the petitioner and her custody should be handed over to respondent---Said application had been decided in favour of respondent---Validity---Relationship of the petitioner as husband of respondent was not disputed---Petitioner being father of minor could be natural guardian, but according to Islamic Law respondent being mother of female minor was entitled for the custody of minor---In absence of any illegality or irregularity in the order of the court below, petition against said order was dismissed.

Naziha Ghazali v. The State and another 2001 SCMR 1782; Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 (sic) 1 and Razia Rehman v. S.H.O. and others PLD 2006 SC 533 rel.

Ms. Shamim Akhtar for Petitioner.

Saathi Ishaque for Respondent No.2.

YLR 2010 KARACHI HIGH COURT SINDH 1647 #

2010 Y L R 1647

[Karachi]

Before Muhammad Ali Mazhar, J

Flt. Lt. (Dr) SHARIQ SAEED---Plaintiff

Versus

MANSOOB ALI KHAN and 5 others---Defendants

Suit No. 1774 of 2008, decided on 19th April, 2010.

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

----S.11---Res judicata, doctrine of---Essential principles---Essential principles of res judicata are that a relief which is or which can be claimed and prayed for by a litigant, through one recourse to law, cannot be claimed or prayed for again by the sane litigant before same forum---Principle of res judicata aims to save the court from being vexed repeatedly by a litigant for the same relief or for a relief which could have been claimed or prayed for by him in earlier action---In order to support plea of res judicata, former decision must have been on merits of question in issue in subsequent litigation and it should be inter se parties having same cause of action, subject-matter and claim---If anyone of such elements is missing, provisions of S.11 C.P.C. would not be applicable---Principle of doctrine of res judicata is that judgments and decrees bind only the parties.

Malik Gul Hassan and Co v. Federation of Pakistan through the Secretary, Ministry of Health Islamabad and 9 others 1995 CLC 1662 ref.

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

----O. VII, R.11---Rejection of plaint---Disputed questions of fact or law---Effect---In case of controversial questions of fact or law, provisions of O. VII, R.11, C.P.C. cannot be invoked---Proper course for court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law---Court may, in exceptional cases, consider legal objection in the light of averment of written statement but pleadings as a whole cannot be taken into consideration for rejection of plaint under O. VII, R. 11, C.P.C.

Karachi Transport Corpn, and another v. Muhammad Hanif and others 2009 SCMR 1005; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 and Saleem Malik v. Pakistan Cricket Board PCB and 2 others PLD 2008 SC 650 ref.

----S.3---Constitution of Pakistan (1973), Arts. 14 & 19---Defamation---Dignity of man---Freedom of speech---Principles---Freedom of expression is one of those fundamental rights which are considered to be the corner stone of democratic institutions---Right of free speech extends to all subjects which affects way of life without limitation of any particular fact of human interest and includes in the main term `freedom of expression'---Right of freedom of speech and expression carries with it the right to publish and circulate one's idea, opinion and views with complete freedom and by resorting to any available means of publication---Right of freedom of speech and expression is not unfettered and unbridled---Absolute and unrestricted such individual rights do not exist in any modern State and there is no such thing as absolute and uncontrolled liberty---While allowing freedom of speech and expression as a fundamental right, it is also provided under Art. 14 of the Constitution, that dignity of man, subject to law, the privacy of home are inviolable---Such principle is required to be extended further to the case where any defamation is caused, because human dignity, honour and respect is more important than comforts and necessities---No attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace other person, thereby diminishing, decreasing and de-grading dignity, respect, reputation and value of life---Provisions of Art. 14 of the Constitution, providing for dignity of man as a fundamental right, is the most valuable right---Dignity of man is not only provided by Constitution of Pakistan, but according to history and under Islam, great value has been attached to dignity of man and privacy of home---While exercising right of freedom of speech and expression, one has to keep in his mind that he has also a corresponding responsibility and duty to ensure that his freedom of expression or speech may not transgress limits of freedom beyond the boundaries of Art.14 of the Constitution.

Plato Films Ltd. v. Speidal 1961 A.C. 1090 and 1961 and 1 All. E.R. 876 ref.

(d) Defamation Ordinance (LVI of 2002)---

----Ss.3 & 9---Civil Procedure Code (V of1908), S.11 & O.VII, R.11---Rejection of plaint---Res judicata, principle of--Plaintiff was aggrieved of allegations made by one of the defendants in her suit for dissolution of marriage and filed suit for recovery of damages---Defendants sought rejection of plaint on the principle of res judicata as matter had already been decided in earlier suit for dissolution of marriage---Validity---Suit was not hit by res judicata as in criminal proceedings no F.I.R. was lodged by plaintiff or his aunt on account of any defamation under Ss. 500 or 501 P.P.C.---In fact, F.I.R. was lodged by aunt of plaintiff but plaintiff was not complainant in that case---Case of plaintiff was for recovery of damages on account of libel and main cause of action was against allegations levelled in the suit filed for dissolution of marriage by way of Khula, therefore, suit was not hit by principle of res judicata---Question regarding entitlement of plaintiff to claim any damages on account of his alleged defamation could only be decided once the appropriate issues were framed and evidence was recorded in the suit---Defendants had already filed their written statements and they would also be at liberty to raise their defence in accordance with Defamation Ordinance, 2002---High Court declined to reject plaint under O. VII, R.11 C.P.C.---Application was dismissed in circumstances.

Malik Gul Hassan and Co. v. Federation of Pakistan through the Secretary, Ministry of Health, Islamabad and 9 others 1995 CLC 1662; Province of Sindh and another v. Shams-ul-Hassan and others; 2009 MLD 1093 Karachi Transport Corpn, and another v. Muhammad Hanif and others 2009 SCMR 1005; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 and Saleem Malik v. Pakistan Cricket Board PCB and 2 others PLD 2008 SC 650 ref.

Nasir Maqsood for Plaintiff.

Syed Ansar Hussain for the Defendants Nos.1 to 6.

YLR 2010 KARACHI HIGH COURT SINDH 1660 #

2010 Y L R 1660

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

SAQIB ASGHAR SHAIKH---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.81 of 2010, decided on 14th April, 2010.

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

---Ss. 9(c), 14 & 15---Criminal Procedure Code (V of 1898), S.561-A---Possession of narcotics---Quashing of F.I.R. and proceedings, application for---Record had shown that no incriminating evidence was available against accused connecting him with the alleged crime in any manner whatsoever---Presence of accused with co-accused, if any, alone by itself, did not connect him with the alleged offence---Mens rea of accused was also not open to be established as the investigation was over and no evidence was collected to show that he had knowledge of the presence of the narcotic substance with co-accused; and that he had been a party to what role was said to have been played by co-accused in the case---Co-accused already stood acquitted under S.249-A, Cr.P.C. for want of incriminating evidence and such order had not been challenged in appeal by authorities---Case of accused was also likely to meet the same fate and ultimately, if the proceedings would go on, Court would not be able to convict accused in the crime in question for want of positive incriminating evidence; and proceedings, would bear and carry a status of futile exercise and abuse of process of law---Trial Court did not appear to have properly appreciated the material on record---Application filed by accused for quashing of F.I.R. and proceedings was allowed and proceedings culminating from F.I.R., stood quashed.

M.A. Kazi for Applicant.

Ashfaque Hussain Rizvi Special Prosecutor ANF for the State.

Date of hearing: 14th April, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 1666 #

2010 Y L R 1666

[Karachi]

Before Muhammad Ali Mazhar, J

JIAND RAI---Plaintiff

Versus

ABID ESBHANI---Defendant

Civil Suit No.812 of 2004, decided on 5th May, 2010.

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

----O.I, R.10---Necessary and proper party to proceedings, determination of---Test stated.

Necessary party is one, who ought to have been joined and in whose absence no effective adjudication can take place or decree passed, while proper party is the party whose presence is necessary before the Court in order to completely and effectually adjudicate upon and settled all questions involved in the suit. Only those persons are necessary or proper parties to the proceedings, whose interests are challenged in the suit and without their presence the suit could not be decided on merits. If a dispute in a suit can effectually be adjudicated in absence of person, such person is not a necessary party to be impleaded in the suit. The provision of O.I, R. 10, C.P.C. does not mean that any person, who has any distant or indirect relationship or connection with either the plaintiff or defendant ought to be joined as a party to the proceedings. A remote connection with the issue or party would not make a person as necessary party without whose presence the issue cannot be adjudicated and settled. Mere fact that person may, by some chance, become interested in claiming property adversely to plaintiff is no ground for his being so impleaded, because that would necessitate importation of facts not formed in the suit.

Rashid Ahmed v. Mst. Jiwan and others 1997 SCMR 171; Munaliza Fruit Juice Industries Ltd. v. Government of Sindh 1998 MLD 9; Khayaban-e-Iqbal Pvt.) Ltd. v. Mustafa Haji Muhammad 1996 CLC 1758 and 1 Sh. Manzoor Ahmed v. Mst. Iqbal Begum 989 SCMR 1949 ref.

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

----S. 12---Civil Procedure Code (V of 1908) O.I, R.10---Transfer of Property Act (IV of 1882), S.52---Suit for specific performance of sale agreement dated 26-4-2004---Necessary party---Application by intervener on basis of subsequent sale, agreement dated 16-2-2005 executed in his favour by vendor during pendency of plaintiff's suit---Validity---Subsequent agreement was hit by S.52 of Transfer of Property Act, 1882, even though no stay order of Court was in force at the time of its execution---Sale agreement would not confer any right in property, but aggrieved party could approach for its specific performance---Intervenor, in order to safeguard and protect his alleged interest on basis of subsequent agreement had not filed suit for its specific performance against vendor---Plaintiff's rights denied by vendor/defendant would be decided and not that of intervener---Agreement in favour of plaintiff was much earlier to alleged agreement relied upon by intervener, thus, plaintiff's rights would be first decided in terms of his agreement--Intervener had not claimed any right in suit property on basis of any registered deed---Intervener was not a necessary party as his presence would not be required for deciding issues involved in plaintiff's suit---Intervener would achieve nothing by joining plaintiff's suit---Such application was dismissed in circumstances.?

----S.52---Lis pendens, doctrine of----Object and scope stated.

The object and scope of doctrine of lis pendens as contemplated in section 52 of the Transfer of Property Act, 1882 is that neither party to litigation can alienate the property in suit so as to affect his opponent. The section is an expression of the principles of maxim "pendente lite nihil innovetur (pending a litigation nothing new should be introduced). This rule is an expression of the principle that pending a litigation nothing new should be introduced in it for avoiding adversely affecting the rights of the litigating parties. The true scope of section 52 of the Transfer of Property Act, 1882 does not prevent the vesting of title in transferee in a sale pendent lite, but only makes subject to the rights of other parties as decided in the suit. The doctrine of lis pendens is not simply based upon the principle that filing of suit is notice to the whole world, but moreso on public policy that no one should be allowed to affect right of parties pending decision of cause before a Court of law. If alienation of property pending litigation is accepted, then such act would amount to permitting endless multiple litigation thus completely destroying the doctrine of lis pendens.?

(d) Maxim---

----"Pendente lite nihil innoveture" (Pending a litigation nothing new should be introduced).?

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

----S.54---Specific Relief Act (I of 1877), S.12---Sale agreement---Validity---Sale agreement would not confer any right in property, but aggrieved party could approach Court for its specific performance.?

K.B. Bhutto for Plaintiff.

Farhatullah, for Intervener.

YLR 2010 KARACHI HIGH COURT SINDH 1674 #

2010 Y L R 1674

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

Dr. MUHAMMAD ABRAR YOUNUS through Superintendent and another---Petitioners

Versus

THE STATE---Respondent

Cr. Anti Terrorism Jail Appeal No.5 of 2008 and Sp. Anti Terrorism Jail Appeal No.29 of 2007, decided on 6th April 2010.

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

----S. 7(e)---Kidnapping for ransom---Appreciation of evidence---Benefit of doubt---Mobile telephone through which telephone calls with regard to kidnapping and demanding ransom money were received did not exist in the name of alleged abductee---Very evidence had created serious doubt as to whether there were mobile telephones with alleged abductee and his wife, in such eventuality considering of outgoing and incoming calls made of those mobile telephone numbers, became of little significance---Such piece of evidence of telephone calls said to have been received at the house of wife of alleged abductee or on her mobile telephone was inconsistent and did not corroborate the statement of wife of alleged abductee and could not be safely relied upon---Other major factor which had created a serious dent in the prosecution case was with regard to establishing of the fact of demand of ransom said to have been recorded on a cassette through Tape Recorder---Audio cassette though was produced in the court, but it never came to be played in the court nor was any evidence of expert witness to connect the voice recorded in audio cassette with that of accused, the alleged abductee and prosecution witness---Prosecution did not chose to have that prime corroborative evidence established in court by not playing the audio cassette and by not obtaining expert's opinion on it---Investigating Officer though was informed that ransom amount of Rs.40,000 was to be paid, but he took no steps for having the notes of ransom amount tainted or prepared their inventory, which was necessary to establish that the ransom amount recovered from accused was the same which was delivered by the wife of alleged abductee---Not having done so, it could not be said with surety that the ransom amount recovered from accused was the same which was delivered by the wife of alleged abductee---No independent person was examined by the Police who had gathered at the place of delivery of ransom amount and arrest of accused---Other evidence produced by the prosecution, did not prove the case of demand of ransom beyond reasonable doubt; and to that extent the prosecution had failed to establish the fact of demand of ransom for release of abductee---No medical report of the abductee suffering semi-conscious condition was available on record---Fact that alleged abductee previously knew accused person, could only led to conclusion that abductee had something against the accused, who was also a Doctor and his co-accused, to falsely implicate them in the case of his abduction for ransom---Case against accused was full of doubts and for giving benefit of doubt, it was not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about guilt of accused would make him entitled to its benefit, not as a matter of grace and concession, but as a matter of right---Prosecution had not been able to prove the case of abduction and making of demand and payment of ransom for his release beyond reasonable doubt---Accused being entitled to grant of benefit of doubt, impugned judgment passed by the Trial Court, was set aside and accused were directed to be released, in circumstances.

Asif Hussain v. State 2005 MLD 1911; Muhammad Akram v. State 2009 SCMR 230, Irshad Ali Alias Ishoo v. State PLD 2006 Kar. 178; Mursal Kazmi Alias Qamar Shah v. State 2009 SCMR 1410; Sheikh Muhammad Rashid v. Majid Nizami, Editor-in-Chief, the Nation and Nawa-e-Waqat, Lahore PLD 2002 SC 514; Shahid Alias Kaloo v. State 2009 SCMR 558; Sharafat Ali v. The State 1999 SCMR 329; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Abdul Razzaq for Appellants.

Khadim Hussain D.P.G. for the State.

Dates of hearing: 10th December, 2009, 26th January, 3rd, 17th February, and 2nd March, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 1697 #

2010 Y L R 1697

[Karachi]

Before Bhajandas Tajwani, J

MUHAMMAD SHAFI---Appellant

Versus

MUHAMMAD HANIF LAKHANI and 3 others---Respondents

Cr. Acqtl. Appeal No.283 and M. A. No.4703 of 2009, decided on 29th April, 2010.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss. 417 & 265-K---Illegal dispossession---Appeal against acquittal---Respondents/accused having been acquitted of the charge, appellant/ complainant had filed appeal against acquittal--Complainant and one of accused who were real brothers had three sisters and they all were co-owners of the Property in question by virtue of inheritance; and except the complainant, other co-owners claimed that they had sold the property---Complainant had also lodged criminal prosecution by lodging the F.I.R. for the same incident with different story and version and set of accused---Accused could not be tried or punished twice in respect of same alleged incident--Proceedings under the provisions of Illegal Dispossession Act, 2005, could not sustain before the Trial Court---Court could acquit accused at any stage under S.265-K, Cr.P.C.---If the Trial Court was of the opinion that provisions of S.265-K, Cr.P.C. were attracted, it could exercise the jurisdiction and discretion vested in it by acquitting accused at any stage of the case---Trial Court in the present case had considered the material before it and decided the fate of the case with reasons that the dispute was between brothers and sisters inter se on the property which was sub judice before the court in a suit---Rights of parties with regard to owners/tip and possession could only be determined in the said suit and pendency of proceedings before the Trial Court would have resulted in harassment and unnecessary humiliation as the same were to be faced as accused---No probability existed of respondents being convicted in the alleged offence and the Trial Court had rightly exercised the discretion at the proper time to secure the ends of justice---Appeal was dismissed.

Muhammad Arif for Appellant.

Anwar Ahmad for Respondents.

Abdul Rahman Kolachi, A.P.G. for the State

YLR 2010 KARACHI HIGH COURT SINDH 1703 #

2010 Y L R 1703

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

MUHAMMAD AYUB SHAIKH---Petitioner

Versus

CANTONMENT EXECUTIVE OFFICER and others---Respondents

Suit No.1271 of 2006, decided on 24th November, 2009.

Specific Relief Act (I of 1877)---

----Ss. 54 & 55---Suit for prohibition---Mobile phone tower as per Nazir's report, had been erected on a residential plot with generator---Nazir had reported that noise of generator apparently was not causing any disturbance, but in a residential area such activity was questionable---Counsel for the defendant had submitted that when the permission was granted, the area was not habitable, but later on it become habitable---Regulatory Authority needed no permission to discharge and perform its functions in accordance with law and action as could be warranted, could be initiated---Office was directed to fix all petitions questioning installation of cell phone towers on the same date and before the same Bench and needful should be done within three weeks.

Sardar Muhammad Yousuf Advocate for Petitioner.

Nazar Muhammad Jamali for Respondent No.1.

M. Ahsan holds brief for Faisal Kamal for Respondent No.3.

YLR 2010 KARACHI HIGH COURT SINDH 1707 #

2010 Y L R 1707

[Karachi]

Before Shahid Anwar Bajwa, J

MEHAR ALI---Applicant

Versus

CHAKAR and 3 others---Respondents

Criminal Misc. Application No.S-182 of 2009, decided on 23rd February, 2010

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 114 & 34---Qatl-e-amd and causing hurt by rash or negligent act---Bail, cancellation of---Application for---F.I.R. showed that two accused persons held the victim form arms and third one shot two fires from his double barrel gun, whereas medical report had revealed that there was one fire-arm injury---F.I.R. had stated that the fire-arm hit the deceased below the chin on neck, whereas no such injury was shown in the medical report---Was not logical that two persons would hold arms of another person so that someone could hit with a gunshot and then that gunshot was stated in the F.I.R. to have hit below the chin on the neck; whereas medical evidence stated that injury was on the head from left side---No doubt during bail proceedings, evidence was not to be deeply appreciated, but at the same time clear and strong contradiction in the evidence, could not just be glossed over even at such stage---Postmortem report, showed that death of deceased had occurred due to wound which entered from left side of the skull and exited from right side---If two persons were holding hands of the deceased, the fire should have hit from the front, whereas F.I.R. had stated that shot hit from the front below the chin on the neck and no injury below the chin on the neck was stated in the postmortem report---All such facts had turned the case into a case of further inquiry----Bail granted to the accused was not cancelled.

Abdul Hayee and 2 others v. The State 1996 SCMR 555; Mst. Fatima v. Abdul Majid 2004 YLR 200A YLR 400; Haji Gulu Khan v. Gul Daraz Khan 1995 SCMR 1765; Shafqatullah Qazi v. Karim Bux and others, 2001 MLD 215 and Bashir Ahmed v. The State PLD 1994 Kar. 462 ref.

Rashid Mustafa Solangi for Applicant.

Ali Nawaz Ghanghro, for Respondents Nos.1 to 3.

Nisar Ahmed G. Abro, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 1716 #

2010 Y L R 1716

[Karachi]

Before Shahid Anwar Bajwa, J

ALI RAZA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal Nos.81 of 2009, decided on 1st March, 2010.

Penal Code (XLV of 1860)---

----S.411/34---Dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Stolen motorcycle was found to be in possession of accused during their encounter with police---Evidence of the two S.H.Os. qua the said encounter was highly contradictory on very material aspects---Despite alleged continuous firing for 5/7 minutes, no empty was recovered from the place of occurrence---Pistols allegedly recovered from the accused were not sent to Forensic Science Laboratory for examination---No independent person was examined as a prosecution witness, although a number of persons were available at the spot---Prosecution case was full of doubts, benefit of which had to go to accused---Accused were acquitted in circumstances.

Mrs. Leela alias Kalpana Devi for Appellant.

Azizul Haque Solangi, Assistant Advocate-General for the State.

Date of hearing: 1st March, 2010.

2010 Y L R 1744

[Karachi]

Before Imam Bux Baloch, J

LIAQAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.129 of 2010, decided on 22nd March,2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/147/148, 149 & 504---Qatl-e-amd---Bail, grant of---Co-accused with the similar allegation had been granted bail by the Trial Court, while the request of accused had been declined---Following the rule of consistency, accused was also admitted to bail.

Muhammad Dawood and another v. The State 2008 SCMR 173 ref.

Asif Ali Abdul Razak Soomro for Applicant.

Ali Raza Pathan for the State.

YLR 2010 KARACHI HIGH COURT SINDH 1750 #

2010 Y L R 1750

[Karachi]

Before Mushir Alam and Muhammad Athar Saeed, JJ

ARBELO KALHORO---Petitioner

Versus

THE STATE---Respondent

C.P. No.D-1862 of 2009, decided on 17th September, 2009.

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

----S. 12(b)---Penal Code (XLV of 1860), Ss.324/114---Constitution of Pakistan (1973), Art.199---Constitutional petition---Attempt to commit qatl-e-amd---Keeping minor accused in inhuman condition and handcuffed---Petitioner who was alleged to be involved in crime causing injury to twenty six persons, appeared to be a minor and serious allegations levelled against him were doubtful---Officer who was pursuing the public litigation of minors had stated that petitioner was kept in inhuman condition and was handcuffed which was against the provisions of S.12(b) of Juvenile Justice System Ordinance, 2000---Petitioner had also complained that he was not served any water throughout the journey and was under threat of torture throughout---Looking at the tender age of the petitioner and his condition in the court, he was ordered to be released on executing personal bond.

Abdullah Khoso Provincial Manager Juvenile Justice (Sindh).

Muhammad Shafi Memon A.A.-G. Sindh.

Muhammad Qasim Jailer Sub-Jail Naushahro Feroze.

Imdad Hussain Mallah S.H.O. Bhirya City.

YLR 2010 KARACHI HIGH COURT SINDH 1753 #

2010 Y L R 1753

[Karachi]

Before Ahmed Ali Shaikh, J

MUHAMMAD NAWAZ and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-473 of 2009, decided on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-F(iii), 452, 147, 148 & 149---House-trespassing and causing injuries--Interim pre-arrest bail, confirmation of---No overt act was attributed to accused---Allegation levelled against co-accused did not find support from medical evidence in which only one injury had been shown---Allegation against accused was that he caused firearm injury, which had been opined by the Medico-Legal Officer as "Ghayr-Jaifah Mutalahimah", which was punishable upto three years and did not fall within the prohibitory clause of S.497, Cr. P. C. ---Since the parties were at daggers drawn since long and prior to that incident two F.I.Rs. had been lodged by accused persons against the complainant, false implication of accused person, in circumstances, could not be ruled out---Medical evidence did not corroborate the ocular version of the prosecution, on the contrary, it negated the version of the complainant---No sanctity could be attached to the version of the complainant---Interim pre-arrest bail earlier granted to accused, was confirmed, in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347 rel.

Riazat Ali Shah for Applicants.

Shahid Ahmed Shaikh, Assistant Prosecutor-General Sindh.

YLR 2010 KARACHI HIGH COURT SINDH 1770 #

2010 Y L R 1770

[Karachi]

Before Syed Pir Ali Shah and Khalid Ali Z. Qazi, JJ

NADEEM DETHO---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. D-10 and D-12 of 2008, decided on 11th February, 2009.

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

----Ss.9(c) & 49---Possession of narcotics--Appreciation of evidence---Sentence, modification of---Both prosecution witnesses who deposed ocular account, were cross-examined, but their evidence was unshaken---Statements of said witnesses were in clear terms that accused was apprehended by them on spy information and that he was possessing Charas in a huge quantity---Fifteen slabs of Charas weighing 15 K.Gs., allegedly were recovered from the possession of accused, but only 500 grams Charas was taken out as sample and was referred to the Chemical Analyzer for his expert opinion--Prosecution evidence was concrete so far as the recovery of Charas related, but the fact remained that the prosecution case was ambiguous as sample from each slab was not taken---Accused, in such a situation and peculiar circumstances, could only be held responsible for commission of offence on account of recovery of 500 grams only---Accused could not be held responsible for the rest of recovered Charas from which no sample was taken out and same remained unexamined and uncertified---Contradictions in the depositions of both prosecution witnesses were minor in nature and not fatal to the prosecution case---When the punishment was provided on the basis of quantum of recovery of narcotic, then it should be the main criterion for the prosecution to establish that entire recovered substance was a narcotic etc. and for that purpose it had to take all precautions and make the case fool proof---Case property remained in possession of complainant which was State through the Police, which was a matter of concern---Accused could not be left at the mercy of police who were appearing in such type of cases as a complainant, witness and custodian of property--Impugned judgment required interference by High Court to the extent that the prosecution case on the basis of evidence produced on the record had proved its case beyond any shadow of doubt and brought guilt of accused for the commission of offence on account of recovery of 1 K.G. contraband Charas---Impugned judgment was modified and case against accused stood proved for an offence which fell under S.9(b) of the Control of Narcotic Substances Act, 1997---Accused, in circumstances was liable to be convicted and sentenced for recovery and imprisonment for 7 years and fine---Conviction and sentence awarded by the Trial Court, modified by the High Court would be enough to serve out the purpose of justice.

Mst. Anara Bibi v. The State, 2005 MLD 386; Muhammad Uzzair Siddiqui v. The State PLD. 2005 Pesh. 81; Jangrez Khan v. The State 2005 PCr.LJ 1506; Muhammad Hashim v. The State PLD 2004 SC 856; Waris Khan and 2 others v. The State 2006 SCMR 1051; Nazar Shah v. The State 1998 PCr.LJ 1540; Muhammad Chuttal v. The State 2001 YLR 654; Imtiaz Ali v. The State 2006 MLD 1961 and Fazal Shah vs. The State PLD 1999 Kar. 465 ref.

Ali Nawaz Ghanghro for Appellant.

Naimatullah Bhurgri for the Respondent.

Date of hearing: 28th January, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 1784 #

2010 Y L R 1784

[Karachi]

Before Sajjad Ali Shah, J

MUHAMMAD SHAFIQ and another-Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 1318 of 2009, decided on 12th April, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 496---Penal Code (XLV of 1860), Ss.448, 504 & 506-B/34---Housetrespassing and criminal intimidation--Interim pre-arrest bail, confirmation of--Initially the F.I.R. was registered under Ss.448, 504 & 506-B/34, P.P.C. but thereafter the Police filed challan after deleting S.506-B, P.P.C.-Earlier order whereby the first bail application was rejected, would not come in the way of accused as at that point of time accused were charged with a non-bailable offence; however, after deletion of non-bailable provision, accused were entitled to bail as of a right under the provision of S.496, Cr.P.C.-Interim pre-arrest bail granted to accused person, was confirmed, in circumstances.

Syed Lal Hussain Shah for Applicants.

Abrar Ali Khichi, APG for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 1810 #

2010 Y L R 1810

[Karachi]

Before Mrs. Qaisar Iqbal, J

JAWWAD KHAN alias JAVED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 31 of 2009, decided on 16th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Further inquiry---Complainant had alleged that mobile phone, wrist watch and cash of Rs.30,000 were looted by unidentified culprits on main road---Recovery in the case was on joint pointation, which was not admissible under the law---Accused was not put to identification parade after arrest---Case of accused fell within the ambit of further inquiry as contemplated under subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

1997 SCMR 412; 2006 PCr.LJ 993 and 2002 SCMR 1304 ref.

S. Lal Hussain Shah for Applicant.

Muhammad Iqbal Kalhoro Addl. P.G. Sindh.

YLR 2010 KARACHI HIGH COURT SINDH 1814 #

2010 Y L R 1814

[Karachi]

Before Aqeel Ali Abbasi, J

Messrs TOYS INTERNATIONAL (PVT.) LTD. through Chief Executive---Applicant

Versus

HAIDER ALI MULJI and 7 others---Respondents

Criminal Revision Application No. 162 of 2009, decided on 8th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 439---Application to withdraw revision application---Counsel for the applicant had sought permission to withdraw the revision application with the condition that applicant could be permitted to file appropriate proceedings against the respondents before the competent court---Counsel for the respondent did not object to simple withdrawal of revision application but objected to its conditional withdrawal---Application was dismissed as not pressed, however, High Court observed that applicant was at liberty to seek remedy, if available, in accordance with law.

Dr. Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404 and Rahim Tahir v. Ahmed Jan 2 others PLD 27 SC 423 ref.

Sarfraz Khan Tanoli and Tanveerul-Islam for Applicant.

Liaqat Ali Qasim for Respondents Nos.3,4,5 and 7.

Shazado Saleem A.P.-G.

YLR 2010 KARACHI HIGH COURT SINDH 1817 #

2010 Y L R 1817

[Karachi]

Before Ghulam Sarwar Korai, J

MUHAMMAD SADIQ---Applicant

Versus

THE STATE through Prosecutor General Sindh and 4 others---Respondents

Criminal Revision Application No.163 of 2009, decided on 8th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302 & 377---Anti-Terrorism Act (XXVII of 1997), S.6---Qatl-e-amd, unnatural offence and terrorism---Accused were bailed out and their application filed under S.265-K, Cr.P.C. was also allowed by the Trial Court observing that it was not a case for cancellation of bail and that case was not to by tried by Anti-Terrorism Court---Validity---Case of prosecution was in four parts; firstly, minor boy was abducted; secondly unnatural offence was committed with him; thirdly, he was murdered; and lastly his body was concealed in bag and was thrown in Ganda Nala in order to destroy the evidence---Offences in the case definitely covered definition of S.6 of Anti-Terrorism Act, 1997---Ordinary Court, in circumstances had no jurisdiction to try the case---Order passed by the Trial Court was set aside with the direction to file the report before the Anti-Terrorism Court having jurisdiction.

Moulvi Iqbal Haider for Applicant.

Miss Rehana Akhtar, A.P.-G. for the State.

Liaqat Ali Qasim for Respondent No.4.

YLR 2010 KARACHI HIGH COURT SINDH 1822 #

2010 Y L R 1822

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD HANIF S. KALIA and others---Applicants

Versus

THE STATE---Respondent

Cr. Bail Applications Nos. 291, 292, 1123 and 1124 of 2009, decided on 3rd February, 2010.

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

----S. 497---Foreign Exchange Regulations Act (VII of 1947), Ss.5, 8, 22 & 23---Illegal transfers of money and misuse of foreign exchange---Bail, grant of---Maximum sentence under S.23 of Foreign Exchange Regulations Act, 1947 was two years---Accused had earned remissions during their incarceration, and after taking into consideration such remissions, accused practically had completed much more than half of maximum possible sentence under Foreign Exchange Regulations Act, 1947---Accused, in any case was also entitled to the benefit of S.382-B, Cr. P. C. ---Quantum of prescribed sentence, did not fall within the prohibited degree prescribed under S.497, Cr.P.C.---Offence against accused persons though was non-bailable under Foreign Exchange Regulations Act, 1947, but it was punishable with maximum imprisonment of two years---Abscondence of accused from Pakistan could be adequately safeguarded by taking into custody passports of accused and Government in accordance with law, could place their names on Exit Control List---All the evidence was in the form of documents or electronic record and it had already been taken into custody by the Investigating Agency---No allegation was of any of the accused persons being previously convict was on record---Seriousness of an offence, was something for the legislature to take into consideration---Legislature which represented the will of the Political Sovereign in its wisdom would choose to assign a particular level or degree of seriousness to a particular offence and the gauge used by the legislature was quantum of punishment---In the present case maximum punishment being two years, irrespective of the amount involved, High Court would have to deal with the application of accused persons in accordance with law and law prescribed maximum punishment of two years---Accused, in circumstances, were entitled to bail.

State v. Hamtho 1971 SCMR 686; Sabir Ali v. Khalil Ahmed Bajwa and others 2005 MLC 1127; Chaudhry Abid Saeed v. The State 2002 PCr.LJ 1818; Shah Hussain v. State PLD 2009 SC 460; PLD 2005 Kar. 255; PLD 1997 Lah. 38; 1999 PCr.LJ 53; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Ijaz Akhtar v. The State 1978 SCMR 64; Mir Akhtar Khan Khattak v. The State PLD 1982 Pesh. 128; Abdul Hay-uz-Zafar v. The State1983 PCr.LJ 2010; and Abdul Hai Siddiqui v. The State, 1993 PCr.LJ 446; Sikandar A. Karim v. The State, 1995 SCMR 387 at page 408; Sikandar A. Karim v. The State, 1995 SCMR 387; Muhammad Younus and another v. The State, 2001 PCr.LJ 157; Liaqat Ali v. The State, 1998 PCr.LJ 1955; Akhtar Hussain Shah v. The State, 1999 PCr.LJ 225; 1992 PCr.LJ 568; Haji Sirajuddin v. Haji G.M. Khan 1990 CLC 331; Arif Hashwani and 3 others v. Sadaruddin Hashwani and 3 others PLD 2007 Kar. 448; Muhammad Luqman v. Bashir Ahmed, PLD 1994 Kar. 492; Miss Haleema Banker and another v. Haji Ghulam Rasool Soomro, 1994 CLC 2422; Chaudhry Muhammad Aslam v. The State 1992 MLD 880; Makhdoom Javed Hashmi v. The State and 2 others 2003 PCr.LJ 266; Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others, 2008 SCMR 240; Haji Wali Muhammad v. The State 1969 PCr.LJ 664 and Sahib Dad Khan v. The State and 2 others 1977 PCr.LJ 676 ref.

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

----S. 497---Prevention of Electronic Crimes Ordinance (LXXII of 2007), Ss.7, 8, 23, 25, 31 & 45---Illegal transfer of money and misuse of foreign exchange---Bail, grant of---Cases against accused persons were registered under Prevention of Electronic Crimes Ordinance, 2007 and the Sessions Judge having no jurisdiction to take cognizance of offences under said Ordinance, Sessions Judge was directed to send the case to a court of Magistrate First Class competent to try the offence under Second Schedule to the Criminal Procedure Code---Magistrate would decide whether to take cognizance or not and thereafter proceed in accordance with law---Bail applications having been filed in the court of Sessions Judge who was not competent to try the offence; said applications would be deemed to be pending; and the Magistrate would hear and decide those applications as expeditiously as possible.

Ch. Abid Saeed and others v. The State, 2002 PCr.LJ 1818; State v. Hamtho 1971 SCMR 686 and Sabir Ali v. Khalil Ahmed Bajwa and others 2005 MLD 1127 ref.

A.Q. Halepota, Faroogh Naseem, Shaukat Hayat, Moharram G. Baloch, Ibrar Hassan and Shaukat Hussain Zubedi, for Applicants.

Shahab Sarki, Standing Counsel and Syed Israr Ali, Deputy Director F.I.A.

YLR 2010 KARACHI HIGH COURT SINDH 1851 #

2010 Y L R 1851

[Karachi]

Before Faisal Arab, J

TANVEER SIDDIQUI and another---Applicants

Versus

MUHAMMAD RASHID---Respondent

First Rent Appeal No. 1 and C.M.As. Nos.1560, 1561 of 2009, decided on 27th April, 2010.

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

----S. 12(2)---Application under S. 12(2), C.P.C., by contesting party for setting aside ex parse decision passed against him in legal proceedings---Maintainability---Party having contested proceedings on account of his default ordered to be proceeded ex parte or not opted to contest proceedings despite due service with summons/notice could challenge ex parte decision going against him by taking matter to higher forum provided under law, but he could not invoke provisions of S.12(2), C.P.C.-Decision rendered by a court after hearing a party would attain finality, if he failed to avail remedy available to him before higher forum under law---Once contesting or defaulting party failed or gave up to avail remedy before higher forum provided under law, then ex parte decision would attain finality and would remain no more open to challenge---Contesting party could not resort to provisions of S.12(2), C.P.C. as an alternative or substitute for remedy available to him under law, which he failed to avail or if availed, but gave up later on---Remedy of S.12(2), C.P.C., would be available to a person, who was either not a party to proceedings or if was a party, but was not duly served with summons or notice and ex parte decision had been given against him as if summons or notice was duly served upon him---When a person having a right to invoke provisions of S.12(2), C. P. C, availed regular remedy before appellate forum, then he would be stopped from challenging validity of a decision under such provisions---Intervener on his application, if not joined in proceedings by court and during pendency of his such application, if parties to case obtained at his back without notice to him an order prejudicing his right, title or interest, then he, in order to get such order set aside could invoke provisions of S.12(2), C.P.C.-Principles.

PLD 1959 Kar. 221; 1993 SCMR 710 (para.5); 1992 ALD 513; 2005 CLC 1599; 2006 SCMR 753; 1994 CLC 1044; 2003 SCMR 1300; 2004 SCMR 843; 2002 CLC 166; PLD 2002 SC 500; 1988 CLC 242; 1986 CLC 747; PLD 1993 Lah. 88; 1989 CLC 937; PLD 1995 Kar. 341; 2002 PTD 87; 2003 CLD 326; 2008 SCMR 79; 2008 SCMR 226; 1997 PSC 1377; 2006 MLD 366; 2003 CLC 1472 and 2008 CLC 75 ref.

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

----Ss. 15 & 24---Civil Procedure Code (V of 1908), S. 12(2)---Ejectment petition---Appearance of tenant before Rent Controller and filing of power of attorney of his counsel-Non-filing of written statement by tenant despite availing several opportunities---Ex parte proceedings against tenant for his non-appearance and closure of his right of defence---Ex parte ejectment order passed by Rent Controller upheld in appeal by High Court after contest---Tenant for setting aside order of dismissal of his appeal by High Court filed application under S.12(2), C.P.C, and then petition for leave to appeal before Supreme Court---Withdrawal of petition from Supreme Court for not being pressed by tenant---Validity---Effect of an ex parte order would be to shut doors on a party to defend his case on merits and Court would consider legal and factual pleas of one side---Defaulting party in order regain right of defending legal proceedings and be heard on merits would be obliged to get ex parte decision set aside in appeal---Decision in rent appeal given after hearing tenant was open to challenge before Supreme Court through a petition for leave to appeal before Supreme Court and not under S. 12(2), C.P.C.---Ex parte ejectment order passed by Rent Controller and upheld in appeal by High Court had attained finality as petition filed there-against before Supreme Court had been withdrawn by tenant---Tenant as appellant had contested appeal and its decision had not been obtained at his back by playing fraud or misrepresentation---High Court dismissed application under S.12(2), C.P.C.

Mushtaq A. Memon and Farrukh Zia Shaikh for Applicants.

Dr. Muhammad Farogh Naseem and Sardar Muhammad Yousuf for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 1861 #

2010 Y L R 1861

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

MUHAMMAD ALI---Appellant

Versus

THE STATE---Respondent

Special Terrorism Appeal No. 1 of 2009, decided on 26th April, 2010.

Penal Code (XLV of 1860)---

----S. 365-A---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(e) & 7(e)---Kidnapping for ransom---Appreciation of evidence---Abductee being a principal victim had given a very comprehensive account of the incident---Cross-examination conducted by the defence against the said witness could not shatter his evidence---Such cross-examination could not even show any specific defence plea on the basis of which one could assume that said witness had been challenged thereby in such process of evidence or he deposed falsely against accused for any ill motive or vested interest, either within himself or because of his family---Other witnesses who were father and uncle of the victim had also supported the case and cross-examination conducted against them could not bring any fruitful result to the defence---Defence theory that came to light, for the first time in the process of cross-examination that there was business rivalry between the brother-in-law of the complainant and accused, due to which accused had falsely been involved in the case, being an after-thought, was good for nothing---Rest of the witnesses, were official ones who also, had supported the case to their respective extent and their evidence was also left unshattered in the cross-examination conducted by the defence against them on the point of kidnapping---Certain irregularities committed by the Police in process of investigation, could hardly have an adverse effect to the extent that on the basis of which the court could take an independent view that the case of prosecution as to kidnapping was doubtful---Prosecution witnesses were trustworthy and confidence inspiring in all respect---Charge of kidnapping for ransom as framed against accused, stood well proved beyond shadow of any reasonable doubt---Conviction and sentence awarded to accused for offence of kidnapping by the Trial Court needed no interference at all---Case regarding the recovery of the T.T. pistol from accused, however, was not open to be safely held as proved up to the required standard of law-Evidence on record did not support that the said weapon was recovered by the Police from accused at the relevant time---Impugned judgment of conviction and sentence awarded by the Trial Court under S.365-A, P.P.C., was maintained with benefit of S.382-B, Cr.P.C., whereas conviction and sentence awarded to accused for the offence under S.13(d) of West Pakistan Arms Ordinance, 1965, was set aside in the interest of justice.

Muhammad Nasarullah Siddiqui for Appellant.

Ali Haider Saleem, A.P.G. of Sindh for the State.

Date of hearing: 20th April, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 1869 #

2010 Y L R 1869

[Karachi]

Before Gulzar Ahmed and Salman Hamid, JJ

Mrs. MUMTAZ MAQSOOD---Petitioner

Versus

SECRETARY, REVENUE DIVISION and another---Respondents

Constitutional Petition No. 1229 of 2008, decided on 18th March, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), S.11---Constitutional petition---Principle of res judicata, application of---Constitutional petition earlier filed by the petitioner was allowed after appreciating the contents of the letter written by the Secretary STC to Director (C & M), Federal Tax Ombudsman---Petitioner, however despite being satisfied with the payment of the reward money and receipt of the reward money, filed application with the prayer that the prayer clause `b' of the petition be implemented by the authorities---Said application having been dismissed, the petitioner had filed second constitutional petition---Order passed in earlier constitutional petition was not challenged by the petitioner before the apex court or sought to be reviewed, once it transpired by the petitioner that prayer of the constitutional petition was not granted---Petitioner was all along quiet and contended with the impugned order and was also mindful of the fact that earlier constitutional petition was decided by the court on the basis of said letter; and that the prayers as contained in that constitutional petition also stood satisfied by that order---Second constitutional petition filed by the petitioner fell on all fours on the principle of res judicata---In the present case not only the petitioners and respondents were the same, but constitutional petition was finally decided in terms of order which was acted upon and had attained finality as no appeal or review was filed against the same---Second constitutional petition which was hit by principle of constructive res judicata, was dismissed on that ground alone.

MKB Industries Pvt. Ltd. and others v. Chairman, Area Electric Board of WAPDA and others 2005 SCMR 699 ref.

Khalid Mahmood Siddiqui for Petitioner.

Ashiq Raza, DAG for Respondent No.1.

Kafeel Ahmed Abbasi for Respondent No.2.

Date of hearing: 17th March, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 1875 #

2010 Y L R 1875

[Karachi]

Before Imam Bux Baloch, J

GHULAM MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-95 of 2010, decided on 19th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/ 504/114/147/148/149--- Qatl-e-amd---Bail, refusal of---Seven empty cartridges of .12 bore were recovered, from the place of Vardat which had indicated that all co-accused along with accused had jointly formed an unlawful assembly and caused murder of deceased--Postmortem report of the deceased confirmed allegations contained in the F.I.R. against accused---Accused having not made out a case for bail, his bail application was dismissed.

Mehboob-ur-Rehman v. The State 1996 PCr.LJ. 238; Muhammad Riaz V. The State 1994 PCr.LJ 149; Namdar v. The State 2004 PCr.LJ 1836 and Sher Muhammad v. The State 2008 SCMR 1451 ref.

Abdul Rasool Abbasi for Applicant.

Habibullah Ghauri for Complainant.

Ali Raza Pathan for the State.

YLR 2010 KARACHI HIGH COURT SINDH 1883 #

2010 Y L R 1883

[Karachi]

Before Muhammad Ali Mazhar, J

Mrs. TAHIRA SULTANA and another---Plaintiffs

Versus

SALEEM RAJPUT and another---Defendants

Suit No.1354 of 2004 and C.M.A. No.8171 of 2009, decided on 5th May, 2010.

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

----Ss. 12 & 55---Civil Procedure Code (V of 1908), S. 151---Suit for specific performance of sale agreement and recovery of mesne profits and damages---Deposit of balance price of suit property by plaintiff in court---Application by plaintiff under S.151, C.P.C., for directing defendant to hand over possession of suit property to plaintiff without waiting final decision of suit ---Validity---Grant of such relief would amount to final decision of suit at interlocutory stage and nothing would be left for court to decide after recording evidence and trial---Such application was dismissed for being not maintainable.

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

----S.55---Civil Procedure Code (V of 1908), Ss. 94 & 151---Mandaory injunction in ad interim form---Powers of court to pass such order---Scope---Such order could be passed only for restoring or maintaining a status quo, but not for creating a new state of things unlike those prevalent at time of institution of suit---Principles.

An order of mandatory injunction in the ad-interim form is very rarely issued by the court and the same is only done when there is imminent danger to life or property and only for the purpose of restoring or maintaining a status quo. Such order is hardly issued for creating a new state of things unlike those that were prevalent at the time of institution of the suit. Section 55 of the Specific Relief Act provides discretionary powers to the court for granting injunction which the court is capable of enforcing in order to prevent breach of obligation and when it is necessary to compel the performance of certain acts. The obligation mentioned under S.55 of the Specific Relief Act, 1877 refers to legal obligation and not a moral obligation. Although the power of court to pass a mandatory injunction in appropriate cases cannot be doubted, but such orders are rare and granted to restore the status quo and not to create a new situation which may be irretrievable or to establish a new state of things different from which existed at the time when relief was sought. Where the breach of obligation by the defendant is so patent that it floats on the surface of the record causing immediate, pressing and irreparable injury to the plaintiff, the court may while exercising its power under section 94 read with section 151, CPC grant status quo ante. In case of breach of contract, which agreement is not enforceable under the law, the court cannot and should not exercise its judicial discretion to create a situation which is ceased to exist when the lis commenced.

----S.12---Limitation Act (IX of 1908), S. 3 & Art. 113---Civil Procedure Code (V of 1908), O. VII, R. 11(d)---Suit for specific performance of sale agreement---Limitation ---Defendant agreed to sell suit property and received its price on 9-5-1993---Defendant refused to hand over possession of suit property on 18-10-1997--Plaintiff filed suit in year 2004---Validity---In absence of date fixed in agreement for its performance, limitation of 3 years would start running from refusal of its performance---Actual date of accrual of cause of action to plaintiff was such date of refusal of defendant---Court could dismiss such suit under S.3 of Limitation Act, 1908 and reject plaint under O. VII, R.11, C.P.C.

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

----S.3---Civil Procedure Code (V of 1908), O. VII, R.11--- Expression "although limitation has not been set as defence" as used in S. 3 of Limitation Act, 1908--Connotation-Non-filing of legal proceedings within prescribed limitation would create a right in favour of opposite party---When suit appeared to be barred by limitation from statement in the plaint, then court even in absence of objection by defendant would be bound to dismiss suit under S. 3 of Limitation Act, 1908 and reject plaint under O.VII, R. 11, C.P.C.---Principles.

Hakim Muhammad Buta and another v. Habib Muhammad and others PLD 1985 SC 153 and Haji Rehmadil v. The Province of Balouchistan and another 1999 SCMR 1060 rel.

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

----S.3---Several relief's sought in plaint---Limitation---Each relief would be governed by its own period prescribed under Limitation Act, 1908.

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

----O. XIV, R. 2---Issues of law and of facts, decision of ---Priority ---When suit could be decided on legal issues, then court would segregate its trial from trial of issues of facts ---Decision of such legal issues would not amount to piecemeal decision---Principles.

Order XIV Rule 1, C.P.C., speaks about two kinds of issues: (1) Issues of facts, (2) Issues of law. Rule 2 further provides that where issues both for law and facts arise in the same suit, and the court is of the opinion that the case or any party thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact only after the issues of law have been determined. Issues of law going to root of the case should be decided in the first instance especially when no evidence is needed of decision of such issue. If a suit can be decided on decision of legal issues, then the trial of legal issues would be segregated from the trial of issues on merits and such decision in no manner will amount to piecemeal decision.

Mehmood Ahmed Khan for Plaintiffs.

Kunwar Majid for Defendant No.1.

Abdul Hafeez Lakho for Defendant No.2.

YLR 2010 KARACHI HIGH COURT SINDH 1902 #

2010 Y L R 1902

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

AHSANULLAH A. KHAIRI---Applicant

Versus

THE STATE---Respondent

Bail Application No.899 of 2009, heard on 13th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420/467/471/34---Cheating, forgery and using as genuine a forged document---Bail, grant of---Except for the confession which accused was stated to have been math, before the Bank Officials, there seemed to be no material directly implicating accused with the commission of crime---Actually the role of opening the account, depositing of the forged draft, withdrawing of the amount of the said demand draft from the bank account, all were alleged against co-accused who had been granted bail---Investigation had been concluded, challan had been filed and the matter was before the Trial Court and there seemed to be no further need of accused in respect of investigation of the crime---Accused being entitled to the grant of bail not only on the rule of consistency, but also prima facie the only material against him to be his confession; and investigation having been concluded, accused was admitted to bail, in circumstances.

Mitho Pitafi v. The State 2009 SCMR 299 and Saeed Ahmed v. The State 1996 SCMR 1132 rel.

Khaleeq Ahmed for Applicant.

Shahab Sarki, Standing Counsel along with Investigating Officer.

YLR 2010 KARACHI HIGH COURT SINDH 1907 #

2010 Y L R 1907

[Karachi]

Before Ali Sain Dino Metlo, J

FEDERATION OF PAKISTAN ---Appellant

Versus

MEHMOOD AHMED KHAN---Respondent

Special Criminal Acquittal Appeal No.6 of 2007, heard on 20th November, 2008.

Customs Act (IV of 1969)---

----S.156(1)(8)---Criminal Procedure Code (V of 1898), S. 417--- Smuggling--- Appeal against acquittal---Counsel for appellant/ complainant had stated that main evidence against accused was the credible information which the Customs Inspector had received from his informer--Said information could not be relied upon without examining the informer---Such secret information could be used by the Investigating Officers only for their guidance to detect the crime and collect evidence---Secret information, however credible it could be, could not be legally used as evidence---Trial Court, in circumstances, had rightly acquitted accused for want of sufficient evidence against him and its judgment was unexceptionable.

Ashiq Ali Anwar Rana for Appellant.

2010 Y L R 1979

[Karachi]

Before Sajjad Ali Shah and Nisar M. Shaikh, JJ

FAKIR SYED AYAZUDDIN---Petitioner

Versus

DIRECTOR-GENERAL, NAB (SINDH) and another---Respondents

Constitutional Petition No. D-1715 of 2009, decided on 3rd March, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition--Corruption and corrupt practices---Petitioner had lodged complaint with the Chairman National Accountability Bureau against the alleged discriminatory treatment, corruption and corrupt practices with a request to probe an inquiry and to take cognizance of the complained acts and omissions under S.18 of National Accountability Ordinance, 1999---Case of the petitioner was that since the complaint was not heeded to by the respondents, he had filed constitutional petition---Record had shown that petitioner/complainant had also filed suit which was pending in the High Court, seeking declaration, specific performance, permanent injunction and damages and a complaint was also filed before concerned Judicial Magistrate, which was quashed---Petitioner who had alleged corruption, corrupt practices and misuse of authority by respondents, had not placed on record anything to substantiate the allegation of corruption and corrupt practices---As to misuse of authority against the petitioner, he had not even alleged that the misuse of authority, if any was to achieve any personal gain/benefit or favour by respondent officials for themselves or for any other person---Under S.9 of National Accountability Ordinance, 1999, a holder of a Public Office, was said to be committing or to have committed the offence of corruption and corrupt practices, if he would misuse his authority so as to gain any benefit or favour for himself or any other person, or rendered or attempted to render or willingly failed to exercise his authority to prevent the grant or rendition of any undue benefit or favour, which he could have prevented by exercising his authority---In the present case, the petitioner had not even alleged that misuse of authority, if any, to derive any gain/benefit or favour by the' respondent officials for themselves or for any other person was in order to attract the jurisdiction of the authorities---Wrongful removal of the petitioner company from Joint Venture at the instance of respondent even if proved could give rise to an action for damages or to any other relief provided by law, but not to an action under National Accountability Ordinance, 1999 as nothing was on record to establish or substantiate that removal of the petitioner company, even at the instance of the respondent, was to achieve wrongful gain---No reason was available to interfere under constitutional jurisdiction with the report of respondents rejecting petitioner's complaint.

Shaffat Nabi Khan Sherwani for the Petitioner.

Muhammad Aslam Butt, D.P.-G. NAB.

YLR 2010 KARACHI HIGH COURT SINDH 1982 #

2010 Y L R 1982

[Karachi]

Before Muhammad Ali Mazhar, J

ALI RAZA---Applicant

Versus

Haji MUHAMMAD and others---Respondents

Criminal Revision No. S-108 of 2007, decided on 2nd March, 2010.

(a) Illegal Dispossession Act (XI of 2005)---

----Preamble, Ss. 3, 4, 5 & 8---Nature, object and scope of Illegal Dispossession Act, 2005---Act was a special enactment, promulgated to discourage the land grabbers and to protect the rights of owner and the lawful occupant of the property as against the unauthorized and illegal occupants---All cases of illegal occupants without any distinction would be covered by the said Act---Purpose of said special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupier---In order to constitute an offence under S.3(1) of Illegal Dispossession Act, 2005, complainant was to show, before the court that he was actual owner or occupier in lawful possession of immovable property in question that accused had entered into the said property; that entry of accused into or upon the said property was without any lawful authority and that accused had done so with the intention to dispossess (to grab or control or to occupy) the complainant's property---Defence line for accused which he could adopt in the Trial Court was that the complainant was not the actual owner of the property; that entry of accused into the property, was not to dispossess the complainant and that accused had the lawful authority to enter into the property and accused had no intention to dispossess the complainant---All cases of illegal occupants without any distinction, would be covered by Illegal Dispossession Act, 2005 and the applicability of the same was not confined to the offence of illegal dispossession committed by land grabbers or Qabza group only---Though according to the Preamble of Illegal Dispossession Act, 2005, the purpose of the Act was to give protection to lawful owner and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the Property grabbers, however under S.3 of said Act it had been provided that no one would enter into or upon the property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner of occupier of such property---Four eventualities i.e. "dispossession", "grab", "control", or "occupy" had been mentioned in S.3 of the Act by the legislature, showing that said Act had not been promulgated only against the dispossession by the land grabbers or qabza group, but it dealt with all types of dispossession which were fitted in said conditions.?

(b) Words and phrases---

----"Grab", meaning and connotation of. ?

---Ss. 3, 4, 5 & 8---Illegal dispossession---Complaint against---Dismissal of complaint---Trial Court observed that if the applicant/complainant claimed ownership of the case property or restoration of its possession, then it required detailed inquiry which was the sole job of competent civil court for which remedies were available to approach the civil court which was proper forum to decide the controversies between the parties---Observation of the Trial Court was incorrect and contrary to the provisions of Illegal Dispossession Act, 2005---If the Trial Court would decide cases on such assumption, then the purpose of Illegal Dispossession Act, 2005 would become redundant and nothing would be left to decide by the courts under the said Act---Heavy duty and responsibility lay upon Trial Court to decide the matter with sound reasoning and application of mind after complying with due procedure provided under the law itself---In the present case instead of deciding the matter on merits, the Trial Court had simply dismissed the complaint on the basis of certificate issued by the Mukhtiarkar (Revenue) without complying with other pre-requisites---Impugned order being contrary to the provisions of Illegal Dispossession Act, 2005, was set aside and matter was remanded to the Trial Court to decide the complaint on merits within sixty days after receipt of the present order.

?Zahoor Ahmed Baloch for the Applicant.

Ayaz Hussain Tunio for the Respondents.

Shahid Ahmed Shaikh, Assistant Prosecutor-General Sindh.

YLR 2010 KARACHI HIGH COURT SINDH 2001 #

2010 Y L R 2001

[Karachi]

Before Syed Pir Ali Shah, J

DARWESH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-31 of 2008, decided on 29th January, 2009.

Penal Code (XLV of 1860)---

----S. 364-A/34--Kidnapping--Appreciation of evidence---Proved case beyond any shadow of doubt whereby minor daughter of complainant aged 5/6 years was being kidnapped by putting her in a bag; and accused was apprehended by the complainant and prosecution witnesses with the help of muhalla people---Case under S.364-A, P.P.C., in circumstances, was made out against accused---Impugned judgment did not show that there was any misreading of evidence and that the same was misappreciated by the Trial Court---Had the accused been falsely involved in the case for either of the reasons, such suggestion could have been made to each and every witness coupled with the fact that accused could have said so specially while his statement under S.342, Cr.P.C. was being recorded---Accused even declined to depose on oath---All that had shown that accused was the actual culprit and had committed such an offence--Grounds taken by accused in the appeal being without any substance, appeal was dismissed.

Muhammad Ali v. State 2000 PCr.LJ 774 ref.

Muhammad Saleem Jessar for the Appellant.

Miss Rubina Dhamrah for the State.

Date of hearing: 29th January, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 2004 #

2010 Y L R 2004

[Karachi]

Before Munib Ahmed Khan, J

GHULAM QADIR PATNI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 326 of 2009, decided on 8th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Accused was in jail for the last about four years, while only charge had been framed in the case---Factual position involved had shown that the deceased along with other witnesses was involved in gambling and one of the said witnesses had admitted that they used to take liquor--Out of two witnesses, statement of one of them had not been recorded, while other had totally denied the factual position---Other witness had also not supported the prosecution---Statement of complainant was also in conflict with his other statement as he, in his statement, had also said that some other persons had killed his children---Case of accused needing further investigation, he was admitted to bail.

Aamir Mansoob Qureshi for the Applicant.

Qazi Wali Muhammad for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2005 #

2010 Y L R 2005

[Karachi]

Before Shahid Anwar Bajwa, J

PERVAIZ KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1036 of 2009, decided on 5th November, 2009.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 21---Possession of narcotic ---Bail, refusal of---Section 21 of the Control of Narcotic Substances Act, 1997, was applicable to cases of recovery effected from a building, place, premises or conveyance and not to the recovery of narcotics from the personal search of a person, as in the present case--Assistant Sub-Inspector of Police, therefore, was competent to search and arrest the accused---"Charas" weighing 1200 grams having been recovered from the accused, his case was not a borderline case so as to fall within the ambit of section 9(b) of the said Act, because amount exceeding the prescribed limit of 1000 grants by 20% could not be treated as marginal, although the quantity of narcotics exceeding upto 10% of the prescribed limit might be treated as a marginal case---Small but reasonable quantity of 10 grams "Charas" had been taken as sample from the packet recovered from the accused for sending to Chemical Examiner for analysis, which did not suffer from any wrong, because the entire quantity was not required to be sent for such purpose---Recovery of narcotics having been effected from the accused by the police at midnight, association of any private person with the recovery proceedings was not possible, as explained in the F.I.R. itself---Bail was declined to accused in circumstances.

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

----S.21---Power of entry, search, seizure and arrest without warrant---Scope---Section 21 of the Control of Narcotic Substances Act, 1997, covers only the cases where the narcotic is kept or concealed in a building, place, premises or conveyance---Section 21 is not applicable where the narcotic is recovered on personal search of a person.

Criminal Bail Application No.500 of 2009 Ubaid Ullah v. The State dissented from.

Sohail alias Gang v. The State 2009 PCr.LJ 315; Abdali Shah v. The State PLD 2008 Kar.57; Dila Baz Khan v. The State 2008 PCr.LJ 1437; Muhammad Shahid Chirago v. The State 2008 MLD 442; Inayat Ullah v. The State 2006 PCr.LJ. 840; Muhammad Yaqoob v. The State K.L.R. 2005 Criminal Case 342 and Fida Jan v. State 2001 SCMR 36 ref.

Muhammad Farrukh Khan Zai v. The State 2008 MLD 608 and Sartaj v. The State 2008 PCr.LJ 361 distinguished.

Aman Khattak for the Applicant.

Ms. Seema Zaidi, Assistant Prosecutor-General for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2019 #

2010 Y L R 2019

[Karachi]

Before Salman Ansari, J

ARIF ALI ANSARI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 1471 of 2008, decided on 11th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.365-B & 376(2)---Abduction and rape---Bail, refusal of---Operative part of D.N.A. test report issued by the Incharge D.N.A. Forensic Service, was that D.N.A. profiles of accused persons matched 100% with D.N.A. profiled obtained from the stained clothes of victim female---Report confirmed the involvement of both accused persons in the crime and also gang rape of the victim---Said report having been sent by the Institute of Biomedical and Genetic Engineering, Government of Pakistan, any inadvertent mistake in the name would not make said report doubtful, when the correct crime number and other details of the case were given in the report---Nature of crime with respect to identification Parade would be looked into during the trial; as other corroborative evidence and the evidence of witnesses, had found accused to be present prior to the incident near place of incident--- Deeper appreciation of evidence was not required at bail stage so as to prejudice the trial of the case---Bail application was dismissed, in circumstances.

Azhar Amin @ Naji @ Mota v. The State 2008 PCr.LJ 824; Syed Khalid Mahmood v. the State 1994 PCr.LJ 757; Jamil Masih v. The State 1994 PCr.LJ. 765; Lejzor Teper v. The Queen PLD 1952 Privy Council 119; Peradeniya Service Bus Company Limited v. Sri Lanka Omnibus Company Limited; PLD 1952 Privy Council 128; Talib Hussain v. The State 1995 SCMR 1538 and Muhammad Ejaz v. The State 2008 YLR 690 ref.

Muhammad Ashraf Kazi for Applicants.

Ms. Akhtar Rehana, Addl. Prosecutor General for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2031 #

2010 Y L R 2031

[Karachi]

Before Ali Sain Dino Metlo, J

MUHAMMAD SHAHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1299 of 2008, decided on 24th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Abduction---Penal Code (XLV of 1860), S.365---Bail, grant of---Further inquiry---Accused persons pointing out the place from where deceased was allegedly abducted and the place from where his dead body was secured, carried no evidentiary value as both said places had already been inspected by the police and no fact was discovered in consequence of the information given by them---Recovery of blood-stained stones, after two mouths from the same place from where the dead body was secured, also required further inquiry---Counsel for accused persons had also pointed out that co-accused on the basis of whose statement accused persons were arrested, had been maltreated by police, and the complainant had himself stated in his examination-in-chief, that co-accused had implicated theist because the Investigating Officer had maltreated him, it could not be said, in circumstances, that reasonable grounds were available to believe accused persons guilty of the offence and the matter required further inquiry as contemplated by subsection (2) of S.497, Cr.P.C.---Accused were released on bail, in circumstances.

Amir Mansoob Qureshi for the Applicant.

Muhammad Riaz Shaikh for the Applicant.

Fazalur Rehman Awan for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2053 #

2010 Y L R 2053

[Karachi]

Before Arshad Noor Khan, J

AQEEL AHMED---Plaintiff

Versus

FAREED AHMED and others---Defendants

Civil Suit No. 1552 of 2005.

Civil Procedure Code (V of 1908)---

----O. IX, R.8---Dismissal of suit for non-appearance of the plaintiff---Application for restoration of suit---Date on which suit was dismissed for his non-appearance, plaintiff was not required to fulfil any obligation on his part, nor he had to make any compliance and the suit was fixed for filing of written statement by the defendants---Record had also shown that defendants were also called absent on that date; and at the most order regarding ex parte proceedings against the defendants should have been passed instead of dismissing the suit in default for non-prosecution-Dismissal of the suit for non prosecution, in circumstances, was an act of the court for which parties could not be penalized---Suit of the plaintiff could not be dismissed in default for non prosecution and the order regarding ex parte proceedings against the defendants was to be passed---Application for restoration of suit, in circumstances, was allowed and suit was restored to its original stage when it was dismissed in default.

Muhammad Imran Butt for the Plaintiff.

Arif Khan for the Defendant No.2.

YLR 2010 KARACHI HIGH COURT SINDH 2125 #

2010 Y L R 2125

[Karachi]

Before Amer Raza Naqvi, J

ABDUL MAJEED and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-205 of 2009, decided on 21st April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/324/44 7/33 7-A (ii), F(i), F-(iii)/ 147/148/149---Qatl-e-amd---Bail, refusal of---In the present case one person had died from the side of complainant and the injuries sustained by the other side were not of serious nature and said injuries were caused by hard and blunt substance; it could not be said that intention was on the part of the complainant to commit murder of accused persons---Though in -cases of counter versions normally bail was to be granted leaving it to the Trial Court to decide as to who was aggressor; however, that was not a hard and fast rule and it could not be held that whenever there was counter version bail had to be granted---Accused being not entitled to grant of bail, their bail application was dismissed.

1972 SCMR 682; 2005 PCr.LJ 505; 2004 MLD 1739; 1976 SCMR 391; 1996 SCMR 1845; 2009 PCr.LJ Pesh. 193; 2009 SCMR 32; 1983 SCMR 278; 1992 SCMR 501 and 2005 SCMR 1402 ref.

Noor Hassan Malik for the Applicants.

Miss. Rizwana Jabeen Siddiqui for the Complainant.

Agha Athar Hussain Pathan, A.A.-G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2129 #

2010 Y L R 2129

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD YOUSUF and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 396 of 2009, decided on 5th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.392/34 & 412---Robbery---Bail, grant of---Police converted S.392, P.P.C. to S.412, P.P.C.---Accused were not put to identification parade through complainant after their arrest to connect them in the commission of crime of robbery nor any incriminating evidence was available to connote that case against accused persons fell within the ambit of S.412, P.P.C.---Concession of bail was granted to accused in circumstances.

S. M. Sharfuddin for the Applicants.

Fazlur Rahman Awan for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2146 #

2010 Y L R 2146

[Karachi]

Before Shahid Anwar Bajwa, J

MUMTAZ alias KAKA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1186 of 2009, decided on 20th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of---Had it been only a case of recovery of hatchet, clothes or blanket on pointation of accused, certainly accused would have been entitled to bail, but that was not the only piece of evidence---Telephone calls were made from telephone number of the deceased---When record of the phone to which the calls were made, was checked and it was found to be phone number in the use of the wife and the sister-in-law of accused---When juxtaposed with a reasonable, plausible motive did create a chain link of circumstantial evidence---Court was not required to go deeper into the evidence at the bail stage---All that was to be seen, was that whether, prima facie, accused was reasonably connected with the crime or not---In the present case chain appeared to link accused with the crime--Bail application was dismissed.

Javed Iqbal v. State 2008 PCr.LJ 1578; Ghazi Sarfraz v. State 2008 PCr.LJ 1520; Muhammad Ali v. State 2008 PCr.LJ 87; Qurban Ali alias Fouji v. State 2007 PCr.LJ 647; Ghula Qasim and another v. State and another 2008 PCr.LJ 1356; Shazia Kausar v. State and another PLJ 2008 Sh. C. (AJ&K) 170 and Mir Hazar Malik v. State 1999 SCMR 1377 ref.

M.R. Sayed for the Applicant.

M. Waheed Kazi for the Complainant.

Imtiaz Ali Jalbani, A.P.G.

YLR 2010 KARACHI HIGH COURT SINDH 2164 #

2010 Y L R 2164

[Karachi]

Before Mrs. Qaisar Iqbal, J

MUHAMMAD SHAHZAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 520 of 2008, decided on 20th May, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, refusal of---Accused had failed to produce any evidence to prove that mobile recovered from his possession was his personal property---State Counsel had pointed out that accused was involved in innumerable cases pertaining to the street crimes---Accused could not be set free on account of his involvement in number of F.I.Rs. lodged at different Police Stations---Concession of bail could not be frequently extended on account of repetition of crimes by accused---Trial Court, however, was directed to expedite the matter and dispose of the same within specified period.

Arifa Thebo for the Applicant.

M. Sabir Hyder, A.A.-G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2165 #

2010 Y L R 2165

[Karachi]

Before Mushir Alam and Aqeel A. Abbasi, JJ

TAUFIQ BAWA and 6 others---Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI through Nazim-e-Aala and 4

others---Respondents

Constitutional Petition No, D-282 of 2006, decided on 2nd October, 2009.

Constitution of Pakistan (1973)---

----Arts.199 & 9---Constitutional petition---Extention of boundary of park---Petitioners had impugned action of Authority, whereby the boundary of park was extended---Objection of petitioners was that park had been extended over conduit water main up to boundaries of petitioners' residential property thereby affecting their free ingress and egress and access to the 60 ft. wide road on one side; and on the other hand it led to the water main--- Authorities contended that boundaries were being extended over the water main in order to save same from further encroachment and misuse---Petitioners contended that since park had been constructed at height, one would look into house of the petitioners violating their privacy, and affecting their right to enjoy property as guaranteed under Art.9 of the Constitution---Constitutional petition was disposed of in the terms that the petitioners would construct boundary wall in accordance with their lease property; that Authority would provide two way lane between park and the residence of the petitioners providing free entry and exit from their respective residence and lane connecting to the 60 ft. wide road; and that the park and the boundary would be constructed in a fashion that it would not affect privacy of the petitioners' residence.

Raja Qasit Nawaz for the Petitioner.

Miran Muhammad Shah, A.A.-G. Manzoor Ahmad for C.D.G.K.

Tasawar Hussain Hashmi for KW&SB.

Khalid Shah holding brief for I.H. Zaidi.

YLR 2010 KARACHI HIGH COURT SINDH 2166 #

2010 Y L R 2166

[Karachi]

Before Salmam Ansari, J

ZAHID HUSSAIN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 1071 of 2008, decided on 17h October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 9(c)---Bail, refusal of---Accused was the conductor of Bus from where 24 Kgs of `Garda Charas' was recovered from its upper portion---Said Bus was coming all the way from Peshawar to Karachi and it would be improbable that accused/conductor would not know the nature of his cargo considering the long journey undertaken by the bus---Punishment for an offence falling under S.9(c) of the Control of Narcotic Substances Act, 1997, was death or imprisonment for life---Bail application of accused was dismissed.

Jameel Khan v. State 2003 PCr.LJ 1139; Imdad Ali Junejo v. State 2002 PCr.LJ 1086; Adil Jan v. State 1999 PCr.LJ 808; Noor Ali Khan v. State 2003 MLD 1637; Javid Gul v. State 2002 PCr.LJ 1429; Raees Khan v. State 2005 PCr.LJ 76; Zar Gul v. State 2003 PCr.LJ 1392 and Waris Khan v. State 2000 PCr.LJ 1225 ref.

Z.U. Mujahid for the Applicant.

Ashfaq Hussain Rizvi for Special Prosecutor A.N.F.

YLR 2010 KARACHI HIGH COURT SINDH 2170 #

2010 Y L R 2170

[Karachi]

Before Khadim Hussain M. Shaikh and Sajjad Ali Shah, JJ

SHAHID HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. D-46 of 2006, decided on 17th June, 2009.

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

----S. 9(c)--- Possession of narcotic---Appreciation of evidence---Sentence, reduction in--- Counsel for accused submitted that they would not dispute the conviction of accused and also would not press the appeal and had requested that sentence awarded to accused could be reduced to that already undergone and the fine could also be reduced---Record had reflected that accused was in custody since his arrest from 24-10-2003 till date---Accused was stated to be first offender and had shown his remorse and penitence as convict and since he had served substantive sentence of more than seven and half years including the remission, accused deserved leniency---High Court while dismissing the appeal of accused as not pressed and maintaining the conviction awarded to hint, reduced the sentence from ten years to one already undergone and also reduced the fine from Rs.25,000 to Rs. 5,000.

Nazimuddin v. The State 2007 SCMR 206; Muhammad Hashim v. The State PLD 2004 SC 856 and Amanat Ali v. State 2008 SCMR 991 ref.

Ghulam Shabir Dayo and Qurban Ali Malano for the Appellant.

Fazal Muhammad Khokhar, S.P.P. for the State.

Date of hearing: 17th June, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 2176 #

2010 Y L R 2176

[Karachi]

Before Mrs. Yasmin Abbasey, J

MUHAMMAD LAIK and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 271 of 2009, decided on 1st June, 2009.

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

----S.497---Penal Code (XLV of 1860), S.302(b)/34---Qatl-e-amd---Bail, grant of--No specific role of both accused had been shown in the F.I.R. except their presence along with main accused---Recovery of 3 empties of .12 bore, though was shown from possession of accused, but in absence of any specific role and intention to commit any crime, accused could not be held responsible for the offence alleged---Even if case of prosecution about recovery of pistol and 3 cartridges of .12 bore pistol were taken into consideration, then that required proper report of ballistic expert that whether empties recovered from place of incident matched with the pistol recovered from one of accused persons---Accused were released on bail.

2009 SCMR 299 and 1985 SCMR 402 ref.

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

----S.497--- Bail--- Abscondence of accused--- Effect--- Fugitive from law and courts would lose some of their normal rights granted by procedural and also by substantive law--- Unexplained and notice-able abscondence, disentitled a person for concession of bail notwithstanding merits of the case.

Sher Muhammad Shar for the Applicants.

Manzoor N. Larik for the Complainant.

Imtiaz Ali Soomro, Addl. A.A.-G.

2010 Y L R 2189

[Karachi]

Before Mrs. Yasmin Abbasey, J

SHERAZ AHMED through his Attorney---Appellant

Versus

Mst. SUGHRA BARI (deceased) through her legal heir and 2 others---Respondents

First Rent Appeal No. 1 of 2006, decided on 16th March, 2006.

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

----Ss. 17(2)(ii)(a) & 24---Ejectment of sub-tenant after vacating the premises by original tenant---Sub-lessee or an under tenant was a person bound by a decree for possession obtained by the lessor against the lessee, no matter, whether the sub-lease was created before or after the suit, provided the eviction was based on a ground which would determine sub-lease---After vacating the premises in question, by the original tenant, appellant who was put in possession of the premises as sub-tenant by the original tenants, had no locus standi in the premises in question because after vacating the premises by the original tenants, he had to go with them---Subtenant did not hold any title in his favour to retain the possession on account of his own admission to be sub-tenant of original tenants, after vacating the premises by original tenants , he stood no where.

1968 SCMR 734; AIR 1932 Cal. 241; PLD 1968 Lah. 20; 1986 CLC 1378 and 1986 CLC 110 ref.

Muhammad Nasarullah Siddiqui for the Appellant.

Ishrat Zahid Alvi for the Respondent No.1.

M. Hassan Akbar for Respondent No.2.

Abdul Ghafoor Khan for Respondents Nos. 3 and 4.

Date of hearing: 16th March, 2006.

YLR 2010 KARACHI HIGH COURT SINDH 2196 #

2010 Y L R 2196

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

SHAMIM KHAN---Appellant

Versus

ISLAMIC REPUBLIC OF PAKISTAN and others---Respondents

High Court Appeal No. 26 of 2009, heard on 17th December, 2009.

Civil Procedure Code (V of 1908)---

----O. IX, Rr.8, 9---Law Reforms Ordinance (XII of 1972), S.3---Counsel and client---Dismissal of suit for non-prosecution---Restoration of suit---High Court appeal---Suit filed by the plaintiff having been dismissed for non-prosecution, plaintiff moved application for restoration of suit, which had been dismissed---Suit was dismissed by single Judge of High Court on the ground that counsel appearing on behalf of the plaintiff had not filed personal affidavit to explain his non-availability on dates of hearing---Court had observed that the negligence of the counsel being the negligence of the party, no sufficient cause was available to restore the suit---Validity---Held, it was no doubt the duty of the litigant to follow up the matter diligently, but one might not be oblivious of the fact that a party usually depended on the counsel for the purposes of keeping up track of the case---Where counsel would show negligence, invariably, the court imposed heavy cost, while undoing any order, however, where absence was sufficiently explained, the court would take relatively lenient view for law favoured adjudication on merits---In the present case counsel of the plaintiff was admitted in the hospital and then succumbed to ailment later on, which fact was sufficient to exercise discretion for the restoration of the case---Had such fact been in the knowledge or brought to the notice of the single Judge of High Court, the order might have been different---Impugned order was set aside and matter was restored to its original position and the plaintiff was directed to appear before the Single Judge, however subject to payment of cost.

Seth Shivrattan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. PLD 1965 SC 669 and Zahid Ahmed v. Deputy Director Adjudication and 2 others PLD 2006 Kar. 252 ref.

K.A. Wahab for the Appellant.

Ashiq Ali Anwar Rana for the Respondent No.3.

Khalid Dogar for the Respondent No.2.

Dilawar Hussain and Muhammad Amin for Respondents Nos.8 and 10.

YLR 2010 KARACHI HIGH COURT SINDH 2214 #

2010 Y L R 2214

[Karachi]

Before Azizullah M. Memon, A. C. J.

MUHAMMAD AKBER---Applicant

Versus

CRESCENT COMMERCIAL BANK LTD. and others---Respondents

Transfer Application No. 38 of 2007, heard on 4th August, 2008.

Civil Procedure Code (V of 1908)---

----S. 24---Constitution of Pakistan (1973), Art.203---Transfer of suit---Civil Court, after hearing the parties recorded the findings that the proper forum for filing of the suit was the Special Banking Court and that jurisdiction of the civil court of ordinary jurisdiction stood barred to entertain the suit---Civil court referred the case to High Court to transfer the matter to the competent Court instead of returning the plaint for presentation to the proper forum---Validity---Civil court having recorded the finding that the dispute between the parties was to be exclusively heard and decided by the Special Banking Court, it should have directed for return of the plaint of the suit to the plaintiff for presentation of the same before the Special Court without making any reference to High Court---Under Art.203 of the Constitution it was directed that the record and proceedings of the suit be returned back to the civil court with further direction to return the plaint of the suit to the plaintiff for presentation of the same before the competent Court of law and for its disposal accordingly.

Grain System (Pvt.) Limited v. Agricultural Development Bank 1993 SCMR 1996 ref.

S.A. Shabaaro Rizvi for the Applicant.

Masood Anwar Ausaf for the Respondents.

Rizqan Ahmed Siddiqui for D.A.G.

YLR 2010 KARACHI HIGH COURT SINDH 2226 #

2010 Y L R 2226

[Karachi]

Before Amir Hani Muslim, J

KASHIF SAEED SHAH--- Applicant

Versus

ZULFIQAR ALI ZAARI and another---Respondents

Criminal Revision No. 77 of 2006, heard on 13th July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.90, 200 & 204 and Preamble---Private complaint---Issuance of process--Complainant had contended that Trial Court which in private complaint was bound to issue warrants, in the first instance, was not justified to issue process and by so doing, had violated the procedure---Validity---Court had adopted the correct procedure because S.204, Cr.P.C. required a court to issue process, if it was of the opinion that sufficient material was available against accused for trial---Section 204, Cr.P.C. had further authorized the court that even in non-bailable offences, the process could be issued in the first place, unless the court was of the opinion that issuance of process could defeat proceedings by absconsion---Said provisions of law got further strength from provisions of S.90, Cr.P.C., which again had empowered the Court to exercise its discretion; and, if the court was of the opinion that issuance of process might defeat the proceedings, then the court after recording reasons could issue warrants---Grievance of the applicant/complainant was foreign to the provisions of Ss.90 & 204 of Cr.P.C.-Criminal Procedure Code was meant to advance justice and the provisions provided therein were not mandatory in nature, but were directive as no penalty for non-compliance had been provided therein---Procedure adopted by the Trial Court, in circumstances, was proper and no injustice had been caused to the applicant---Application was dismissed.

Noor Bibi v. State 2005 PCr.LJ 505 distinguished.

Nasir Rizwan Khan for the Applicant.

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

YLR 2010 KARACHI HIGH COURT SINDH 2238 #

2010 Y L R 2238

[Karachi]

Before Shahid Anwar Bajwa, J

M. SHAFQAT IMRAN---Applicant

Versus

THE STATE through M.C.C. (Preventive) Office of D.E.C., JIAP, Karachi---Respondent

Criminal Bail Applications Nos. 847 and 848 of 2009, decided on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497--- Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, refusal of---Quantity of heroin powder allegedly recovered from accused being 3 kgs. offence fell under S.9(c) of the Control of Narcotic Substances Act, 1997---Prima facie, allegations of transportation of narcotic being against accused; S.7 of Control of Narcotic Substances Act, 1997 was attracted---Since it was alleged that bag containing heroin fell from the van and van was being operated by accused, accused would be in constructive possession of the bag in question, S.6 of Control of Narcotic Substances Act, 1997 would also be attracted---Accused had been named in the F.I.R. and they were directly and clearly implicated---Accused, in circumstances were not entitled to facility of bail.

Sohail Masood Ansari v. The State 1997 MLD 1897; Mubarak Ali and another v. The State 1998 PCr.LJ 238; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Jaggat Ram v. The State 1997 SCMR 362; Muhammad Irshad v. The State 1989 ALD 17; Bootal Masih v. The State 1993 PCr.LJ 1198; Muhammad Shafique v. The State 1992 PCr.LJ 1550; Tila Muhammad v. The State 2003 PCr.LJ 1379; Mushtaq Ahmed and 2 others v. The State 1999 MLD 445; Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ 582; Muhammad Arif Hussain v. The State 1999 MLD 939 and Sajjad Hussain v. State 1996 PCr.LJ 1437 ref.

Anwar Ahmed Khan Yousufzai for the Applicant.

Ghulam Muhammad Memon for the State.

Ashsiq Raza, D.A.G.

YLR 2010 KARACHI HIGH COURT SINDH 2244 #

2010 Y L R 2244

[Karachi]

Before Ahmed Ali M. Shaikh, J

MUHAMMAD TAHIR alias Tahir Jaffar ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.470 of 2010, decided on 20th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.409, 420, 218, 468, 471 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, cheating, forgery and using as genuine a forged document---Bail, grant of---Further inquiry---Allegation against accused was that of criminal breach of trust under S.409, P.P.C.--- With regard to applicability of S.409, P.P.C., prosecution must prove not only entrustment or domain over property, but also that accused, either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully offered some other person to do so---Prosecution must affirmatively prove said ingredients, but the prosecution could not produce any evidence in that respect---Prosecution was " not in possession of any proof that accused had prepared or got encashed the cheques in question from the concerned bank or he along with co-accused got opened a false bank account---Unless the prosecution prima facie would satisfy the court about the culpability of a person, bail to him could not be withheld merely on the basis of presumption of guilt---Unless in the light of evidence in the hands of prosecution, the case was brought within the parameters of expression `reasonable grounds' to believe that the offence with which a person was being charged was committed by him, the bare accusation would not be sufficient to curtail his liability---Offences under Ss.420, 218 & 471, P.P.C. were bailable, while S.468, P.P.C. and S.5(2) of Prevention of Corruption Act, 1947, did not fall within the ambit of prohibitory clause of S. 497(1), Cr. P. C. ---Medical Officer reported that accused was a known Cardiac and Diabetic case; he also suffered Chest Pain, difficulty in breathing, palpitation and pain in right shoulder---Accused, in circumstances deserved concession of bail on medical grounds---Sufficient grounds being available to believe that case of accused required further inquiry, he was granted bail.

Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668 and Abdul Rashid Nasir and others v. The State 2009 SCMR 517 ref.

Mehmood A. Qureshi for Applicant.

Imtiaz Ali Jalbani, A.P.G. for the State along with Investigating Officer Sajjad Ali for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2255 #

2010 Y L R 2255

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

ABDUL GHANI @ GHANO---Applicant

Versus

THE STATE---Respondent

Criminal Appeal No.312 of 2009 and Criminal Acquittal Appeal No. 43 of 2010, decided on 2nd June, 2010.

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

----S. 9(c)---Penal Code (XLV of 1860), S.353---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Possessing narcotics and arms and assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Sentence, reduction in---Witnesses of the prosecution gave the evidence in support of the case and defence had failed to shatter the same in cross-examination---Trial Court had rightly concluded that the alleged narcotic substances were secured firstly from the personal possession of accused; and secondly from his house on his pointation, in the respective quantity mentioned in the common memo, before the official witnesses---Expert report had also been obtained in the matter in regard to secured narcotic substances, which was in the affirmative---No reason was available in the matter disregarding the witnesses to any extent, as to the apprehension, search, recovery and arrest---Defence not only seemed to have failed to shatter the prosecution evidence in cross-examination, but also failed to take any specific defence as to the alleged innocence of accused throughout the case---Huge amount of Rs.696,579 was recovered from the house of accused; and it was hard to assume that such a huge amount could be foisted just to falsely implicate the accused---No infirmity was found in the impugned judgment of the Trial Court whereby accused was convicted and sentenced---Appeal against acquittal being devoid of force was dismissed, however, accused was first offender and sole bread-earner of his family, while dismissing his appeal, quantum of sentence awarded to accused was reduced from seven years' R.I. to that of five years' R.I., without disturbing the findings as to imposition of fine of Rs.100, 000.?

Ms. Abida Parveen Channar, Special Public Prosecutor, ANF for the State (in Criminal Acquittal No.43 of 2010).

Saadat Hassan for Appellants (in Criminal Appeal No.312 of 2009) and for Respondents (in Criminal Acquittal Appeal No.43 of 2010).

Ms. Abida Parveen Channar, Special Public Prosecutor, ANF for the State (in Criminal Appeal No. 312 of 2009).

Date of hearing: .27th March, 2010.

2010 Y L R 2297

[Karachi]

Before Shahid Anwar Bajwa, J

KHADIM HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-481 of 2010, decided on 3rd February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9---Possessing narcotic---Bail, refusal of---Challan of the case had been submitted---In absence of any document on record, neither it could be agreed nor disagreed with prosecution that it was the accused who was delaying proceedings of the trial---Threshold quantity under S.9(c) of Control of Narcotic Substances Act, 1997 was 1000 grams, whereas quantity recovered in the case was 1500 grams which was 50% more than the threshold quantity---It would not be reasonable to classify 50% as marginally more---Trial Court had rightly observed that provisions of S.103, Cr. P. C. were not attracted to narcotic cases as provided under S.25 of Control of Narcotic Substances Act, 1997---Moreover, when an independent person was not willing to be a witness, it would be difficult to come to the conclusion that he would be eager to disclose his name---As offence against accused fell within the prohibitory degree under S.497, Cr.P.C., bail application of accused was rejected.

Habibullah G. Ghori for Applicant.

Zulfiqar Ali Sangi, Special Prosecutor, A.N.F., Sukkur.

YLR 2010 KARACHI HIGH COURT SINDH 2299 #

2010 Y L R 2299

[Karachi]

Before Gulzar Ahmed and Salman Hamid, JJ

WASI AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 105 of 2010, decided on 15th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.409/420/468/471/34---Criminal breach of trust, cheating, forgery and using as genuine a forged document---Bail, grant of---Further inquiry---Main accused was Manager of a Bank who had misused/ misappropriated the account of accused as he credited defalcated amount of Rs.10 million in the account of accused, out of which an amount of Rs.1.1 million was withdrawn by main accused and remaining Rs.8.9 million were transferred by him in the account of one who was shown in the challan as a witness---No recovery had been made from accused---Case hinged mainly on the documentary evidence which had been collected by the prosecution and there was no possibility of tampering with the same---State Counsel had also conceded to the grant of bail to the accused---Case of accused being of further inquiry, he was granted bail.

Saeed Ahmad v. The State 1996 SCMR 1132 ref.

Fahim Riazuddin for Applicant.

Umer Hayat Sandhu for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 2306 #

2010 Y L R 2306

[Karachi]

Before Muhammad Tasnim, J

AKMAL AMIN PARACHA---Plaintiff

Versus

Shaikh AMIR HASAN-Defendant

Suit No. 143 of 2010, decided on 25th May, 2010.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.151--- Suit for specific performance of agreement and recovery of token money received by defendant under agreement to sell---Plaintiff's application under S.151, C.P.C., for directing defendant to deposit token money with Nazir of Court for investing same in profitable Government securities on the ground that if defendant wound up his business and proceeded elsewhere, then decree, if passed in his favour, could not be executed---Validity---Defendant had admitted execution of agreement to sell and receipt of token money---Defendant had undertaken under agreement to clear all dugs in respect of suit property and obtain no-objection certificate from relevant authorities---Balance sale price was payable to defendant within three months after signing of agreement---Parties had agreed that defendant on receiving full and final payment would convey suit property to plaintiff---Defendant after receiving token money had avoided execution of sale-deed---Plaintiff after sending to defendant several letters and not receiving reply thereof revoked agreement with notice to him---Since agreement had been revoked and property had not been conveyed to plaintiff, thus, there was no justification of keeping plaintiff's money by defendant with him---Suit would be decided after recording evidence of parties---High Court accepted such application in terms of prayer made therein.

K.A. Wahab for Plaintiff.

Shafaat Hussain for Defendant.

YLR 2010 KARACHI HIGH COURT SINDH 2315 #

2010 Y L R 2315

[Karachi]

Before Muhammad Ali Mazhar, J

AKBAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-688 of 2009, decided on 19th March, 2010.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 148, 149, 365-B, 504 & 496---Qatl-e-amd, abduction, intentional insult with intent to provoke breach of the peace--- Bail, refusal of--- Two eye-witnesses had clearly involved accused in the crime, which could not be overlooked---Challan had already been submitted---Report of Investigating Officer was not binding upon the court, when that report was not submitted by the Investigating Officer, but a part of an inquiry conducted separately on the request of uncle of accused was submitted---Said report, in circumstances, did not merit any consideration in case of bail when specified role had been assigned to the accused and he had also been implicated by the eye-witnesses of the incident---Version of the complainant was supported by two eye-witnesses with clear statement recorded under S.161, Cr.P.C.--F.I.R. revealed that specific role had been assigned to accused that he along with the co-accused made straight fires from their guns and killed two women and that version had been fully supported by the two eye-witnesses in their statements recorded under S.161, Cr.P.C.--- Accused, in circumstances, being not entitled to the concession of bail, his bail, application was rejected.

2009 SCMR 1210; 2005 PCr.LJ 462; PLD 1994 SC 172; 2005 PCr.LJ 462 and 2004 SCMR 1018 ref.

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

----Ss. 497 & 498---Bail application--Points to be considered---For the purpose of deciding a bail application, court was required to examine and appraise the prosecution evidence with a view to observe not only the facts of prosecution case, but also to make out tentative assessment of the possibility of the offence having taken place as claimed by the prosecution and the question of prima facie involvement of accused, specially in cases which were punishable with death, imprisonment for life or ten years so as to determine, whether the case fell within the prohibition contained in S.497, Cr.P.C.---While hearing a bail application at the initial stage of case, the court had to consider the allegations made against accused in F.I.R.; evidence which the prosecution proposed to produce before the court, the defence plea raised by accused and had to make a tentative assessment.

2009 SCMR 1210 ref.

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148, 149, 365-B, 504 & 496---Qatl-e-amd, abduction, intentional insult with intent to provoke breach of peace--Bail, grant of---Further inquiry---No role had been assigned to co-accused in F.I.R. and his name was only mentioned with other co-accused without any allegation---Direct allegations were levelled against accused persons, who allegedly made straight fires from their guns upon the sister-in-law and aunt of the complainant with intention to kill them---Even in the conclusion of F.I. R., the complainant again repeated that accused persons by causing gunshot injuries had killed his sister-in-law and aunt and kidnapped his sister on the force of weapons---No specific role had been assigned to co-accused in the F.I.R.---Co-accused, in circumstances, was entitled to concession of bail and his case could be treated a case of further inquiry---Co-accused was admitted to bail, in circumstances.

Amjad Ali Sahito for Applicants.

Shahid Ahmed Shaikh, Assistant Prosecutor General, Sindh for the State.

Nazeer Ahmed Bhatti for Complainant.

YLR 2010 KARACHI HIGH COURT SINDH 2325 #

2010 Y L R 2325

[Karachi]

Before Muhammad Tasnim, J

SAIMA TABBASUM---Petitioner

Versus

Syed ALI ASIF and 2 others---Respondents

Civil Petition No. 135 of 2009, decided on 19th March, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Family Court in its judgment had found that plaintiff was not entitled for recovery of dowry articles and Appellate Court upheld the judgment of the Family Court which had been impugned by the plaintiff in constitutional petition---No documentary evidence was brought on record by the plaintiff to substantiate her claim with regard to dowry/other articles; she had only stated in her examination-in-chief that 62 articles were lying in the flat of defendant and that her passport had been withheld by the defendant---Details of said articles were not provided by the Plaintiff nor any documentary evidence was brought on record in respect of dowry or other articles---Nothing being on record before the Family Court to decree the suit filed by the plaintiff, counsel for the plaintiff was not right in contending that material evidence had been overlooked---Evidence on record had shown that findings recorded by Family Court, were in accordance with the evidence---Neither the jurisdiction of the court had been challenged, nor conduct of proceedings by the courts below had been called in question---No illegality having been found in the impugned concurrent judgments of the courts below, same could not be interfered in constitutional jurisdiction of High Court.

Sardar Sher Afzal for Petitioner.

Syeda Sara Kanwal for Respondent No.1.

Dates of hearing: 18th and 19th March, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2334 #

2010 Y L R 2334

[Karachi]

Before Ghulam Sarwar Korai, J

MUHAMMAD YASEEN alias YASEEN and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 1118 of 2009, decided on 7th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 337-A(i), 353, 427, 431, 504, 147 & 148---Attempt to commit qatl-e-amd, assault and mischief---Protective bail, grant of---Accused were granted protective bail for a period of seven days and thereafter they filed their pre-arrest bail application and notice was ordered, but they were arrested in another case---Application for excuse was also moved by accused on the same day, but even then their bail application was dismissed for non-prosecution, though same was required to be decided on merits or to be adjourned for next date---High Court, considering the application for excuse of the absence of accused; as nothing had been done by the Trial Court, once again granted, protective bail to accused for a period of seven days; so that they could be able to approach the Trial Court by way of filing their application for bail before arrest and same would be decided on merits.

Noor Hassan Malik for Applicants.

YLR 2010 KARACHI HIGH COURT SINDH 2372 #

2010 Y L R 2372

[Karachi]

Before Ahmed Ali M. Shaikh, J

Mrs. NAGHMA NAWAB---Applicant

Versus

WASEEM NAWAB---Respondent

Civil Revision No. 49 of 2009, decided on 29th April, 2010.

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

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O. VIII, R.10---Suit for possession, declaration, permanent injunction and mesne profit---Failure to file written statement by defendant---Procedure---Defendant on two occasions moved applications for extension of time for filing the written statement/objections etc.---Second application which was filed 21 days after the first application, was dismissed and judgment was passed in favour of the plaintiff---Whole exercise was completed within 21 days and such conduct on the part of Trial Court reflected that neither sufficient time nor last chance was provided to the defendant---Only one adjournment was granted in routine to file the written statement, but the Trial Court did not use the expression that it was the last opportunity given to file the written statement'; or thatno further opportunity would be granted'---Trial Court, in circumstances, was not justified to strike off defence of the defendant---Such action of Trial Court, tantamounted to applying penal clause without application of mind and in violation of law---Before passing the judgment and decree, the Trial Court was required to see memo of plaint and documents on record in order to reach at correct conclusion whether they were admissible or inadmissible in evidence and if the Trial Court had to reach the conclusion that the plaintiff had good cause on merits, in that eventuality, it had to pass the judgment and decree---Provisions of striking off the defence required greater care on the part of the Trial Court; as it would shut out one party to defend itself and virtually it would be at the mercy of the other party to do justice between the parties---If party had failed to file written statement judgment could be pronounced against such party, but that judgment would not mean decreeing the suit ipse dixit without any proof, whatsoever--Court was obliged to give reasons indicating application of mind and it was appropriate that cases be decided on merits after recording the evidence--Impugned judgment and decree passed by the Trial Court and upheld by the Appellate Court were set aside and case was remanded to the Trial Court to decide afresh on merits after providing reasonable opportunity to the defendant for filing the written statement.

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

----O. VIII, R.10---Failure to present written statement by defendant---Striking off defence---Rule 10 of O. VIII, C.P.C. had clearly demonstrated that in every case in w1eich the written statement had not been filed, the court was not bound or required to pronounce the judgment and decree as it was not supported by the law by using the word "may" in O. VIII, R.10, C.P.C.; it had been left open to the court that on consideration of the material annexed with the plaint pronounce the judgment or could pass such order it deemed fit.

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was always discretionary and equitable in nature and no party was entitled to it as of right---Object of High Court while exercising its discretionary jurisdiction had always been to foster the justice, preserve the rights of the parties and to right a wrong---Discretionary revisional jurisdiction was meant to correct the error and to check the mistake and lapses committed by the courts below so as to ensure that judgments/orders passed by the lower courts were not marked by lack of jurisdiction and to prevent the illegal and irregular exercise of jurisdiction.

S.M. Iqbal Shah for Applicant.

Chaudhry Javed Yousuf for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 2387 #

2010 Y L R 2387

[Karachi]

Before Munib Akhtar, J

AIJAZ ALI SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-227 of 2010, decided on 22nd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing narcotic---Bail, grant of---Quantity of charas involved in the case, did not exceed one Kg., which had made it a borderline case and in such like case the courts had granted bail---Recommended sentence for a conviction in respect of the quantity of charas involved in the case was only four years and six months---Even if accused was ultimately convicted of the offence, his sentence could hardly be the maximum punishable for a conviction under S.9(c) of Control of Narcotic Substances Act, 1997 or anywhere near that sentence---There did not appear to be any exceptional or aggravating circumstances in the case as would disentitle accused from the grant of bail---Accused was admitted to bail, in circumstances.

2004 YLR 439; 2006 PCr.LJ 1745 and PLD 2009 Lah. 362 ref.

Abdul Baqi Jan Kakar for Applicant.

Zulfiqar Ali Sangi, Special Public Prosecutor for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2411 #

2010 Y L R 2411

[Karachi]

Before Aqeel Ahmed Abbasi, J

ALI SHER---Applicant

Versus

Mst. RAZIA BEGUM and others---Respondents

Revision Application No.13 of 2007, decided on 10th June, 2010.

Specific Relief Act (I of 1877)---

----S.42---Qanun-e-Shahadat (10 of 1984), Art. 72---Declaration of title---Fraudulent and forged documents---Proof---Non-production of documents---Parties admitted existence of sale agreement and general power of attorney but plaintiff denied execution of the same and alleged them to be bogus and forged documents---Trial Court dismissed the suit but Lower Appellate Court decreed the same---Validity---By merely filing written statement defendant claimed the documents in question to be valid and legal and further claimed to have paid sale consideration in respect of subject property to plaintiff at the time of execution of alleged sale agreement and further claimed to have taken over the possession of such property--Such claim of defendant could not stand test of evidence as neither defendant produced himself as witness to substantiate such claim or chose to cross-examine the plaintiff in order to refute allegations and to dislodge assertions of plaintiff---High Court did not find any error in the judgment of Lower Appellate Court whereby claim of defendant was denied---Finding of Lower Appellate Court regarding assertions/claim of plaintiff was based on sound legal principle and in absence of any finding on the validity of alleged forged documents by both the Courts below without even examining the same or seeking production of such documents during the course of proceeding and exhibiting such document as per law, whereafter the same could have stood the test of evidence, any finding deciding the fate of such documents could not be considered as valid and in accordance with law---High Court set aside judgments and decrees passed by both the Courts below and remanded the matter to Trial Court for decision afresh after framing of issue relating validity or otherwise of alleged sale agreement and general power of attorney---Revision was allowed accordingly.

Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Imam Dino and others v. Nawaz Ali Shah 2003 CLC 1889; Karachi Development Authority and 2 others v. Taj Mahal Nursery and 3 others 2000 CLC 1352; Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022; Trustees of the Port of Karachi and another v. Faquir Muhammad 1992 MLD 1782; Syed Farzand Raza Rizvi v. Syed Zaheer Mustafa 1988 MLD 463; K.A. H. Ghori v. Khan Zafar Masood and another PLD 1988 Kar. 460; Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2003 SC 594; Muhammad Hassan v. Khawaja Khalid-ur-Rehman 2007 SCMR 576; Muhammad Abdul Karim v. Abdul Aziz and others 2007 CLC 362; Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309; Sarfraz A. Malik v. Anjum Pervaiz and 3 others 2009 MLD 367 and Abdullah and 11 others v. Muhammad Haroon and 8 others 2010 CLC 14 ref.

Abdul Rasheed Mughal for Applicant.

Kamaluddin for Respondent Nos. 1 and 2(a) to 2(i).

Mumtaz Alam Leghari, A.A.-G. for Respondents Nos. 3 to 5.

YLR 2010 KARACHI HIGH COURT SINDH 2421 #

2010 Y L R 2421(1)

[Karachi]

Before Sarmad Jalal Osmany and Tufail H. Ebrahim, JJ

ATIQ-UR-REHMAN---Petitioner

Versus

Mst. RANI and 7 others---Respondents

Constitutional Petition No.D-112 of 2010, decided on 14th June, 2010.

Penal Code (XLV of 1860)---

----S. 406---Constitution of Pakistan (1973), Art.199---Constitutional petition---Criminal breach of trust---Both the parties had filed civil suits against each other which were pending in civil court---Proceedings lodged by the parties against each other should await the decision of civil suits---High Court directed that petitioner shall not create any third party interest in the properties in question till the decision of the civil suits.

Sathi M. Ishaq for Petitioner.

Respondents Nos. 1 and 2 in person.

Adnan Karim Memon, A.A.-G.

YLR 2010 KARACHI HIGH COURT SINDH 2426 #

2010 Y L R 2426

[Karachi]

Before Maqbool Baqar and Salman Hamid, JJ

KARACHI ELECTRIC SUPPLY COMPANY through duly authorized officer---Appellant

Versus

MUHAMMAD SHAHNAWAZ and 46 others---Respondents

High Court Appeal No. 104 of 2010, decided on 3rd June, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.94, O. XXXIX, Rr. 1, 2 & 4---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Maintainability---Ad interim stage--Plaintiffs were employees of Karachi Electric Supply Company and their services were terminated without any prior notice---Single Judge of High Court granted ad interim injunction in favour of plaintiffs against the termination order---Validity---Intervention at ad interim stage, was only permissible where it was found inevitable in order to obviate miscarriage of justice and where interim order was arbitrary, capricious and against well-settled principles of law---Hearing of plaintiff's case was yet to take place and order under appeal was merely an ad interim order---Such order might be confirmed or set aside by Single Judge after hearing the parties---Authorities could even move application under O. XXXIX, R.4, C.P.C. for discharging, varying or setting aside the ad interim order---Division Bench of High Court in intra-court appeal refrained from expressing its opinion regarding effect, implication and purport of judicial pronouncements and legal principle in that context or else as the same would be encroaching upon the jurisdiction of Single Judge of High Court---At ad interim stage of case, it could not be said that the order passed by Single Judge of High Court was capricious, arbitrary or against well-settled principles of law or that the same might result in miscarriage of justice---Division Bench of High Court declined to interfere in the ad interim stay order granted by Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Pakistan Red Crescent Society v. Syed Nazeer Gillani PLD 2005 SC 806; Talit Hussain and others v. Chairman. P.I.C. and others 2002 PLC (C.S) 1; Syed Shahid Raza and others v. Oxford University Press (2003 PLC (C.S) 11); United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Habib Bank Ltd. v. Zia ul Hasan Kazmi 1998 SCMR 60; Pakistan and others v. Public' at Large PLD 1987 SC 305; Aneesa Rehman v. P.I.A.C. and others 1994 SCMR 2232; Shahid Khalil v. P.I.A.C. 1971 SCMR 568; Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and 3 others 1994 SCMR 1593; Walayat Ali Mir v. Pakistan International Airlines Corporation 1994 SCMR 650; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C,S,) 1046; Raziuddin v. Chairman P.I.A. PLD 1992 SC 531; Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School 2004 CLC 1029; Maqbool Illahi v. Khan Abdul Rehman PLD 1960 SC 266; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785; Arshan bi v. Maula Bakhsh 2003 SCMR 318 and Government of West Pakistan v. Begum Aga Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and 31 ref.

Khalid Jawed Khan, Abdul Sattar Pirzada and Rana Ikramullah for Appellant.

Salahuddin Ahmed for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 2445 #

2010 Y L R 2445

[Karachi]

Before Hassan Raza Pasha, J

Mirza MUHAMMAD AKRAM---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No. 673-B of 2010, decided on 10th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), 5.489-F/34--Dishonestly issuing a cheque--Bail, grant of---Principal accused was behind the bars; liability was against co-accused and accused was just a guarantor---Prosecution had conceded that offence under S.489-F, P.P.C. was not made out from the facts and circumstances of the case---Nothing had been recovered from the accused and his custody was no more required by the Police---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C.---Keeping accused behind the bars for an indefinite period would not serve or advance prosecution's case, rather same would amount to punishment before conviction which was not permissible under criminal jurisprudence---Accused was admitted to bail, in circumstances.

Malik Muhammad Siddique Awan for Petitioner.

Mirza Nabeel Tahir for Complainant.

Azmat Ali Bokhari, Standing Counsel for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2460 #

2010 Y L R 2460

[Karachi]

Before Muhammad Tasnim, J

DHANI BUX---Plaintiff

Versus

PROVINCE OF SINDH through Secretary Transport Department, and 3 others---Defendants

Civil Suit No. 511 of 2010, decided on 31st May, 2010.

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

---Ss. 42 & 54---West Pakistan Motor Vehicles Ordinance (XIX of 1965), S.50(3)---West Pakistan Motor Vehicles Rules, 1969, R.80---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for declaration and permanent injunction---Plaintiff being a transporter plying non-air-conditioned buses on specific route---Plaintiff's plea that earlier order of Provincial Transport Authority granting him permission of timings of vehicles operating on such route was withdrawn without providing him an opportunity of hearing---Application by intervener-transporter plying air-conditioned buses on the same route for impleading him as party in suit on the ground that Provincial Transport Authority had rightly withdrawn earlier order obtained by plaintiff by suppressing material facts---Plea of plaintiff that at one time two classes of buses (i.e. A.C. and non-A.C. buses) could ply concurrently; that intervener was not necessary or proper party and controversy involved in suit could be effectively decided without his presence-.. Validity---Provincial Transport Authority was obliged to regulate timings of departure of vehicles, whether they belong to one or more owners---Cumulative effect of S.50(3) of West Pakistan Motor Vehicles Ordinance, 1965 and R.80 of West Pakistan Motor Vehicles Rules, 1969 would be that at one time two stage carriages could not be allowed to ply from one destination to another---Earlier order passed in favour of plaintiff had violated provisions of R.80 of Motor Vehicles Rules, 1969 causing serious prejudice to intervenor, who was plying buses on same route and timings, for which permit had been issued to plaintiff---Court had suspended operation of subsequent order, resultantly such earlier order stood revived and in pursuance thereto plaintiff was plying his buses on same timings and route mentioned in his permit---Case of intervener was that timings of plaintiff's buses were overlapping timings of intervener, which was violative of provisions of Motor Vehicles Ordinance, 1965 and causing financial loss to him--Intervener was a necessary party and his joining to proceedings as defendant would not cause prejudice to plaintiff; but would avoid multiplicity of litigation between the parties---Application was accepted in circumstances.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Hazrat Khan v. Amanullah Khan and others 1996 SCMR 1217 and Ghulam Ahmad Chaudhry v. Akbar Hussain and another PLD 2002 SC 615 ref.

Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 and Hazrat Khan v. Amanullah Khan and others 1996 SCMR 1217 rel.

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

---O.I, R.10(2)---Joining of necessary or proper parties to proceedings---Principles stated.

Necessary parties are those who ought to have been joined as parties to proceeding and in whose absence no effective decree can be passed. Proper party is a party whose presence before the court is necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in the proceedings. The terms "questions involved" include all matters, material to a proper decision of the case, but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, a person whose interest is likely to be affected even though no relief is claimed against him.

Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 and Hazrat Khan v. Amanullah khan and others 1996 SCMR 1217 rel.

Muhammad Arif Shaikh for Plaintiff.

Imran Ahmed for the Applicants/Intervenors.

YLR 2010 KARACHI HIGH COURT SINDH 2483 #

2010 Y L R 2483

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

ARSHAD PERVEZ and 7 others---Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI through its District Coordination Officer and 5 others--- Respondents

Constitutional Petition No. D-2143 of 2006, decided on 2nd October, 2009.

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

----S. 10(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grant of State land for non-agricultural purposes---Demand for payment of fees/charges for conversion of land---Petitioners had impugned purported demand made by Board of Revenue for payment of fees/charges for conversion of land---Authorities in their comments had denied that there was any scheme for conversion of the poultry lease into permanent lease of 99 years; it was also denied that any demand had been raised by them for payment of any lease money for the conversion---Government vide notification had issued statement of conditions under S.10(2) of Colonization of Government Lands (Punjab) Act, 1912 for grant of State Land for non-agricultural purpose and in one of said conditions, it was specifically provided that land should be disposed of by the Government in accordance with Colonization of Government Lands (Punjab) Act, 1912---Authorities had no power to confer proprietary rights or allow conversion of poultry or agriculture leases or grants for residential, commercial or industrial purposes except through open auction at a price not less than market price---Contention of the petitioner that demand had been raised by Board of Revenue for conversion of lease, was unfounded---Petition being misconceived and unfounded was dismissed, leaving the authorities to take action against unscrupulous encroachers on public land in accordance with law.

Gohar Iqbal for Petitioner.

Manzoor Ahmed Memon for C.D.G.K.

Meeran Muhammad Shah, Additional A.-G.

YLR 2010 KARACHI HIGH COURT SINDH 2489 #

2010 Y L R 2489

[Karachi]

Before Muhammad Tasnim, J

GHOUS MUNAWWAR---Plaintiff

Versus

Mrs. SEEMA TOUFIQ FEROZ and 3 others---Defendants

Suit No. 339 and C.M.A. No. 2352 of 2007, decided on 9th June, 2010.

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

----Ss.42 & 54---Cantonment Board Faisal, Karachi, Building Bye-Laws, 2008, Arts.16 & 141---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---House under construction by defendant at back of plaintiff's house allegedly blocking flow of air and light to plaintiff's house---Application by plaintiff for interim injunction against such construction---Validity---Defendant after purchasing two plots obtained amalgamation thereof and approved building plan from competent authority started construction---Minor deviations found after raising construction stood regularized by Cantonment Board after charging heavy fee from defendant---Defendant had already left compulsory open space on all four sides of amalgamated plot including rear side of plaintiff's house---Question of blocking air to plot falling on rear side of defendant would not arise---Material available on record did not support plaintiff's plea that light and air to his property would be obstructed---Such plea could be proved by leading evidence---No case for grant of injunction was made out by plaintiff---Such application was dismissed in circumstances.

Syed Tahir Hussain Mahmoodi v. Tayyab and others 2009 CLC 1254; Messrs Al-Munaf Corporation v. Sindh Industrial Trading Estate Ltd and others 2009 CLC 950; Muhammad Tariq v. Bank of Punjab and another 2004 CLD 162; Ardeshir R. Cowasjee and others vs. CDGK and others 2008 CLC 1166; Nawab Muhammad Jahangir Khanji v. Messrs Abeeda Enter-prises 2008 MLD 1366; Mst. Seema and others v. M/s. Millennium Developers and others 2003 CLC 632; Nazaz Ali (Nazar Ali's case) 2002 CLC 1464; Muhammad Asif v. Controller of Buildings, KBCA Karachi PLD 2002 Kar. 405; Mst. Jamila v. M/s. Yadgar Service Station/Caltex Petrol Pump and others 2009 YLR 2018 and Haji Fazal-I-Raziq v. Syed Zaman Shah and others PLD 1980 SC 193 ref.

Syed Ali Asghar and others v. Creators (Builders) and others 2001 SCMR 279; Mrs. Alba D' sa and others v. Mrs. Naheed Pabani and others 2008 YLR 738; Moulvi Iqbal Haider and another v. Chief Controller, Karachi Building Control Authority and others 2008 YLR 2031; Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472 rel.

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

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

While deciding the application under Order XXXIX, Rules 1 & 2, C.P.C., plaintiff has to make out prima facie case and show to the court that serious injury or the irreparable loss shall be caused to him, if injunction as prayed for is not granted.

Mehmood Ahmed Khan for Plaintiff.

Khalid Ali Z. Qazi for Defendants Nos. 1 and 2.

Ashraf Ali Butt for Defendant No.3.

Muhammad Idrees Alvi for Defendant No.4.

YLR 2010 KARACHI HIGH COURT SINDH 2505 #

2010 Y L R 2505

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

ABDUL SATTAR---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through its Executive District Officer---Respondent

Constitution Petition No. D-1732 of 2005, decided on 13th October, 2009.

Constitution of Pakistan (1973)---

----Art. 199--- Constitutional petition---Compensation of deficit land---Claim for--Petitioner had impugned the action of the authorities claiming compensation of deficit land, which had been re-numbered in the scheme--- Petitioner applied for development of the scheme and authorities had approved the development scheme and they, in fact constructed and developed roads of the petitioner's area---Counsel for the authorities had stated that such was for the benefit and purpose of the Society and not for any other purpose and that the area random had been affected in town planning---If such town planning was carried out, there would be serious problem between different juncture of lands and none was prepared to leave an inch for public utility purpose---For developing scheme, a particular percentage of property was required for utility and amenity purpose and such area used for the construction of the road was far less than the required percentage of the land---Petitioner and the counsel for authorities being not in attendance petition was disposed of.

Manzoor Ahmed for C.D.G.K. Miran Muhammad Shah, A.A.-G.

YLR 2010 KARACHI HIGH COURT SINDH 2518 #

2010 Y L R 2518

[Karachi]

Before Muhammad Tasnim, J

SHAUKAT HAYAT through Attorney---Applicant

Versus

MANZOOR AREJO and 2 others---Respondents

Civil Revision Applications No.35 to 41 of 2005, decided on 27th May, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss. 115, 96, O.IX, R.6 & O.XLI, Rr.30 & 31---Ex parte judgment---Facts---Proof of---Appellate jurisdiction---Duty of Appellate Court--- Non-discussing of evidence by Lower Appellate Court---Judgment and decrees passed by Trial Court were maintained by Lower Appellate Court---Validity---On appeal entire case was open before Lower Appellate Court and the Court ought to have discussed the entire evidence and then should have reached to a just conclusion---Lower Appellate Court after quoting evidence of parties had neither discussed the same nor had appreciated the material and recorded his finding without application of judicial mind---Findings of Lower Appellate Court were sketchy and could not be sustained---Findings of Trial Court were more close to evidence on record but as the evidence on record was not appreciated by Lower Appellate Court, therefore, the same were set aside by High Court in exercise of revisional jurisdiction vested under S.115, C.P.C., as the same had not been recorded by considering material evidence on record---Lower Appellate Court failed to exercise jurisdiction vested in it causing serious prejudice to defendants---High Court remanded the case to Lower Appellate Court for decision afresh in accordance with law---Revision was allowed accordingly.

Allah Dino v. Haji Ahmed and others PLD 2006 Kar. 148; Abdul Qadir and others v. Haji Ghulam Qadir and others 1996 CLC 1216; Muhammad Din and others v. Mst. Naimat Bibi and others 2006 SCMR 586; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428; Mubarik Ali through L.Rs. v. Amroo Khan through L.Rs. 2007 SCMR 1714; Muhammad Hassan v. Khawaja Khalil-ur-Rehman 2007 SCMR 576 and Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 ref.

Kausar Anwar for Applicant (in R.A. No.35 of 2005).

Mrs. Zubaida K. Jamali for Respondent No.1 (In R.A. No. 35 of 2005).

S. M. Alam for Intervenor (in R.A. No. 35 of 2005).

Mrs. Kausar Anwar for Applicant (in R.A. No.36 of 2005).

Mrs. Zubaida K. Jamali for Respondent No.1 (In R.A. No. 36 of 2005).

S. M. Alam for Intervenor (in R.A. No. 36 of 2005).

Mrs. Kausar Anwar for Applicant (in R.A. No.37 of 2005).

Mrs. Zubaida K. Jamali for Respondent No.1 (In R.A. No. 37 of 2005).

S. M. Alam for Intervenor (in R.A. No. 37 of 2005).

Mrs. Kausar Anwar for Applicant (in R.A. No.38 of 2005).

Mrs. Zubaida K. Jamali for Respondent No.1 (In R.A. No. 38 of 2005).

S. M. Alam for Intervenor (in R.A. No. 38 of 2005).

Mrs. Kausar Anwar for Applicant (in R.A. No.39 of 2005).

Mrs. Zubaida K. Jamali for Respondent No.1 (in R.A. No. 39 of 2005).

S. M. Alam for Intervenor (in R.A. No.39 of 2005).

Mrs. Kausar Anwar for Applicant (in R.A. No.40 of 2005).

Mrs. Zubaida K. Jamali for Respondent No.1 (in R.A. No. 40 of 2005).

Mrs. Kausar Anwar for Applicant (in R.A. No.41 of 2005).

Mrs. Zubaida K. Jamali for Respondent No.1 (in R.A. No. 41 of 2005).

S. M. Alam for Intervenor (in R.A. No. 41 of 2005).

YLR 2010 KARACHI HIGH COURT SINDH 2534 #

2010 Y L R 2534

[Karachi]

Before Dr. Rana Muhammad Shamim, J

Mst. MARIAM BAI and 2 others---Applicants

Versus

MUHAMMAD ASHRAF and 12 others---Respondents

Criminal Revision Application No.121 of 2006 and M.A. No. 494 of 2007, decided on 20th November, 2007.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Illegal dispossession---Claim of applicants was that they being owners of plot in question took possession through process of law from respondent who was their tenant---Applicants had alleged that on the same day accused broke open the lock of the flat in collusion with the tenant from whom the possession was taken and occupied the flat illegally---Application under Ss.3 & 4 of Illegal Dispossession Act, 2005 praying for restoration of possession, had been dismissed by the Trial Court---Trial Court had not allowed the request of the applicants to make accused who had illegally occupied the flat to party in the case and his evidence and cross-examination was not recorded---No bar existed in criminal proceedings that at the first instance the evidence of the complainant and illegal occupant/accused should be recorded to ascertain as to whether the prima facie case was made out as prayed---When the court took cognizance of complaint, it would take cognizance of the offence and would summon proposed illegal occupants---Trial Court only relied on the Police report and did not examine accused who had illegally occupied the flat---Trial Court had arrived at the conclusion without having all material with it---Impugned order passed by the Trial Court was set aside and case was remanded to the Trial Court to decide the application of the applicants afresh after summoning accused who were alleged to be in illegal possession of the flat in question and recording his statement.

Rahim Tahir v. Ahmad Jan PLD 2007 SC 423 and Safdar Ali v. Zafar Iqbal 2002 SCMR 63 ref.

Anwar Hussain and Ajmal Haider for the Applicants.

Asadullah Baloch for the State.

Raja Shamsuz Zaman for Respondents Nos. 1 to 8, 11 and 12.

M. Jeewani for Respondents Nos.9 and 10.

Raja Ali Asghar and Muhammad Yaqoob for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 2549 #

2010 Y L R 2549

[Karachi]

Before Zahid Hamid, J

MUHAMMAD IRFAN---Petitioner

Versus

Haji ABDUL GHANI and another---Respondents

Constitutional Petitions Nos.S-986 and S-951 of 2009, decided on 15th April, 2010.

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

----S.15(2)---Ejectment petition---Ground of bona fide personal need of demised premises together with "adjacent accommodations" (plurality of need) in same building for establishing business at high level by landlord---Landlord's admission to have seven shops in same building---Landlord not specified as to how many shops he required, and how many were lying vacant---Effect---Present case was based on deliberate concealment of material and relevant facts having direct bearing on validity or otherwise of such ground, then landlord could not be given advantage of his own wrong to get eviction of tenant---Phrase "requires the premises in good faith" as used in S.15(2) of Sindh Rented Premises Ordinance, 1979 was opposed to mere wish or desire---Honesty of intention and genuine need of landlord was lacking in the present case--Ejectment petition was dismissed in circumstances.

Allah Din v. Habib PLD 1982 SC 465; Feroz Khan v. Syed Zoha 1996 CLC 949; Pakistan State Oil Company Ltd. v. Pirjee Muhammad Naqi 2001 SCMR 1140; Munawar Hasan v. Badiul Hasan 1992 CLC 2495; Major (Retd.) Muhammad Yousaf v. Mehraj-ud Din and others 1986 SCMR 751; Mst. Nazir Begum v. Iqbai Hussain Qureshi and others 1986 SCMR 753; 1995 CLC 457; Muhammad Rafi and others v. Khalid Rauf Ahmed and another 1986 MLD 722; Sultan Ahmed v. Syed Wahid Hussain 1991 MLD 1340; Muhammad Anwar through his legal representative v. Abdul Shakoor 1982 SCMR 1120; Muhammad Yousuf v. Khalifa Asghar Hussain 1980 SCMR 886; Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR 443; Pakistan Institution of International Affairs, Karachi v. Abbas Ahmed Khan 1986 CLC 1770; Amin and others v. Hafiz Ghulam Muhammad and others PLD 2006 SC 549; Syed Shafiuddin v. Abdul Hakim Khan PLD 1978 Kar. 149; Messrs Sattar Brothers v. Messrs Hanif Jeed & Sons 2005 CLC 1996; Allies Book Corporation through L.Rs. v. Sultan Ahmed and others 2006 SCMR 152; Shahid Nadeem and others v. Muhammad Shafi 2000 SCMR 542; Abid Masood v. Dilshad Khan 1995 SCMR 146; Fasahat Ali v. Mst. Noor Jehan Begum 1991 CLC 1902; Nur Jehan Begum through legal representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Jehan Khan v. Province of Sindh and others PLD 2003 691 ref.

2006 SCMR 117 rel.

(b) Creditor---

----Debtor must seek the creditor.

Ms. Iqra Salim for Petitioner (in C.P. No. S-986 of 2009).

Mian Mushtaq Ahmed for Respondents (in C.P. No. S-986 of 2009).

Mian Mushtaq Ahmed for Petitioner (in C.P. No. S-951 of 2009).

Ms. Iqra Salim for Respondents (in C.P. No. S-951 of 2009).

Date of hearing: 15th April, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2575 #

2010 Y L R 2575

[Karachi]

Before Syed Hasan Azhar Rizvi, J

TAYYAB IQBAL---Plaintiff

Versus

MUHAMMAD IRFAN IQBAL---Defendant

Civil Suit No.1154 of 2006, decided on 2nd June, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Tort---Defamation---Suit for declaration, perpetual injunction and damages---Plaintiff had filed suit for declaration, perpetual injunction and damages for Rs.10 million against the defendant for defamation and for Rs.15 million for pain, mental anguish and torture caused by the defendant to him for his misconduct---Defendant who avoided to contest the suit filed by the plaintiff, had been declared ex parte---Claim of the plaintiff having remained unchallenged, uncontroverted and not denied by the defendant, suit of plaintiff for declaration and perpetual injunction, was decreed---Held, claim of general damages had no standard or method of proof---Rupees 200,000 were awarded as damages for mental shock and suffering received by the plaintiff at the hands of the defendant along with the cost of the suit.

PLD 1996 SC 737 and 2003 CLC 1699 ref.

Muhammad Arif Sheikh for Plaintiff.

Nemo present for Defendant.

Date of hearing: 7th May, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2586 #

2010 Y L R 2586

[Karachi]

Before Abdul Hadi Khoso, J

Mst. KAURI---Petitioner

Versus

P.O. SINDH through Home Secretary, Karachi and another---Respondents

Constitutional Petition No.S-248 and C.M.A. No. 657 of 2010, decided on 4th February, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case---Young lady had filed family suit. for dissolution of her marriage which was pending before the Family Court---Lady was entitled for protection under the law and the interest of justice required that the concerned S.H.O. should provide her strict protection and her other inmates of the house---District Police Officer, in circumstances was directed to see the actual position and provide them strict protection from the high-handedness of the accused, concerned S.H.O. should record the statement of the petitioner; and if he would find the allegations of a cognizable offence, he should obey the directions of the law.

2003 YLR 2168 ref.

Noor Hassan Malik for Petitioner.

Agha Athar Hussain, Asstt. A.-G. for Respondents.

YLR 2010 KARACHI HIGH COURT SINDH 2595 #

2010 Y L R 2595

[Karachi]

Before Sarmad Jalal Osmany, C J and Tufail H. Ebrahim, J

ANSAR ABBASI---Appellant

Versus

Mst. FOUZIA WAHAB---Respondent

H.C.A. No.115 and C.M.As. Nos. 1097, 1098 of 2010, decided on 15th June, 2010.

Defamation Ordinance (LVI of 2002)---

----S. 5(b)---Journalist was not restrained from practising his profession as a responsible journalist provided he remained within the parameters of S.5(b), Defamation Ordinance, 2002.

Jam Asif Mehmood and Wasif Riaz for Appellant.

Abid S. Zuberi and Umer Lakhani for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 2613 #

2010 Y L R 2613

[Karachi]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

MUHAMMAD NASEEM---Petitioner

Versus

Mst. SHAMEEM AKHTAR and 7 others---Respondents

C.P. No. D-589 of 2008, decided on 26th June, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Essentials---For maintaining a petition under Article 199 of the Constitution a person had to be an aggrieved person and he must establish a direct or indirect injury to himself and substantiate interest in the subject-matter of proceedings---Petitioner who did not appear to have subsisting interest in the matter in question and being not `aggrieved person' could not maintain the petition.

Jan Muhammad and others v. Government of N.-W.F.P, and others 1993 CLC 1067 and M. Ghulam Nabi Awan, Advocate v. Government of Pakistan and 3 others 2003 MLD 90 ref.

Junaid Farooqui for Petitioner.

Karamatullah for Respondent No.1.

Adnan Karim, A.-A.G. Sindh.

YLR 2010 KARACHI HIGH COURT SINDH 2617 #

2010 Y L R 2617

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

THE STATE/ANTI NARCOTICS FORCE through Deputy Director---Appellant

Versus

MUHAMMAD SIDDIQ---Respondent

Criminal Acquittal Appeal No. 222 of 2010, decided on 25th May, 2010.

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

----Ss.6 & 9 (c)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Criminal Procedure Code (V of 1898), S.417---Possession of narcotics (Charas 15400 grams and opium one Kg.)---Appreciation of evidence---Appeal against acquittal---Prosecution had not produced entry-number of leaving Police Station by complainant Inspector, according to his deposition, entry of departure was maintained---Memos. of recovery and arrest, F.I.R. and statements under S.161, Cr.P.C., did not find mention entries of departure from and return to Police Station and registration of mobile vehicle--Complainant Inspector during cross-examination had admitted to be head of raiding party, complainant, Seizing Officer, Investigating Officer, Incharge Malkhana and Additional S.H.O.---Practice of Investigation Officer and complainant to be same for hindering independent investigation was against spirit of independent investigation---Complainant Inspector was wearing six caps simultaneously, which casted serious doubt about independent investigation having been conducted in the present case---Nothing on record to show that complainant Inspector was working in Investigation Wing, when he conducted investigation of the present case---Such fact alone going to root of case and being a material flaw in prosecution case would make whole investigation coram non judice---Memos. of arrest and recovery did not find mention of date of recovery of opium, colour of handbag from which Charas was secured and number of Charas patties and rods---Denomination of currency notes recovered from accused had not been mentioned in any document---Signatures of Mashirs of packets of Charas and opium had not been mentioned---Police Constable having deposited narcotic substances with Chemical Analyzer had not been cited as witness in charge-sheet-Non-production of such best evidence by prosecution had not only broken important link of prosecution case, but would lead to adverse inference drawn against prosecution---Appeal against acquittal was dismissed.

S. Ashfaque Hussain Rzivi, Special Prosecutor.

YLR 2010 KARACHI HIGH COURT SINDH 2624 #

2010 Y L R 2624

[Karachi]

Before Sarmad Jalal Osmany, C.J. and Sajjad Ali Shah, J

NIGHAT JAMAL---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No. 1664 of 2009, decided on 4th March, 2010.

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

----Arts. 15 & 40(3)(4)---Sindh Local Government Ordinance (XXVII of 2001), S.40---Change of Land Use Bye-Laws, 2003, Arts.3 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Conversion of a residential plot into commercial one---Petitioner had challenged conversion of a residential plot into commercial one, contending that City District Council had no power to change the use of a residential plot to commercial--- Validity---Previously commercialization of a plot or an area reserved for residential purposes in a Zonal Plan Scheme was allowed by the Karachi Development Authority by exercising powers vested in it under Art.40 of Karachi Development Authority Order, 1957---Sub-Article (4) of Article 40 of Karachi Development Authority Order, 1957 had provided an exception to Sub-Art.(3) of said Order, which prevented change of land use for the purpose other than laid down in the Zonal Plan Scheme, by allowing such conversion by an order of Authority after a Public hearing and notice to all affected persons---Authority while taking note that residential plots were being misused as commercial on various roads and in various residential schemes, allowed commercialization of residential plots under Sub-Art. (4) of Article 40 of Karachi Development Authority Order, 1957---Authority, in 1978 while exercising powers vested in it under Art.15 of Karachi Development Authority Order, 1957 even framed Regulations for the commercialization of residential plots facing main Roads---Residential plot could be converted into a commercial or commercial-cum-residential in accordance with the provisions of Karachi Development Authority Order, 1957 and Regulations as there was no specific bar on such conversion---Till the exercise of commercialization of a plot or an area reserved for residential purposes in Zonal Plans was undertaken by Karachi Development Authority under Order, 1957, such commercialization, of course, when effected after permission from the lessor and in accordance with the provisions of Karachi Development Authority Order, 1957 and the Regulations made thereunder to be legal---Powers similar to those which were conferred upon the Karachi Development Authority under Art.40 of Order, 1957 after its repeal, were being enjoyed by Zila Council in a City District under S.40 of Sindh Local Government Ordinance, 2001, whereby such Council had been empowered to approve re-classification of land---Commercialization of any plot by allowing change of land use was a prerogative of the City Development Government Karachi and such powers, could not be interfered, 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.?

Mst. Sardar Begum Faruqui and 6 others v. Rashida Khatoon and 2 others 1990 CLC 83; National Industrial Cooperative Credit Corporation Limited and another v. Province of Punjab/ Government of Punjab PLD 1992 Lah. 462; Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512; Zahida Akhtar v. Government of Punjab PLD 1995 SC 530; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority 1999 SCMR 2883; Zaheer Ahmed Chaudhry and 9 others v. City District Government, Karachi 2006 YLR 2537; Jawad Mir Muhammadi v. Farooq Mirza PLD 2007 SC 472; Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and Mrs. Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. and others 2009 YLR 1896 ref.

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

----S. 40---Change of Land Use Bye-Laws, 2003, Arts.3 & 9---Constitution of Pakistan (1973), Art.l99---Constitutional petition--- Powers of City District Government to allow conversion of residential plot into commercial one---In order to exercise powers vested in Zila Council in terms of S. 40 of Sindh Local Government Ordinance, 2001 commercialization Policy was announced followed by "Change of Land Use Bye-laws, 2003"---Taking into consideration the pressing need of the. day and after considering the history of commercialization in the city and conducting a detailed survey and study the re-classification of certain schemes and commercialization only on the road the width whereof was at least 100 feet proposed by the Committee under Art.9 of Bye-Laws, 2003 was approved by the City Council followed by notification---Article 3 of Bye-Laws 2003, reflected that despite re-classification of the roads by opening them for commercial constructions, such sites would not automatically , become commercial sites; as the proponent of a project who intended to take the benefit of such classification, had to follow a process in terms of Art.3 of "Change of Land Use Bye-laws, 2003" and still it would remain within the competence of City District Government to decline the commercialization, in case, the objections of the public-at-large were upheld. ?

Mrs. Fareeda and others v. New Allied Electronics Industries (Pvt.) Ltd. and others 2009 YLR 1896 and Saghir Ahmed's case PLD 2004 SC 261 ref.

----Ss. 4 & 21-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Construction of ramp on compulsory open scheme---Counsel for the petitioner had contended that construction of the ramp on compulsory open space, was violative of Town Planning Regulations, 2002 and was liable to be pulled down---Contention was ill-founded for the simple reason that the Authority as defined in S.4 of Sindh Building Control Ordinance, 1979 in exercise of the power conferred by S.21-A of said Ordinance had notified certain amendments in the Karachi Building and Town Planning Regulations, 2002 and one of the amendments was in respect of Compulsory Open Space by allowing the construction of ramps thereon.?

(d) Easements Act (V of 1882)---

----S. 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Right of easement--- Disturbance of---Disturbance of right, privacy, air and light caused by construction of commercial building---Likelihood of any person having opportunity of overlooking the property would not be a sufficient ground to hold that there was interference in the enjoyment of the property or it would amount to interference in the privacy or easementary rights--- Infringement of rights light to fresh air and clean environment, could be established only by producing satisfactory evidence and not merely on the statements in the pleadings of the affected party---In the present case, no material was available on the record to prove the allegations relating to deprivation or violation of said easement rights by construction of the building---Contention was repelled. ?

Fazal-i-Raziq v. Syed Zaman Shah and others PLD 1980 SC 193 ref.

(e) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 2(xxxv) & 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-classification of the land use---Initial environmental examination and environmental impact assessment---Petitioner had pleaded violation of S.12 of the Pakistan Environmental Protection Act, 1997 by asserting that no permission as required under section 12 of the Act was obtained before the classification of land use---In all cases where any change in the land use was brought or in consequence to such change, construction or alteration/expansion of an existing building took place and such change was likely to cause an adverse environmental impact, then an environmental impact assessment had to be filed before the Provincial Environmental Protection Agency for obtaining necessary approval, but that had not been done in the present case---Matter being already before the apex court, High Court directed that respondent should approach the Agency for obtaining necessary approval for re-classification and construction before commencing further construction---Agency was directed to entertain the representation when made to deal with the same in accordance with relevant provision after affording opportunity of hearing to the person likely to be adversely affected including the petitioner.?

Sheri-CBE v. Lahore Development Authority 2006 SCMR 1202 ref.

Khawaja Shamsul Islam for Petitioner.

Manzoor Ahmed for Respondents Nos. 2 and 3.

Haider Shaikh for Respondent No.4.

Sardar Shahbaz Ali Khan Khosa along with Muddasar Iqbal for Respondents Nos. 9 and 10.

Date of hearing: 16th December, 2009.

YLR 2010 KARACHI HIGH COURT SINDH 2649 #

2010 Y L R 2649

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

HAKIM ALI JALBANI and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 629 of 2009, decided on 22nd July, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.302, 343 & 395---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Murder and dacoity---Pre-arrest bail, refusal of---Names of accused persons appeared in the F.I. R. with specific role and also the presence of the accused persons at the place of occurrence had been established from the statements of the prosecution witnesses under S.161, Cr. P. C. as well as from the facts narrated in the F.I.R.---Accused persons being police officials had misused and abused their authority and also restrained the complainant party from postmortem of the deceased---Conditions for grant of anticipatory bail were, that there would be genuine proof of apprehension of imminent arrest and proof of harassment and humiliation of accused on account of the arrest, ulterior motives designed on unjustified arrest of accused---Power to grant pre-arrest bail should be sparingly exercised and while doing so, court should keep in mind that principles for grant of pre-arrest bail, were different from principles governing grant of post-arrest bail---All said conditions were not attracted in the present case because accused persons who were Police Officials, were not being arrested since long time as they belonged to Police department---Accused persons had not only violated Art.9 of the Constitution, but had also committed the murder of innocent person in such a manner which had lost the confidence of general public on the custodians of life, liberty and property of the people---Accused had not successfully proved that they had been involved due to enmity, mala fide or no such offence had been committed in the premises of the Police Station---Police Officials on the contrary were duty bound to prevent crime, whereas accused persons had themselves committed crime of killing of one innocent person in the Police lock-up---Accused, in circumstances, were not entitled to extending concession of pre-arrest bail--- Bail application was rejected and interim bail earlier granted to accused persons was re-called.

Irshad Hussain Dharejo for Applicants.

Ali Haider State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 2665 #

2010 Y L R 2665

[Karachi]

Before Mushir Alam and Muhammad Athar Saeed, JJ

HASSAN MUHAMMAD GHAURI---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through District Coordination Officer and 2 others---Respondents

Constitution Petition No. D-59 of 2007, decided on 25th August, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Removal of encroachment---Petitioner had sought removal of encroachment on plot---Subject plot was reserved for the construction of Mosque by the authorities--Since controversy had already been settled in court proceedings, present proceedings appeared to be merely an attempt to circumvent the earlier round of proceedings---Constitutional petition was disposed of with direction to authorities to ensure that subject property which was stated to be reserved specifically for use of Mosque should be regularized in accordance with Karachi Building and Town Planning Regulations, 2002 and the premises presently lying sealed, should be de-sealed only on the assurance of the management to use the subject premises exclusively for the purpose that was earmarked in the Master Plan of the area concerned---Any controversy as to the management, right or title to run the management of the Mosque, could not be decided in constitutional petition---Order accordingly.

Abdul Khalil for Petitioner.

Anwar Ali Shah for Respondent No.2.

Manzoor Ali for C.D.G.K.

Muhammad Hanif Kashmiri for Intervener.

2010 Y L R 2693

[Karachi]

Before Khalid Ali Z. Qazi and Safdar Ali Bhutto (sic), JJ

TAHIR MUGHERI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 231 of 2009, decided on 14th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---Kidnapping or abduction for extortion---Bail, grant of---Bail had been sought by accused on the ground of hardship and delay in conclusion of the trial---Accused was arrested on 5-11-2004 and since then he was in custody---High Court by its order directed the Trial Court to decide the matter preferably within three months, but that order passed by the High Court had not been complied with---Inordinate delay in prosecution amounting to abuse of process of law, could be treated as sufficient ground for grant of bail---Alleged abductee sworn his affidavit in which he exonerated accused from commission of offence of abduction---Statement of the abductee should be given proper weight while deciding the matter of kidnapping for ransom---Accused, in circumstances, had succeeded in making out a case for grant of bail---Accused was admitted to bail, in circumstances.

Abrar Muhammad v. The State PLD 1974 SC 224; Pearl v. The State 2005 YLR 358 and Anwar Ali and another v. The State 2002 PCr.LJ 186 ref.

Messrs Ali Nawaz Ghanghro and Athar Abbas Solangi for Applicants.

Miss Rubina Dhamrah, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 2697 #

2010 Y L R 2697

[Karachi]

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

Mrs. AFROZE SHAH---Petitioner

Versus

SABIR QURESHI and 19 others---Respondents

C.P. No. D-1620 of 2007, decided on 10th September, 2008.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.1---Withdrawal of suit by plaintiffs---Plea of defendant that such withdrawal could not have been allowed as both parties had joint interest in suit property for being legal heirs of same predecessor-in-interest--- Validity---Plaintiffs had right to withdraw their suit unconditionally---Parties could adopt their own course to contest their legal rights---Defendant would be at liberty to file fresh suit within 30 days for suit property---High Court dismissed petition filed by defendant in circumstances.

Javaid Iqbal Abbasi and Company v. Province of Punjab and 6 others 1996 SCMR 1433 distinguished.

Khalid Javed Khan for Petitioner.

Nasir Hussain Jafri for Respondents Nos. 1, 3, 4, 5 and 7.

Muhammad Shafi Rajput for Respondent No.8.

Farhan Ahmed holding brief for Kumail Ahmed Shirazee.

Tasawur Hussain for Respondent No.12.

Muhammad Ali Jan for Respondent No.14.

Ahmed Pirzada Sspecial counsel for LUD.

Manzoor Ahmed for CDGK.

YLR 2010 KARACHI HIGH COURT SINDH 2705 #

2010 Y L R 2705

[Karachi]

Before Khalid Ali Z. Qazi, J

SALEEM UNAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 310 and M.As. Nos. 964, 965 of 2009, decided on 3rd July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 364 & 120-B---Qatl-e-amd and kidnapping or abducting in order to murder---Bail, grant of---Previously in two criminal bail applications, direction was issued by the High Court for the trial of the case to be concluded within six months, but same had not been done due to the fact that the complainant was behind the bars in some other case---Record had also revealed that the court file was burnt by the mob and file was reconstituted thereafter---Charge had been framed and accused was in jail since 15-10-2006---Two years eight months and eighteen days had passed without any progress before the Trial Court---Right of an accused to an expeditious trial had been enshrined in the Constitution, whereas in the case accused was behind the bars since 15-10-2006, i.e. date of his arrest due to no fault on his part---Accused could not be kept behind the bars for our indefinite period for no fault on his part---Accused was admitted to bail, in circumstances.

Atto alias Atta Muhammad v. The State PLD 2008 Kar.177; Pearl v. The State 2005 YLR 358 and Anwar Ali and another v. The State 2002 PCr.LJ 186 ref.

Athar Abbas Solangi holding brief on behalf of Ali Nawaz Ghanghro for Applicant.

Nisar Ahmed G. Abro, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 2710 #

2010 Y L R 2710

[Karachi]

Before Muhammad Athar Saeed, J

MUHAMMAD ALI and 2 others---Appellants

Versus

GHULAM MUHAMMAD and 6 others---Respondents

Second Appeal No. 33 and C.M.As. No.2893 of 2005 and 796 of 2006, decided on 23rd February, 2009.

Civil Procedure Code (V of 1908)---

----S.100 & O.XLI, R.1---Limitation Act (IX of 1908), S.5 & Art.156---Second appeal---Filing of appeal with delay of 12 days along with photocopy of certified copy of decree and filing of certified copy of decree after 3 1/2 years of filing of appeal without application under S.5 of Limitation Act, 1908---Validity---Appellant had to explain delay of each and every day---Appellant's counsel expressed his inability to advance any reason for late filing of appeal---High Court dismissed appeal for being time barred and not maintainable.

Hem Singh-Sant Singh v. Narain Singh-Wazir Sindh and others AIR 1929 Lah. 771; Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304; Nazar Din and others v. Secretary Rural with powers of the SC(L) Punjab Lahore and others 1983 SCMR 1188; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356; Yaqeen-ud-Din and others v. Abdul Majid and others PLD 1995 SC 396 and Rasheed Ahmed v. Province of Punjab and another 2004 SCMR 707 ref.

Ghulam Abbas Soomro for Appellants.

K.B. Bhutto and Abdul Shakoor for Respondent.

YLR 2010 KARACHI HIGH COURT SINDH 2723 #

2010 Y L R 2723

[Karachi]

Before Muhammad Tasnim, J

Messrs TAHIR AVENUE through President---Plaintiff

Versus

Mirza AHMED BAIG and 6 others---Defendants

Suit No. 1091 and C.M.A. No. 7352 of 2009, decided on 26th May, 2010.

Specific Relief Act (I of 1877)---

----Ss.42, 39 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration, cancellation of document and permanent injunction---Basement of multi-storey building built for car parking purchased by defendant from lessee of building---Plaintiff being sub-lessee of a flat claimed that basement was meant for parking of cars by occupants of building, thus, its sale was illegal---Application by plaintiff for temporary injunction---Sub-Lease in favour of plaintiff produced by defendant containing a clause to the effect that sub-lessee would not have any right, title or interest in basement, ground floor premises of lessee or access to or use its top roof; and that lessee would continue to be in absolute control thereof---Validity---Such clause showed that sub-lease in favour of plaintiff did not create any right in his favour in respect of basement and/or roof top---Plaintiff for such reason had not placed on record copy of sub-lease, which had been brought on record by defendant---Conduct of plaintiff was not above board---Plaintiff had not approached court with clean hands---Plaintiff on such ground alone would not be entitled for discretionary relief---Application for interim injunction was dismissed in circumstances.

Queens Road Lane v. City District Government and others 2006 CLC 272; Muhammad Anas Kapadia and 19 others v. M. Farooq Haji Abdullah and 5 others 2007 CLC 943 and Dr. Hasan Mahfuz Jalisi v. Khawaja Moinuddin and others 2006 SBLR (Sindh) 843 ref.

Shaukat Hayat for Plaintiff.

Khalid Javed and Sardar Aslam Afridi for Defendants Nos. 2 to 4.

Iqbal Memon for Defendant No.4.

Nemo for rest Defendants.

YLR 2010 KARACHI HIGH COURT SINDH 2741 #

2010 Y L R 2741

[Karachi]

Before Khalid Ali Z. Qazi, J

MASHOOQUE CHANDIO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-206 of 2009, decided on 17th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Accused was in custody since his arrest on 14-9-2006 and even after framing of charge about a year earlier, he was dragged in the trial without any progress and he was facing hardship in conclusion of his trial---One could not be kept behind the bars without trial---Accused having succeeded in making out a case for grant of bail, he was admitted to bail, in circumstances.

Aftab Ahmed Gorar for the Applicant.

Nisar Ahmed, G. Abro, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 2745 #

2010 Y L R 2745

[Karachi]

Before Khadim Hussain M. Shaikh, J

MUHAMMAD SHARIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.647 of 2008, decided on 6th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324, 337-H(2), 148, 149 & 114---Attempt to commit qatl-e-amd---Bail, refusal of---Name of accused figured in the F.I.R. with specific role of causing firearm injury to the injured on his chest--Medical evidence was also in line with the ocular evidence---Answer to question of delay of 25 hours in lodging F.I.R. offered by the complainant prima facie being rational, could not be brushed aside---Motive was also directed against accused---Accused having failed to make out his case for grant of bail, his bail application was dismissed.

Muhammad Umar v. The State PLD 2004 SC 477; Sikandar Ali v. The State 1999 MLD 212 and Waqas Ahmed and another v. The State 2003 SCMR 1496 rel.

Jai Jai Veshnoo Mange Ram for Applicant.

Abdul Hakeem Brohi for the Complainant.

Muhammad Akram Shaikh for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2753 #

2010 Y L R 2753

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

ZULFIQAR ALI SOLANGI and 4 others---Petitioners

Versus

TALUKA COUNCIL MEHAR through Taluka Nazim 6 and others---Respondents

Constitutional Petition No. D-1492 of 2008, decided on 7th July, 2010.

Sindh Local Government (Imposition of Tax) Rules, 2001---

----R.7---Agricultural Produce Market Act (V of 1939), Preamble---Sindh Local Government Ordinance (XXXI of 2001), Ss.116, 185 & 195 & Sched. VI, Items 51 & 53---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy of market fee by Union Council in terms of S.116 of Sindh Local Government Ordinance, 2001 in addition to collection of market fee by Market Committee under Agricultural Produce Market Act, 1939---Validity---Neither approval of Government for such levy had been obtained nor was there any gazette notification containing sanction of Council of taxation proposal in terms of S.7 of Sindh Local Government (Imposition of Tax) Rules, 2001---Provision of S.185 of Sindh Local Government Ordinance, 2001 provided for fee being charged, levied and collected by Council immediately before its coming into force---No receipt existed showing collection of market fee by Union Council under Sindh Local Government Ordinance, 1979---Record did not show that Union Council under the Ordinance, 1979 had authority to collect market fee before promulgation of Ordinance, 2001---Council had no authority in law to levy market fee, which was being collected by Market Committee under Agricultural Produce Market Act, 1939---High Court declared impugned levy to be illegal.

Ramji Dass Rikhi Ram v. Commissioner of Income-tax, Punjab Pepsu H.P. and Bilaspur, Simla 1959 PTD 184; All Pakistan Textile Mills Association and others v. Province of Sindh through Secretary and others 2004 YLR 192; 2009 PTD (Trib.) 1313; Commissioner of Income-tax, Companies-II, Karachi v. M/s Allwin Engineering Industries Ltd., Karachi 2009 PTD 1314; Rooh-ul-Amin v. University of Peshawar and 3 others 2006 PLC (CS) 813; Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. and another PLD 1979 Lah. 603; The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151; Secretary Market Committee, Setharaja at Thari Mirwa, District Khairpur 'v. Government of Sindh and others 2006 SCMR 385; Muhammad Zaman v. Collector of Hazara District and others PLD 1964 (W.P.) Pesh. 47; Commissioner of Sales Tax v. Messrs Zelin Ltd., Karachi PLD 1967 Kar. 341; Pir Illahi Bux Co-operative Housing Society Ltd. v. K.B. Sanaullah and others PLD 1968 Kar. 680; Sheikh Abdul Majid and others v. Bhudar Chandra Ghosh and others PLD 1964 Dacca 756; Abdus Sattar v. Arag Ltd. and others PLD 1964 Dacca 773; The Province of East Pakistan and 3 others v. Sirajul Haq Patwari and another PLD 1966 SC 854; Imdad Ali Mali, v. The Settlement Commissioner (Policy), Lahore and another PLD 1962 (W.P.) Lah. 502; Badarul Haque Khan v. The Election Tribunal, Dacca and others PLD 1963 SC 704; The Commissioner of Income Tax, East Pakistan v. M/s. Hossen Kasam Dada, Karachi PLD 1961 SC 375; Government of Pakistan v. Syed Akhlaque Hussain and another PLD 1965 SC 527; Muhammad Hussain and 5 others v. Mst. Munni and another 1990 MLD 1250; Ahmad Hussain Khan v. Government of Sindh through Chief Secretary, Karachi and 4 others PLD 2006 Kar. 5; Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others PLD 2006 SC 249; Murid Hussain Shah v. Tufail Hussain Shah PLD 1986 Lah. 70; Sheikh Muhammad Ismail and Co. Ltd., Lahore v. The Chief Cotton Inspector, Multan Division, Multan and others PLD 1966 SC 388; Government of North-West Frontier Province through Secretary Agriculture and others v. Rahimullah and others 1992 SCMR 750; M/s. Javedan Cement Limited v. Government of Sindh through Secretary Ministry of Local Government and others 2005 YLR 285(2); Saiyyid Abul Ala Maudoodi v. The Government of West Pakistan PLD 1964 SC 673; Muhammad Arif v. Muhammad Kawshair Ali PLD 1969 SC 435 and Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others PLD 2006 SC 249 ref.

Constitutional Petitions Nos. D-411 and 966 of 2006 rel.

Bilal Khilji for Petitioners.

Haider Waheed for Respondents Nos. 1 and 2.

Shafi Muhammad Memon, A.A.-G. Sindh for Respondents Nos. 6 and 7.

Date of hearing: 3rd March, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2762 #

2010 Y L R 2762

[Karachi]

Before Khadim Hussain M. Shaikh, J

ABDUL HALEEM SHABRANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-178 of 2009, decided on 26th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/364, 458, 337-H(ii), 148, 149 & 114---Qatl-e-amd, kidnapping or abduction in order to murder---Bail, refusal of---Name of accused transpired in the F.I.R. with active role of causing firearm injuries by his Kalashnikov upon deceased who allegedly sustained 20 injuries at the hands of accused resulting into his death---Medical evidence also corroborated the ocular evidence---Thirty two empties of 7.62 bore (Kalashnikov) were allegedly secured from the place of vardat---Prima facie sufficient evidence was available against accused to connect him with offences---Accused having failed to make out his case for grant of bail, bail was refused in circumstances.

Sobhraj L.P. for Applicant.

Naimatullah Bhurgri for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2766 #

2010 Y L R 2766

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

Chaudhry MUHAMMAD AKRAM WARRAICH and another---Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others----Respondents

Constitutional Petition No. D-1563 of 2010, decided on 12th July, 2010.

National Accountability Ordinance (XXII of 1999)---

----Ss.12 & 23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Letter of Chairman, NAB to Bank under S.23 of National Accountability Ordinance, 1999 restraining transfer of amount lying in personal and joint accounts of Directors of petitioner-company till finalization of inquiry proceedings and decision of competent authority--- Validity--- Clear distinction existed between provisions contained in Ss.12 & 23 of National Accountability Ordinance, 1979---Chairman had no authority to direct Bank or any other person not to do a particular act or freeze an account except in exercise of powers vested in him under S.12 of the Ordinance---Freezing order passed by Chairman under S.12 of the Ordinance, unless confirmed by Court, would not remain in force beyond 15 days---Chairman could not pass freezing or any other order under S.23 of the Ordinance, rather offence created thereunder, if committed by a person, would render him liable to prosecution---Prohibition on transfer created by S.23 of the Ordinance, even though automatic and without any order of Chairman or Court, was for a limited extent that freezing order under S.12 thereof barring completely any movement into or withdrawal from Bank account---Impugned letter merely talked of "transfer" and did not say that account be frozen, thus, same would be taken as caution under S.23 of the Ordinance and Bank stood informed of existence of an inquiry---No wrong could be ascribed to authority for informing Bank about pendency of an inquiry in respect of amount lying in a particular account---Section 23 of the Ordinance independent of any order or direction by Chairman, imposed an obligation on "any person", which would include Bank, where money in question was lying, not to transfer etc.--Inquiry being pending in the present case, Chairman could pass an order under S.12 of the Ordinance, which if passed, would remain in force in accordance with provisions contained therein---High Court disposed of constitutional petition in such terms.

Khan Muhammad Mahesar v. National Accountability Bureau 2010 PCr.LJ 579; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau, Islamabad and 2 others PLD 2007 Kar. 469 and First Pak Modarba v. NAB, Chief Executive Secretariat II, Constitution Avenue, Islamabad and another PLJ 2005 Kar. 96 (DB) ref.

M. Anwar Tariq for Petitioners.

M. Aslam Butt, D.P.G. NAB for Respondents.

Date of hearing: 5th July, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2792 #

2010 Y L R 2792

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

ISMAIL SHAIKH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-74 of 2003, decided on 18th May, 2010.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd---Appreciation of evidence--- Sentence, reduction in---Counsel for accused did not press appeal on merits, but had submitted that the death sentence awarded to accused could be converted into life imprisonment on the ground that mitigating circumstances were available in the case---Matrimonial dispute existed between the complainant and accused---Complainant had promised to give the hand of his daughter to accused, but resiled from his promise, which had provoked the accused---Witnesses had made so many improvements and exaggerations in their evidence during trial---Accused had made out a case for lesser punishment and extreme penalty of death awarded to accused was harsh---Death sentence was altered to life imprisonment and sentence of fine was also reduced from Rs.100,000 to Rs. 50,000.

Shiraz-ul-Haq v. The State 2010 SCMR 646; Muhammad Ikram alias Billa v. The State 1999 SCMR 406; Ansar Ahmad Khan Barki v. The State 1993 SCMR 1660 and Allah Ditta v. The State 2007 YLR 811 ref.

Asif Ali Abdul Razak Soomro for the Appellant.

Naimatullah Bhurgri, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 2807 #

2010 Y L R 2807

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

KHASTA KHAN---Appellant

Versus

THE STATE-Respondent

Criminal Jail Appeal No.D-41 of 2009, decided on 31st July, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence--- Sentence, reduction in---No material contradictions and discrepancies were found in the prosecution evidence, which could persuade the court to extend benefit of doubt towards accused---Prosecution had succeeded in establishing the guilt against accused beyond any shadow of doubt---No illegality existed in the judgment passed by the Trial Court which was well-reasoned judgment--- Impugned judgment was, in circumstances unexceptional and conviction and sentence awarded to accused did not call for any interference---Appeal filed by accused against judgment of the Trial Court was dismissed, in circumstances---Accused was first offender and prosecution had not brought any document or any evidence to show that accused was previously involved in drug trafficking---During personal search, nothing was recovered from possession of the accused---Accused, in circumstances needed to be given chance to his life to rehabilitate himself---Accused seemed to be young-man---High Court dismissing appeal of accused, reduced his sentence from life imprisonment to ten years' imprisonment---Benefit of S.382-B, Cr.P.C. already extended to accused, would remain intact.

Niaz-ud-Din v. The State 2007 SCMR 206; Amanat Ali and 2 others v. The State 2008 SCMR 991; Qaisarullah and others v. The State 2009 SCMR 579; Ali Hassan v. The State PLD 2001 Kar. 369; Nazar Hussain and another v. The State 2007 YLR 1601; Bilal v. The State 2007 YLR 3096 and Gul Alam v. The State through Advocate-General, N. -W. F. P. Pesh. NLR 2010 Criminal 59 ref.

Asif Ali Abdul Razak Soomro for Appellant.

Ali Raza Pathan for the State.

Date of hearing: 19th May, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2815 #

2010 Y L R 2815

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

ATIF SHAHAB---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.229 and 230 of 2009 decided on 14th July, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Charas was not recovered from the possession of accused, but was recovered from some hidden place in the bus after search by the Anti-Narcotics Force---Accused did not object to the search of the bus and was quite cooperative with the Police party while other inmates of the bus objected to the same which had clearly shown the possibility that it was not within the knowledge of accused that Charas was in the bus---Spy informer did not give the name of accused as one of smugglers, nor the prosecution had placed on record any confidence-inspiring evidence to connect the accused with the contraband items seized from the said bus---Owner of the bus in question was not involved in the case---If accused was driver of the said bus, then he was in the employment of the owner of the bus; and that fact should have been proved by involving the owner of the bus either as an accused or as a witness, but owner was not at all connected with the case and was completely ignored---No incriminating material was available against the accused which could be made basis for his conviction and sentence as neither the factum that the said accused was driver of the bus was proved beyond any reasonable doubt nor it was proved that he was connected with the recovered Charas in any manner---Conviction and sentence awarded to accused by the Trial Court, was set aside by giving him benefit of doubt---Accused was acquitted of the charges levelled against him and was released.

Rab Nawaz and others v. The State PLD 1994 SC 858; Nazar Hussain and another v. The State 2007 YLR 1601; Ghulam Saddique v. The State 2005 YLR 605; Safdar Ali v. Crown PLD 1953 FC 93; Nadeeni-ul-Haq Khan v. The State 1985 SCMR 510; Inder Sain v. State of Punjab AIR 1973 SC 2309; Sarwar Jan v. The State 2004 PCr.LJ Pesh. 1224; Shah Wall and another v. The State PLD 1993 SC 32; Ghulam Qadir v. The State PLD 2006 SC 61 and Nadir Khan and another v. The State 1988 SCMR 1899 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Case of co-accused was on different footings---Contention of counsel of co-accused was that co-accused was a passenger in the bus and had no connection with the Charas, however, during evidence, co-accused had failed to produce any ticket for his journey---Even if it was presumed that co-accused was only a passenger, then he should have disembarked at the bus stop---Spy informer had specifically named the co-accused as one of the smugglers and was connected with the contraband goods--Prosecution had proved its case against said co-accused beyond any reasonable doubt and counsel for said co-accused had not been able to shake the evidence produced by the prosecution with regard to date, time and recovery of contraband items and presence of co-accused in the bus at the time of recovery of the Charas-Counsel for co-accused had not been able to point out any material contradiction/ discrepancy in the evidence recorded against co-accused--- No substantial material had come on record to show that prosecution witnesses had any enmity or ill-will against co-accused to falsely implicate him in the case---Report of the Chemical Examiner also fully supported the case of prosecution---Prosecution having proved its case against co-accused beyond any reasonable doubt, his conviction and sentence, was maintained.

Sardar Muhammad Aslam for the Appellants (in Criminal Appeals Nos. 229 and 230 of 2009).

Noorullah Makhdoom, Special Prosecutor, CNS for Respondents (in Criminal Appeals Nos. 229 and 230 of 2009).

Date of hearing: 5th July, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2827 #

2010 Y L R 2827

[Karachi]

Before Khadim Hussain M. Shaikh, J

FATEH ALI alias BARKAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 757 and M.A. No. 1846 of 2008, decided on 14th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 148 & 149---Attempt to qatl-e-amd---Bail, grant of---Further inquiry---Delay of more than 15 days in lodging of F.I.R. and more than one month in recording the statements of the prosecution witnesses under S.161, Cr.P.C., without plausible explanation therefor---Possibility of lodging of the F.I.R. after consultations and deliberations in view of the matrimonial enmity between the parties, could not be ruled out---Accused remained in custody for more than 8 months, but no recovery of alleged weapon had been effected from him---Case of accused, in circumstances, required further inquiry into his guilt falling within the ambit of S.497(2), Cr.P.C. which had entitled accused to the concession of bail---Bail was granted to accused, in circumstances.

Ali Nawaz v. The State 1996 PCr.LJ 136 ref.

Gul Muhammad A. Unar for Applicant.

Naimatullah Burgri for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2839 #

2010 Y L R 2839

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD IRFAN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 325 of 2009, decided on 21st April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Only tentative assessment had to be made and deeper appreciation had to be avoided at bail stage---No recovery had been made from the possession of accused---Role assigned to accused was that he and one of the co-accused caught hold the deceased and the other co-accused inflicted churri blows upon the deceased---Co-accused who allegedly had inflicted churri blow, had already been granted bail and case of accused appeared to be on better footing---Rule of consistency demanded that bail on the ground of further inquiry could also be granted in favour of accused---Not an absolute rule that a fugitive should under no circumstances be enlarged on bail---Accused was admitted to bail, in circumstances.

The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Muhammad Sadiq v. Najereb Ali 1995 SCMR 1632 and Shahid v. The State 1994 SCMR 393 ref.

Fazal-ur-Rehman Awan for Applicant.

Ghulam-e-Nabi, Additional Prosecutor-General Sindh for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2850 #

2010 Y L R 2850

[Karachi]

Before Nadeem Azhar Siddiqi, J

Syed WASIM SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 255 of 2009, decided on 13th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Possession of arms---Bail, refusal of---Name of accused appeared in promptly lodged F.I.R.---Arm having been recovered from the possession of accused, his involvement in the commission of offence, could not be ruled out---Was not appealable to a prudent mind that to falsely implicate the accused, recovery of arms along with rupees thirty lacs were foisted upon the accused---Offence against accused was nonbailable---No doubt the case did not fall under the prohibitory clause of S.497, Cr. P. C., but bail could not be granted as a matter of right---Court in bail matter had to make a distinction between an offence which was committed against an individual; and an offence which was directed against the society as a whole; and in the latter category of cases, had to be strict in exercise of discretion of bail---Allegation against accused was very serious in nature and keeping in view the cases of terrorism in the city, the bail could not be granted---Bail application was dismissed.

Darya Khan v. The State 2004YLR 201; Khair Muhammad v. The State 2005 MLD 572; Muhammad Ramzan v. The State 2004 PCr.LJ 752; Haji Muhammad Nazir v. The State 2008 SCMR 807 and Imtiaz Ahmed v. The State PLD 1997 SC 545 rel.

Muhammad Jamil for the Applicant.

Muhammad Iqbal Kalhoro, Additional Prosecutor-General.

YLR 2010 KARACHI HIGH COURT SINDH 2864 #

2010 Y L R 2864

[Karachi]

Before Sajjad Ali Shah, J

MUHAMMAD USMAN FAROOQUI---Applicant

Versus

THE STATE and another---Respondents

Criminal Revision Application No. 75 of 2009, decided on 22nd March, 2010.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Illegal dispossession-Applicant had asserted that due to registration of cases against him he remained in judicial custody and in his absence plot in dispute was looked after by his daughter---Case of applicant was that respondent who was a renowned land grabber forcibly occupied said plot---Respondent on the other hand was claiming to have purchased plot in question from the applicant and based his claim upon an Agreement of Sale and possession letter allegedly signed by the applicant the veracity whereof could only be determined by the court of civil jurisdiction, where the suit of the respondent seeking specific performance of the Sale Agreement was pending and criminal court had no jurisdiction to determine the effect of said document---Even in the peculiar circumstances, it would not be appropriate for the court of criminal jurisdiction to determine as to whether the possession of plot in question was handed over by the applicant to the respondent in consequent to sale agreement and possession letter or otherwise till the effect of said documents was decided by the court of civil jurisdiction---Continuation of criminal proceedings during pendency of civil proceedings on the same subject were likely to adversely affect the interest of respondent---Impugned order was upheld and revision application was dismissed.

Raza Hashmi for Applicant.

Abdul Rahman Kolachi, A.P.-G. for Respondent No.1.

Aamir Mansoob Qureshi for Respondent No.2.

YLR 2010 KARACHI HIGH COURT SINDH 2874 #

2010 Y L R 2874

[Karachi]

Before Mrs. Yasmin Abbasey and Muhammad Ismail Bhutto, JJ

PERVEZ and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 90 of 2009, decided on 10th June, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 497(2)---Penal Code (XLV of 1860), S.365-A---Kidnapping or abduction for extortion---Pre-arrest bail, grant of--Further inquiry---Delay of about 12 days in lodging F.I.R., was not satisfactorily explained---Accused had been falsely implicated in the matter at the behest of Police Officials against whom an application was filed by one of the relatives of accused persons against their illegal detention by the Police Officials--In a raid conducted by the Police Officials, alleged abductee was recovered from the person other than accused, but with mala fide intention names of some of accused persons had been added as culprits in that F.I. R. ---Prima facie malicious acts of Police Officials were appearing---State Counsel had no objection for the confirmation of interim bail granted to accused persons---Whether alleged abductee was actually abducted by accused persons and was recovered from their possession, in view of counter case filed by relative of accused and order passed therein required further inquiry---Challan had been submitted in the matter--Interim pre-arrest bail granted to accused persons, was confirmed, in circumstances.

Manzoor Hussain N-Larik for Applicants.

Imtiaz Ali Soomro, A.-A.G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2889 #

2010 Y L R 2889

[Karachi]

Before Maqbool Ahmed Awan, J

NASEER---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 182 and M.A. No. 780 of 2009, decided on 22nd May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(i), (vi), 504, 147, 148 & 149---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Enmity existed between the parties over the land and that fact had also been admitted by the complainant in the F.I. R. ---Complainant involved 25/30 persons in the F.I.R. and all said accused were enjoying the concession of bail except accused against whom role of firing at the injured was attributed, who sustained injury on thigh, the non-vital part of the body---Accused did not repeat the fire and if there was any intention on the part of accused to commit murder, he would have repeated the same---No incriminating article had so far been recovered from the possession of accused---State Counsel had conceded to the grant of bail to accused---Accused having made out the case which required further inquiry as envisaged under subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Muhammad Umer v. The State PLD 2004 SC 477; Umar Hayat v. The State and others 2008 SCMR 1621; Muhammad Afsar v. The State 1994 SCMR 2051; Abdul Majeed and another v. The State 2009 YLR 344; Tariq Bashir v. The State PLD 1995 SC 34; Muhammad Zamir v. The State 2001 PCr.LJ 935; Madad Khan v. The State 2006 PCr.LJ 1280 and Yaseen v. The State 2006 PCr.LJ 371 ref.

Madad Ali Shah for Applicant.

Abdul Aziz Memon for the Complainant.

Mukhtar Ahmed Khanzada, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 2901 #

2010 Y L R 2901

[Karachi]

Before Salman Ansari, J

FIDA MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 44 of 2009, decided on 25th February, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-e-amd---Bail, refusal of---Accused, who was named in the F.I.R., had allegedly caused three incised wounds to his injured wife as shown in the medical report---No delay was caused in taking the injured to the hospital where the statement had been recorded by the police and the injuries were found to be fresh---Crime weapon had been recovered and the punishment for the offence had shown that it fell within the prohibitory clause of S.497, Cr.P.C.---Injury on the person of the injured were found to have been caused by the sharp edged weapon, which had been recovered---Bail application was rejected.

Gul Wali v. Qaza Khan and another 2000 MLD 98; (Lahore) Basharat Ali and 4 others v. The State 1984 PCr.LJ 2958 and Mir Ahmed Gul and two others v. The State 1996 SCMR 979 ref.

M.B. Shakeel for Applicant.

Muhammad Iqbal Kalhoro, Additional Prosecutor-General for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2910 #

2010 Y L R 2910

[Karachi]

Before Salman Ansari, J

MUHAMMAD MUDASIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 73 of 2009, decided on 25th February, 2009.

Criminal Procedure Code (V of 189)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(b)---Possession of narcotics---Bail, grant of---Accused could be imprisoned for seven years and the .offence did not fall within the prohibitory clause of S.497, Cr.P.C.---Recovery memo had shown discrepancy in the actual weight of heroin recovered---Bail was granted.

Ghulam Muhammad v. The State 2000 PCr.LJ 551; Abdul Ghaffar v. The State 2007 PCr.LJ 1805; Liaquat Ali v. The State 1998 PCr.LJ 1444 and Nazam Shah v. The State 1998 PCr.LJ 1540 ref.

Raza Hashmi for the Applicant.

Muhammad Ali Lari, Special Prosecutor-General, ANF for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2917 #

2010 Y L R 2917

[Karachi]

Before Syed Mehmood Alam Rizvi, J

AZIM KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 584 of 2008, decided on 8th August, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, refusal of---Counsel for accused had not said anything regarding judicial identification parade and the statements of the witnesses under S.164, Cr.P.C. in presence of accused and his co-accused, which was after the arrest of accused, who had implicated accused with specific role---Issue of difference of number of the pistols, as per F.I.R. and memo of arrest/recovery, would not affect the prosecution case as aggrieved person had identified accused, and prima facie, the basic/initial numbers of the pistols were similar---Offence against accused fell within the prohibitory clause of S.497, Cr.P.C. as the punishment in the case was upto ten years and fine---Accused was arrested after an encounter with the Police---Another case against accused had shown that he was a habitual criminal, not entitled for bail---Bail application of accused was dismissed.

Shaukatullah Khan for Applicant.

Naveed Ali Khokhar for the State.

YLR 2010 KARACHI HIGH COURT SINDH 2946 #

2010 Y L R 2946

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

MUHAMMAD SALEEM---Petitioner

Versus

CHIEF CONTROLLER OF BILLING, K.E.S.C., KARACHI and others---Respondents

Constitution Petition No. D-2197 of 2010, decided on 22nd July, 2010.

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

----Art.199---Constitutional petition for issuing a direction to an incorporated company---Maintainability---Such petition could not be maintained against a company, where Federal or Provincial Government did' not have therein controlling share or interest.

Salahiuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244; Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others, PLD 2006 SC 602; Khalid Mehmood v. Habib Bank Ltd. 2005 MLD 1798; Professor M. Wali Khan v. Hamdard University and others 2006 SCMR 593; Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 Lah. 68; M/s. Huffaz Seamless Pipe Industries Ltd., v. Sui Northern Gas Pipelines Ltd., and others, 1998 CLC 1890; Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad, PLD 2002 SC 1079; Ejaz Ahmed v. Tourism Development Corporation of Punjab and others 1999 CLC 1532; Nasiruddin Ghori v. Federation of Pakistan C.P. No.D-827/2007 and S.M. Gharib Nawaz Daccawala v. KESC and others, Civil Petition No.106-K of 2007 rel.

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

----Art.199---Electricity Act (IX of 1910), S.26---Constitutional petition---Maintainability---Demand of exaggerated/bogus bill by Electric Supply Company---Such question being of fact could only be determined by Civil Court after recording evidence---Such exercise could not be undertaken in constitutional jurisdiction of High Court---Adequate alternate remedy was available to petitioner before Electric Inspector and Civil Court---High Court dismissed such petition for being not maintainable.

Muhammad Tariq Shahzad for Petitioner.

Nemo For Respondent.

Date of hearing: 22nd July, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2971 #

2010 Y L R 2971

[Karachi]

Before Mushir Alam, C.J. and Aqeel A. Abbasi, J

Messrs NAUSHABA ZUBERI and others---Appellants

Versus

Messrs QUALITY CONSTRUCTION (PVT.) LTD. and 2 others---Respondents

Constitution Petition No. D-291 of 2007, decided on 20th October, 2009.

West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance (II of 1965)---

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Playing and using Loud Speakers---Petitioner had sought a direction that action be taken against respondents for playing and using loud speakers---Cognizance of such conduct fell under the purview of the West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance, 1965--- Section 5 of the Ordinance had clearly provided that the offence under Ordinance was cognizable and any Police Officer not below the rank of Sub-Inspector could also seize any such equipment---Counsel for the petitioner had pointed out that since the cognizance could be taken by a court not less than the Magistrate of the 1st class, High Court could take cognizance of the matter---Contentions of the petitioner were fallacious as High Court would not step into the shoes of an authority which was already authorized by the special law in the case and Police could take action as the matter was cognizable---Only in cases of inaction or wrongful exercise or failure of exercise of jurisdiction by a public functionary, High Court could intervene in exercise of constitutional jurisdiction---Counsel for the petitioner could not assist the court that as to how the City Nazim in any way was competent authority under Sindh Local Government Ordinance to attend such a malice---Contention of counsel for the petitioner that direction to City Nazim could be issued to take cognizance, was untenable, in circumstances--- Order accordingly.

Muhammad Arif for Petitioner.

Manzoor Ahmed for C.U.G.K.

Ms. Afsheen Aman, State Counsel.

YLR 2010 KARACHI HIGH COURT SINDH 2977 #

2010 Y L R 2977

[Karachi]

Before Sajjad Ali Shah and Nisar Muhammad Shaikh, JJ

GULRAIZ AHMED RAZA---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB) and others---Respondents

Constitution Petitions Nos. 105 and 106 of 2008, decided on 28th June, 2010.

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

----Ss. 16A(a) & 34-A---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Chairman National Accountability Bureau, by an order in writing could validly delegate any of his powers to and authorize performance of any of his functions by an officer of National Accountability Bureau as he might deem fit and proper---Provision of S.16A(a) of the National Accountability Ordinance, 1999 opens up with a non obstante clause that is, "notwithstanding anything contained in any other law for the time being in force, the Chairman NAB may apply to any court of law or Tribunal that any case involving offence under this Ordinance pending before such court or Tribunal shall be transferred to a court established under this Ordinance" but the non obstante clause was confined to any other law for the time being in force and not to provisions of Ordinance itself---No clog existed on the powers of the Chairman to delegate his powers under S.16A(a) of the National Accountability Ordinance, 1999 upon any officer of National Accountability Bureau in terms of S.34-A of the Ordinance.

Abdul Sattar Dero v. The State 2002 YLR 1870; Rauf Bakhsh Kadri v. The State and others 2003 MLD 777; Dr. Zahoor Mehdi v. Chief Election Commission of Pakistan PLD 2008 SC 707 = 2008 CLD 1117 and Saghir Ahmed v. Province of Punjab and others PLD 2004 Supreme Court 261 ref.

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

----S. 6(c)---Constitution of Pakistan (1973), Art.199--- Constitutional petition---When the Chairman National Accountability Bureau was absent or unable to perform functions of his office due to any reason whatsoever the Deputy Chairman National Accountability Bureau, without any act on the part of Chairman or delegation of power, could act as Chairman---When the Deputy Chairman was absent or unable to perform the functions of the office, then Chairman had to delegate the power on any officer of the National Accountability Bureau to act as Chairman.

----Ss. 6(c) & 16A(a)---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Chairman National Accountability Bureau had relinquished the charge of his post on 3rd July, 2007 and the new Chairman though was appointed on 5th July, 2007, but had assumed the charge of the post of Chairman National Accountability Bureau on 6th July, 2007---Though the new Chairman National Accountability Bureau was appointed on 5th July, 2007, but was not available/absent or unable to perform the functions of his office in terms of S.6(c) of the National Accountability Ordinance, 1999, application under S.16A(a) of the Ordinance moved by the Deputy Chairman National Accountability Bureau as Acting Chairman, in absence of the Chairman, for transfer of cases from the Customs and Taxation Court to the Accountability Court, could not be termed as without lawful authority.

Chaudhry Muhammad Iqbal for Petitioner.

Muhammad Aslam Butt, D.P.G.A. for Respondents.

Dates of hearing: 21st and 28th June, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 2993 #

2010 Y L R 2993

[Karachi]

Before Muhammad Tasnim, J

AMJAD AMEEN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 230 of 2010, decided on 20th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 395, 440, 114, 148 & 149---Qatl-eamd, dacoity, mischief---Bail, grant of---Further inquiry---Delay of four days in lodging F.I.R., was not properly explained---When name of the accused was not disclosed in the first hand report to the Police, it was a fit case in which accused could be enlarged on bail as there appeared to be doubt and case had become of further inquiry---Only allegation levelled against accused was that he instigated an unknown person to make firing upon the deceased---Where there was no other evidence connecting accused with the commission of alleged offence available and no other role to accused had been assigned, normally accused would be admitted to bail---Reasonable doubt existed in the case and it was a fit one where benefit of doubt could be extended to accused and he could be enlarged on bail-Accused was admitted to bail, in circumstances.

Nooruddin and another v. The State 1995 MLD 1267; Usman v. The State, 1994 SCMR 2161; Amanat Ali v. The State 1993 SCMR 1992; Rustam alias Hoto v. The State 2004 PCr.LJ 1753; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18 ref.

S. Mushtaque Hussain Shah and Miss Rizwana Jabeen Siddiqui for Applicant.

Manzoor Ahmed Junejo for the Complainant.

Shyme Lal, A.P.G. for the State.

2010 Y L R 3083

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

MUHAMMAD HANEEF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-52, Criminal Jail Appeal No. D-65 and Criminal Reference No. D-3 of 2003, decided on 18th May, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant and other two eye-witnesses had unanimously established their presence at the scene of crime, motive for the occurrence as well as their having witnessed the incident of firing by the accused straight on the head of the deceased--- Ocular testimony was corroborated by medical evidence---Eight empty cartridges of .12 bore had been secured from the place of occurrence and ten live cartridges of the same calibre along with SBBL gun had been recovered from the accused at the time of his arrest--Evidence of recovery of the said incriminating articles had further supported tire ocular account of occurrence---No mitigating circumstance was available on record to favour the accused with award of lesser punishment---Conviction and sentence of death of accused were affirmed in circumstances.

Nasir Shah v. The State 2006 SCMR 1796 and Inayat Ali v. Iftikhar Ahmed PLD 2007 SC 80 ref.

Athar Abbas Solangi for Appellant.

Naimatullah Bhurgri for the State.

Date of hearing: 11th May, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 3109 #

2010 Y L R 3109

[Karachi]

Before Sajjad Ali Shah, J

Syed SIRAJ HASSAN---Appellant

Versus

MUHAMMAD TAHIR and others---Respondents

Criminal Acquisition Appeal No.235 of 2009, decided on 17th February, 2010.

Penal Code (XLV of 1860)---

----Ss.406, 420, 468 & 471/34---Criminal Procedure Code (V of 1898), S. 417(2-A)--Criminal breach of trust, cheating, forgery, using as genuine a forged document---Appeal against acquittal---After scrutiny of the evidence available on record, there appeared to be no mens rea on the part of accused nor any allegation that he had dishonestly misappropriated any property or converted the same to his own use---Even according to the complainant's own statement other accused could have been held at the most for negligence departmentally and was not liable for the offence with which he was charged---No interference with the judgment of Appellate Court below acquitting accused, was required.

Ch. Javed Yousaf for Appellant.

Saleem Akhtar, Additional Prosecutor-General.

Qazi Ali Athar for Respondent, No. 1.

Syed Raees Ahmed, Respondent No.2 present in person.

YLR 2010 KARACHI HIGH COURT SINDH 3117 #

2010 Y L R 3117

[Karachi]

Before Ghulam Sarwar Korai, J

MUSHTAQ and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 114, 128, 142, 154 and 247 of 2009, decided on 20 April, 2010.

Penal Code (XLV of 1860)---

----Ss. 395, 397 & 34---Dacoity and robbery---Appreciation of evidence---Evidence of one of the prosecution witnesses was immaterial as in the last line of his examination-in-chief he deposed that he was not sure that accused were amongst the culprits at the time of incident---Evidence of an other prosecution witness was also immaterial as he deposed in the examination-in-chief that he and other employees of the bank were under fear or pressure, therefore could not see the culprits who committed the dacoity in the bank---Evidence of an other witness was also immaterial as neither he was robbed by culprits nor he received any injury---Similarly evidence of other witnesses was also immaterial due to number of discrepancies in their evidence--Recovery of currency notes from accused was effected in the presence of Police Officials and even that amount was not shown in evidence to the witnesses---Said amount was not owned by the complainant as the robbed amount and no order was passed by the Trial Court under S.517, Cr. P. C. ---Identification parade was held after about three days from the date of letter given to the Judicial Magistrate---Injured Security Guard, who was a star witness was not examined by the prosecution---Private person who was also robbed by accused was not examined by the prosecution and even number of discrepancies were found in the evidence of the witnesses---Injured person having not been examined, offence under S.397, P.P.C. was not proved---Late conduct of identification parade without role of accused in the identification parade and without fulfilling the requirements of Art.22(4) of Qanun-e-Shahadat, 1984 had no value in the eyes of law---Prosecution, in circumstances, had failed to establish its case against accused---Conviction and sentences awarded to accused under impugned judgment, were set aside and accused was acquitted, in circumstances.

Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088 Khadim Hussain v. The State 1985 SCMR 721; Ghulam Rasul and 3 others v. The State 1988 SCMR 557; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Sajeelur Rehman v. The State 2005 MLD 637 and Abdul Salam v. The State PLD 2005 Quetta 86 ref.

Mushtaq Ahmed Bhambro (in Criminal Appeal No. 128 of 2008).

Muhammad Nishat Warsi (in Criminal Appeal No. 142 of 2009).

Khalid Mehmood (in Criminal Appeal No. 154 of 2009).

Zahoor Ahmed Shah for the State.

Date of hearing: 20th April, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 3168 #

2010 Y L R 3168

[Karachi]

Before Mrs. Qaiser Iqbal, J

SADRUDDIN ABDULLAH GANGJI--- Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.260 of 2008, decided on 29th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss. 409/420/467/468/471/201/109/34--Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, cheating forgery and, using as genuine a forged document---Quashing of proceedings--Application for---After interim challan was submitted, the charge against the applicant and co-accused was framed and the case was bifurcated into six cases---No progress was made in the case on account of extraneous considerations---Accused was acquitted by a Division Bench of the High Court earlier and such acquittal order having not been assailed before the higher forum, same had attained finality--Registration of F.I.R. subsequently against applicant would amount to double jeopardy---When there was no possibility of conviction of an accused, the Trial Court could not be allowed to be lingered on, which otherwise would amount to an abuse of the process of the court---Even otherwise issue stood settled between the applicant and the Government as substantial sum was paid towards the customs duty to Central Board of Revenue and the Ministry of Interior Affairs---After a substantial amount was 'recovered, no fruitful purpose would be achieved if the trial was allowed to be lingered on as the prosecution was not interested in pursuing the cases; and the' matter was sub judice from the last eleven years without any trial nor there was likelihood of the conclusion of trial in near future---Proceedings were quashed, in circumstances.

Mian Muneer Ahmed v. The State 1985 SCMR 257 and Meraj Khan and others 2000 SCMR 122 rel.

Mirza Sarfaraz Baig for Applicant.

Ahmed Ali Shah Standing Counsel with Israr Ali Deputy Director FIA.

YLR 2010 KARACHI HIGH COURT SINDH 3182 #

2010 Y L R 3182

[Karachi]

Before Maqbool Ahmed Awan, J

SHAH NAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-59 and M.As. Nos. 221, 222 of 2009, decided on 4th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 384, 147, 148 & 149---Qatl-eamd, attempt to commit qatl-e-amd and extortion---Bail, grant of---Accused was in custody since 21-2-2007 and the trial had not been concluded---One should not be detained in custody for an indefinite period---Co-accused having identical role had been acquitted by the Trial Court with the consent of the complainant who had filed affidavit---Accused having made out a case for grant of bail on the ground of hardship, he was granted bail, in circumstance.

1999 SCMR 2147; PLD 2009 SC 58; 2007 SCMR 1254; PLD 2005 Kar. 255; 2009 MLD 103; 2004 YLR 848; 2009 YLR 73; 2008 PCr.LJ 449; 2006 MLD 1846; 2003 MLD 19; 2008 YLR 864 and 2003 MLD 79 ref.

Syed Madad Ali Shah for Applicant.

Hidayatullah Abbasi for the Complainant.

Muhammad Azeem Panhwar for the State.

YLR 2010 KARACHI HIGH COURT SINDH 3191 #

2010 Y L R 3191

[Karachi]

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

ASIF ZAHEER and another---Appellants

Versus

THE STATE---Respondent

Spl. Crl. ATA No. 38 of 2003, decided on 5th May, 2009.

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

----Ss. 3, 4 & 5---Penal Code (XLV of 1860), Ss. 302 (b), 120-B, 109/34, 337-F(i) & 337-L(1)---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a), 7(c) & 7(d)---Qatl-e-amd, criminal conspiracy and act of terrorism---Appreciation of evidence---Confessional statement allegedly made by accused without giving the details of the events of the incident, was not voluntary and the same was not recorded in accordance with law---Prosecution witness had simply claimed to have seen the accused eight months back in the car or on motorcycle, but doing no crime---Nobody had seen the accused at the place of blast or planting explosives in the said car---No evidence was available on record to show that the bomb blast was caused by the accused---Whole case was based upon the evidence of a chance witness, who appeared to be a created and padded witness---Accused were acquitted in circumstances.

Ahmed Saeed alias Saeed Bahram and others v. The State 2003 PCr.LJ 1229; Muhammad Yousuf v. State 1995 SCMR 351; Malak Jehangir Khan and others v. Sardar Ali and 2 others 2007 SCMR 1404; Muhammad Amin v. The State PLD 2006 SC 219; Ayaz Baig v. The State PLD 2007 SC 607; The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Manjeet Singh v. The State PLD 2006 SC 30 and Balbir Singh v. State of Punjab AIR 1957 SC 216 ref.

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

----S. 164---Confessional statement---Retracted judicial confession, appreciation of---Rule of caution---Confession of accused though recorded in accordance with law, yet after it had been retracted than as a matter of abundant caution and prudence the same cannot be relied upon without corroboration through some other reliable and cogent evidence.

Ahmed Saeed alias Saeed Bahram and others v. The State 2003 PCr.LJ 1229; Muhammad Yousuf v. State 1995 SCMR 351 and Malak Jehangir Khan and others v. Sardar Ali and 2 others 2007 SCMR 1404 ref.

M.R. Syed and Muhammad Farooq for Appellants.

Saifullah A.A.-G. for the State.

Date of hearing: 30th October, 2008.

YLR 2010 KARACHI HIGH COURT SINDH 3208 #

2010 Y L R 3208

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. ROEEBA KHATOON and others---Petitioners

Versus

M.Y. BUTT and another---Respondents

IInd Appeal No.10 of 2006, decided on 31st March, 2009.

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

----S. 42---Limitation Act (LX of 1908), Art.120---Suit for declaration and mutation---Limitation---Both the Trial Court and Appellate Court dismissed the suit on point of limitation without stating that as to which Article of Limitation Act, 1908 was applicable and what was the starting point of limitation---Article 120 of Limitation Act, 1908 was applicable which had provided that suit for which no period of limitation was provided elsewhere in the Schedule, could be filed within six years when the right to sue accrued---Question when a right to sue would accrue in suit for declaration would depend upon the facts and circumstances of each case; and right to property, was a subsisting right and the right to bring a declaratory suit was a continuing right---Both the judgments of the courts below were set aside and case was remanded to the Trial Court for deciding the same afresh on merits.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Mst. Zakia Begum v. Niaz Ahmad 1999 MLD- 3156; Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385 and Samina Sheikh v. Vice-Chancellor University of Punjab 1997 CLC 290 rel.

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

----S. 100---Second appeal---Scope---Point of limitation---High Court in second appeal, could interfere on the ground of error of law or an error in the procedure---High Court could also interfere, if the decision is contrary to law and contrary to usage having force of law---By not discussing the relevant provisions of the Schedule of Limitation Act, 1908 and by not determining the date from which the limitation would start, both the courts below had committed error in law and had failed to exercise the jurisdiction vested in them properly and in accordance with law---Both the judgments of the courts below were set aside in second appeal, in circumstances.

Muhammad Aziz Khan for Appellants.

Saifuddin for Respondent No.2.

YLR 2010 KARACHI HIGH COURT SINDH 3220 #

2010 Y L R 3220

[Karachi]

Before Muhammad Athar Saeed and Bin Yamin, JJ

MUHAMMAD FAISAL QURESHI----Petitioner

Versus

TOWN MUNICIPAL ADMINISTRATION through Nazim and 2 others---Respondents

Constitutional Petition No. D-1312 of 2009, decided on 1st July, 2009.

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

----Ss. 105 & 108---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lease of property for fixed period---Expiry of period---Vacation of property---Petitioner was granted contract for running the `Marriage Garden' for five years---on expiry of said period of five years, notice was issued to the petitioner for vacation of the property---Petitioner had submitted that he had invested considerable amount on the property and that he intended to re-bid, when the auction proceedings of said property would take place---Court initially appointed the Nazir of the Court to take-over the possession of the property in question and prepare the report of the construction available on the property in question; and make inventory of all the goods lying in said property; and then replace the lock of said property with his own lock and depute four Security Guards at the expenses of the petitioner on the said property---Authorities would soon start the process of re-auctioning the lease of that property---High Court directed that the tender or the auction bid of the petitioner, could also be considered and could be disposed of on merits---If the bid of the petitioner was accepted, the Nazir of the Court, would on the acceptance of the bid, hand over the possession of the property in question to the petitioner---If the bid of the petitioner was not accepted and was decided in favour of some other bidder, the Nazir would along with the representatives of the petitioner and the respondents visit the site and after consultation with both the parties, would hand over all the goods which belonged to the petitioner.

Niamur Rehman for Petitioner.

Manzoor Ahmed for the C.D.G.K.

Tariq Jameel for Respondents Nos.1 and 2.

YLR 2010 KARACHI HIGH COURT SINDH 3235 #

2010 Y L R 3235

[Karachi]

Before Irfan Saadat Khan, J

PERVEZ IQBAL---Plaintiff

Versus

Mrs. RANA/NADIA IQBAL SIDDIQUI--- Defendant

Suit No. 914 of 2004, decided on 3rd September, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S.186---Suit for specific performance of sale agreement---Suit property located in Defence Housing Authority---Plaintiff claimed that agreement and receipt of earnest money were signed by attorney of defendant---Defendant's plea that he had neither entered into such agreement with plaintiff nor received any sum from him nor given authority to anybody for sale of suit property, and that such receipt was not binding upon him---Proof---Plaintiff in cross-examination admitted that he had never met defendant; that he had no documentary proof to show that defendant had given authority to anybody for sale of suit property---Defendant voluntarily stated that he had talked to defendant on telephone, but had not stated such fact in plaint or affidavit-in-evidence---If advertisement of sale of suit property found mention alleged person to be attorney of defendant, even then prudent person before entering into negotiation for its purchase must have first seen the relevant documents---Alleged attorney cited by plaintiff as one of his witnesses was not examined, thus, presumption would arise that had he been examined, he would have deposed against interest of plaintiff---Such receipt was issued by alleged attorney and did not bear signature of defendant---Plaintiff in cross-examination admitted that he had not made any direct payment to defendant--- Alleged attorney was not duly appointed attorney of defendant, thus, any receipt issued by him would not be binding on defendant---Though no sale agreement was required for selling property in the Housing Scheme but at least some agreement between parties, oral or written, must have been established/ produced---Nothing on record to show that how and why defendant entered into sale agreement with alleged attorney without verifying his authority as attorney of defendant---Suit was dismissed in circumstances.

1990 MLD 1129; 1996 MLD 562; 1994 MLD 1275, and 1989 SCMR 1292 rel.

Arshad Iqbal for Plaintiff.

Muhammad Aquil for Defendant.

Date of hearing: 25th August, 2010.

YLR 2010 KARACHI HIGH COURT SINDH 3240 #

2010 Y L R 3240

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

RAEES KHAN JADON---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.228 of 2009, heard on 10th May, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Accused did not press his appeal against judgment of the Trial Court on merits, but had prayed that impugned sentence and fine awarded to him by the Trial Court be reduced to that of already undergone by him---Accused who was first offender, claimed to be the sole bread earner of his family---Out of total sentence of 7 years and 3 months awarded to him by the Trial Court, accused had served out sentence of 4 years, 11 months and 3 days, including remissions---Sentence of 7 years' R.I. awarded to accused by the Trial Court was modified to that already undergone by accused, in circumstances, and he was ordered to be released.

Ms. Azra Iqbal for Appellant.

Syed Ashfaq Hussain Rizvi, Special Prosecutor ANF.

YLR 2010 KARACHI HIGH COURT SINDH 3261 #

2010 Y L R 3261

[Karachi]

Before Muhammad Tasnim, J

Mst. SADORI---Petitioner

Versus

GOVERNMENT OF SINDH through Home Secretary, Karachi and 8 others---

Respondents

Constitutional Petition No. S-1613 of 2010, decided on 4th August, 2010.

Guardians and Wards Act (VIII of 1890)---

----Ss.17 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Constitutional petition by mother for recovery of minor son aged 6 years from custody of father---Validity---Minor had been removed illegally from custody of mother---High Court handed over custody of minor to mother, who undertook to provide him proper education, medical treatment and keep his welfare as prime consideration in bringing him up---Father in order to claim custody of minor might initiate appropriate proceedings in accordance with law---High Court disposed constitutional petition accordingly.

The Principles of Mohamedan Law By Sir D.F. Mulla; Rahimatullah Choudhary v. Mrs. Syeda Helali Begumand others 1974 SCMR 302; Imtiaz Ali and another v. The State 1997 PCr.LJ 587 and Mst. Rizwana Bohari v. Abdul Majeed Shah 1984 PCr.LJ 2582 rel.

Irshad Hussain Dharejo for Petitioner.

J.K. Jarwar files power on behalf of the Respondent No.4, which is taken on record.

YLR 2010 KARACHI HIGH COURT SINDH 3267 #

2010 Y L R 3267

[Karachi]

Before Sarmad Jalal Osmany, J

AZIZUR REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.313 of 2009, heard on 10th August, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.409 & 420---Registration Act (XVI of 1908), S.34---Criminal breach of trust by public servant and cheating---Pre-arrest bail, confirmation of---F.I.R. alleged that accused who was Sub-Registrar, registered a general power of attorney given by a person to his son on basis of a wrong and fraudulent record---Function of accused as Registrar was not to verify the title of the concerned property, but only confirm the identity of the persons who appeared before him for the purpose of registration; and also to the factum of registration i.e. whether they admit execution of the same---Another additional duty of Registrar would be to carry out a prima facie investigation as to the title of the property i.e. whether the person who was selling it, actually owned the same---In the present case, accused/Registrar had registered the document, which was a general power of attorney on the basis of the Revenue Record which displayed co-accused as the owner of the property---Name of accused had been included in the F.I.R. due to some ulterior motive---Bail earlier granted to accused was confirmed on the same terms and conditions.

Abdul Baqi Mehar v. Inspector General of Registration 1989 SCMR 570 and Messrs Pak. Fertilizer Co. v. Government of Sindh 2005 CLD 61 ref.

Haseebur Rehman for Applicant.

Zafar Ahmed, Addl: P.G. for the State.

YLR 2010 KARACHI HIGH COURT SINDH 3275 #

2010 Y L R 3275

[Karachi]

Before Salman Hamid, J

Syeda FARHAT JAHAN---Petitioner

Versus

Syed IQBAL HUSSAIN RIZVI and another---Respondents

Constitutional Petition No. S-43 and M.A. No. 448 of 2009, decided on 23rd August, 2010.

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

----Ss. 5, Sched. S.17-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of maintenance of minor children---Order of Family Court granting interim maintenance to minors--Non-payment of interim maintenance by father after dismissal of suit for non-prosecution and its restoration to its original position---Mother's application seeking payment of interim maintenance as per earlier order---Dismissal of such application by Family Court on the ground that minors were not entitled to maintenance for period during which suit remained dismissed---Validity---After restoration of suit, all orders passed earlier, interim or otherwise, also stood restored to its original position---Family Court after restoring suit was bound to have ordered payment of arrears of maintenance as ordered earlier---Right of maintenance being a natural right of minor children, thus, father could not be allowed under any circumstance to be negligent about the same---Legal and moral duty of father as natural guardian of minor children was to keep maintaining them---Any negligence or slackness on the part of father, if brought to notice of court, then court must order maintenance and dealt with such slackness strictly---No excuse, big or small, could absolve father from his duty of maintaining his minor children as ordained on him through divine revelation of Allah Almighty---Right of maintenance of minors, though for a limited period, was put at peril on account of act of court, which could not be allowed to be sustained in any circumstance---High Court set aside impugned order while directed father to deposit arrears of interim maintenance within 15 days, failing which writ of attachment of his house and/or property both movably and immovable would follow.

Tahir Nisar Rajput for Petitioner.

Shahid Ahmed Shaikh, A.P.G. Sindh.

YLR 2010 KARACHI HIGH COURT SINDH 3279 #

2010 Y L R 3279(2)

[Karachi]

Before Ghulam Sarwar Korai, J

TARIQ BARI and another---Petitioners

Versus

IVTH ADDITIONAL DISTRICT AND SESSIONS JUDGE and others---

Respondents

C.P. No.S-354 of 2010, decided on 16th April, 2010.

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

----Ss. 15(2((ii), (iii)(a)(b), (vii), 16(1)(2) & 21---Constitution of Pakistan (1973), Art.199--- Constitutional petition--Ejectment of tenant on grounds of default in payment of rent, subletting and bona fide personal need of landlord---Noncompliance of tentative rent order---Striking off defence---Tenants were directed to deposit arrears of rent within 15 days and also to deposit monthly future rent and water and sewerage charges, but tenant had failed to comply with said order---Application filed by landlord under S.16(2) of Sindh Rented Premises Order, 1979 for striking off defence of tenants had concurrently been allowed by Rent Controller and Appellate Court and tenants were directed to vacate premises in question within 30 days---Validity---Terms and conditions of the tenancy agreement had been violated by the tenants, so also the tentative order of Rent Controller---Tenants, in circumstances were not entitled for any relief from High Court.

Muhammad Ayub Khan for Petitioners.

Mrs. Razia Danish for Respondent No.3.

YLR 2010 KARACHI HIGH COURT SINDH 3288 #

2010 Y L R 3288

[Karachi]

Before Gulzar Ahmed, J

IMRAN and 3 others---Applicants

Versus

LIAQUAT ALI and another---Respondents

Criminal Miscellaneous Application Nos.378 and M.A. No. 2778 of 2010, decided on 23rd August, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 173, 190 & 561-A---Filing of final report by Investigation Officer for cancelling case under "C" class---Disagreement of Magistrate with such report due to availability of sufficient evidence on record to connect accused with offence, thus, directed Investigating Officer to submit report accordingly---Validity---After filing of such report, Magistrate had option either to agree or disagree with the same, but in case of disagreement, he could order further investigation of case by police, and in case when no investigation required to be conducted, then he could take cognizance of offence in terms of S. 190, Cr.P.C. Magistrate had no power or authority to direct Police Investigating Officer to file another report under S. 173, Cr.P.C., from the one disagreed by him---High Court set aside impugned order and directed Magistrate to pass appropriate orders on such report in accordance with law.

Muhammad Farooq Qureshi v. Judicial Magistrate Section 30 2010 PCr.LJ 261 and Muhammad Ramzan v. Rahib PLD 2010 SC 585 ref.

Rana Sohail Mehmood for Applicants.

Muhammad Iqbal Kalhoro, Additional P.G. Sindh along with A.S.-I.

Sadaqat Ali, S.I.O. Police Station Phulladhyoon, District Mirpukhas.

YLR 2010 KARACHI HIGH COURT SINDH 3294 #

2010 Y L R 3294

[Karachi]

Before Syed Hasan Azhar Rizvi, J

SIRAJ KASSAM TELI and 3 others---Petitioners

Versus

BASHIR ALI MUHAMMAD and 8 others---Respondents

J. Miscellaneous No. 25 and C.M.A. No.1090 of 2009, decided on 30th August, 2010.

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

----Art. 204--- Contempt jurisdiction, exercise of---Scope stated.

Contempt jurisdiction ought to be sparingly exercised and should not be allowed to be used for settling private scores. It is of the utmost importance that a committal for contempt should not be made unless the disobedience shown is of such a serious nature as to indicate that the alleged contemnor is deliberately out of flout.

C.P. No.D-42 of 1999 fol.

(b) Contempt of Court Act (LXIV of 1976)---

----S.3---Companies Ordinance (XLVII of 1984), Ss. 290, 233 & 305---Constitution of Pakistan (1973), Art. 204---Pendency of petition for appointment of Investigative Auditor---Interim order of court directing respondents-directors not to hold General Body Meeting without its clear order and restraining both parties and their counsel from publicizing such pending proceedings---Issuance of Annual Report by company to its shareholders and stock exchanges containing opinion of counsel of respondents-directors that company had a strong case, and that there was every likelihood that petitioner would not be found entitled to relief prayed for---Contempt application--- Plea that respondents by publishing such Report had pre judged adjudication, which amounted to interference with course of justice---Maintainability---Respondents had neither done any act with intention to obstruct administration of justice nor scandalized a Judge of High Court---Respondents had not disobeyed or disregarded or committed wilful breach of a valid undertaking given to High Court while passing such restraint order---No proceedings pending in High Court had been published---Opinion/advice of a counsel to his client could not be said to be pre-judgment---Such opinion/advice of respondents' counsel was not certain and definite---Respondents had obtained services of very senior counsel of the country in such petition and one could expect from them to give an opinion/advice regarding a strong case or likelihood of success or defeat in any case---Main petition, wherein such restraint order was passed, had already been dismissed---Issuance of such report was requirement of S. 233 of Companies Ordinance, 1984 and Listing Regulations of Stock Exchanges---High Court dismissed contempt application in circumstances.

Suto Motu Case No.1 of 2007, PLD 2007 SC 688; Attorney General v. Times Newspapers Ltd. (1974) AC 273; Malik Nazar Muhammad v. The District Council and others 1992 PLD Lah. 200; Malik Shah Abdul Waheed v. Karachi Metropolitan Corporation and others 1989 CLC 440; Dr. Abdul Ghani Siddiqui v. Government of Sindh 1990 MLD 773; 2010 SCMR 354; Attorney General v. British Broadcasting Corporation 1978 A. No.501 and PLD 2007 SC 688 ref.

Aziz A. Munshi and Abdullah Munshi for Petitioner No.1.

Arshad Tayabali and Muhammad Shahid for Petitioner No.2.

Khalid Anwar for Respondents Nos. 1 to 4.

Makhdoom Ali Khan for Respondent No.5.

Kh. Shoaib Memon for Respondent.

Ejaz Ahmed for Respondent No.9.

YLR 2010 KARACHI HIGH COURT SINDH 3313 #

2010 Y L R 3313

[Karachi]

Before Muhammad Ali Mazhar, J

SABIR HUSSAIN---Plaintiff

Versus

BOARD OF TRUSTEES OF THE PORT OF KARACHI and 5 others---Respondents

Suit No.867 of 2003 and C.M.A. No.1676 of 2005, decided on 17th September, 2010.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Karachi Port Trust Act (VI of 1886), S.87---Specific Relief Act (I of 1877), Ss. 21 & 42---Rejection of plaint---Cause of action---Multiple reliefs--Plaintiff was contractor at Karachi Port Trust and a letter was issued by the Trust declaring him blacklisted---Plea raised by the Trust was that plaintiff did not have any cause of action and suit was barred under section 21 of Specific Relief Act, 1877---Validity---Plaint could not be rejected in piecemeal as besides claiming declaration regarding validity of the letter, plaintiff also claimed recovery of dues and damages, therefore, suit was not barred under section 21 of Specific Relief Act, 1877---Cause of action was a bundle of facts and for ascertaining whether plaint had disclosed any cause of action or not for that reason that entire plaint was to be seen---Plaintiff had challenged the letter, whereby he was declared blacklisted and other reliefs in the plaint were relating to recovery of money and damages---Plaintiff had disclosed a proper cause of action in the plaint and the same could not be rejected on such ground---Controversy involved in the present suit could not be decided without evidence and High Court declined to reject the plaint--Application was dismissed in circumstances.

Trustees of the Port of Karachi v. Qutubuddin PLD 2005 Kar. 645; Concentrate Manufacturing Company of Ireland and 3 others v. Seven-up Bottling Company (Pvt.) Ltd. and 3 others 2002 CLC 77; Muhammad Ismail and Co. Ltd. v. Karachi Port Trust, Karachi PLD 1978 Kar. 892; Messrs General Carriers Ltd. Karachi and 2 others Karachi Port Trust PLD 1978 Kar. 1041; Mesrs Creative Information Services (Pvt.) Ltd. v. Karachi Port Trust 2006 MLD 1397 and Khalid and Company v. Cantonment Board, Malir PLD 2002 Kar. 502 distinguished.

Saleem Malik v. Pakistan Cricket Board (PCB) PLD 2008 SC 650; Maxim Advertising Co. (Pvt.) Ltd. v. Messrs Z & J Hygienic Products and 2 others 2007 YLR 2252; Attaullah and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38; Messrs Falaknaz Builders v. Karachi Building Control Authority and others PLD 2001 YLR 2542; Mrs. Zaibunnisa v. Muhammad Sajid 2007 CLC 1757 and Mrs. Naila Masood and 2 others v. Secretary, Food and Cooperation, Government of Sindh and others 1998 CLC 1532 rel.

Masroor Alvi for Plaintiff.

Haroon Shah for Defendant.

YLR 2010 KARACHI HIGH COURT SINDH 3331 #

2010 Y L R 3331

[Karachi]

Before Muhammad Ali Mazhar, J

Mrs. RUBBY HAMEEDULLAH and 3 others---Plaintiffs

Versus

Dr. ARIF and 4 others---Defendants

Suit No. 123 of 2010, decided on 17th September, 2010.

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

----S.34---Stay of legal proceedings---Principle---If a person who has been a party to an arbitration agreement brings a suit ignoring that agreement, the defendant's remedy, if he wants to rely on that agreement, was to proceed under S.34 of Arbitration Act, 1940, and to ask for stay of the suit---Exception has been created under S.34 of Arbitration Act, 1940, to the general law relating to procedure and empowers the court with jurisdiction to decide dispute or to refuse to do so in case of existence of an arbitration agreement---If in a contract there is a provision of resolution of dispute between the parties by way of arbitration and parties have agreed to such forum, then such forum is to be resorted to and given preference before filing a suit.

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

----Ss. 34 & 41---Specific Relief Act (I of 1877), S.42---Stay of proceedings---Arbitration--- Interim injunction---Defendant sought stay of proceedings on the ground that dispute between the parties was subject-matter of arbitration before sole arbitrator---Validity---Issue of gift and ostensible ownership was pending adjudication before Arbitrator, therefore, unless the issue was decided in favour of plaintiffs, no further steps could be taken in the suit---Chance of plaintiff's success was dependent upon findings of gift in their favour, therefore, the plaintiffs were not entitled to claim the rent before award---In order to avoid any miscarriage of justice and to secure rights and interest of plaintiffs, if any sustained or declared in the award of arbitrator, it would be appropriate for High Court to exercise powers under S. 41 of Arbitration Act, 1940, which had provided ample jurisdiction to grant interim injunction or appointment of receiver---High Court directed the defendant to submit with the court monthly accounts of rent of shops--Factum of ownership of plaintiffs was under dispute, therefore, High Court declined to give any direction to tenants for payment of rent to plaintiffs---Any such order would amount to negate the very purpose of arbitration and tantamount to circumvent the arbitration proceedings--High Court in exercise of jurisdiction under s.34 of Arbitration Act, 1940, stayed the proceedings of the suit pending before it---Application was allowed in circumstances.

State of Punjab v. Messrs Geeta Iron & Brass Works Ltd. AIR 1978 Supreme Court, 1608; Messrs Haji Muhammad Ibrahim and Sons v. Karachi Municipal Corporation PLD 1960 (W.P.) Kar. 916; Syed Muddasar Shah v. Managing Director, N.W.F.P. Forest Development Corporation, Peshawar 1999 MLD 736; Jamshed Alam Khan v. Haq Nawaz PLD 1973 Kar. 31; Uzin Export Import Enterprises v. M. Iftikhar and Company Ltd. PLD 1986 Kar. 1 and ' Muhammad Yousuf Burney v. S. Muhammad Ali 1983 CLC 1498 rel.

Taj Din v. Muhammad Sharif PLD 1970 Lah. 840; Siraj Farooqi v. Pir Elahi Bux Co-operative Housing Society Ltd. PLD 1956 Sindh 95; Hidayatullah v. Shamimuddin 1993 MLD 993 and Gul Iran Co. v. Pakistan Refinery Ltd. PLD 1976 Kar. 1060 distinguished.

Soffia Saeed for Plaintiffs.

Khalid Hameed for Defendants No.5.

Lahore High Court Lahore

YLR 2010 LAHORE HIGH COURT LAHORE 1 #

2010 Y L R 1

[Lahore]

Before Ijaz ul Ahsan, J

Khawaja MUHAMMAD SHOAIB---Petitioner

Versus

NAZIM UNION COUNCIL and others---Respondents

Writ Petition No.17824 of 2009, heard on 2nd November, 2009.

(a) Muslims Family Laws Ordinance (VII of 1961)---

----Ss. 7 & 8--- West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notice of divorce---Territorial limits---Effect---Petitioner had challenged the notice of divorce filed by wife in the concerned Union Council on the ground that such notice was required to be filed at a place of residence of the spouse against whom such right was to be exercised---Wife controverted the assertions submitted by petitioner and contended that the provisions of R.3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 applied mutatis mutandis to wife and she could file such notice at the place where she resided---Validity---Language of the rule asserted by petitioner was to be given its literal interpretation and the right of divorce exercised either by husband or by wife had to be notified to the Union Council where the wife/woman resided at the relevant time---Section 8 read with S.7 of the Muslim Family Laws Ordinance 1961 and R.3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance 1961 clearly showed that the Union Council within whose territorial limits the woman resided, had the requisite jurisdiction in the matter---High Court declined to interfere in constitutional jurisdiction.

(b) Muslim Family Laws Ordinance (VII of 1961)---

----S. 7---Divorce---Right of divorce---Delegation of---Scope---Right of divorce once granted could not be unilaterally revoked.

2000 CLC 202; PLD 2000 Lahore 644 and PLD 1964 (WP) Karachi 306 ref.

---Procedural formalities are meant to facilitate and not to thwart justice---These should not and could not be allowed by the courts to be misused to harass, torment and frustrate women, a high percentage of whom constitute the most oppressed segment of the society.

Azhar Maqbool Shah for Petitioner.

Shamsa Ali for Respondents.

Date of hearing: 2nd November, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 5 #

2010 Y L R 5

[Lahore]

Before Fazal-e-Miran Chauhan, J

ROSHAN DIN---Petitioner

Versus

TEHSILDAR and others---Respondents

Writ Petition No.5864 of 2009, decided on 30th April, 2009.

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

----S.42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recording and attesting of mutation in respect of property purchased---Failure to incorporate change in the record-of-rights by the Patwari---Effect---Petitioner, in the present case purchased residential house built on plot--- Sale-deed was duly registered with Sub-Registrar and mutation was recorded--- Petitioner approached Halqa Patwari for issuance of "Fard Bay" and copy of registered Haqdaran-e-Zamin of land, but Patwari refused to issue "Fard Bay" on the pretext that entry of mutation had not been entered in the Revenue Record---Register Haqdaran-e-Zamin showed that petitioner was the owner of the property in question---No action having been taken by the Tehsildar concerned on the application of the petitioner, petitioner filed constitutional petition---Validity---Halqa Patwari who appeared, had stated that mutation was recorded and attested, but that fact of change was not incorporated in the record-of-rights by the then Patwari; he had failed to give any explanation as to why same had not been incorporated by him---Having come to know about the same, on the application of the petitioner, said Patwari sought time to record the change of ownership in the record-of-rights where petitioners had been recorded as owner of land in dispute---`Fard Bay' was issued as original of the said document, and was handed over to the petitioner and photocopy whereof had been placed on the record---High Court directed all the Registrars not to demand certified copy of records of right illegally with a specific note of "Fard Bay"; they should verify ownership of the person from the concerned Revenue Record, maintained in the record room, by summoning the same before endorsing the document and registration of the same.

Salvance Jacob for Petitioner.

Chaudhry Muhammad Hussain, Addl. A.-G. for Respondents.

Sadaf Butt, D.D.O.(R), Nishtar Town for Respondent.

Muhammad Aslam Girdawar.

Ghulam Dastagir, Patwari with Record.

YLR 2010 LAHORE HIGH COURT LAHORE 12 #

2010 Y L R 12

[Lahore]

Before Sayed Zahid Hussain, C J

Mst. SUGRA BIBI---Applicant

Versus

MUHAMMAD AKBAR ALI---Respondent

T.A. No.190-C of 2008, decided on 30th June, 2008.

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

----S.5, Sched. & S.25-A---Suit for maintenance, recovery of dowry articles and dissolution of marriage---Transfer of suit---Application for---Applicant's suit was already being tried by the Family Court at place 'J'; whereas suit for restitution of conjugal rights was filed by respondent later on in the court at place `K'---Applicant was not only the resident of place but the marriage also had taken place at that place which assertions of the applicant remained unrebutted---Taking said aspects into consideration, transfer of suit of respondent from Family Court at place "J" where the Family Court was already seized of the suit of the applicant, would serve the ends of justice--Suit for restitution of conjugal rights, was ordered by the Family Court to be transferred to the court at place 'J' where suit filed by the applicant was pending---Both suits would be tried together by the Transferee Court who would proceed expeditiously and decide the matter in accordance with law after notice to respondent.

Mian Naseer Ahmad for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 14 #

2010 Y L R 14

[Lahore]

Before Kazim Ali Malik, J

MUZAFFAR UD DIN KHAN---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No.5114 of 2009, heard on 1st June, 2009.

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

----Ss.14(2)(a) & 146-D---Punjab Pure Food Stuffs (Control) Act (XX of 1958), Ss.17 & 18---West Pakistan Pure Food Rules, 1965, R.10(e)---Criminal Procedure Code (V of 1898), S.516-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Charge of selling fake, substandard and injurious to health cold drinks of different brands---Samples taken by raiding party consisting of Sanitary Patrolling Officers headed by Deputy District Officer (Health) confirmed by Analyst to have contained sediments and non-nutritive artificial sweetener in combination with sugar not fit for human consumption---Recovery of 2646 bottles from store of accused by police after registration of F.I.R. under S.14(2)(a) of Punjab Local Government Act, 2001---Non-sending of such bottles by police for chemical analysis---Application of accused for getting such bottles on superdari not objected to by police---Acceptance of such application by Magistrate without notice to Bottling Agency---Request of Bottling Agency for recalling superdari order rejected by Magistrate and revisional Court---Validity---Nothing was available on record to show as to what was the motive and consideration which persuaded and prompted police to issue no-objection certificate in favour of accused---Magistrate instead of enquiring from police was required to requisition report of Analyst---Magistrate had not even examined F.I.R. finding mention that samples had been sent to Analyst by Health Department--- No-objection certificate issued by police did not provide a basis to Magistrate to pass order of superdari without notice to Bottling Agency by handing over accused such bottles, which had already been found not fit for human consumption by Analyst---Order of superdari being an interlocutory order could be varied by Magistrate or revisional court, if circumstances so warranted---Raiding party was competent to raid store of accused---Jurisdiction vested in revisional court had not been properly exercised---Impugned orders were illegal, void and without lawful authority--High Court set aside impugned orders and dismissed application for superdari while directing police to recover such bottles from accused and deposit same with Muharer Mall Khana under intimation to Sessions Judge concerned.

Muhammad Yousaf v. Muhammad Iqbal and others PLD 1979 Karachi 430 and Abdul Rashid v. Sessions Judge, Jhang and 2 others PLD 1979 Lahore 613 rel.

Shahzada Mazhar for Petitioner.

Hasham Sabir Raja, A.A.-G. and Ch. Abdul Rashid for Respondents.

Shahbaz Mian, A.S.-I.

Date of hearing: 1st June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 22 #

2010 Y L R 22

[Lahore]

Before Ijaz ul Ahsan, J

MUHAMMAD ASHRAF---Petitioner

Versus

NASEER AHMAD and others---Respondents

Civil Revision No.2058-I of 2009, decided on 14th October, 2009.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.8 & 27(b)---Suit for possession---Bona fide purchaser---Claimant under pre-emption---Scope---Plaintiff filed suit for possession through pre-emption along with an application under O.XXXIX, Rr.1, 2, C.P.C. for injunction alleging therein that the defendants who were purchasers of the disputed land were dismantling one of the fish farms and alleged that they had attempted to change the nature of the disputed property to diminish its value---Trial Court dismissed application of the plaintiff---Appellate Court on appeal also dismissed the same---Validity---Plaintiff was at best a claimant of a right of pre-emption and had yet to prove his case--Claimant could not be allowed to hold a bona fide purchaser hostage by reason of his claim and deprive such purchaser of the lawful right to use and enjoy the property purchased by him---Nothing had been placed on record that might indicate that the fish farm constituted a considerable portion of the price of the suit land and its alleged dismantling was intended to and would indeed diminish its value---Both lower courts had found that three ingredients of injunction namely, prima facie case, balance of convenience and irreparable loss tilted in favour of the plaintiff---High Court declined to interfere in revisional jurisdiction.

PLD 1980 Lah. 382 ref.

PLD 2007 Lah 377 and PLD 1980 Lah. 382 rel.

Syed Ijaz Qutab for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 27 #

2010 Y L R 27

[Lahore]

Before Ali Akbar Qureshi, J

GHULAM ABBAS---Petitioner

Versus

ASIA and another---Respondents

Writ Petition No.2837 of 2009, decided on 20th May, 2009.

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

----S. S---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Claim of dowry articles, if not rebutted---Effect---Plaintiff filed suit for recovery of dowry articles which was dismissed by the Trial Court---Appellate Court, on appeal, partly decreed the suit of plaintiff---Defendant conducted lengthy cross-examination upon witnesses of the plaintiff but did not put a single question to rebut the claim of the plaintiff---Appellate Court had carefully perused and examined the evidence led by the parties---Defendant had failed to point out any jurisdictional defect, legal infirmity, misreading or non-reading of evidence with the findings recorded by Appellate Court---High Court declined to interfere in constitutional jurisdiction and plaintiff was directed to file application for withdrawal of the amount deposited by defendant in regard to decretal money.

Muhammad Abrar Khan for Petitioner.

Ata ul Mohsin Lak for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 32 #

2010 Y L R 32

[Lahore]

Before Khalil Ahmed, J

MUHAMMAD SUBTAIN and 6 others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Collector, Sargodha and 8 others---Respondents

Civil Revision No. 2423 of 2006, decided on 28th April, 2009.

Limitation Act (IX of 1908)---

----Art. 122---Specific Relief Act (I of 1877), S.42---Suit for declaration---Period of 12 years for enforcement of any right accruing from a decree---Scope---Where the decree was passed in the year 1963 and the suit was filed on the basis of that decree in 2005, after almost 33 years of passing of the decree, suit was not competent.

1992 SCMR 241 and 1972 SCMR 322 ref.

Ch. Muhammad Ali for Petitioner.

Najum-ul-Hassan Gill, A.A.-G. for Respondent No. l.

Mian Khalid Habib Elahi for other Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 36 #

2010 Y L R 36

[Lahore]

Before Ali Akbar Qureshi, J

ABDUL REHMAN---Petitioner

Versus

Mst. MUSARAT BIBI and 4 others---Respondents

Writ Petition No.3353 of 2009, decided on 21st May, 2009.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of dowry articles and maintenance of minors---Respondent filed suit for recovery of dowry articles to the sum of Rs.200,000 and maintenance of minors @ Rs.2000 per month per head--Trial Court decreed the suit to the value of Rs.150,000 and maintenance of minors @ Rs.1600 per head per month---Petitioner filed appeal against judgment and decree of Trial Court---Appellate Court reduced the maintenance amount of minors from Rs.1600 to Rs.1200 per month per head---Appellate Court excluded few articles of gold ornaments but did not modify decretal amount---Effect---Appellate Court had committed material irregularity by not fixing the amount of dowry articles when excluded gold ornaments---Value of dowry articles was reduced by High Court from Rs.150,000 to Rs.110,000---High Court also declined to interfere with the concurrent findings of the Trial Court and Appellate Court regarding remaining items of dowry articles and maintenance of minors---Constitutional petition was disposed of with modification in decretal amount.

Muhammad Sher Chheena for Petitioner.

Imtiaz Ali Baluch for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 38 #

2010 Y L R 38

[Lahore]

Before Ijaz ul Ahsan, J

NADEEM AJMAL---Petitioner

Versus

MUHAMMAD HASSAN---Respondent

Civil Revision No.1886 of 2009, decided on 26th October, 2009.

Civil Procedure Code (V of 1908)---

----Ss.12(2) & 115---Entertainment of application under S.12(2), C.P.C.---Validity-Valuable rights of parties were involved---No prejudice had been caused to the petitioner in view of the fact that operation of the judgment and decree had been suspended for the time being and matter of proof of fraud was yet to be determined after recording of evidence---Serious questions regarding authenticity of signatures and documents and the circumstances in which suit was decreed raised serious doubts---Matter required recording of evidence to reach a just and logical conclusion---Petition was dismissed.

1999 SCMR 196 rel.

Mirza Hafeezur Rehman for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 42 #

2010 Y L R 42

[Lahore]

Before Muhammad Khalid Alvi, J

LIAQUAT KHAN---Petitioner

Versus

MUHAMMAD IBRAHIM KHAN-Respondent

Civil Revision No.460 of 2005, heard on 26th May, 2009.

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

----Ss. 2(d) & 5---Right of pre-emption--Sale of immovable property---Plaintiff filed suit to challenge impugned sale which had affected his right of pre-emption and claimed to have performed Talb-e-Mawathabat immediately and thereafter Talb-e-Ishhad---Trial Court after recording evidence of the parties dismissed the suit---Appellate Court too dismissed appeal---Validity---Attestation of the impugned mutation was done in presence of wife of the plaintiff which had been mutated along with other mutation of another sale on the same day---Petitioner had come to know about impugned sale on the same day when it was attested, therefore, his claim of having acquired knowledge on another date could not be accepted in peculiar facts and circumstances of the case---High Court declined to interfere with the concurrent findings of the Trial Court and the Appellate Court.

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

----Ss. 2(d) & 5---Civil Procedure Code (V of 1908), S.2(12)---Mesne profits---petitioner's possession in the pre-emption suit had been protected subject to deposit of mesne profits on annual basis---High Court ordered to disburse the mesne profits to vendee if it had been deposited by the pre-emptor otherwise executing Court might assess same and recover from the pre-emptor through process of execution.

Malik Noor Muhammad Awan for Petitioner.

Taqi Ahmed Khan for Respondent.

Date of hearing: 26th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 47 #

2010 Y L R 47

[Lahore]

Before Khalil Ahmad, J

PERVAIZ IQBAL---Petitioner

Versus

RIFFAT BIBI alias RAZIA and 4 others---Respondents

Writ Petition No.947 of 2007, decided on 20th May, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance---Mother of the minors filed suit for maintenance for the minors and herself---Trial Court decreed the suit and allowed maintenance Rs.3,000 per month per head to minors till they attained majority and further maintenance to mother till the wed-lock between the parties existed---Both father and mother of minors filed appeals against judgment and decree of the Trial Court---Appellate Court dismissed appeal of the mother but accepted appeal of the father partly by reducing the maintenance from Rs.3,000 to Rs.2,000 per month per head--Contention of the father was that maintenance fixed by the Appellate Court was on higher side and the Trial Court too had not appreciated the evidence produced by the father and the findings were result of misreading and non-reading of evidence on record---High Court declined to interfere with the appellate order as no illegality or material irregularity had been pointed out in the impugned judgment---Appellate Court had already reduced Rs.1,000 from the maintenance of minors and had dismissed the maintenance of the mother/respondent---Constitutional petition of father was dismissed.

Muhammad Amjad Farooq Bismal for Petitioner.

Muhammad Zaman Malik for Respondents.

2010 Y L R 86

[Lahore]

Before Jamila Jahanoor Aslam, J

SHAMAS RASHEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJARKHAN and others---Respondents

Writ Petition No.851 of 2008, decided on 28th April, 2009.

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance allowance, maternity/medical expenses and dowry articles---Family Court decreed suit, whereby plaintiff/divorced wife was held entitled to maintenance at Rs.800 only for the period of Iddat, whereas minor was held entitled to maintenance at Rs.1200 per month till attainment of age of majority---Plaintiff/divorced wife after deduction of interim maintenance already paid to her was allowed delivery expenses of Rs.20,000 and a further sum of Rs.4500 as treatment expenses of minor---Lady was also held entitled to the recovery of dowry articles as per list attached by her---Defendant filed appeal against judgment of the Family Court, and the plaintiff had also filed appeal against the same judgment---Appellant Court dismissal appeal filed by the defendant, whereas appeal filed by the plaintiff was partly allowed---Appeal of the plaintiff was allowed in terms that maintenance of the minor was increased from Rs.1200 to Rs.3000 per month, till attaining the age of majority and the value of dowry articles was increased from Rs.1,50,000 to Rs.1,52,000--- Enhancement in the maintenance allowance was justified as Rs.3000 per month barely covered the expenses of a school-going child---Those were part of the delivery expenses too and it was the duty of the father of the minor as the provider for the basic necessities of the child---Father had to pay maintenance as decided by the Court---Petition filed by the defendant being without merits, impugned judgments and decrees need not be interfered in the constitutional jurisdiction of the High Court.

Sahibzada Abdul Ghafoor Saqi for Petitioner.

Syed Zafar Ullah Salari for Respondents Nos.3 and 4.

YLR 2010 LAHORE HIGH COURT LAHORE 91 #

2010 Y L R 91

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SARFRAZ and 3 others---Petitioners

Versus

CHAIRMAN, PUNJAB COOPERATIVE BOARD FOR LIQUIDATION and 15 others---Respondents

Petitions Nos.176-C of 2007 and 9-C of 2009, decided on 7th July, 2009.

Punjab Undesirable Cooperative (Dissolution) Act (I of 1993)---

----S.7---Liquidation Board could recall its order, if same was obtained through fraud and misrepresentation---Illustration.

Mian Shahid Iqbal for Petitioners.

Syed M. Kaleem Ahmed Khurshid for Petitioner (in Petition No.9-C of 2009).

Ch. Tariq Latif for Respondent No.2.

Mushtaq Ahmad Mohal for Respondents Nos.6 to 12.

YLR 2010 LAHORE HIGH COURT LAHORE 101 #

2010 Y L R 101

[Lahore]

Before Pervaiz Inayat Malik, J

DILDAR AHMAD---Petitioner

Versus

PROVINCE OF PUNJAB---Respondent

Civil Revision Nos.338 and 339-D of 2000, heard on 7th May, 2009.

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

----S. 163(2)(b)--- Allotment under temporary cultivation scheme'---Petitioners were allotted land under temporary cultivation scheme during the year 1962 on lease which was not subsequently extended to then---Petitioners recoursed to Revenue Department for remedy which declined to interfere with the order---Petitioners approached the Trial Court and their suit was dismissed---Appellate Court too dismissed appeals on the subject-matter---Contention of the petitioners in revision was that no extension of lease was required because the Government, in categorical terms in a notification had held that extension in lease rights was applicable to six years prior to year 1993 and it stood automatically expired and that since the lease rights were given to the petitioners not treating him/them as temporary, therefore, requirement of extension after five years was not correct--Validity---Record revealed that land in question was allotted to the petitioners for tube-well sinking schemes which under the law could not be allotted to the petitioners under temporary cultivation scheme whereunder extension of time lease was required---Impugned orders by Trial Court and the Appellate Court were well-reasoned and in accordance with law---High Court upheld concurrent findings of the courts below.

(b) Administration of justice---

----Policy making---Interference--Scope---Policy making is within the exclusive domain of the executive which, in normal course, cannot be interfered by courts unless the same is in conflict either with some provisions of law of the land or against the provisions of Constitution.

Sardar Riaz Kareem for Petitioner.

Mubashar Latif Gill, Asstt. A.-G. for Respondent No.1.

Muhammad Ramzan Khalid Joyia for Respondent No.2.

Date of hearing: 7th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 109 #

2010 Y L R 109

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD SAFDAR---Petitioner

Versus

RENT TRIBUNAL AHMEDPUR EAST and another---Respondents

Writ Petition No.1395 of 2008, decided on 13th May, 2009.

Punjab Rented Premises Ordinance (XXI of 2007)---

----S.22(2)(6)---Constitution of Pakistan (1973), Art.199---Application for leave to contest application of ejectment---Limitation---On filing ejectment application by the landlord against the tenant, tenant filed application seeking permission for leave to contest along with application for condonation of delay and extension of time as said application was filed by the tenant after expiry of prescribed period of 10 days---Landlord also filed application under S.22(6) of Punjab Rented Premises Ordinance, 2007 for passing final order as tenant did not apply for leave to contest within 10 days from his first appearance before. the Rent Controller---Ejectment application by the landlord was rejected, whereas application of the tenant for leave to contest and application for condonation of delay was accepted--- Validity--- Held, it was obligatory for the tenant under S.22(2) of Punjab Rented Premises Ordinance, 2007 to file application for leave to contest within 10 days of his first appearance before the Rent Controller---Penalty had been provided in S.22(6) of Punjab Rented Premises Ordinance, 2007, whereunder if the leave to contest was refused or the tenant had failed to file application for leave to contest within the stipulated time, Rent Controller would pass final order---In the present case as the tenant did not file application for leave to contest within 10 days, there was no justification with the Rent Controller to 'accept the application of the tenant for leave to contest which was not within the time and passing the final order on ejectment application of the petitioner was mandatory---Rent Controller having not exercised the jurisdiction vested in it, order passed by the Rent Controller was declared illegal and without lawful authority---Rent Controller was directed to pass the final order on the ejectment application by the landlord.

Mian Muhammad Bashir for Petitioner.

Liaqat Ali Malik for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 114 #

2010 Y L R 114

[Lahore]

Before Pervaiz Inayat Malik, J

QAMAR-UD-DIN---Appellant

Versus

ABDUL LATIF and others---Respondents

S.A.O. No.18 of 2008, decided on 13th April, 2009.

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

----Ss.8 & 14---Qanun-e-Shahadat (10 of 1984), Art.33--- `Referee'---Referee was a person who was invited to the aid of the parties to a suit and his personal opinion was sought for resolving the controversy and his appointment was always with the consent of the parties; and he must not hold any inquiries nor was supposed to collect evidence; and the judgment and decree in that particular suit had to be based upon his personal opinion, which would amount to admission by the parties to the suit and the same had binding effect.

Kashmira v. Mst. Makho NLR 1992 Civil 318; Sher Zaman v. Noor Zaman and others PLD 1977 Lah. 672; Ali Hussain v. Rafique-ud-Din and others PLD 1977 Lah. 418 and Ghulam Fareed Khan v. Muhammad Hanif Khan 1990 SCMR 763 ref.

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

----S.2(i)---Tenant---Copartner in a joint business, being run on the rented premises was a tenant, notwithstanding that agreement of tenancy was in the name of any one of them; and ejectment petition filed by landlord against co-partners on the strength of such agreement would be competent.

----S.2(i)---Tenant---If a tenant would claim possession of the rented premises on the strength of agreement to sell etc., he had to first vacate the premises and hand over its possession to the landlord and thereafter could bring a suit on the strength of his agreement of sale-deed etc. in the competent court of law.

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

----S.15(6)---Second appeal before High Court---Impugned order filed by the Rent Controller and Appellate Authority, not only were concurrent in nature, but were well reasoned and perfectly in accordance with law---Same were upheld and appeal against said concurrent orders was dismissed.

Mian Habib-ur-Rehman Ansari for Appellants.

Muhammad Javaid Khan Ansari for Respondent.

Date of hearing: 13th April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 121 #

2010 Y L R 121

[Lahore]

Before Saghir Ahmad and Muhammad Ashraf Bhatti, JJ

MUHAMMAD RIAZ and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal Nos. 51 of 2004 and Murder Reference No. 13 of 2004, heard on 18th November, 2008.

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

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---F.I.R. in the case was lodged with all promptness---Contents of F.I.R. were fully supported by the complainant while appearing in the court as prosecution witness---Statement of the complainant was further corroborated by statement of a prosecution witness who fully toed the line of the complainant; and the statements of said two witnesses were corroborating each other on almost all important aspects of the case---Both witnesses were subjected to lengthy cross-examination, but nothing fatal to the prosecution could be brought out from their statements---Substantial contradiction was found in the statements of those two witnesses with regard to seat of injury on the body of deceased---Except said contradiction, no other inconsistency was found in the statements of the said two eye-witnesses---Medical evidence was nearer to the statement of prosecution witness which had lent credible support to the ocular part of the prosecution story coming from the mouth of prosecution witness---Prosecution, however, had not been able to prove the recovery of churri through statement of prosecution witness--Even otherwise, churri being an ordinary household article, without any specific identification mark, could easily be planted upon any person---Prosecution case, to the extent of accused, so far as it related to ocular account and motive, stood sufficiently proved which was also supported by the medical evidence--Conviction of accused under S.302(6), P.P.C. being unexceptionable, was upheld and maintained---Statement of prosecution witness with regard to recovery of churri was not confidence-inspiring and according to the prosecution witness only one churri blow was inflicted by accused on chest of deceased---Death sentence awarded to accused, was converted to that of life imprisonment.

Muhammad Arshad and others's case PLD 1996 SC 122 ref.

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

----S. 302(b)---Appreciation of evidence---Motive---Motive alone could not be made basis for recording conviction, as it being a double edged weapon could be a reason for accused to commit the crime and also it could be a motivating circumstance for the complainant to falsely rope in some innocent persons.

----S. 302(b)---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Appeal to the extent of one co-accused had already stood dismissed---Other co-accused too was declared innocent during investigation and was only summoned by the Trial Court on an application of investigation, but neither he was ever arrested by the Police nor any sort of recovery was effected from him---Complainant during course of investigation had also sworn an affidavit in favour of said co-accused, though in the court he denied to have executed any such affidavit, but his signature on the' said affidavit were admitted by him and its execution was also witnessed by the witnesses---Such fact of affidavit also found mentioned in the Rapt---Trial Court, in circumstances, had recorded solid reasons while recording acquittal in favour of said co-accused--Findings of acquittal of said co-accused could not be interfered with merely for the reason that re-analysis of the same evidence could lead to another inference---Even otherwise, after acquittal respondent/co-accused had earned a double presumption of innocence in his favour---Appeal against acquittal was dismissed, in circumstances.

Sardar Ahmad Khan and Hafiz Shahid Nadeem Kahloon for Appellants.

Muhammad Akhtar Chishti for the Complainant.

Aftab Ahmad Goraya, Addl. P.-G. for the State.

Date of hearing: 18th November, 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 129 #

2010 Y L R 129

[Lahore]

Before S. Ali Hassan Rizvi, J

Mst. FARZANA YOUNIS---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 2 others---Respondents

Writ Petition No.18009 of 2008, 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 recovery of dowry articles or its price---Plaintiff claimed amount of dowry articles Rs.5,67,041, but Family Court vide its judgment and decree granted Rs.3,72,150 for the same--Appellate Court reduced amount of dowry articles from Rs.3,72,150 to Rs.3,00,000---Witnesses produced by the plaintiff in proof of her claim, having not been cross-examined, their statements must be held to have emerged unscathed---Appellate Court did not give any sound reason for reducing the decretal amount to Rs.3,00,000---Appellate Court was bound to meet the reasons recorded by the Trial Court---View taken by the Appellate Court was without lawful authority being was not based on any evidence or sound reasons, but was the result of misreading of the material evidence-Judgment/decree passed by the Appellate Court was set aside and that of the Family Court was restored.

Madan Copal and others v. Maran Bepari and others PLD 1969 SC 617 and Mir Haji Khan and others v. Mir Aijaz Ali and others PLD 1981 SC 302 ref.

Riasat Ali for Petitioner.

Hafiz Khalil Ahmad for Respondent No.3.

YLR 2010 LAHORE HIGH COURT LAHORE 131 #

2010 Y L R 131(2)

[Lahore]

Before Habib Ullah Shakir, J

ABDUL MAJEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.186-B of 2009, decided on 25th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-i-Amd---Bail, grant of---Further inquiry---Accused was in jail since 2-7-2008 and was no more required for investigation purposes---Injuries attributed to accused were not on the vital part of the body of the deceased---Alleged weapon of offence had not been recovered from accused---Fact that deceased made a statement immediately before his death before ASI, though not found mentioned in the case diaries, but said statement was available on the Police file---Deceased had not named the accused as accused in the said statement---Accused was also found innocent by the Police during investigation and discharged report was prepared, however, same was not agreed upon by the Magistrate and Police placed him in column No.2 of the report under S.173, Cr.P.C.---Said facts had made the case of accused one of `further inquiry'---Accused was allowed bail, in circumstances.

Syed Asim Ali Bukhari for Petitioner.

Ch. Muhammad Ashraf Mohandra, D.P.-G. for the State.

Talat Mahmood Kakezai for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 139 #

2010 Y L R 139

[Lahore]

Before Khurshid Anwar Bhinder, J

NOOR JAHAN---Petitioner

Versus

JUDGE ANTI-TERRORISM COURT BAHAWALPUR and 8 others---Respondents

Writ Petition No.1350 of 2007/BWP, decided on 30th January, 2008.

Penal Code (XLV of 1860)---

----Ss. 380/447/148/149---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23---Criminal Procedure Code (V of 1898), Ss.156 & 159---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner lodged F.I.R. for offences under Ss. 380/447/148/149, P.P.C. read with Ss. 6 & 7 of Anti-Terrorism Act, 1997---During investigation eight accused persons were arrested and when their remand papers were presented before the Judge Anti-Terrorism Court, he directed the deletion of Ss.6 & 7 of Anti-Terrorism Act, 1997---Anti-Terrorism Court had given findings of non-commission of terrorism after recording the statements of the witnesses, which would bring out that no element of terrorism or panic was created by accused---Words used in S.23 of Anti-Terrorism Act, 1997, were very much clear on the point that court could pass order after taking cognizance of an offence at the relevant time---Court, at the time of passing of impugned order, had not taken cognizance of the offence and no sufficient material was available on record to delete the offence---Impugned order, in circumstances was premature which was set aside with direction to decide the matter after taking cognizance of the offence with application of judicial mind after recording some evidence.

Ms. Kausar Bhatti for Petitioner.

Nazeer Ahmad Chaudhry for Respondents Nos.2 to 9.

YLR 2010 LAHORE HIGH COURT LAHORE 143 #

2010 Y L R 143

[Lahore]

Before Khalil Ahmad, J

MUHAMMAD RAFIQ---Petitioner

Versus

ABDUL AZIZ---Respondent

Civil Revision No.1372-D of 1996, decided on 28th May, 2009.

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

----Ss.6 & 15---Land Reforms Act (II of 1977), Preamble---Limitation Act (IX of 1908), Art.10---Pre-emption suit---Limitation---Right of pre-emption claimed on basis of tenancy and "Yakjaddi "---Mutation of sale dated 29-5-1974---Filing of suit on 12-2-1974 before Civil Court---Filing of suit before Collector after promulgation of Land Reforms Act, 1976 on ground of tenancy having superior right of pre-emption---Return of plaint by Collector on 16-4-1980 for its filing before Civil Court after withdrawal of ground of tenancy by plaintiff---Defendant's plea that suit before Civil Court was timebarred---Validity---Plaintiff had filed suit before Civil Court within prescribed period of limitation of one year---Plaintiff had presented plaint before Civil Court on 16-4-1980, when same was returned to him---After withdrawal of ground of tenancy, Collector lacked jurisdiction to decide suit and only Civil Court had jurisdiction to decide same---Defendant's objection was repelled in circumstances.

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

----S.20---Waiver of right of preemption---Proof---Waiver could not be inferred, but had to be proved through cogent and independent evidence---Mere knowledge of sale or presence of pre-emptor at time of sale would not amount to waiver---Mere fact that pre-emptor was son of vendor would not be sufficient to prove that he was in collusion with him while filing suit or he pre-empted sale for benefit of a person other than himself---Where evidence showed that sale-deed could not be presented for registration on same day as same was intercepted by pre-emptor (son of vendor), then such fact would be sufficient to prove that pre-emptor had not waived his right of pre-emption.

Malik Amjad Pervaiz for Petitioner.

Shoaib Zafar for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 144 #

2010 Y L R 144

[Lahore]

Before Abdul Sattar Goraya, J

MUHAMMAD YASIN---Petitioner

Versus

MUHAMMAD KHALID FAROOQ and another---Respondents

Writ Petition No.11971 of 2007, heard on 1st July, 2009.

(a) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Lambardar, appointment of---Review application before Board of Revenue---Limitation---Exclusion of time---Petitioner's application for appointment of Lambardar was dismissed by District Collector---Appeal against the order was accepted by Executive District Officer (Revenue)---One of the contestants filed a revision petition before the Board of Revenue (BOR) against dismissal of his appeal before E. D. O. (R)---Respondent filed review petition before E.D.O.(R) which was disposed of with the observation that interference was not possible because the other contesting candidate had gone in revision before Board of Revenue---Revision petition filed before the Board of Revenue was dismissed---Respondent brought review petition before Board of Revenue which was hopelessly barred by time---Review application accompanied by a certified copy of order sought to be reviewed, the period spent in obtaining the copies of the said order shall be excluded and if the review petition was filed without certified copy and the order became available thereafter, the period spent in getting the copy shall not be excluded and considered to the benefit of the review petitioner---Review petition should be filed within 90 days from the order and the delay in filing such application could not be condoned by applying S.5 of the Limitation Act, 1908---Member, Board of Revenue could not embark upon to discuss the merits and demerits of the case until he crossed the hurdle of limitation---Constitutional petition was allowed by the High Court.

Ahmad Din v. Mst. Syran Bi and others 1980 SCMR 959; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. The Government of Pakistan and others PLD 1984 Supreme Court 67 rel.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Review before Board of Revenue---Scope---Power conferred upon the Member, Board of Revenue under S.8 of the West Pakistan Board of Revenue Act, 1957 did not empower the successor Member to rehear the matter on merit because he was not sitting in appeal or in a visitorial jurisdiction to correct the error in the order passed by the successor Member---Power could be exercised only where there was a mistake or error of law or fact apparent on the face of record and to find out error---One had not to scrutinize the record or evidence but it should be self-evident from perusal of the record itself and it could be pointed out without elaborate examination---Insignificant error would also not furnish justification in the law to interfere in the matter---Review was completely different from appeal or revision---While sitting in. revision, not only the order passed by the courts below but also the proceedings could be checked but this power was not available with the court in its review jurisdiction until the error was found in the nature which was floating on the surface of the record---Constitutional petition was allowed by High Court.

Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 and Mst. Shah Begum through Legal Heirs and others v. Province of Sindh through Deputy Commissioner, Sukkur and others PLD 2002 SC 696 ref.

Muhammad Sharif v. Abdur Rashid Khan, Member Board of Revenue (Colony), Punjab, Lahore and 5 others 2004 CLC 1520; Muhammad Shafi v. The Member (Cons.), Board of Revenue and 2 others 1995 CLC 966; Anjuman-e-Falah-e-Abadkaran v. Chief Administrator Auqaf, Government of Sindh and 2 others 1987 CLC 1385; Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75; Noor Muhammad v. Member (Revenue) Board of Revenue, Punjab, Lahore and 5 others 1988 CLC 154; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Haji Noorwarjan v. Senior Member Board of Revenue, N-W.F.P. Peshawar and 4 others PLD 1991 SC 531 rel.

Muhammad Shahid Piracha and Sadaqat Mahmood Butt for Petitioner.

Amjad Ali Chattha, Asstt. A.-G. and Ch. Muhammad Ahmad Bani for Respondents.

Dated of hearing: 1st July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 150 #

2010 Y L R 150

[Lahore]

Before Fazal-e-Miran Chauhan, J

DEFENCE HOUSING AUTHORITY, LAHORE through Secretary---Petitioner

Versus

Lt.-Col. (Retd.) RIAZ AKHTAR and 7 others---Respondents

Civil Revision No. 2184 of 2007, decided on 10th July, 2009.

Civil Procedure Code (V of 1908)---

----O. VI, R,17---Suit for possession and mesne profits---Case fixed for arguments after recording evidence of parties---Application for amendment of plaint to substitute defendant Lahore Cantt. Co-operative Housing Society by Defence Housing Authority through its Secretary after promulgation of Defence Housing Authority (Lahore), Act, 1999 and to add some Khasra Numbers omitted due to typographical mistake---Plea of defendants that such application was filed at a belated stage---Validity---Proposed amendment would not change nature of suit or its cause of action---Addition of few Khasra Numbers would only increase volume of suit-land owned by defendants---Suit filed for possession and mesne profits would remain same after allowing proposed amendment---Question of limitation In such case would not be of any substance--Such application was accepted in circumstances.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 fol.

Tariq Masood for Petitioner.

Jahangir A. Jhojha for Respondents.

Date of hearing: 24th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 161 #

2010 Y L R 161

[Lahore]

Before Maulvi Anwarul Haq, J

BASHIR AHMED and another---Petitioners

Versus

MUHAMMAD ZAMAN and another---Respondents

Civil Revision Nos.1837, 1838, 1839 and 1840 of 2004, heard on 9th June, 2009.

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

----S.13--- Talb-I-Muwathibat, performance of---Sale through mutation dated 28-6-1997---Pre-emption suit filed on 10-9-1997---Plea of pre-emptor that on 9-7-1997, while passing through a street of village, he met "M", who informed him about suit sale, where he made jumping demand in presence of "U" and "A"---Proof---Pre-emptor in his evidence stated that at such time, "A" and "S" were present; that "A" being tenant of vendor had attorned to vendees; and that right from day of sale, "A" was attorning to vendees--- "M" in cross-examination admitted that vendees were in possession of land since time of its sale; and that entire village was aware of sale---"A" in examination-in-chief stated that upon receiving information from "M", only one pre-emptor had made jumping demand, while during cross-examination, he stated that right from the day of sale, the vendees were in possession of land and that entire village was aware of suit sale---Suit was dismissed in circumstances.

Mian Zulfiqar Ali for Petitioners.

Ahmad Waheed Khan for Respondents.

Date of hearing: 9th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 164 #

2010 Y L R 164

[Lahore]

Before Ali Akbar Qureshi, J

Chaudhary SARDAR MUHAMMAD KHAN through Legal Heirs---Petitioners

Versus

MUHAMMAD JAFAR KHAN and 3 others---Respondents

Civil Revision No.23 of 2007, heard on 15th May, 2009.

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

----Ss.14 &17---Limitation Act (IX of 1908), Arts. 178 & 181---Application for making award rule of court---Limitation---Announcement of award by Arbitrator on 13-8-1995 in presence of both parties, who put their signatures on award--- Filing of such application on 25-1-2000--Validity---Article 178 of Limitation Act, 1908 would apply where notice of making award was given to parties by Arbitrator---Limitation under Art. 178 of Limitation Act, 1908 would start from date of service of such notice on parties--Where notice to parties was not given by Arbitrator under S.14 (1) of Arbitration Act, 1908, then provision of Art. 181 of Limitation Act, 1908 would apply to such application---Parties in the present case already knew about announcement of award, thus, such application could be made within three years as provided under Art. 181 of Limitation Act, 1908---Such application filed on 25-1-2000 for being time-barred was dismissed in circumstances.

Chotirmal Khushaldas v. Laloomal Nariomal AIR 1935 Sind 136; Sagar Mal and another v. Parsotam Das and another AIR 1942 Allahabad 36; The Pakistan Employees Co-operative Housing Society Ltd; Karachi v. Mst. Anbwar Sultana and others PLD 1969 Karachi 474; Mst. Bakhan and 11 others v. Mst. Sadan and another 2007 MLD 576; Bibi Najam and others v. Abdul Rehman 1998 SCMR 1304; Kh. Muhammad Yousuf v. Kh. Abdur Rashid and others PLD 1967 Karachi 508; Seonerain Lal v. Prabhu Chand AIR 1958 252; Noor Nabuwwat v. Moulvi Muhammad Noor Ali Khan 1999 CLC 1685; Messrs Jame's Construction Company Pvt. Limited, Lahore through Executive Director and others v. Province of the Punjab through Secretary to the Government of the Punjab Communication and Works Department, Punjab, Lahore and others 2000 SCMR 1010; Nazir Ahmad and others v. Haji Nazir Ali and 3 others 2006 MLD 907; Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816; Lachman Dass v. Ram Lal and others 1990 PSC 809; Haji Nawab Din v. Sh. Ghulam Haider and another 1988 SCMR 1623; U Kelatha v. U Pannawa AIR 1940 Rangoon 228; Sanjeevamina v. Yarram Purnamma and others AIR 1984 Andhra Pradesh 28; Aditya Kiumar De Choudhury v. Narayandas De Chowdhury AIR 1971 Cal. 65, Sosa Bai v. Murai Lal AIR 1954 Hyderabad 109; M. Venkataratnam and another v. M. Chelamayya and another AIR 1967 Andhra Prdesh 257; Arman Prasad v. Ram Dularey Gupta AIR (39) 1952 Vindhya Pradesh 25; Chimmanlal Girdhar Ghanchi and others v. Dahyabhai Nathubhai Ghanchi and others AIR 1938 Bombay 422; Uttamchand Motilalji v. Wasudeo Deorao Digambar AIR 33 Nagpur 311; U Kelatha v. U Pannawa Rangoon High Court 683; Akbar Ali deceased by LR and others v. Mumtaz Hussain another AIR 1987 Bomabay 39 ref.

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

----S.15---Concurrent findings of fact based on evidence---Validity---High Court in exercise of jurisdiction under S.115, C.P.C., would not interfere with such findings.

Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Amwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Rana Abdul Rasheed v. Iqbal Hussain 2008 CLC-1; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 rel.

Muhammad Shahzad Shaukat for Petitioners.

Syed Abid Mumtaz Tirmzi for Respondents.

Date of hearing: 15th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 171 #

2010 Y L R 171

[Lahore]

Before Abdul Sattar Goraya, J

Mst. MOTI BEGUM and 4 others---Petitioners

Versus

MUHAMMAD ASGHAR and 2 others---Respondents

Civil Revision No.1687 of 2005, heard on 19th May, 2009.

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

----Arts.142 & 144---West Pakistan Land Revenue Act (XVII of 1967), S.42---Petitioners were alleged to have secured proprietary rights of the disputed land fraudulently in collusion with officers of the Revenue Department---Respondent being refugee from Jammu and Kashmir had been allotted land temporarily in the year 1956 and later he joined the Army---Petitioners took undue benefit of respondent's absence and got mutation sanctioned in their favour in the year 1984 and further alienated the disputed land to other vendees---Petitioner's suit was dismissed by the Trial Court, whereafter appeal preferred against said judgment was also dismissed by the Appellate Court---Contention of the petitioners was that the suit was time-barred as the suit for possession should have been filed within 12 years but the suit brought by the respondent was belated---Respondent stated that he came to know of the removal of his name from the proposal of allotment in the year 1998 when he approached the General Headquarters and thereafter he filed suit without wasting further time--Held, limitation where fraud was alleged, would run from the date of knowledge and not from the date when the fraud was committed and entries were got changed---Suit was within time.

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

----S. 43---Civil Procedure Code (V of 1908), O.XLI, R.33---Bona fide vendee--Respondent, who purchased disputed land subject to alleged fraud argued that he was bona fide vendee and his rights were protected under S.43 of the Transfer of Property Act, 1882 and the error cropped up night be corrected by High Court under O. XLI, R.33, C.P.C. and he being bona fide purchaser for value without notice of any previous transaction purchased the land from the recorded owner---Matter was under encumbrances of the prohibitory order in civil court and respondent purchased a portion of disputed land during the pendency of lis---Held, respondent, who had been hit by original owner due to alleged fraud should file a suit not only for return of the paid amount but also other expenses and compensation except the respondent in whose favour concurrent findings of fact had been recorded---Both Trial Court and the Appellate Court had scanned the matter with microscopic vision and had rightly come to conclusion that respondent had been subjected to fraud---No misreading and non-reading had been pointed out---High Court dismissed revision having no merits.

Mian Sarfraz-ul-Hassan for Petitioners.

Ch. Muhammad Masood Akhtar Khan for Respondents Nos. 1 and 3.

M. Asghar respondent in person.

Date of hearing: 19th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 175 #

2010 Y L R 175

[Lahore]

Before Ijaz ul Ahsan, J

KHUSHI MUHAMMAD and others---Petitioners

Versus

BASHIR AHMAD and others---Respondents

Civil Revision No.1928 of 2009, decided on 6th October, 2009.

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

----S.42---Specific Relief Act (I of 1877), S.42---Mutation---Non attestation and verification of---Effect---Plaintiffs filed suit for declaration along with permanent injunction in respect of the disputed land claiming therein that defendants being tenants in possession of the disputed property were not owners of the same and alleged mutation for alienation of disputed property was a result of fraud and collusion with Halqa Patwari as the same was neither attested nor verified in accordance with law---Defendants contested as well as filed another suit in respect of the same disputed property on the ground that they ,had purchased the said disputed property for a consideration of Rs.30,000 in the year 1981 and the alleged mutation was entered with free consent of the plaintiffs---Trial Court decreed suit of the plaintiffs and dismissed suit of the defendants--Appellate Court on appeal upheld the decision of the Trial Court---Validity---Mutation was incomplete, unattested, without verification and even lacked signatures and thumb-impressions of the vendor/vendee which was necessary to lend any authenticity to a document of such nature---Document was required to be verified and attested by the Revenue authorities after completing various procedural formalities---Other than alleged mutation there was no credible and reliable evidence available on record that might even remotely support the case of the defendants or had shown that the disputed property was sold/transferred by the plaintiffs in favour of the defendants---High Court declined to interfere in concurrent findings of both courts below.

Ch. Muhammad Yasin Zahid for Petitioners.

YLR 2010 LAHORE HIGH COURT LAHORE 179 #

2010 Y L R 179

[Lahore]

Before Fazal-e-Miran Chauhan, J

ISRAR AHMAD KHAN ---Petitioner

Versus

SECRETARY LOCAL GOVERNMENT and 4 others---Respondents

Writ Petitions Nos.5939 and 4572 of 2008, decided on 17th June, 2009.

West Pakistan Motor Vehicles Rules, 1969---

----Rr. 253(5) & 256(d)---Punjab Bus Stands and Traffic Control (Lahore) Ordinance (XIX of 1963), Ss.6 & 8---Punjab Local Government Ordinance (XIII of 2001), Ss.3, 116, 137 & Second Sched.---Vehicles parked outside General Bus Stand---Charging of Parking/Adda fee or tax---Scope---Such fee could be charged from vehicle having originated journey from or terminated journey at Bus Stand and enjoyed services provided there, but not from every vehicle entering Municipal limits or plying on road---No such fee could be charged from vehicles not using Bus Stand or its facilities or services--Regional Transport Authority (RTA) had exclusive jurisdiction to grant permission to establish General Bus Stand---Regional Transport Authority had powers to fix fee payable by vehicles for using facility on Bus Stand---Levy of parking/Adda fee without blessings of the Authority would be illegal---District Coordination Officer or Nazim of City Government had no authority under law to impose such fee on vehicles not enjoying/utilizing services of Bus Stand--Imposition or collection of such fee or tax from vehicles outside Bus Stand at Check Points fixed by City District Government, vide notification would be without lawful authority--Principles.

Petitioner in person.

Chaudhary Muhammad Hussain, Addl. A.-G. and M. Naeem Akhtar for Respondents Nos. 1, 2 and 4.

Shahid Azeem, Legal Advisor for Respondents Nos.3 and 5.

YLR 2010 LAHORE HIGH COURT LAHORE 187 #

2010 Y L R 187

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD ARIF---Petitioner

Versus

SULTAN MAHMOOD and 2 others---Respondents

Writ Petition No. 4461 of 2009, decided on 2nd July, 2009.

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

----S. 13---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Landlord and tenant---Payment of rent--Non-framing of issue---Effect---Plaintiff filed ejectment petition against the defendant in respect of disputed premises--Rent Controller accepted the ejectment petition directing ejectment of the defendant and ficrther ordered that the rent be paid from January, 2003 till the vacant possession handed over to the plaintiff---Defendant filed an appeal which failed to find favour and was dismissed---Defendant asserted that no issue qua default in payment of rent was framed, hence in the facts and circumstances of the case, no order for payment of rent could be passed along with the ejectment order---Validity---No issue regarding default in payment of rent was framed or could have been framed, as relationship of landlord and tenant was denied---Parties were not put to notice that evidence qua the rate of rent and non-payment thereof was to be adjudicated upon by the Rent Controller---Constitutional petition was accepted by the High Court and the impugned orders to the extent of liability to pay rent was set aside---Plaintiff was ordered to seek the remedy, if any, under the law.

Zafar Abbas v. The State 2001 MLD 852 ref.

Zafar Abbas v. The State 2001 MLD 852 rel.

Muhammad Sharif Chohan for Petitioner.

Sajid Latif Hanjra for Respondent No. 1.

YLR 2010 LAHORE HIGH COURT LAHORE 191 #

2010 Y L R 191

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. BUSHRA and another---Petitioners

Versus

Mst. SHAHNAZ BIBI and another---Respondents

Civil Revision No.457 of 2007, heard on 16th June, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Plaintiffs being legal heirs of the deceased filed suit for recovery of their shares in the compensation awarded to the widow of the deceased---Trial Court dismissed suit of the plaintiffs---Appeal filed by the plaintiffs was allowed by Appellate Court---Defendants asserted that the plaintiffs were not legal heirs of the deceased and that the amount received by the defendants was paid to the creditors of the deceased and nothing was left for its distribution to legal heirs--- Defendants had denied relationship of the plaintiffs with the deceased which showed their mala fide and intention to usurp the compensation amount---Written statement did not contain pleadings as to who were the creditors of the deceased---General mention of `creditors' was not sufficient so as to leave it open for producing witnesses of defendants' own choice---Appellate Court had thoroughly examined the entire evidence on record---High Court declined interference in judgment of Appellate Court.

Parvez I. Mir for Petitioners.

Syed Zeeshan Aslam Bokhari, Raley Ahmed Khan, A.A.-G. and Mujahid Hussain Shah, Naib Tehsildar for Respondents.

Date of hearing: 16th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 193 #

2010 Y L R 193

[Lahore]

Before Mian Saqib Nisar, J

ASBA and another---Petitioners

Versus

DILDAR ALI and others---Respondents

Civil Revision No.2779 of 2000, heard on 7th July, 2009.

Civil Procedure Code (V of 1908)---

----O. XXIII, R.3---Specific Relief Act (I of 1877), S.42--- Suit for declaration---Consent decree---Effect---Predecessor-in-interest of the parties was owner of the disputed land---Some legal heirs of predecessor-in-interest of the parties filed suit for declaration against predecessor-in-interest of the parties on the basis of gift---Trial Court passed consent decree in favour of the plaintiffs and when plaintiffs intended to enforce their right on the basis of such decree they were resisted by rest of the legal heirs, thus, constraining them to file suit which was allowed in the year 1995---Defendants' appeal had failed in the year 2000---Defendants asserted that no valid gift had been made by the predecessor-in-interest of the parties in favour of the plaintiffs and the decree passed was nullity in the eyes of law--Predecessor-in-interest of the parties did not challenge the consent decree on the pretext of being violative of the Land Reforms Law, because he himself was a party to the decree and it was not permissible for him to turn around and assert that neither the gift was made nor the consent was given---If the predecessor-in-interest of the parties was estopped on that account, his legal heirs were also estopped, because they were deriving the title through him--Consent decree, in circumstances, might only be ineffective as far as land reforms were concerned but not for the validity of the gift---Revision petition was dismissed by High Court.

Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 rel.

Sh. Abdul Aziz for Petitioners.

Ashtar Ausaf Ali and Mian Muhammad Aslam Arain for Respondents.

Date of hearing: 7th July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 196 #

2010 Y L R 196

[Lahore]

Before Kazim Ali Malik, J

ALIYA FARHAN RABBANI and another ---Petitioners

Versus

Mirza FARHAN RABBANI and another---Respondents

Writ Petition No.14113 of 2008, heard on 1st July, 2009.

Guardians and Wards Act (VIII of 1890)---

----Ss. 9 & 25---Civil Procedure Code (V of 1908), S.151 & O. VII, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Guardianship petition--- Territorial jurisdiction of court---Scope---Plaintiff filed an application for the custody of minor---Defendant in reply filed an application under O. VII, R.10 read with S.151, C.P.C. by challenging the territorial jurisdiction of the Guardian Court at "L "---Guardian Judge accepted application of the defendant and returned the petition for its presentation before the competent forum---Plaintiff filed appeal which was allowed and the case was remanded to the Guardian Judge with direction to decide the issue of territorial jurisdiction along with other issues after recording evidence---Contention of the plaintiff was that since desertion the defendant had not been residing permanently at any place, therefore, the last place of her residence i.e. "L" would be deemed as ordinary residence of the minor---Validity---Stance of the plaintiff was against the record---Plaintiff had admitted in his suit for restitution of conjugal rights and in the constitutional petition that since 19-12-2007, defendant had been residing at "R "---Plaintiff could not take any stance over and above the pleadings---Appellate Court had erred in law while remanding the case with a direction to the defendant to prove the admitted fact with evidence---Impugned remanding order was illegal and without lawful authority---High Court accepted constitutional petition with observation that only the Guardian Judge at "R" possessed territorial jurisdiction in terms of S.9 of Guardians and Wards Act, 1890 to decide matter of custody of the minor.

Jahangir A. Jhoja for Petitioners.

Ali Hussain Mohsin for Respondents.

Date of hearing: 1st July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 203 #

2010 Y L R 203

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD SHARIF---Petitioner

Versus

MUKHTARAN BIBI and 2 others---Respondents

Writ Petition No.24291 of 2000, heard on 17th June, 2009.

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

----S. 13---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Landlord and tenant, relationship of---Determination---Admission of documents--Scope---Plaintiff filed an ejectment petition against the defendant in respect of the residential premises---Ejectment petition was dismissed by the Rent Controller---Appellate Court also dismissed the appeal--Defendant contended that residential place was constructed on the State land by herself and that she had never atoned herself as a tenant under the plaintiff---Validity---Record and the documents of the Excise and Taxation Department might not be conclusive evidence to establish the relationship of the landlord and tenant but at the same time, they were not totally irrelevant at least for the indication of the ownership and payment of the property tax---PT-1 Form clearly showed the name of the plaintiff as the owner of the property---Documents available on record clearly discarded the claim of the defendant as owner of the property---Defendant herself admitted her tenancy when she appeared as a witness in the court of Illaqa Magistrate and that document was a part of the judicial record and its certified copy was per se admissible in evidence---Findings of the Rent Controller as well as Appellate Court were factually and legally infirm and result of misreading and non-reading of the evidence and suffered from substantial legal error on account of which same could not be maintained---High Court allowed constitutional petition and set aside the judgment and decree of the Rent Controller and the Appellate Court with direction to defendant to hand over the vacant possession of the disputed premises to the plaintiff within two months from the date of the order---High Court further held that defendant was a tenant under the plaintiff but since she had denied the tenancy under him, there could be no question of payment of rent, as default was inbuilt in denial of tenancy---Constitutional petition was allowed accordingly.

Muhammad Ashraf Shagufta for Petitioner.

Syed Almas Haider Kazmi for Respondent No.1.

Date of hearing: 17th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 206 #

2010 Y L R 206

[Lahore]

Before Nasim Sikandar, J

Messrs EXPRESS LINK FILLING STATION, KADLATHI, SHEIKHUPURA through Managing Partner and another---Petitioners

Versus

OIL AND GAS REGULATORY AUTHORITY through Chairman and 2 others---Respondents

Writ Petition No.11213 of 2008, decided on 1st December, 2008.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S.6---Constitution of Pakistan (1973), Art. 199---Constitutional petition---CNG Station, installation of--- Petitioner claimed to have imported CNG machinery and obtained no objection certificate from District Coordination Officer concerned and permission from Gas company for gas supply---Non-granting of licence to petitioner to operate CNG Station due to imposition of ban by Government on issuance of new CNG licenses---Plea of petitioner was that such ban would not apply to him as he had already imported CNG machinery---Validity---Letter of ban issued by Authority indicated that only new CNG licence in pipelines had been held up and not of those applicants, who had already imported CNG machinery---Invoices produced by petitioner showed import of CNG machinery before imposition of such ban, which fact was not disputed by Authority---Petitioner was entitled to issuance of licence from Authority---High Court accepted constitutional petition in circumstances.

Syed Faiz ul Hassan for Petitioners.

Kh. Saeed uz Zafar for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 208 #

2010 Y L R 208

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD RAFIQUE through General Attorney ---Petitioner

Versus

AISHA SHAHZADI and 5 others---Respondents

Writ Petition No. 5694 of 2009, decided on 30th March, 2009.

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

----S. 5, Sched. Ss.9(3) & 13---Execution of ex parte decree passed in suit for maintenance---Attachment of judgment-debtor's property---Application by brother of judgment-debtor for setting aside of attachment on the ground that attached property had been agreed to be sold to him much before filing of suit---Validity---Judgment-debtor could seek setting aside of ex parte decree on proper showings under S.9(3) of West Pakistan Family Courts Act, 1964, but he had not done so---Judgment debtor had not challenged ex parte decree in appeal---Alleged agreement to sell would not create any right or interest in favour of brother of judgment-debtor---Such application for being collusive and suffering from sheer mala fides was dismissed in circumstances.

Syed Afzaal Haider Naqvi for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 213 #

2010 Y L R 213

[Lahore]

Before M. Bilal Khan, J

ATTA ULLAH QAMAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1923-B of 2008, decided on 3rd June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Customs Act (IV of 1969), Ss.32(1), 32-A, 15(F), 156(1), (9), (14) & 178---Bail, grant of---Case of the prosecution itself was that the bills of export had initially been cleared by the concerned Customs Staff, but on the information received by the Collector of Customs, the goods which were to be exported through the bills of export had been re-checked; and it had been found that the same were different from those, which had been cleared by the functionaries of the Customs Department---No action against beneficiaries i.e. exporters had been taken by Investigating Agency---Accused who was merely a Customs Clearing Agent, was behind the bars for the last about one year and his further incarceration keeping in view the peculiar facts and circumstances of the case would not serve any useful purpose---Accused was admitted to post-arrest bail, in circumstances.

Ch. Imtiaz Elahi for Petitioner.

Muhammad Khalid Chaudhry, Legal Advisor for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 218 #

2010 Y L R 218

[Lahore]

Before S. Ali Hassan Rizvi, J

RASHID MAHMOOD---Petitioner

Versus

Mst .RASHIDA BEGUM and 2 others---Respondents

Writ Petition No.3389 of 2009, decided on 30th 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 recovery of dowry articles---Offer by husband-defendant for decision of suit on basis of special oath on Holy Qur'an by his father-in-law that dowry articles mentioned in List of Articles had in fact been given to wife at time of marriage and were still lying in possession of defendant---Statement of father-in-law recorded to such effect after accepting such offer---Decree passed by Family Court on basis of such statement was affirmed by Appellate Court---Validity---Arrangement for disposal of suit as agreed by parties was a sort of compromise, which was lawful and permissible---Suit filed after one month of Talaq was not barred by time---Impugned judgment/decree for being in congruity with special oath in terms of compromise was not appealable---High Court dismissed constitutional petition in circumstances.

Ch. Basharat Ali for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 221 #

2010 Y L R 221

[Lahore]

Before Habib Ullah Shakir, J

BASHIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.154-B of 2009, decided on 25th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.322---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Qatl-bis-Sabab and enticement---Bail, grant of---Further inquiry---Real brothers of complainant's wife and other close relatives of complainant's wife as well as accused who was also nearest relative of the complainant party, corroborated each other saying that accused was not the cause of death of complainant's daughters, son and grand-daughter, but it was due to heavy pressure of water in the river and in that regard they all had sworn and submitted their affidavits during the investigation of the case---Complainant, however did not come forward during investigation to get recorded his statement and remained obstinate to his stance taken in the F.I.R.---Accused, during the investigation, was declared innocent by the Police and challan was submitted to the court---Case, in circumstances was fit one for further inquiry---Accused was admitted to bail, in circumstances.

Naveed Khalil Chaudhry for Petitioner.

Ch. Muhammad Ashraf Mohandra, Dy. P.G. for the State.

Talat Mahmood Kakezai for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 225 #

2010 Y L R 225

[Lahore]

Before S. Ali Hassan Rizvi, J

Rao MUHAMMAD ASHIQ RAZZAQ through Special Power of Attorney-Petitioner

Versus

Mst. ABIDA SHAMSHAD and 2 others---Respondents

Writ Petition No.4391 of 2009, decided on 26th March, 2009.

(a) Counsel and client--

--Non-prosecution of case faithfully by Counsel---Remedy of client would be to claim damages from his Counsel or file complaint against him before appropriate forum of Bar Council.

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

----S.14---No appeal or revision would lie against appellate order.

----Art. 199---Constitutional petition could not be considered as a substitute for an appeal or revision.

Syed Qamar Nasik for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 230 #

2010 Y L R 230

[Lahore]

Before Saghir Ahmad and Muhammad Ashraf Bhatti, JJ

FATEH MUHAMMAD and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.308, 321 of 2004 and Murder Reference No.83 of 2004, heard on 26th November, 2008.

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

----S.302(b)---Appreciation of evidence---Both the parties were on a dispute over demarcation of land and the watercourse in dispute was dismantled by complainant side---No witness or any document was placed on the record to substantiate motive---Except mere assertion of the case witnesses, no evidence was on record on the point of motive---Prosecution though was not required to set a motive, but where it was specifically alleged, it would become obligatory for the prosecution to prove the same, but in the present case the motive remained unproved---In view of admission by accused of his having caused injury to deceased, though in self-defence, the medical evidence of doctor would hardly lend any credible support to the prosecution to prove the aggression of accused---Recovery of crime weapon i.e. the gun on the pointation of accused remained inconsequential as neither the crime empty nor the recovered weapon were sent to the Forensic Science Laboratory---Facts that injuries on the person of one of accused persons were suppressed by the prosecution, dispute over demarcation of land remained admitted and the defence plea raised by accused had led to conclude that in fact it was sudden fight having erupted at the spur of the moment, where both the parties acted freely wherein one accused sustained injuries and one from complainant side lost his life---Defence plea taken by accused, in circumstances appeared to be more probable and nearer to reality---Accused though acted in self-defence, but he exercised his right of self-defence much more than what actually was required to ward off the immediate threat or attack to his life---While maintaining the conviction of accused under S.302(b), P.P.C., out of abundant caution, death sentence awarded to accused was reduced to that of imprisonment for life---Remaining sentence of compensation and imprisonment in default thereof would remain intact.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S.417--- Appeal against acquittal---Appeal against acquittal, had already stood dismissed to the extent of two co-accused persons---To the extent of third co-accused, solid reasons had been recorded by the Trial Court while extending benefit of doubt to him---Counsel for the complainant had not been able to point out any mis-reading or non-reading of evidence, warranting interference by the High Court---Appeal against acquittal was dismissed, in circumstances.

Sardar Ahmad Khan and Hafiz Shahid Nadeem Kahloon for Appellants.

Mian Muhammad Afzal Wattoo for the Complainant.

Aftab Ahmad Goraya, Addl.P.-G. for the State.

Date of hearing: 26th November, 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 238 #

2010 Y L R 238

[Lahore]

Before S. Ali Hassan Rizvi, J

SHAKEEL ANWAR HAMDANI---Petitioner

Versus

Syeda SHABANA GILLANI and another---Respondents

Writ Petition No.4100 of 2009, decided on 4th March, 2009.

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---Closing right of cross-examination of witnesses---Suit was pending for the last two years---Defendant was proceeded against ex parte twice which had shown that defendant was trying to prolong the matter---Considering refractoriness of the defendant, Family Court was constrained to pass the impugned order whereby right of defendant to cross-examine the witnesses of the plaintiff was closed---Law did not provide any appeal/revision in the hierarchy of the Family Laws as the family matters were required to be decided expeditiously---Impugned order was not only clothed with authority, but was also fully justified---No illegality or irregularity existed in passing the impugned order calling for interference of High Court in exercise of constitutional jurisdiction.

Muhammad Ali Khan Baloch for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 242 #

2010 Y L R 242

[Lahore]

Before Zubda-tul-Hussain, J

GHULAM ALI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.87-B of 2009, decided on 20th February, 2009.

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

----Ss.498 & 497(2)---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(i)(v), 337-L(i), 452, 148 & 149---Shajjah, Ghayr-jaifah and house trespass---Ad interim bail, confirmation of---Further inquiry---0n re-examination of injured the injury attributed to accused had been declared doubtful which rendered it a case of further inquiry-Ad interim bail granted to accused, was confirmed, in circumstances.

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

----S.498---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(i)(v), 337-L(i), 452, 148 & 149---Shajjah, Ghayr-jaifah and house trespass---Pre-arrest bail, refusal of---Case of co-accused was different to that of accused, whose pre-arrest bail was confirmed---Injury alleged against co-accused resulted in the fracture of the bone of the arm of the complainant and the same had been endorsed by the Medical Board as well---From the circumstances no malice or ulterior motive could be gathered against the complainant for the role attributed to co-accused---No cogent reason was available for concession of extraordinary relief of pre-arrest bail to co-accused---Bail petition to the extent of said co-accused, was dismissed.

Ghulam Hussain Awan and Muhammad Mumtaz Dogar for Petitioner.

Ghulam Qadir Bari, A.P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 246 #

2010 Y L R 246

[Lahore]

Before S. Ali Hassan Rizvi, J

NAWAB BIBI---Applicant

Versus

ZULFIQAR ALI and another---Respondents

R. A. No.27 of 2009 in W.P. No. 3056 of 2009, decided on 5th March, 2009.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, Rr.1, 5---Review---Scope---Review was not a rehearing of the whole lis---Even wrong exposition of law was never a ground for review---Order passed by the High Court was not without reasons and no error apparent on the face of record or any other sufficient reason had been shown so as to justify review.

2009 MLD 36 ref.

Niaz Ahmad Wahla for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 253 #

2010 Y L R 253

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

GHULAM MUSTAFA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1093-B of 2009, decided on 4th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/148/149/337-A(ii) (iii) & 337-F(iii), (v)---Qatl-i-amd and attempt to qatl-i-amd---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R., but no specific role had been assigned to him---Eight persons sustained injuries during the occurrence, who were medically examined immediately, but those injuries were suppressed by the prosecution in the F.I.R.---Cross-version was put up by one of accused persons who was discharged by the Police---Question of vicarious or constructive liability would be determined during the course of trial, because that was a case of two stories as private complaint filed by accused party was also pending in the Trial Court---Case of accused having become that of further inquiry falling under S.497(2), Cr. P. C., he was admitted to bail, in circumstances.

Shahbaz A. Rizvi for Petitioner.

Mahr Habib Ullah Girwa for the Complainant.

Syed Mukhtar Masood Bokhari, DDPP for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 258 #

2010 Y L R 258

[Lahore]

Before Malik Saeed Ejaz, J

MUHAMMAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.478 of 2004, heard on 3rd April, 2009.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-A(i), (ii), 33 7-F(i) (ii), 337-L(ii), 460, 148, 149 & 109---Qanun-e-Shahadat (10 of 1984), Art.22---Appreciation of evidence---Identification parade---Requirements---Accused were not identified at the spot, however, their features had been given---Nothing had been recovered from accused during the course of investigation---Complainant in written complaint had stated that they had enmity in the Illaqa and because of such animosity murder of deceased was committed, but during his statement in the court he came with the version that accused had come to commit dacoity---Complainant and other prosecution witness were subjected to cross-examination by the defence, but nothing damaging to the prosecution or favourable to the defence could be elicited from their statements as they remained consistent with each other on the point that accused had not been specifically identified by them and they had only noted their features and statures---Identification parade was not conducted under the supervision of Magistrate---Identification parade had been conducted in a highly unprofessional and illegal manner, which was sheer violation, of the procedure laid down in High Court (Lahore) Rules and Orders as well as settled principles on that point--Investigating Officer and the Judicial Magistrate had not bothered to initiate any precautionary measures ensuring that identity of accused was not leaked out---Report of the Judicial Magistrate was silent on the question whether he had ensured that the dummies, who were made to mix up with accused persons, had any similarities with accused on the point of their colour, height or other features of the body---Nothing was on record to suggest the basis on which the witnesses had identified accused persons, whether by their colour, height, ages or even by their clothes---Mere saying that witness identified such and such person as accused without mentioning their specific role, could hardly be considered to be piece of evidence to connect accused with commission of crime, which ultimately could entail capital punishment---Conviction could not be recorded merely on probabilities and prosecution had to prove its case beyond any shadow of doubt, which the prosecution had not been able to prove in the case---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused was ordered to be released.

Muhammad Ramzan Khalid Joiya for Appellant.

Syed Muhammad Hussain Shah Qadri for the Complainant.

Nadir Manzoor Duggal, D.P.-G. for the State.

Date of hearing: 3rd April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 269 #

2010 Y L R 269

[Lahore]

Before Abdul Sattar Goraya, J

AZIZ-UR-REHMAN through Attorney---Petitioner

Versus

ALIA MUNIR and 2 others---Respondents

Writ Petition No.6806 of 2008, heard on 3rd June, 2009.

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

----Ss. 5 & 9(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage---Ex parte decree---Plaintiff filed suit for dissolution of marriage seeking judicial divorce---Trial Court decreed the suit ex paste--Defendant filed application for setting aside ex parte decree which was also dismissed by the court---Contention of the defendant was that he was proceeded ex paste---Validity---Summonses were sent to U.S.A. at given address in the plaint but those were received by the plaintiff because she was putting up her abode in the United States at that time---Defendant further contended that signatures of the defendant on the summons were forged and he did not own the same---Validity---Defendant admitted in the constitutional petition that reason for non-appearance was that he was prevented by sufficient reasons not to appear before the court due to his pre-occupation in the U.S.A. and his financial constraints--- Direct admission made in the pleadings established that defendant had knowledge about pendency of suit and of the date of hearing---Defendant sent a request to the Trial Court for getting adjournment during the proceedings.--Defendant had allowed ex parte decree to be passed against him and had no ground available to pray for setting aside the ex parte decree---High Court did not interfere in ex parte decree in constitutional petition--Petition was dismissed.

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

----Ss. 5 & 9(6)---Pakistan Citizenship Act (II of 1951), Ss.14, 14A & 23---Pakistan Citizenship Rules, 1952, R.19-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit filed by plaintiff for dissolution of marriage was contested by the defendant on the grounds that plaintiff was not competent to institute suit in Pakistan in view of S.14 of the Pakistan Citizenship Act, 1951 as the plaintiff could not retain double nationality---Defendant further contended that plaintiff had been travelling on the basis of American Passport and the moment plaintiff acquired citizenship of the United States, the citizenship of Pakistan should have been suspended and would become operative only when the plaintiff would choose to renounce the citizenship of America---Held, section 14(1) of Pakistan Citizenship Act, 1951 was introduced at a time when the position was entirely different and it was for that reason that period of one year was given initially to renounce the citizenship of either country---Section 14(A) of the Act provides that if any citizen of Pakistan resides outside Pakistan he may make in the prescribed manner a declaration renouncing his citizenship of Pakistan and the declaration should have to be registered by the prescribed authority and upon registration of the declaration that person would cease to be a citizen of Pakistan---No such declaration was tendered in evidence or shown to the court which should be in Form "X" required under Rule 19-A of Pakistan Citizenship Rules, 1952 in pursuance to S.23 of the Pakistan Citizenship Act, 1951---Words "ordinarily resident" in the Muslim Family Laws Ordinance, 1961 in relation to maintainability of the suit gave liberal interpretation---Plaintiff fundamentally is a citizen of Pakistan and at the time when she instituted the suit, she was keeping her ordinary residence and abode in Pakistan--Family Court in Pakistan at Lahore had jurisdiction to entertain the matter---High Court dismissed constitutional petition in circumstances.

Muhammad Talat Iqbal Khan through General Attorney v. Tanvir Batool through Wasim Iqbal and 2 others 2005 CLC 481; Mst. Sabohi Sarfraz v. Chairman, Arbitration Council 1994 MLD 1115 and Rehmat Ullah v. Mst. Shamim Akhtar and another 1997 CLC 16 ref.

Muhammad Asif Bhatti for Petitioner.

Mian Abdul Quddous for Respondent No.1.

Date of hearing: 3rd June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 278 #

2010 Y L R 278

[Lahore]

Before Abdul Sattar Goraya, J

RIAZ AHMED---Petitioner

Versus

ASGHAR ALI and others---Respondents

Civil Revision No.2071 of 2009, decided on 9th June, 2009.

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

----S.22---Transfer of Property Act (IV of 1882), S.52---Pre-emption suit, pendency of---Re-transfer of suit-land by vendee-defendant to vendor through oral mutation after getting knowledge of filing of suit---Trial Court dismissed suit, but Appellate Court while accepting appeal directed Trial Court to hold regular trial---Validity---Any change in title during pendency of suit and perfidious attempts made by suitor or original owner as a result of collusive deal would not affect pre-emption suit---Such re-transfer was nothing but a device on the part of defendant to defeat pre-emption suit---High Court upheld order passed of Appellate Court.

Chandra Kumar Maladas v. Abdul Motaleb and 4 others PLD 1967 SC 28; Mian Abdul Qayyum v. Dr. Muhammad Akram Khan 1982 SCMR 1024; Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426 and Munir Hussain v. Muhammad Shafi and another 1981 CLC 1712 rel.

Muhammad Shahzad Chadhry for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 285 #

2010 Y L R 285

[Lahore]

Before Muhammad Ashraf Bhatti, J

SHAFQAT HUSSAIN and 2 others---Petitioners

Versus

PROVINCE OF PUNJAB through District Officer (Rev.), Nankana Sahib and another---Respondents

Civil Revision No.599 of 2009, decided on 15th April, 2009.

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

----Ss.10, 19-A & 36---Specific Relief Act (I of 1877), S.42---Suit for declaration---State land, lease of---Revenue record from years 1970 to 2003 showing original allottee to be in possession of suit land under five years lease---Death of original allottee not certain---Declaration sought by legal heirs of original allottee to be tenant of suit land--Validity--Not original allottee, but his legal heirs had also continued with possession of land without any lawful authority after lapse of initial period of lease---Plaintiffs' possession over suit land was illegal, thus, they had no vested title or right, denial of which could have given them a cause of action---Civil Court had no jurisdiction to entertain such suit---Plaintiffs had remedy to approach Revenue Authorities---Suit was dismissed as not maintainable.

Islamic Republic of Pakistan v. Messrs Conforce Limited and others 2001 CLC 1741 and Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC 542 rel.

(b) Jurisdiction---

----Mere absence of objection in respect of jurisdiction or consent of parties could not confer jurisdiction upon a court to decide case on merits.

Islamic Republic of Pakistan v. Messrs Conforce Limited and others 2001 CLC 1741 and Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC 542 rel.

Syed Shamim Abbas Bokhari for Petitioners.

YLR 2010 LAHORE HIGH COURT LAHORE 294 #

2010 Y L R 294

[Lahore]

Before Pervaiz Ali Chawla, J

GHULAM MUSTAFA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3953-B of 2009, decided on 30th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.376--Rape--Bail, grant of--Complainant/ prosecutrix and her husband both had exonerated accused and there was no allegation of commission of zina against the accused---Furthermore report of Chemical Examiner was also in the negative---Accused was admitted to bail, in circumstances.

Javaid Iqbal Rana for Petitioner.

Parvaiz Alamgir Malik, Dy. P.-G. for the State.

Complainant in person.

YLR 2010 LAHORE HIGH COURT LAHORE 295 #

2010 Y L R 295

[Lahore]

Before S. Ali Hassan Rizvi, J

Syed SIKANDAR ALI SHAH---Petitioner

Versus

Mst. OMAIRA ANWAR through Attorney and 4 others---Respondents

Writ Petition No.3309 of 2009, decided on 20th February, 2009.

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

----S. S, Sched. & S.10(4)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for dissolution of marriage on ground of Khula, ---Defendant-husband confined in Jail at place "F" for being insane and suffering from Schizophrenia---Failure of defendant to appear in Court at Place "L" for reconciliation---Suit decreed by Family Court in consideration of dower--Validity--Defendant had filed constitutional petition through his mother---Defendant was not a competent person, thus, his calling from Jail would not have been of any use---Plaintiff's life at place "F" was seriously at stake, thus, she had to shift to place "L"-Territorial jurisdiction of Family Court for purpose of dissolving marriage was irrelevant---Impugned judgment was with jurisdiction--High Court dismissed constitutional petition in circumstances.

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

----Art. 199---Constitutional petition---Limitation---No limitation prescribed for such petition, albeit, question of laches would be relevant.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 302 #

2010 Y L R 302

[Lahore]

Before M.A. Zafar, J

Mst. ZOYA RAFIQUE---Petitioner

Versus

DEPUTY INSPECTOR GENERAL OF POLICE (INVESTIGATIONS), LAHORE and 7 others---Respondents

Writ Petition No.6858 of 2009, decided on 14th May, 2009.

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

----S.18---Criminal Procedure Code (V of 1898), Ss.156 & 157---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Investigation of case---During investigation, the Police found accused innocent and submitted report before the Ilaqa Magistrate stating therein that according to the report of the Chemical Examiner, no Zina was committed with the petitioner/victim---Magistrate on the basis of said report, discharged accused and directed to release him---Validity---Impugned order had been passed by the Magistrate merely on the basis of the investigation reports of the Police Officer, without independently considering the material on record---Magistrate passed impugned order on the presumption that the commission of Zina had been negated by the report of the Chemical Examiner, though no such allegation was levelled by the victim---Magistrate had not given any importance to the statement of the victim recorded under 5.164, Cr.P.C. in which she had stated that accused had attempted to commit Zina with her--Impugned order passed by the Judicial Magistrate, releasing accused after being discharged from the case, was set aside.

Muhammad Iqbal Mohal for Petitioner.

Ch. Irfan Saeed for Respondent No.7.

YLR 2010 LAHORE HIGH COURT LAHORE 308 #

2010 Y L R 308

[Lahore]

Before S. Ali Hassan Rizvi, J

SHER SHAH---Petitioner

Versus

Mst. RANI BEGUM and 5 others-Respondents

Writ Petition No.3163 of 2009, decided on 19th February, 2009.

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

----S.11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Closure of defendant's right to cross-examine plaintiff's witnesses despite availing two opportunities for such purpose---Validity---Nothing in law to debar court from closing right of cross-examination even on first date, if no. reasonable cause was shown for adjournment---Object of Family Laws being disposal of family cases expeditiously defendant should have been careful to avail opportunity for cross-examining plaintiff's witnesses---Impugned order was with jurisdiction---High Court dismissed constitutional petition in

circumstances.

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

----Art. 199---Constitutional petition---Impugned order passed with lawful authority---Effect---High Court would not be called upon to interfere with such orders.

Muhammad Saeed Ansari for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 311 #

2010 Y L R 311

[Lahore]

Before Zubda-tul-Hussain, J

SULEMAN JALIL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5326/B of 2009, decided on 22nd May, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque--Pre-arrest bail, confirmation of---Further inquiry---Discrepancy regarding the date of issuance of cheque and the detention of accused behind the bars at that time, was not reconciled during the argument on record---Case, in circumstances seemed to be of further inquiry---Said circumstances could also tend to show that element of mala fide could not be excluded in the case---Ad interim pre-arrest bail granted to accused, was confirmed.

Ch. Salamat Ali Haidery for Petitioner.

Basharat Ali Gill, D.D.P.P. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 314 #

2010 Y L R 314

[Lahore]

Before Ali Akbar Qureshi, J

Mst. RAHEELA SALAMAT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 2 others---Respondents

Writ Petitions Nos. 9301 of 2006 and 1613 of 2007, decided on 19th June, 2009.

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

----S.5 & Sched.---Oaths Act (X of 1873), Ss.8, 9, 10 & 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Resile from offer/undertaking to decide suit on oath---Effect---Plaintiff's suit for recovery of dowry articles was partially decreed by the Trial Court---Defendant filed an application that he was ready to return the dowry articles if the plaintiff took oath on Holy Quran pertaining to the possession of dowry articles---Defendant again filed another application on the same ground to return the dowry articles---Defendant resiled/backed out from his offer/undertaking---Trial Court decided the matter on merits---Appeals filed against the judgment and decree by plaintiff and defendant were too maintained in favour of the plaintiff---Contention of plaintiff was that the offer made by the defendant was accepted by the plaintiff and the Trial Court had not taken into consideration the resile made by the defendant---Validity---Offer was accepted by the plaintiff by filing reply of the applications---Contents of the memo. of appeal filed by plaintiff revealed that the defendant resiled from his undertaking---Defendant could not be permitted or allowed to resile or back out from his offer---High Court allowed the constitutional petition and set aside the judgment and decree passed by the Trial Court and remanded the case to Trial Court to decide it by administering the oath as offered by defendant.

1998 PSC 53; PLD 2006 SC 457 and Writ Petition No.8609/2008. ref.

Mahmood Ali Butt v. Inspector-General Police, Punjab, Lahore and 10 other PLD 1997 SC 823 rel.

S.M. Masood for Petitioner.

Rana Shakil Ahmad Khan and Ch. Zulfiqar Ali for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 320 #

2010 Y L R 320

[Lahore]

Before Pervaiz Inayat Malik, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Revisions Nos.81 and 82 of 2007; decided on 20th May, 2009.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Petitioner/complainant had called in question order of the Trial Court vide which his private complaint against the respondents was dismissed in limine---Sufficient evidence, prima facie, connecting respondent/accused was available on record---Both deceased had not died natural death---Ocular account was supported by medical evidence as well as the report of Chemical Examiner---Trial Court proceeded to pass the impugned judgment in an undue haste for which no plausible grounds were available in the impugned judgment---Law relied upon by the counsel for the petitioner was fully applicable in the case---Impugned judgment being contrary to the law declared by the Supreme Court, was found to be perverse, illegal and without lawful authority---Same was set aside, and complaint filed by the petitioner would be deemed to be pending before the Trial Court, with direction that Trial Court to proceed further in accordance with law.

PLD 2007 SC 9; 1991 P.Cr.LJ 685; 1984 P.Cr.LJ 1266; 1990 MLD 1636 and AIR 1970 SC 1153 ref.

Sardar Mureed Abbas for Petitioner.

Mian Bashir Ahmad Bhatti, Dy. P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 324 #

2010 Y L R 324

[Lahore]

Before Ali Akbar Qureshi, J

Mst. NASREEN AKHTAR and 3 others---Petitioners

Versus

PROVINCE OF THE PUNJAB through Collector, Lahore and 5 others---Respondents

Writ Petitions Nos.12893 of 2004 and 16499 of 2005, heard on 9th April, 2009.

Lahore Development Authority Act (XXX of 1976)---

----S.13---Land Acquisition Act (I of 1894), Ss.4 & 31---Constitution of Pakistan (1973), Arts. 25 & 199---Constitutional petition---Land acquired in year 1975 for, Upper Mall Housing Scheme---Announcement of award on 12-5-1975---Landowner's application for getting exempted plot in such scheme---Decision of Lahore Development Authority dated 24-6-2004 to pay cash compensation to petitioner as per assessment of Land Acquisition Collector instead of exempting plot in such Scheme in his favour due to non-availability of plot and that as per policy of Lahore Development Authority, exemption of plots from one scheme to another was not allowed---Validity---Exemption policy had been formulated by predecessor of Lahore Development Authority, whereby owners were entitled to exempted plots equivalent to 2/3rd of their original holding---Lahore Development Authority in its meeting held on 16-12-2006 had granted alternate plots in identical matters---Authority despite having imposed ban on exempting plots in lieu of acquired land w. e. f. 24-6-2006 had again granted alternate plots to other affectees in other developed Schemes---Petitioner was entitled to get exempted plot in terms of such other affectees---Lahore Development Authority was not ready to accommodate petitioner by granting exempted lot in other developed scheme or compensation at present market rate---Compulsorily acquisition of land permitted under Land Acquisition Act, 1894 was subject to payment of adequate compensation to landowner---Petitioner, after more than three decades, could not be asked to receive compensation as suggested by Lahore Development Authority and could not be deprived of his valuable rights guaranteed by the Constitution---Lahore Development Authority being an autonomous body was expected to safeguard and protect rights of people, particularly those genuinely entitled to be treated strictly in accordance with law---High Court directed the Lahore Development Authority to accommodate petitioner in Upper Housing Mall Scheme or any other developed scheme within specified time and in case Lahore Development Authority decided to pay cash compensation of acquired land, then same must be equivalent to market price of properties located in Upper Mall Housing Scheme.?

Mst. Sardar Begum through General Attorney v. Housing and Physical Planning Department, Government of the Punjab through Secretary, and 2 others 2009 CLC 95; Shafqat Ullah and 2 others v. Land Acquisition Collector D.C. Haripur and 2 others 2006 CLC 1555; Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562; Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Mian Tariq Javed v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others 2008 SCMR 598 and PLD 1970 Lahore 321 rel.

Ch. Muhammad Iqbal for Petitioners (in W.P. No.12893 of 2004).

Ahmad Waheed Khan for Petitioners (in W.P. No.16499 of 2005).

Mian Muzaffar Hussain, Legal Advisor, LDA along with Asad Ameer, DLD-II and Zafar ud Din Qureshi, AD. (Exemption), LDA for Respondents.

Date of hearing: 9th April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 332 #

2010 Y L R 332

[Lahore]

Before Rana Zahid Mahmood, J

MUHAMMAD JAVAID GHANI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1682-B of 2009, decided on 25th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Offence against accused did not fall within prohibitory clause of S.497, Cr. P. C. and accused was no more required for investigation---Accused was admitted to bail, in circumstances.

Ch. Salamat Ali Haidari for Petitioner.

Ch. Muhammad Zafar, Dy. P.-G. for the State.

Sultan Mahmood Dar, for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 336 #

2010 Y L R 336

[Lahore]

Before S. Ali Hassan Rizvi, J

KHALIL AHMAD through Special Attorney---Petitioner

Versus

JUDGE FAMILY COURT, FAISALABAD and another---Respondents

Writ Petition No.3689 of 2009, decided on 25th February, 2009.

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

----S.5, Sched. & S. 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Proceedings before Family Court---Recording of evidence---Cross-examination of witnesses---Petitioner had challenged the validity of order passed by the Family Court, whereby the right of the petitioner to cross-examine the witness of the respondent was closed---Impugned order had clearly shown that earlier at two occasions proceedings were adjourned for cross-examination of the witnesses of the respondent with a caution that last opportunity was being granted to the petitioner to cross-examine the witnesses---Petitioner appeared to be reluctant to cross-examine the prosecution witnesses produced by the respondent with a view to tease her and to prolong the matter--Impugned order passed by the Family Court was not only clothed with authority, but was also fully justified---Impugned order to all intents and purposes was interlocutory in nature---Law did not provide any appeal or revision in the hierarchy of Family Laws---Petitioner on proper showings would have an opportunity to challenge the same, if and when he would bring an appeal against the final decision/judgment in terms of S.14 of the Family Courts Act, 1964---Petitioner would have an adequate and alternative remedy at the time of appeal---Considering the conduct of the petitioner, Family Court was constrained to pass impugned order--In absence of any illegality or irregularity in passing impugned orders, constitutional petition against said orders was dismissed.

Shahid Shaukat for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 340 #

2010 Y L R 340

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

Mehr MUHAMMAD NASEEM---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others---Respondents

Writ Petition No.12940 of 2009, decided on 1st July, 2009.

Electricity Act (IX of 1910)---

---Ss.24 & 24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal of the electricity meter---Petitioner had prayed that the removal of the electricity meter be declared illegal, without jurisdiction and violative of the fundamental rights of the petitioner---Contention of the petitioner was that department had not issued any notice under S.24-A of Electricity Act, 1910 and before disconnecting/removing the electricity meter of the petitioner it should have issued a notice of demand---No such demand notice having been issued, meter of the petitioner had been removed illegally, which was against the fundament rights given to the citizens under the Constitution---Validity---Petitioner and his family having defaulted in the payment of bills, department issued notice which had been duly served upon the petitioner and his brother---On receipt of said notice brother of the petitioner instituted a suit which they prolonged for more than two years and on the dismissal of said suit, other brother of the petitioner had filed the present constitutional petition---Contention of the counsel for the petitioner that no notice had been issued to the petitioner, could not sustain, when said notice had been duly received and signed by the petitioner and his brother---According to rules the premises where a default occurred, all the other electricity connections were also affected and in view of the same, petitioner's electricity meter had been disconnected---Petitioner being legal heir of owner of ahata in question, was liable to pay the huge amount outstanding against said premises and the petitioner was bound to clear the dues---Petitioner had the alternative remedy under statutory condition No.25 of the Electricity Act, 1910 to file a complaint 'before Electricity Inspector---Alternative remedy being available to the petitioner, constitutional petition was not maintainable---No illegality having been committed by the department, constitutional petition which had no foot to stand, was dismissed.

Ch. Qamar Riaz Hussain Basra for Petitioner.

Umar Sharif for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 347 #

2010 Y L R 347

[Lahore]

Before Ali Akbar Qureshi, J

TARIQ AHMAD---Petitioner

Versus

RAFIA TABASSUM and 4 others---Respondents

Writ Petition No.14469 of 2004, decided on 15th May, 2009.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Ladies in Pakistan normally exaggerate the facts and value of dowry articles---Decision by Appellate Court to reduce the amount of dowry articles was hardly sustainable in law, particularly, in circumstances when a solid evidence to assess the value of articles was available on the file---Value of dowry articles assessed by Appellate Court was enhanced by the High Court.

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

----S. 5 & Sched.---Maintenance of minors---Enhancement---Maintenance of minors was fixed @ Rs.800 per month per head during the year 2004 which was inadequate and insufficient keeping in view the ages of the minors---High Court enhanced the amount to Rs.1,500 from Rs.800 per minor per month with an increase of 10% annually.

M. Shahid Tassawar Rao for Petitioner.

Rana Wazir Ali Khan for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 349 #

2010 Y L R 349

[Lahore]

Before Jamila Jahanoor Aslam, J

TARIQ MEHMOOD---Petitioner

Versus

Mst. FARAH SHAHEEN---Respondent

Writ Petition No.224 of 2009, decided on 27th April, 2009.

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

----S.5 & Sched.---Suit for dissolution of marriage on ground of Khula---Gold ornaments mentioned in Column No.16 of Nikahnama, whether returnable---Such ornaments would fall in ambit of gift and would not be returnable to husband as gift becomes property of donee-wife.

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

----S.5 & Sched.---Suit for recovery of maintenance by wife---Counter suit by husband for restitution of conjugal rights--Validity---Husband instead of filing such suit should have paid maintenance to wife in order to show his good will---Principles.

A more dynamic approach is expected from the court when it comes to grant of maintenance. It has been proved time and again that the women are either thrown out of their homes or put in a situation whereby they are compelled to leave the marital abode. In either case, most of the time the women do not return to their parents' homes of their own accord, they are compelled to do so. Had their husbands been kind to them, the need for leaving the marital abodes would not have arisen. On their compelled return to their parents' homes, the husbands do not maintain them and the minors born in the wedlock, which further compels filing of suits for recovery of maintenance. This is countered by filing of suits for restitution of conjugal rights by the husbands, which is only to try to prove their bona fides and also to oust the right of maintenance of the wives. When the wives, who do not adhere to the decrees for restitution of conjugal rights passed in favour of the husbands, and file dissolution of marriage, they are immediately declared "nashizas" without taking into consideration that had the husbands really come to court with bona fide intentions where they filed suits for restitutions of conjugal rights, they could have instead shown their good will by giving the estranged wives maintenance. This is almost never done and Courts give sweeping judgments when they declare the women "nashizas", thus not entitled to maintenance.

----S.5 & Sched.---Suit for recovery of maintenance by wife---Rate of maintenance, determination of---Earnings of husband, proof of---Wife could not be expected to have documentary evidence of income of husband---Duty of court to ascertain itself as what could be income of husband, but not to believe husband stating to be destitute or virtually pauper---Principles.

Hardly any woman collects evidence against her husband during the period the parties are together, so far courts to expect the wives to comp-up with documentary evidence of the earnings of their spouses is a fallacy. Courts must exercise their discretionary powers. The parties are before them and they are litigating which is not an inexpensive business. The Courts must go to great lengths to ascertain for themselves as to what could be the income of the husbands and not take them for their word that they are destitute or virtually paupers.

Javed Akhtar Bhatti for Petitioner.

Raja Israr Mehmood Bhatti for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 353 #

2010 Y L R 353

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD LATIF and another---Petitioners

Versus

BOARD OF REVENUE through Senior Member (Revenue) Punjab, Lahore and 3 others---Respondents

Writ Petition No.12554 of 2000, heard on 2nd June, 2009.

West Pakistan Land Revenue Rules, 1968---

----Rr. 17, 18 & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Lumberdar--Respondent submitted an application to the Collector that in concerned chak there were two sanctioned posts of Lumberdar but only one i.e. petitioner was working as Lumberdar through another petitioner in the capacity of Sarbrah Lumberdar---District Collector allowed the filling of post of second Lumberdar and sent the file to Assistant Commissioner---Other petitioner submitted review petition contending that sanction of second post needed the approval of the Commissioner under the law and rules---Collector reviewed his earlier order whereby he allowed the filling of post of second Lumberdar---Appeal filed by respondent before Commissioner against order of Collector whereby he had reviewed his earlier order was dismissed by the Commissioner observing that there was only one post of Lumberdar against which the petitioner was acting as Lumberdar--Respondent filed a revision petition before Senior Member, Board of Revenue who vide impugned order remanded case to the Collector for fresh proceedings by making certain observations---Matter before Senior Member, Board of Revenue was regarding the second post of Lumberdar, which was claimed by respondent and no matter regarding ineligibility of petitioners to hold the office of Lumberdar was before him---Member, Board of Revenue, in circumstances, went beyond the lis before him---Collector and Commissioner had passed valid orders and Member, Board of Revenue had no jurisdiction to upset the same---Order passed by Member, Board of Revenue in revision and later on passed on review petition, were set aside.

Mehr Ali v. Noor Muhammad and others 2007 SCMR 1965 and Naik Muhammad v. Mazhar Ali and others 2007 SCMR 112 rel.

Ch. Muhammad Akram for Petitioners.

Zafarullah Khan Khakwani, A.A.-G. for Respondents.

Date of hearing: 2nd June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 356 #

2010 Y L R 356

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ALI RAZA---Petitioner

Versus

CHAIRMAN, PUNJAB COOPERATIVE BOARD FOR LIQUIDATION, LAHORE---Respondent

Miscellaneous Petition No. 70-C of 2008, decided on 28th May, 2009.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Sale through negotiation---Validity---Applicant being tenant under Cooperative Board for Liquidation intended to purchase the shops in question and was ready and willing to pay reasonable price to be negotiated with Board--Contention of the respondent was that the shops were public property and could not be sold after negotiation whereas applicant should participate in the open auction at the time of bidding---Validity---Shops related to public exchequer which could not be deprived of securing more money by selling those shops without advertising the same in an open auction---Earlier management had committed illegal acts by selling through negotiation---One wrong could not be made precedent for issuing direction to oblige subsequent wrongs---Petition was dismissed by High. Court.

Government of Pakistan and others v. Zafar Iqbal and others 1992 CLC 219 ref.

Mian Shahid Iqbal for Petitioner.

Syed Faizan Haider on behalf of Muhammad Ilyas Khan for PCBL Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 359 #

2010 Y L R 359

[Lahore]

Before Muhammad Khalid Alvi, J

PARVAIZ AHMAD---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, OKARA through Nazim and another---Respondents

Civil Revision No.49 of 2009, heard on 18th May, 2009.

Punjab Private Site Development Schemes (Regulation) Rules, 2005--

----R.8(7)---Sanction and its conveyance---Plaintiff had challenged the order passed by D.C.O. regarding restriction on the registration of sale deeds/mutations of unapproved private housing colonies, seeking suspension of operation of. D.C.O.'s order---Application of the petitioner for interim relief was dismissed by the Trial Court as well as Appellate Court---Directions issued by D.C.O. were of general nature relating to all such private developers which had not yet obtained sanction from the competent authority---Competent authority was authorised to give effect to the provisions of Punjab Private Site Development Scheme (Regulation) Rules, 2005, restraining private developers to offer plots for sale which the scheme had not yet been approved---High Court declined interference.

PLD 2007 Lah. 689 and PLD 2008 Lah. 337 distinguished.

Khawaja Saeed-uz-Zafar for Petitioner.

Mian Subah Sadiq Kalasson for Respondent No.1.

Rafey Ahmed Khan, A.A.-G. for Respondent No.2.

Date of hearing: 18th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 360 #

2010 Y L R 360

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and Ijaz Ahmad Chaudhry, J

ABDUL QADDUS MUGHAL---Petitioner

Versus

FEDERAL GOVERNMENT through Secretary Finance, Islamabad 'and 6 others---Respondents

Writ Petitions Nos. 16096 and 15744 (suo motu) of 2009, decided on 3rd September, 2009.

(a) Public Administration---

----Duty of State to look after the minimum food needs of its people at all time.

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

----Art.199---Suo motu exercise of constitutional jurisdiction by High Court---Principles stated.

It is within the domain of High Court to issue direction to a person performing, within the territorial jurisdiction of the court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required bylaw to do.

----Art.4---Fundamental right of sugarcane growers to make Gurh and Shakkar from sugarcane instead of selling same to Sugar Mills---Principles.

More than half of our population is residing in rural areas, who has been using Gurh and Shakkar for sweetening their dishes since long. Till now they may adopt the ancient way of use of sugarcanes and meet the need of sugar in their homes. If a grower of sugarcane does not want to sell his sugarcanes to the mills, he has fundamental right to extract sugar from it by ancient way and may get more return of his cultivation.

(d) Punjab Sugar Licensing (Control) Order, 1972---

----Preamble----Decrease in Sugar price---Sugar is not the commodity, the use of which cannot be decreased or part with by the people and by doing same, the people can defeat the desire of the stockts to increase the prices of sugar, as when there will be on more demand of sugar, they would be bound to sell sugar at low prices within the reach of the common people.

Shafquat Mahmood Chohan for Petitioner.

Muhammad Nasim Kashmiri, Muhammad Ashraf, Abdul Razzaq Raja, Dy. A.-Gs., Ch. Muhammad Hanif Khatana, Acting A.-G., Muhammad Irfan, Food Secretary, Tanveer Ahmad Hashmi for T.C.P., Shahid Karim for Sugar Mills Association and Khalid Mahmood, Chief Secretary for Respondents.

Date of haring: 19th, 26th August and 3rd September, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 373 #

2010 Y L R 373

[Lahore]

Before Jamila Jahanoor Aslam, J

NOMAN SHAFI and others---Petitioners

Versus

CANTONMENT BOARD, CHAKLALA and others---Respondents

Writ Petition No.1272 of 2005, heard on 21st May, 2009.

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

----Ss.183 & 183-A---Building period---Extension---Scope---Provisions of Ss.183 and 183-A of Cantonments Act, 1924, are enabling provisions and serve beneficial purpose, therefore, must be construed and jurisdiction therein applied liberally---No more than two extensions can anyway be granted as there is clear embargo in law to do that---As such Ss.183 and 183-A of Cantonments Act, 1924, cannot be used as a machinery for collecting revenue.

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

----Ss.183 & 183-A---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Arts.4, 24 & 199---Constitutional petition---Principles of natural justice---Applicability---Building period---Extension---Relief, moulding of--Jurisdiction of High Court---Grievance of petitioners was that authorities without assigning any reason and without providing any opportunity of hearing declined to extend time for completing construction---Validity---Such act of authorities was violation of Constitutional guarantees promised to petitioners under Arts.4 and 24 of the Constitution and S.24-A of General Clauses Act, 1897---No hearing was provided to petitioners to allow them opportunity to satisfy authorities---Such opportunity though not expressly called upon in language of Ss.183 and 183-A of Cantonments Act, 1924 but legal requirement of applying for extension connoted and attached with such application, the right to be heard in support of such application and proper and structured exercise of discretion by authorities in support of any decision thereon---Natural justice and right of hearing was to be read as part of every law even by implication---No opportunity to present their case had been granted to petitioners and discretion had not been exercised as required by law, discretion had to be structured and unless its exercise was in conformity with principles laid down in cases of Supreme Court, the exercise of discretion was unwarranted and could not be sustained---High Court, in exercise of constitutional jurisdiction, could mould the relief---High Court directed the authorities to allow petitioners opportunity to appear and present their case for extension of time and application under Ss.183 and 183-A of Cantonments Acts, 1924, of petitioners was deemed to be pending before authorities---High Court further directed the authorities to give proper reasons in its decision---Petition was allowed accordingly.?

1998 SCMR 2268; 1998 SCMR 2419; 2002 CLC 1049; 2003 CLC 331; PLD 2005 Kar. 524; 1993 SCMR 1533; PLD 2001 SC 1 and Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404 ref.

----Art.199---Constitutional jurisdiction---Scope---High Court has to ensure that constitutional rights of parties are safe guarded.?

1987 SCMR 1117 rel.

Mujeeb-ur-Rehman Kiyani for Petitioner.

Mirza Viqas Rauf for Respondents.

Date of hearing: 21st May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 380 #

2010 Y L R 380

[Lahore]

Before Ch. Naeem Masood, J

Dr. Syed ZULFIQAR ALI SHAH--- Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No. 1340 of 1994, heard on 30th June, 2009.

Civil Procedure Code (V of 1908)---

----S. 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Constructive res judicata, principle of---Applicability---Scope---Petitioner was alleged to be owner in possession of the disputed property, purchased from the rightful predecessor---Mutation of the disputed property could not be sanctioned in favour of the petitioner due to lack of credibility of the revenue staff and the petitioner was considered as an encroacher---Petitioner filed constitutional petition in the year 1983 which was dismissed without declaring petitioner as an owner of the disputed property---Petitioner filed applications in Revenue Department which also became fruitless---Respondents controverted the stand taken by the petitioner and asserted that the constitutional petition was hit by principle of constructive res judicata as earlier in the year 1983, the constitutional petition on the same issue had been decided by High Court---Petitioner made running remarks about the earlier constitutional petition in the year 1983 but did not disclose the whole truth---Substantial issue of ownership over the disputed property had been decided, the petitioner neither approached the High Court with clean hands nor before the revenue authority, disclosing them about the factum of dismissal of the earlier constitutional petition---Petitioner ought to have submitted all the grounds of his attack in the constitutional petition but the same having not been done, petition was hit by principle of constructive res judicata---Constitutional petition was dismissed by High Court.

Muhammad Amir Bhatti for Petitioner.

Ch. Saghir Ahmed for Respondents.

Date of hearing: 30th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 384 #

2010 Y L R 384

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUMTAZ BEGUM---Petitioner

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION and another---Respondents

P. No.81-C of 2008, decided on 18th May, 2009.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petition for issuance of a direction to register the claim of the petitioner and for making the payment---Petitioner who was a lame and disabled old lady opened an account in the defunct Society and deposited amounts on different occasions---When the petitioner approached the office of Liquidation Board and inquired about the whereabouts of her case, officials told her that original record was available in the office and that the petitioner should approach High Court for the registration of her case as the claim of the petitioner, could not be entertained---Petitioner had attached deposit receipts with the petition, Board was directed to hold an inquiry; and if amount was found in the account of the petitioner and the receipts were genuine, her claim should be registered.

Petitioner in person.

Muhammad Ilyas Khan for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 386 #

2010 Y L R 386

[Lahore]

Before Muhammad Ashraf Bhatti, J

Mirza ZAFAR IQBAL BAIG and 2 others---Petitioners

Versus

Mirza AYUB BAIG and 3 others---Respondents

Writ Petition No.7633 of 2003, heard on 6th May, 2009.

Specific Relief Act (I of 1877)---

----Ss. 12 & 35---Civil Procedure Code (V of 1908), S.148---Constitution of Pakistan (1973), Art.199---Constitutional petition---Balance consideration amount---Rescission of contract---Extension in time---Suit for specific performance of agreement to sell was decreed in favour of plaintiffs who deposited partial balance consideration amount within the time specified by Trial Court and assailed remaining amount in appeal---After dismissal of appeal by High Court, plaintiffs deposited remaining consideration amount within the time granted by Trial Court---Extension of time granted by Trial Court after dismissal of appeal was maintained by Lower Appellate Court in exercise of revisional jurisdiction---Plea raised by defendants was that after passing of decree, Trial Court had become functus officio, therefore, it had no jurisdiction to extend time for deposit of amount in question---Validity---In case of decree of specific performance of contract where decree holder failed to make payment of decretal amount within time fixed by Court and judgment debtor also did not take up the matter with concerned court for rescission of contract in terms of S.35 of Specific Relief Act, 1877, the court that passed the decree continued having control over the lis--There was neither any prescribed form under the law for drawing decree of specific performance, nor while dismissing appeal of plaintiffs any specific date was given for deposit of remaining amount after deposit of major portion of decretal amount in Trial Court---No objection was also made by defendants regarding not fixing of specific date for depositing balance amount at the time of decision of appeal by High Court---Defendants failed to point out any illegality in orders passed by two Courts below for interference by High Court in its constitutional jurisdiction and defendants also failed to point out any injustice having been done to them---Petition was dismissed in circumstances.

Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983; Nizam-ud-Din and 13 others v. Ch. Muhammad Saeed 1983 CLC 1682; Bashir Ahmed and another v. Hussain Industries (Pvt.) Limited 2003 YLR 55; Amjad Malik v. Muhammad Saleem and 5 others 1992 MLD 31; Rukhsana Kausar and another v. Additional District and Sessions Judge, Khanewal and 11 others 2000 CLC 585; Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Nasir Ahmad v. Muhammad Yousuf PLD 1994 Lah. 280; Muhammad Riaz Qamar v. Umar Din and 3 others 1985 CLC 474 and Shabbir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790 and Abdul Shaker Sahib v. Abdul Rehman Sahib AIR 1923 Mad. 284 ref.

Asif Mehmood Butt for Petitioners.

Syed Taffazal Haider Rizvi for Respondents.

Date of hearing: 6th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 393 #

2010 Y L R 393

[Lahore]

Before Hasnat Ahmad Khan, J

MASKEEN ULLAH KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.820 of 2003, decided on 26th Jun 2009.

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

----Ss. 302(b)/34 & 324/34---Juvenile Justice System Ordinance (XXI7 of 2000), Ss.5 & 6---Appreciation of evidence---Sentence, reduction in---Accused after having been declared as juvenile was separately tried from his adult co-accused by Trial Court---Apparently the procedure adopted by Trial Court was violative of Ss.5 and 6(4) of the Juvenile Justice System Ordinance, 2000, but the adverse effect, if any, caused due to violation of the relevant provisions of law, had reached an irreversible stage, which could not be cured---Accused having already become major, remand of his case for holding his exclusive trial would not serve any Purpose---Moreover, holding trial of accused along with his co-accused on one and the same date of hearing or by placing the retyped verbatim copies of the statements of the witnesses from the file of adult co-accused to his file, defence of accused was not all adversely affected, particularly when the counsel of adult co-accused was also representing the present accused and duly safeguarding his interest as well---Not appropriate to remand the case to Trial Court after almost eight years of its inception, especially when the methodology had been evolved and adopted by Trial Court with the implied consent of the parties, which had only been objected to at the time of the decision of present appeal---Irregularity committed by the consent of the parties could be treated as a curable one---Motive for the occurrence had been proved---Eye-witnesses had no deep-rooted enmity with the accused for his false implication---Daylight occurrence had been promptly reported to the police---Presence of the injured prosecution witness at the time and place of occurrence could not be doubted---Ocular testimony was in line with medical evidence---Accused had not denied his presence at the scene of occurrence---Defence version was not plausible of having been attacked by the complainant party---Case was one of sudden fight between the parties---Accused had not caused any injury to the deceased and he had participated in the occurrence and given a knife blow to the injured witness just to get his cousin released from his grip---Knife recovered from the accused had a 3? inches blade---Accused, therefore, had not shared common intention with his co-accused in killing the deceased---Conviction and sen?tence of accused under section 302(b)/34, P.P.C. were consequently set aside---Con?viction of accused under section 324/34 P.P.C. was upheld, but his sentence thereunder was reduced to seven years' R.I. in circumstances.?

Hassan Gul v. The State 1975 PCr.LJ 437, Alam Sher and 4 others v. The State 1977 P. Cr. LJ 1078; The State v. Qalandar Khan PLD 1971 Pesh. 119; Muhammad Khalid and 5 others v. Municipal Committee and 10 others 1987 CLC 250; Muhammad Younis v. The Crown PLD 1953 Lah. 321; Muhammad Khan and others v. The State and others PLD 1978 SC 251; Muhammad Younis @ Cheena v. The Crown 1969 SCMR 424; Shahidullah Khan and others v. The State PLD 1961 Dacca 1; Sabur-ur-Rehman and another v. Government of Sindh and 3 other PLD 1989 Kar. 572; Madat Khan and another v. King Emperor AIR 1927 Privy Council 26; Muhammad Younas Habib v. The State PLD 2006 SC 153 and Mitthulal and others v. The State of Madhya Pradesh AIR 1975 SC 149 ref.

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

----S.423---Remand of case---Criterion---Criterion for remanding a case on account of any irregularity committed by Trial Court during trial is two fold; firstly if the irregularity has prejudiced the accused in any manner and secondly if the objection qua the said irregularity or illegality had been raised at the earliest stage.?

----S.537---Irregularity in mode of trial--Irregularity committed by the consent of the parties can be treated as a curable one. ?

Mitthulal and others v. The State of Madhya Pradesh AIR 1975 SC 149 ref.

Zafar Iqbal Chohan for Appellant.

Qazi Zafar Iqbal, Addl. P.G. for the State.

Asif Munir Kainth for the State.

Date of hearing 11th June 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 406 #

2010 Y L R 406

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD AKBAR---Petitioner

Verses

Haji SHER MUHAMMAD and another---Respondents

Civil Revision No.810 of 1995, heard on. 1st June 2009.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Inheritance---Plaintiff filed suit for declaration regarding the property owned by his deceased cousin obtained through registered sale-deed followed by a mutation---Deceased died issueless and his inheritance was sanctioned in favour of son and daughter of another cousin of deceased vide mutation---Plaintiff had asserted that he being cousin of deceased was also a residuary of deceased, but was excluded from the inheritance---Suit had concurrently been decreed by' the two courts below---Validity---Plaintiff was first cousin of deceased and father of two brothers and sister in whose favour inheritance of deceased was sanctioned, was also first cousin of deceased, but he had died prior to death of deceased---Under the principles of Islamic Law "nearer in decree would exclude the more remote", persons in whose favour mutation was sanctioned was not entitled to inheritance of deceased---Plaintiff would exclude them in whose favour inheritance was sanctioned being remote in degree; he also had not a better claim because he was just a purchaser of land from them; he was not entitled to any relief when the persons from whom he had purchased the suit-land, were excluded from the inheritance---No illegality or irregularity had been pointed out which could demonstrate the jurisdictional defect, committed by the courts below.

Khawaja Muhammad Asghar for Petitioner.

Mian Muhammad Akram for Respondents.

Date of hearing: 1st June 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 415 #

2010 Y L R 415

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD NAWAZ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.470 of 2005, heard on 5th May, 2009.

Penal Code (XLV of 1860)---

----S.302(b)/34--Appreciation of evidence--Motive for the occurrence as set up by the prosecution was not acceptable---Weapons of offence allegedly recovered from the accused were not proved to have been used in the commission of the offence---F.I.R. was lodged after an unexplained inordinate delay of three days---Deceased was rushed to the hospital in an injured condition by the police and not by the eye witnesses---Eye-witnesses had made dishonest improvements to bring their evidence in line with other evidence---Eyewitnesses had not seen the occurrence and their statements could not be accepted as a gospel truth only because they had no deep-rooted enmity with the accused--Intrinsic worth of the ocular testimony, indeed, was to be considered---Ocular evidence was not corroborated by any other source and was not trustworthy---Three co-accused had already been acquitted by Trial Court disbelieving the eye-witnesses---Accused were acquitted on benefit of doubt in circumstances.

Safdar Hussain Tarar for Appellants.

Muhammad Adeel Aqil Mirza, D.P.G. for the State.

Nemo for the Complainant.

Date of hearing 5th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 422 #

2010 Y L R 422

[Lahore]

Before Maulvi Anwar ul Haq, J

ABDUL GHANI---Petitioner

Versus

MUHAMMAD MAALIK through his Legal Heirs and another---Respondents

Civil Revision No.486 of 2009, heard on 27th May 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1, 2 & S.115---Suit for declaration and permanent injunction---Plaintiff had questioned sale-deed allegedly registered regarding the suit house in favour of defendant---Application was also filed for grant of temporary injunction restraining the defendant from interfering with possession of plaintiff or to alienate the same---Trial Court dismissed said application---First appeal was filed wherein defendant made a statement that he ,would be having no objection, if a stay was granted to the extent of possession---Defendant was restrained from interfering with possession of the plaintiff---Contention of the plaintiff was that impugned order of Appellate Court was result of fraud and misrepresentation inasmuch as the plaintiff had purchased the suit house from defendant vide registered sale-deed---Plaintiff though had purchased the suit house from the defendant vide registered document after the institution of the suit, but he had not taken any steps to get himself impleaded as a party--Counsel for the plaintiff had admitted that plaintiff was in possession of the suit house---Impugned order could not be interfered with because the plaintiff would be bound by the result of the suit being a transferee pendente lite---Impugned order was modified to the extent that the plaintiff would not be dispossessed from the suit house, otherwise than in due course of law.

Ch. Nazir Ahmad Kamboh for Petitioner.

Dr. Ehsan ul Haque Khan and Rao Manzoor-ul-Haque Khan for Respondents.

Date of hearing 27th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 423 #

2010 Y L R 423

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD AMJAD---Petitioner

Versus

AZRA BIBI and 2 others---Respondents

Writ Petition No.913 of 2008, decided on 4th May, 2009.

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

----S.5---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of Rs. 1,00,000 by wife written in column No.17 of Nikahnama---Condition written in column No.17 of Nikahnama was to the effect that in case the petitioner/husband had conducted/contracted second marriage, he would be liable to pay Rs. 1,00,000---Such condition did not come under the purview of matrimonial matters, which were within the jurisdiction of Family Court---Matter regarding damages envisaged in column No.17 of the Nikahnama was not amendable to the jurisdiction of the Family Court, but could only be pursued before the civil court of general jurisdiction---Impugned judgments and decrees passed by the courts below, were set aside, in circumstances.

Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007, Lahore 515 ref.

Malik Javed Akhtar Wains for Petitioner.

Mian Zahoor Amjad Qureshi for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 431 #

2010 Y L R 431

[Lahore]

Before Hasnat Ahmad Khan, J

NAEEM MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 265-J of 2005, heard on 30th June, 2009.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Prosecution case was based on circumstantial evidence---Extrajudicial confession stated to have been made by accused before prosecution witnesses was not believable---Motive for the crime as set up by the prosecution during investigation having already been disbelieved, could not be relied upon---"Wajtakker" witness had failed to advance any reason for his presence in front of the house of the deceased at odd hours of the night and to bring the said important event to the knowledge of the complainant after three days, his evidence, therefore, had no credibility---"Chutri" recovered from the accused after 23 days of the occurrence could not retain blood-stains---All the circumstantial pieces of evidence were tainted and one tainted piece of evidence could not corroborate another such evidence---Circumstantial evidence for awarding conviction must be incompatible with any reasonable hypothesis of the innocence of the accused and no link in the chain should be broken---One single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused would make him entitled to benefit of doubt as a matter of right---Accused was acquitted in circumstances.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Abdul Sattar v. State 1999 PCr.LJ 764 and Ali Khan v. The State 1999 SCMR 955 ref.

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

----S.302(b)---Appreciation of evidence---Principle---One tainted piece of evidence cannot corroborate another tainted piece of evidence.

----S. 302(b)---Appreciation of evidence---Circumstantial evidence---For awarding conviction circumstantial evidence must be incompatible with any reasonable hypothesis of the innocence of the accused and no link in the chain should be broken.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Abdul Sattar v. State 1999 PCr.LJ 764 and Ali Khan v. The State 1999 SCMR 955 ref.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Many circumstances creating doubt are not required to give benefit of doubt to accused---One single circumstance which creates reasonable doubt in a prudent mind about the guilt of accused would make him entitled to its benefit not as a matter of grace or concession, but as a matter of right.

Abdul Qayyum Anjum for Appellant.

Irshad Hussain Bhatti, Dy. P.-G. for the State.

Date of hearing: 30th June 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 439 #

2010 Y L R 439

[Lahore]

Before Habib Ullah Shakir, J

MUHAMMAD TANVEER ASGHAR alias BILLU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7652 of 2009, decided on 10-7-2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.337-F(i)(ii), 337-A(1)/34---Shajjah and ghayr-Jaifah---Bail, grant of---Benefit of doubt---Sections 324/365, P.P.C. were added vide Zimini on the order of the Trial Court but later on by the order of High Court said sections were deleted---Such conduct of prosecution, had made the case highly doubtful and whenever any doubt would arise, benefit of such doubt at bail stage could be given to accused, because accused was favourite child of the court--Contents of the F.I.R., prima facie showed that the ingredients of Ss.324/365, P.P.C. were missing in the case as during investigation no kidnapping was proved---High Court, in circumstances had rightly deleted Ss. 324/365, P.P.C.---Remaining offences did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was behind the bars since 20-7-2009 and challan had been submitted in Trial Court---Investigation had been completed and accused was no more required by the Police for the purpose of investigation---Recovery had been effected from accused and his further incarceration in jail would not advance the prosecution case---Bail was granted.

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

Abdul Khaliq Safrani for Petitioner.

Ch. Fiaz Ahmad, D.P.-G. for the State.

Muhammad Ayub Joya for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 445 #

2010 Y L R 445

[Lahore]

Before Khawaja Farooq Saeed, J

MUHAMMAD JAVED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 2 others---Respondents

Writ Petition No.160, of 2009, decided on 11th February, 2009.

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope--Petitioner had sought relief from High Court for setting aside the order of Appellate Court wherein order passed by the Family Court was confirmed---All the facts of the case had duly been considered by the forums below---Final finding of the Appellate Court was arrived at after appreciation of the entire facts, which were neither unlawful nor perverse in any manner---Constitutional jurisdiction of High Court could not be invoked unless the order of the subordinate court was illegal, perverse or defective in terms of exercise of jurisdiction etc.---Fact that through an evidence one could reach to a different conclusion also, was no reason for invocation of constitutional jurisdiction---Misreading of evidence had to be such which resulted in a patent non-appreciation of the evidence---Evidence which could lead to various conclusions, would not be a valid reason for exercising constitutional jurisdiction.

Javed Khan v. Mst. Fauzia Azam PLD 2005 Pesh. 89 and Rana Akram Javed v. Additional District Judge, Faisalabad: 2008 CLC 1526 rel.

Haroon Qureshi for Petitioner.

M. Sohail Majeed Ch. for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 450 #

2010 Y L R 450

[Lahore]

Before M.A. Zafar, J

ASAD SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.822-B of 2008, decided on 21st October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.376/511---Rape---Bail, refusal of---Delay of eight hours in lodging F. I. R., had been explained in the F.I.R.---Nothing was on record about any ill-will or strained relations of the parties prompting minor girl of 10/12 years to level false allegation against accused---Effect of Medico-legal report and report of Chemical Examiner would be considered during the trial after evaluating the evidence produced by the parties---Even if it was considered to be a case of attempt to commit zina, even then, same fell within the prohibitory clause of S.497(1), Cr.P.C.-Police during the course of investigation had found accused guilty and challan had been submitted in the Trial Court in which charge was framed and case was fixed for recording the prosecution evidence---No good ground having been made for release of accused on bail, his bail application was dismissed.

Mirza Viqas Rauf for Petitioner.

Munir Ahmad, D.P.-G. with G. Hussain, A.S.I. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 454 #

2010 Y L R 454

[Lahore]

Before Ali Akbar Qureshi, J

GHULAM MUSTAFA and others---Petitioners

Versus

GHULAM MUHAMMAD and others---Respondents

Civil Revision No.1151 of 2008, decided on 20th January, 2009.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Plaintiffs in their suit for declaration claimed that they were owners in possession of suit-land and defendants in the garb of executing a power-of-attorney had got executed the mutation of gift and thereafter got recorded the entries Khasra Girdawari in their favour---Defendants resisted suit by filing a detailed written statement, wherein it was asserted that the gift mutation was validly executed in their favour with the consent of the plaintiff and that suit had been filed with ulterior motive---Trial Court dismissed suit, but Appellate Court accepting appeal, decreed suit in favour of the plaintiffs and defendants had filed revision petition against the same---Claim of the defendants was that land in dispute was gifted to them by their real uncle by way of gift mutation---Alleged gift mutation no where mentioned that any offer of gift was made by the plaintiffs to the defendants; that same was accepted and finally the possession of suit-land was handed over to the defendants---Three ingredients namely offer, acceptance and delivery of possession were required, for completion of transaction of gift, which were not mentioned in the alleged gift, mutation and no explanation was offered for such omission---Appellate Court below had rightly observed, after careful perusal, appraisal and appreciation of the evidence on file that the gift mutation claimed by the defendants was the result of fraud and misrepresentation and in fact no gift was made by the plaintiffs in favour of defendants---In absence of jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence in the findings recorded by the Appellate Court below, revision against Judgment of the Appellate Court, was dismissed.

Ch. Ghulam Sarwar Nihung for Petitioner.

Ch. Akbar Ali Shad and Rana Mazhar Iqbal Khan for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 460 #

2010 Y L R 460

[Lahore]

Before M.A. Zafar, J

STATE BANK OF PAKISTAN---Petitioner

Versus

Messrs K.B. AMINE---Respondent

Civil Revision No.359 of 2008, decided on 12th December, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.XXI, Rr. 10, 12---Suit for recovery of amount---Execution of decree---Attachment of account---Suit filed by the plaintiff/Contractor against defendant/Government for recovery of amount having been decreed, the decree-holder filed application for execution of decree---Executing Court directed State Bank to attach account of judgment-debtor, but the Bank, instead of complying with said direction of the Executing Court, filed revision petition against order of the Executing Court---Validity---Petitioner Bank was only custodian of the amount lying with it and it was its obligation to obey the order of the court and it had nothing to do with the decree passed in favour of plaintiff against defendant judgment-debtor---Judgment-debtor had not come forward to assail the order passed by the Executing Court whereby its account was directed to be attached---Revision petition filed by the petitioner Bank was misconceived, particularly when accounts were under the control of Ministry of Defence against whom decree had been passed.

Muhammad Shuaib Abbasi for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 466 #

2010 Y L R 466

[Lahore]

Before Syed Sajjad Hussain Shah, J

TAHIR MEHMOOD BASHIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 25 of 2008/BWP, decided on 2nd April, 2008.

Criminal Procedure Code (V of 1898)---

----S.514---Forfeiture of surety bond and imposition of penalty on surety---Petitioner stood surety for accused and accused having jumped over his bail and did not appear before the court, bail bond of the petitioner was forfeited and penalty of Rs.12,500 was imposed upon him---Accused who was granted ad interim bail, appeared before the court below on two dates, but could not appear on the third date---Accused subsequently appeared before High Court and was allowed ad interim pre-arrest bail---Nothing was on record to the effect that the petitioner/surety was professional surety and stood surety for accused for any monetary benefit, but he stood surety on humanitarian grounds---Surety stated to be a student of M.A. had no source of income---Penalty imposed on petitioner appeared to be harsh which was liable to be reduced---Amount of penalty was reduced from Rs.12,500 to Rs.5000 which would meet the ends of justice in the circumstances.

M. Shamsher Iqbal Chughtai for Petitioner.

Ch. Muhammad Ashraf Mohandra, Dy.P.-G. for Respondents.

Date of hearing: 2nd April, 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 468 #

2010 Y L R 468

[Lahore]

Before M.A. Zafar, J

Syed RASHEED SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1010-B of 2008, decided on 10th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324, 353, 399, 401 & 186---Attempt to commit Qatl-i-amd, assault, criminal force, preparation to commit dacoity--Bail, grant of---No one was injured during the alleged occurrence, no crime empty was recovered from the spot, though allegations of cross-firing were levelled---Accused was in jail for the last more than eleven months and there was no likelihood of the conclusion of trial in near future due to non-availability of co-accused who was facing trial in the other Province---Early conclusion of the trial was a right of every accused who could not be allowed to languish in jail without trial---Accused was admitted to bail, in circumstances.

Syed Muhammad Ali Bukhari for Petitioner.

Abdul Rasheed Khan, Dy. P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 476 #

2010 Y L R 476

[Lahore]

Before Saghir Ahmad, J

Malik NOOR AHMAD---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION. RUKKANPUR, DISTRICT RAHIMYAR KHAN and another---Respondents

Writ Petition No.2918 of 2008, decided on 15th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Recovery of detenu from illegal custody of Police---Pursuant to order of the court, bailiff had recovered detenu from the illegal custody of the Police---Bailiff had stated in his report that the detenu was in handcuffs and that detenu told the bailiff, that he had been arrested by the Police one and a half months before and detained in Police Station---Bailiff had further reported that said detenu was kept on different places in different manners by the S.H.O. and other Police Officers---S.H.O. present in the court told that detenu's two brothers were involved in two criminal cases, which prima facie, had established that the detenu was detained illegally by the S.H.O. and other Police Officers who arrested him---District Police Officer was directed to register a criminal case against the S.H.O. and others concerned; and further to hold departmental inquiry, take departmental action and then to submit report before High Court through Deputy Registrar.

Shahzad Ashraf Mohandra for Petitioner.

Abdul Khaliq Khan Saddozai, A.A.-G. for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 480 #

2010 Y L R 480

[Lahore]

Before Muhammad Ahsan Bhoon and Muhammad Akram Qureshi, JJ

QAMAR ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.511, 512, 519, Criminal Revision No. 296 of 2004 and Murder Reference No.458 of 2004, heard on 3rd March, 2009.

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

----S. 302(b)/34---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---F.I. R. in the case was lodged promptly in which specific role of causing firearm injuries on the person of the deceased with kalashnikov was attributed to accused---Evidence furnished by a prosecution witness was corroborated by another prosecution witness who was an injured eye-witness of the occurrence---Said eye-witness had no relationship, either with the deceased or complainant---Evidence on record had shown that near the place of occurrence, said witness was working as a Cobbler to earn his livelihood when he fell victim of the attack---No reason existed, in circumstances to disbelieve presence of said witness at the place of occurrence---Mere non-recovery of his blood stained clothes would not be fatal to the prosecution case---In the present case no doubt prosecution witness was inimical towards accused persons, but his evidence was corroborated by an independent evidence of another prosecution witness---Medical evidence was further supportive piece of evidence being in line with the ocular account qua accused person---Recoveries would not be of any consequence in the case, however non-recovery of any weapon of offence could not take away the probative force of the ocular account furnished through credible ocular evidence---Story prepared by defence witnesses, did not appeal to reason and it appeared that they had come forward for the rescue of their relative i.e. accused persons---When specific plea was raised then the onus would lie on the shoulders of the initiator and in that case accused had failed to discharge the said onus---Prosecution in circumstances had proved its case against two accused persons beyond shadow of doubt---Conviction of accused under S.302(b)/34, P.P.C. was maintained---Evidence of complainant who was brother of deceased revealed that deceased was involved in different cases of heinous nature including murder, attempt to murder and Police encounter which fact would show that he was a man of questionable character---Sentence of death in circumstances being hard, same was converted into imprisonment for life.

Mushtaq Ahmad v. The State PLD 2004 S C 150 ref.

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

----S. 302(b)/34---Qatl-i-amd---Appreciation of evidence---No specific injury either on the body of the deceased or the prosecution witnesses was attributed to co-accused as per F.I.R.; and the improvement qua the attribution of role by the complainant was duly confronted---No recovery of any incriminating article was effected from co-accused during the course of investigation--- Prosecution, in circumstances had failed to prove its case against said co-accused beyond any shadow of doubt and his case was doubtful in nature---Grant of benefit of doubt in such circumstances, was a right of said co-accused and not a grace---Appeal of co-accused was allowed and impugned judgment was set aside to his extent and he was acquitted from the case.

----S.417---Penal Code (XLV of 1860), S.302(b)/34---Qatl-i-amd---Appeal against acquittal---Appeal against acquittal was neither admitted to regular hearing nor ever notice was issued in it to the acquitted accused person---Even otherwise, none amongst said acquitted five accused was attributed any role of causing injury, either on the person of the deceased or the prosecution witnesses---Role attributed to said acquitted accused was of abetment---Trial Court, in circumstances had rightly acquitted them from the case.

Sahibzada Farooq Ali Khan, Malik Muhammad Ramzan Khalid Joyia, Syed Shahbaz Ali Rizvi and Sh. Farooq Ahmad for Appellants. (in Criminal Appeals Nos.510, 511 and 512 of 2004).

Syed Ali Imran, Dy. P.-G. for the State.

Ch. Pervaiz Aftab for the Complainant.

Date of hearing: 3rd March, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 488 #

2010 Y L R 488

[Lahore]

Before M.A. Zafar, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.11891-B of 2008, decided on 22nd December, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(i), 337-F(iii), 337-L(ii), 342, 148 & 149---Shujjah, ghayr-jaifah, hurt and wrongful confinement---Ad interim pre-arrest bail, confirmation of---Case of cross-version and injuries were found on the persons of accused---Was yet to be decided during the trial after recording and evaluating the evidence as to which party was the aggressor---Delay of almost one month in registering the cross-version--All injuries having been attributed to accused persons, except injury attributed to one of accused persons on the person of injured prosecution witness causing fracture of his finger, were simple in nature---Ad interim bail was granted to all accused persons, except the said accused who had caused the injury---Bail application to the extent of accused who caused injury, was dismissed.

Mian Muhammad Ahmad Chachar for Petitioner.

Arif Karim Chaudhry, D.P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 507 #

2010 Y L R 507

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

M. ASIF ALI KHAN---Appellant

Versus

GHULAM SHABBIR---Respondent

R.F.A. No.352 and C.M. No.1-C of 2001, decided on 19th May, 2009.

Civil Procedure Code (V of 1908)---

---S.96 & O.XLI, R.1---Limitation Act (IX of 1908), Ss.5 & 12--First appeal---Limitation---Application for condonation of delay---On raising objection by the office that appeal was one day barred by limitation, appellant filed application for condonation of delay---Nothing was on record to show that appellant was intimated by copying agency about the completion of certified copies of impugned judgment and decree---Time spent by the appellant in obtaining copy of Trial Court, would constitute sufficient cause within meaning of S.5 of Limitation Act, 1908 and would cover even period lapsing between actual receipt of copy and filing of the same in the High Court---Appellant filed affidavit and explained reason preventing him from filing appeal within time and the same had not been refuted by a counter affidavit---Even otherwise first appeal should not be dismissed only on the ground of limitation---Appellate Court should have decided the same on merits---Even otherwise appeal filed by the appellant against the judgment and decree had already been admitted for regular hearing by High Court without deciding application for condonation of delay.

Mst. Shamim Akhtar v. Munawar Din and 2 others PLD 1993 Lah. 559; Abdul Karam v. Muhammad Ibrahim 1976 SCMR 79; Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan PLD 1968 Lah. 1205; Bashir Ahmad v. Inayat Ullah and another 1998 CLC 590; PLD 1995 Lahore 98, Iftikhar Ali v. S. Abdul Rashid and others 2003 SCMR 1560 and Mian Muhammad Sabir v. Malik Muhammad Sadiq through Legal Heirs and others PLD 2008 SC 577 ref.

Mazhar Kaleem Khan for Appellant.

Shoaib Khan Buzdar for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 509 #

2010 Y L R 509

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD IQBAL---Petitioner

Versus

RENT CONTROLLER/CIVIL JUDGE, 1ST CLASS, MULTAN and another---Respondents

Writ Petition No.7063 of 2008 decided on 4th May, 2009.

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

----S.13---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Second ejectment application was filed on dismissal of ejectment application and application under S.12(2), C.P.C. for want of proof/evidence---Petitioner filed application under S.11, C.P.C. contending that second application was hit by the principle of res judicata, which application was dismissed by the Rent Controller---Validity---Constitutional petition had been filed---Second application contained additional grounds of damaging the property in question-Law did not prohibit to file a second application---Additional grounds would give the entitlement to file second ejectment application---Constitutional petition was dismissed in circumstances.

Muhammad Shafi v. Haji Shaista Khan 2002 SCMR 480 ref.

Sajjad Hussain Tanga for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 512 #

2010 Y L R 512

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and M.A. Zafar, J

AMJAD ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3811/B of 2009, decided on 12th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.420, 467, 468, 471, 472, 475 & 109---Cheating forgery, using as genuine a forged document making or possessing counter-flit seal and counterfeiting device or mark---Cheating, forgery, using as genuine a forged document etc.---Bail, refusal of---Cheque recovered from accused, was a false cheque and same did not pertain to the account books of the party maintaining account with the Bank--Unused cheque of the same number was available in the cheque book of account holder---Offence with which accused had been charged, fell within the prohibitory clause of S.497, Cr.P.C. and the prosecution witnesses had fully implicated him in their statements under S.161, Cr.P.C.-No reason existed as to why the complainant would falsely involve accused and others---No good ground being available to release accused on bail, his bail application was dismissed.

Malik Ghulam Qasim for Petitioner.

Ahsan Masood for the Complainant.

M.M. Alam, D.P.-G. with Abdul Rasheed, S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 519 #

2010 Y L R 519

[Lahore]

Before Ali Akbar Qureshi, J

Mst. YASMIN---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, OKARA and another---Respondents

W.P. No.11661 of 2008, decided on 30th 4th 2009.

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

----S.5, Sched. & S 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Petitioner was aggrieved of the judgment and decree passed by the Appellate Court, whereby the decree passed by the Trial Court for Rs. 1,90,000 in lieu of dowry articles was modified; and the petitioner was found entitled to receive an amount of RS.1,25,000---Both the courts had concurrently concluded, that the dowry articles were given to the petitioner at the time of marriage and were lying with the petitioner---Trial Court after evaluating evidence led by the petitioner, finally decreed suit as prayed for by the petitioner, whereas the Appellate Court had modified the decree, but had not given any cogent reasoning---Appellate Court, in circumstances, had not exercised the jurisdiction vested in it---Present was not the case of depreciation of the dowry articles as the marriage between the parties to the suit remained intact for 5/6 days only---Suit having been filed in February, 2007, whereas the marriage was solemnized on 14-1-2007---Keeping in view the natural depreciation, the petitioner was held entitled to recover the dowry articles in lieu of Rs.1,60,000.

M. Kabeer Khan for Petitioner.

Respondent No.2 ex parte.

YLR 2010 LAHORE HIGH COURT LAHORE 520 #

2010 Y L R 520

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

MUHAMMAD ALI---Petitioner

Versus

JUDGE FAMILY COURT, DEPALPUR and 2 others---Respondents

Writ Petition No. 14799 of 2009, decided on 23rd July, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance allowance--Enhancement of allowance---Validity---Defendant (petitioner) contended that Trial Court had awarded maintenance to the plaintiff (wife) which was excessive and the period of the same was too long---Defendant had failed to prove that he had been paying any maintenance to the plaintiff---Mother of the plaintiff had been tending to all her needs without any financial assistance from the defendant---Enhancement of maintenance from Rs.1,500 to Rs.5,000 was justified in prevailing double digit inflation---Constitutional petition was dismissed by High Court in limine.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Age of majority of minor girl--- Marriage---Effect---Suit filed by the plaintiff for maintenance allowance was decreed by Trial Court---Appellate Court on appeal enhanced the maintenance from Rs.1,500 to Rs.5,000---Father asserted that he was paying maintenance to minor, daughter till she attained the age of majority and that now being a major she was not entitled to any further maintenance from him and that she had not accepted the marriage proposal suggested by him, thus, she disentitled herself to any maintenance---Validity---Father had neglected the plaintiff (daughter) and she had been reared and nurtured by her mother---Defendant could not waltz into life of his daughter and impose his will on her---Both parties to a marriage should be amenable to tying the marital knot---Girl could not be compelled into a marriage against her will---Father was bound to provide maintenance to his daughter till she got married---Constitutional petition was dismissed by High Court in limine.

----S. 5 & Sched.---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Res judicata, principle of---Applicability---Principle of res judicata is not applicable in matters of maintenance for progeny.

Ch. Tanvir Ahmed Hanjra for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 526 #

2010 Y L R 526

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Ijaz Ahmed Chaudhry, J

Kh. ZAHID AHMAD and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9216/B of 2009, decided on 20th August, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.498---Penal Code (XLV of 1860), Ss.406/109---Criminal breach of trust---Bail before arrest, refusal of---Names of accused persons had been mentioned in the F.I.R. by the complainant/manager of the Bank---Bail before arrest was meant to protect the innocent citizens, if they were found to have been involved with mala fide intention and ulterior motives---Complainant was a Bank Manager, who had no personal vendetta or grudge to falsely implicate accused persons in the case---Case was not fit for grant of bail before arrest as the recovery had yet to be effected.

M.A. Malik and Sittar Sahil for Petitioners.

Ibraz Masood Jan, Ahsan Masood and Yasir Bhatti for the Complainant.

Ch. Jamshaid Hussain, Deputy Prosecutor-General for the State with Muhammad Akram, S.-I. with Record.

YLR 2010 LAHORE HIGH COURT LAHORE 538 #

2010 Y L R 538

[Lahore]

Before Muhammad Ahsan Bhoon and M.A. Zafar, JJ

MUHAMMAD IQBAL SOHAIL---Appellant

Versus

ADDITIONAL RENT CONTROLLER---Respondent

I.C.A. No.121 of 2007, decided on 27th November, 2008.

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

----Ss.17(2)(i)(8) & 24---Law Reforms Ordinance (XII of 1972), S.3---Ejectment of tenant on ground of default in payment of rent---Tentative rent order---Tenant in pursuance of ejectment order had vacated premises in question, but landlord filed Intra-Court appeal on the ground that certain amount of rent was due against tenant and that he be directed to pay the same to landlord---Validity---Request made by the landlord could not be allowed---If some rent was due towards tenant, landlord had a remedy of filing a civil suit for recovery of the same---Moreover in view of the bar contained in S.3(2) of Law Reforms Ordinance, 1972, appeal was not competent as remedy of appeal under S.24 of Cantonments Rent Restriction Act, 1963 was provided---Intro-Court appeal being misconceived, was dismissed.

Petitioner in person.

YLR 2010 LAHORE HIGH COURT LAHORE 540 #

2010 Y L R 540

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

MUHAMMAD TAHIR SHERAZI--- Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and others---Respondents

Writ Petitions Nos.1811 of 2008 and 476 of 2009, heard on 13th July 2009.

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

----S.5, Sched., Ss.10(4) & 14---Constitution of Pakistan (1973), Art.199--Constitutional petition---Suit for dissolution of marriage, recovery of dowry articles and maintenance---Suit to the extent of dissolution of marriage was decreed under S.10(4) of West Pakistan Family Courts Act, 1964, prior to framing of issues on recovery of dowry articles and maintenance---Plaintiff was not given any dowry articles as per her own admission, but she claimed that the dowry articles were bought after the parties returned from abroad where she proceeded with her husband---Receipts for purchase of dowry articles presented by the plaintiff were of the dates prior to her marriage---Evidence of the plaintiff in that respect had too many loopholes in it to make her version credible---Family Court, however, had overlooked very cogent points and passed the judgment and decree without reading the evidence---Contention of defendant qua the quantum of maintenance, was totally without merits, in view of fact that he was working in Dubai and was fairly well-off---High Court agreed to the observations of the courts below qua the quantum of maintenance, however order to the extent of maintenance allowance for the minor, was modified making it with an enhancement at 10% per annum---Except for said modification in the maintenance allowance awarded to the minor, both the petitions being without merits, were dismissed.

Ms. Amber Pervez for Petitioner.

Sheikh Muhammad Ilyas for Respondent.

Date of hearing 13th July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 546 #

2010 Y L R 546

[Lahore]

Before Ch. Iftikhar Hussain, J

AFTAB AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3154-B of 2009 decided on 14th October 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.420/468/471---Cheating, forgery and using as genuine a forged document---Bail, grant of---Accused, as per F.I.R. had forged a receipt, showing payment of Rs.7,50,000 to the complainant in respect of transaction of land and attached the same with the suit for specific performance of the contract filed by him before Civil Court---Complainant had admitted the annexation of the alleged forged receipt with the suit pending adjudication before the Civil Court---Question regarding the validity of the said receipt would be determined by Civil Court in due course of time and till then case against accused needed further probe as envisaged by S.497(2), Cr.P.C.--- Offences under Ss.420 and 471 P.P.C. were bailable, whereas offence under S.468 P.P.C. was not hit by the prohibition of S.497(1), Cr.P.C.---Accused was behind the bars for over four months---Pendency of number of criminal cases against the accused was not a valid ground to refuse bail to him, if he was otherwise found entitled to concession of bail---Accused was admitted to bail in circumstances.

The State v. Muhammad Jawwad Ghani 2004 PCr.LJ 1610 ref.

Ch. Khalid Mahmood Basra for. Petitioner.

Ishfaq Ahmad Malik, Dy. P.-G. for the Respondent No.1.

Muhammad Sarwar with Ch. Abdul Sattar Goraya for the Complainant.

Iftikhar Ahmad, S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 550 #

2010 Y L R 550

[Lahore]

Before Muhammad Akram Qureshi, J

SHER ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1230 of 2005 and Criminal Revision No. 620 of 2005, decided on 3rd April, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-i-amd---Appreciation of evidence---Delay of 28 hours in lodging the F.I.R. remained unexplained during the investigation and even trial---Deceased, who was allegedly taken front his house, did not return home during night, but the complainant did not feel worry from his absence and did not make efforts for his recovery or approached accused persons to know the whereabouts of the deceased---Conduct of the complainant and prosecution witness was indicative of the fact that deceased was not taken from his house in their presence; and the story of enticing away the deceased from his house was concocted later on---Prosecution case was that accused persons took away the deceased on the pretext that they had to settle the accounts with him---Prosecution witnesses could not explain the nature of money dispute between the deceased and accused persons---Allegations against accused persons being vague and doubtful in nature, a doubtful event could not be made basis for the conviction of accused persons---Evidence furnished by other prosecution witnesses, was also a fabricated piece of evidence---Story as narrated by said prosecution witnesses was belied by the medical evidence---Said prosecution witnesses stated that incident had taken place at night time, but did not care to impart said information, either to complainant or to the Police---Silence of prosecution witnesses for such a pretty long time indicated that they were not the truthful witnesses, and had cooked up the story after the discovery of dead body and thus their evidence was fabricated---Said witnesses were not worthy of reliance---Dead body of the deceased was discovered by the complainant and it was not found at the pointation of accused persons---Detailed analysis of the post-mortem report would indicate that the doctor had not advanced reasons as to how he concluded that deceased died due to asphyxia---No reliance, in circumstances, could be placed on the post-mortem examination report---Prosecution, in circumstances, had failed to set up link and chain of the events leading towards the guilt of accused Persons---Conviction and sentence awarded to accused persons were set aside in circumstances.

Anwar v The State 1975 PCr.LJ 750 rel.

Haji Khalid Rehman and Mohsin Hussain Sherazi for Appellants.

Ch. Fayyaz Ahmad, for the State.

Khalid Pervaiz Warraich for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 556 #

2010 Y L R 556

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

MUHAMMAD ISHFAQ QURESHI---Petitioner

Versus

Mst. SURAYYA BIBI and others---Respondents

Writ Petition No. 888 of 2008, decided on 25th March, 2009.

Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Custody of minor---Out of two minors, one male and other female, custody of female minor aged 10 years was given to the petitioner/father by the Trial Court, however on filing appeal against the judgment of the Trial Court by the respondent/mother, judgment of the Trial Court was set aside and custody of minor girl was handed over to the respondent mother which was challenged by petitioner in constitutional petition---Grave injustice had been rendered to the minors as they had suffered due to break-up of their home and were being deprived of their love for each other---Minor boy missed his sister---Respondent mother had remarried and in her new family there were too many `Namehrams' in the life of the minor girl, step father, his sons and his brothers, etc.---Minor girl was at an extremely vulnerable stage of her life---When certain matters were prohibited under Islam, they needed to be taken seriously---Welfare of the minor though was the predominant consideration, both the injunctions of Islam as well as the welfare of the minor, must be given due consideration---For the minor girl to be surrounded by males in the non prohibitory decree, was not in her welfare---Minor girl would never get the love, affection and protection from her step father and step-brothers as she would have from her real father and brother---Direction was issued that for six weeks both the minors be given enough time to establish a bond---Order of the Trial Court was upheld and modified it to the extent of directions that the custody of minor girl be handed over to the petitioner/father after lapse of a six weeks period---Respondent was to be allowed visitation in terms that both the minors would spend every first and third short weekend of the month from Friday to Saturday on a regular basis.

Muhammad Shabbir Marth for Petitioner.

Malik Jameel Akhtar for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 560 #

2010 Y L R 560

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDUL MAJEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3157-B of 2009, decided on 13th October, 2009.

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

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11---Abduction and Zina-bil Jabr---Bail, grant of---F.I.R. was lodged after a delay of about nine months---Abductee in the F.I.R. had alleged her forcible abduction and commission of Zina-bil-jabr by the accused, but in her suit for dissolution of marriage filed against him, she had herself admitted to have entered into valid Nikah with him with her free consent, which had been decreed ex parse---Both these situations were irreconcilable and liability of accused for the alleged offence was a matter of further inquiry covered under section 497(2), Cr.P.C---Benefit of such doubt had to be given to accused even at bail stage---Accused was admitted to bail in circumstances.

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

----S.497---Bail---Benefit of doubt---Principle---Benefit of every doubt, even at bail stage, is given to accused.

Mian Qamar ud Din Safeer for Petitioner.

Ishfaq Ahmad Malik, D.P.-G. for Respondent No.1.

Muhammad Saleem, S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 569 #

2010 Y L R 569

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

Mst. SHABINA NAZ---Petitioner

Versus

Malik ANJUM ZAHOOR and others---Respondents

Writ Petition No.1619 of 2004, heard on 4th July, 2009.

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 maintenance allowance---Both suits for recovery of dowry amount and recovery of maintenance allowance were consolidated and were partially decreed in favour of the plaintiff---Family Court had accepted the list of dowry articles presented by the defendant and list presented by the plaintiff was not accepted---Plaintiff was allowed maintenance allowance as Rs.2000 per month for the period of Iddat---Both parties aggrieved of order of the Family Court, filed appeals---Plaintiff claimed that allowing dowry list as presented by the defendant was not correct---Defendant had appealed against the quantum of maintenance allowance granted in favour of the plaintiff for Iddat period---Both appeals were dismissed by the Appellate Court---Validity---Counsel for the plaintiff had claimed that she was the only daughter of her parents and dowry articles were of great value, which parents of the plaintiff could well afford---Defendant was the sole witness and his evidence was not corroborated by any other witness---Plaintiff appeared as her witness and her father also appeared as witness who corroborated the plaintiff---Receipts presented by the defendant proved to be fabricated---Receipt presented by the plaintiff about dowry articles proved to be correct, but Courts below had not paid any attention to such fact---Fact that list presented by the plaintiff was not objected to at the time of its exhibition, same could not be thrown out and list as exhibited by the defendant be accepted in its stead---Misreading and non-reading of the evidence placed before the Courts, below had taken place and an injustice had been rendered to the plaintiff---Interference of High Court was called for and High Court set aside both the impugned judgments and decrees of the Courts below and allowed the plaintiff to recover her dowry articles as per list presented by her or Rs.1,93,030 in lieu thereof by filing an execution petition in the appropriate Court.

Raja Amir Akbar for Petitioner.

Qaisar Mehmood Awan for Respondent.

Date of hearing: 14th July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 573 #

2010 Y L R 573

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD TUFAIL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous 3912/B of 2009, decided on 14th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 365-B/376---Kidnapping abducting or inducing woman to campell for marriage and rape---Pre-arrest bail, grant of---Observation made by Sessions Court in its judgment to the effect that the allegedly abducted daughter of the complainant had eloped with some other person and contracted valid marriage with him, had directly gone to the root of the allegation made against the accused in the F.I.R---Said circumstance had sufficiently reflected on the mala fide intention of the complainant for involvement of the accused in the case---Case against accused, thus, needed further inquiry into his guilt within the meaning of section 497(2) Cr.P.C.---Alleged abductee had appeared not only before the Sessions Court but also before the Magistrate and got recorded her statement and accused, therefore, was not required by police for any other purpose, who had joined the investigation---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Mahr Haq Nawaz Humanyoon Jatyal for Petitioner.

Ishfaq Ahmad Malik, Dy. P.-G. for Respondent No.1.

Muhammad Saleem for Respondent No.2.

Sh. Jamshed Hayat for the Complainant.

Din Muhammad, Inspector with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 580 #

2010 Y L R 580

[Lahore]

Before Ali Akbar Qureshi, J

PRINCIPAL ALLAMA IQBAL COLLEGE---Petitioner

Versus

SECRETARY, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA---Respondent

Writ Petition No.8699 of 2008, decided on 18th July, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Educational Institution---Failure to pay amount demanded by Education Board---Since the examination was going to be held after two days Principal of the college gave undertaking before the Board to pay amount as demanded by the Board and in case of non-payment, the result of the students was to be withheld---Principal, instead of resolving the matter and to save the career of the students, opted to file constitutional petition simply to wriggle out of the undertaking admittedly given---Students and the Board could not be held liable for any lapse or fault, but in fact it was the Principal which did not discharge his onerous duty and responsibility---Amount due against as also undertaken by the Principal of the college, would be paid by the Principal of the College and not by the students---If the amount in question as undertook to be paid was not paid, same would be deducted from the Endowment Fund of the principal, however, result/result cards of the students would not be withheld by the Board in any case.

Saleem Khan Chichi for Petitioner.

Sh. Shahid Waheed for Respondent.

Mian Ghulam Qadir, Superintendent Finance Secondary Board, Gujranwala.

YLR 2010 LAHORE HIGH COURT LAHORE 582 #

2010 Y L R 582

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

SAEDAR IQBAL---Petitioner

Versus

TAHIRA PARVEEN and others---Respondents

Writ Petition No. 1679 of 2008, decided on 14 May, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of dower, dowry articles and maintenance allowance---Framing of additional issue---Plaintiff filed suit for recovery of dower, dowry articles and maintenance for Iddat period as well as past and future maintenance of the minor---Defendant also filed suit for restitution of conjugal rights---Both suits were consolidated---Trial Court decreed the suit of the plaintiff but did not award the jewelry given by parents of the plaintiff at the time of Nikah and dismissed the suit for restitution of conjugal rights---Both parties preferred an appeal against the judgment and decree of the Trial Court---Both appeals were consolidated---Appellate Court dismissed both consolidated appeals and upheld the decision of the Trial Court---Contention of the defendant was that both the courts below had neither decided the matter of subsistence of the marriage of the parties, nor any issue qua the matter of the divorce was framed by the Trial Court---Validity---Held, defendant had the choice to file an application for framing of any specific issue which he had failed to do---Findings of both courts below being right on the mark, High Court did not interfere in concurrent findings of the courts below---Constitutional petition was dismissed.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Islamic law---Divorce Talaq-e-Bayan---Validity---Defendant alleged that he did a mistake to pronounce Talaq to the plaintiff and he had revoked the pronouncement of the divorce---Defendant claimed that plaintiff was still his legally wedded wife---Validity---Talaq-e-Bayan involves a definite dissolution of marriage without reservation of the power of retraction which takes effect immediately after the formulae was pronounced under the circumstances when there has been no co-habitation---In the present case, intention of divorce was conveyed unambiguously and thereafter there had been no co-habitation---Defendant had conveyed the intention of Talaq-a-Bayan which was irrevocable---High Court declined to interfere in constitutional petition---Constitutional petition was dismissed.

----S. 7(1)---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Divorce---Revocation of---Cohabitation---Scope---Defendant presented Fatwa on the back of the affidavit and claimed that divorce had not taken effect---Fatwa on the back of the affidavit stated that defendant had to cohabit during the Iddat period for the Talaq to be considered same ineffective---Although the notice of revocation was served within the Iddat period the fact that the parties did not retire (Khilwat-us-Sahih), had made the divorce effective---It was mandatory that after revocation of divorce there should be co-habitation, in absence of which and after expiry of ninety days period after pronouncement of divorce, it might be Bayan, Ahsan or Hassan, the divorce would become effective---Plaintiff and defendant had admitted that there had been no cohabitation---Defendant had pronounced divorce three times and had forfeited his right to claim her as his lawfully wedded wife---Any affidavit claiming that the three time pronouncement was a mistake was a bit late in the day for rectifying his mistake---High Court declined interference in constitutional petition, which was dismissed.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of dower and dowry articles---Plaintiff filed suit for recovery of dower, dowry articles and maintenance of minor---Trial Court decreed the suit of the plaintiff but did not award the jewelry given by the parents of the plaintiff at the time of Nikah---No uncertainty or ambiguity existed in writing of gold ornaments in the Nikahnama and it was categorically and in no uncertain terms written that the gold ornaments weighing ten Tolas were deferred dower---Defendant's contention was that the father of the plaintiff had taken Rs.2,45,000 from him at the time of wedding and presented a list of his own dowry articles despite the list of the plaintiff---Entire cross-examination of defendant was full of dichotomies which made his credibility doubtful---No misreading or non-reading of evidence had been committed---Both the Courts below had given due consideration to all the evidence, oral as well as documentary---High Court declined to interfere in constitutional petition---Constitutional petition was dismissed.

Malik Samar Abbas Ze Waqar Hiader for Petitioner.

Raja Ikram Ameen Minhas for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 589 #

2010 Y L R 589

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SALMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3219-B of 2009, decided on 13th October 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)--- Penal Code (XLV of 1860) Ss. 420/477/201/109---Cheating, fraudulent cancellation, destruction of will etc. causing disappearance of evidence and abetment---Bail, grant of---Accused, a stamp vendor, had allegedly issued a stamp paper on which an agreement to sell was written, but later on he using his position with dishonest and fraudulent intention destroyed the same from the official record---Another F.I.R. registered under Ss. 420, 452, 468 and 471, P.P.C. with the same Police Station regarding the same allegedly forged agreement to sell, had already stood cancelled by the police--Both the alleged vendors had challenged the legitimacy or genuineness of the agreement to sell in question in the Civil Court through a declaratory suit and till the delivery of the verdict by the Civil Court, case against accused warranted further probe into his guilt as contemplated under S.497(2), Cr. P. C.---None of the offences alleged against the accused was hit by the prohibition contained in S.497(1), Cr.P.C.---Accused was allowed bail in circumstances.

Qazi Khalid Pervez for Petitioner.

Ishfaq Ahmad Malik, Dy. P.-G. for the State.

Altaf Ibrahim Qureshi for the Complainant.

Shahid Anwar, S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 595 #

2010 Y L R 595

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD MAJID HANIF---Petitioner

Versus

ISLAMIA UNIVERSITY BAHAWALPUR, through Vice-Chancellor and others---Respondents

Writ Petitions Nos.2615 of 2006/BWP, 1693, 1716, 1745 and 1948 of 2007/BWP, decided on 6th December 2007.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Educational institution---Entitlement of institutions, grant of accreditation---Petitioners who got admission in B.Sc. (Electrical Engineering) course in the University in the year 1999, after studying for full four years, became successful in the examination held by said University---After passing said examination, the petitioners applied with different organizations/institutions to obtain service/job, but they could not get service as Pakistan Engineering Council had not accorded accreditation to the University from where the petitioners had passed the examination---Validity---So many other institutions were granted accreditation by Pakistan Engineering Council with retrospective effect, but the University of the petitioners was not granted accreditation, without any ground or reason for declining the same---University concerned which qualified the required and prescribed requirements necessary for the grant of accreditation to it had applied for grant of accreditation from 1999 and had fulfilled all its obligations---Grant of accreditation for one year (intake of Batch of 2003 only) by Pakistan Engineering Council, had itself displayed that the institution/college of the petitioners was qualifying the required and prescribed requirements necessary for the grant of accreditation---Petitioners, who joined institution in 1999 were deprived of the benefit to which they were entitled---Due to such flaw petitioners had been refused jobs in many organizations---High Court, in the interest of justice directed the Engineering Council to allow accreditation to the University from where the petitioners had passed the examination specifically for the years 1999 to 2003---Petitions were allowed and Pakistan Engineering Council was directed to grant and issue accreditation letter/certificate to the University and to issue registration certificate to the University.

Muhammad Ozair Chughtai for Petitioner.

Ch. Shafi Muhammad Tariq, A.A.-G. for Respondent.

Muhammad Amjad, Acting Principal, University College of Engineering and Technology, Islamia University, Bahawalpur.

YLR 2010 LAHORE HIGH COURT LAHORE 599 #

2010 Y L R 599

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

SHAHRAY KHAN---Petitioner

Versus

Mst. AZIZ FATIMAH and others---Respondents

Writ Petition No.1336 of 2008, heard on 3rd June 2009.

(a) Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of guardian---Respondent brought a petition under S.25 of Guardians and Wards Act, 1890 with the assertion that she was married to the, petitioner and out of the wed-lock minor daughter was born---Guardian application was allowed and appeal filed by the petitioner was dismissed by Appellate Court---Contention of the petitioner was that respondent intended to shift the minor to her brother's home in another city where the young children of her brother had been residing who were strangers to the minor girl---Petitioner further contended that respondent had neither proper residence to live nor proper source of income---Young girl aged 10/12 years could not be left at the mercy of her cousins---Petitioner having contracted second marriage did not disentitle him to the custody of the minor---Minor seemed perfectly happy, healthy, well-adjusted, confident and emotionally stable and by handing her custody over to her mother would be subject to the risk of traumatizing a child---Both the Trial Court and the Appellate Court have failed to exercise the parental jurisdiction vested in them, High Court accepted the constitutional petition by setting aside both judgments of the courts below---Constitutional petition was allowed.

PLD 1987 Lah. 383 and 1994 MLD 796 ref.

2000 YLR 3046 and PLD 1992 Lah. 1441 rel.

(b) Guardians and Wards Act (VIII of 1890)---

----Ss. 17(3) & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of guardian---Wishes of the minor---Minor had shown her reservation towards her real mother because minor had been neglected by her and there had been no interaction between the mother and minor---Mother and maternal side of the family were virtually strangers to the minor---Minor wished to remain with her father and his family where she was studying properly---Both Trial Court and the Appellate Court had failed to exercise the parental jurisdiction vested in them in its true sense as they had not taken into consideration the wishes of the minor in terms of S.17(3) of Guardians and Wards Act, 1890---High Court accepted constitutional petition and dismissed judgment and decree of the subordinate courts below---Constitutional petition was allowed.

Raja Muhammad Hameed and Raja Muhammad Iqbal for Petitioner.

Tariq Mehmood Butt for Respondent No 1.

Date of hearing: 3rd June 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 607 #

2010 Y L R 607

[Lahore]

Before Hasnat Ahmad Khan, J

TAHIR ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5114-B of 2009, decided on 28th May, 2009.

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

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---Circumstances and the documents relied upon by accused had apparently established that complainant due to the marriage of his daughter with the accused had nursed a grudge of highest degree against the accused, which was reflected from the successive registration of cases by the complainant against him---Contents of F.I.R. were, prima facie, belied by the Investigating Officer---Prosecution story that the deceased was dragged into the house of the complainant was found to be false---Case against accused, thus, called for further inquiry within the meaning of section 497(2), Cr.P.C. and the defence plea would be requiring due consideration of Trial Court at the relevant time; however, defence plea could be considered for the purpose of grant or otherwise of bail---Accused was allowed bail in circumstances.

Mitho v. The State 1978 SCMR 231; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Muhammad Siddique v. The State PLD 1994 Lah. 129; Amir v. The State PLD 1972 SC 277 and Shakeel Ahmad v. The State 1999 MLD 679 ref.

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

----S.497---Penal Code (XLV of 1860), S.302/34--- Qatl-i-amd--- Bail--- Defence plea---Principle---Defence plea, if any, can be considered for the purpose of grant or otherwise of bail.

Muhammad Siddique v. The State PLD 1994 Lah. 129 ref.

Syed Hassam Qadir Shah for Petitioner.

Muhammad Adeel Aqil Mirza, Dy. P.-G. for Respondent with Zafar Sial, S.-I.

Kamran Masood Mirza for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 616 #

2010 Y L R 616

[Lahore]

Before Syed Asghar Haider, J

ABDUL SATTAR and another---Petitioners

Versus

Mian MUHAMMAD ATTIQUE and another---Respondents

Civil Revision No.30 of 2008, decided on 30th January, 2009.

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

----Ss.6 & 13---Suit for pre-emption--Making of Talbs---Suit was concurrently dismissed by the Trial Court and Appellate Court mainly on the ground that Talb-i-Muwathibat was not duly performed by the plaintiffs---Question of performance of Talb-i-Muwathibat was discussed in length by both the courts below and concurrently concluded that the requirements for performance of Talb had not been fulfilled---Admittedly said demand was not made in "Majlis "---Law embodied physical presence of informant and two witnesses together and said important ingredient was missing in the case as the plaintiffs were informed through telephone and they received information but not in presence of two truthful witnesses---Talb-i-Muwathibat, in circumstances having not been duly performed, concurrent findings of two courts below in that regard were unexceptionable---In absence of any misreading, non-reading of evidence or material illegality, concurrent findings of two courts below could not be interfered by High Court.

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

----S.115---Revisional jurisdiction of High Court---Scope---High Court under S.115, C.P.C. was possessed of power to call for record of any case which had been decided by a court subordinate to it; and if it appeared that the subordinate court had exercised jurisdiction not vested in it by law or had failed to exercise jurisdiction vested in it; and had acted with material irregularity, High Court was empowered to rectify and correct any error of law, fact or jurisdiction without requiring other party to file cross-objection.

----Art.95---Power-of-attorney, execution and effectiveness of---Major discrepancies existed in execution of General Power-of-Attorney which executed in United Kingdom without observing the legal or codal formalities of Municipal Law practised there---Said power of attorney had not been endorsed properly nor was signed by the court or Vice Counsel as required under Art.95 of Qanun-e-Shahadat, 1984---Such power of attorney was legally ineffective.

Mian Israr ul Haq for Petitioners.

S.M. Masud for Respondents.

Date of hearing: 4th December 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 619 #

2010 Y L R 619

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

ROMAN ASGHAR---Petitioner

Versus

Mst. SAMINA YASMIN and another---Respondents

Writ Petition No.865 of 2009, decided on 8th May, 2009.

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

----S. 5, Sched. & S. 7(3)(4)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Plaintiff filed a suit for dissolution of marriage, recovery of dower amount, maintenance and dowry articles in the Trial Court which was pending adjudication---Defendant filed an application to the Trial Court for recalling of an interim order whereunder fake documents were exhibited in documentary evidence in his absence---Trial Court dismissed application of the defendant for recalling of interim order---Contention of the defendant was that the Trial Court had not adopted the proper procedure for recording the documentary evidence and in his absence fake documents had been exhibited which were not mentioned in the list of documents/reliance attached to the plaint and the provisions of S.7(3)(4) of the West Pakistan Family Courts Act, 1964 had not been adhered to---Validity---Defendant should have objected to documentary evidence at the time of cross-examination of the plaintiff but such objection was not made at that time which was negligence on part of the defendant to convert and obstruct the course of justice--Record revealed that the plaintiff had mentioned the documents to be exhibited in her list of documents and had placed reliance on the same---Even otherwise, plaintiff had the right under S.7(2) of the Family Courts Act, 1964 to put the same on file after permission of the court---Family Court was bound to allow what was in the interest of justice and should have exercised its own powers to prevent the course of justice from being deflected from the path that led to fair and just decision---High Court declined to interfere in constitutional petition---Constitutional petition was dismissed in limine.

Chaudhry Rizwan Azar Gondal for Petitioner.

2010 Y L R 643

[Lahore]

Before Tariq Javaid, J

NIDA-E-MILLAT, CITIZEN COMMUNITY BOARD, MULTAN through Chairman---Petitioner

Versus

DIRECTOR, ANTI-CORRUPTION ESTABLISHMENT, MULTAN REGION, MULTAN and 8 others---Respondents

Writ Petition No. 8650-B of 2009, decided on 1st December, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.409---Corruption and criminal breach of trust by public servant---Constitutional petition---Quashing of F.I.R.---Petitioner seeking quashing of F.I.R. had contended that Community Board constituted under S.98 of the Punjab Local Government Ordinance, 2001, was a juristic person and the members and functionaries of the Board, did not fall within the definition of public servant'---Contention of the petitioner was that process of investigation initiated against it under the Anti-Corruption Laws by the department was without jurisdiction, ultra vires of law---Petitioner had prayed for quashment of F.I.R. registered against them by the Anti-Corruption Establishment---Validity---Intention of the legislature appeared to be that if the funds were provided by the government exchequer for use of public purposes, the persons associated with discharging of their functions by using the public funds, were deemed to bepublic servants', though they could not be government employees or receiving their own salaries/remuneration from the government---Contention that the functionaries of the Board were not `public servants' and their cases could not be investigated by Director Anti-Corruption, Department, was of no avail as amount being spent by the functionaries of the Board was out of public funds and the same were supposed to be spent for public purposes---If said amount was misappropriated, then it could not be said that the Board could not be prosecuted under the Anti-Corruption Laws---Constitutional petition having not been filed by functionaries of the Board, but having been filed on behalf of the Board, relief to the functionaries of the Board could not be granted in absence of any proper petition on their behalf.

AQA S. Asghar Hussain v. State 1981 SCMR 1112 ref.

Muhammad Suleman Bhatti for Petitioner.

Mubashar Latif Gill, A.A.-G. along with Muhammad Azam Arshad, Assistant Director, Audit, Multan, Hassan Roza, Circle Officer, A.C.E., Multan, Muhammad Afzal, E.D.O. (CD), Khanewal and Mehr Allah Ditta, District Officer, Water Management, Khanewal for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 657 #

2010 Y L R 657

[Lahore]

Before Muhammad Ahsan Bhoon and M.A. Zafar, JJ

GHAZANFAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.470 of 2003, and Murder Reference No.778 of 2004, decided on 20th November, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 397/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Criminal Procedure Code (V of 1898), S.410---Qatl-i-amd, robbery and haraba---Appeal before High Court---Maintainability- Since accused was also charged and tried under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, notwithstanding the fact that he was acquitted from the charge under said Ordinance, but convicted only under Penal Code, his appeal would lie to the Federal Shariat Court; and not before the High Court---Reference for confirmation of death sentence would also be competent before Federal Shariat Court---Appeal filed by appellant/accused being not maintainable before High Court, along with relevant record was directed to be returned to the counsel for the appellant for its presentation before the competent forum.

Muhammad Abbas v. The State 1984 SCMI 129 and Federal Shariat Court decision in Faza' Din's case PLD 1983 FSC 33 rel.

Nemo far Appellant.

Sh. Muhammad Munir, Dy. P.-G. for the State.

Date of hearing: 20th November, 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 664 #

2010 Y L R 664

[Lahore]

Before Hafiz Tariq Nasim, J

MUHAMMAD AFZAL and another---Petitioners

Versus

GOVERNMENT OF PUNJAB, LAHORE through Chief Secretary

and 2 others---Respondents

Writ Petition No.11464 of 2008, decided on 31st July, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Controversy between the parties revolved around some factual controversies, which could not be resolved through the course of Constitutional jurisdiction---On the one hand the petitioners were making allegations against respondent while on the other hand, the respondent was also levelling serious allegations against the petitioners---Provincial Government had categorically stated that government functionaries were not concerned with the dispute along with the petitioners and respondent---Jurisdiction of High Court under Art.199 of the Constitution could not be exercised, in circumstances.

Petitioner No.1 in person.

Yawar Ali Khan, Addl. A.-G. for Respondents Nos. 1 and 2.

Ms. Bushra Inayatullah, for the Respondent No.3.

YLR 2010 LAHORE HIGH COURT LAHORE 668 #

2010 Y L R 668

[Lahore]

Before M.A. Zafar, J

JAHANGIR and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1160/B of 2008, decided on 26th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.356/376/511---Assault or Criminal force in attempt to commit theft of property and rape---Bail, grant of---Co-accused was stated to be less than 16 years of age---Delay of 12 days in lodging F.I.R. ---No medical evidence was available qua the injuries allegedly caused to the complainant---Zina was not committed by any of accused persons with the wife of the complainant---By adding S.511, P.P.C. in the F. I. R, it was crystal clear that only an attempt was made to commit the crime---Allegation of attempt to commit the Zina by accused persons, required due assessment and evaluation which could be only done during the trial---Involvement of accused persons on account of some ulterior motive could not be ruled out---Accused were admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioners.

Nadir Manzoor Duggal, Dy. P.-G. with Shaukat, A.S.-I. for Respondents.

Tariq Zulfiqar Ahmad Chaudhary for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 672 #

2010 Y L R 672

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHARIF---Petitioner

Versus

TEHSIL COUNCIL KAHROOR PAKA, DISTRICT LODHRAN through Nazim

and another---Respondents

Writ Petition No.6049 of 2004, decided on 3rd March 2005.

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

----Ss. 57 & 67---Constitution of Pakistan (1973), Art.199---Constitutional petition---Declaring a citizen to be a police tout---Functions and powers of Tehsil Nazim and Tehsil Council---Petitioner had questioned resolution passed by Tehsil Council whereby the petitioner had been declared a police tout and it had been recommended that his entry in Police Station city be banned---Validity---Section 67 of the Punjab Local Government Ordinance, 2001 had provided the functions and powers of the Tehsil Council, while S.57 of the said Ordinance, had provided for the functions of a Tehsil Nazim---No power was vested in the Tehsil Council or the Tehsil Nazim to declare a citizen to be a police tout---Impugned resolution was set aside being without lawful authority and void.

Miss Moons Safdar for Petitioner.

Malik Qasim Khan Joya for Respondent No.1.

M. Fayyaz, S.-I. for Respondent No.2.

Date of hearing. 3rd March 2005.

YLR 2010 LAHORE HIGH COURT LAHORE 674 #

2010 Y L R 674

[Lahore]

Before Ijaz ul Ahsan, J

NAZIR AHMED and another---Petitioners

Versus

DIN MUHAMMAD and 2 others---Respondents

C.R. No.1698 of 2009, decided on 23rd November, 2009.

Specific Relief Act (I of 1877)---

----S. 8---Recovery of possession---Encroachment---Effect---Plaintiffs filed suit for recovery of possession claiming to be the owner of the disputed property---Plaint stated that defendants being illegal occupants had received a sum of Rs.3200 in this regard but failed to vacate possession of the disputed property--Defendants contested suit on the ground that they were in possession of the disputed property since 1950-55 and had also raised construction on the same about 15/18 years back---Defendants further stated that plaintiffs had purchased keekar trees, the amount of which had been paid to them, there was no question of return of claimed amount or vacation of the possession---Trial Court dismissed suit of the plaintiff---Appellate Court on appeal allowed the same and remanded case to Trial Court to decide after obtaining fresh report of a local Commission---Trial Court, instead of considering report of local Commission appointed by it, repeated its earlier findings---Appellate Court on appeal accepted the same---Validity---Sufficient material was available on record establishing title and ownership of the plaintiffs over the disputed property---Record revealed that defendants had encroached on the disputed land---Trial Court had neither applied its mind nor had given its findings on the material aspects of the case---Construction was undertaken by defendants on their own risk and cost---Encroacher when undertakes construction on a piece of land, which does not belong to him, does not create a right or title in the land underneath---High Court declined to interfere in revisional jurisdiction.

Muhammad Ghafoor Malik for Petitioners.

YLR 2010 LAHORE HIGH COURT LAHORE 680 #

2010 Y L R 680

[Lahore]

Before Ijaz Ahmad Chaudhry and Muhammad Farrukh Mahmud, JJ

ALLAH DITTA alias DITTI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.655, 214-J and Murder Reference No.290 of 2002 decided on 5th March, 2007.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Both the witnesses had made consistent statements about the making of the statement of the complainant in civil hospital--Some delay in recording of the F.I.R. was not fatal to the prosecution version as a whole---Eye-witnesses had specifically attributed the injury on the person of the deceased to the accused---Nothing was on record to suggest that F.I.R. had been recorded with inordinate delay---F.I.R. could be used as a corroborative piece of evidence to the extent of accused---Though some previous enmity existed between the parties and criminal cases were registered, but a compromise had been effected between the parties---Complainant and prosecution witnesses were residents of the same vicinity where the incident had taken place and both said eye-witnesses had fully explained their presence at the spot---Minor discrepancies in the statements of both the witnesses could be termed as lapses of time and those were not sufficient to hit the prosecution version about the involvement of accused in the occurrence---Both said eye-witnesses remained consistent on the material points regarding the time, place of incident and the manner in which the incident had taken place---Incident had taken place immediately after Maghrab Azan when usually there was light and even otherwise the incident had taken place in the chowk where number of people were present---Availability of light in the chowk, was quite normal---Mis-identity of accused who had been living in the same vicinity was out of question---Defence had failed to show that the occurrence had not taken place at the time and the place alleged by the prosecution---Nothing was available on record to discard the ocular account, which to the extent of involvement of accused, as the main accused, was found trustworthy and reliable---Mere acquittal of co-accused, who were not attributed any active role, was not a ground for acquittal of accused as his case was distinguishable---Something had happened immediately before the incident and accused had fired at the deceased with clear intention to commit his murder---Prosecution had succeeded in brining home guilt to accused beyond any shadow of doubt---Conviction recorded by the Trial Court against accused under S.302, P.P.C. was maintained---In absence of any mitigating circumstances, sentence awarded to accused could not be reduced and conviction and sentence of accused was maintained.

Syed Hamid Mukhtar v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Co-accused had not been nominated in the F.I.R. and he was introduced later on in the supplementary statement alleging that he was one out of the two who were mentioned as unknown in the F.I.R.---Co-accused was resident of the same vicinity and previously known to the complainant party---No plausible explanation was on the record as to how the complainant had come to know about the involvement of co-accused in the case; and why his name could not be given in the F.I.R.; or he could not be identified during the incident---Even otherwise no injury had been attributed to the said co-accused on the person of the deceased; and he was attributed only the general role of ineffective firing along with the four co-accused, who had already been acquitted by the Trial Court---Case of co-accused, was on better footing; as he had been introduced as an accused later on, whereas acquitted accused were duly nominated in the F.I.R.---No empty had been recovered from the spot and mere recovery of fire-arm weapon from co-accused was not -sufficient to distinguish his case front already acquitted accused---Trial Court had committed material illegality while recording conviction and sentence against said co-accused---Impugned conviction and sentence recorded by the Trial Court against co-accused was set aside and he was acquitted of the charge by extending him benefit of doubt and was released.

Syed Karamat Ali Naqvi for Appellant (in Criminal Appeal No.655 of 2002).

Miss Talha Rashid for Appellant (in Criminal Appeal No.214-J of 2002 at State expense).

Naseem Tariq Sanghera, Dy. P-G. for the State.

Date of hearing 5th March, 2007.

YLR 2010 LAHORE HIGH COURT LAHORE 689 #

2010 Y L R 689

[Lahore]

Before Malik Saeed Ejaz, J

UMAR HAYAT and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.86/B of 2009, decided on 2nd March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-i-amd---Bail, grant of---Further inquiry---Accused persons though were named in F.I.R., but no specific injury was attributed to any of them---Medical report also had shown that only one injury was sustained by the deceased and said injury was attributed to co-accused---No weapon was recovered from accused persons---Enmity inter se the parties was established from the fact that on an earlier occasion also an F.I.R. had been lodged against accused persons for causing injuries to complainant party---In view of the prior animosity between the parties, false involvement of accused persons in the case could not be ruled out, especially when neither any injury was attributed to them nor any recovery had been effected from them---Case against accused was squarely covered by S.497(2), Cr.P.C.---Accused were behind the bars for quite sometime and their confinement in jail for an indefinite period without trial, would amount to punishing them before trial, which was neither mandate nor spirit of law---Accused were admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioners.

Abdul Aziz Khan Niazi for the Complainant.

Sh. Imtiaz Ahmad, D.P.G. with Muhammad Hussain, S.-I. for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 691 #

2010 Y L R 691

[Lahore]

Before Ch. Naeem Masood, J

Mst. SALEEMA BIBI and 3 others---Petitioners

Versus

KHAIR MUHAMMAD and 2 others---Respondents

Writ Petition No.6062 of 2008, decided on 23rd 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 maintenance---Denial of relationship of husband and wife---Plaintiff (wife) filed suit for maintenance for herself and for her three children---Defendant (husband) denied relationship of wife and husband between the parties; he also contended that three children were not his legitimate children---Appellate Court remanded case to the Family Court with direction to grant reasonable opportunity to both the parties to produce their respective evidence and then decide the whole case in accordance with law on merits---Plaintiff had assailed said judgment of Appellate Court in constitutional petition--- Validity---Sufficient material was not available on the record to establish relationship of wife and husband between the parties---Record of the case was deficient in Nikahnama, certificate of registration of marriage or Nikah Khawn, any witness of Nikah, the persons who had physically and practically participated in the marriage and the other allied factors---Impugned order of the Appellate Court, in circumstances, was not only fair and just, but was also in consonance with the settled law---No jurisdictional error had been demonstrated to have been committed by the Appellate Court inviting interference in exercise of extraordinary jurisdiction of High Court under Art.199 of the Constitution---Constitutional petition was dismissed.

Syed Farman Ali v. Abid Ali and others PLD 1995 Lah. 364; Muhammad Akram v. Mst. Farman Bi PLD 1989 Lah. 200 and Iftikhar Hussain v. Muhammad Aslam and others 1991 MLD 1500 rel.

Mian Maqsood Ahmed for Petitioners.

Syed Tajummal Hussain Bukhari for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 694 #

2010 Y L R 694

[Lahore]

Before Zafar Iqbal Chaudhry, J

BABAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.380/B of 2009, decided on 16th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 109, 148 & 149---Qatl-i-amd and attempt to commit qatl-i-amd---Bail, grant of---Accused, while armed with .12 bore gun made aerial firing at the time of occurrence but he did not cause any injury to the deceased---Accused was in judicial lock-up since 19-9-2006 and his trial had not commenced---Accused was admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Nadar Manzoor Duggal, D.P.G. for the State.

Syed Muhammad Hussain Shah Qadri for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 695 #

2010 Y L R 695

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

TASAWAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.38-Q of 2006, decided on 27th May, 2C09.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K & 561-A---Penal Code (XLV of 1860), S.337-J---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Causing hurt by means of poison and offence of Zina-bil-Jabr---Petition against dismissal of application of acquittal---Petitioners had assailed the order passed by the Trial Court through which application for their acquittal under S.265-K, Cr.P.C. was dismissed---Initial charge levelled by the complainant of giving rice mixed with intoxicants was falsified through report of Chemical Examiner as no intoxicant was detected in the material sent to the Chemical Examiner for report---Later on through supplementary statement, allegation of Zina-bil-Jabr falling under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was levelled against the petitioners---Out of three alleged victims of Zina two had refused to get medically examined stated that no one had committed Zina with them---Third, one who in her statement, ;under S.161, Cr.P.C. had implicated one of accused persons for commission of Zina with her, but through report of DNA test, said allegation of Zina was also falsified---DNA of accused did not match with DNA of person who allegedly had committed Zina---In the present case, prosecution had no evidence against the petitioners and charge against the petitioners was groundless---Continuation of trial in the case would be abuse of process of law on the basis of available material and there was no chance of conviction of the petitioners--Impugned order passed by the Trial Court was set aside and application filed by the petitioners under S.265-K, Cr.P.C. was allowed and the petitioners were acquitted from the charge.?

Muhammad Ramzan Khalid Joiya for Petitioners.

Jamil Ahmad Chohan for the Complainant.

Ashfaq Ahmad Malik, Dy. P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 700 #

2010 Y L R 700

[Lahore]

Before Muhammad Akram Qureshi, J

MUHAMMAD NADEEM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3228/B of 2008, decided on 20th January, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-i-amd---Bail, grant of---Considering the bail granting order of co-accused and without discussing the merit of the case, High Court observed that accused could not be kept behind the bars and he was entitled to the same concession which had already been extended to the co-accused---Accused was allowed bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mumtaz Hassan Awan for the State along with Saeed Akhtar, S.-I.

Muhammad Arif Alvi for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 701 #

2010 Y L R 701

[Lahore]

Before Muhammad Ahsan Bhoon and Muhammad Akram Qureshi, JJ

GHULAM MUSTAFA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.408/B of 2009, decided on 23rd February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Case of accused was identical to the case of co-accused who had already been allowed bail by the High Court---Accused was also admitted to bail, in view of the rule of consistency.

Altaf Ibrahim Qureshi for Petitioner.

Malik Muhammad Rafique Khokhar, D.P.-G.

YLR 2010 LAHORE HIGH COURT LAHORE 702 #

2010 Y L R 702

[Lahore]

Before Ch. Naeem Masood, J

SAIF ULLAH KHAN---Petitioner

Versus

MEMBER, BOARD OF REVENUE COLONIES, PUNJAB, LAHORE and 5 others---Respondents

Writ Petition No.7763 of 1997, heard on 9th June, 2009.

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

----S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Resumption of land---Petitioner who purchased land in dispute through mutation remained in possession thereof till judicial order passed by the Colonization Officer---Land in question was adjusted in favour of the petitioner under Thal Development Act---Subsequent to that because of non-implementation of order passed by the Colonization Officer, petitioner moved an application to the authority whereon the Deputy Commissioner and the Commissioner reported in favour of the petitioner, but said reports were not considered by Member, Board of Revenue and by impugned order resumed the land in dispute from the petitioner---Validity---Impugned order did not meet the,, requirements of settled law whereby order should be a speaking one which should contain the reasons for the conclusion arrived at by the authority, but impugned order was not speaking order and no reason was given by the authority---Petitioner having been condemned unheard, principles of natural justice that no body should be condemned unheard had been violated rendering the impugned order to be without lawful authority---Case was full of controversial facts and the law applicable thereto---Member, Board of Revenue had failed to make a proper scrutiny of the case which had remained pending for the last about four decades--Impugned executive order issued by Member, Board of Revenue was declared to be without lawful authority and without jurisdiction---Case was remanded to Member, Board of Revenue with the direction to fix the case on judicial side and decide the same after affording full opportunity of hearing to the parties.

Ch. Sagheer Ahmed for Petitioner.

Zafarullah Khan Khakwani, A.A.-G. for Respondents.

Date of hearing; 9th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 706 #

2010 Y L R 706

[Lahore]

Before Muhammad Ashraf Bhatti and Saghir Ahmed, JJ

SAIF ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.82 of 2003 and Murder Reference No.23 of 2003, heard on 21st October, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Both the prosecution witnesses, who had made dishonest improvements in their statements at the trial, were not truthful witnesses---Presence of said witnesses at the spot at the relevant time, also seemed to be shaky, unbelievable and doubtful in the circumstances of the case---Was also not understandable as to their allegedly going to the house of the complainant to tell him about the occurrence and then having chased accused persons upto the place of occurrence---All that was a concocted story---Statements of the eye-witnesses were not only inconsistent with each other, but also were self destructive in nature---Even the motive set up by the prosecution appeared to be far fetched just to involve accused and his companions---Incident was a night occurrence, which remained unseen---Statements of the eye-witnesses were incredible, shaky, conflicting and inspiring no confidence and were full of dishonest improvements---Said statements had not given edge to prosecution case, but had damaged same resulting that recoveries effected in the case, were rendered useless as the ocular account was not found believable---Evidence produced by the prosecution had failed to pin point the exact place of occurrence---From number of discrepancies in the prosecution case it could be concluded that prosecution had failed to make a case against accused beyond reasonable doubt---Was not necessary that there should be a number of circumstances creating doubt, but even a single circumstance that would create reasonable doubt in the mind of a man of ordinary prudence about guilt of accused, benefit of that must go to accused---Accused was acquitted of the charges.

Tariq Pervez v. The State 1995 SCMR 1345 and Riaz Masih alias Mithu v. The State 1995 SCMR 1730 ref.

Hafiz Shahid Nadeem Kahloon for Appellant.

Aftab Ahmed Goraya, Addl. P.-G. for the State.

Date of hearing: 21st October, 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 712 #

2010 Y L R 712

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.89/B of 2009, decided on 18th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---Further inquiry---General allegation against the accused was to the effect that he, along with co-accused, caused injuries to the deceased with the butts of their respective weapons while fire-arm injuries on the person of the deceased were specifically attributed to co-accused---During the investigation sufficient evidence was produced by accused in support of his innocence and relying thereupon the Investigating Agency had declared him innocent and also submitted discharge report in that behalf, but Magistrate had disagreed therewith---Validity---No doubt the police opinion was not binding on the courts, but same could be relied upon at bail stage, if it was found to be based on valid reason and keeping in view the role attributed to accused who did not cause any fire-arm injury in spite of being allegedly armed with .12 bore gun---For the time being accused had succeeded in making out a case of further inquiry---Veracity of the prosecution version regarding involvement of accused would be determined by the Trial Court after recording the evidence---Accused, who was in judicial lock-up, was not required for the purpose of further investigation---Benefit of doubt; at any stage, had to go to accused and bail could not be withheld merely as a punishment---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi and Monas Mudassar Qureshi for Petitioner.

Muzaffar Hussain Khan for the Complainant.

Nadir Manzoor Duggal, D.P.G. for the State along with M. Ayaz Khan, S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 718 #

2010 Y L R 718

[Lahore]

Before Ch. Naeem Masood, J

JAN MUHAMMAD---Petitioner

Versus

MEMBER (JUDICIAL-IV), BOARD OF REVENUE, PUNJAB, LAHORE and 2 others---Respondent

Writ Petition No.8795 of 2000, heard on 6th July, 2009.

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

----S.10(3)---Limitation Act (IX of 1908), Ss. 3 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Resumption of allotted land---Disposal of revision by Member, Board of Revenue without adverting to the aspect of limitation---Land allotted to father of petitioner for a period of 15 years under 15 years Lease Scheme' under S.10(3) of Colonization of Government Lands (Punjab) Act, 1912, was resumed and was allotted to respondent underGallantry Awardees Scheme'---Appeal filed by the petitioner was accepted by Additional Commissioner (Revenue) and respondent filed time-barred revision petition before Member, Board of Revenue---Member, Board of Revenue did not advert to the aspect of limitation and disposed of the revision petition through impugned order, which was challenged before the High Court---Validity---Question of limitation was to be considered first before the matter was decided on merits by the court or the tribunals---That having not been done in the present case, a gross illegality was committed by which was violative of the settled law---As the case had been rushed in haste without adverting to the limitation, interest of justice demanded that merits should also be revisited along with the question of limitation---Case was remanded to Member, Board of Revenue to decide the lis between the parties afresh on merits, after taking note of fact of the revision petition being barred by time.

Hakeem Muhammad Boota v. Habib Ahmed PLD 1985 SC 153 rel.

Muhammad Naveed Hashmi for Petitioner.

Mirza Aziz Akbar Baig for Respondent.

Mahar Jameel Qureshi, A.A.-G.

Date of hearing: 6th July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 721 #

2010 Y L R 721

[Lahore]

Before Muhammad Akram Qureshi, J

MUHAMMAD ISLAM and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.233/B of 2009, decided on 11th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/337-F(ii)/448/511/337-L(2)/337-H(2)/148/149---Qatl-i-amd, badi'ah, punishment for other hurt, punishment for hurt by rash or negligent act and punishment for house tresspass---Bail, grant of---Further inquiry---Accused were armed with fire-arms and first shot attributed to accused hit on the left side of face of the injured and fire shot by co-accused remained ineffective---Medicolegal report had indicated that skin deep rounded wound was noticed on the person of injured which was Shujah-e-Khafifah, creating a bailable offence---Accused did not repeat the second fire and similar was the case of co-accused---Had both accused persons been equipped with an intention to commit Qatl-i-amd of prosecution witnesses, hardly any thing was in their way to have fired at them and caused their death---Question of the applicability of S.324, P.P.C. was a matter of further probe---Accused persons who were in judicial lock-up, their person was no more required for the purpose of investigation--Offences under Ss.337-F(ii)/L-(ii)/H(ii)/448/511/148/149, P.P.C. were bailable---Accused person having made out a case for the grant of bail they were admitted to bail, in circumstances.

Muhammad Ali Khan alias Mamdal v. The State and 2 others 2007 PCr.LJ 217, Muhammad Sarwar and others v. The State 1998 SD 32; Muhammad Nawaz v. The State 1999 MLD 1526 and Muhammad Ramzan and others v. The State PLD 1996 Lah. 126 ref.

Altaf Ibrahim Qureshi for Petitioners.

Malik M. Rafique Khokhar, D.P.G. for the State along with Zulfiqar Ahmad, S.-I.

Muhammad Zawar Shah Qureshi for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 724 #

2010 Y L R 724

[Lahore]

Before Habib Ullah Shakir, J

AMNA MUSTANSAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5673-B of 2009, decided on 5th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant of---Complainant had failed to produce the copy of original cheque despite clear-cut direction of the Investigating Officer---Accused being a lady, her case was covered under the Women Protection Act, 2006, entitling her for pre-arrest bail---Question of mala fide, usually was raised where accused on the garb of bail before arrest wanted to avoid investigation; and also wanted to avoid the recovery, but in the present case there was no question of recovery of cheque as the same was already with the prosecution---Just for the purpose of sending accused to jail without any further investigation, bail before arrest could not be refused when no further investigation was to be made---Bail before arrest could not be refused when no recovery was to be made---Question of dishonest issuance of cheque and its dishonest dishonouring, could not be determined at bail stage, but same would be determined at the time of trial---Offence though was not bailable, but High Court could not ignore the fact that the offence did not fall within prohibitory clause of S.497, Cr. P. C.; and in absence of exceptional circumstances bail before arrest could even be claimed as of right---Accused had also joined the investigation and she was no more required for the purpose of investigation---Pre-arrest bail already granted to accused, was confirmed in circumstances.

Abdul Khaliq Safrani for Petitioner.

Ch. Fiaz Ahmad, Dy. P.-G. for the State.

Syed Imran Ali for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 726 #

2010 Y L R 726

[Lahore]

Before Ch. Naeem Masood, J

GHAYAS-UD-DIN---Petitioner

Versus

Mst. WAKEELAN BIBI and another---Respondents

Civil Revision No.229-D of 2008, decided on 28th April, 2009.

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

----Ss. 135 & 172---Qanun-e-Shahadat (10 of 1984), Art.113---Examination-inchi4f---Special assertion---Not rebutted---Effect---Plaintiff filed suit for partition of disputed property alleging therein that disputed property was under joint ownership between the parties and was continuously in possession of the defendant who used to pay to plaintiff rent money and income of the same but stopped doing that afterwards---Trial Court decreed the suit of the plaintiff---Defendant filed appeal which was dismissed by the Appellate Court---Contention of the defendant was that the disputed property was an agricultural land and in the light of S.135 of the West Pakistan Land Revenue Act, 1967 the plaintiff was under bounden duty to approach the revenue office for partition of her share and that under S.173 of the West Pakistan Land Revenue Act, 1967 the Civil Court had no jurisdiction to decide such-like issues and further the suit was not maintainable for lack of jurisdiction---Record revealed that the defendant had not established in his evidence that the disputed property was under cultivation---Production of a mere Jamabandi by the defendant, which had a presumption of truth, was not conclusive that presumption had been rebutted by plaintiff through a drafted site plan showing the existence of shops in and around the disputed property---Plaintiff had stated in her amended plaint that the disputed property was situated in urban area, comprised of two valuable shops and eight houses and defendant had not controverted this fact, rather had given an evasive reply---Plaintiff's witness as a general attorney of the plaintiff asserted in his examination-in-chief the existence of the shops in the disputed property but he had not put any question that the property had not become urban and that it was an agricultural in character---Defendant's witness in his examination-in-chief admitted that shop was in a dilapidated condition and it took Rupees one and half lac to reconstruct same---Special assertion of witnesses in examination-in-chief with regard to the disputed property being urban, having not been challenged in cross-examination, would amount to admission of the same---No jurisdictional error or any illegality or misreading and non-reading of the facts was found--Revision petition was dismissed by High Court.

Muhammad Yasih v. Shabbir Ahmed 1985 CLC 2111; Zafar Iqbal v. Imtiaz Hussain 1986 MLD 2001; Kabool Khan v. Shamoon through Legal Heirs and another 2001 YLR 51; Messrs Habib Bank Limited v. Messrs Public Industries Ltd. 1991 CLC 1907; Muhammad Akram v. Muhammad Rauf 2001 MLD 1277; Muhammad Sadiq v. Federation of Pakistan through Chairman, Pakistan Railways Board 1991 MLD 1; Mrs. Chung Ying Hsing v. Mst. Seema Saeed 1993 CLC 505; Muhammad Anwar v. Haji Muhammad Ismail and others 1992 MLD 860 and Ramzan and 2 others v. Lara through Legal Heirs and another 2001 MLD 957 rel.

Nemo for Petitioner.

Syed Hamid Ali Bukhari for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 730 #

2010 Y L R 730

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD RAMZAN alias PIYA---Petitioner

Versus

THE STATE and another-Respondents

Criminal Miscellaneous No.3638/B of 2008, decided on 13th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468 & 471---Personation, cheating, forgery and using as genuine a forged document---Bail, grant of---Accused was involved in a business regarding preparation of Registration Books of the motorcycles etc. and nine stamps along with two motorcycles were recovered from his possession which was stolen property, and was not owned by accused---Said property had been returned by way of Superdari to the owners thereof---Accused was in judicial lock-up for the last more than 7 months and challan had been submitted against him---Co-accused had already been released on bail--Accused was not required for the purpose of investigation and trial against him had also not Started---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Nadir Manzoor Duggal, D.P.G. for the State with Nazar Abbas, S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 734 #

2010 Y L R 734

[Lahore]

Before Khawaja Muhammad Sharif, C. J.

MUHAMMAD KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.11314/B of 2009, decided on 17th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/109---Qatl-i-amd and abetment---Bail, grant of---Further inquiry---Out of three accused persons, accused was allegedly armed with pump action, second accused with .12 bore and third with pistol---Third accused opened the attack and fired a shot, which hit deceased on the left side of his back while the injury caused by the accused and second accused hit the deceased on the right side of his back---No injury existed on the back of the deceased, except the injury which was on the left side of the buttock of the deceased; and that could be attributed to third accused, who opened the fire---No recovery had been effected from accused, who was charged under S.109, P.P.C., according to the report under S.173, Cr.P.C.---Treating the present case of further inquiry falling under sub-clause (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

Muhammad Masood Chishti for Petitioner.

Rana Bakhtiar Ali, Dy. P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 735 #

2010 Y L R 735

[Lahore]

Before Malik Saeed Ejaz, J

MUHAMMAD SALEEM alias KADDA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.406/B of 2009, decided on 23rd February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-B/376---Kidnapping, abduction or inducing woman to compel for marriage etc. and rape---Bail, grant of---Further inquiry---Unexplained delay of 26 days in lodging F.I.R.---Assistant Sub-Inspector of police present in court along with record, verified that accused had been declared innocent during investigation and Nikah between co-accused and alleged abductee had been found correct---Alleged abductee was not recovered from accused and she herself had lodged the F.I.R.---All such facts had created doubts regarding the involvement of accused in the commission of offence---Case of accused, in circum-stances needed further probe---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Rana Abdul Jabbar, A.S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 747 #

2010 Y L R 747

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2679/B of 2006, decided on 26th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 337-A(iii)/34--- Shajjah-i-hashimah---Bail, grant of---No enmity existed between the parties and the occurrence had taken place suddenly due to exchange of hot words between the complainant and accused party---Accused had approached the complainant and only asked him to return the amount which he had obtained as loan and he had not gone to the complainant with the intention to commit the offence---Complainant who was plying a vehicle was stopped by accused and demanded the loan amount from him---Had accused party the intention to commit the offence, they would have gone prepared for the same---Guilt of accused was yet to be determined by the Trial Court after recording the prosecution evidence---Accused who was behind the bars since 30-5-2006, was no more required by the police for further investigation---Challan of the case had been sent to the court of competent jurisdiction---No likelihood being of the early conclusion of the trial, it would not be in the interest of justice to detain accused in jail for indefinite period---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mian Abdul Quddus for the State with Muhammad Aslam, S.-I. for-Respondent.

2010 Y L R 758

[Lahore]

Before Kazim Ali Malik, J

SARDAR MUHAMMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.759 of 2006, decided on 27th June, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b), 309, 310 & 449---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd and house trespassing---Appreciation of evidence---Compromise---Main offence of Qatl-i-amd was compoundable and legal heirs of deceased compounded the offence and effected a compromise with the legal heirs of the deceased, who appeared before the Sessions Judge and certified their compromise with accused---Sessions Judge also verified genuineness of compromise between the parties vide his report---In the given circumstances, the principle of merger was applicable, which was to the effect that in case of a compromise between the parties in a criminal case, the minor offence even if not compoundable, would merge into the compoundable major offence---Result would be that after acquittal of accused of the major offence of Qatl-i-amd in terms of compromise the minor offence of house trespass was deemed to have been compounded under the principle of merger---Impugned conviction and sentence of accused on the charge of house trespass, were set aside and he was acquitted of the charge in terms of compromise.

Qadeer Ahmad Rana for Petitioner.

Azra Israr, Dy. P.-G. for Respondent.

Date of hearing: 27th June, 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 762 #

2010 Y L R 762

[Lahore]

Before Saghir Ahmad, J

YAQOOB---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2007/B of 2008, decided on 26th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 33 7-F(iii), 148 & 149---Qatli-amd, attempt to qatl-i-amd and mutalahi-mah---Bail, grant of---Further inquiry---Sole allegation against accused was that he inflicted simple fire arm injury on injured and no other injury, either to the deceased or to any other person was attributed to him---No repetition of the fire by accused--Sharing common intention in the commission of the offence was a question which would be determined at trial---Version set up in F.I.R. had also been deviated from by the complainant in a private complaint got lodged by him, and as to which one of the two versions was true, also made the case against accused open to further inquiry---In all twenty three persons were accused in the F.I.R. and bulk of them had been declared innocent during investigation and several of them had been admitted to bail---Accused was behind the bars for quite some time with no substantial progress in the trial---Further detention of accused in jail would not serve any useful purpose to the prosecution---Case against accused having become one of further inquiry, he was admitted to bail.

Altaf Ibrahim Qureshi for Petitioner.

Abdul Aziz Khan Niazi for the Complainant.

Sarfraz Ahmad Zia, Dy. P.-G. with Khushi Muhammad, S.-I. for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 765 #

2010 Y L R 765

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Najam-ul-Hassan, JJ

THE STATE---Petitioner

Versus

ZULFIQAR ALI---Respondent

Criminal Miscellaneous No.14852/BC of 2009, decided on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Petition for cancellation of bail---Investigating Officer, present in the court was not ready to take oath on the Holy Quran that case was registered against accused on true facts---Even otherwise, the criteria for the grant of bail and cancellation of bail was entirely different and the bail granted to accused, could not be cancelled only on the ground that accused remained in jail for one month and 26 days---Trial Court, in circumstances, had rightly granted bail to accused while exercising its discretion and no reason existed to interfere with the discretion exercised by the Trial Court---Case being not fit for cancellation of bail, petition for cancellation of bail, was dismissed.

Sahibzada M.A. Amin, Addl. P.-G. for the State with Muhammad Farooq, A.S.-I.

Muhammad Shoaib Khokhar for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 768 #

2010 Y L R 768

[Lahore]

Before Ch. Naeem Masood, J

ALLAH BAKHSH---Petitioner

Versus

FAZAL AHMED and another---Respondents

Civil Revision No.1130-D of 1994, heard on 21st May, 2009.

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

----Ss.6 & 13---Civil Procedure Code (V of 1908), O.X, R.2---Suit for pre-emption--Failure to make Talbs---Plaintiff who was directed by the Trial Court to give his better statement, having failed to appear in the court, his suit was dismissed--Plaintiff in his plaint, had failed to mention performance of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law, particularly the time, date and place of Talb-i-Muwathibat---Plaintiff also had failed to give the date of Talb-i-Ishhad as the same was to be confined within 14 days of performing of Talb-i-Muwathibat---Talb-i-Muwathibat and Talb-i-Ishhad having not been performed in accordance with law, it would have been futile exercise to proceed with the case---Revision was dismissed.

Haji Muhammad Saleem v. Khuda Buksh PLD 2003 SC 315 and Fazal Din through Legal Heirs v. Muhammad Inayat through Legal Heirs 2007 SCMR 1 rel.

Saeed Ahmad Khan Sherwani for Petitioner.

Nemo for Respondents.

Date of hearing: 21st May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 772 #

2010 Y L R 772

[Lahore]

Before Saif-ur-Rehman, J

MUHAMMAD MUNIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3891/B of 2009, decided on 27th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Pre-arrest bail, confirmation of---Cheque in question was issued as security on account of business deal according to agreement arrived at between the parties---According to agreement, dispute, if any, was to be resolved in accordance with the settled terms and conditions and it was nowhere agreed that before the termination of the said agreement; any of the cheques so issued could be presented to the Bank---Cheque in question was one of the three cheques---Pre-arrest bail already granted to accused, was confirmed, in circumstances.

Ali Murtaza v. The State 2005 PCr.L.J 1773; Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607 and Razi Ahsan v. The State and another PLD 2008 Kar. 212 ref.

Muhammad Bashir Chaudhry and Muhammad Amin Lon for Petitioners.

Shahid Mehmood Khan, Dy. P.G. assisted by Iftikhar Rasool, Incharge Investigation and Sakhawat Ali, A.S.-I. with record for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 774 #

2010 Y L R 774

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ASHIQ HUSSAIN---Petitioner

Versus

JUSTICE OF PEACE, ALIPUR and 2 others---Respondents

Writ Petition No.7624 of 2009, decided on 15th October, 2009.

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

----Ss. 22-A & 154---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Maintainability---Scope---Powers of Justice of Peace and registration oft F.I.R.---Question of facts---High Court could not interfere in writ jurisdiction where disputed questions of facts were involved---Whether petition under S.22-A, Cr.P.C. before the Justice of Peace was mala fide or not High Court could not assume the function of investigation officer.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

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

----Ss. 22-A & 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Powers of Justice of Peace---Registration of F. I. R. ---Cognizable offence---Scope---Local Police was bound to record the statement of the complainant if some one approached the Station House Officer with the complaint wherefrom the contents of the complainant cognizable offence was made out.

Muhammad Bashir v. Station House Officer and others PLD 2007 SC 539 rel.

Ch. Shakir Ali for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 778 #

2010 Y L R 778

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD NAWAZ and others---Appellants

Versus

MEMBER (CONSOLIDATION), BOARD OF REVENUE, PUNJAB, LAHORE and 9 others---Respondents

Writ Petition No.2692 of 1991, heard on 2nd July; 2009.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S.10(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition--. Confirmation of consolidation scheme--Objection to---Consolidation scheme of Mauza concerned was confirmed by the Consolidation Officer on 24-6-1985 under S.10(3) of the West Pakistan Consolidation of Holdings Ordinance, 1960---Contention of the petitioners was that land in question which previously was owned and possessed by them had been illegally allocated to respondents by Authorities which was against the spirit of consolidation---Land in question borne out different Khata to which the petitioners had no concern---Matter had been resolved before the Consolidated Officer and up to the level of the Member, Board of Revenue and it had been found on fact that the entitlement of the petitioners had been fully met---None of the principle of the consolidation appeared to have been violated in the case---Impugned orders were within the jurisdictional purview of authorities and no misconstruction of law or non-reading or mis-reading of evidence was in impugned orders---Constitutional petition was dismissed.

Muhammad Hayat v. Member (Consolidation) Board of Revenue and others 2007 SCMR 1950 rel.

Muhammad Ashfaq Ch. for Appellants.

Sardar Tariq Sher Khan and Mazhar Javed Qureshi, Asstt. A.-G. for Respondents.

Date of hearing: 2nd July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 781 #

2010 Y L R 781

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

Mst. TABASSAM PERVEEN---Petitioner

Versus

D.C.O. and others---Respondents

Writ Petition No.2804 of 2009, decided on 10th June, 2009.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.379/506/186---Constitution of Pakistan (1973), Art.199---Constitutional petition---Theft and criminal intimidation---Quashing of F.I.R.---False implication of the petitioner on the basis of mala fide of the complainant could not be ruled out---Petitioner being a lady working in Grade-19, continuation of trial in such cases would not serve any purpose, when the contents of F.I.R. did not disclose commission of any serious offences---No chance of conviction of the petitioner existed in the said case---Continuation of trial of the petitioner would increase agony of the petitioner without any result was quashed, in circumstances.

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

----Arts. 199 & 212---Constitutional petition---Prayer for direction to Authority (Employer Department) to receive joining report of employee---Petitioner who sought quashing of F.I.R. registered against her was a lady working in grade-19---Said lady in her petition under Art.199 of the Constitution had prayed that employer department be directed to receive her joining report---Grievance of the petitioner raised in the petition, related to the terms and conditions of service---High Court had no jurisdiction to entertain same keeping in view the bar contained under Art.212 of the Constitution---Petitioner could approach competent forum for redressal of her grievances.

Tanveer Ahmad Hashmi and Sardar Tariq Sher Khan for Petitioner.

Sardar Ashiq Hussain Balouch for the Complainant.

Mubasher Latif Gill, A.A.-G. with Muhammad Khurram Khan, D.C.O., Lodhran and Azaz Khan, E.D.O. (Education) for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 786 #

2010 Y L R 786

[Lahore]

Before Ch. Naeem Masood, J

ABDUL WAHEED and 2 others---Petitioners

Versus

THE STATE and 4 others---Respondents

Writ Petition No.2028 of 2007, decided on 13th May, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.195, 200 & 476---Penal Code (XLV of 1860), Ss.420, 468 & 471---Constitution of Pakistan (1973), Act. 199---Constitutional petition---Registration of F. I. R. after Civil Court in suit pending between parties found a document produced by accused to be forged---Validity---Proper remedy in such case was filing of an application by complainant under S.476, Cr.P.C. before Civil Court or complaint by Civil Court under S.195(1), Cr.P.C.---High Court quashed impugned F.I.R. for being without jurisdiction and lawful authority.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 and Muhammad Mansha v. Station House Officer, Police Station City Chiniot, District Jhang, PLD 2006 SC 598 ref.

Dr. Ishtiaq Hussain and another v. Special Judge Anti-Corruption (Provincial), Rawalpindi Division, Rawalpindi and 3 others 2004 YLR 716; Muhammad Suleman and others v. Abdul Razzaque and others PLD 2005 Lah. 386 and Abdul Wahab Khan v. Muhammad Nawaz and others 2000 SCMR 1904; PLD 2005 SC 842; PLD 2006 SC (AJ&K) 43 and 2007 SCMR 307 rel.

Zulfiqar Ahmed Qureshi for Petitioners.

Mian Abbas Ahmed, Addl. A.-G. for Respondents.

Sardar Usman Khosa for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 793 #

2010 Y L R 793

[Lahore]

Before Zafar Iqbal Choudhry and Saif-ur-Rehman, JJ

MUNICIPAL COMMITTEE SAHIWAL NOW TEHSIL MUNICIPAL ADMINISTRATION, SAHIWAL---Appellant

Versus

Hafiz MUHAMMAD SADIQ---Respondent

I.C.A. No.176 of 1995 in Criminal, Original No.679-W-99 in Writ Petition No.9565 of 1998, decided on 30th January, 2008.

Constitution of Pakistan (1973)---

----Art.204---Law Reforms Ordinance (XII of 1972), S. 3---Contempt of court---Intra-Court Appeal--Appellant had impugned the order passed by the Single Bench of High Court, whereby application for contempt of court moved under Art.204 of the Constitution, by the appellant against respondent was dismissed---According to impugned order, since the matter of contempt was between the court and the contemnor, Single Bench did not feel necessary to proceed against the alleged contemnor---No illegality could be pointed out by the counsel for the appellant in the use of that discretion in favour of the respondent by the court---Contention of the counsel for the appellant that it was for the court to ensure the recovery of amount in question from the respondent, was repelled because that matter was sub judice before court of original jurisdiction.

Ch. Muhammad Rafiq for Appellant.

Tariq Zulfiqar Ch. with Hafiz M. Sadiq for Respondent.

Date of hearing. 30th January, 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 796 #

2010 Y L R 796

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD SOHANRA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.916 B of 2008, decided on 14th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 380/411---Theft---Bail, grant of---All co-accused having similar allegations, had already been granted bail by the Trial Court and role of accused was at par with them and was not distinguishable in any respect---Merely denying bail to an accused on the fact that he had been involved in many criminal cases and was a history. sheeter, would not be justified for the reason that until and unless accused was convicted by the court of law, relief should not be denied to him---Since the case of accused was at par with that of co-accused, who had already been granted bail,' rule of consistency demanded that accused should also be released on bail---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Ishfaq Ahmed Malik with Atta Muhammad, A.S-I for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 804 #

2010 Y L R 804

[Lahore]

Before Hasnat Ahmad Khan, J

AKHTAR ZAMAN KHAN---Petitioner

Versus

THE STATE---Respondent

Crl. M. No.11686-B of 2008, decided on 19th January, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Sales Tax Act (VII of 1990), Ss.3, 6, 7, 8, 8-A, 14, 22, 23, 26, 33(1)(5)(12)(13)(18), 34, 36 & 38---Failure to furnish a return within the due date etc.---Bail, grant of-None of the offences allegedly committed by accused fell within the prohibitory clause of S.497, Cr.P.C.---In such like cases, grant of bail was a rule while refusal thereof was an exception to the said rule---Out of the maximum sentence of 5 years of punishment provided for the offences punishable under Ss.33(12) & (13) of Sales Tax Act, 1990, accused had already suffered around 18 months as under-trial prisoner---Accused, in circumstances, could not be denied bail only on the ground that he had caused huge loss to the public exchequer---Accused had already been granted bail in another case registered with the same Police Station in respect of the same offences---Legal Advisors for the Sales Tax Department, had failed to point out any distinctive feature disentitling accused from getting the same relief---Accused was granted bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Mian Suban Sadiq Klasson for Petitioner.

Khawar Ikram Bhatti and Muhammad Khalid Chaudhry, Legal Advisors for Sales Tax Department.

YLR 2010 LAHORE HIGH COURT LAHORE 806 #

2010 Y L R 806

[Lahore]

Before Iqbal Hameed ur Rehman, J

Mst. SAIMA AKHTAR ABBASI and others---Petitioners

Versus

Malik MUHAMMAD BILAL AHMED and others---Respondents

Civil Revision No.2220 of 2009, decided on 11th December, 2009.

Limitation Act (IX of 1908)---

----S. 5---Civil Procedure Code (V of 1908), S.115---Revision---Delay in filing---Benefit of S.5 of Limitation Act, 1908---Scope---Civil revision was barred with delay of nine days---Where the law under which proceedings had been launched had itself prescribed a period of limitation, as under S.115, C.P.C, then the benefit of S.5 of the Limitation Act, 1908 could not be availed unless the same had been made applicable---Delay caused in filing the civil revision at belated stage could not be condoned.

Muhammad Siddique and others v. Muhammad Bux and others 2003 MLD 542 and Muhammad Iqbal Khan v. Mukhtar Ahmad Khan 2000 CLC 1643 ref.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Abdul Qadir and 5 others v. Mst. Samina Zafar Khan and 32 others 2008 YLR 550; Majeed Ahmed Khan v. Addl. District Jude, Faisalabad and others 2009 YLR 1729; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647, Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314, Abdul Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346, Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431, and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 rel.

Sarfraz Ahmad Khan Gondal for Petitioners.

Muhammad Arshad Gondal for Respondent No.2.

2010 Y L R 834

[Lahore]

Before Pervaiz Inayat Malik, J

ALLAH DITTA---Appellant

Versus

HASHIM KHAN---Respondent

Criminal Appeal No.668 of 2000, decided on 28th May, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(c)/324/148/149---Qatl-i-amd and attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Occurrence was not pre-meditated but had taken place at the spur of the moment, which started with the quarrel of ladies---Complainant party had also suppressed materiel facts---Accused persons had already served out substantive part of their sentences---In view of peculiar facts and circumstances that accused persons had already served out a substantive sentence, their sentences were reduced to one which each of them had already undergone as the same would meet the ends of justice---Punishments of compensation, Arsh and Daman, were also set aside.

Altaf Ibrahim Qureshi and Sh. Muhammad Raheem for Appellants.

Mian Bashir Ahmad Bhatti, D.P.G. for Respondent.

Date of hearing: 28th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 841 #

2010 Y L R 841

[Lahore]

Before Hafiz Abdur Rehman Ansari, J

MUHAMMAD AQEEL alias KHALIL AHMAD alias GHANDHI and another---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector/District Officer (Revenue) Sahiwal

and 3 others---Respondents

Civil Revision No.859/D of 2009, decided on 19th October, 2009.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.115---Canal and Drainage Act (VIII of 1873), S. 68-A---Suit for declaration---Application for interim stay---Dismissal of application--- Revision---Scope---Application for interim stay filed by the plaintiffs had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Both the courts had found that the plaintiffs firstly dismantled the water course, which was a crime under the Canal and Drainage Act, 1873 and that the plaintiffs did not approach the civil court with clean hands for grant of ad interim injunction---While exercising jurisdiction under S.115, C.P.C., High Court would not like to interfere in the orders of the both the courts below, especially when both the orders were well reasoned-Findings on question of fact or law, howsoever erroneous, same could be recorded by a court of competent jurisdiction, could not be interfered with by High Court in exercise of its revisional jurisdiction, under S.115, C.P.C., unless such findings suffered from jurisdictional defect, illegality or material irregularity---No illegality or irregularity in the orders of the courts below having been found, revision petition was dismissed.

Hakim-ud-Din v. Faiz Bakhsh 2007 SCMR 870; Rashid Ahmad v. Said Ahmad 2007 SCMR 926 and Ghulam Qadir's case PLD 1988 SC 625 ref.

Pir Muhammad Asif Rafi for Petitioners.

YLR 2010 LAHORE HIGH COURT LAHORE 846 #

2010 Y L R 846

[Lahore]

Before S. Ali Hassan Rizvi, J

SHEHZAD-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3344-B of 2009, decided on 13th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque--.. Bail, grant of---Further inquiry---Many criminal cases including a dacoity and theft stood registered against the complainant and he was a proclaimed offender and Police Official in attendance, had admitted said fact---Accused was behind the bars for the last about seven months and there was no likelihood of completion of trial within the foreseeable future---Punishment provided for offence under S.489-F, P.P.C., would have to be kept in view in presence of the amount involved---Case against accused required further inquiry---Accused was admitted to bail, in circumstances.

Ghulam Rasool Ijaz assisted by Rizwan Manzoor Dogar for Petitioner.

Bilal Kashmiri, A.P.G. with M. Asif, A.S.I. for the State.

Date of hearing: 13th April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 848 #

2010 Y L R 848

[Lahore]

Before Hafiz Abdur Rehman Ansari, J

HUMERA NASEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BUREWALA DISTRICT VEHARI and another---Respondents

Writ Petition No.5796 of 2009, decided on 6th November, 2009.

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

----S. 5, Sched., Ss.7(3) & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Suit for recovery of dowry articles valuing Rs.89,000 was decreed by the Family Court to the tune of Rs. 70,000 instead of Rs.89,000-Appellate Court set aside, judgment and decree passed by the Family Court with regard to recovery of amount of dowry articles---Validity---Family Court had rightly decreed suit of the plaintiff to the extent of Rs.70,000 as value of the dowry articles---Contention of counsel for the defendant that list of dowry articles did not bear the signs of the Trial Court, had no weight---List was exhibited at the time of recording of the statement of plaintiff without any objection from the opposite side; and later on such objection as to the admissibility of the said list could not be taken or entertained---If the list of dowry could not be signed by the Presiding Officer, when it was very much mentioned in the judgment of the Family Court that it was exhibited on account of mistake of the Presiding Officer not to sign, the party could not be penalized---Plaintiff while appearing in the court as witness, had given the detail of dowry articles given to her by her parents at the time of her marriage---Appellate Court, in circumstances was not justified to reverse well reasoned finding of the Family Court---Judgment and decree of the Family Court with regard to recovery of Rs.70,000 as value of dowry articles was restored by High Court by setting aside the judgment and decree of the Appellate Court.

Zafarullah Khan Khakwani for Petitioner.

Ch. Muhammad Ateeq for Respondent No.2.

2010 Y L R 869

[Lahore]

Before Ch. Naeem Masood, J

IMDAD ULLAH and 6 and others---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector/D.O.R., Khanewal and another---Respondents

Civil Revision No.1150-D of 2004, decided on 21st May, 2009.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and injunction---Predecessor-in-interest of the plaintiff who was a refugee was transferred a portion of house and Permanent Transfer Deed was issued to him---Predecessor-in-interest could only pay 1/4th price of the house and died--Plaintiffs who came to know that the permanent allotment of the house in question was cancelled by the Additional Deputy Commissioner (General), filed suit against defendants---Senior Civil Judge decreed the suit filed by the plaintiffs and directed the plaintiffs to deposit the remaining amount---Appeal filed by the defendants was accepted on the ground that such like matters could not be brought before the civil court-Validity-Approach of Appellate Court, was illegal and was not tenable under the law for the reasons; that civil court was competent to entertain the suit as Permanent Transfer Peed had been issued to the predecessor-in-interest of the plaintiffs and cancellation order could not be passed by Additional Deputy Commissioner (General) after the repeal of Evacuee Property and...Displaced Persons Laws (Repeal) Act, 1975 as neither Additional Deputy Commissioner was a Notified Officer nor a final and closed transaction of transfer of the property in question could be re-opened even by a Notified Officer; and that balance of the sale price could be recovered as arrears of land revenue---Civil Court had the jurisdiction to try the suit---Additional Deputy Commissioner had acted without lawful authority and jurisdiction to re-open a closed and final transaction of allotment---Remaining dues could only be recovered as arrears of the land revenue.

Muhammad Ayyub through Legal Heirs and others v. Ghulam Muhammad and others 2005 SCMR 1650; Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heirs 2002 SCMR 1470 and Mst. Majeeda Begum v. Deputy Settlement Commissioner-II and others 1980 SCMR 827 ref.

Mian Anwar Mobeen Ansari for Petitioners.

Zafarullah Khan Khakwani for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 873 #

2010 Y L R 873

[Lahore]

Before Malik Saeed Ejaz, J

ZAWAR HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous. No.1114-B of 2009, decided on 16th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(v), 337-F(i) & 452/34---Causing injury and house-trespass---Bail, grant of---Accused no doubt was nominated in the F.I.R., but except one injury, all the other had been declared "ghair jaifa khafifa "---Offences with which accused was being charged, did not fall within prohibitory clause of S.497, Cr.P.C.; whereas accused was languishing in jail since 16-12-2008, without any substantial progress in the trial---Accused was admitted to bail, in circumstances.

Muhammad Ramzan Khalid Joiya for Petitioner.

Sh. Imtiaz Ahmad for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 889 #

2010 Y L R 889

[Lahore]

Before Saghir Ahmad, J

ALLAH DITTA---Petitioner

Versus

THE STATE and another---Respondents

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

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatli-i-amd---Bail, grant of---Further inquiry---Evidence against accused was that of last seen---Counsel for the complainant had admitted the evidentiary value of joint confession, which was to be seen during the trial---Co-accused, who was also implicated on account of said extra judicial confession, had already been bailed out---Finding no distinguishing feature in the case, and on the principle of consistency as well, accused was found by High Court to be entitled to bail, especially when he was behind the bars for the last about one year and five months without any substantial progress in the trial---Nothing was recovered from the accused---Case against accused, in circumstances, had become one of further inquiry---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Tariq Zulfiqar Chaudhry for the Complainant.

Sarfraz Ahmad Zia, Deputy Prosecutor-General with Muhammad Din, A.S-I. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 890 #

2010 Y L R 890

[Lahore]

Before Tariq Shamim and Zafar Iqbal Chaudhry, JJ

SHAHZAD KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.2158, 2159 and 2206 of 2002 and 2158 of 2003 and Murder Reference No.16-T of 2003, decided on 1st December, 2008.

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

----S. 392---Anti-Terrorism Act (XXVII of 1997), S.7(e)---West Pakistan Arms Ordinance (XX of 1965), S.13---Robbery, kidnapping for ransom and possession of arms---Appreciation of evidence---Co-accused were identified in identification parade and statements made by prosecution witnesses against said accused persons, had received full support from the evidence adduced by a Police Officer at the trial---Investigating Officer as well as other Police Officials had fully supported and corroborated the evidence furnished by prosecution witnesses---Prosecution witnesses were extensively cross-examined at the trial, but nothing favourable could be extracted from them by the defence--Said prosecution witnesses were truthful and had furnished a credible account of the occurrence---Said witnesses had succeeded in connecting the links of the occurrence in the most plausible and satisfactory manner---Delay in lodging F.I.R., if any was attributed to the Police and no adverse inference could be drawn against the complainant---Delay, however was a mere irregularity which had no adverse bearing on the prosecution case---Defence plea raised by said co-accused that they had been falsely implicated in the case, was lacking and had remained unsubstantiated at the trial---Prosecution, in circumstances had succeeded in proving its case against said co-accused---Conviction and sentences awarded to said co-accused were maintained, in circumstances.

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

----S. 392---Anti-Terrorism Act (XXVII of 1997), S.7(e)---West Pakistan Arms Ordinance (XX of 1965), S.13---Robbery, kidnapping for ransom and possession of arms---Appreciation of evidence---Benefit of doubt---Accused had not taken any active part in the initial occurrence---Said accused had only played the role of a guard at the house of co-accused from where abductee was recovered--Case as set up by the prosecution against said accused being not free from the doubt, while extending him the benefit of doubt, he was acquitted of all the charges and set free.

----S. 392---Anti-Terrorism Act (XXVII of 1997), S.7(e)---West Pakistan Arms Ordinance (XX of 1965), S.13---Robbery, kidnapping for ransom and possession of arms---Appreciation of evidence---Cases of co-accused were slightly distinct from each other inasmuch as, one of them after having been convicted and sentenced by the Trial Court preferred an appeal before High Court, whereas no appeal of other one was pending before the High Court---Though to his extent also the Trial Court had sent murder reference for confirmation or otherwise of his death sentence---Conviction and sentence of first co-accused who had preferred appeal, were set aside, and his case was remanded to the Trial Court for holding his trial in accordance with law---Other co-accused, who had not filed appeal, his conviction and sentence was also set aside and since he was a proclaimed offender, his perpetual warrants of arrest were issued---As and when, he was arrested, he would be tried by the Trial Court in accordance with law---Sentences of death of said two co-accused, were not confirmed and murder reference to their extent was answered in the negative.

Mir Akhlaq Ahmad v. The State 2008 SCMR 951; Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2others 1992 SCMR 602 and Qari Abdul Hayee and another v. The State 2005 YLR 1865 ref.

Khawaja Sultan Ahmad, M. Asghar Khan Rokhari, Kashif Javed, Shoaib Zafar, Ch. Shahid Qayyum and Mujtaba Ali Hamdani for Appellants.

Ch. Ghulam Hussain, Special Prosecutor (Terrorism) and Syed Faisal Raza Bokhari, Deputy Prosecutor-General. for the State.

Date of hearing: 1st December, 2008.

2010 Y L R 914

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAUKAT ALI and others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.9, 52 and Criminal Revision No.57 of 2005, decided on 14th January, 2010.

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

----S. 302(b)/34---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---No eye-witness of the occurrence being available, prosecution case was based upon circumstantial evidence---Extrajudicial confession being a very weak type of evidence could not aptly be made a basis for conviction of accused, unless corroborated by some independent evidence, which was wanting in the case---Medical evidence and circumstances of the case had not supported the extra judicial confession made by the lady accused---Even the medical evidence itself having been found in contradiction with the manner of the occurrence, was of no value---Recovery of blood-stained "Danda" and "Chhuri" from the places from where already other incriminating articles had been recovered, was not plausible---Even otherwise, the said recoveries without having joined independent witnesses in investigation and in violation of S.103, Cr.P.C. were not reliable--- "Wajtakkar" witness being not a resident of the same vicinity was a chance witness, who had failed to explain his presence there during the early hours at 4 a.m.---Said witness despite being closely related to complainant did not inform hint or the police immediately about such "Wajtakkar"---Besides, the same witness had supported the malicious litigation of complainant party against the lady accused and her relatives---Evidence of "Wajtakkar" therefore was not worth any importance---As regards same admissions made by lady accused in her statement recorded under S.342, Cr.P.C. without giving any explanation for doing so at a belated stage, could not be taken into consideration for the benefit of prosecution, which on its turn had failed to bring home guilt to the accused persons beyond any doubt---Accused were acquitted on benefit of doubt in circumstances.

2005 SCMR 277; 2003 SCMR 477; 2000 SCMR 338; S.A.K. Rehmani v. The State 2005 SCMR 364; PLD 1996 SC 1; PLD 2005 SC 1906; 2004 PCr.LJ 2052; 2006 YLR 3070 and PLD 2007 SC 202 ref.

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

----S. 302(b)/34--Qatl-i-amd---Appreciation of evidence-Extra-judicial confession---Nature and scope-Extra-judicial confession is a very weak type of evidence and cannot be made a basis for conviction, unless corroborated by some independent piece of evidence.

2005 SCMR 277 ref.

----S. 302(b)/34--Qatl-i-amd---Appreciation of evidence--One tainted piece of evidence cannot corroborate the other such type created evidence.

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

----S. 302(b)/34--Qatl-i-amd---Appreciation of evidence--Circumstantial evidence---"Wajtakkar"---Evidence of "Wajtakkar" is a weak and infirm evidence and assumes no importance without any ocular evidence.

2003 SCMR 477 ref.

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

----S.342---Examination of accused---Nature of statement---Reply to the charge and statement under S.342, Cr. P. C. -by the accused would not amount to confession.

2000 SCMR 338 ref.

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

----S.342---Examination of accused---Object and purpose of S.342, Cr.P.C.

Section 342, Cr.P.C. can be bifurcated into two parts. Subsection (1) of section 342, Cr.P.C. confers discretion to the Court while its second part is mandatory and besides that the section revolves around the maxim audi alteram partem, i.e. that no one should be condemned unheard. The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit. It is a part of a system for enabling the Court to discover the truth, and it constantly happens that the accused's explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him, it may, however, be injurious to him if no, explanation or a false or unsatisfactory explanation is given.

The provisions as contained in section 342, Cr.P.C. were enacted to safeguard the interest of the accused for the simple reason that prime object of the section is to enable the accused to explain any circumstances appearing against him in the evidence; the intention of the provision is the furtherance of the ends of justice and to enable the Court to decide the question of the guilt of the accused.

The whole object of enacting this section is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give.

S.A.K. Rehmani v. The State 2005 SCMR 364 ref.

(g) Criminal trial---

----Burden of proof---Burden to prove all the charges lies on the prosecution and it would never shift to the accused, who is entitled to stand on innocence assigned to him under the law, till the same is dislodged---Benefit of any dent caused in the prosecution evidence must go to the accused---Prosecution has to stand on its own legs and it cannot derive any benefit from the failure of accused to establish his defence plea.

PLD 1996 SC 1; PLD 2005 SC 1906; 2004 PCr.LJ 2052 and 2006 YLR 3070 rel.

(h) Confession---

----'Voluntary confession' and `true confession'--- Distinction--- Admissibility, proof and test of confession---Principles explained.

In the criminal cases great responsibility rests upon the Courts to determine if the confession is voluntary and true or is lacking within the scope of either term "voluntary" and "true". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary. Voluntary and true are two different terms related with confession and each of those has its own significance. A confession, which is voluntary, is admissible in evidence though it may be incorrect in its contents. As against above, a confession, which is not voluntary, is not admissible though it may be true and whether a confession is voluntary or true is a question of fact, which has to be determined keeping in view the attending circumstances of each case. Voluntariness of confession and of being true are totally distinct. Voluntariness relates to its admissibility while its truth is looked into for the purpose of assessing its value. Therefore, for proving confession it should be both voluntary and true. Rule of evidence of Islamic Law envisages that real test to believe or disbelieve a confessional statement is not the method in which confession is recorded rather is to be seen that what is stated in confessional statement is true and confession is made voluntary. Principle of English Law that accused while appearing before Court is not bound to speak truth is not in consonance with the concept of criminal administration of justice in Islam, according to which a Muslim whether accused or witness must be truthful and must not tell lie in his statement recorded by the Court on oath or without oath.

PLD 2007 SC 2002 ref.

(i) Criminal trial---

----Burden of proof---Principle:-Prosecution is duty bound to prove its case beyond any shadow of doubt and discredit the version of the accused---Where two possibilities float on the surface of the evidence, one favourable to the accused is to be given preference over the other.

Qazi Muhammad Arshad Bhatti for Appellants.

Ch. Amjad Hussain, Dy. P.-G. for the State.

Bashir Ahmad Qureshi for the Complainant.

Date of hearing: 7th December, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 928 #

2010 Y L R 928

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD TASAWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.778 of 2004, heard on 14th January, 2010.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused being juvenile did not act with pre-meditation---Conviction awarded to accused by the Trial Court was converted from S. 302(b), P.P.C. to 302(c), P.P.C. in the interest of safe administration of justice---Sentence of accused was altered to that already undergone.

Saee Muhammad v. The State 2007 SCMR 203 and Rashid Ahmad v. Muhammad Jamil and another 1989 SCMR 1383 ref.

Altaf Ibrahim Qureshi for Appellant.

Shahid Iqbal, DD. PP. for Respondent.

Date of hearing: 14th January, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 930 #

2010 Y L R 930

[Lahore]

Before Ch. Iftikhar Hussain, J

HABIB ULLAH and 2 others---Petitioners

Versus

ABDUL MANAN and 2 others---Respondents

Writ Petitions Nos.6389 and 7380 of 2009, decided on 18th November, 2009.

Illegal Dispossession Act (XI of 2005)---

----S. 3(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition--Illegal dispossession---Appreciation of evidence---Petitioners were tried under S.3(2) of Illegal Dispossession Act, 2005 for having forcibly dispossessed respondent/complainant and were convicted and sentenced---Validity---Complainant had alleged that he had taken house in dispute on rent and set up a sweet factory there, but the petitioners armed with weapons, forcibly occupied that house and also took over different articles lying there and also cash Rs.3, 00, 000---Evidence of prosecution witness was also on the similar line---Said witness though was employee of the respondent/ complainant, but same itself was not enough to brush aside his evidence, when he had fully supported version of the complainant and stated as to how the petitioners/accused had occupied the disputed property---Testimony of said witness in all particulars was in conformity with version of the complainant as to time and the mode of occurrence---No inconsistency was found in the statements of two witnesses who being Police Officers had also supported version of the complainant---Prosecution witnesses were fully cross-examined, but nothing favourable to the petitioners/accused had been elicited from the same---Charge of forcible dispossession of the respondent/ complainant from the disputed property against the petitioner stood proved on the record---Petitioners, in circumstances, had rightly been convicted and sentenced--Impugned judgment, being not open to any exception, same was upheld---Sentence awarded to the petitioners was adequate and sufficient as there must be some proportion between crime and punishment---Said sentence could not be enhanced as prayed by the respondent.

Sattan Kumar v. Muhammad Yousaf 2009 PCr.LJ 1186; Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066; Nazir Ahmad v. Asif and 4 others PLD 2008 Kar.94 and Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Ch. Saghir Ahmad, Rao Jamshed Ali and Muhammad Saeed Akhtar for Petitioners (in Writ Petition No.6389 of 2009).

Muhammad Shoaib Khan Buzdar for Petitioner (in Writ Petition No.7380 of 2009).

Mirza Muhammad Saleem, Addl. A.-G. and Ishfaq Ahmad Malik, Dy.P.-G. for the State (in both these writ Petitions).

Date of hearing: 27th October, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 940 #

2010 Y L R 940

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

BASHIR AHMED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE---Respondent

Writ Petition No.151 of 2010, decided on 12th January, 2010.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 154---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Art.199---Constitutional petition--Issuing fake cheque---Registration of case---Petitioner had sought setting aside order passed by Justice of Peace for registration of criminal case against the petitioner under S.489-F, P.P.C. on the complaint of respondent---Contention of the petitioner was that a civil suit was pending before the civil court and injunction was issued with regard to cheque in dispute---Civil and criminal proceedings could proceed simultaneously---Factual controversy as to whether the petitioner had settled the account with the respondent or not, could only be resolved by the civil court; and High Court could not assume the role of investigator---Order passed by the Justice of Peace was quite in accordance with law---Petitioner could put all his version before the Investigating Officer, if in compliance of order passed by Justice of Peace, statement of respondent was recorded under S.154, Cr.P.C.---Factual controversy could not be resolved in constitutional petition---Criminal proceedings were not barred during pendency of civil proceedings.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and another 2006 SCMR 1192 ref.

Malik Muhammad Latif Khokhar for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 942 #

2010 Y L R 942

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ALLAH DITTA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4244/B of 2009, decided on 3rd December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/109/148/149---Qatl-i-amd and attempt to qatl-i-amd---Bail, refusal of---Accused was nominated in the F.I.R. with specific role---Three women were killed and fourth one was seriously injured in the incident---Accused was found guilty during the investigation---Prosecution witnesses in their statement under S.161, Cr.P.C. had stated that they heard the talk of accused with other co-accused that deceased should be killed to grab three acres of landed property--Narcotics case was manoeuvred to be registered by accused just to make defence in the murder case wherein three women were killed and fourth was seriously injured---Concoction of registration of case and subsequent proceedings in the case needed thorough probe, inquiry and investigation by the competent authority---Accused could not prove his plea of alibi---Occurrence was a triple murder case and offences against accused fell within the prohibitory clause of S.497, Cr.P.C.---Challan of the case had been submitted before the Trial Court and trial had commenced---Bail petition of accused was dismissed, in circumstances.

Said Akbar and another v. Gul Akbar 1996 SCMR 931; Hafiz Ghulam Akbar v. The State 2001 PCr.LJ 1719; 1980 SCMR 203; 2002 SCMR 1886; 2002 SCMR 1279; PLD 2002 Kar. 99; 2002 PCr.LJ 1277; 1985 PCr.LJ 336 and 2006 SCMR 966 ref.

Sardar Ashiq Hussain for Petitioner.

Tariq Zulfiqar Ahmad Ch. for the Complainant.

Syed Mukhtar Masood Bukhari, ADPP with Muhammad Rustam, S.-I. with record for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 944 #

2010 Y L R 944

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mian MUHAMMAD ASIF---Petitioner

Versus

S.S.P. OPERATION, LAHORE and 2 others---Respondents

Writ Petition No.21442 of 2009, decided on 10th December, 2009.

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

----Ss.156 & 173---Penal Code (XLV of 1860), Ss. 420/467/468/471/193---Constitution of Pakistan (1973), Art.199---Cheating, forgery, using as genune forged document and giving false evidence---Constitutional petition---Re-investigation in the case had been challenged---Accused in order to grab valuable property had allegedly added its Khasra number in the sale-deed and deprived the Government of the property valuing huge amount, after the record of City Sub-Registrar was burnt in the year 1998---Case against accused was registered, but Investigating Officer found him innocent on the ground of non-availability of any evidence and made a statement in his favour in the Court at the time of hearing of his pre-arrest bail application---F.I.R. showed that accused, on the direction of High Court in the previous writ petition, had submitted his affidavit with a photocopy of the said sale-deed, in which the aforesaid property was shown to be the property of the Central Government, which was a documentary evidence against the accused--Investigation appeared to have been conducted without consulting the said record of the High Court---Report under S.173, Cr.P.C. was not signed by the S.H.O. concerned, which was a violation of the mandatory provisions of the Police Rules---Investigating Officer prima facie, being in league with the accused had declared him innocent in a clandestine manner---S.S.P. (Investigation) in such, circumstances had entrusted the investigation to S.P. Headquarters, on the application moved by the complainant for transfer of the same---Challan already submitted by the S.H.O. against law and without collecting any evidence could not be made a basis for stopping re-investigation in the case, which was necessary in the given circumstances---Magistrate was restrained from passing any order on the application of the accused presented under S.249-A, Cr.P.C. for acquittal, till the matter was reinvestigated and fresh final report under S.173, Cr.P.C. was submitted in the Court---Final verdict had to be passed by the Court after evaluating the evidence adduced before it during the trial---Constitutional petition was dismissed accordingly.

2004 YLR 1529; PLD 2008 Lah. 488; PLD 2009 Lah. 101 and 2006 SCMR 373 ref.

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

----Ss.156 & 173---Re-investigation and submission of subsequent challan in the Court---Extent and scope---Police is competent to re-investigate the matter even after the discharge of accused by the Magistrate, if some new evidence is brought on record to prima facie connect him with the alleged offence.?

PLD 2009 Lah. 101 and 2006 SCMR 373 ref.

Irfan Ahmad Khan for Petitioner.

Malik Fida Hussain for Respondents.

Waqas Qadeer Dar, A.A.-G. with Abdul Ghafoor, S.-I. for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 948 #

2010 Y L R 948

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Haji GULZAR AHMAD GULSHAN--- Petitioner

Versus

MUHAMMAD IQBAL and 16 others---Respondents

Writ Petition No.6763/Q of 2009, decided on 23rd December, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 145/107/151---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispute concerning land likely to cause breach of peace---Attachment of property---Petitioner had sought annulment of orders passed by Judicial Magistrate and Additional Sessions Judge in a proceedings initiated by the Judicial Magistrate under S.145, Cr.P.C. on the report of S.H.O. with regard to the dispute of possession---Judicial Magistrate directed Incharge of Police Station concerned to attach the plot in dispute and Additional Sessions Judge dismissed the criminal revision filed by the petitioner and maintained order of the Magistrate---Validity---Magistrate was competent to take action on the Qalandra prepared by the local S.H.O. under Ss.107/151, Cr.P.C.---No further proceedings for attachment of the property in dispute could be taken as it was the subject-matter of a civil suit before the civil Court and was beyond the jurisdiction of the Magistrate to pass an order under S.145(4), Cr.P.C. for attachment of suit property---Order passed by the Judicial Magistrate and order of the Additional Sessions Judge passed in revision upholding the order of the Magistrate, were declared to be illegal, void ab initio without lawful authority and same were set aside by High Court.

Qazi Gran v. Muhammad Jan and another PLD 1996 SC 541; Abdul Khaliq and another v. Muhammad Shafique and others 2007 SCMR 1953; Muhammad Siddique and another v. Muhammad Rashid and 3 others 2004 PCr.LJ 1096; Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240; Abdul Aziz and others v. Mian Rafiuddin through his legal heirs 1983 SCMR 928; Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470; Mian Inamul Haq v. Mst. Safia Rehmat and other 2000 YLR 2271 and Azmatullah through LRs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 rel.

Mian Muhammad Jamal for Petitioner.

Muhammad Arif Alvi for Respondent.

Aurangzeb Khan, A.A.-G. with Muhammad Nawaz S.-I..

YLR 2010 LAHORE HIGH COURT LAHORE 956 #

2010 Y L R 956

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

GHULAM MURTAZA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KOT ADDU DISTRICT MUZAFFARGARH and 4 others---Respondents

Writ Petition No.9866 of 2009, decided on 23rd December, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 203 & 435---Constitution of Pakistan (1973), Art.199---Constitutional petition---Private complaint---Dismissal of---Material contradictions existed in the statement of the complainant made by him in cursory evidence and the complaint---Statements of other two prosecution witnesses also contained contradictions---Trial Court, in circumstances, had rightly dismissed the complaint by giving cogent reasons---Criminal revision of the petitioner/complainant filed against order of the Trial Court/Magistrate had also rightly been dismissed by the Appellate Court---Concurrent findings given by two courts below based on good appreciation of evidence and material before him, needed no interference by High Court in its constitutional jurisdiction.

Sohail Waqarul Haq Chaudhry for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 958 #

2010 Y L R 958

[Lahore]

Before Khawaja Muhammad Sharif, C J

Syed MUHAMMAD AMIN SHAH and another---Petitioners

Versus

MUHAMMAD IHSAN and another---Respondents

Writ Petition No.685 of 2010, decided on 4th February, 2010.

Penal Code (XLV of 1860)---

----Ss. 420/468/471---Constitution of Pakistan (1973), Art. 199---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating and forgery---Constitutional petition---Accused was absconder and constitutional petition was filed by other person, who was not given general or special power of attorney on behalf of the accused---Accused who was proclaimed offender was not available in Pakistan---Nothing had been mentioned in the whole constitutional petition that petitioner was authorized to file constitutional petition---Constitutional petition was dismissed.

PLD 2001 Lahore 834, 2000 CLC 572 and PLD 2004 Karachi 17 ref.

Syed Kazim Ali Bukhari for Petitioner.

Sh. Naveed Shaheryar and Mazhar Hussain Ashraf for Respondent.

Ch. Muhammad Hanif Khatana, A.-G. of Punjab.

YLR 2010 LAHORE HIGH COURT LAHORE 959 #

2010 Y L R 959

[Lahore]

Before Mansoor Akbar Kokab and Javed Tariq, JJ

Rana FAZAL GHAFFAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.7 of 2009, decided on 11th January, 2010.

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

----S. 9(b)---Possessing narcotics---Closing of evidence---Petitioner was aggrieved of order of the Trial Court, whereby the right of cross-examining the witnesses, already bound by the court to appear in person, was closed on the ground that one witness, was absent on the day---Matter was pending before the Trial Court and in case the notice was issued to the State, the case would be lingered on as order made by the Trial Court appeared somewhat harsh; because either the said witness who was already bound down should have proceeded against for non-appearance or might have been given up by the prosecution in order to get recorded the remaining witnesses---Petition was accepted with the direction to the Trial Court that at least one opportunity be given to the petitioner to cross-examine the witness, if they along with other relevant witnesses were present---If the other witnesses were not made present, despite services of notices, appropriate steps betaken against them for presence before the court including issuance of bailable or non-bailable warrants.

Muhammad Shoaib Khan for petitioner.

2010 Y L R 975

[Lahore]

Before Khawaja Muhammad Sharif, C.J. Ijaz Ahmad Chaudhry, J

ABDUL QUDDUS MUGHAL---Petitioner

Versus

MANZOOR AHMED WATTOO, MINISTER FOR INDUSTRIES AND PRODUCTION, ISLAMABAD and 4 others---Respondent

Criminal Original No.1110/W in Writ Petition No.16090 of 2009, decided on 26th January, 2010.

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

----Art.204---Contempt of Court Ordinance (IV of 2003), Ss.3/4---Contempt of Court--High Court had passed a judgment directory to maintain the ex mill price and retail price of sugar at the rate of Rs.36 per kg and Rs.40 per kg. respectively---Respondents had refused to accept and implement the said order speaking in a contemptuous manner and passing the remarks that High Court could implement the order itself and they were not ready to do so---Such alleged derogatory remarks about the order had flashed in electronic as well as print. media---Contemptuous statement was that High Court should itself implement the decision, and that Federal Government had no "Tehsildars" and "Thanedars" to implement the same---Respondent Minister for Industries and Production, Government of Pakistan, had denied to have uttered the said words placing reliance on the Minutes of the Meeting of the Standing Committee issued by the National Assembly Secretariat, which contained his statement---Said statement of the respondent revealed that there were no derogatory remarks, but he had uttered the strategy for implementing the decision of the High Court and the problems being faced by the Government---Fair comments about the general working of the court made in good faith in the public interest and in temperate language and fair comments on the merits of a decision of a court made after the pendency of the proceedings in a case in good faith and in temperate language without impugning the integrity or impartiality of the Judge, would not amount to commission of contempt of court---Jurisdiction of the court in contempt matters would be invoked if it was found that there was real prejudice, which could be regarded as substantial interference with the due course of justice----Marked distinction existed between a prepared speech and a press talk, inasmuch as in the former a person could prepare his speech after serious deliberations and taking into consideration the pros and cons of the matters, whereas in the latter case he had to face many unexpected questions of which he might have no prior idea---During the press talks the press reporters would skillfully extract statements, which the persons concerned might have no intention to make---Said distinction was important for the purpose of deciding the question that whether the alleged contemner had acted bona fide or mala fide or with malice---Committal for contempt of court is a weapon to be used sparingly and always with reference to the interest of administration of justice---Press clippings per se were not admissible in evidence and no list of witnesses had been placed on record by the petitioner to prove the same---Accused in his reply to the show-cause notice had categorically denied the correctness of the statements allegedly made by him---Accused had been regularly appearing before High Court and never shown disrespect to the court---Words used by the accused were not found to be contemptuous---Press clippings alone were not sufficient to connect the accused with the commission of the crime---Where two views on the same evidence were plausibly possible, the one favouring the person standing the trial would be preferred over the one against him, which could not be pressed into service in contempt proceedings, as the same were sui generic in nature partaking of same elements of both civil and criminal proceedings---Accused was not found guilty of contempt of court and show-cause notice issued to him was withdrawn accordingly.?

The State v. Sir Edward Snelson, KBE, Secretary to the Government of Pakistan, Ministry of Law PLD 1961 (WP) Lah. 78; Sir Edward Snelson, KB, Secretary to the Government of Pakistan, Ministry of Law PLD 1961 SC 237; The State v. Mir Abdul Qayyum, Advocate PLD 1964 (WP) Lah. 661; Mashal Khan v. The State 1975 SCMR 80; Feroze Akbar v. Government of Pakistan through Secretary Aviation Wing, Rawalpindi and 2 other 2002 SCMR 1623 and Syed Masroor Ahsan and others v. Ardeshir Cowasjee and other PLD 1998 SC 823 ref.

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

----Art.204---Contempt of Court Ordinance (IV of 2003), Ss.3/4---Contempt of court---Accused respondents had allegedly refused to accept and implement the order of High Court directing to maintain the ex-mill price and retail price of sugar at the rate of Rs.36 per kg. and Rs.40 per kg. respectively---Accused had put themselves at the mercy of the court---Courts had always taken a lenient view in such circumstances---Purpose of law of contempt of court was not to punish the people and it was better to reprimand them to be careful in future---Such conduct of courts further brings respect in the mind of general public---Notices issued to accused were recalled in circumstances.?

The State v. Sir Edward Snelson, KBE, Secretary to the Government of Pakistan, Ministry of Law PLD 1961 (WP) Lah. 78; Sir Edward Snelson, KB, Secretary to the Government of Pakistan, Ministry of Law PLD 1961 SC 237; The State v. Mir Abdul Qayyum, Advocate PLD 1964 (WP) Lah. 661; Mashal Khan v. The State 1975 SCMR 80 and Feroze Akbar v. Government of Pakistan through Secretary Aviation Wing, Rawalpindi and 2 other 2002 SCMR 1623 and Syed Masroor Ahsan and others v. Ardeshir Cowasjee and other PLD 1998 SC 823 ref.

----Art.204---Contempt of Court Ordinance (IV of 2003), Ss.3/4---Contempt of Court--Guide lines---Powers of court for contempt of court should be used sparingly and only in serious cases---Court should not be either unduly touchy or over-astute in discovering new varieties of contempt, because its usefulness depends on the wisdom and restraint with which it is exercised.?

Syed Masroor Ahsan and others v. Ardeshir Cowasjee and other PLD 1998 SC 823 ref.

Shafqat Mehmood Chohan for Petitioner.

Nasim Kashmiri, Dy. A.-G. for Respondent.

Muhammad Hanif Khatana, A.-G.

Punjab, Syed Ali Zafar for Respondent No.1.

Shahid Karim for Respondents Nos.2 and 3.

Date of hearing: 14th January, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 984 #

2010 Y L R 984

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

NOOR MUHAMMAD and others---Petitioners

Versus

KHAN MUHAMMAD and others---Respondents

Civil Revision No.800 of 1995, heard on 6th July, 2009.

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

----S. 21---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Arbitration---Mutual agreement to settle disputes---Plaintiffs filed suit for declaration wherein they had challenged the orders passed by Additional Deputy Commissioner (Consolidation) and Additional Commissioner--- During pendency of suit, parties referred the matter to arbitrators and an agreement was executed whereupon award was signed by the majority in favour of plaintiffs---Defendants filed objections that award had been filed without intervention of the court---Trial Court passed an order that award was without intervention of the court---Plaintiffs filed appeal against the order of Trial Court which was allowed by the Appellate Court---Order sheet of the Trial Court indicated the names of the arbitrators---Arbitration agreement and Award was mentioned in the order sheet but Trial Court had wrongly come to the conclusion 'that as parties entered into the arbitration agreement without intervention of the court and award filed in the court had no force---Defendants had no right to resile from their consent---Party to the suit, before passing the decree could make agreement and settle their dispute in terms of S.21 of the Arbitration Act, 1940---No bar on the parties to get their case decided by mutual agreement at any time prior to final adjudication---Appellate Court had rightly made award as rule of the court---No misreading or non-reading of evidence or any other legal infirmity had been found with the judgment rendered by the Appellate Court warranting interference by High Court in revisional jurisdiction---Revision petition was dismissed by High Court.

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

----O. XXIII, R.3---If the parties enter into a lawful agreement or compromise adjusting their suit wholly or partly, and the court is satisfied of such adjustment, it is bound to record such compromise and pass a decree in accordance therewith.

Messrs Jame's Construction Company (Pvt.) LTD v. Province of Punjab through Secretary to the Government of Punjab (Communication and Works) Department, Lahore and 3 others PLD 2002 SC 310 rel.

----S. 42---Findings of fact recorded by the court below are not open to exception unless it is established that the same suffered from any jurisdictional defect or were based on misreading or non-reading of evidence.

Aurangzeb through Legal heirs and other v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmad 2007 SCMR 926 rel.

Ch. Muhammad Shafi for Petitioners.

Hakim Amir Bakhsh Awan and Malik Javed Akhtar Wains for Respondents.

Date of hearing: 6th July 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 989 #

2010 Y L R 989

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD KHALID---Petitioner

Versus

THE STATE and another ---Respondents

Criminal Miscellaneous No.4430-B of 2009, decided on 10th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/392/34---Qatl-i-amd and robbery---Bail, grant of---Further inquiry---Accused was not named in the F.I.R. and it was unseen occurrence---No direct evidence was collected by the complainant against accused---In the first supplementary statement, three persons were involved, who were declared innocent and in the second supplementary statement which was recorded after about two months, accused was implicated along with his wife and his daughter---There being three versions of the case, case of further inquiry had been made out, which needed investigation into the guilt of accused---Only last seen evidence was collected through supplementary statement which was a weak type of evidence---No recovery of weapon of offence or other sort was recovered from the accused---Accused was admitted to bail, in circumstances.

Masoor Riaz for petitioner.

Mushtaq Mustafa Shah for the Complainant.

Muhammad Waseem Khan Babar, DDPP with A.S-I with record for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 998 #

2010 Y L R 998

[Lahore]

Before Syed Mazahar Ali Akbar Naqvi, J

WASEEM AHMAD alias SEEMI---Petitioner

Versus

MUKHTAR AHMAD and another---Respondents

Criminal Miscellaneous No.1435/B of 2010, decided on 24th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/337-F(vi)---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)(b)---Attempt to commit qatl-i-amd---Occurrence had taken place outside the house and not in the manner as mentioned in the F.I.R.--Record otherwise had shown that the averments of F.I.R. were aggravated and during the course of investigation those were found incorrect to that extent---Accused in the present case was juvenile and enjoyed the benefit of S.10(7)(b) of the Juvenile Justice System Ordinance, 2000---Accused was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585 and Muhammad Umar v. State PLD 2004 SC 477 rel.

Ihtshasm Qadir Shah for Petitioner.

Aftab Ahmed Bhatti for the Complainant.

Ahsan Rasool Chattha, Dy. P.-G. and Maqbool Ahmed, A.S.-I. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 999 #

2010 Y L R 999

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD AKHTAR---Petitioner

Versus

THE STATE and another ---Respondents

Criminal Miscellaneous No.3764-B of 2009, decided on Nth November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/34/109---Qatl-i-amd, abetment---Bail, grant of---Benefit of doubt---F.I.R. was lodged against 3/4 unknown persons---Later on accused was implicated in the case by the complainant through her supplementary statement and that too only on the allegation of instigation---Normally, such supplementary statements are based on afterthought and have no evidentiary value---Complainant already knew the accused and had she been present at the site of occurrence, she would have definitely named the accused in the F.I.R.---Involvement of accused in the murder of deceased, thus, was doubtful and he was entitled to the benefit of such doubt even at bail stage---Guilt of accused needed further probe and he was admitted to bail in circumstances.

Muhammad Arshad v. The State 2006 SCMR 96; Allah Bachaya and 3 others v. The State 2001 PCr.LJ 1082; Hadayat Ali v. Muhammad Shahbaz 2002 MLD 83; Muhammad Jahangir v. The State 2002 PCr.LJ 1039 and Muhammad Farooq v. The State 2005 MLD 975 ref.

Muhammad Imran Ashraf Bodla for Petitioner.

Syed Mukhtar Masood Bukhari DDPP for the State.

Syed Qamar Nasik for the Complainant.

Javed Ahmad, S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1001 #

2010 Y L R 1001

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rana Zahid Mahmood, JJ

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 777 of 2004, decided on 8th July, 2009.

Penal Code (XLV of 1860)---

----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Both parties were closely related to each other---Motive as alleged in the F.I.R. was that about 3-1/2 years ago mother of accused had left the house because of some dispute with father of accused; and accused had suspected that deceased had concealed his mother at some unknown place---Complainant and prosecution witness had supported prosecution case before the Trial Court, while narrating the circumstances under which accused had committed the murder of deceased---Statements of prosecution witnesses were in line with the facts mentioned in the F.I.R.---Presence of said witnesses at the relevant time seemed to be very natural being owners of the plot where the occurrence took place---Both said witnesses being closely related to accused, there was no reason qua said witnesses to say that they had falsely deposed against accused---Case was that of promptly lodged F.I.R. against a single accused and in such like circumstances substitution by the kith and kin of the deceased while leaving the real culprit, was a rare phenomenon---Ocular account also found support from the medical evidence, the locale and nature of injuries---Ocular account further found corroboration from the report of Forensic Science Laboratory, which had revealed that the empty recovered from the spot had matched with the crime weapon (pistol) which was get recovered by accused during investigation---Prosecution, in circumstances, had proved its case to the hilt against accused---Case was that of single fire-arm injury attributed to accused, accused was aggrieved of the conduct of complainant party due to suspicion of accused that deceased had concealed his mother at some unknown place---For such motive it could easily be said that same was sufficient cause for a young man/accused to get revenge from the complainant party---Taking lenient view about the sentence of accused, his death sentence was converted into imprisonment for life with the benefit of S.382-B, Cr.P.C.

Nasir Tiwana for Appellant.

Ch. Muhammad Aslam Sandhu Additional P.-G. for Respondent.

Date of hearing 8th July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1017 #

2010 Y L R 1017

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi and Pervaiz Inayat Malik, JJ

MULTAN DEVELOPMENT AUTHORITY, MULTAN through Director-General---Appellant

Versus

HAQ NAWAZ and 2 others---Respondents

R.F.As. Nos. 85, 86, 100, 101, 241, 242, 243 and 263 of 2001, heard on 16th June, 2009.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 54---Acquisition of land---Appeal---Competency---Landowners filed references under S.18 of the Land Acquisition Act, 1894 before the referee court for enhancement in the rate of compensation for the land acquired by authorities for purpose of construction of bypass for public purpose---Referee Court enhanced the price of the land so acquired---Landowners asserted that the defendant/acquiring agency being beneficiary of the acquired land had no right and locus standi to either file reference against the award or appeal against the judgment arising out of reference under S.18 of the Land Acquisition Act, 1894---Validity---Beneficiary of the acquired land did not have any right to challenge the compensation given to the deprived owners of the land by the competent court---Authority or a company on whose behalf the land was acquired by the Collector had no right to file an appeal against a judgment arising out of the reference under S.18 of the Land Acquisition Act, 1984---Acquiring authority had been made party to the lis, which had contested the references by adducing evidence and the Referee Court, after considering the evidence led by the parties, had rightly enhanced the rate of the land acquired by the authority---Appeal was dismissed by High Court.

Pakistan v. Public at Large PLD 1986 SC 240, Military Estate Officer v. Assistant Commissioner 1997 CLC 556, WAPDA v. Saad Ullah Khan 1999 SCMR 319, Rana Muhammad Shabbir Ahmad Khan v. Federation of Pakistan PLD 2001 SC 18, Muhammad Ali v. Muhammad Ramzan 2002 SCMR 426, Pakistan Atomic Energy Commission v. Land Acquisition Collector and others 2008 SCMR 1280, BP Pakistan Exploration and Production v. Sher Ali Khawaja PLD 2008 SC 400 and Defence Department of Pakistan v. Province of the Punjab and another 2006 SCMR 402 ref.

Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485, Iftikhar Hussain Shah and others v: Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193, Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others 1992 SCMR 1245, Pakistan through Military. Estate Officer Kharian Cantt and another v. Hayee Khan through legal heirs and 5 others PLD 1995 SC 418, Federation of Pakistan and another v. Abdul Hayee Khan and others 1996 SCMR 1389, Defence Department of Pakistan through Secretary Ministry of Defence v. Province of Punjab and another 2006 SCMR 402 and Pakistan Atomic Energy Commission v. Land Acquisition Collector and others 2008 SCMR 1280 rel.

Muhammad Amin Malik for Appellant.

Syed Muhammad Ali Gillani for Respondents.

Date of hearing: 16th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1023 #

2010 Y L R 1023

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. SHAHNAZ BEGUM---Applicant

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1-B of 2009 in Criminal Appeal No.924 of 2009, decided on 25th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Qatl-i-amd---Suspension of sentence, pending appeal---Application for---Applicant who, was an old lady of about 60/62 years of age, had undergone major portion of her sentence and there was no likelihood of fixation of appeal in the near future---Applicant, during pendency of her main appeal, was admitted to bail by suspending her sentence.

Makhdoom Javed Hashmi v. The State 2007 SCMR 1844 and Anwar ul Haq v. National Accountability Bureau PLD 2009 Sc 388 ref.

Mehr Muhammad Saleem Akhtar for Applicant.

Rana Kashif Saleem Arfa, Law Officer for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1029 #

2010 Y L R 1029

[Lahore]

Before Ch. Iftikhar Hussain, J

FAISAL AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.15904-B of 2009, decided on 26th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (MLV of 1860), S.324/34---Attempt to commit qatl-i-amd---Bail, grant of---Further inquiry---Benefit of doubt-According to F.I.R. both accused persons nominated therein who allegedly were armed with carbine and pump action respectively, had simultaneously opened fire on the injured, however, the fire which hit the injured had not at all been specifically ascribed to any of them---General allegation was levelled against accused persons named in F.I.R. and it was not clear that whose fire shot had hit the injured---There being unexplained delay of two days in lodging the F.I.R., possibility of the deliberation in the matter could not be ruled out---Co-accused having been granted bail, rule of consistency required that accused should also be granted bail---Accused was behind the bars for the last two years and about three months, but not a single prosecution witness had been examined in the case and accused was suffering detention unnecessarily for a long time---Version in the F.I.R. was doubtful as regards the role of accused and the benefit of doubt, even at bail stage was to be given to accused---Case as regards the merits was not much distinguishable from co-accused who had been granted bail---There being scope of further inquiry into the guilt of accused, his case was covered within the mischief of subsection (2) of S.497, Cr. P. C. entitling accused for grant of bail---Accused having made out a case for bail, he was granted bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Ch. Muhammad Shahid Buttar for Petitioner.

Arif Karim Chaudhry, Dy.P.-G. for the State.

Rana Nadeem Ahmad, Respondent No.2 for the Complainant.

Iftikhar Ahmad, A.S.I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1032 #

2010 Y L R 1032

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MULAZIM HUSSAIN---Petitioner

Versus

DIRECTOR GENERAL AGRICULTURAL RESEARCH, A.A.R. INSTITUTE FAISALABAD and 3 others---Respondents

Writ Petition No.6062 of 2009, decided on 30th July, 2009.

Constitution of Pakistan (1973)---

----Arts. 199 & 212--- Constitutional petition, maintainability of--- Civil service--- Transfer--- Petitioner, a civil servant, had challenged his transfer order---On account of bar contained under Art.212 of the Constitution, constitutional petition was not maintainable which was dismissed.

Khalid Farooq for Petitioner.

Tariq Murtaza Khan Malazai for Respondent No.4.

Date of hearing: 30th July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1033 #

2010 Y L R 1033

[Lahore]

Before Khawaja Muhammad Sharif, C J

FAISAL SHAHZAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 9537/B, 9544/B, 9546/B, 9547/B, 9548/B, 9550/B, 9538/B, 9541/B, 9549/B, 9551/B, 9543/B, 9535/B, 9536/B, 9539/B, 9540.B, 9542/B, 9545/B, 9681/B, 9682/B, 9683/B, 9684/B, 9685/B, 9686/B and 9687/B of 2009, decided on 24th August, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Smuggling Act (XII of 1977), Ss.3 & 46---Smuggling---Bail, grant of---Accused was behind the bars for the last two years---Challan had been submitted before the court one year ago, but not a single witness had been examined with no fault of the accused---Maximum sentence which could be awarded in the offence was 10 years---Bail applications were accepted on the ground of delay and accused was released on bail.

Muhammad Akram Nizami for Petitioner.

2010 Y L R 1048

[Lahore]

Before Ch. Iftikhar Hussain, J

KASHIF alias COMMANDO---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.4075/B of 2009, decided on 5th November, 2009.

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

----S.497(2)---Penal Code (XLV of 1860), S.377---Sodomy---Bail, grant of---Accused had been found innocent during investigation by the Investigating Officer and left to the mercy of Court---Report of Chemical Examiner was in the negative---Opinion of police though not binding on Court, was a relevant circumstance for being considered, while determining the question of bail---Benefit of every doubt even at bail stage, had to be given to accused---Despite the nature of the alleged offence being quite serious, the aforesaid circumstances had made the case of accused one of further inquiry within the meaning of S.497(2), Cr. P. C.---Challan had already been submitted in the Court---Accused was admitted to bail in circumstances.

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

----S.497---Penal Code (XLV of 1860), S. 377---Sodomy---Bail---Police opinion---Relevancy---Opinion of police is not binding on the Court, but it is a relevant circumstance to be taken into consideration, while determining the question of bail.

----Ss.497/498---Bail---Benefit of doubt, extension of---Principle---Benefit of every doubt, even at bail stage, is to be given to accused.

Mahar Shah Muhammad Sahu for Petitioner.

Ishfaq Ahmad Malik, Dy. P.-G. for the State.

2010 Y L R 1058

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. MUMTAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3899/B of 2009, decided on 2nd November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.363 & 364-A---Kidnapping---Bail, grant of---Further investigation---Initially the case was got registered against accused under S.363, P.P.C. for abduction, but later on the Investigating Officer added S.364-A, P.P.C. for which maximum punishment was prescribed as death---Main co-accused nominated in the F.I.R. was found guilty in the investigation---Name of accused, no doubt was mentioned in the F.I.R., but case was registered after a delay of 4/5 months---Direct role of abduction of a woman was attributed to the husband of accused and not to the accused---Accused being a woman, her case fell under second proviso to S.497, Cr.P.C.---Accused was an old lady of about 60 years and offence under S.364-A, P.P.C. was not attracted to her extent---Main role of abduction of three ladies was attributed to co-accused and alleged abductee was also recovered---Case of accused needed further investigation into her guilt whether to her extent S.364-A, P.P.C. was attracted or not---Accused was behind the bars since 18-5-2009---Keeping the accused lady behind the bars for an indefinite period would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Mehr Muhammad Saleem for Petitioner.

Tanvir Haider Buzdar, ADPP for the State along with Irshad, A.S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 1060 #

2010 Y L R 1060

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUSHTAQ AHMAD alias WARRAICH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9240/B of 2009, decided on 10th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 324/452/379/354/342/337-A(i)/337-L(ii)/ 148/149---Bail, grant of---Injury attributed to accused fell under the provisions of S.337-L(ii), P.P.C. which was bailable---Co-accused who was armed with rifle and also caused injury to prosecution witness had been allowed post-arrest bail and case of accused was at par with said co-accused---Other three co-accused had also been allowed bail---Accused, in circumstances, was also entitled to the concession of bail as his case was also at par with his co-accused who had been allowed bail---Accused was released on bail, in circumstances.

Ch. Nawab Ali Mayo for Petitioner.

Sahibzada M.A. Amin, Addl. P.-G. for Respondent.

Ch. Masood Ahmad Zafar for the Complainant and Muhammad Yasin, Inspector.

YLR 2010 LAHORE HIGH COURT LAHORE 1061 #

2010 Y L R 1061

[Lahore]

Before Ch. Iftikhar Hussain, J

SAJJAD AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4138/B of 2009, decided on 4th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.365-B/376---Abduction and rape---Bail, grant of---Further inquiry---F.I. R. was lodged after a delay of about three months---Abductee in her statement before the Magistrate had deposed that nobody had abducted her and that she of her free will had contracted marriage with the accused and was living with him---Some judgments of the Family Court had been produced on record, which too had supported the version of the abductee---Case of accused fell within the ambit of section 497(2), Cr.P.C. and called for further inquiry into his guilt---Accused was not a previous convict and was behind the bars for the last about five months---Bail was allowed to accused in circumstances.

Mukhtiyar Ahmad v. The State 2003 PCr.LJ 1057; Sajjad Ahmad alias Kaura v. The State 2003 MLD 1514 and Mushtaq Ahmad aliss Shaki and other v. The State 2000 MLD 1086 ref.

Mehr Muhammad Qamar Ali for Petitioner.

Ishfaq Ahmad Malik, Dy. P.-G. for Respondent No.1/State.

Hasnain Abbas, S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1063 #

2010 Y L R 1063

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

ABDUL GHAFOOR and 3 others---Petitioners

Versus

Mst. ZAKIA BEGUM and 2 others---Respondents

Writ Petition No.6218 of 2009, decided on 28th May, 2009.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss.2(b), 3, 10 & 13----Constitution of Pakistan (1973), Art.199---Constitutional petition--- Consolidation proceedings---Land owners, after consolidation, could not get land of their choice and certain adjustment had to be made in order to attain the object of consolidation of holdings---Contention of the petitioner that his client had got less area of superior quality and respondent was given superior quality which resulted into further splitting up of his holdings in two places, was repelled---Apart from the facts, that could not be a ground for interference in the consolidation proceedings---Controversy involved in the matter pertained to S.10(1) of West Pakistan Consolidation of Holdings Ordinance, 1960---Record had shown that matter was dealt by Public functionaries of the Revenue hierarchy and they gave findings on the question of facts after scrutinizing/examining the record---Impugned orders was passed after taking into account respective pleas of the parties as well as the other record---Such findings of facts could not be interfered in exercise of constitutional jurisdiction of High Court, where no illegality or infirmity had been found in impugned orders.

Mst. Karim Khatoon v. Member, Board of Revenue and others 1984 CLC 436; Ahmad Khan v. Asghar Ali 1989 CLC 2483; Shahab Din v. Mst. Khudija Begum PLD 1983 Lah. 591; Commissioner of Income Tax, Lahore v. Umar Saigal and others PLD 1974 SC 139; Ghulam Nabi v. Member Board of Revenue and others 1981 SCMR 696; Pahna and others v. Member (Consolidation), Board of Revenue, Punjab and others 2004 SCMR 1690; Muhammad Badar-ul-Munir v. Chairman, Arbitration Council and 2 others 1989 SCMR 1097; Allah Rehman and others v. Amtul Qayyum and another 1989 SCMR 1817 and Muhammad Hayat and others v. Member (Consolidation) Board of Revenue and others 2007 SCMR 1950 rel.

Khalil-ur-Rehman Mayo for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1068 #

2010 Y L R 1068

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD YASIN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4069/B of 2009, decided on 29th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.365-B & 376---Abduction and rape---Pre-arrest bail, confirmation of---Main accused named in the F.I.R. was allowed post arrest bail by the Trial Court against whom allegation of commission of zinc was levelled---Allegation against other accused (female) was only of facilitating and abetting the abduction of alleged abductee-Prosecution did not produce any proof of earlier marriage of alleged abductee with another person---Case against accused was false, frivolous and baseless as alleged abductee was legally wedded wife of accused and she was not abducted by any body---Unexplained delay of eight days took place in lodging the F.I.R.; and false implication of accused could not be ruled out---Whole story made by the complainant was false and concocted and the F.I.R. was got registered with mala fide---To the extent of other accused/female accused did not fall within the prohibitory clause of S.497, Cr. P. C. ---Ad interim pre-arrest bail already granted to said female accused was confirmed.

Rana A.D. Kamran for Petitioners.

Ch. Saleem Manzoor for the Complainant.

Tanveer Haider Buzedar, ADPP with Muhammad Haneef, A.S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 1071 #

2010 Y L R 1071

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD NAEEM alias NEEMUN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4417/B of 2009, decided on 25th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Attempt to commit Qatl-i-amd--Bail, grant of---Earlier bail petition was withdrawn and that withdrawal was simpliciter and same was not argued---No bar existed in bringing present bail petition---Only allegation against accused was that he had made fire in the air with 30 bore pistol---Co-accused to whom pistol shot at the right leg of injured had been attributed, stood allowed bail vide order of High Court---Case of accused was better than co-accused for the purposes of bail and accused was entitled to bail on that ground alone---Question of his sharing common intention definitely was to be gone into at trial--Mere commencement of trial was no ground to withhold the concession of bail to the accused, when he could otherwise be found entitled to the same---Accused was admitted to bail, in circumstances.

Muhammad Riaz v. The State 2002 SCMR 184 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Sarwar Khalil Samdani for Petitioner.

Ishfaq Ahmad Malik Dy. P.-G. for Respondent No.1./State.

Malik Shah Nawaz Khokhar for Respondent No.2/Complainnat.

Altaf Hussain, S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1073 #

2010 Y L R 1073

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

Rana MUHAMMAD BOOTA and another---Petitioner

Versus

MUHAMMAD AMIR---Respondent

Civil Revision No.576 of 2009, decided on 20th April, 2009.

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

----S.5---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for pre-emption---Rejection of plaint---Concealment of facts about valuation of disputed property---Plaint was rejected by Trial Court under O. VII, R.11, C.P.C. on the ground that the plaintiffs had concealed the facts with mala fide intention about valuation of the disputed property---Appeal filed by plaintiff was dismissed by the Appellate Court---Two applications were moved by the plaintiffs one mentioned sale consideration as Rs.800,000 and the other as Rs. 1,500,000---Plaintiffs deposited Zare-Soem to the sum of Rs.266,667 instead of Rs.500,000---Applications indicated that it was in the knowledge of the plaintiffs that price of the land had been fixed as Rs. 1,500,000---Plaintiffs had misled the Trial Court with a mala fide intention and fixed lesser Zar-e-Soem considering the price of disputed land as Rs. 800,000---Plaintiffs' plea that they were not in knowledge of the price of sale did not carry any weight---High Court declined to interfere in revisional jurisdiction---Revision petition was dismissed in limine.

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

----Ss.5 & 24(2)---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for preemption---Deposit of 1/3 of sale price (Zar-e-Some)---Limitation---Deposit of 1/3 of sale price of the disputed property has to be deposited upto 30 days of the filing of the suit and not beyond that and the amount has to be determined through process of approximation resulting in the probable value if there was nothing mentioned in the sale deed or the mutation---Period prescribed by the statute is a mandatory period---Trial Court was not authorized to extend the time of 30 days of deposit of Zar-e-Soem---High Court declined to interfere in revisional jurisdiction---Revision petition was dismissed in limine.

Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Haji Abdul Qadir v. Zafar Shaheen PLD 1997 Lah. 549; Hurford v. Omaha 4 Neb. 336; Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746; Ata Muhammad Qureshi v. The Settlement Commissioner, Lahore and 2 others PLD 1971 SC 61; Jamshed Ali and 2 others v. Ghulam Hassan 1995 CLC 957 and Mst. Wafa Jan v. Mehram Zad 1995 CLC 2202 rel.

Muhammad Amin Lone for Petitioner.

2010 Y L R 1091

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

NAWAB KHAN---Petitioner

Versus

KHUDA BAKHSH---Respondent

Civil Revision No.399-D of 1998, decided on 30th June, 2009.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.115---Declaration of title---Concurrent findings of fact by two courts below---Scope---Plaintiffs assailed two mutations attested in favour of defendants, allegedly on the basis of fraud---Trial Court and Lower Appellate Court dismissed suit and appeal respectively filed by plaintiffs---Validity--- Conclusions arrived at by both the courts below were elaborate and were based on cogent reasons---No misreading or non-reading of evidence or any other legal infirmity had been pointed out by plaintiffs with judgments rendered by courts below warranting interference by High Court in exercise of revisional jurisdiction---Concurrent findings of fact recorded by courts below were not open to exception unless it was established that the same suffered from any jurisdictional defect or were based on misreading or non-reading of evidence, which elements were conspicuously lacking in the case---High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees passed by two courts below against plaintiffs---Revision was dismissed in circumstances.

Aurangzeb through legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmad 2007 SCMR 926 rel.

Ch. Ghulam Aslam for Petitioners.

Ch. Muhammad Akbar for Respondents.

Date of hearing: 23rd June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1095 #

2010 Y L R 1095

[Lahore]

Before Hasnat Ahmad Khan, J

KARAM DAD and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.910-M of 2007, decided on 3rd March, 2008.

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

----Ss. 354 & 354-A---Criminal Procedure Code (V of 1898), Ss.561-A & 227---Assault or criminal force to woman with intent to outrage her modesty---Application for amendment of charge---Trial Court took the cognizance of the matter and charged the accused under S. 354, P. P. C.--Being dissatisfied, complainant/ respondent filed application before the Trial Court for amendment of the charge from S.354, P.P.C. to S.354-A, P. P. P.C. ---Said application was dismissed by the Trial Court---Revision petition against order of the Trial Court was accepted---Petitioners/accused filed petition under S.561-A, Cr. P. C. before High Court---Allegations as contained in the F.I.R. lodged by the respondent/ complainant, prima facie, did not attract the provisions of S. 354-A, P.P.C.---To attract provision of S.354-A, P.P.C. two conditions must be fulfilled and co-exist; firstly there should be stripping of the clothes of the victim; and secondly, the victim in that condition be exposed to the public view---In the present case, according to complainant himself the clothes of the victims were just torn and not stripped off---Second pre-requisite for the application of S.354-A, P.P.C., regarding exposure of the victim to the public at large, prima facie was also missing---Offence under S.354-A, P.P.C. being also punishable with death, Court should be very careful to indict accused under said section---Revisional Court while passing impugned order had failed to observe that the prosecuting agency, while registering the case and submitting challan itself had found that it was a case falling within the provisions of S.354, P.P.C.---Trial Court while taking cognizance and framing charge was also of the same view---Besides, prosecution's evidence in the case was yet to be recorded; it was not safe to indict petitioner under S.354-A, P.P.C. on the material available on record---Impugned order passed by the Revisional Court, suffering from illegality, was set aside and that of the Trial Court was restored.

(b) Interpretation of statutes---

----While interpreting a penal clause, the interpretation beneficial to accused should be preferred.

Muhammad Ramzan Chaudhry for Petitioners.

Shahid Mehmood Khan, Dy.P.-G. for the State.

Malik Shahid Iqbal Awan for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 1098 #

2010 Y L R 1098

[Lahore]

Before Muhammad Ashraf Bhatti, J

MUHAMMAD SALIM through Special Power of Attorney---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHEIKHUPURA and 4 others---Respondents

Writ Petition No.7818 of 2009, decided on 27th April, 2009.

Specific Relief Act (I of 1877)---

----S.42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plaintiff filed a suit for specific performance of agreement to sell in respect of the disputed property---Special power of attorney and general power of attorney---Execution of---Scope--- Suit was contested by representative of the defendant on plea of having power of attorney---Another representative of the defendant also contested the suit bearing special power of attorney and engaged counsel and wanted to file written statement on behalf of defendant---Trial Court turned down request of the representative bearing special power of attorney---Civil revision against the order of the Trial Court was also dismissed---Validity---Special power of attorney had not been properly executed and the same was also unregistered---Such being a worthless document, hardly creating any valid authority in favour of the holder---Said document was attested by Notary Public without proper identification of the executor---Person who had to identify such holder had not signed same---General power of attorney presented was a registered document and nothing had been placed on record to suggest that the executor ever had disowned it or cancelled or disputed it---Registered document was still in currency and would remain valid till it was revoked by the principal---In absence of verification and without proper probe, the holder of special power of attorney could not be treated as a duly authorized agent of the defendant nor had any vested right enforceable by law entitling him to file constitutional petition of the nature before High Court--High Court declined to interfere in constitutional petition.

Inayat Ullah Khan Niazi for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1101 #

2010 Y L R 1101

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MAZHAR ABBAS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4209/B of 2009, decided on 18th November, 2009.

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

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4---Manufacturing and possessing intoxicant---Bail, grant of---Offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, did not fall within the prohibitory clause of section 497(1), Cr.P.C.---Challan had been submitted in the Court, but no progress had been made---Accused was previously non-convict and non-record holder and was in jail for the last about four months---Keeping the accused behind the bars for an indefinite period would serve no useful purpose, as he was no more required for investigation---Accused was admitted to bail in circumstances.

Tariq Bashir and others v. The State PLD 1995 SC 34 and Imtiaz Ahmad and another v. The State PLD 1997 SC 545 ref.

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

----S.497---Bail---Unjustified incarceration of an innocent person on mistaken refusal of bail, not reparable---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent person for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run.

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

----S.497---Bail---Case not falling within the prohibitory clause--- Principle---Practice and procedure---Grant of bail in a non-bailable offence not hit by the prohibitory clause of section 397(1), Cr.P.C. is a rule and refusal thereof is an exception---Refusal of bail to a person entitled to same as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial---Such refusal cannot be justified on any high principles of ethics or morality.

Tariq Bashir and others v. The State PLD 1995 SC 34 and Imtiaz Ahmad and another v. The State PLD 1997 SC 545 ref.

James Joseph for Petitioner.

Syed Mukhtar Masood Bukhari, D.D.P.P. for State along with Muhammad Arshad, A.S.-I. with police record.

YLR 2010 LAHORE HIGH COURT LAHORE 1103 #

2010 Y L R 1103

[Lahore]

Before Pervaiz Ali Chawla, J

AHMAD HAYAT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and 2 others---Respondents

Writ Petition No.5738 of 2009, decided on 13th May, 2009.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---During pendency of petition for custody of minor, petitioner filed application praying that if a monthly visiting schedule was issued by the court, he would withdraw his petition for custody of minor---Trial Court while deciding said application of the petitioner, dismissed the petition of the petitioner under S.25 of the Guardians and Wards Act, 1890---On filing appeal against judgment of the Trial Court, Appellate Court had observed that petition for custody of minor was launched unauthorizedly by the petitioner and declined to remand the petition holding that in de novo trial, there was least chance of his success and allowed application for withdrawal of the main petition with the permission to the petitioner to file a fresh petition---Guardian Judge did not decide the issues between the parties as to whether the petition for custody of minor was filed by an unauthorized person---Observation of the Appellate Court was erroneous---Petitioner had once again reiterated his offer that if a visiting schedule be given by the Guardian Court, he would withdraw main petition for custody of the minor contending that now he was permanently residing in Pakistan---Impugned order was set aside and case was remanded to the Guardian Court with the direction to decide the application for giving visiting schedule first and then to decide afresh the main petition after affording an opportunity to the parties to lead their evidence.

Ch. Shahid Tabbasum for Petitioner.

Mrs. Salma Malik, Asstt. A.-G. for respondents Nos. 1 and 2.

Nasim Ullah Khan Niazi for Respondent No.3.

YLR 2010 LAHORE HIGH COURT LAHORE 1105 #

2010 Y L R 1105

[Lahore]

Before Maulvi Anwarul Haq and Abdul Sattar Goraya, JJ

Dr. IBRAR AYAZ RAJA---Appellant

Versus

GOVERNMENT OF PUNJAB and others---Respondents

I.C.A. No.20 of 2009, decided on 17th June, 2009.

(a) West Pakistan Foodstuffs (Control) Act (XX of 1958)---

----S.3--- Subsidized wheat---Policy---Petitioner had asserted that it being a non-government welfare organization was providing chakki aata to the patients free of cost and was entitled to be provided subsidized wheat as the Food Department was providing subsidized wheat to flourmills in Punjab and the petitioner was being treated discrimination---Government of Punjab, Food Department in exercise of its power under S.3 of the West Pakistan Foodstuffs (Control) Act, 1958 had formulated the flour milling policy by which the subsidized wheat could only be released to the flourmills which were enlisted with the Food Department---Flourmills were not entitled to sell the subsidized wheat/aata in the open market and the Government would retain effective control for supply of "aata" and then fixation of its price---Chakki owners were entitled to sale "aata" in open market and in a manner they like and they were not controlled by the Food Department---Chakki owners had not been listed with the Food Department in accordance with the policy under S.3 of the Foodstuffs (Control) Act, 1958---Order passed by the Single Judge was based on sound judicial consideration---Intra court appeal was dismissed.

Taj Din and Zilla Council Kasur and 3 others PLD 1990 Lah. 269 and Kh. Imran Ahmad v. Noor Ahmad 1992 SCMR 1155 ref.

Kh. Imran Ahmad v. Noor Ahmed and another 1992 SCMR 1152 rel.

(b) West Pakistan Foodstuffs (Control) Act (XX of 1958)---

----S.3---Constitution of Pakistan (1973), Art.18---Law Reforms Ordinance (XII of 1972), S.3---Lawful business of trade and profession---Restriction---Intra court appeal---Appellant asserted that Art.18 of the Constitution had given definite assurance of the lawful business of trade and profession and any restriction regarding to freedom of trade or business imposed by the authorities could be struck down---Authorities had not imposed any clog on the appellant or restriction to run lawful business or trade---Arguments advanced by the appellant having no force, and no illegality or error having been found in the order passed by Single Judge, intra court appeal was dismissed. ?

Mian Muhammad Saeed for Appellant.

Ch. Muhammad Sadiq, Addl. A.-G. with Hanif Shahid, S.O.

YLR 2010 LAHORE HIGH COURT LAHORE 1108 #

2010 Y L R 1108

[Lahore]

Before Tariq Javaid, J

NAVEED AKHTAR GILLANI---Petitioner

Versus

DIRECTOR, NFC INSTITUTE OF ENGINEERING AND TECHNOLOGICAL

TRAINING P.O. FERTILIZER PROJECT, MULTAN-Respondent

Writ Petition No.6084 of 2009, decided on 23rd December, 2009.

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

----Art. 199---Constitutional petition--Educational Institution---Admission-. Vested right---Infringement of---Proof--Petitioner's application for admission into the B.Sc. degree course was not entertained by the institution on the ground that institute had switched over from annual examination system to semester system and under the new scheme the exemptions which were being allowed in the past were discontinued---Contention of the petitioner was that he had joined the B-Tech. Pass course with a view that under the existing policy he would be entitled to join B.Sc. course being conducted by the institute and the change of the policy on the part of the institute had deprived him of his vested right to join the course in the 3rd semester (2nd year)--Validity---Pakistan Engineering Council had informed the institute to discontinue the practice of granting exemption to the candidates having B-Tech. Pass and B-Tech. Honours course---If Pakistan Engineering Council had decided not to equate petitioner's qualification with the first two semesters of the degree, it did not infringe any vested right of the petitioner--Constitutional petition was dismissed in limine.

Ameer Hamza v. Chairman Railways Board 1999 MLD 2346 ref.

Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917 and Muhammad Siddique v. University of Sindh PLD 1996 SC 182 rel.

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

----Art. 199---Constitutional petition---Educational Institution---Prerogative of---Enhancement of course requirements and qualification for admission, being prerogative of the Institution were to be decided by the respective Institutions and their Governing Bodies.

Rana Muhammad Nazir Saeed for Petitioner.

Sohail Iqbal Bhatti for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 1113 #

2010 Y L R 1113

[Lahore]

Before Sh. Azmat Saeed, J

GHULAM DASTAGEER---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GOJRA, TOBA TEK SINGH and 5 others---Respondents

Writ Petition No.14593 of 2009, decided on 28th January, 2010.

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

----S. 5 & Sched. --Constitution of Pakistan (1973), Art.199---Constitutional petition--- Maintenance allowance---Enhancement of---Plaintiff filed suit for recovery of dowry articles and maintenance allowance for herself and for minors---Trial Court decreed the suit and awarded maintenance to wife @ Rs.2,000 per month until the completion of iddat period and @ Rs.1,000 per head per month to minors---Appellate Court on appeal enhanced maintenance of the minors from Rs.1000 to Rs.1500 per month---Defendant asserted that maintenance awarded to the minors was excessive and should be reduced to Rs.1000 per month per minor---Validity---Father was bound to maintain his children---Maintenance in question did not appear to be excessive as the said amount would barely cover the expenses of the children. Amount awarded was neither perverse nor fanciful---High Court declined to interfere in constitutional Petition---Constitutional petition was dismissed by High Court.

Abdul Wahid Chaudhri for Petitioner.

Syed Zaman Haider for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 1117 #

2010 Y L R 1117

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD AKMAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2009 in Criminal Appeal No.1368, decided on 29th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S. 321---Qatl-bis-Sabab---Suspension of sentence---Co-accused with he similar role had already been acquitted by Trial Court---Questions whether any special circumstances existed to distinguish the case of accused from that of his said co-accused and whether medical evidence was sufficient to prove the charge against the accused, were to be determined by High Court---Chances for hearing the main appeal in near future were not in sight---If accused was ultimately acquitted, period served by him in jail would not in any manner be compensated, while in case of dismissal of his appeal, he would be only liable to pay the Diyat which even could be recovered from his assets---Sentence of accused was consequently suspended and he was released on bail accordingly.

Zahid Nawaz Cheema for Petitioner.

Ahsan Rasul Chattha, Dy.P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1118 #

2010 Y L R 1118

[Lahore]

Before S. Ali Hassan Rizvi, J

Mst. KOUSAR BIBI and 5 others---Petitioners

Versus

MUHAMMAD SHAHBAZ and 2 others---Respondents

Writ Petition No.16945 of 2008, decided on 26th 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 maintenance---Trial Court fixed maintenance allowance of the plaintiffs (minors) at the rate of Rs.1000 per month each, but Appellate Court modified judgment and decree of the Trial Court and fixed amount of maintenance at the rate of Rs.500 per month each with 10% annual increase---Validity---Appellate Court without any evidence observed that none of the plaintiffs were getting education from any institution---Defendant claimed that he was working as daily wager at the hotel of his father, which was not believable as in fact the defendant was owner of the hotel and he earned handsome money---Father of the minors/ plaintiffs was statutorily bound to provide maintenance to his minor children to be brought up in a better way---Appellate Court, in wrong appreciation of evidence without application of judicious mind passed the decree reducing the maintenance allowance---Keeping in view the patent illegality and misreading of evidence to the extent of reduction of maintenance 'allowance without any reason, impugned decree was set aside, but maintained to the extent of annual 10% increase---Judgment and decree of the Family Court was maintained and minors were also held to be entitled for the annual increase of 10% per year as awarded by the Appellate Court.

Ch. Sikandar Ali Janbaz for Petitioner.

Sardar Muhammad Ramzan for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 1120 #

2010 Y L R 1120

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD ZAHID KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAJANPUR and others---Respondents

Writ Petition No.1198 of 2009, decided on 4th November, 2009.

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

----S. 5, Sched. & S.19---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Suit for maintenance---Concurrent findings of courts below---Effect--- Plaintiff filed suit for maintenance for herself and for her three minor sons at the rate of Rs.2,000 per head per month, past maintenance as well as delivery expenses of her son---Defendant contested suit on the ground that plaintiff had left the house of the defendant of her own and went to her parents house---Defendant also filed suit for restitution of conjugal rights---Trial Court decreed the suit of the plaintiff for maintenance at the rate of Rs.1000 per head per month with effect from July, 2008 till their entitlement including delivery expenses of the son in consolidated judgment and decreed the suit for restitution of conjugal rights subject to payment of maintenance allowances and delivery expenses---Appellate court on appeal reduced the delivery charges of Rs.10,000 to Rs.2000 and directed the defendant to affix court fee of the value of the suit as Rs.34,000 within two weeks, failing which the appeal would be deemed to have been dismissed---Validity---Rate of maintenance allowances, where prices of each and every article of daily use has gone up, could not be said harsh and exhorbitant---Father of the children was bound to maintain them---Appellate court had ordered the defendant to affix the court fee on the valuation of the suit as Rs.34,000---Court-fee on appeal was affixed of Rs.15 which was in accordance with S.19 of the West Pakistan Family Courts Act, 1964, (as amended by Family Courts (Amendment) Ordinance (LV of 2002)]---High Court declined to interfere in concurrent findings with regard to maintenance allowances---Constitutional petition was disposed of accordingly. ?

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

----S.19---Court fee on appeal---Appellate court had ordered the defendant to affix the court fee on the valuation of the suit as Rs.34,000---Court-fee on appeal was affixed of Rs.15 which was in accordance with S.19 of the West Pakistan Family Courts Act, 1964, (as amended by Family Courts (Amendment) Ordinance (LV of 2002)]---High Court declined to interfere in concurrent findings with regard to maintenance allowances---Constitutional petition was disposed of accordingly. ?

Athar Rehman Khan for Petitioner.

Mehr Haq Nawaz Hamayun for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 1123 #

2010 Y L R 1123

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4333/B of 2009, decided on 24th November, 2009.

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

---S.497(2)---Penal Code (XLV of 1860), Ss.302/324---Qatl-i-amd and attempt to commit qatl-i-amd---Bail, grant of---Three persons including the accused were alleged to have fired on the legs of the injured witness, i.e. on the non-vital part of his body---Both the parties having got registered F.I.Rs. against each other regarding the same occurrence, case was of two versions and it was yet to be determined at the trial as to which version was correct and which party was the aggressor---One cogent ground recognized in law alone was sufficient for basing a finding or an order---Case of accused fell within the ambit of section 497(2), Cr.P.C. warranting further probe into his guilt---Accused had remained in Hospital for some time on account of injuries received by him after the occurrence and was behind the bars for the last about one year---Accused was enlarged on bail in circumstances.

Muhammad Akbar v. The State 2008 SCMR 1448 rel.

(b) Administration of justice---

----Criminal trial---Even one ground which may be cogent and recognized in law, may suffice in basing an order or finding of court and many grounds are not required for the purpose.

Muhammad Akbar v. The State 2008 SCMR 1448 ref.

Syed Athar Hassan Bukhari for Petitioner.

Ishfaq Ahmad Malik, Dy.P.-G. for Respondent No.1. /State.

Saghir Ahmad Bhatti for Respondent.

Muhammad Anwar, A.S.-I. with police record.

YLR 2010 LAHORE HIGH COURT LAHORE 1125 #

2010 Y L R 1125

[Lahore]

Before Hasnat Ahmad Khan and Zubda-tul-Hussain, JJ

MUHAMMAD AKRAM and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.568 of 2003 and Murder Reference No.88 of 2003, heard on 13th May, 2009.

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

----S.302(b)/34--Qatl-e-amd--Appreciation of evidence-F.I.R. had been lodged with more that reasonable promptitude---Police had reached the place of occurrence within no time and the police officer after recording the statement of the complainant had started investigation---Prosecution did not throw the net wide and for the murder of four persons had only implicated four persons---Chance of due deliberations and consultations, thus, stood obviated and Prosecution version could not be discarded only on the ground that the complaint was recorded at the spot---Salient features of the motive stood proved and failure of accused to put forward any parallel version in their defence had further strengthened the prosecution story qua the motive---Despite the contradictory statements made by two eye-witnesses during investigation and trial, another eye-witness who was a natural witness of the occurrence had remained steadfast against the accused without having succumbed to the pressure built by the accused or the political influence---Evidence of the said eye-witness could not be discarded, which was duly corroborated by medical evidence and other attending circumstances---Conviction of accused could be maintained on the basis of solitary statement of an eye-witness, provided the same rang true---Credibility of the witness was of significance and not the number of witnesses---Opinion of police regarding innocence of accused was neither admissible in evidence nor binding on the court---Non-recovery of weapons of offence from the accused was of no help to them, when prosecution case stood proved against them by ocular evidence---No mitigating circumstance was available in favour of accused---Convictions and sentences of death awarded to accused were affirmed in circumstances.

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

----S. 302(b)/34--Qatl-e-amd--Appreciation of evidence---Conviction can be based on the reliable statement of a solitary eyewitness---Credibility of the witness matters and nor the number of the witnesses--Conviction can be maintained on the basis of solitary statement of an eye-witness, provided the same rings truth.

----S. 302(b)/34--Qatl-e-amd--Appreciation of evidence--Investigation--Police opinion---Opinion of police is neither admissible in evidence, nor is binding on the courts.

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

----S. 302(b)/34--Qatl-a-amd--Appreciation of evidence---Non-recovery of incriminating articles--- Effect--- Recovery of incriminating articles is only a corroboratory piece of evidence, and if prosecution succeeds to prove its case by ocular evidence, then the same cannot be disbelieved only on the score that recovery could not be effected from the accused.

Muhammad Ghani for Appellants.

Naeem Tariq Sanghera, Dy.P.-G. for the State.

Sadaqat Mehmood Butt for the Complainant.

Date of hearing: 13th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1136 #

2010 Y L R 1136

[Lahore]

Before Muhammad Ashraf Bhatti, J

LIAQAT ALI---Petitioner

Versus

JUDGE, FAMILY COURT, HAFIZABAD and 3 others---Respondents

Writ Petition No.7654 of 2009, decided on 2nd July, 2009.

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

----S. 5 Sched. & S.17A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Maintenance allowance to two minors was awarded respectively at the rate of Rs.1200 and Rs.1000 with 20% annual increase, but defendant/judgment-debtor had failed to pay the same and the defence of defendant was struck off---Maintenance allowance granted to the mother of the minors was decreed ex parte, which could be challenged by the defendant before the appropriate forum---Counsel for the defendant had opted not to press constitutional petition to seek remedy before the court of competent jurisdiction--Constitutional petition was dismissed as having not been pressed.

Shahid Ali Shakir for Petitioner.

Muhammad Shahid Usman for Respondents Nos.2 to 4.

YLR 2010 LAHORE HIGH COURT LAHORE 1137 #

2010 Y L R 1137

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD YOUSAF and 5 others---Petitioners

Versus

MUHAMMAD MAALIK and 16 others---Respondents

Civil Revision No.457-D of 2007, heard on 12th June, 2009.

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

----S.42---Civil Procedure Code (V of 1908), S.12(2)---Gift deed---Proof---Decree based upon fraud and misrepresentation, setting aside of---Converting suit into application under S.12(2), C.P.C.--Scope--Judgment and decree dated 26-7-1979 passed in favour of defendants was assailed by plaintiffs but both the courts dismissed suit and appeal concurrently on the ground that instead of filing suit, plaintiffs should have filed application under S.12(2), C.P.C. ---Validity---Plaintiffs filed suit on 25-1-1992 and application under S.12(2), C.P.C. was introduced in year, 1980---Finding of Trial Court regarding non-maintainability of suit was not in accordance with law and Trial Court could have treated the suit as application under S.12(2), C.P.C., as there was no bar on Trial Court to do so---Under Islamic law there were three necessary ingredients for completion of valid gift but defendant failed to produce any evidence in respect of offer, acceptance and delivery of possession regarding gift deed in question---Defendant admitted in his statement that possession of plaintiffs over suit land was maintained without any interruption and at the time of gift deed possession of land was not transferred to him---Gift deed in question also did not fulfil legal requirements for completion of valid gift i.e. offer, acceptance and delivery of possession as defendant failed to prove his possession over land in question at the time of gift, thus gift deed was liable to be cancelled---In order to prove genuineness of decree dated 26-7-1979, defendant who was beneficiary of that decree did not produce evidence including counsel who filed earlier suit on behalf of plaintiffs of that suit, therefore, decree, dated 26-7-1979, was based on fraud and misrepresentation---Both the courts below committed illegality and infirmity in their judgments and the same were set aside and case was remanded to Trial Court for decision afresh---Revision was allowed accordingly.

(b) Islamic law---

----Gift---Necessary ingredients of-Under Islamic law there were three necessary ingredients for completion of valid gift but defendant failed to produce any evidence in respect of offer, acceptance and delivery of possession , regarding gift deed in question---Defendant admitted in his statement that possession of plaintiffs over suit land was maintained without any interruption and at the time of gift deed possession of land was not transferred to him---Gift deed in question also did not fulfil legal requirements for completion of valid gift i.e. offer, acceptance and delivery of possession as defendant failed to prove his possession over land in question at the time of gift, thus gift deed was liable to be cancelled.

Noor Muhammad v. Additional District Judge, Chakwal and 7 others PLD 1994 Lah. 170 and Shafi Muhammad and others v. Khanzada Gul and -others 2007 SCMR 368 ref.

Noorul Amin and others v. Muhammad Hashim and 27 others 1992 SCMR 1744; Safia Bibi v. Aisha Bibi 1982 SCMR 494; Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139; Abdul Aziz v. Abdul Rahim PLD 1984 SC 164; Thal Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd. and others 1979 SCMR 32'; Zakarullah and 16 others v. Muhammad Ilyas and others 2002 YLR 2885; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Saleem Akhtar v. Nisar Ahmed PLD 2000 Lah. 385; Muhammad Aslam v. Muhammad Tufail and 2 others 1995 CLC 1061 and 2003 SCMR 41 rel.

Malik Javed Akhtar Wains for Petitioners.

Rayee Moeen-ud-Din for Respondents.

Date of hearing: 12th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1143 #

2010 Y L R 1143

[Lahore]

Before Muhammad Ashraf Bhatti, J

Rana MANZOOR AHMAD---Petitioner

Versus

MUHAMMAD AZEEM and another---Respondents

Writ Petition No.15310 of 2008, decided on 18th May, 2009.

(a) West Pakistan Urban Rent Restriction Ordinance (IV of 1959)---

----S. 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ejectment of tenant---Non-deposit of amount as arrears of rent---Effect---Landlord filed ejectment petition claiming violation of terms and conditions settled in the tenancy agreement by the tenant---Trial Court directed the tenant/defendant to deposit an amount of Rs. 6,08,000 as an arrears of rent for the last 19 months---Defendant/tenant had neither paid rent nor observed the terms and conditions of the rent deed---Order of ejectment passed by Trial Court was well-reasoned warranting no interference by the High Court in exercise of its constitutional powers---Constitutional petition was dismissed in limine.

(b) West Pakistan Urban Rent Restriction Ordinance (IV of 1959)---

----S. 13---Constitution of Pakistan (173), Art.199--- Constitutional petition---Ejectment of tenant---Order passed by the Trial Court was interlocutory in nature---Impugned order of Trial Court could be challenged in appeal on final disposal of ejectment petition---Constitutional petition was not competent when order passed was of interlocutory in. nature---High Court declined to interfere in constitutional petition---Constitutional petition was dismissed in limine.

----S. 13---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Ejectment of tenant---Not-delivery of possession---Contention of the tenant was that he despite have paid an amount of Rs.1,00,000 as a security of rented premises, had not been delivered possession of the rented premises--Factums of delivery or otherwise of possession of the rented premises or sub-letting thereof required recording of evidence to resolve the controversy which exercise could not be undertaken by High Court in constitutional petition---High Court declined to interfere in .the constitutional jurisdiction---Constitutional petition was dismissed in limine.

Bashir Ahmad Khan v. Malik Mehdi Khan and another 1987 CLC 1620 and Muhammad Saeed v. Mst. Saratul Fatima and another PLD 1987 Lah. 1459 rel.

Muzamil Akhtar Shabbir for. Petitioner.

Qamar Zaman Qureshi for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 1145 #

2010 Y L R 1145

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Dr. SAUD UL HASSAN KHAN and another---Petitioners

Versus

PROVINCE OF THE PUNJAB through Secretary, Higher Education and 3 others---Respondents

Writ Petition No.9229 of 2009, decided on 26th June, 2009.

Societies Registration Act (XXI of 1860)---

----S. 16-A---Constitution of Pakistan (173), Art.199---Constitutional petition---Punjab. Public Library---Governing Body of library, dissolution of---Punjab Public Library was established in the year 1884 for general public---Provincial Government had taken control of the Punjab Public Library after inquiry report which stated that affairs of the library were not in accordance with the law and financial irregularities were also found---Contention of the petitioner was that Societies Registration Act, 1860 did not empower Provincial Government to dissolve the governing body and take over the control of the library and the action taken should be declared illegal and unlawful in violation of the constitution of Punjab Public Library---Validity---Provincial Government had powers to initiate an inquiry; after holding such inquiry the authorities found that the governing body of the Punjab Pubic Library was unable to discharge its duties and also was unable to perform its financial obligations---Governing Body of Punjab Public Library was acting in a manner contrary to the public interest as well as the interest of members of the library---Provincial Government had taken action under S.16-A of the Societies Registration Act, 1860 after holding an inquiry and forming an opinion that the affairs of the Punjab Public Library were not in accordance with law and financial irregularities had been detected---Constitutional petition was dismissed by High Court.

Khalid Habib for Petitioner.

Waqas Qadeer Dar, Asstt. A.-G. for Respondent.

Miss Shama Zia, Dy. Secretary Education Department.

YLR 2010 LAHORE HIGH COURT LAHORE 1154 #

2010 Y L R 1154

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

RASHID HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4017/B of 2009, decided on 29th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-D/337-F(i)/379/34--- Theft and causing injury---Bail, refusal of---Accused was nominated in the F.I.R.---Specific role was attributed to accused, who caused injury on the vital part of injured with sharp edged weapon, which might prove fatal for the injured---Case of co-accused being distinguishable from accused, accused could not claim the same relief---Offence under S.337-D, P.P.C. fell within the prohibited clause of S.497, Cr.P.C.---Accused gave repeated blows to the victim---Sufficient material was available on record which connected accused with commission of offences---Victim had himself implicated accused in the statement recorded under S.161, Cr.P.C.---Bail petition was dismissed in circumstances.

Masood Asif Butt for Petitioner.

Tanveer Haider Buzedar, D.D.P.P. with Qayyum Akhtar, S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 1156 #

2010 Y L R 1156

[Lahore]

Before Ch. Iftikhar Hussain, J

NAWAB KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.3305/B & 3853-B of 2009, decided on 23rd November, 2009.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/148/149--- Qatl-i-amd---Bail, grant of---Co-accused in the case had been allowed bail---Case of two versions of one incident and it was yet to be ascertained that which of those versions was correct---Accused persons were admitted to bail, in circumstances.

(b) Criminal trial---

----Even one ground which could be cogent and recognized in law, could 'suffice to base an order or finding by the court.

Ali Shehryar v. The State 2008 SCMR 1448 ref.

Zaffarullah Khan Khakwani for Petitioner (in Criminal Miscellaneous No.3305/B of 2009).

Muhammad Qasim Khan for Petitioner (in Criminal Miscellaneous No.3853/B of 2009).

Ishfaq Ahmad Malik, Dy. P.-G. for Respondents Nos.1 and 2 (in both these petitions).

Shoukat Sultan, Inspector Range Crimes, Multan with record.

YLR 2010 LAHORE HIGH COURT LAHORE 1161 #

2010 Y L R 1161

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD SHAFI and 8 others---Petitioners

Versus

MULTAN DEVELOPMENT AUTHORITY, MULTAN through Director-General, Multan and 7 others---Respondents

Writ Petitions Nos.1485, 1486, 1487, 3753 of 2009 and 1060 of 2007, decided on 2nd June, 2009.

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

----S.3(f)---Public purpose, question of---Determination---Scope---Essence of public purpose being a matter within exclusive domain of Acquiring Agency/ Government---Principles.

Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 rel.

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

---S.4---Land acquisition, notification of---Notice to individual land owner of proposed acquisition, issuance of---Scope---Issuance of such notice not necessary under S.4 of Land Acquisition Act, 1894--- Publication of such notification in official Gazette and newspaper would be considered as sufficient notice to landowners of proposed acquisition.

----Ss.3(f), 4 & 7---Punjab Development of Cities Act (XIX of 1976), S.12(3)(4)---Constitution of Pakistan (1973), Arts.24 & 199--- Land acquisition for establishment of Housing Scheme by Provincial Government---Plea of landowners that other land owned by Government being available could be utilized for such scheme; and that proposed scheme was not for a public purpose'---Validity---Suitability of land for proposed scheme could be determined only by Acquiring Agency---Acquisition of land for a Housing Scheme for a limited and specified segment of society was apublic purpose' as benefit thereof would ensue to entire community; in other words, entire general public or class of persons could purchase a house under a Housing Scheme---Individual interest must give way to interest of community or general public or part thereof---Competent authority had approved Housing Scheme after completing all codal formalities---Award had been announced---High Court in constitutional jurisdiction could not resolve disputed questions of fact raised by petitioners, who could avail alternate remedy under S.16 of Land Acquisition Act, 1894---No legal or vested right of petitioners had been violated---High Court dismissed constitutional petition in circumstances.

Federal Government Employee's Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079; Mahboob Sabir and others v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2002 YLR 2591 = PLD 2002 Kar. 128; Muhammad Saeed v. Collector Acquisition Land, Mansehra and 3 others PLD 1996 Pesh. 22; Commissioner (Revenue), Islamabad/ Deputy Commissioner District Collector ICT/ Assistant Commissioner, Saddar, Islamabad and another 2000 YLR 1711 and Mst. Sardar Begum v. Lahore Improvement Trust, Lahore and 3 others PLD 1972 Lah. 458 ref.

Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. through the Secretary Fortress Stadium, Lahore Cantt. and 2 others PLD 1983 Lah. 552; Raja Muhammad and others v. Province of Punjab and others PLD 1983 Lah. 365; R. L. Arora v. The State of Uttar Predesh and others AIR 1962 SC 764; Muhammad Ashiq v. WAPDA PLD 2005 Lah. 345; Federation of Pakistan through G.M. Telegraph & Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarter, Lahore and 2 others 1993 SCMR 1673; Pakistan through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others PLD 1950 SC 60; Sub. (Rtd.) Muhammad Ashraf v. District Collector, Jhelum and others PLD 2002 SC 706 and PLD 2009 SC 217 rel.

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

----S.4---Land acquisition, notification of---Validity---Duty of court to explore every possible explanation for validity of such notification issued by competent authority.

Lahore Improvement Trust Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others and University of the Punjab, Lahore v. Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811; Raja Basharat Hussain and 3 others v. Capital Development Authority, Islamabad through its Chairman and 3 others 2004 YLR 629; Mahmud Khan and another v. Government of the- Punjab through District Collector, Lahore and 2 others 2005 YLR 1133; Shalimar Fabrics v. District Officer Revenue 2005 MLD 789; Manzoor Hussain and 19 others v. AJ&K Government through Chief Secretary, Muzaffarabad and 4 others 2005 YLR 1527 and Makhdoom Ahmad Ghauns v. Chairman, town/Municipal Committee and 3 others 1994 CLC 430 rel.

(e) Mala fide---

----General allegations of mala fide would have no force---Allegation of mala fide should be specific and not general---Easy to allege mala fide, but difficult to prove same---Person alleging mala fide would be bound to prove same.

Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan Rawalpindi v Saeed Ahmad and the Secretary, Department of Education, Government of Punjab v. M.R. Toosy, Ex-Principal, Government College, Sargodha and others PLD 1974 SC 151; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 and Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 other 1997 SCMR 296 rel.

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

----Ss.3(f) & 4---Acquisition of land for establishment of a Housing Scheme/ Colony, is `public purpose'---Principles.

Acquisition of land for a Housing Scheme for a limited and specified segment of society is a `public purpose', where the benefit would ensue to the entire community. Individual interest must give way to interest of the community or general public or a part thereof. Judicial notice of acute shortage of accommodation and rehabilitation facilities of general public can be taken by the High Court. Suitability of the land or determination of question of "public purpose" is to be decided by the Acquiring Agent/Government. Order passed by the public functionaries has to be given weight. The establishment of a Housing Colony for the benefit of a specified segment of citizens does not offend against the fundamental rights enshrined in the Constitution.

It is the prerogative of the Government to decide about the public Purpose.

Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Or. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. through the Secretary Fortress Stadium, Lahore Cantt. and 2 others PLD 1983 Lah. 552; Raja Muhammad and others v. Province of Punjab and others PLD 1983 Lah. 365; R.L. Arora v. The State of Uttar Pradesh and others AIR 1962 SC 764; Muhammad Ashiq v. WAPDA PLD 2005 Lah. 345; Federation of Pakistan through G.M. Telegraph & Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/ Assistant Commissioner, Headquarter, Lahore and 2 others 1993 SCMR 1673; Pakistan through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others PLD 1950 SC 60; Sub. (Rtd.) Muhammad Ashraf v. District Collector, Jhelum and others PLD 2002 SC 706 and PLD 2009 SC 217 rel.

Malik Muhammad Awais Khalid for Petitioners.

Muhammad Amin Malik, Mian Abbas Ahmed, Addl. A.-G. Rahat Ullah, Asstt., Musa Khan, Dy. Director Legal, M. Rafiq and Khalil Ahmad, Head Clerk for Respondents.

Date of hearing: 11th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1170 #

2010 Y L R 1170

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD NAEEM and another---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8974/B of 2009, decided 4th September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(i), (ii), (iii), (v)--Attempt to qatl-a-amd---Bail, grant of---Further inquiry--Initial report regarding the occurrence was made by accused by way of F.I.R. registered with Police Station concerned---Accused had alleged that complainant in the case and others, while armed with lethal weapons, had trespassed into their house and murdered his mother---Accused had further mentioned that the complainant in the case while armed with .30 bore pistol had fired at his deceased mother hitting her on the left side of her neck and another similar shot hitting on the left chest and she fell down and died instantaneously---Deceased was shown to have been killed by accused's side and complainant in the case had got recorded complaint regarding the same occurrence---Two versions of the incident---Was yet to be determined as to who had initiated the aggression and who was aggressed upon---Such question was to be determined at trial---Case of accused persons, in the circumstances, certainly was one of further inquiry into their guilt and so was covered under subsection (2) of S.497, Cr.P.C.---Accused were behind the bars and were not required for any purpose of the investigation---Accused were admitted to bail, in circumstances.

Ch. Fayyaz Ahmed for Petitioner.

Sahibzada M.A. Ameen Mian, Addl. P.-G. for Respondents.

Muhammad Abbas, S.-I. with the Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1175 #

2010 Y L R 1175

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

LAL DIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3791/B of 2009, decided on 28th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, refusal of--Accused was nominated in the F.I.R. with specific role, who caught hold of arm of the deceased and facilitated main accused causing hatchet blow to deceased---Challan had been sent to Trial Court, trial had commenced, accused were charge sheeted and Prosecution evidence had been summoned---Trial ,having commenced, it was not fair to go into the merits of the case at bail stage---Sufficient material was on Police file to connect accused with the commission of offence, which fell within the prohibitory clause of S.497, Cr. P. C. ---Counsel for accused had failed to make out the case as one of further inquiry or to establish any reasonable ground for grant of bail---Bail petition of accused, was dismissed, in circumstances.

Muhammad Sadiq and others v. The State 1980 SCMR 203; Mst. Parveen Akhtar v. The State and others 2002 SCMR 1886; Manzoor Ahmad v. The State PLD 1972 SC 81 and Waris Ali v. The State 2001 SCMR 640 ref.

Altaf Ibrahim Qureshi for Petitioner.

Tanveer Haider Buzedar, A.D.P.P. with Muhammad Afzal S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 1177 #

2010 Y L R 1177

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SHAHID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9664/B of 2009, decided on 25th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque--Bail, grant of---Accused was behind the bars for the last over five months---Offence alleged against accused did not attract the prohibition contained in S.497(1), Cr.P.C.---Grant of bail in such cases was a rule and refusal an exception---No exceptional circumstances were available in the case to warrant refusal of the relief of bail to accused, who was stated to be previous non-convict---F.I.R. showed that accused had extended to the complainant threats of life, when complainant demanded back his money---Said matter, if taken true, same maximum would attract an offence under S.506, P.P.C., which again was not covered within prohibitory clause of S.497, Cr. P. C.---Case for enlargement of accused on bail having been made out, accused was admitted to bail.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Muhammad Riaz v. The State 2002 SCMR 184 ref.

Rehan Zafar for Petitioner.

Mrs. Azra Israr, Dy.P.-G. for the State.

Arshad Ali, S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1180 #

2010 Y L R 1180

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

KHIZAR HAYAT---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4433/B of 2009, decided on 4th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/365-B/379/337-A(ii)/337-L(ii)/337-H(ii)/337-F(ii)/452/148/149---Abduction---Bail, grant of-Further inquiry---Accused was behind the bars since 31-7-2007 and no progress took place in the trial---Accused could not be kept behind the bars for an indefinite period---Alleged abductee, in fact was abducted by the complainant who got prepared bogus Nikahnama---Factually alleged abductee had married with brother of accused---Statement of alleged abductee that she was not abducted by accused or his brother, had made the case of accused that of further inquiry---Co-accused having been allowed bail, accused was also entitled to release on bail on the principle of consistency---Accused was allowed bail, in circumstances.

Ch. Khalid Mehmood Basra for Petitioner.

Syed Mukhar Masood Bukhari, D.D.P.P. for the State with Abdul Hayee, S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 1182 #

2010 Y L R 1182

[Lahore]

Before Ch. Iftikhar Hussain, J

MEHDI HASSAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8551/B of 2009, decided on 11th September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.376---Rape---Bail, grant of---Further inquiry--Accused though was named in the F.I.R. with allegation of abduction and commission of rape with alleged abductee, but his case was that the complainant/lady was his legally wedded wife and in that regard he relied upon the Nikahnama---Nikahnama showed that their marriage was solemnized much prior to alleged incident and even the registration of the case---Complainant lady had gone to the competent Family Court with the plea of false pretence of marriage with her on the part of accused and she denied to have entered into valid Nikah with the accused---Such question was always to be gone into by the competent Family Court and any verdict therefrom would determine the question of validity or otherwise of the Nikah---Till such time, case against the accused would call for further inquiry into his guilt---Case, in the circumstances was covered under subsection (2) of S.497, Cr.P.C.---Period of detention of accused was spread over about six months---Trial though had commenced, but mere commencement of trial could hardly be a clog in the way of accused to seek bail, particularly, when his case could otherwise be found fit for bail on the observation of further inquiry into his guilt---Case for bail having been made out, accused was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Liaqat Ali Malik for Petitioner.

Ch. Fiaz Ahmad, Dy. P.-G. for the State.

Ch. M. Ashraf Goraya for the Complainant.

Rana Aurangzeb, A.S.-I. with police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1188 #

2010 Y L R 1188

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

GHULAM FAREED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3342/B of 2009, decided on 20th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-L(i), 365-B & 376---Kidnapping and rape---Bail, refusal of---Alleged abductee who was minor girl aged 14/15 years in her statement had fully implicated the accused in her abduction---Abductee in her statement made before Magistrate under S.161, Cr.P.C. had also deposed that she was subjected to zina-bil-jabr by accused and his co-accused collectively---Weapon of offence was also recovered---Prosecution witnesses in their statements recorded under S.161, Cr.P.C. had implicated accused in the commission of forcible abduction of alleged abductee---Much material was on the file to connect accused along with other co-accused in the commission of offence under Ss.365-B & 376, P.P.C., which fell within the prohibitory clause of S.497, Cr.P.C.---Bail petition of accused was dismissed in circumstances.

2008 YLR 690; 1989 MLD 1671; 2009 YLR 1074; 2008 YLR 1062; 1988 PCr.LJ 53; 2008 YLR 2357; 1989 MLD 4464 and 2003 PCr.LJ 385 ref.

Haider Kifayat Abbasi for Petitioner.

Ch. Imtiaz Ahmad for the Complainant.

Shahid Iqbal Malik, D.D.P.P. with Muhammad Asghar, S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 1197 #

2010 Y L R 1197

[Lahore]

Before Ch. Iftikhar Hussain, J

SARDAR ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9210/B of 2009, decided on 28th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324, 337-A(i)(ii), 148 & 149---Bail, grant of---Attempt to qatl-e-amd---Accused was behind the bars for the last about 17 months and even challan had not been submitted in the court against him---Speedy trial was right of every accused---Non-submission of Malian during such a long period was simply a fault on the part of the prosecution---Prolonged agony of trial certainly could be said to be a matter/case of hardship---Accused had made out a fresh ground for bail to him in view of delay in his trial---Accused was admitted to bail, in circumstances.

Muhammad Iqbal alias Bali v. The State 2008 YLR 864 and Haji Muhammad Hanif alias Arif v. The State 2006 PCr.LJ 1839 ref.

Muhammad Iqbal alias Bali v. The State 2008 YLR 864 and Muhammad Hanif alias Arif v. The State 2006 PCr.LJ 1839 rel.

Ch. Zulfiqar Ali Moazzam for Petitioner.

Ch. Fayyaz Ahmed, Dy. P.-G. for the State.

Ch. Asif Shehzad for the Complainant.

Muhammad Ameen, S.-I. with police record.

YLR 2010 LAHORE HIGH COURT LAHORE 1200 #

2010 Y L R 1200

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ALLAH NAWAZ---Petitioner

Versus

THE STATE and 6 others---Respondents

Criminal Miscellaneous No.3952/B of 2009, decided on 13th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17/22---Receiving money on the pretext of providing foreign employment---Conditional bail, grant of---Counsel for accused had submitted that son of accused had undertaken to make the payment of the arrears of the total amount to the affectees---Affectees present in the court had no objection, if accused was granted bail conditionally---Accused was admitted to bail subject to his furnishing bail bonds---Bail order was conditional and accused would make the payment to affectees and if he would not make payment, within specified period, concession of bail would be withdrawn.

Tahir Mehmood for Petitioner.

Sardar M. Irshad Dogar for the Complainant.

Kh. Noor Mustafa, D.A.-G. with Ghulam Babi Khan, Assistant Director, F.I.A., Multan.

YLR 2010 LAHORE HIGH COURT LAHORE 1204 #

2010 Y L R 1204

[Lahore]

Before Ch. Iftikhar Hussain, J

ZAHEER AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8860/B of 2009, decided on 11th September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Opinion of police---Co-accused declared innocent---Masoom-ud-Dam, doctrine of---Applicability---Deceased was allegedly having illicit relations with sister of accused, who was attributed only role of raising Lalkara, while two co-accused were declared innocent by police during investigation---Validity---Finding of police regarding non presence of two co-accused at the spot at relevant time suggested that entire prosecution story was to be viewed with caution and was not above suspicion, as such the same left room to entertain doubt regarding involvement of accused as well in the case---Deceased was carrying on with sister of accused and he often used to tease them over the same---Such also showed that deceased was not Masoom-ud-Dam in the matter for having illicit liaison with sister of accused---Question of vicarious liability, if any, would be determined at trial and not at bail stage---Case against accused was one of further inquiry covered under S.497 (2) Cr. P. C. ---Accused was behind bars for last about one year and his trial was yet not commenced, therefore, he was entitled to grant of bail---Bail was allowed in circumstances.

Abdul Razzaq v. The State 2000 PCr.LJ 1868; Rajib Ali v. The State 2005 YLR 3243 and Sabir Hussain alias Pehlwan v. The State 2007 PCr.LJ 1159 rel.

Ch. Nazir Ahmad Ranjha for Petitioner.

Ch. Fiaz Ahmad, Dy P.-G. for the State.

Rai Zameer-ul-Hassan Kharal for the Complainant.

Muhammad Khalid, S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1207 #

2010 Y L R 1207

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD AJMAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4171/B of 2009, decided on 20th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.376---Rape---Bail, refusal of---Accused was nominated in the F.I.R. for having raped the complainant---Chemical Examiner's report was positive---Complainant could not be believed to degrade herself by exposing to such a heinous crime without any reason---Accused had firstly taken photographs of the complainant through a mobile phone camera and thereafter subjected her to Zina-bil-Jabr by taking her inside a room---Prosecution witnesses had fully supported the prosecution story---Offence fell within the prohibitory clause of S.497(1), Cr.P.C.---Charge had been framed and case was now fixed for prosecution evidence---Discussion of merits or demerits of the case at such stage was not appropriate, which might prejudice the case of either party---Sufficient material was available on the Police file to connect the accused with the commission of the offence---Bail was refused to accused in circumstances.

Malik Ahmad Shehzad Jhoorar for Petitioner.

Syed Mukhtar Masood Bukhari, D.D.P.P. for State.

Makhdoom Sajid Aleem for the Complainant.

Bashir Ahmad, A.S.-I. with Police Record.

YLR 2010 LAHORE HIGH COURT LAHORE 1211 #

2010 Y L R 1211

[Lahore]

Before Muhammad Khalid Alvi, J

M. ANWAR---Petitioner

Versus

Mst. KANWAL BIBI---Respondent

Writ Petition No.5003 of 2007, decided on 9th July, 2009.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Trial Court decreed the suit for maintenance for plaintiff to the tune of Rs.800 per month, for her two minors to the tune of Rs.500 per month each without even fixing any annual increase---Appellate Court had upheld findings of the Trial Court---Appeal filed by the defendant before the Appellate Court was incompetent on account of the bar contained under S.14 of West Pakistan Family Courts Act, 1964---Amount of maintenance to the tune of Rs.500 per month to the minors and that too without any annual increase, was improper as with that much amount a child could not survive---Father was duty bound to maintain his minor children properly---Impugned order was modified with regard to the amount from Rs.500 per month to Rs.1000 per month with the annual increase of 10%.

Rao Javed Khurshid for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1212 #

2010 Y L R 1212

[Lahore]

Before Abdul Sattar Goraya, J

Rana ZILADAR KHAN---Petitioner

Versus

PROVINCE OF PUNJAB through Collector Sialkot and 3 others---Respondents

Civil Revision No.1887 of 2007, heard on 29th May, 2009.

Punjab Land Acquisition Rules, 1983---

----R. 14---Specific Relief Act (I of 1877), S. 42---Land acquisition---Non-utilization of acquired land---Effect---Plaintiff's land was acquired by the Punjab Government to establish colony scheme---Colony scheme was abolished and possession of disputed land remained with the plaintiff (landowner)---Plaintiff filed suit for declaration and return of the disputed land which was decreed by the Trial Court---Provincial Government filed appeal which was accepted by the Appellate Court---Plaintiff asserted that colony scheme had been abolished by the authorities and the disputed property had not been utilized and that the property should be returned to the plaintiff on the same price on which the acquisition was made---Validity---Sufficient evidence had been brought on the record that the disputed property had not been utilized for establishment of the colony scheme and it was still lying vacant---On account of the maladministration on the part of the authorities, the plaintiff had suffered a tremendous loss and due to arbitrary exercise of power on the part of the authorities, had been deprived of his bread and butter---Appellate Court had gone by the consideration that there was no provision in the Land Acquisition Act, 1894 which empowered the court to return the disputed land if it was not utilized for the purposes it was acquired--Rule 14 of the Punjab Land Acquisition Rules, 1983 was there which would come in aid to the plaintiff---High Court accepted the revision petition and set aside the appellate order.

Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others PLD 1993 SC 455 rel.

Mian Tahir Maqsood for Petitioner.

Amjad Ali Chattha, Asstt. A.-G. for Respondents.

M. Ilyas Khan, Naib Tehsildar, Daska, Sialkot.

Date of hearing: 29th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1216 #

2010 Y L R 1216

[Lahore]

Before Mian Saqib Nisar and Ali Akbar Qureshi, JJ

Mst. UMATUL MOBEEN---Appellant

Versus

MUHAMMAD AZIZ---Respondent

Regular First Appeal No.327 of 2003, heard on 25th May, 2009.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 119---Suit for specific performance of sale agreement---Admission of execution of agreement by defendant, but pleading that plaintiff taking advantage of her illiteracy got her signatures thereon---Effect---Burden heavily shifted to defendant to prove such allegations through evidence.

Dil Murad and others v. Akbar Shah 1986 SCMR 306 and Sandeo Mauar v. Pulesar Nonia AIR 1930 Patna 598 rel.

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

----S. 12---Civil Procedure Code (V of 1908), O. VI, R.4---Suit for specific performance of sale agreement---Admission of execution of agreement by defendant, but pleaded that plaintiff taking advantage of her illiteracy got her signatures thereon---Validity---Suit was filed after six months of execution of agreement, but defendant had not taken any step to get same cancelled on any ground---Defendant in written statement had not given particulars of fraud as required by O. VI, R.4, C.P.C.; that she was a "pardahnasheen" lady; and that contents of agreement were not read in her presence---Defendant in written statement had admitted execution of agreement and receipt of part payment of sale consideration thereunder---Defendant could not produce even a single witness except herself to prove her such plea, which was found to be unfounded and baseless---Suit was decreed in circumstances.

Noor Muhammad Khan and others v. Habibullah Khan and others PLD 1986 Pesh. 97 rel.

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 113---Specific performance of sale agreement, suit for---Admission of execution of agreement by defendant--Effect---No need to prove execution of agreement and payment of money thereunder.

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

----S. 12---Contract Act (IX of 1872), S.23---Sale of property located in Cantonment Board---Suit for specific performance of agreement---Defendant's plea that according to Rules of Cantonment Board, suit property was not divisible; and that sale without permission of GHQ or Military Estate Officer was against law---Validity---Defendant was well aware about such Rules---Such agreement was not illegal or against public policy.

Sami-ul-Haq v. Dr. Maqbool Hussain Butt and others 2001 SCMR 1053 rel.

Muhammad Saleem Chaudhry for Appellant.

K.J. Khattak and M.Zafar Iqbal for Respondent.

Date of hearing: 25th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1220 #

2010 Y L R 1220

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD UMAR QURESHI---Appellant

Versus

Mrs. ANJUM EHSAN---Respondent

F.A.O. No. 167 of 2009, decided on 2nd February, 2010.

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

----Ss.17 & 24(2)---Ejectment of tenant---Tenant kept on making payment of monthly rent to landlady but subsequently failed to make the same---Tenant could not deny the relationship of landlord and tenant in presence of sale deed of the property in question in favour of the landlady.

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

----Ss. 17 & 24(2)---Landlord and tenant, relationship of---Determination---Estoppel, principle of--- Applicability--- Scope---Striking off defence of tenant on the ground of non-payment of arrears of rent--Validity---Tenant was estopped to agitate said order if he had made statement before Trial Court that he had deposited Rs.558,000 as arrears of rent--Tenant had been afforded opportunities to produce receipts of the arrears of rent but had failed to produce the same---Such fact when put in juxtaposition with the grounds of appeal, attracted the principle of estoppel---Trial Court had rightly struck off the defence of the tenant.

PLD 1966 Kar. 470 and 1981 CC 1251 ref.

M. Naeem Saqib for Appellant.

Waqar A. Sheikh for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 1227 #

2010 Y L R 1227

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

GHULAM JANNAT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DERA GHAZI KHAN and 11 others---Respondents

Writ Petition No.9326 of 2009, decided on 22nd December, 2009.

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

----S. 12(2)---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art. 199--- Constitutional petition--Suit for declaration--- Compromise---Recalling of order of withdrawal of suit---Application under S.12(2) of C. P. C---Suit not finally decided---Effect---One of the plaintiffs made a statement for withdrawal of the suit to her extent and recorded her statement on 22-7-2008---Case was heard on different dates---During pendency of the suit application for recalling order of withdrawal of the suit was filed---Trial Court accepted application of the plaintiff---Revision petition filed by defendant was dismissed by revisional court---Contention of the defendants was that plaintiff should file application under S.12(2), C.P.C. for setting aside the withdrawal order---Validity---After 22-7-2008, the suit continued to proceed and on 23-4-2009 the suit was finally decided---Plaintiff had no option except to file an application for recalling order dated 22-7-2008---Order dated 22-7-2008 was not final order which could not be assailed under S.12(2) C. P.C---Revision petition was dismissed in limine.

Shaukat Rehman v. Tamour Ahmad Khan 2004 CLC 281 ref.

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

----Art. 199--- Constitutional petition---Concurrent findings--- Effect---Concurrent findings of facts could not be disturbed in writ jurisdiction unless there was some jurisdictional defect in the orders which were assailed in the writ petition.

Mian Anwar Mobeen Ansari for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1229 #

2010 Y L R 1229

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAMZAN and 3 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3308/B of 2009, decided on 11th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(ii)---Penal Code (XLV of 1860), Ss. 302/452/337-L(ii)/148/149---Qatl-i-amd, house trespass and hurt---Bail, grant of---General role of beating the complainant party was only assigned to accused in the F.LR.---None of accused was ascribed any specific injury either to the deceased or to the injured witness---Deceased according to medical report had died due to heart-attack---Both the parties had sustained injuries during the incident and had been challaned on each other's version---Question as to which party had acted in aggression, was yet to be determined---Case of accused, thus, was covered under section 497(2) Cr.P.C. calling for further inquiry---Commencement of trial could not clog the grant of relief of bail to accused--Bail was allowed to accused in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Sardar Manzoor Ahmad Khan for Petitioners.

Ashfaq Ahmad Malik, Dy. P.-G. for the State.

Muhammad Qasim Khan for Complainant.

Amir Ahmad, S.-I. with police record.

YLR 2010 LAHORE HIGH COURT LAHORE 1231 #

2010 Y L R 1231

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD RAMZAN and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6563/B of 2009, decided on 16th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.440, 337-11(ii), 148, 149 & 109---Anti-Terrorism Act (XXVII of 1997), S.7---Mischief committed after preparation made for causing death or hurt and punishment for hurt by rash on negligent act---Bail, refusal of---Offence charged with was committed in a very desperate and dreadful manner---Accused could not be allowed bail simply on the ground that none of the offences allegedly committed by them, fell within the prohibitory clause of S. 497, Cr. P. C. --- Cases of accused falling outside the prohibitory clause of S. 497, Cr. P. C. normally though could not be declined bail, but accused could not claim bail on the said ground as a matter of right, rather the bail could be refused even in such like category of cases---Crime weapons were recovered from the possession of accused persons---Tentatively speaking, the prosecution was equipped with sufficient incriminating material against accused persons which demonstrated their high-handedness---Such like desperadoes could not be let loose in the society---Previous record of accused persons being far from bright was very pathetic, shocking and alarming---One of accused persons had a long list of 13 criminal cases against his name---Said list included the cases of murder, dacoity, robbery etc.---Registration of numerous criminal cases against accused persons had shown that they were not men of clean slate in case of bail---Chances of repetition of the crime and jumping the bail by accused persons could not be ruled out---Accused persons having not been found to be entitled to the concession of bail, their application for bail, was dismissed.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 rel.

Muhammad Chand Khan for Petitioner.

Qazi Zafar Iqbal, A.P.-G. with Altaf Magsi, A.S.-I. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1234 #

2010 Y L R 1234

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

Mst. SARWAR MAI and another---Petitioners

Versus

JUDGE FAMILY COURT, MUZAFFARGARH and others---Respondents

Writ Petition No.1807 of 2007, decided on 10th July, 2009.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition--Additional evidence, recording of---Suit for jactitation of marriage was decreed in favour of plaintiffs by Family Court and same was maintained by Lower Appellate Court---Defendants sought production of additional evidence in their favour---Validity---Defendants did not seek production of additional evidence before relevant forum and asked for such relief at belated stage---Nothing was mentioned by defendants about discovering some new facts or evidence subsequent to the decision of courts below or what prevented them from production of proposed evidence at relevant time---High Court could proceed in the matter on the basis of material/evidence produced by parties without taking additional evidence--Application was dismissed in circumstances.

Muhammad Sarwar and others v. Rehmat Ali 1998 MLD 1622; Muhammad Sarwar and others v. Rehmat Ali and others 2005 CLC 1719; Muhammad Shafi v. Mst. Zainab Bibi and others PLD 1959 Lah. 941; Muhammad Ali and another v. Abdul Khaliq and another PLD 1958 Lah. 226; Ali Muhammad v. Nazir Ahmad and another 1999 YLR 456; Mst. Begum through legal heirs and 27 others 2000 CLC 744; Ghulam Ahmad Chaudhary v. Akbar Hussain through Legal Heirs and another PLD 2002 SC 615; Zar Wali v. Yousaf Ali Shah 1992 SCMR 1778; State of U.P., v. Manbodhan Lal, Srivastava AIR 1957 SC 912; Jawala Singh and others v. Jagdish Singh and others AIR 1941 Lah. 144; Jamadar Singh v. Sheikh Naiyab Ali AIR 1941 Calcutta 378 and Munna Lal v. Radha Kishan AIR 1915 Allahabad 476 ref.

Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550; Muhammad Ikhlas and others v. Muhammad Ismail and others PLD 1963 SC 466; The Secretary to the Government of West Pakistan, Communication and Works Department and another v. Gulzar _Muhammad PLD 1969 SC 60; Kesarmal and another v. N.K.V. Valliapaa Chettiar PLD 1954 Privy Council 101 and State of U.P. v. Manbodhan Lal Srivastava AIR 1957 SC 912 rel.

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

----S.5 & Schell.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Jactitation of marriage--- Factual controversies--- DNA Test (Deoxyribonucleic Acid Test)---Scope---Plaintiffs alleged that defendants were not wife and son of deceased who was a lunatic and Nikahnama in favour of defendant was a bogus document---Suit for jactitation of marriage was decreed in favour of plaintiffs by Family Court---Judgment and decree passed by Family Court was maintained by Appellate Court--Defendants sought permission for conducting of DNA Test of deceased---Validity---Test would not be conducive and the same would not serve any useful purpose except unnecessary delay, multiplicity of litigation, which could create other complications---High Court could not assume role of investigator to hold inquiry---DNA Test by itself could not set the matter at rest, when it was being opposed by contesting party with right to produce its rebuttal---Such proceedings would tantamount to fresh trial needing a factual inquiry, which was beyond the scope of constitutional jurisdiction---There would be no certainty with such test report, when dead body and grave might not be identifiable due to lapse of considerable period and carrying out such test under grave doubts would create further complications instead of resolving the matter---High Court therefore, declined to allow DNA Test---All factual and legal controversies between the parties had been comprehensively concluded by concurrent findings recorded in judgments of both the courts below delivered after duly appraising entire evidence adduced by parties---Neither any mis-reading or non-reading of evidence had been found in judgments and decrees passed by both the courts below, not the same suffered from. any jurisdictional defect---High Court, in family matters, had no jurisdiction to substitute its own findings in place of concurrent findings of facts of courts below---High Court declined to interfere in judgments and decrees passed by two courts below---Petition was dismissed in circumstances.

Azhar Amin alias Naji v. The State 2008 PCr.LJ 824 page 830; Arab Jhanglu v. Panjalshah Yakubalishah and another AIR 1938 Sindh 198; Messrs Rice Export Corporation of Pakistan Ltd. v. Karachi Metropolitan Corporation through Director Octroi and another PLD 1990 Kar. 186; Sapphire Textile Mills v. Collector of Central Excise and Land Customs, Hyderabad 1990 CLC 45; Shah Jahan and others v. Syed Amjad Ali, Hawaldar and others 2000 SCMR 88; Muhammad Ibrahim v. Mst. Farzana and another PLD 1994 Kar. 255; Shri Sohan Lal v. Union of India and another AIR 1957 SC 529; Muhammad Nazim v. Mst. Rehana Parveen Begum and 3 others 1990 MLD 344; Muhammad Azhar v. The State PLD 2005 Lah. 589; Manzoor Ahmad and others v. Khan and 35 others 2007 CLC 1028; Manzoor Hussain v. Zahoor Ahmad 1992 SCMR 1191; Manzoor-ul-Haq v. Kaneez Begum 1991 CLC 109; Khurshid Alam and another v. Al-Khair Gadoon Limited 2004 CLC 1266; Mst. Sakina Bibi v. Federation of Pakistan and others PLD 1992 Lah. 99; Muhammad Rafique and others v. Muhammad Ali and others 2004 SCMR 704 Alam Din and 14 others v. Muhammad Ali and 35 others 1999 MLD 2146 and Muhammad Hanif and others v. Muhammad Khan and others PLD 1996 Lah. 58 rel.

----Art. 199--- Constitutional petition---Limitation---Unexplained delay---Effect--Law of limitation is required to be construed strictly---Where long period of delay is not explained, superior courts would not show indulgence in the matter of condonation---Question of limitation being not a mere technicality cannot be taken lightly-Right accrued to other party due to limitation cannot be snatched away without sufficient cause---Equity leans in favour of those who are vigilant---Although no period of limitation has been provided for constitutional petition under Art.199 of the Constitution yet the same has to be filed within a reasonable period of time.

Allah Nawaz Sheikh v. Punjab Labour Appellate Tribunal, Lahore and another 1997 SCMR 573; Shahid Pervaiz alias Shabir Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631; Rehmat Din and others v. Mirza Nasir Abbas and other 2007 SCMR 1560; Abdullah and others v. Muhammad Amin 1968 SCMR 1235: S. Sharif Ahmed Hashmi v. The Chairman, Screening Committee, Lahore and other 1980 SCMR 711; Mst. Hawabai and others v. Muhammad Siddique and another 1987 SCMR 591; Pakistan through Chairman, Railway v. The Punjab Labour Court No.2, Lahore and 2 others 1982 CLC 711; Mubarak Ali and others v. Settlement and Rehabilitation Commissioner with Delegation of Powers of Chief Settlement Commissioner PLD 1968 Lah. 903; Khan Bahadur v. Sher Ahmed and 3 others PLD 1993 Pesh. 241; Babu Singh and others v. Union of India and others AIR 1979 SC 1713; Wajdad and 2 others v. Mir Muhammad Baluch and another PLD 1982 Quetta 41; Mansoor Ahmad v. Burtnah Eastern Limited and another PLD 1969 Dacca 94; Sh. Muhammad Hafiz Ullah v. Ghulam Yasin and others 1970 SCMR 41; Mahboob-ur-Rehdnan v. Government of West Pakistan PLD 1968 Lah. 1085 and Shams Din v. Aman Ullah and 3 others PLD 1987 Lail. 471 ref.

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

----Art.199---Constitutional jurisdiction of High Court--- New plea, raising of---Scope---Plea not raised in lower forum cannot be permitted to raise in constitutional jurisdiction.

Shah Jahan and other v. Syed Amjad Ali Hawaldar and others 2000 SCMR 88; 2007 MLD 1710; Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859; Santosh Kumar Saha v, District Magistrate of Faisalabad another PLD 1959 Dacca 738 and Muhammad Nazim v. Mst. Rehana Perveen Begum and 3 others 1990 MLD 344 rel.

Malik Mumtaz Hussain for Petitioner.

Mian Abbas Ahmad, Addl. A.-G. and Sh. Muhammad Rafique Goreja for Respondents.

Syed Athar Hassan Bokhari, Amiens Curaie.

Date of hearing: 12th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1246 #

2010 Y L R 1246

[Lahore]

Before Muhammad Ashraf Bhatti, J

BOOTA and another---Petitioner

Versus

ALLAH RAKHI and others---Respondents

Civil Revision No.83 of 2002, decided on 7th May, 2009.

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

----S.42---Suit for declaration claiming to be the owners in possession of the disputed property as legal heirs of their predecessor-in-interest who jointly with predecessor-in-interest of the defendants had purchased land through registered sale deeds---Trial Court dismissed suit of the plaintiffs---Appellate Court accepted appeal of the plaintiffs and set aside the order passed by Trial Court---Contentions of the plaintiffs were that their predecessor-in-interest had never adopted predecessor-in-interest of defendants as his son "Mutbana" nor predecessor-in-interest of defendants were legally entitled to inherit his property---Defendants had failed to place on record any tangible evidence to prove adoption, except oral assertion during trial that predecessor-in-interest of the plaintiffs had, during his life time, given his share to predecessor-in-interest of defendants which was not supported by any documentary evidence---Defendants could not prove that predecessor-in-interest of the plaintiffs had made any gift or will or taken any other step to show his intention that his share of the said joint property would be transferred to his alleged adopted son---Purchase made by predecessor-in-interest of the plaintiffs in his own name left no doubt that predecessor-in-interest of defendants had nothing to do with that share of the property which naturally had to be devolved upon the legal heirs of the predecessor-in-interest of plaintiffs after his death---Trial Court had indeed erred in law in arriving at the conclusion that defendants could inherit the disputed property left by predecessor-in-interest of the plaintiffs---Findings by the Appellate Court were perfectly correct and in accordance with law and evidence on record---Revision petition was dismissed by High Court.

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

----S.42---Suit for declaration---Custom amongst the Muslim families who later migrated to Pakistan from India on partition of Sub-Continent existed that an adopted son would be entitled to inheritance---Scope---In absence of any proof of existence of the custom for inheritance of property to adopted son, it would be presumed that the rights were governed by Islamic Law of inheritance.

Asghar Ali v. Mst. Mewa PLD 1999 Lah. 1185; Mst. Farida and 2 others v. Rehmatullah and another PLD 1991 SC 213 and Nawabzada Shamsher Ali Khan v. Nawabzada Afzal-ud-Din Mirza and others 1974 Law Notes 95 Lah. rel.

----S.42--- Suit for declaration---Inheritance--- Limitation--- Impugned mutation was got attested without any legal title in favour of the defendants, depriving the rightful owners as legal heirs of the predecessor-in-interest of the plaintiffs, they would be deemed to be the owners of the disputed property right from the day when their predecessor-in-interest joined the majority to the extent of the share of predecessor-in-interest of the plaintiffs and shall also be deemed to be in possession thereof along with co-sharers---No limitation shall apply in case of inheritance.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811 and Rehmat Ullah and others v. Saleh Khan and others 2007 SCMR 729 ref.

C.M. Sarwar for Petitioners.

Ghulam Farid Sanotra for Respondents.

Date of hearing: 16th April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1250 #

2010 Y L R 1250

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ARSHAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2009 in Criminal Appeal No.1040 of 2009, decided on 11th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-i-amd---Suspension of sentence---Pistol shot fired by accused had missed---Accused was not attributed any injury to any prosecution witness---No charge was framed under S.324, P.P.C---Question whether the conviction and sentence of accused was maintainable or not, was yet to be determined by High Court---Hearing of the main appeal in near future was not possible and accused was likely to serve out his whole sentence before the fixation of the appeal for final hearing---Sentence of accused was suspended and he was released on bail in circumstances.

Muhammad Ahssan Nizami for Appellants.

Ahsan Rasool Chattha, Dy.P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1252 #

2010 Y L R 1252

[Lahore]

Before Abdul Sattar Goraya, J

SHAFQAT ALI---Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No.1028 of 2009, heard on 2nd July, 2009.

(a) West Pakistan Land Revenue Rules, 1968---

----Rr.17 & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Lambardar---Hereditary claim and rule of primogeniture--Permanent Lambardar of the Chak concerned had expired; to fill in vacancy applications were invited and the respondent was appointed as a permanent Lambardar on the vacant post by the District Collector---Appeal filed by petitioner was accepted by the Commissioner with direction to District Collector to invite fresh applications and the person from the majority group should be appointed as a Lambardar---Both the parties challenged the order in revision petition before Member Board of Revenue who accepted the revision of the petitioner and dismissed the revision filed by the respondent---Further revision petition filed by the respondent was accepted by the Senior Member Board of Revenue and the choice of the District Collector was restored in the order---Contention of the petitioner was that the petitioner's father was a permanent Lambardar and Rule 17 of the Land Revenue Rules, 1968 as well as rule of primogeniture was applicable to his appointment as a permanent Lambardar---Validity---Petitioner's father was a permanent Lambardar and the petitioner had been working as a Sarbrah Lambardar and belonged to a majority tribe of the locality---Post of Lambardar fell vacant in that year when the rule of primogeniture was there---All appointments prior to the invalidation of the said rule had to be made in accordance with that very rule---Constitutional petition was accepted by the High Court.?

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 rel.

Haji Noorwarjan v. Senior Member Board of Revenue, N-W.F.P. Peshawar and others PLD 1991 SC 531 ref.

(b) West Pakistan Land Revenue Act (KVII of 1967)---

----S. 8---West Pakistan Land Revenue Rules, 1968, Rr.17 & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Lambardar---Review---Scope---Senior Member Board of Revenue remanded case after rehearing of the review petition---Petitioner asserted that the impugned order passed in review jurisdiction was clearly without jurisdiction---Validity---Senior Member Board of Revenue passed the impugned order in exercise of his power under S.8 of the West Pakistan Board of Revenue Act, 1957---Power to exercise emanated from the statute and therefore, it was imperative upon the Court or Tribunal of limited jurisdiction to remain within the four corners of the conditions laid down in S.8 of West Pakistan Board of Revenue Act, 1957---Power of review could only be exercised under S.8 of the West Pakistan Board of Revenue Act, 1957 if there was some substantial error apparent on the face of the record which after due diligence could not be brought on the record---Review did not permit rehearing of the matter---Constitutional petition was allowed by the High Court.?

Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307 rel.

M. Anwar Sipra for Petitioner.

Amjad Ali Chattha, A.A.-G. with M. Tahir Ilyas, Superintendent for Respondents Nos. 1 and 3.

Raja Ghulam Hassan Khan for Respondents.

Date of hearing: 2nd July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1257 #

2010 Y L R 1257

[Lahore]

Before Ali Akbar Qureshi, J

JAMIL AHMAD SHEIKH---Petitioner

Versus

Ch. ZAFAR IQBAL and another---Respondents

Writ Petitions Nos.92/R & 96/R of 2007, decided on 30th July, 2009.

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

----Ss.2 & 3---General Clauses Act (X of 1897), S. 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Evacuee land---Petitioner claimed to be transferee for valuable consideration from original allottee, who was allotted land in lieu of claim of his predecessor---Plea of respondent being in possession of land was that such allotment was result of fraud and misrepresentation as per revenue record issued by Indian Revenue Authorities and attested by Pakistan High Commission, predecessor of original allottee had never migrated to Pakistan and he died in India on 26-12-1991---Cancellation of such allotment by Chief Settlement Commissioner after consulting Revenue and Settlement Department's records and conducting inquiry by holding that same was based on bogus and fabricated orders as no person by name of original allottee existed and that person by name of original allottee or his predecessor had never migrated to Pakistan---Validity---Settlement Authority could interfere with allotment order procured by playing fraud and misrepresentation---Order procured by fraud could simply be ignored when pressed into service---Authority having passed an order would be entitled to vary, amend, add to or rescind same---Transactions in name of original allottee or petitioner had no sanctity in law--Impugned order was legal---High Court dismissed constitutional petition in circum?stances.?

Abdul Majid and another v. Qazi Abbas Hussain Shah 1995 SCMR 429; Muhammad Shafiq and others v. Atta Muhammad and others 1985 SCMR 1272; Messrs Rizwan Cooperative Society Ltd. v. Lahore Development Authority and others 1990 SCMR 1660; Masihullah and another v. The Deputy Settlement Commissioner-II, Board of Revenue Punjab 1995 SCMR 914; Mrs. K.P. Boga and others v. Ejaz Ahmad Khan, Deputy Settlement Commissioner, Lahore 1991 MLD 835; Shah Nawaz (deceased) through Mst. Rashidan and others v. Muhammad Sharif and another 1991 CLC 342; Bashir Ahmad and 5 others v. Mst. Hamida Begum and 5 others 2003 CLC Lah. 374; Abdur Rashid and 12 others v. Chief Settlement Commissioner/Deputy Commis?sioner, D.I. Khan and 5 others 2000 MLD 1726, Din Muhammad and 6 others v. Member, Board of Revenue Punjab/Chief Settlement Commissioner, Lahore 2006 CLC 168 Lah.; Muhammad Tahir and others v. Nazeer Ahmad 2008 SCMR 541; Mst. Badshah Begum and others v. The Additional Commissioner (R.) Lahore Division and others 2003 SCMR 629; Ussama Tariq v. Administrator (Residual Properties)/Additional Commissioner (Revenue), Lahore Division, Lahore and 3 others 2003 SCMR 616; Abdul Qadir and 14 others v. Member (Revenue) Board of Revenue, Punjab, Lahore 2002 YLR 2105; Maulana Atta-ur-Rehman v. Al Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Mst. Khalida v. Raja Muhammad Khurshid Khan 2008 CLC 1570 (High Court AJ&K); Glaxo Laboratories Ltd. v. Inspecting Assistant Commissioner of Income Tax and others PLD 1992 SC 549; Mehboob Ali and another v. Mst. Sharifan Bibi and 21 others 1991 CLC 1201 Lah.; Muhammad Durwaish v. Haji Muhammad Hussain alias Haji Gul and 7 others 1999 CLC 106 Pesh. ; Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan 1989 SCMR 704; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; 1993 CLC 1943; Khair Din v. Mst. Salman and others PLD 2020 SC 677; Waheed Ahmad and others v. additional Commissioner (Revenue)/Settlement Commissioner, Rawalpindi Division, Rawalpindi and others 1990 CLC 220; Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; Shamrooz Khan v. Muhabbat Khan and another 1989 SCMR 819; Muhammad Baqir v. Haji Shokat Ali and 3 others 2005 CLC 1106 and Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901 ref.

Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801; Muhammad Baqir v. Shokat Ali and 3 others 2005 CLC 1106 Lah; Custodian of Evacuee Property, Lahore v. Syed Saif Uddin Shah (Represented by his heirs) PLD 1981 SC 565; Khair Din v. Mst. Salman and others PLD 2002 SC 677; Waheed Ahmad and others v. Additional Commissioner (Revenue)/Settlement Commissioner Rawalpindi Division Rawalpindi and others 1990 CLC 220 Lah; Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others 2003 SCMR 1221; Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Shamrooz Khan v. Muhabbat Khan and another 1989 SCMR 819; Yar Muhammad and 3 others v. Settlement Commissioner (L), Lahore and 5 others 1985 SCMR 1346; Misri Khan v. Settlement Commissioner 1994 CLC 2225 Lah; Nazir Ahmad v. Commissioner Gujranwala Division Gujranwala 1993 CLC 1943 and Talib Hussain and others v. Member Board of Revenue and others 2003 SCMR 549 rel.

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

----Art. 199---Constitutional jurisdiction, exercise of----Scope---Such jurisdiction could be exercised only when impugned order or action was against law.?

----Order procured by fraud could simply be ignored when passed into service.?

Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901 rel.

Muhammad Saleem Sheikh for Petitioner.

Muhammad Iqbal Bajwa for Revenue Department.

Mehmood A. Sheikh for Respondent No.1

Sh. Abdul Aziz and Muhammad Zafar Ch. for Respondent No.2.

Date of hearing: 9th July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1271 #

2010 Y L R 1271

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

WARIS ALI and 3 others---Petitioners

Versus

SECRETARY, LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT, LAHORE and 5 others---Respondents

Writ Petiti6n No.14734 of 2009, heard on 8th October, 2009.

Punjab Union Administration (Budget) Rules, 2003----

----R. 40(2)--Punjab Local Government Ordinance (XIII of 2001), S. 109 (6)---"New development projects" and "on going development projects"---Distinction---Development projects on which no expenditures incurred previously would be termed as "new" development projects---Development projects on which expenditures incurred in previous years would be termed as "on going" projects---Approval of annual development projects and issuance of their work orders in current year could not be considered to be ongoing project of previous year as no expenditures incurred thereon---

Illustration.

Dr. M. Mohy-ud-Din Qazi for Petitioners.

Muhammad Azeem Malik, Addl. A.-G. Ali Sarfraz, DLO, Sheikhupura, Amjad Hussain, TMO, Sheikhupura, Shah Faisal Aziz, Asstt. Director Legal, Sheikhupura, and Baby Tabassum Litigation Officer, LG&CD, Punjab, Lahore.

Date of hearing: 8th October, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1300 #

2010 Y L R 1300

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD HANIF---Petitioner

Versus

THE STATE and others---Respondents

Crl. Miscellaneous No.1410-B of 2010, decided on 24th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/148/149--- Qatl-i-amd and attempt to commit qatl-i-amd---Bail, grant of---Further inquiry---One' person who had received one firearm injury died from the side of the complainant and other injured received three injuries which were caused by blunt weapon as per medico legal report----Two persons, accused and his father were injured from the side of accused; they both received two injuries, which had been suppressed in the F.I.R.---Case was that of two versions---If accused was otherwise entitled to the concession of bail, same could not be withheld on the ground that the trial had commenced---Charge was framed in 2009 and statement of only two prosecution witnesses, who were formal in nature, had been recorded---Private complaint had been filed by accused wherein the complainant party had been summoned and proceedings were being concluded in the complaint case instituted by the complainant---Question as to which party was aggressor and which party was aggressed upon was to be determined by the Trial Court after recording of the evidence of the parties---Case was of two versions, one set out in the F.I.R. and the other in the complaint which was subsequently instituted by the father of accused, which had brought the case of accused within ambit of subsection (2) of S.497 calling for further inquiry---Accused was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Fayyaz Ahmad v. The State 1997 PCr.LJ 847; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Fazal Muhammad Ali Ahmad 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 rel.

Sh. Naveed Shahryar for Petitioner.

Mian Tariq Ahmad for the Complainant.

Ch. Muhammad Zafar Khan, Dy. P.-G., Punjab with Shan S.-I., M. Aslam, S.-I. and Muhammad Abbas Tarar, S.-I. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1303 #

2010 Y L R 1303

[Lahore]

Before Ijaz Ahmad Chaudhry and Ch. Iftikhar Hussain, JJ

IMRAN alias MANI BUTT and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1126, 1351 and M.R. No. 661 of 2003, heard on 9th February, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Duration observed by the doctor between death and post-mortem examination of deceased, was 22 to 24 hours---Said delay in conducting the post-mortem examination was sufficient to draw an inference that F.I.R. was not recorded with promptitude-F.I. R. which was recorded after preliminary investigation, could not be used as corroborative piece of evidence to the ocular account, but same had to be taken into consideration with due care and caution---Complainant was real brother of deceased, while prosecution witness was maternal uncle of the deceased---Both said eye-witnesses were related inter se and with deceased closely---No doubt mere relationship of eye-witnesses was not sufficient to declare them as interested witnesses, when no previous enmity existed between the parties, however, that alone was not sufficient to believe the witnesses straightaway, but they were bound to show that they were present at the spot and the occurrence had taken place in the manner narrated by them---Prosecution witness who was resident of different colony was a chance witness as the occurrence had not taken place where he could be present as per his usual routine---Prosecution witness had failed to give any specific reason for accompanying the deceased and accused at the place where deceased had gone to make telephone call---Prosecution witness also failed to disclose any reason for being present at the spot---Both complainant and prosecution witness during cross-examination had failed to satisfy that they were present at the spot at the time of incident---Ocular account was not found trustworthy as same could not be relied upon for recording conviction in a case of capital sentence without independent corroboration---Ocular account was not fully supported by the medical evidence and the prosecution had failed to show that the occurrence had taken place in the manner narrated by the eye-witnesses---Recovery of weapon from accused was legally inconsequential and positive report of Forensic Science Laboratory could not be relied upon and used as a corroborative piece of evidence to the ocular account, which otherwise had been discarded by the court---Prosecution having not been able to prove its case against accused beyond any shadow of doubt, impugned judgment of conviction and sentence recorded by the Trial Court against accused was set aside and he was acquitted of the charge by extending him benefit of doubt and was released.

Atta Muhammad's case 1995 SCMR 599 ref.

Muhammad Tahir Mahmood, for Appellant (in Criminal Appeal No.1126 of 2003.)

Agha I. A. Imran for the Complainant.

Agha I.A. Imran for appellant-Complainant (in Criminal Appeal No.1351 of 2003).

Sahibzada M.A. Amin Mian, Addl. P.-G. for the State.

Date of hearing: 9th February, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1309 #

2010 Y L R 1309

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

Mst. BISMA SAFDAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.2327 of 2008, decided on 16th June, 2009.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Custody of minor--- Welfare--- Scope--- Earlier application of the plaintiff under S.25 of the Guardians and Wards Act, 1890 for permanent custody of the minors was disposed of as a result of compromise and it was settled that minors would remain with the defendant/father and they should be handed over to plaintiff on each Saturday for 24 hours and the father/ defendant should pay Rs.500 for the maintenance of the minors---Plaintiff filed another application under S.25 of the Act for the custody of minors on account of violation of the terms and conditions of the compromise which was dismissed by the Guardian Court---Appeal filed by the plaintiff was also dismissed by the Appellate Court---Validity---Guardianship of minor boy being more than two years old, presumption according to Shia Law governing the parties lay in favour of the father---Father though having no independent house in Pakistan but allegedly was employed at a handsome salary abroad and wished to take his son there for his education---Mother not yet employed and resources of grandmother were also meagre, for meeting needs of her large number of dependants---Boy wished not to go with father---Father though not regularly providing maintenance for child yet such failure on his part not rebutting presumption of child's welfare lying in being given his custody to father at his present age---No illegality or infirmity or misreading of evidence had been pointed out by the plaintiff calling for interference by High Court---Constitutional petition was dismissed by High Court.

Mst. Asma v. Distt. Judge and others PLD 1987 Lah. 263, Mst. Ghulam Sakina v. Nasim Haider 1979 CLC 4; Fateh Muhammad v. Additional District Judge, Minawali and another NLR 1987 Civil 850; Hamayat Khan and another v. Ahmad Din and 2 others 1983 SCMR 59; Rehim Ullah Chaudhary v. Mrs. Sayeda Helali Bagum and others 1974 SCMR 305; Muhammad Hussain Munir v. Sikandar PLD 1972 SC 139; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 rel.

Tahir Mahmood for Petitioner.

2010 Y L R 1327

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ASLAM---Petitioner

Versus

SHAZIA BANO and 4 others---Respondents

Writ Petition No. 6581 of 2010, decided on 5th April, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Adopted child---Maintenance allowance, grant of---Plaintiff filed suit for recovery of maintenance to herself and to the minors---Trial Court decreed the suit to the extent of minors and allowed maintenance at the rate of Rs.1500 per month per head with annual increase of 10% to minor daughters till their marriage and to minor sons till their age of majority but refused maintenance to the wife---Appeal filed by defendant was allowed and the Appellate Court modified the judgment and decree of the Trial Court and reduced maintenance from Rs.1500 to Rs.1000 per month per head with annual increase of 10%---Contention of the defendant was that one of the minor daughters was an adopted child who was not entitled to receive maintenance allowance---Validity--Held, adopted child was not entitled to inherit from the estate of a person who adopted it but there was no such bar in law that an adopted child was not entitled to receive maintenance from the person who adopted it particularly when the defendant himself pleaded that he was ready to pay maintenance to the adopted child if the custody of adopted child was handed over to him---Rupees 1000 was a petty amount--Survival was not possible with such a meagre amount of Rs.1000 per month as maintenance---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed in limine.

Rana Nadeem Ahmad for the Petitioner.

2010 Y L R 1374

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD ARSHAD---Appellant

Versus

FAROOQ AHMAD---Respondent

S.A.O. No.19 of 2008, decided on 16th June, 2009.

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

----S.13---Expiry of terms of lease agreement--- Determination--- Relevant law---Rights and liabilities of tenant would be governed by provisions of West Pakistan Urban Rent Restriction Ordinance, 1959.

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

----S.13(6)--- Ejectment petition---Deliberate non-compliance of tentative rent deposit order---Effect---Tenant could not be allowed to retain possession of demised premises---Ejectment, petition was accepted in circumstances.

Waheed Ullah v. Mst. Rehana Nasim 2004 SCMR 1568; Muhammad Saeed v. Muhammad Asghar 2008 MLD 236 and Liaqat Hayat Khan Wahla v. Mian Muhammad Trust Hospital Faisalabad 2008 MLD 883 rel.

----S.13---Ejectment petition---Plea of tenant that he became co-sharer in demised premises after purchasing a shop therein, thus, ejectment petition was not maintainable---Validity---Tenant had admitted tenancy in his written reply---Tenant could seek his remedy in civil court---Such plea was repelled in circumstances.

Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCMR 913 rel.

Sardar Muhammad Sarfraz Dogar for Appellant.

Ch. Ghulam Mohiuddin Gujjar for Respondent.

Date of hearing: 29th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1379 #

2010 Y L R 1379

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD SHABBIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5058-B of 2009, decided on 12th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/ 337-A(ii)/ 337-A(i)/337-F(ii)/337-L(ii)/109/148/149--- Qatl-e-amd and causing injuries---Bail, grant of---Further inquiry---Weapon of offence was not recovered from accused, despite he remained on physical remand during the investigation---Investigating Officer had declared accused innocent and prepared the discharge report which was submitted before Judicial Magistrate, who disagreed with the same, which had made the case one of further inquiry into the guilt of accused---Accused was behind the bars since 6-5-2009, challan of the case had been submitted before the Trial Court, but the trial had not commenced---No useful purpose would be served while keeping the accused behind the bars for indefinite period-If accused was found guilty in the trial, he would be convicted and sentenced accordingly, but if he was acquitted there would be no compensation for deprivation of his liberty by putting him behind the bars in case of refusal of bail---Accused was admitted to bail, in circumstances.

Tariq and others v. The State PLD 1995 SC 34 rel.

Khawaja Qaisar Butt, for Petitioner.

Shahid Iqbal, D.D.P.P. with Khalid S.-I. with record for State.

YLR 2010 LAHORE HIGH COURT LAHORE 1381 #

2010 Y L R 1381

[Lahore]

Before Sh. Najam ul Hassan, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE and another---Respondents

Bail Petition No.14875-B of 2009, decides on 7th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380/357---Theft in dwelling house and house-breaking by night---Bail, grant of---Name of accused had been mentioned in the F.LR.---Three persons were involved in the case, two were released by the complainant and one was allowed bail by the Trial Court---Accused was servant of the complainant and being that he was named in the F.I.R.--- During investigation, accused remained in the Police remand, but nothing incriminating was recovered to connect him with the crime---Investigation had been completed and accused was no more required to the Police for further investigation---No direct evidence was available against accused---Accused having made out case of post arrest bail, he was admitted to bail, in circumstances.

Agha I.A. Imran for petitioner.

Arif Kareem, Deputy-Prosecutor-General with Yaqoob, Sub-Inspector for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1384 #

2010 Y L R 1384

[Lahore]

Before Hassan Raza Pasha, J

RIASAT ALI and 4 others---Petitioners

Versus

THE STATE through A.G. Punjab-Respondent

Criminal Revision No.55, of 2009, heard on 2nd March, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 239, 235, 234 & 233---Penal Code (XLV of 1860), Ss.302, 337-A(ii), 337-F(i), 337-F(ii), 337-F(v), 148 & 149---Qatl-e-amd and attempt to commit qatl-e-amd---Joint trial---Counsel for accused had contended that persons accused of two different occurrences having two different Sets, could neither be challaned together nor they could be tried together; as two accused persons had been charged for committing murder of the deceased, whereas remaining accused had no nexus with the first episode of the occurrence; that in the second episode two persons from the complainant side were injured, and the venues of both the incidents were totally different; that there was distance of five furlongs in between venues of both the occurrence; that second episode had taken place at the time of removal of deceased in injured condition at a distance of about five furlongs from the place of first episode of the occurrence and that in the second episode two persons from side of the complainant were injured by accused persons--Complainant had witnessed both the episodes---Accused of second episode were real brothers of persons who were accused of first episode---Accused of first occurrence was real nephew of accused of second occurrence---Validity---Section 239(d), Cr.P.C. provided for a joint trial of two or more persons for different offences, which formed an exception to the primary rule enacted in S.233, Cr.P.C.-Object of the exceptions noted in S.233, Cr.P.C. and embodied amongst that in S.239(d), Cr.P.C. was to avoid duplication of proceedings---Bath the sets of accused were related inter se with each other and Possibility of their common intention could not be ruled out---Both the occurrences in circumstances were committed in the course of same transaction so as to warrant their joint trial within the meaning of S.239(d), Cr. P. C. ---Contention that joint trial was hit by misjoinder of charges and persons in contravention of Ss.233 and 239, Cr.P.C., had no force or substance---Record had shown that the prosecution had produced nine witnesses in support of the case and prima facie same had connected accused with the offence---Trial Court, in circumstances had not acted against the law.

2003 SCMR 799; PLD 1958 SC (Pak.) 131; 1977 PCr.LJ 145; PLD 1954 Lah. 183; '973 SCMR 542; PLiu 1962 (W.P) Lah. 244; 1997 PCr.LJ 1900; 2003 PCr.LJ 1175; PLD 2004 Kar. 508; 2006 PCr.LJ 1424; 1993 PCr.LJ 678 and The State v. Darajuddin Mondal and others PLD 1962 Dacca 424 ref.

Ch. Afrasiab Khan for Petitioners.

Kh. Sohail Iqbal, D.P.G. for the State.

Sana Ullah Zahid for the Complainant.

Date of hearing: 2nd March 2010.

2010 Y L R 1399

[Lahore]

Before Faisal Arab, J

FAKHARUDDIN QUNDRANI--- Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 57 of 2010 decided on 22nd January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, refusal of---State Counsel had opposed the grant of bail to accused on the ground that recovery had been made from accused within four hours; and that accused was also carrying an unlicensed weapon and that complainant had identified accused in the identification parade as one of the culprits---No case for bail, having been made out, bail application was dismissed, in circumstances.

Abdul Salam Memon for Applicant.

Mumtaz Mehdi APG for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1400 #

2010 Y L R 1400

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAZIA NOREEN JOIYA---Petitioner

Versus

HAQ NAWAZ and 9 others---Respondents

Criminal Miscellaneous 91-T-2009, decided on 2nd June, 2009.

Criminal Procedure Code (V of 1898)---

----S.526---Illegal Dispossession Act (XI of 2005), Ss.3 & 7---Application for restoration of case--- Transfer of application to another court---Application for---Earlier, applicant filed application under Ss.3 & 7 of Illegal Dispossession Act, 2005, which application was withdrawn---Subsequently application had been moved by the respondents for the restoration of the possession to them, while the applicant had also moved an application for setting aside of withdrawal order and restoration of the application of the applicant which matters were pending before the Trial Court---Applicant sought transfer of her application for restoration of case to another Court on the ground that applicant due to earlier conduct of the Judicial Officer, had apprehended foul-play and did not expect justice from the court---Application for transfer of case from one court to another could only be accepted, if there were same valid reasons, but no genuine apprehension was shown that applicant did not except any justice from the said Court---Applicant seemed to have filed said application only to prolong the matter before the Trial Court and there being no good ground/reason for transfer of the case on the ground of no confidence on the Judicial Officer---Application for transfer of case was dismissed.

Ch. Haider Bakhsh for Petitioner.

Muhammad Siddique Zafar Qadri, for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 1402 #

2010 Y L R 1402

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD YAQOOB and others---Petitioners

Versus

PROVINCE OF PUNJAB---Respondent

Civil Revision No.437 of 2008, decided on 10th December, 2009.

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

----S. 36---Specific Relief Act (I of 1877), S.42---Suit for declaration---Dispute as to Ihata meant for mueens---Jurisdiction of Civil Court---Scope---Dispute of the Ihata fell purely within the jurisdiction of revenue Courts and jurisdiction of civil court under S.36 of the Colonization of Governments Lands (Punjab) Act, 1912 was barred.

Alam Sher through Legal Heirs v, Muhammad Sharif and 2 others 1998 SCMR 468 rel.

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

----S. 115--- Revision--- Concurrent findings---Scope---Concurrent findings of fact could not be disturbed unless some misreading or non-reading was pointed out.

Aurangzeb v. Muhammad Jaffar 2007 SCMR 236; Shafi Muhammad v. Khanzada Gul 2007 SCMR 368 and Muhammad Khaqan v. Trustees of the Port of Karachi 2008 SCMR 428 rel.

Tahir Mehmood for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1405 #

2010 Y L R 1405

[Lahore]

Before Pervaiz Inayat Malik and Raja Muhammad Shafqat Khan Abbasi, JJ

MUHAMMAD NAWAZ---Appellant

Versus

MUHAMMAD NASAR IQBAL ---Respondent

R.F.A No.77 of 2007, heard on 29th June, 2009.

Civil Procedure Code (V of 1908)---

----O.XXX VII, R.1---Qanun-e-Shahadat (10 of 1984), Art.72---Recovery of money--Pro note, execution of---Proof---Trial Court decreed suit in favour of plaintiff for recovery of sum of Rs.280,000----Validity---Plaintiff proved execution of pro note and receipt through three witnesses---Finger print Expert verified his report according to which he compared thumb impression of defendant in pro note and verified the same of defendant---Witnesses produced by plaintiff faced test of cross examination but nothing came out---Plaintiff proved his case through cogent and reliable evidence and defendant failed to prove any decision of arbitration on pro note---Trial Court had rightly decreed the suit of plaintiff against defendant and conclusion arrived at by Trial Court was elaborate and was based on cogent reason---No misreading or non-reading of evidence or any other legal infirmity had been pointed out by defendant, therefore, High Court declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Rana Muhammad Asif Saeed for Appellant.

Nemo for Respondent.

Date of hearing: 29th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1407 #

2010 Y L R 1407

[Lahore]

Before Muhammad Ashraf Bhatti, J

GULSHAN SURIA and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, FEROZEWALA and 2 others---Respondents

Writ Petition No.9887 of 2009, decided on 22nd May, 2009.

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Suit for recovery of maintenance, delivery expenses, amount received as salami, gold ornaments etc.---Plaintiff filed suit for recovery of maintenance for herself and minor daughter at the rate of Rs.5, 000 per month each, delivery expenses to the tune of Rs.20, 000 incurred on the birth of minor, as well as Rs.19,000 allegedly received by defendant at the time of marriage as 'salami'---Plaintiff also prayed for recovery of gold ornaments weighing 5 tolas---Family Court passed decree for recovery of maintenance at the rate of Rs.3,500 per month to the plaintiff and Rs.3,000 per month with 12% annual increase in favour of minor---Family Court also found plaintiff entitled to recover Rs.20,000 as delivery expenses as well as five tolas ornaments as dower or its price--Appellate Court, upheld amount of the plaintiff however with regard to the recovery of dower and five tolas gold ornaments, it was held that the plaintiff would be entitled to recover Rs.10,000 instead of Rs.20,000 on account of delivery expenses and Rs.1000 for recovery of dower in lieu of gold ornaments---Being dissatisfied with judgment and decree of the Appellate Court, plaintiff had filed constitutional petition---Claim of plaintiff with regard to amount ofsalami' had sufficiently been rebutted by the defendant---Only witness produced by the plaintiff, did not utter a single word about the amount of 'salami'-No reason existed to disagree with the findings of the Appellate Court in that regard---Only piece of evidence produced on behalf of the plaintiff, with regard to delivery expenses was a bill issued by Hospital which was not meant for production in Court for the reasons best known to the management of the Hospital---No one from the said Hospital was summoned to verify the said bill---Defendant had already returned the dowry articles to plaintiff without putting any hassle and even did not file appeal against the fixation of reasonable amount of maintenance allowance, which had shown his bona fides to pay what was reasonably due against him---Defendant had also refuted the allegation that four tolas of gold ornaments belonging to the plaintiff were lying with him and his said denial appeared to be based on reality because woman in Pakistan would never like to part with her personal belonging like gold ornaments meant for frequent use---Findings of the Appellate Court, were quite in line with the facts of the case after proper appreciation of evidence of the parties, making no case for High Court to interfere in its constitutional jurisdiction.

Ch. Akbar Ali Tahir for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1410 #

2010 Y L R 1410

[Lahore]

Before Abdul Sattar Goraya, J

RIAZ AHMAD and others---Petitioners

Versus

Mst. BAKHSHAI through her legal heirs and others-Respondents

Civil Revision No.486 of 1996, heard on 29th July, 2009.

(a) Custom (Punjab)---

----Onus to prove---Principle---Person who alleges custom must prove the same as burden of proof rests on his shoulders---Most important document to discharge the onus is Riwaj-e-Aam Wajib-ul-Arz---Custom may differ from place to place, street to street, Mohallah to Mohallah and tribe to tribe---Slightest evidence available on record that person was governed by custom can easily be ignored---In absence of instrument in the nature of Wajib-ul-Arz and judicial decisions, Court cannot come to conclusion that parties were governed by custom.

Mehr Das and another v. Munshi Ram and others AIR 1936 Lah. 920; Abdul Shakur v. Mst. Allah Rakhi and others AIR 1935 Lah. 138; Mst. Barkat Bibi v. Muhammad Amin and another AIR 1935 Lah. 325; Mst. 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.42---Mutation---Scope---Exclusion of daughters---Effect---Mutations are not instrument of title and the same also do not form part of record of right---Mutations are sanctioned only for fiscal purpose with a view to keep record straight---Mutation which has been sanctioned to the exclusion of daughters carries no sanctity in law and the same is nothing but a waste paper running counter to Shariah by which Muslim right holders are governed.

Baiduallh Khan and another v. Mahmood Jan Khan and 12 others 1985 CLC 821; Azam Khan v. Azad Khan and 6 others PLD 1986 Lah. 275 and Mst. Began v. Mst. Bai 1983 SCMR 80: rel.

----Ss. 10 & 19-A---Specific Relief Act (I of 1877), S.42---Allotted land--Exclusion of daughters---Scope---Plaintiff was daughter of deceased allottee of suit land and mutation of inheritance was sanctioned by excluding her---Suit filed by plaintiff was dismissed by Trial Court on the ground that parties were governed by custom but Lower Appellate Court decreed the same in favour of plaintiff---Validity---Land was originally State land which was allotted to father of plaintiff, by Provincial Government, thus suit land was not covered by custom or custom prevailing in family or in that part of area---Consent decree for all purposes was ex parte and in those proceedings question was neither mooted nor discussed---Ex parte decree was also challenged in the suit which had been decreed by Lower Appellate Court---Parties were not governed by custom in respect of land detailed in the suit because for all purposes suit land was initially State land which was self acquired by father of plaintiff---High Court, in exercise of revisional jurisdiction, declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

Sikandar Ali v. Allah Yar 1995 CLC 1273 and Umar Din v. Mst. Sharifan PLD 1995 SC 686 rel.

Amin-ud-Din Khan for Petitioners.

Zafar Iqbal Chaddar for Respondents.

Date of hearing: 29th July, 2009.

2010 Y L R 1426

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SHAHID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3914-B of 2009, decided on 4th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.365-B & 376---Abduction and zina-bil-jabr---Bail, grant of---Further inquiry---Alleged abductee though could not prove her case for jactitation of marriage against accused, but still Judge Family Court considering her to be his wife had dissolved their marriage on the basis of khula and decreed her said suit-In view of dissolution of marriage between accused and alleged abductee on the basis of khula, it was very much clear that there had been marriage between them though alleged abductee had disowned such fact and she had been declared his wife---No question, in circumstances, of zina-bil-jabr with her by him arose---Case against accused required further inquiry into his guilt and same was covered under subsection (2) of S.497, Cr. P. C. ---Accused was stated to be behind the bars since 17-8-2009---Accused was admitted to bail, in circumstances.

Sardar Tariq Sher Khan for Petitioner.

Ishfaq Ahmad Malik, Deputy Prosecutor General for the State.

Umer Wadah Khan Halili for Complainant.

Allah Ditta, S.-I. with police record.

YLR 2010 LAHORE HIGH COURT LAHORE 1428 #

2010 Y L R 1428

[Lahore]

Before Hasnat Ahmad Khan, J

AZIZ-UR-REHMAN alias CHAND and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4065-B of 2009, decided on 5th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.365-B/371-A, 371-B & 376---Kidnapping, abducting or inducing woman to compel for marriage, selling, - buying person for, purposes of prostitution and rape---Bail, refusal of--Accused though was not named in the F.I.R., however, he was implicated in the case on the basis of a supplementary ,statement made by the complainant in which accused and his co-accused were named---Police conducted a raid and recovered alleged abductee and on her recovery she made a detailed statement under S.161, Cr.P.C. wherein she gave woeful tale of how, after leaving her parent's house in the company of her friend who had been defiled and detained by accused for selling her flesh---Alleged abductee was got medically examined which supported the allegations levelled against accused---During the investigation it was found that since long accused was involved in the ' nefarious activity of alluring and abducting the innocent and stranded girls near Minar-e-Pakistan for selling their flesh to his sex-starved customers---Accused was found guilty by the Police Officer collecting the relevant material---In said backdrop sufficient material was available on the record to saddle accused with alleged crime---Facts of the case revealed that accused was not only guilty of the offence against abductee of the case, but he had revised the failure of other girls---Such like accused being a menace for society, did not deserve any leniency, even in the matter of bail---Even otherwise the offences allegedly committed by accused fell within the prohibitory clause of S.497, Cr.P.C.---Counsel for accused had - failed to demonstrate that complainant or the victim had any ill-will or grievance against accused, which could be a reason for his false implication in the case. Petition for bail was dismissed.

Muhammad Safdar Bhatti for Petitioners.

Muhammad Adeel Aqil Mirza, Deputy Prosecutor General with Rasheed S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 1430 #

2010 Y L R 1430

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

KALAY KHAN and 2 others---Petitioners

Versus

WALAYAT KHAN---Respondent

Civil Revisions Nos.76 and 100-D to 108-D of 2009, decided on 29th May, 2009.

(a) Evidence---

----Evidence of parties is recorded in each case---Same evidence cannot be considered to be recorded in other case.

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

----S.151---Consolidation of suits---Object and scope---Purpose of consolidation is to avoid multiplicity of litigation, to eliminate award of contradictory judgments and to prevent abuse of process of Court.

----Objections, raising of---Scope---Any legal or factual objection has to be taken at the first instance---If party fails to raise any objection, that party cannot be permitted to raise the same at appellate level or in revisional Court---Such non-raising of any plea is deemed to have waived the plea.

Mahant Ramdhan Puri and others v. Chaudhry Lachmi Narain and others AIR 1937 Privy Council 42 rel.

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

----Ss. 151 & O.II, R.3---Qanun-e-Shahadat (10 of 1984), Art. 144---Consolidation of suits---Joinder of causes of action---Concurrent finding of facts by two courts below---Principle of estoppel---Applicability---Plaintiff claimed that defendants purchased ten buffaloes from him on different occasions but did not pay him their prices---Plaintiff filed ten suits against defendants for recovery of prices of ten buffaloes and all the suits were consolidated, evidence in one suit was recorded and finally Trial Court decreed the suits in favour of plaintiff---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court----Plea raised by defendants was that Trial Court could not consolidate and decide all the suits together---Validity---Trial Court had rightly consolidated ten suits of plaintiff for its own as well as for the convenience of parties and in order to avoid contradictory judgments and multiplicity of litigation---Mode adopted by Trial Court in recording and using evidence was correct and defendants were estopped by their conduct to raise objection Subsequently---Both the Courts below had rightly decided material issues in favour of plaintiff by properly appreciating evidence j available on record---No justification and reason were available to interfere with the findings of fact recorded by courts below--Neither there was any illegality or infirmity nor any misreading or non-reading of evidence in judgments passed by two courts below---High Court in exercise of revisional jurisdiction declined to interfere in judgments and decrees passed by two courts below.

Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446; Muhammad Younas v. The Crown PLD 1953 Lah. 321 and Sabir and 2 others v. Ghulam Fatima 1987 CLC 1407 ref.

Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262; Alam Khan and others v. Pir Ghulam Nabi Shah and Company 1992 SCMR 2375; Islam Din and 7 others v. Naseer-ud-Din 1995 SCMR 906; Syed Alam Hussain and other v. Syeda Shamim Akhtar and other PLD 1974 SC 100; Muhammad Eisa and 6 others v. Khair-ud-Din 1991 SCMR 1942 and Iqbal Muhammad Khan v. Abdul Haq Ch. 1983 SCMR 567 rel.

Abdul Aziz Khan Niazi for Appellants.

Ch. Muhammad Iqbal Kang for Respondent.

Date of hearing: 22nd May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1436 #

2010 Y L R 1436

[Lahore]

Before Muhammad Ashraf Bhatti, J

Mst. BUDHAN BIBI and 8 others---Petitioners

Versus

KHUSHI MUHAMMAD and 8 others---Respondents

Civil Revision No.553 of 2002, decided on 27th May, 2009

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

----S. 12---Suit for specific performance of agreement to sell property---Withdrawal of sale consideration from deposited amount in the court---Effect---Trial Court decreed the suit ex parte in favour of plaintiffs in the year 1992---Defendant's predecessor-in-interest moved an application for setting aside ex parte decree but the same was dismissed due to non-prosecution--Another application moved by the predecessor-in-interest of defendants too met with the same fate of dismissal for non prosecution during the year 1996---1n pursuance of the ex parte decree plaintiffs moved an execution petition in the year 1999 and sale-deed was executed through Court in favour of the plaintiffs but the same was not incorporated in the revenue record---Defendants filed objection petition against the said execution petition in the Trial Court which petition was accepted by the Trial Court in the year 2001 whereby execution petition filed by the plaintiffs was dismissed being time-barred---plaintiffs assailed dismissal order of the Trial Court in appeal---Appellate Court accepted appeal and dismissed the dismissal order of execution by the Trial Court---Predecessor-in-interest of the defendants had withdrawn sale consideration amount of Rs. 60,000 deposited in the bank by the plaintiffs and further the balance amount in pursuance of the ear parse decree---Ex parte decree thus, had become final during the life time of predecessor-in-interest of the defendants--- Reference of withdrawal of amount of sale consideration was mentioned in the memo of appeal which had left no ground for the defendants to challenge the validity of the decree or the execution petition---Defendant had failed to make out a case warranting interference by the High Court in revisional jurisdiction.

Mahboob Bibi v. Hassan Khan Durrani PLD 1990 SC 778 distinguished.

(b) Specific Relief Act (I of1877)---

----S. 42---Limitation Act (IX of 1908), Art.174---Suit for specific performance of agreement to sell property---Delay in filing execution petition---Trial Court did not inquire into. the matter and straightaway declared that execution petition was timebarred---No intentional delay was in filing the execution petition---No edge could be given to the defendants to the question of limitation particularly because of an important feature of the case which had duly been taken care of by the Appellate Court---Withdrawal of consideration amount of Rs. 60,000 from the money deposited in the Trial Court and further the balance amount deposited by the plaintiffs in pursuance of ex parte decree which had become final left no ground for the defendants to challenge the validity of the execution petition---High Court declined to interfere in revision petition.

----S. 42---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell property---Sale-deed executed/registered in the light of an ex parte decree had not been incorporated in the revenue record---Effect---Ownership of predecessor-in-interest of the defendants continued till his death in his name without satisfaction of the ex parte decree---Mutation of inheritance was also attested in favour of predecessor-in-interest of the defendants without satisfaction of the ex parse decree---Since title deed had been executed on the orders of a competent court, withdrawal of consideration amount of sale and balance amount by defendant had made the plaintiffs exclusive owners of the disputed land, no matter the entire revenue record remained the same which did not create any right or title in favour of the defendants.

Muhammad Nazir and another v. Qaiser Ali Khan and 4 others 2003 SCMR 436 ref.

Mian Bashir Zafar for Petitioners.

M. Akhtar Rana for Respondents.

Date of hearing: 15th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1445 #

2010 Y L R 1445

[Lahore]

Before Asif Saeed Khan Khosa, J

GHULAM NABI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1531 of 2005, decided on 22nd January, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(c), 351 & 100---Qatl-e-amd---Appreciation of evidence---Trial Court had discarded the entire case of the prosecution and had squarely accepted the stand taken by accused persons in their statements recorded under S.342, Cr.P.C.; and had proceeded to convict and sentence accused, persons for the offence under S.302(c), P.P.C. by holding that they had exceeded their right of private defence---Motive set up by the prosecution regarding suspicion of illicit relations between the deceased and accused the wife of accused and mother of co-accused, was neither put to accused persons under S.342, Cr.P.C. nor the same had been proved by the prosecution; and as a matter of fact same had been disbelieved and discarded by the Trial Court--Assertion of accused persons regarding an attempt made by the deceased to forcibly commit zina with accused on gunpoint after entering the house of accused persons had to be accepted by the Trial Court as correct in its entirety---Evidence of prosecution witnesses had established that deceased was armed with gun at the time of entry into the house of accused persons---Entry of deceased into the house of accused persons at small hours of the night and his being armed with a gun at that time, had attracted the definition of assault contained in S.351, P.P.C. so as to bring the case within the purview of S.100 P.P.C.---Right of private defence acknowledged by the Trial Court to be available to accused persons, extended to voluntary causing of death of deceased in circumstances---Right of private defence available to accused persons having not been exceeded by them, they could not have been convicted and sentenced by the Trial Court for an offence under S.302(c), P.P.C.---Conviction and sentence recorded by the Trial Court against accused was set aside and they were acquitted of the charge and were released.

Aftab Ahmad Bajwa for Appellants.

Ishaque Masih Naz, Deputy Prosecutor-General for the State.

Date of hearing: 22nd January, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1456 #

2010 Y L R 1456

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD ASHIQ and 4 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE KHANEWAL and 4 others---Respondents

Writ Petition No.1063/2010, decided on 9th February, 2010.

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

----S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ex parte decree setting aside of---Failure to avail opportunity to produce evidence---Effect---Right of respondents to produce evidence was closed by Trial Court earlier---Revisional Court allowed one opportunity to produce evidence---Respondents again did not avail the opportunity---Revision petition by respondents was also dismissed---Validity--Held, it was incumbent upon the respondents to produce evidence but instead of that their counsel preferred to participate in the elections where he was not candidate for any seat---Trial Court was constrained to close right of evidence of the respondents as neither their counsel nor their witnesses were present---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed by High Court.

Muhammad Aslam v. Nazir Ahmed 2009 SCJ 59 ref.

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

----Art. 199---Constitutional petition---Jurisdictional error---Effect---Until and unless there was any jurisdictional error or defect in the impugned order, discretion under Art.199' of the Constitution could not be exercised.

Rana Muhammad Asif Saeed for Petitioners.

YLR 2010 LAHORE HIGH COURT LAHORE 1466 #

2010 Y L R 1466

[Lahore]

Before Zafar Iqbal Chaudhry, J

AZHAR IQBAL and 3 others---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5909-B of 2008, decided on 18th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302/324/337-A(i)/148/149---Qatl-e-amd and attempt to qatl-i-amd---Bail before arrest, grant of---Six persons from accused's side were also injured during the same occurrence, but their injuries had not been explained by the complainant in the F.I.R.---As per medical evidence only five injuries were on the body of deceased and eight accused had been involved from accused's side---Two co-accused had not been attributed any role whatsoever during the occurrence, whereas accused and other co-accused had not been ascribed any specific injury; and only general role had been alleged against them---Investigating Officer had admitted that cross-version had already been registered against the complainant party as well---Prima facie, it had been made out that it was a case of sudden flare up, which had taken place on the polling day at the time of election--F.I.R. was got lodged with the delay of two days and case was that of two versions and which party was aggressor would be determined by the Trial court after recording of evidence---Keeping in view the role allegedly attributed to accused persons, they could not be sent behind the bars, merely for the reason that recoveries were yet to be effected as it would not advance the prosecution case any further--Accused had succeeded in making out a case of bail before arrest and mala fide on the part of the complainant party was clear that they had involved maximum number of accused in the case by attributing general role to them---Ad interim pre" arrest bail already granted to accused persons was confirmed, in circumstances.

Sultan Mahmood Dar for Petitioner.

Naseem Sabir Chaudhry for the Complainant.

Saeed Ashraf Warraich, Addl. Prosecutor General along with Asghar Ali, S.-I. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1470 #

2010 Y L R 1470

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD ASLAM---Petitioner

Versus

MEPCO through Chief Executive, Multan and 4 others---Respondents

Writ Petition No.790 of 2009, decided on 20th January, 2010.

Constitution of Pakistan (1973)---

----Art. 199-Constitutional petition---Electricity connection for tubewell---Issuance of second demand notice was challenged by petitioner on the ground that earlier demand notices of Rs.14,400 and of Rs. 8,000 had been paid by him and additional demand for the payment of Rs.177,77,300 was based on mala fide---Contention of the petitioner was that the authorities did not mention any demand for deposit of alleged amount at the time of sanction of connection of electricity for tube-well---Validity---Once the electricity connection was sanctioned and demand notice had been issued for deposit of the same, after that, new demand for deposit of Rs.177,300 was highly excessive, harsh and exorbitant for a small agriculturist---On account of any omission or illegal act of the authorities, petitioner could not be burdened without any lawful justification--Constitutional petition was allowed by High Court.

2005 SCMR 1814 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 ref.

Khizar Hayat Khan Punian for Petitioner.

Ameer Aziz Qazi for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 1477 #

2010 Y L R 1477

[Lahore]

Before Muhammad Akram Qureshi and Syed Ihtasham Qadir Shah, JJ

ABDUL REHMAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.399-J of 2003, Criminal Revision No 812 of 2003, Murder Reference No.427 of 2003, decided on 27th May, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(b)/392/34---Qatl-e-amd and robbery---Appreciation of evidence---Benefit of doubt---Prosecution witness during trial had conceded that description mentioned by him about the assailants in the F.I.R. was not of accused present in the court---Initially, certain other persons were apprehended and they were substituted through present accused persons---Prosecution witnesses had rightly identified and picked out accused during identification parade with their specific role, but mere picking out in the identification parade was not sufficient substantive evidence, but the same was merely corroboration of the fact that the witnesses had picked them out---Such piece of evidence was not sufficient because the real test was the identification of accused in the court at the time when the witnesses were testifying---Prosecution witness had failed to identify accused during trial while deposing against them---Evidence of identification parade was not of that quality to be relied upon for a punishment on capital charge---Evidence of last seen was of no consequence as other link of extra judicial confession had already been discarded---Prosecution, in circumstances, had failed to bring on record any evidence of confidence inspiring or quality and nature of corroboration to sustain the finding of the Trial Court---Testimony of prosecution witnesses with regard to the identification of accused at the time of occurrence, was not only inconsistent, but was highly doubtful---Other piece of evidence of last seen and of extra judicial confession, could not be relied upon on capital charge due to its inheritent defects---Prosecution having failed to prove its case beyond doubt, both accused were extended the benefit of doubt and they were acquitted.

Syed Qamar Ali Rizvi for Appellants.

Ch. Fayyaz Ahmad, Deputy Prosecutor-General for the State.

Muhammad Amir Khan Niazi, for Complainant.

Date of hearing: 27th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1484 #

2010 Y L R 1484

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Ch. MUHAMMAD ZUBAIR ANJUM---Petitioner

Versus

APPELLATE COMMITTEE (PB-1) PAKISTAN BAR COUNCIL through Chairman and 9 others---Respondents

Writ Petition No.664 of 2010, decided on 28th January, 2010.

(a) Legal Practitioners and Bar Councils Act, (XXXV of 1973)---

----S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Annual Election of Tehsil Bar Association---Right to vote---Violation of rules-Nonmentioning of---Effect---Bar Members could not be deprived of their right to vote on flimsy grounds which was their fundamental right.

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

---Art.199---Constitutional jurisdiction---Scope---Concurrent findings of facts could not be disturbed in constitutional jurisdiction.

Abid Hussain Bhutta for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1494 #

2010 Y L R 1494

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD GULZAR through Special Attorney---Petitioner

Versus

Mst. ANEELA NAZIR and 2 others---Respondents

Writ Petition No.8515 of 2009, decided on 21st January, 2010.

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 (including 5 tolas of gold) and maintenance allowance---Defendant contested suit on the ground that no dowry articles and gold ornaments were given to the plaintiff---Contention of the defendant was that he had produced one of his witnesses who had stated that no furniture was purchased from him and he had prepared receipts just for estimation---Trial Court dismissed suit for recovery of dowry articles and gold ornaments---Appellate Court, on appeal, allowed the same and decreed the suit to the sum of Rs.200,000--Validity---Trial Court, on appraisal of evidence, had rightly decided the issue of dowry articles---High Court allowed the constitutional petition and set aside the judgment of Appellate Court with regard to recovery of dowry articles.

Ch. Abdul Ghani for Petitioner.

Qazi Khalid Pervaiz and Mian Saeed Ahmad for Respondent No.3.

YLR 2010 LAHORE HIGH COURT LAHORE 1498 #

2010 Y L R 1498

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD MANSHA---Petitioner

Versus

HASHMAT ALI and another---Respondents

Civil Revision No.473 of 2004, decided on 15th February, 2010.

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

----S. 12---Civil Procedure Code (V of 1908), O.XLI, R.27--- Miscellaneous application--- Non-disposal of--- Effect---Plaintiff filed suit for specific performance of agreement to sell in respect of disputed property---Defendant contested suit and filed written statement---Trial Court dismissed the suit---Appellate Court upheld judgment of the Trial Court---Plaintiff asserted that a miscellaneous application filed by him under O.XLI, R.27, C.P.C. before the Appellate Court, for recording of additional evidence, was not decided and rather, the Appellate Court had decided the main appeal, finally---Defendant contended that no such application under O.XLI, R.27 C.P.C. was filed during the pendency of appeal and it was subsequently manoeuvred and attached with record of the appeal---Validity---Record revealed that there was no mention of filing of miscellaneous application in the order sheet of Appellate Court, which might have been omitted by the Appellate Court and party could not be penalized on account of omission by Appellate Court to mention the same in the order---High Court, in circumstances remanded the case to Appellate Court to decide first the miscellaneous application and then to decide the main appeal on merit---Revision petition was disposed of accordingly.

Muhammad Ismail and another v. Bahadur and 2 others 1993 CLC 1637 and Mst. Begum through Legal Heirs and 27 others v. Allah Ditta 2000 CLC Lah.744 ref.

Maqsood Ahmad and others v. Member Board of Revenue, Punjab Lahore and others 2007 SCMR 399; Tariq Masood Ch. v. Dastagir Paper and Board Mills (Pvt.) Ltd. and 8 others 2007 YLR 1374; Haji Ibrahim v. Ismail and 9 others PLD 1976 Kar.1075; Messrs Bashir Leather Industries (Pvt.) Limited and 2 others v. Muslim Commercial Bank Ltd. through Manager 2006 CLD 132; M. Shahid Sehghal v. Al-Towfeek Investment Bank Ltd.2005 CLD 920; Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334; Muhammad Yaqub v. Baqir and 2 others 1993 CLC 1319; Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 and Gul Muhammad through Legal Heirs v. Karachi Development Authority and another 1998 MLD 150 fol.

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

----O. XLI, R.27--- Miscellaneous application---Failure of Court to dispose of miscellaneous application pending and deciding the main suit, could be a ground for setting aside the order of the lower court.

Haji Ibrahim v. Ismail and 9 others PLD 1976 Kar. 1075; Messrs Bashir Leather Industries (Pvt.) Limited and 2 others v. Muslim Commercial Bank Ltd. through Manager 2006 CLD 132; M.

Shahid Sehghal v. Al-Towfeek Investment Bank Ltd.2005 CLD 920; Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334; Muhammad Yaqub v. Baqir and 2 others 1993 CLC 1319; Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 and Gul Muhammad through Legal Heirs v. Karachi Development Authority and another 1998 MLD 150 fol.

----O. XLI, R.27--- Miscellaneous application---Failure to decide miscellaneous application prior to decision of the main case vitiates the judgment in the main case.

Haji Ibrahim v. Ismail and 9 others 1'LD 1976 Kar.1075; Messrs Bashir Leather Industries (Pvt.) Limited and 2 ethers v. Muslim Commercial Bank Ltd. through manager 2006 CLD 132; M. Shahid Sehghal v. Al-Towfeek Investment Bank Ltd. 2005 CLD 920; Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334; Muhammad Yaqub v. Baqir and 2 others 1993 CLC 1319; Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 and Gul Muhammad through Legal Heirs v. Karachi Development Authority and another 1998 MLD 150 fol.

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

----Art.129(e)---Judicial proceedings---Court record has the sanctity over any other material to the contrary unless strong and unimpeachable evidence was brought on the record in the rebuttal of the same.

Fyyaz Hussain v. Akhtar Hussain and others 2004 SCMR 964 rel.

(e) Act of Court---

----No party should be made to suffer due to any mistake of court.

Maqsood Ahmad and others v. Member Board of Revenue, Punjab, Lahore and others 2007 SCMR 399 and Tariq Masood Ch. v. Dastagir Paper and Board Mills (Pvt.) Ltd. and 8 others 2007 YLR 1374 fol.

Ch. Muhammad Jameel for Appellant.

Tahir Mehmood for Respondent.

Date of hearing: 29th January, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1503 #

2010 Y L R 1503

[Lahore]

Before Habib Ullah Shakir, J

Haji MUHAMMAD ASLAM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2787-B of 2009, decided on 27th July, 2009.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.365-B & 376(ii)---Abduction---Bail, grant of---Further inquiry---Accused was not named in the F.I.R. and the case was registered against him and his co-accused after a delay of seven days, which made the story of prosecution highly doubtful---Alleged abductee was handed over to her father through Panchayat, who had sworn an affidavit regarding the compromise and the innocence of accused---Alleged abductee who was produced before the Magistrate, had not alleged any allegation of abduction or Zina against the accused---Abductee was not recovered from the possession of accused---Prima facie, the applicability of Ss.365-B/376(ii), P.P.C. had become doubtful to the extent of accused---Accused had been declared innocent by the Investigating Officer and his name was placed in column No.2 of the challan---Though the ipse dixit of Police was not binding upon the courts, but same being adverse to the prosecution version, itself made the case one of further inquiry---No legal and moral compulsion was there to keep an accused in jail, Merely because case of accused fell within the prohibitory clause of S.497, Cr.P.C. and he had been alleged to have committed the offence, unless reasonable ground in that regard appeared to exist---Law should not be stretched in favour of prosecution; and if any benefit of doubt would arise, it must go to accused---Question of Zina or abduction was not proved during investigation---Investigation of the case had been completed, the person of accused was no more required by the Police---Accused was behind the bars since 2-6-2009---Further detention of accused in the jail would serve no useful purpose of law---Was yet to be determined during course of trial, if the alleged offence had been committed by accused or not---Prima facie, the facts and circumstance of the case clearly made out a case one of further inquiry---Accused was admitted to bail, in circumstances.

Muhammad Ramzan Khalid Joya for Petitioner.

Malik Muhammad Rafique Khokhar, D.P.-G. for the State.

Saghir Ahmad Bhatti for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 1513 #

2010 Y L R 1513

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

TAHZEEB SHAHID alias QAVI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8283/B of 2009, decided on 22nd July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Case was registered with an unexplained delay of three days---Difference existed with regard to place of occurrence in F.I.R. and investigation---Case was of two versions and cross version put by accused was registered---Private complaint filed by accused, was also pending in which complainant party had been summoned---Medico-legal report of mother of accused was also available on the file---Fact of injury attributed to the accused did not fall within the prohibitory clause of S.497, Cr.P.C.-Trial Court after recording of evidence was to determine as to whether accused fired at injured with intention to kill him or not---Accused was previous non-convict---Case of accused being that of further inquiry, he was admitted to bail, in circumstances.

2009 YLR 545 and 2007 YLR 3084 ref.

Ch. Ishtiaq Ahmad for Petitioner.

Ch. Imtiaz Ahmad Kamboh for the Complainant.

Ch. Abdul Razzaq, D.P.-G. with Muhammad Nawaz, A.S.I. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1519 #

2010 Y L R 1519

[Lahore]

Before Mian Saqib Nisar, J

ATIQA MUZAMMIL---Applicant

Versus

MUHAMMAD UMAR FAROOQ---Respondent

Transfer Application No. 351-C of 2008, decided on 4th November, 2008.

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

----S.5, Sched. & S.25-A---Transfer of case---Application for---Spouses were separated and applicant who was living with her parents at place had filed suit for the dissolution of marriage before the Family Court at place while the respondent as a counterblast, had instituted a suit for the restitution of conjugal rights before the Family Court at place K'---Suit filed by the respondent/ husband before the Family Court at place could not proceed on account of the lack of territorial jurisdiction and should be transferred to the Family Court at place where suit filed by the applicant/wife was pending adjudication---Suit of the respondent was withdrawn from the Family Court at placeK' and was entrusted to the Family Court at place where the suit of the applicant was pending.

Muhammad Tauqir Nasir for Petitioner.

Memo for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 1525 #

2010 Y L R 1525

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD INZMAM and 6 others---Petitioners

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE and 3 others---Respondents

Writ Petition No. 5785 of 2010, decided on 29th March, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Examination---Policy framed by the educational institution---Scope---Petitioners did not submit admission forms for the 9th class final examination on the last date fixed for it which was extended for private candidates from 13-2-2010 to 26-2-2010 due to strike of the subordinate staff of the Board of Intermediate and Secondary Education---Petitioners challenged the non-acceptance of their admission forms and non-issuance of roll numbers slips to them---Petitioners did not submit their admission forms along with prescribed fee within the period fixed by the Board of Intermediate and Secondary Education---Board had the prerogative to fix the last date for submission of admission forms as well as the amount of fee to be charged for a particular examination, which was primarily, a matter of policy---High Court, in exercise of its constitutional jurisdiction, could not take over to the role of policy---Permission granted to petitioners to take examination of 9th class, which was scheduled immediately without verification of their admission forms, could cause personation in addition to creating administrative problems for the Board---Constitutional petition was dismissed in limine.

Shahid Sarwar v. Chairman, Admission Board/Principal, King Edward Medical College, Lahore 2005 YLR 344 rel.

Rana Mazhar Iqbal for the Petitioners.

Sh. Shahid Waheed for the Respondents.

2010 Y L R 1577

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Ch. MUHAMMAD HANIF---Petitioner

Versus

CHAIRMAN, PUNJAB PROVINCIAL TRANSPORT APPELLATE AUTHORITY, LAHORE and 2 others---Respondents

Writ Petition No.4395 of 2009, decided on 13th October, 2009.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Preamble---Provincial Motor Vehicles Rules, 1969, Rr.255(2) & 267---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Appeal under special law---Applicability of S.5, Limitation Act, 1908---Scope---Provincial Motor Vehicles Ordinance, 1965 was a special law, unless there was provision of applicability of S.5 of the Limitation Act, 1908 delay in filing the time barred appeal could not be condoned.

Sahibzada Mehboob Ali Khan for Petitioner.

Mian Hafeez ur Rehman for Respondent.

Hassan Mehmood Chishti, Transport Inspector, Sahiwal.

YLR 2010 LAHORE HIGH COURT LAHORE 1598 #

2010 Y L R 1598

[Lahore]

Before Hasnat Ahmad Khan, J

Ghazi KHALID HUSSAIN FAKHAR--- Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION TIRKHANWALA and 2 others---Respondents

Writ Petition No.7112 of 2009, decided on 11th June, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of order---Order passed by Ex-officio Justice of Peace, whereby application filed by the petitioner under Ss.22-A & 22-B, Cr.P.C. was dismissed, and petitioner was burdened with costs, had been challenged by the petitioner---Validity---Sessions Judge/Additional Sessions Judges while performing their duties as Ex-officio Justice of Peace, would not perform their duties as court, rather they perform their duties on administrative side---Ex-officio Justice of Peace was not empowered to impose fine/cost upon the petitioner while rejecting his application under S.22-A, Cr.P.C.---Order passed by the Ex-officio Justice of Peace to the extent of burdening the petitioner with costs, while dismissing his application filed under S.22-A, Cr.P.C. was set aside and quashed.

Amanat Masih v. Additional Sessions Judge, Kasur and 4 others PLD 2007 Lah. 53; Syed Iqbal Hussain v. District Police Officer, Hafizabad and 5 others 2004 PCr.LJ 256; Muhammad Asif v. The State and 4 others PLD 2008 Lah. 222 and Kehar Khan v. Additional Sessions Judge and Ex. Officio Justice of Peace, Kotri and 3 others 2009 PCr.LJ 634 rel.

Naseemullah Khan Niazi for Petitioner.

Imtiaz Hussain Baloch for Respondents Nos.2 and 3.

Shaukat, Sub-Inspector.

Date of hearing: 11th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1608 #

2010 Y L R 1608

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

GHULAM YASEEN---Petitioner

Versus

Haji IMAM BAKHSH ---Respondent

Civil Revision No.608-D of 2009, decided on 25th January, 2009.

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

----Ss. 5 & 29(2)---Civil Procedure Code (V of 1908), S.115---Civil revision barred by 14 days---Period of limitation prescribed in S.115, C.P.C. for filing of revision petition, being 90 days; provisions of S.29(2) of Limitation Act, 1908 would apply---Delay in filing revision petition, beyond the period of 90 days prescribed under S.115, C.P.C. could not be condoned under S.5 of Limitation Act, 1908---Constitutional petition was dismissed in limine.

Rehmat Bibi and 4 others v. Ghazanfar Hussain and another PLD 1983 SC (AJ&K) 25 ref.

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

----Ss. 5, 12 & 13---Civil Procedure Code (V of 1908), S.115---Period of limitation---Enlargement of time---Powers of court---Scope---Law of limitation had got its own significance prescribed for instituting proceedings---Sections 5, 12 & 14 of Limitation Act, 1908 empowered court to enlarge the period of limitation according to particular circumstances of each case, provided those provisions had been specifically made applicable on the proceedings and in absence of its application, the court on its own would not be competent to apply the said, provisions to condone delay in filing proceedings Principles.

Muhammad Inayat and 4 others v. Mst. Nisar Fatima PLD 1994 SC 120; Muhammad Inayat and others v. Fateh Muhammad and others PLD 2004 SC 778; Furqan Ahmad Khan v. Abdul Rehman and others 1997 SCMR 422; Allah Dino v. Muhammad Shah 2001 SCMR 286; Rehana Kausar and others v. Faqir Muhammad 2004 CLC 1202 and Haji Ahmad v. Noor Muhammad 2004 SCMR 1630 rel.

Ahsan Raza Hashmi for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1613 #

2010 Y L R 1613

[Lahore]

Before Asif Saeed Khan Khosa, J

SHAHADAT ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.482 of 2006, decided on 24th July, 2009.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Occurrence had taken place at 3.30 a.m. and though availability of an electric bulb at the place of occurrence had been mentioned in the F.I.R. and had been deposed about by the eye-witnesses, but the site plan of the place of occurrence, prepared by the draftsman, did not show availability of any such electric bulb anywhere at the place of occurrence--Identity of accused, in circumstances had not conclusively been established before the Trial Court---Complainant was uncle of deceased and one of the prosecution witnesses was also a paternal uncle of deceased, whereas other prosecution witness was a neighbour of the complainant---Record of the case had contradicted the complainant regarding his claim regarding taking the injured victim to the hospital---Injuries allegedly caused by accused to deceased explained in the F.I.R. were described differently by the complainant before the Trial Court---Complainant had sworn an affidavit wherein he had observed that co-accused had been implicated by him in the case on account of some misunderstanding---If co-accused had been implicated by the complainant on the basis of a suspicion then same could equally be true vis-a-vis the accused as well---Co-accused who was attributed specific injuries to deceased had been acquitted by the Trial Court---Statement of prosecution witness had contradicted not only the F.I.R., but also the statement made by complainant before the Trial Court---Other prosecution witness who was a neighbourer of the complainant had admitted before the Trial Court that he had not seen accused causing any injury to deceased---Eyewitnesses, in circumstances were unreliable and there was likelihood that they had not seen anybody causing any injury to deceased; and that they had been procured and planted---Motive set up by the prosecution had remained far from being established---Place of occurrence was never proved by the prosecution---No date, time or place of any quarrel taking place between accused and deceased prior to the occurrence; had ever been specified by any prosecution witness---Kassi allegedly recovered at the instance of accused was not stained with blood and no report of Chemical Examiner or the Serologist was available on record---Prosecution having failed to prove its case against accused beyond any reasonable doubt, conviction and sentence awarded to accused by the Trial Court, were set aside and he was acquitted of the charge by extending benefit of doubt to him and he was ordered to be released.

Haji Khalid Rehman for Appellant.

Malik Abdus Salam, Deputy Prosecutor-General for the State.

Date of hearing: 24th July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1626 #

2010 Y L R 1626

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD SHARIF through Special Attorney ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 2 others---Respondent

Writ Petition No.7805 of 2009, decided on 19th January, 2010.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Concurrent findings---Effect---suit for recovery of dowry articles, -maintenance allowance and dower in the shape of three gold ornaments and land measuring 8-Kanals---Defendant contested suit and filed written statement---Trial Court decreed the suit for maintenance allowance at the rate of Rs.1000 per month from the date of institution of suit and claim of the dower---Appellate Court on appeal, upheld the judgment and decree of the Trial Court to the extent of land measuring 8 Kanals and set aside the findings qua the price---Contention of the defendant was that he was abroad and Rukhsati never took place---Defendant further contended that he was ready to pay half of the dower as consummation did not take place between the spouses---Validity---Judgments of the courts below were based on cogent reasons and had been passed on each and every issue---Concurrent findings could not be disturbed as appraisal of evidence was not permissible unless some misreading and non-reading of evidence was pointed out in the judgments passed by courts below---Constitutional petition was dismissed by High Court.

Malik Mehboob Ali Sandila for Petitioner.

Mehr Mehrban Ranjha for respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 1638 #

2010 Y L R 1638

[Lahore]

Before Waqar Hassan Mir, J

AMJAD ALI---Petitioner

Versus

THE STATE and another---Respondents

Crl. Miscellaneous No.3675-B of 2010, decided on 23rd April 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324/34 337-F (iii)---Attempt to commit qatl-e-amd---Post arrest bail, grant of---Accused for his cross-version had filed private complaint, wherein complainant party had been summoned---Accused had not repeated fire---Injury attributed to accused vide Medico-legal Report fell under S.337-F(iii), Penal Code, 1860 and sentence provided therefore being three years---Accused was behind bars for last ten months---Accused was granted bail in circumstances.

Ch. Ishtiaq Ahmad Khan for Petitioner.

Ch. Muhammad Aslam Sindhu, Addl. Prosecutor-General.

Sardar Muhammad Ayub Khan Lodhi for the Complainant.

Safdar Ali, S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 1640 #

2010 Y L R 1640

[Lahore]

Before Ch. Iftikhar Hussain, J

JAMAL-UD-DIN---Applicant

Versus

JAMAT ALI and 3 others---Respondents

T.A. No.104-C of 2010, decided on 16th April 2010.

Civil Procedure Code (V of 1908)---

---Ss. 24 & 115---Application for transfer of revision petition from District Headquarter to Tehsil Headquarter "G"---Pleas of applicant that he was resident of Tehsil "G", where land in dispute also situated; and that Tehsil "G" was created after filing of revision at District Headquarter---Validity---Suit out of which revision had arisen was decided by Civil Court at District Headquarter, where revision thereagainst was filed by applicant himself about 3 1/2 months ago---Tehsil "G" had been created much prior to filing of revision at District Headquarter---Respondent had shown apprehension of some threats to him at hands of applicant in going to Tehsil Headquarter "G"---High Court dismissed transfer application in circumstances.

Ch. Imtiaz Ahmad Kamboh for Applicant.

Ch. Ishtiaq Ahmad for Respondents Nos.1 to 3.

YLR 2010 LAHORE HIGH COURT LAHORE 1641 #

2010 Y L R 1641

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal JJ

RANG ILLAHI and 3 others ---Petitioners

Versus

BORDER AREA COMMITTEE and another---Respondents

Writ Petition No.66/R and C.M. No.816 of 2003, decided on 16th April, 2010.

(a) West Pakistan Border Area Regulations, 1959 [M. L. R. No.9]---

----Reglns. 9 & 10---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Settlement Scheme No. VI---Constitution of Pakistan (1973), Art.199---Constitutional petition---Border Area Committee, powers of---Setting aside of transfer order---Land in question was transferred in favour of petitioner by Settlement Authorities, under Settlement Scheme No. VI, which order was declared illegal by Border Area Committee and the same was set aside---Validity---No power was envisaged by Regulations Nos.9 and 10 of West Pakistan Border Area Regulations, 1959, to interfere with or adjudicate upon any order passed by Deputy Settlement Commissioner under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958---If an allotment / transfer was made by a particular authority under a particular provisions of law, then the machinery provided in that law for enforcing remedy against such order had to be adopted---Border Area Committee, which was a Provincial Authority had no jurisdiction itself to adjudicate upon a matter and cancel the transfer order passed by Settlement Authorities under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, therefore, it had no power to declare as illegal an allotment of a property made by Settlement Authorities---If Border Area Committee considered itself aggrieved of the correctness and authenticity of transfer made in favour of petitioner, it had to have recourse to a court of law for getting the decision---High Court, in exercise of constitutional jurisdiction, declined to give protection to order passed by Border Area Committee, whereby transfer order made by Settlement Authorities was set aside, as the same had exceeded the limits prescribed by West Pakistan Border Area Regulation, 1959---Order passed by Border Area Committee was passed illegally and was without lawful authority and the sane was set aside---Petition was dismissed in circumstances.

Province of Punjab and others v. Member Colonies, Board of Revenue, Punjab and others 1986 SCMR 529 distinguished.

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

----Art. 199---Civil Procedure Code (V of 1908), O.I, R. 10---Constitutional petition---Necessary party---Applicants filed application for impleading them as party to petition---Validity---Mere fact that parties had compromised a matter earlier during hearing of an Infra-Court Appeal, the same might not be relevant for enabling applicants to be impleaded in constitutional petition---Order of disposing of Intra-Court Appeal based upon compromise and initial order was not set aside and observation made about status of predecessor-in-interest of applicants remained intact---High Court declined to implead applicants as party to the petition---Application was dismissed in circumstances.

Sh. Muhammad Hanif for Petitioners.

Aamir Zahoor Chohan for Respondent No.1.

Muhammad Sajjad Afzal for the Applicant (in C.M. No.816 of 2008).

Date of hearing: 12th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1657 #

2010 Y L R 1657

[Lahore]

Before Muhammad Akhtar Shabbir, J

RIAZ AHMED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.409 of 2006 decided on 27th February, 2006.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Penal Code (XLV of 1860), Ss. 440/506-B/447/427/337-H (ii)/ 148/149---Mischief and trespassing---Quashing of order---Constitutional petition---Petitioner had called in question order passed in revision by Sessions Judge whereby he affirmed the order passed by the Magistrate summoning the petitioner in a complaint filed by the respondent---Two witnesses including the respondent/ complainant, were examined---Statements of the witnesses had indicated that prima facie the respondent/complainant and others were victims of assault in consequence of which the crops of the complainant were plundered---Private complaint by the complainant and the proceedings initiated could not be said to be abuse of the process of the court to warrant interference under S.561-A, Cr.P.C. read with Art.199 of the Constitution---Petitioner and others had not been summoned to face the trial by the Magistrate without applying his mind to the facts of the case---Simply because the Magistrate had not given detailed reasons for summoning accused/petitioners it could not be concluded that the Magistrate did not apply mind to the facts of the case---Counsel for the petitioners had not been able to point out any illegality or material irregularity in the impugned orders passed by the courts below; nor he had established that the orders impugned had been passed without lawful authority---Even otherwise the order of the Magistrate was an interlocutory order which could not be challenged by invoking the constitutional jurisdiction of High Court.

Manzoor Hussain and another v. Manzoor Hussain PLD 1974 Lah. 202; Muhammad Siddique and others v. Muhammad Yar and others 1995 PCr.LJ 1639 and Ijaz Javed and 4 others v. The State 2000 PCr.LJ 595 ref.

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

----Ss. 561-A & 439-A---Inherent jurisdiction of High Court---Scope---Provisions of S.561-A, Cr.P.C. could be invoked, if it was shown that the prosecution was motivated by malice and the evidence on record, even if accepted to be true, no offence was made out; and that the continuation of the proceedings before the Trial Court would amount to an abuse of the process of the court---Revisional jurisdiction of High Court was concurrent with that of Court of Session as envisaged under S.439-A, Cr.P.C.-Provisions of S.561-A, Cr.P.C. on the other hand related to inherent jurisdiction of High Court, which stipulated that nothing in Cr.P.C. would be deemed to limit or affect the inherent jurisdiction of the High Court to make such orders as could be necessary to give effect to any order under Cr.P.C. or prevent abuse of the process of any court, otherwise to secure the ends of justice---Inherent jurisdiction of High Court, in circumstances could not be invoked as an additional or alternative remedy.

Dilshad Ali Khan Nadeem for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1665 #

2010 Y L R 1665

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

KAMRAN HANIF---Petitioner

Versus

BILQEES BANO and others---Respondents

Writ Petition No.1302 of 2010, decided on 4th March, 2010.

Guardians and Wards Act (VIII of 1890)---

----S.25---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Custody of minor--Concealing of facts---Petitioner was father of minor who was in the custody of his maternal grandmother---Guardian Court restrained the petitioner from snatching minor from his maternal grandmother---Petitioner, without disclosing order passed by Guardian Court, filed application under S.491 Cr. P. C. before Sessions Judge, which application was dismissed---Validity.. Petitioner did not disclose the order passed by Guardian Court in favour of maternal grandmother with regard to interim arrangement of guardianship. Unless and until petitioner succeeded in setting aside order of Guardian Court passed against him, he could not seek relief from High Court for custody of minor---Concealment of fact had disentitled petitioner from discretionary relief in Constitutional jurisdiction under Art. 199 of the Constitution---Relief being discretionary, one who had not approached the Court with clean hands did not deserve such relief---Petition was dismissed in circumstances.

Malik Riaz Ali Awan for Petitioner.

Khalid Ashraf Khan and Noshab A. Khan with minor boy Zarak Kamran for Respondent.

Riaz Ahmad, S.I.

YLR 2010 LAHORE HIGH COURT LAHORE 1672 #

2010 Y L R 1672

[Lahore]

Before Tariq Shamim, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous. No.10417-B of 2009, decided on 11th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and forgery---Bail, grant of---Accused who was a property dealer, was alleged to have sold a plot purportedly owned exclusively by a person, which on verification by the complainant was not found to be exclusively owned by said person---Accused being a property dealer, was not the direct beneficiary of said transaction---According to the record and as affirmed by the counsel for the complainant, over a period of time, accused had paid' amount to the complainant---Since all the evidence was in the form of documents which had already been taken into possession by the Police, petitioner was not required by the Police for any further investigation---Even otherwise the offences with which accused was charged, did not fall within the prohibitory clause of S.497, Cr.P.C.---Delay in lodging of F. I. R. of almost two years had also not been explained by the complainant---Case being fit for grant of post arrest bail, he was admitted to bail, in circumstances.

Haji Khalid Rehman for Petitioner.

Ch. Amjad Hussain, Deputy Prosecutor-General.

Ch. Zulfiqar Ali for the Complainant.

Muhammad Aslam, A.S-I.

YLR 2010 LAHORE HIGH COURT LAHORE 1695 #

2010 Y L R 1695(1)

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD ASHIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.901-B of 2009, decided on 25th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.457/380/215---Lurking house-trespass and theft---Pre-arrest bail, refusal of---Accused was having record of involvement of 11 cases of same nature---According to the result of the investigation, accused had committed the offence and was required for recovery purpose---No mala fide of the prosecution to involve accused in the case could be pointed out---Case of accused for grant of pre-arrest bail, having not been made out, bail application was dismissed.

Rana Basharat Ali for the Complainant.

Asif Mehmood Cheema, D.P.G. with Asghar Ali, S.-I. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1702 #

2010 Y L R 1702

[Lahore]

Before Ch. Muhammad Tariq, J

RASHID KAREEM-Petitioner

Versus

JUDGE FAMILY COURT and 2 others---Respondents

Writ Petition No. 7407 of 2010, decided on 14th April, 2010

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

----S.17-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Scope---Interlocutory order--- Interim maintenance---Petitioner was aggrieved of fixation of interim maintenance by Family Court with regard to his minor son---Validity---Family Court, to avoid families front miseries, had jurisdiction under the law to pass order for payment of interim maintenance till final disposal of the suit---Petitioner who claimed to be real father of minor son was also duty bound to provide adequate maintenance to his son---Petitioner could not point out any illegality or jurisdictional error in interim order, which had been passed under relevant law and the same could not be assailed in Constitutional petition---When a statute had not provided appeal against interlocutory order, the same could not be challenged by way of Constitutional petition as it would amount to negate the provisions of statute---Appeal was a statutory right which had not been provided under West Pakistan Family Courts Act, 1964, in relation to interim order passed by Family Court---Appropriate course for petitioner was to contest the suit and to wait for final order/ judgment of Family Court---If petitioner was not satisfied with the order, he could assail the judgment as well as interim order in appeal---High Court declined to interfere in interim maintenance fixed by Family Court---Petition was dismissed in circumstances.

M.A. Ghaffar-ul-Haq for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1704 #

2010 Y L R 1704

[Lahore]

Before Ch. Iftikhar Hussain, J

IJAZ MAHMOOD alias JAJJU---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.4082-B of 2010, decided on 28th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (VI of 1908), S.4 (b)---Possession of illicit arms and attempt to cause explosion or keeping explosive with intent to endanger life or property---Bail, grant of---Further inquiry---Accused was apprehended by Police allegedly with a pistol, three kilograms of explosive substance and half kilogram ball bearings which he intended to use and destroy important installations to create terror---Despite forensic reports from three different Government agencies, the nature of allegedly recovered explosive substance was yet to be determined, which made the accused's case fit for further inquiry---Bail could not be withheld as punishment in advance; heinousness of a crime alone was not sufficient to decline relief of bail, when an accused was otherwise entitled to be deemed to be innocent--Where accused's case was covered by sub-section (2) of S.497, Cr. P. C., calling for further inquiry, he was entitled to bail as of right and not merely as grace---Accused was granted bail in circumstances.

Ghulam Mustafa Chaudhry for Petitioner.

Abdul Razzaq, D.P.G. for the State with Muhammad Arif, S.-I. with Police Record.

Complainant in person.

YLR 2010 LAHORE HIGH COURT LAHORE 1721 #

2010 Y L R 1721

[Lahore]

Before Ch. Muhammad Tariq, J

KHUDA BUKHSH---Petitioner

Versus

KHUSHI MUHAMMAD and 35 others---Respondents

Civil Revision No.1578 of 2000, decided on 8th April, 2010.

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

----O.XX, R.5 & O.XLI, R.23---Specific Relief Act (I of 1877), S.42---Suit for declaration---Inheritance dispute between parties pending adjudication for last 40 years---Trial Court decreed suit, but Appellate Court remanded case for rewriting judgment as three issues requiring separate decision had been decided jointly by Trial Court---Validity---Joint decision of inter-linked and interconnected issues pertaining to same matter would not affect merits of case--Non-framing of issues or decision of matter on interconnected issues could not be a reason for remand of case---Appellate Court, if felt necessary, could decide matter issue-wise or reframe issues and then decide same on basis of available evidence or by receiving further evidence, but could not have remanded case on such ground---Frequent remands resulting in wastage of time and creating frustration amongst litigants was deprecated---Matters should be decided on merits and technicalities should be avoided---High Court accepted revision, set aside impugned order and remanded case to Appellate Court for its decision afresh on basis of evidence available on record.

2008 YLR 206; PLD 1996 Pesh. 6; 2005 SCMR 1217 and 2008 YLR 881 ref.

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

----O.XLI, R.23---Remand of case by Appellate Court-Scope-Non-framing of issues or decision of matter on interconnected issues could not be a reason for, remand of case.

----O. XLI, R.23---Frequent remands by Appellate Court---Effect---Such remands would result in wastage of time and creating of frustration amongst litigants, thus, deprecated.

Malik Abdul Wahid and Rana Muhammad Anwar for Petitioner.

Sheikh Muhammad Nawaz for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 1727 #

2010 Y L R 1727

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

MUHAMMAD AZAM---Petitioner

Versus

RAFAQAT ALI and 3 others---Respondents

Crl. Miscellaneous No.2141/CB of 2010, decided on 6th April, 2010.

Criminal Procedure Code (V of 1898)-

----S. 497(5)---Penal Code (XLV of 1860), Ss.302,324, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, cancellation of---Accused were named in the F.I.R. of the occurrence which had resulted in death of five persons and firearms injuries to two more persons---Police, though had declared the accused innocent, yet ipse dixit of police was not binding on the court---Plea of alibi taken by the accused person was not beneficial as the first Investigating Officer had not conducted the investigation honestly and fairly---Sufficient material was available to connect the accused with the commission of the alleged offence---False implication of accused was not likely in the absence of previous enmity between the parties---Accused persons were, prima facie, involved in a heinous criminal case, which fell within prohibitory clause of S.497(1), Cr. P. C. ---Bail granted to accused persons was, therefore, cancelled.

2007 SCMR 482 ref.

M. Iqbal Bhatti for Petitioner.

Ahsan Rasul Chattha, D.P.-G. for the State.

Sakhawat Ali for Respondents Nos.1 to 3.

2010 Y L R 1755

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

IMTIAZ ALI through General Attorney---Petitioner

Versus

MUHAMMAD BAKHSH and 2 others---Respondents

C.R. No.283 of 2010, decided on 9th March, 2010.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XVII, R.3---Suit for possession---Plaintiff did not produce evidence in spite of having been given several opportunities---Even on the day fixed for evidence as last opportunity, though plaintiff was present, his counsel was not available---Plaintiff filed application for adjournment which was rejected by the Trial Court and plaintiff's right to produce evidence was closed under O.XVII, R.3, C.P.C. along with dismissal of suit for non-production of evidence---Appeal was also dismissed---Validity---Plaintiff failed to produce evidence despite being afforded ten opportunities, therefore, Trial Court had no option except closing the evidence and dismissing the suit---Judgments and decrees of both courts were quite rational and just---Plaintiff failed to point out any irregularity, illegality or misreading of evidence---Revision, being meritless, was dismissed.

Ghulam Rasool v. Rai Ghulam Mustafa and others 1993 SCMR 2026 and Government of N.-W.F.P. through Secretary, C and W and others v. Messrs Tahir Shoaib Rashid Shoaib 1998 CLC 1680-Pesh distinguished.

Ather Rehman Khan for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1757 #

2010 Y L R 1757

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ABID KHAN---Petitioner

Versus

MEMBER JUDICIAL-I, BOARD OF REVENUE PUNJAB, LAHORE and another---Respondents

Writ Petition No.3407 of 2009, decided on 15th February, 2010.

West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---West Pakistan Land Revenue Rules, 1968, R.19---Constitution of Pakistan (1973), Art.199---Constitutional Petition---Petitioner had assailed respondent's appointment as lambardar before Executive District Officer, Revenue, who set aside the order of District Officer, Revenue and appointed the petitioner as lambardar instead of respondent---Member, Board of Revenue, also dismissed the revision petition of respondent and upheld the order of Executive District Officer, therefore, respondent filed a review application which was accepted by the successor Member, Board of Revenue, who set aside the order of his predecessor and restored the order of District Officer, whereby respondent was appointed lambardar---Petitioner contended that the revision petition by respondent had become time-barred and respondent had failed to point out any error in the order of predecessor Member---Petitioner further contended that despite the fact that the review petition had become time-barred, the successor Member did not advert to the question of limitation---Validity---Respondent was not a permanent resident of the estate---Executive District Officer, Revenue, appointed petitioner as lambardar on merit---Order passed by predecessor Member was held to be mechanical for not assigning any reason for upholding the order of Executive District Officer, Revenue and not applying his judicial mind to the facts of the case---Order passed by the successor Member was also held to be a mechanical order as the member neither pointed out any illegality or mistake in the order subject of review nor he dealt with the question of limitation in his reply and parawise comments filed in the present constitutional petition---Orders of both Members were set aside and case was remanded to Senior Member, Board of Revenue, to be decided afresh---Order of Executive District Officer, Revenue, was to hold the field till de novo decision of the case.

Muhammad Ashraf v. Dost Muhammad 1981 SCMR 383; Muhammad Amin and 7 others v. Member Consolidation, Board of Revenue, Punjab and 3 others 1992 CLC 2338; Nasim Ahmad Kharal and 4 others v. Board of Revenue Sindh and 2 others PLD 1979 Note 82 P. 57; Muhammad Din and 2 others v. Muhammad Amin and 8 others PLD 1994 SC 288; Khan Muhammad and others v. Member Board of Revenue and others PLD 2006 Lah. 615; Sh. Mehdi Hassan v. Province of the Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755; Water and Power Development Authority through Chairman WAPDA, Lahore and 6 others v. Khalid Pervez PLD 2006 Lah. 611; Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; Muhammad Rafiq v. Nazir Ahmad and others 2007 SCMR 287; Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484; Ghulam Mohy-ud-Din v. Chief Settlement Commissioner Pakistan, Lahore PLD 1964 829 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.

Syed Muhammad Ali Gilani for Petitioner.

Aurangzeb Khan, A.A.-G.

Islam Ali Qureshi and Tahir Mehmood for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 1765 #

2010 Y L R 1765

[Lahore]

Before Asad Munir, J

NAZIA BIBI---Petitioner

Versus

ISHTIAQ MASIH and another---Respondents

Criminal Miscellaneous.No.1478-BC of 2009, decided on 10th November, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.354/452/34---Assault or criminal force to woman and house-trespassing---Cancellation of pre-arrest bail, petition for---Allegation against accused was that he along with co-accused, forcibly entered the house of the complainant and started abusing her as accused were drunk and they also acted in the manner that outraged the modesty of the complainant---Contention of accused was that case was of further inquiry as there was a delay of 27 days in lodging the F.I.R. and that offence of house-trespass was not made out as accused was not armed with any weapon which had ruled out commission of offence under S.452, P.P.C.-Besides, the Police investigation had only found that accused had only misbehaved with the complainant---Record also showed that co-accused had been allowed post-arrest bail, which had entitled accused to have the concession of bail on account of the rule of consistency---No case for cancellation of bail having been made out, petition for cancellation of bail, was dismissed, in circumstances.

Muhammad Tanveer Chaudhry for Petitioner.

Haider Mehmood Mirza for Respondent No.1.

Ishtiaq Ahmad, A.S-I.

YLR 2010 LAHORE HIGH COURT LAHORE 1766 #

2010 Y L R 1766

[Lahore]

Before Muhammad Khalid Alvi, J

ALLAH DAD through legal heirs and 7 others---Petitioners

Versus

FAZAL HAQ---Respondent

C.R. No.580 of 2002, heard on 19th May, 2009.

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

----Ss.12 & 18---Transfer of Property Act (IV of 1882), S.43---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of agreement to sell---Defendant's predecessor-in-interest had executed registered agreement to sell for the sale of disputed land to be allotted to him with certain permit number and received consideration of the same---Trial Court dismissed the suit of the plaintiff---Appellate Court accepted appeal of the plaintiff---Contention of the defendants was that at the time when disputed agreement was entered into, there was no corpus available with the defendants which could be transferred to the plaintiff---Agreement with regard to certain property would not be enforceable if by any exercise property under the said agreement could not be identified---If the property could be identified with exactitude with reference to the agreement, then presence or absence of corpus at the time of agreement would become immaterial---Property allotted to predecessor-in-interest of the petitioners were the same which was subject-matter of agreement to sell---There being no ambiguity with regard to the identity of the property, revision petition was dismissed.

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

----Ss.12 & 18---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Execution of agreement to sell---Production of one marginal witness---Effect---Rights of the parties were to be determined on the date when agreement had been executed---Mode of proof and quantity of evidence would also be the same which were required on the said dale---Qanun-e-Shahadat, 1984 is procedural law, which would have retrospective effect.

----S.43---Specific Relief Act (I of 1877), Ss.12 & 18---Suit for specific performance of agreement to sell---Conduct of defendants---Conduct of the defendants was evident that defendants executed registered general power of attorney in favour of plaintiff in respect of disputed agreement to sell on the same agreement day---Mere denial on the part of the defendants of having not executed agreement to sell and General Power of Attorney did not make out a case for interference by High Court.

Maulvi Abdul Aziz Khan iv. Nawabzada Sarfraz Ali and others 1985 SCMR 98; Mian Muhammad Saleem and others Mst. Hameeda Begum and others 1987 SCMR 624 and Riaz ur Rehman a id others v. Muhammad Urs 2005 MLD 1954 rel.

Sh. Naveed Shehryar for Petitioners.

Zahid Hussain Khan and Sikandar.

Ali Ch. for Respondent.

Date of hearing: 19th May, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1769 #

2010 Y L R 1769

[Lahore]

Before Asif Saeed Khan Khosa, J

Raja MUHAMMAD MUNIR---Petitioner

Versus

Mian MUHAMMAD ASLAM and 4 others---Respondents

Criminal Original No.14 of 2009, decided on 12th May, 2009

Constitution of Pakistan (1973)---

----Art.204---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court---Alleged contemner, entered appearance in person and had on his own behalf as well as on behalf of other two had tendered unconditional apology feeling sorry for what had happened before the Senior Special Judge, Anti-Corruption---Comments to said petition submitted by Senior Special Judge, had shown that in view of unconditional apology on behalf of the alleged contemners said Court had dropped the idea of moving High Court in that regard---Counsel for the petitioner, felt satisfied with the unconditional apology tendered by the contemnors, and thus no further proceedings in that regard were called for.

Shaukat Rafique Bajwa for Petitioner.

Respondent No.1 in person.

Nemo for Respondents Nos.2, 3 and 4.

Mrs. Farzana Shahzad Khan Deputy Prosecutor-General for the State Respondent No.5.

YLR 2010 LAHORE HIGH COURT LAHORE 1780 #

2010 Y L R 1780

[Lahore]

Before Asad Munir, J

MUHAMMAD NOSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Petition No. 1170/B of 2009, decided on 30th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.322---Railways Act (IX of 1890), S.100---Qatl-bis-Sabab---Bail, grant of---Further inquiry---Record showed that accused was to remain on duty on Railway gate from 4.00 P.M. to 12.00 midnight, whereafter he was to be relieved by another gate-man, who never turned up---Under the law in respect of conditions of work, the maximum number of hours that a person was supposed to work were not more than 8 hours in a day---Rationale for the limit of 8 hours of work is obvious as otherwise the performance of a person beyond 8 hours without rest was likely to be affected---In the present case it needed to be probed, if accused was on duty for 13 hours and 25 minutes continuously, because accused commenced his duty at 4 P.M., whereas the accident took place at 5.25 a.m. on the following day---Accused could not possibly be expected to perform his duties efficiently for such a long period of time---Case against accused being one of further inquiry, he was allowed bail, in circumstances.

2000 PCr.LJ, 203; 1998 MLD 1537 and PLD 1983 Pesh. 104 ref.

Shah Noor Khan Khattak for Petitioner.

Sh. Muhammad Munir, D.P.G. assisted by Hassan, Inspector for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 1782 #

2010 Y L R 1782

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

AMANULLAH KHAN through General Power of Attorney---Petitioner

Versus

Mst. AYESHA HAFEEZ---Respondent

Civil Revision No.94 of 2010, decided on 1st February, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXXIX, R.1---Suit for specific performance and temporary injunction restraining defendant from alienating the suit land---Both Trial and Appellate Courts dismissed the suit and refused to issue injunction---Validity---Execution of alleged agreement to sell was not proved---Plaintiff could not bring on record any documentary proof of payment of money to defendant---Lawful owner could not be restrained from alienating the property merely on the basis of allegations Agreement to sell did not create ally rights---Concurrent findings could not be interfered with in exercise of jurisdiction under S.115, C.P.C.---Revision was dismissed in limine in circumstances.

Muhammad v. Khanzada Gul 2007 SCMR 368; Khaqan v. Trustees of the Port of Karachi 2008 SCMR 428; Javed Afandi v. M. Zubair PLJ 2007 Pesh. 147; Muhammad Akbar v. Noor Bakhsh 2007 MLD 607 and Abdul Ghafoor v. Muhammad Bashir 2007 CLR 267 rel.

Malik Muhammad Naeem Iqbal for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1789 #

2010 Y L R 1789

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and Ijaz Ahmad Chaudhry, J

MAHMOOD alias MOODA---Appellant

Versus

THE STATE---Respondent

I.C.As. Nos. 683, 684 of 2009 and Writ Petitions Nos. 17635 and 15998 of 2008, decided on 13th August, 2009.

Penal Code (XLV of 1860)---

----Ss. 302 & 392---Anti-Terrorism Act (XXVII of 1997), S.21-A---Constitution of Pakistan (1973), Arts.199 & 9---Qatl-e-amd and robbery---Constitutional petition---Intra-Court appeal---Taking out accused from Central Jail---Apprehension to be killed in the garb of false Police encounter---Appellants, who apprehended that they could be done to death under the garb of false Police encounter, prayed in constitutional petition that Authorities could be restrained from taking out the appellants from the Central Jail---Constitutional petition of appellants having been dismissed by Single Judge of High Court, appellants had filed Intro Court appeal---Validity---Single Judge had discussed the arguments of the counsel for the appellants in detail and observed that counsel for the appellant had failed to show any law which empowered High Court to restrain the removal of appellants from the jail for the purpose of investigation; and had directed authorities to take certain precautionary measures---Single Judge of High Court, in circumstances had rightly dismissed constitutional petitions---Article 9 of the Constitution had guaranteed security of person, but where Authorities were acting within the parameters of law and were simply performing their legal obligation, they could not be restrained by order of the court and that also upon mere apprehension---Contentions raised by the counsel for the appellants were unfounded---High Court had already directed that responsible officer should avoid any untoward incident or the Police encounter etc. with the appellants---Persons of the appellants was claimed to be required for the purpose of investigation, which investigation could not be hampered on account of apprehension of appellants, the purpose of which was to collect the evidence---In absence of any reason for interference in intra-court appeal, same was dismissed.

2000 PLC (CS) 189 and Mst. Saeeda Bibi v. The Government of Punjab Chief Secretary, Lahore and 4 others 1998 SCMR 2642 ref.

M. Tahir Butt Saleh and Amir Nadeem for Appellant (in I.C.As. Nos.683 and 684 of 2009).

Khawaja Adnan Mahmood for Respondent No.6 (in I.C.A. No.683 of 2009 and Respondent No.7 in I.C.A. No.684 of 2009).

Khawaja Salman Mahmood, A.A.-G. along with Akhtar Majid Bhatti, Inspector Police Station and Asad Ghazi, Inspector.

YLR 2010 LAHORE HIGH COURT LAHORE 1799 #

2010 Y L R 1799

[Lahore]

Before Syed Hamid Ali Shah and Ali Akbar Qureshi, JJ

Malik TANVEER ALI and another---Appellants

Versus

Sardar ALI IMAM and 2 others---Respondents

R.F.A. No.361 of 1999, decided on 26th May, 2009.

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

----Ss. 12, 14, 15, 16 & 21---Suit for specific performance of agreement of sale---Specific performance of part contract---Scope---Defect in the title of vendors/defendants---Effect---Suit for possession through specific performance of agreement had been dismissed by the Trial Court--- Validity--- Defendants / vendees jointly sold total land measuring 850 Kanals and 5 Marlas to the plaintiffs---Subsequently it was revealed to the parties that 435 Kanals out of 850 Kanals and 5 Marlas, had been cancelled and defendants left with only 415 Kanals of land in their possession---Agreement as a whole being not capable of performance, plaintiffs in the existing circumstances could choose, either to claim compensation or seek enforcement of that part of the agreement which could be performed specifically---Second choice was available to the plaintiffs, when they would institute the suit and relinquish the claims including further performance and compensation---Suit of the plaintiffs was not with regard to the part performance of the contract which was capable of performance as they had claimed possession of total 850 Kanals and 5 Marlas of land without relinquishing the claim of compensation with regard to land which was cancelled---Partial specific performance could be ordered only when conditions as envisaged in S.15 of he Specific Relief Act, 1877 were strictly complied with---Plaintiffs were required to prove that they were willing and ready to make the payment of balance sale consideration on specified date---Defect in the title of vendors/defendants could result into enlargement of the time for performance of the agreement which, however, did not absolve the plaintiffs of their primary responsibility to be ready and willing to perform their obligation under the contract---If it was found that the agreement was unenforceable, it would disentitle the plaintiffs to decree even if the other issues were decided in their favour---Agreement in question contained a condition that in case of litigation or defective title, the period for completion of contract would stand extended, till the title of the defendants was clear---Clause (g) of S.21 of the Specific Relief Act, 1877, had provided that such contract could not be specifically enforced---Suit on the basis of unenforceable agreement did not lie and the agreement to sell could not be specifically performed--- Impugned judgment of the Trial Court covered every aspect of the controversy---Evidence had been properly appraised and the law had been applied properly--Impugned judgment neither suffered from any defect of misreading or non-reading of evidence, nor from the wrong assumption of law---Appeal was dismissed in circumstances.

Messrs Pioneer Housing Society (Pvt.) Ltd. through Managing Director, Bank Square, Lahore v. Messrs Babar & Company through Shakir Ali Khan and 2 others PLD 1999 Lah. 193; Muhammad Nawaz another v. Mst. Farrah Naz PLD 1999 Lah. 238; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544; Muhammad Sharif v. Mst. Fajji alias Phaji. Begum through Legal Heirs and another 1998 SCMR 2485; Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749; Muhammad Akhtar and another v. Kohitex (Pvt.) Ltd. 1998 CLC 824; Haji Abdur Rahman and 3 others v. Noor Ahmad and others PLD 1974 BJ 25; Assistant Commissioner and Land Acquisition Collector Badin v. Haji Abdul Shakoor and others 1997 SCMR 919; Khurshid Ali and others v. Abdur Rauf and others PLD 1990 Lahore 211; Muhammad Idrees Jag v. Mst. Unezah Shahid and another 2004 MLD 1033; Fazal ur Rehman v. Ahmed Saeed Mughal and others 2004 SCMR 436; Mst. Shaheen Kausar v. Shakeel Ahmed 2005 YLR 1347; Messrs Shalsons Fisheries Ltd., Karachi v. Messrs Lohmann & Co. and another PLD 1982 Karachi 76 and Hameedullah and others v. Headmistress, Government Girls School, Chokara, District Karak and 5 others 1997 SCMR 855 ref.

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

----Ss. 12, 14, 15, 16 & 21---Contract Act (IX of 1872), Ss. 46, 47 & 55---Suit for specific performance of agreement of sale---Time being essence of the contract--Determination-Scope-Normally, when the agreement pertained to the sale of immovable property and a date was mentioned for payment and for completion of sale, it would not make time essence of the contract--- Parties in the agreement had fixed the time and also agreed for penalty for not performing the contractual obligation within the stipulated period---Time being the essence of the contract, could be determined on the basis of intention of the parties that contracting parties had no intention that agreement would be performed beyond the period, specified in the agreement---Intention could be gathered by seeing the pith and substance of the agreement.

Ahmad Waheed Khan for Appellants.

Shahzad Shaukat for Respondent.

Sh. Shahid Waheed, for Respondent No.2

Date of hearing: 17th April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1812 #

2010 Y L R 1812

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SHAHBAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 805 of 2009, decided on 17th May, 2010.

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

----S.7---Application to separate case from other co-accused being juvenile---Determination of age of accused---Petitioner had submitted application under S.7 of Juvenile Justice System Ordinance, 2000 to separate his case from other co-accused on the ground that he was less than 18 years of age at the time of alleged occurrence---Said application was dismissed by the Trial Court---Validity---Petitioner had produced School Leaving Certificate and birth certificate in proof of his age---Said two documents were supported by Senior Headmaster of school concerned who appeared in the court with the relevant record i.e. Admission and School Leaving Register and made his statement on oath---Statement of the Headmaster remained unrebutted---Secretary, Union Council concerned also produced the Birth Register and also made a statement on oath to the effect that Birth Certificate of the petitioner was correct--Statement of the Secretary also remained unrebutted---Special Medical Board after examining the petitioner opined that petitioner was about 22 years of age---Petitioner was medically examined after about two years of alleged occurrence---Unrebutted documentary evidence could not be rebutted by the opinion made by Medical Board, because in ossification test, the Medical Board always gives the tentative opinion---Evidence on record had fully proved that petitioner was less than 18 years of age at the time of alleged occurrence---Impugned order passed by the Trial Court was set aside and case was remanded to the Trial Court with direction to conduct the trial of the petitioner under Juvenile Justice System Ordinance, 2000.

PLD 2007 Lah. 650; 2004 SCMR. 121 and 2005 SCMR 1542 ref.

Rai Bashir Ahmed for Petitioner.

Ch. M.Qasim Bhutta, for the Complainant.

Ch. Muhammad Iqbal D.P.G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 1815 #

2010 Y L R 1815

[Lahore]

Before Ch. Iftikhar Hussain, J

MUNAWAR KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4725/B of 2010, decided on 14th May, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/109/148/149---Qatl-e-amd---Bail, grant of---Further inquiry---No specific injury either of the deceased or injured uncle of the complainant, was ascribed to the accused---No mention was found in the F.I.R. of the locale of injuries of injured---Question of vicarious liability of accused in the matter in circumstances, was to be gone into at trial---Case of accused, was open to further inquiry into his guilt and was covered by subsection (2) of S.497, Cr.P.C.-Accused was behind the bars for the last about one year---Trial of accused had commenced with the framing of formal charge against him, but no prosecution witness had been recorded therein, such situation could not come as a clog in the way of accused to grant him the relief of bail---Case for enlargement on bail to accused having been made out, he was admitted to bail, in circumstances.

Khalid Javed Gillan v. The State PLD 1978 SC 256 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

(b) Administration of justice---

----Principle of---It was well settled proposition in criminal administration of justice that each criminal case was to be adjudged in the background of its own facts and circumstances; and the facts of two cases seldom coincide.

Ansar Ali Warraich for Petitioner.

Ch. Abdul Razzaq, D.P.G. for the State with Khushhal Khan, S.-I. with record.

Muhammad Ayyub with Mahr Jalal-ud-Din Akbar Bub for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 1819 #

2010 Y L R 1819

[Lahore]

Before Iqbal Hameed ur Rehman, J

IMRAN ULLAH KHAN---Petitioner

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Writ Petition No.1866 of 2010, heard on 14th May, 2010.

Penal Code (XLV of 1860)---

----Ss. 420 & 489-F---Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Specific Relief Act (I of 1877), S.56 (e)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cheating and dishonestly issuing cheques---Registration of criminal case---Application for registration of criminal case against petition under Ss.22-A & 22-B, Cr.P.C. had been allowed by the Justice of Peace--Validity---Factual controversies were found in the case which could not be taken into consideration by the High Court in exercise of its constitutional jurisdiction---Alleged dishonouring of the cheques in question had come about prior to issuance of the stay order by the civil court and according to S.56(e) of the Specific Relief Act, 1877, no injunction could be granted by a civil court against criminal investigation or in any criminal matter---Criminal proceedings were not barred in presence of civil proceedings as criminal and civil proceedings could proceed simultaneously---Justice of Peace had rightly passed the impugned order and counsel for the petitioner having not been able to point out any illegality or irregularity in the impugned order culling for interference by High Court in its constitutional jurisdiction---Constitutional petition was dismissed.

Aamir Shehzad v. The State and another PLD 2005 Lah. 568; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37 ref.

Syeda Feroza Rubab and Shahzada Saleem Warraich for Petitioner.

Muhammad Nawaz Bajwa, Muhammad Azeem Malik Addl. A-G. and Noor S.-I. for Respondents.

Date of hearing: 14th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1846 #

2010 Y L R 1846

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

PROVINCE OF PUNJAB through Secretary Government of Punjab---Petitioner

Versus

MEMBER, FEDERAL LAND COMMISSION, ISLAMABAD and 6 others---Respondents

Writ Petitions Nos. 2961, 2962 of 2008, 2023 to 2026 of 2009 and 5002 of 2010, heard on 8th April, 2010.

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

----Art. 184 (1)---Original jurisdiction of Supreme Court---Scope---If any dispute between two governments either inter two or more Provincial Governments on one side and Federal Government on the other side is involved, then the original jurisdiction of entertaining such dispute for the purpose of decision has been conferred upon Supreme Court.

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

----Arts. 184(1) & 199---Land Reforms Regulations, 1972, Paras. 18 (3) & 29---Constitutional petition---Dispute between two governments---Provincial Government sought setting aside of orders passed by Federal Land Commission whereby land in question was allotted to private persons---Validity---Basically power envisaged by paragraph No. 29 of Land Reforms Regulations, 1972, was the power of Federal Government, which the Federal Government could exercise directly or authorize any person in that behalf to exercise of that power---Federal Land Commission, while passing orders of allotments in question was in fact exercising power of Federal Government as provided of in paragraph No.29---Provincial Government raised a dispute which had arisen between Provincial Government and Federal Government and the same was exclusively entertainable by Supreme Court in view of Art. 184 (1) of the Constitution---High Court declined to interfere in allotment orders passed by Federal Land Commission---Petition was dismissed in circumstances.

The Punjab Province v. The Federation of Pakistan PLD 1956 Federal Court 72 rel.

Muhammad Hanif Khatana, Additional Addl. A.-G. for Petitioners.

Muhammad Ashraf Khan, Deputy Attorney-General for Respondents.

Date of hearing: 8th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1858 #

2010 Y L R 1858

[Lahore]

Before Khwaja Muhammad Sharif, CJ

AFZAL KHAN NIAZI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 807-B of 2009, decided on 21st July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/452/109/34---Attempt to commit qatl-e-amd and house-trespass---Bail, grant of---Further inquiry---Accused remained on physical remand for 10 days, but nothing incriminating was recovered from him---Accused needed hospitalization as it had been mentioned by the Board of Doctors that possibility of acute coronary even in the present stable cardiac status, could not be ruled out, which would mean that he was a patient of heart disease---Case of accused was not only covered by sub-clause (2) of S.497, Cr.P.C., but also covered by the first Proviso of S.497(1), Cr.P.C.----Bail was allowed to accused, in circumstances.

Ch. Qaiser Imam for Petitioner.

Malik Waheed Anjum for the Complainant.

Sh. Muhammad Munir, D.P.-G. with Raja Waheed, Inspector and Rafique, S.-I for Respondent.

Razzaq A. Mirza, Addl. A.-G. with Saeed Ullah Gondal, Superintendent Jail and M. Arshad Asstt. Superintendent Jail, Rawalpindi.

YLR 2010 LAHORE HIGH COURT LAHORE 1866 #

2010 Y L R 1866

[Lahore]

Before Ijaz Ahmed, J

Mst. BASHIRAN and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 1192 of 2007, decided on 6th April, 2010.

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

----Art. 199---Constitutional petition---Land, utilization of---Facilities' andneeds'---Distinction---Principle of laches--Applicability---Petitioner and others gifted land in question to Provincial Government, specifically for construction of school---Despite lapse of almost thirty-one years, no such school was constructed on the land in question and instead, Provincial Government started transferring the land to other departments---Plea raised by authorities was that departments of government were useful as those were providing facilities to public---Validity---Authorities could not criminally trespass into gifted land for usurping the same as vacant land lying for some useful purpose, which land could not be utilized for any other purpose---Such land even if left unused by inaction for decades or even for centuries would be utilized by the succeeding generation---Open space, once lost, could not be recreated, as it was like a page of History which, if once torn away, could not be replaced---If authorities were allowed to exploit land in question, the noble purpose of gift as well as sentiments that motivated people to part with their own land for such sacred cause would die forever---Neither new land could be created nor could dead sentiments of sacrifice be reanimated---Departments in question only provided certain facilities to public but emancipation, resurrection and galvanization of society had their roots in education, which was need of the day---Facility should give way to the need---Deprave acts of authorities of usurping gifted land could not be allowed to perpetuate and the same were declared illegal and set at naught---As the act of authorities usurping land gifted for specific purpose was illegal, elapse of any length of period did not constitute laches---High Court directed revenue authorities to facilitate and ensure that land in question would be used for establishment of a campus in public sector---High Court further directed revenue authorities to take steps to ensure cancellation of disputed mutations---Petition was allowed accordingly.

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

----Art. 199 (1) & (5)---Constitutional petition--- Maintainability--- Performing functions relating to affairs of Federation---Pakistan Telecommunication Company Limited is performing its duties relating to the affairs of Federation and its acts are amenable to constitutional jurisdiction of High Court.

Malik Ghulam Mustafa Kandwal for Petitioners.

Shamshad Ullah Cheema for Respondent No.6.

Rashid Hafeez, A.A.-G. Raza Naqvi, DSP.

YLR 2010 LAHORE HIGH COURT LAHORE 1873 #

2010 Y L R 1873

[Lahore]

Before Asif Saeed Khan Khosa, J

REHMAT ULLAH---Petitioner

Versus

THE STATE---Respondent

Crl. Bail Petition No.10/4/B of 2009, decided on 14th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), S.395---Dacoity---Bail, grant of---Further inquiry---Occurrence in the case had taken place in the midnight and accused had remained unknown and unidentified at the spot---Name of accused did not figure in the F.I.R. in any capacity whatsoever and his name had surfaced in the case for the first time through a disclosure allegedly made by co-accused before the Police during his custody in connection with some other criminal case--No test identification parade had been held in the case so as to positively incriminate accused---Nothing had been recovered from the possession of accused during the investigation---Investigation of the case had already been finalized and a challan had been submitted---Physical custody of accused was not required for the purpose of investigation, in circumstances---Case against accused calling for further inquiry into the guilt of accused within the purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

Shah Noor Khan Khattak for Petitioner.

Abdur Rashid Khan, Deputy Prosecutor-General for the State.

Muhammad Bashir, S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 1879 #

2010 Y L R 1879

[Lahore]

Before Mian Shahid Iqbal, J

Mst. GULZAR BEGUM and 12 others---Petitioners

Versus

PROVINCE OF PUNJAB through D.O.R. and others---Respondents

Civil Revision No.973 of 2007, decided on 19th March, 2010.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.115 & O. XVII, R.3---Limitation Act (IX of 1908), S.5---Revision---Condonation of delay-Non-production of evidence---Suit, dismissal of---Trial Court dismissed the suit for non producing of evidence, which order was maintained by Appellate court---Defendant contended that revision was barred by limitation and provisions of S. 5 of Limitation Act, 1908, were not applicable to civil revision under S.115 C.P.C.---Validity---Number of times evidence of plaintiff was present but due to pre-occupation of Court or due to request of defendant's side case was adjourned, thus plaintiff could not be burdened for adjournments---On 16-3-2006, case was transferred due to administrative order and on the said date it was adjourned for 8-4-2006, which was the fateful day---On 16-3-2006, when the case was adjourned, defendant did not oppose request for adjournment, rather it was adjourned in routine as the case file had been transferred to the Court---Order passed by Trial Court dismissing suit for non-production of evidence was erroneous, bad in law and the same could not hold the field, being patently illegal and void ab initio---Provisions of S.5 of Limitation Act, 1908, were applicable to civil revision---High Court in exercise of revisional jurisdiction under S.115 C.P. C., set aside the orders passed by both the Courts below and suit was restored to its original number---High Court directed the parties to appear before Trial Court for further proceedings in the matter---Revision was allowed accordingly.

Province of Punjab and others v. Muhammad Anwar 1998 CLC 1212 ref.

Civil Appeal No.2204 of 2006 rel.

Ch. Nisar-e-Khubaib Sabri for Petitioners.

Sami Durrani for Respondents Nos.2 to 5.

Imtiaz Ahmed Kaifi, Addl. A.-G.

YLR 2010 LAHORE HIGH COURT LAHORE 1889 #

2010 Y L R 1889

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Manzoor Ahmad Malik, J

KASHIF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.912, 896, 1027, 1028, 988 of 2008, 1310 of 2009 and Capital Sentence Reference No.27-T of 2008, decided on 2nd November, 2009.

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

----S.365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom--Appreciation of evidence---Sentence, reduction in---No enmity existed between accused persons and the family of the abductee---None was nominated in the F.I.R.---Had there been any malice or ill-will on the part of the complainant against accused persons, they could easily be implicated in the F.I.R.---Alleged abductee gave very rational answers to the questions put to him and made a very confidence inspiring statement---Statement of alleged abductee had shown that he had fully implicated accused persons---Defence could not shatter the credibility of alleged abductee during cross-examination---Other two prosecution witnesses had also fully implicated accused persons---Said accused persons were correctly identified by different prosecution witnesses during the course of identification parade---Alleged abductee also correctly identified accused persons in identification parade which was substantially held in accordance with rules prescribed by High Court---Witness who stated about delivery of ransom amount to accused person, absolutely had no enmity with accused and his testimony appeared to be confidence inspiring---No reason appeared for false implication of accused by the complainant or prosecution witnesses---Prosecution had proved its case to the hilt against three accused persons beyond any shadow of doubt as they had participated in the abduction of the child and two of them were also present at the time when the ransom amount was received---Element of common intention being fully applicable qua them, conviction of said three accused persons under S. 365-A, P.P.C. and S. 7(e) of Anti-Terrorism Act, 1997 was maintained---Since two main accused were killed in a Police encounter and the abductee child was luckily recovered, their sentence under S.365-A, P.P.C. was converted from death to imprisonment for life with benefit of S.382-B, Cr. P. C.

Muhammad Asif and others v. The State 2008 PCr.LJ. 628; Abdul Ghani alias Mooso and others v. The State 2009 YLR 862; Muhammad Jamil Sharif and others v. The State 2009 YLR 1486; Junior Reid and others v. R. 1994 SCMR 137; Abdul Adeel and others 2009 SCMR 511; Muhammad Akram v. The State 2009 SCMR 230 and Ghulam Haider v. State PLD 1995 Kar 534 ref.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)-Kidnapping for ransom--Appreciation of evidence---Benefit of doubt---Three co-accused, though were identified by the alleged abductee in the identification parade, but no evidence was available on record against said co-accused to the effect that they were present at the time of abduction of abductee, or at the time of receipt of ransom amount and his consequent release---No evidence was on record to the effect that said co-accused knew the intention of three main accused regarding abduction, demand and receipt of ransom amount--- Supplementary statements of the prosecution witnesses, appeared to be hearsay---Prosecution, however, had proved that said co-accused along with others kept the abductee in the illegal confinement for more than ten days---Provisions of S.365-A, P.P.C. and S.7(e) of Anti-Terrorism Act, 1997, in circumstances, were not attracted to their extent---When two views were possible, then the view favouring accused should be given weight---After having extended them benefit of doubt, their convictions under S.365-A, P.P.C. and S.7(e) of Anti-Terrorism Act, 1997, were set aside and they were acquitted from said charge---In view of role of said co-accused being responsible for illegal confinement of abductee for a period of more than ten days, they were convicted under S.344, P.P.C. and sentenced to three years' R.I. each with fine.

M.S. Shad for Appellants (in Criminal Appeal No.912 of 2008).

Zulfiqar Ahmad-III and Amjad Ali Mughal for Appellants (in Crl. Appeals Nos.896, 1027, 1028 of 2008).

Tahir Saleh Butt for Appellant (in Criminal Appeal No.1310 of 2009).

Syed Faisal Raza Gillani, Dy.P.-G. for the State.

Asghar Ali Gill and Malik Ali Imran for the Complainant (in Criminal Appeal No.988 of 2008).

Dates of hearing: 7th, 8th, 12th, 13th, 14th, 15th, 20th, 29th, October, and 2nd November, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1903 #

2010 Y L R 1903

[Lahore]

Before Ijaz Ahmad Chaudhry, J

TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.10705-B of 2009, decided on 8th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Contents of F.I.R. showed that firing had been made in the marriage ceremony---Possibility of commission of accidental incident could not be ruled out---No previous enmity existed between the parties---Rappat was got entered by the brother of the deceased in the daily Roznamcha that the accident had taken place accidentally---F.I.R. had been got registered with a delay of almost one month without any plausible justification, which had prima facie supported the contention of counsel for accused that incident had taken place by chance due to firing made by accused in marriage ceremony---Accused was behind the bars for the last 2-1/2 years and order sheet had shown that witnesses were present on some of the dates, but counsel for the complainant sought numerous adjournments--- When the conclusion of trial was not in sight in near future due to fault of complainant, accused could not be kept behind the bars for indefinite period--Accused was admitted to bail, in circumstances.

Muhammad Tanveer Ch. for Petitioner.

Complainant in person.

Mian Ismat Ullah, D.P.G.

Manzoor Ahmad A.S-I with record.

YLR 2010 LAHORE HIGH COURT LAHORE 1908 #

2010 Y L R 1908

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD IQBAL and others---Petitioners

Versus

BAGH ALI and others---Respondents

Civil Revision No.251 of 2010, decided on 4th March, 2010.

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

----Ss. 4, 5, 9 to 18, 22 & 29(2)---Civil Procedure Code (V of 1908), S.115 & O.XXI, Rr.10, 89---Revision petition---Condonation of delay---Revision was admittedly time barred by 163 days---Petitioner was bound to explain delay of each single day which he failed---Petition being time barred, was dismissed.

Collector District Lasbella at Uthal v. Ghulam Muhammad and others 2001 SCMR 19 ref.

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

----Ss.5 & 29(2)---Civil Procedure Code (V of 1908), S.115--- Revision---Condonation of delay---Scope---Delay in filing of revision could not be condoned under S.5 of the Limitation Act, 1908 as operation of the said section was expressly excluded by S.29(2) of the Limitation Act, 1908.

----Ss. 5 & 29(2)---Civil Procedure Code (V of 1908), S.115--- Revision---Limitation---Applicability of S.29(2) of Limitation Act, 1908 to civil revision---Scope---Civil Procedure Code 1908, a special law, itself prescribed period of limitation of 90 days for civil revision---Provisions of S.5 of Limitation Act, 1908 were not applicable, having been specifically excluded under S.29(2) of Limitation Act, 1908.

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

----Ss. 4, 9 to 18, 22 & 29---Civil Procedure Code (V of 1908), S.115---Revision---Application of Limitation Act, 1908 to revision--- Scope--- For determination of limitation period in civil revision, provisions of Ss.4, 9 to 18 and 22 of Limitation Act, 1908, shall apply; application of remaining sections of the Limitation Act, 1908 was excluded by S.29(2)(b) of the said Act.

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

----Ss. 5, 12 & 14---Application of Ss.5, 12 and 14, Limitation Act, 1908---Scope---Sections 5, 12 and 14, Limitation Act, 1908 empower a court to enhance the period of limitation in particular circumstances of each case, but, in the absence of those circumstances, the court was not competent to condone delay on its own.

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

----Preamble--- Significance of the Limitation Act, 1908---Law of limitation has significance of its own in prescribing time for instituting proceedings in judicial system.

Rai Moin-ud-Din for Petitioners.

YLR 2010 LAHORE HIGH COURT LAHORE 1911 #

2010 Y L R 1911

[Lahore]

Before Asif Saeed Khan Khosa, J

TAHIR alias ASHFAQ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.859 of 2009, decided on 11th November, 2009.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), S.227---Qatl-e-amd---Amendment of the charge---Application for---Application seeking amendment of the charge by the petitioner had been dismissed by the Trial Court, F.I.R. as well as in the statements made by the eye-witnesses under S.161, Cr.P.C., showed that petitioner had nourished a grudge against deceased; and in the garb of aerial firing during a wedding ceremony, petitioner had deliberately and purposely targeted deceased; and had found an opportunity to kill him through a straight shot fired at him---As a result of the investigation even the local Police had felt convinced regarding the murder in issue being intentional---Report submitted under S.173, Cr.P.C. showed that the petitioner was guilty of an offence under S.302, P.P.C.---Application seeking amendment of charge was filed by the petitioner after about two years of framing of the charge and commencement of the trial---Petitioner's bid to get the charge amended, in circumstances, was nothing, but an afterthought on his part---Observation made by a Court in order passed in the matter of bail, was always to be treated as tentative in nature and same had no bearing upon the trial of the case---Brother of deceased had never come forward to make any statement under S.161, Cr.P.C. before the Investigating Officer with regard to accidental death of his brother, his name also did not figure in the calendar of witnesses---Father of deceased had lodged the F.I.R. in which he had specifically alleged that the murder in issue was intentional and deliberate on the part of the petitioner---Purpose of filing application by the petitioner under S.227, Cr.P.C. for amendment of charge, appeared to get a finding from the court that the murder was not intentional and deliberate, but was merely accidental---Court would not be ready to hand down such a conclusive finding at such a premature stage, because evidence of the prosecution was still being recorded---Question of intention of an accused was necessarily a factual matter which could be determined only on the basis of the evidence to be produced before the court---No finding could be given on such an aspect at such a premature stage--Impugned order passed by the Trial Court being speaking order containing reasons for passing of the same, no legitimate exception could be taken to the same.?

M. Tanveer Chaudhry for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1916 #

2010 Y L R 1916

[Lahore]

Before Maulvi Anwarul Haq, J

Prof (Retd.) Dr. MUMTAZ HUSSAIN---Petitioner

Versus

Dr. MAQSOOD HUSSAIN and 2 others---Respondents

Criminal Revision No.444 and Criminal

Miscellaneous No. 331-M of 2008, decided on 14th January, 2009.

Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 3---Offence of Qazf---Appreciation of evidence---Offence of Qazf as defined in S.3 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 had not been imputed against any of the person summoned by the Trial Court---Contents of the F.I.R. could be taken to be the imputation of Zina against accused by the complainant---No case of Qazf liable to Hadd or liable to Tazir, in circumstances, was made out---Even otherwise Ss.10 to 13 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 had since been omitted upon promulgation of Protection of Women Act, 2006---Impugned order though mentioned that the Trial Court had perused the whole file, but the impugned order itself seemed to have been passed without examining the file and certainly without any application of mind thereto---Thirty six persons were named in the complaint but the Trial Court had picked up only 17 persons and nothing was mentioned in the order as to how the Trial Court had distinguished the cases of the said persons vis-a-vis the persons the court had not summoned---Impugned order was incorrect, illegal and improper and all the proceedings conducted were wholly irregular---Impugned order of the Trial Court issuing warrants against the persons mentioned therein was set aside and the proceedings were quashed.

Qari Mustafa v. Muhammad Yunus and others 1996 MLD 604. ref.

Tahir Munir Malik Addl. A.-G. for Petitioner.

Ch. Tanvir Ahmad Hanjra for Respondents Nos. 2 and 3.

Kh. Saeed Ahmad on behalf of Naeem Sehgal for Respondent No.4.

Mehmood A. Sheikh for Respondent No.8.

Irfan Aizad, for Respondent No.11.

Ch. Ali Muhammad for Respondent No.12.

Aftab Ahmad Bajwa for Respondent No.13.

Ms. Farzana Shahzad Khan, Dy. P. G.

Saeed Ahmad S.-I. and Zahoor Ahmad A.S-I with records.

Date of hearing: 14th January, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 1920 #

2010 Y L R 1920

[Lahore]

Before Sh. Ahmad Farooq, J

SAMINA KANWAL---Petitioner

Versus

DIRECTOR, PUNJAB FORESTRY RESEARCH INSTITUTE, GUTTWALA, FAISALABAD---Respondent

Writ Petition No.285 of 2010, decided on 13th April, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Qanun-e-Shahadat (10 of 1984), Art.114--- Punjab Contract Recruitment Policy, 2004--- Constitutional petition--- Principle of estoppel---Applicability--- Contract appointment, termination of---Petitioner joined service on contract and was terminated without giving show cause notice---Validity---Petitioner joined service on the terms incorporated in her appointment letter and she was estopped from challenging validity of terms and conditions---Authorities were also not under obligation to give show cause notice to petitioner, prior to termination of her services, either according to Punjab Contract Recruitment Policy, 2004, or appointment letter---Authorities allowed payment of one month pay to petitioner in lieu Of one month notice while terminating her services---Appointing authority exercised its authority as provided in Punjab Contract Recruitment Policy, 2004, as well as pursuant to terms and conditions of the appointment letter---It was contractual appointment and both the parties were legally bound to follow terms and conditions of the contract---Sanctity of the contract should be maintained by the parties---Post against which petitioner was appointed purely on contract basis was no longer available---Petitioner had no right to claim regularization of her service on the basis of notification for regularization of contract appointments, as well as according to Punjab Contract Recruitment Policy, 2004---Petitioner had an adequate and efficacious remedy of filing appeal before competent authority, which she had already availed---Petition was dismissed in circumstances.

Rana Asif Nadeem v. Executive District Officer Education, District Nankana and 2 others 2008 PLC (C.S.) 715 distinguished.

Muhammad Amin Farooqi for Petitioner.

Shakil ur Rehman Khan Addl. A.-G. with Shakil Ahmad Khan, Senior Research Officer, Sericulture, Lahore for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 1923 #

2010 Y L R 1923

[Lahore]

Before Sh. Najam-ul-Hassan and Syed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ARSHAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.86-J of 2006 and M.R. No. 809 of 2001, heard on 21st April, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Appellant was not named in the F.I.R.---Person who informed the complainant about the occurrence was not produced during the course of trigs---Prosecution witnesses had seen the accused coming from the opposite side along the canal bank where the occurrence took place---Said prosecution witnesses stated that they found the accused nervous and confused and assumed that he might have committed the murder of the deceased---Statement of one of the said witnesses was recorded with a delay of 20 days and the same was based on assumption---One of the prosecution witnesses had stated that the accused had confessed to his guilt before him---Except such two pieces of evidence, the prosecution had nothing to stand on its own legs---Recovery of pistol was of no consequence to the prosecution especially when the dimension of the injury could not be caused by a pistol shot---In the absence of recovery of any empty from the crime scene, prosecution could not substantiate its version by introducing reliable and confidence inspiring evidence---Prosecution's case was based on weak pieces of evidence which did not advance its case or prove the same to the hilt---Appeal was accepted in toto, murder reference was answered in negative and death sentence was not confirmed.

Kh. Faheem Ijaz for Appellant.

Qazi Zafar Iqbal Addl. P.G. for the State.

Date of hearing: 21st April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1932 #

2010 Y L R 1932

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Malik AMANULLAH---Petitioner

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 7 others---Respondents

Writ Petition No. 432 of 2010, decided on 20th January, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---high Court could not assume the role of Investigating Officer as factual controversy was involved in the present case which needed probe and investigation about the allegation, levelled against the respondents---Discretionary powers in the constitutional petition, could not be exercised for some personal vendetta.

Ahsan Raza Hashmi for the Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1937 #

2010 Y L R 1937

[Lahore]

Before Shahid Hameed Dar, J

SHAHNAZ BIBI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 4157/B of 2010, decided on 29th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 147 & 149---Qatl-e-amd---Bail, grant of--- Further inquiry---Complainant alleged in F.I.R. that the accused, her real sister, with two other co-accused had choked her mother to death by gagging her mouth with a piece of cloth in order to take control of the property left by father of both the complainant and the accused---Complainant changed her version, however, before Investigating Officer by stating that she could not recognize the two co-accused as they had covered their faces with mufflers at the time of alleged occurrence---Prosecution witness, another sister of complainant, also took a U-turn by endorsing the changed version of the complainant---Post-mortem report did plot show any signs of death due to asphyxia---Accused was found to be innocent during investigation--Case of accused, prima facie, needed further inquiry---Abscondence alone was not a hurdle to grant of bail if accused otherwise was entitled to that---Accused, being a female, her case was also covered by S.497(1), Cr.P.C.---Accused was admitted to post-arrest bail in circumstances.

Ch. Hamayun Rasheed for the Petitioner.

Sahibzada M.A. Amin Mian, Addl. P.G. for the State.

Jaffar Ali, A.S.-I. with police file.

YLR 2010 LAHORE HIGH COURT LAHORE 1945 #

2010 Y L R 1945

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. NASEEM MAI---Petitioner

Versus

MASROOR ASHIQ KHAWAJA and another---Respondents

Writ Petition No. 1574 of 2010, decided on 25th February, 2010.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage--Pending suit for dissolution of marriage filed by the petitioner against the respondent, petitioner had sought direction to the Judge Family Court to decide her suit in her favour---Validity---High Court could not issue such direction or interfere in the cases pending before the lower courts---Direction sought for from the High Court was highly unreasonable, which was not permissible in any way under the law---Case of the petitioner before the Judge Family Court could not be preferred against other cases, even if petitioner was seeking direction for earlier disposal of her case.

Ch. Muhammad Iftikhar Ahmad Joyia for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1948 #

2010 Y L R 1948

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4354/B of 2010, decided on 4th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 561-A---Penal Code (XLV of 1860), Ss.353, 365, 380, 419, 511, 148 & 149---Assault or criminal force to deter public servant from discharge of his duty; kidnapping or abduction with intent secretly and wrongfully to confine person, theft in dewelling house and cheating by personation---Ad interim pre-arrest bail, confirmation of---Delay of seventeen days in lodging of F.I.R. was not explained by any plausible reason by complainant who was a Police Official himself---Alleged violence resulting in injuries to complainant could not be substantiated as he did not get himself medically examined---Both prosecution witnesses did not nominate the accused nor did they make any mention of alleged offences, namely, attempted abduction, impersonation or mobile phone snatching---False implication of the accused due to malice or ulterior motive of the complainant could not be ruled out---Mere factum of involvement of accused in number of cases, without any conviction was not a hurdle to grant of bail to the accused---Case of accused was fully covered by S.497(2), Cr.P.C.---Ad interim pre-arrest bail of accused was confirmed in circumstances.

N.A. Butt for the Petitioner.

Sahibzada M.A. Amin Mian, Addl. P.G. for the State.

Aamir Nadeem Butt for the Complainant.

Muhammad Iqbal, S.-I. and Rustam Ali, A.S.-I. with police file.

YLR 2010 LAHORE HIGH COURT LAHORE 1954 #

2010 Y L R 1954

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Kh. Imtiaz Ahmed, J

RIAFAT KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 93 and 133 of 2005, Criminal Revision No. 48 of 2005 and Murder Reference No. 254 of 2005, heard on 6th April, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Case was of broad daylight occurrence---Accused was named in the promptly lodged F.I.R. with specific role---Complainant, real brother of deceased, and an independent eye-witness had supported the prosecution case---Medical evidence had fully corroborated the ocular testimony---Crime empty secured from the spot had matched with the pistol recovered from the accused---Real brother of the deceased could not substitute the accused with the actual culprit---Conviction of accused was, thus, maintained---Deceased having been involved in immoral activities was not "Masoom-ud-Dam "---Accused had fired a single shot, which was not repeated--Immediate cause of murder had been withheld by prosecution---Sentence of death of accused was converted into imprisonment for life in circumstances.

PLD 1964 SC 26; 2008 SCMR 688; 2005 SCMR 426 and 2008 SCMR 796 ref.

Kh. Azhar Rasheed and Malik Abdul Qayyum Khan for the Appellant.

Malik Rab Nawaz Noon for the Complainant.

Sh. Muhammad Munir, D.P.-G. for State.

Date of hearing: 6th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1957 #

2010 Y L R 1957

[Lahore]

Before Ijaz-ul-Ahsan, J

IJAZ AHMAD and 4 others---Petitioners

Versus

MAQSOOD AHMAD and 5 others---Respondents

Civil Revision No. 36 of 2010, decided on 17th May, 2010.

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

----O. XVII, R.3---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaintiff filed suit for declaration against predecessor-in-interest of the defendants challenging the vires of exchange deed---Predecessor-in-interest of the defendants died during pendency of the suit and defendants were impleaded as legal heirs---Plaintiff was directed by Trial Court to file amended plaint---Trial Court dismissed the suit on account of non filing of amended plaint---Plaintiff filed application under O.XLVII, R.1 and S.151, C.P.C. for review of dismissal order---Application was allowed and dismissal order was set aside by Trial Court---Appellate Court, on appeal, filed by defendants dismissed the same---Validity---On 21-7-2007, plaintiff was granted last opportunity to file amended plaint subject to payment of cost and the same was adjourned to 15-9-2007--On the adjourned date the Presiding Officer was on leave and the case was adjourned for filing of amended plaint on 24-9-2007---Court was on leave on 15-9-2007, order dated 21-7-2007 did not remain in the field, since the next adjournments were routine adjournments and penal action could not be taken against plaintiff---Subsequent adjournments could not be termed as adjournments given on the request of the plaintiff---Where the case was not adjourned on the request of a party, such party could not be visited with penal consequence on the subsequent date---Revision petition was dismissed by High Court.

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

----S. 114---Review---Application for---Competence---Patent illegality and error was apparent on the face of the record on the part of Trial Court---Review application was competent.

Mian Sarfraz-ul-Hassan for the Petitioners.

Respondent No. 1 in person.

YLR 2010 LAHORE HIGH COURT LAHORE 1963 #

2010 Y L R 1963

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Kh. Imtiaz Ahmed, J

WAJID HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 177 of 2005 and Murder Reference No. 709 of 2005, heard on 6th April, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Both the eye-witnesses, daughters of the deceased, were present at the scene of crime and had fully supported the prosecution case---Ocular evidence was corroborated by the recoveries of the pistol as well as the "Chhuri" used by the accused in the commission of the offence, which was further supported by the positive reports of the Experts regarding the said weapons---Conviction of accused was consequently maintained---Prosecution had failed to prove the motive given in the F.I.R.---According to the first version of the accused given at the time of his arrest, which was most important, deceased had reprimanded and abused him and he, in provocation first gave chhuri blows to her and then also fired a shot which resulted into her death---Deceased, therefore, was herself responsible for her death---Sentence of death of accused was reduced to imprisonment for life in circumstances.

1987 SCMR 1136; 2002 SCMR 1155 and 1806 and Muhammad Yaqub v. State PLD 1969 Lah. 548 ref.

Muhammad Ilyas Siddiqui for the Appellant.

Muhammad Amin Jan for the Complainant.

Sh. Muhammad Munir, D.P.-G. for the State.

Date of hearing: 6th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1968 #

2010 Y L R 1968

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

UZMA JAVED---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Education, Punjab and 2 others-Respondents

Writ Petition No. 718 of 2010, decided on 1st February, 2010.

Constitution of Pakistan (1973)---

----Art. 199--- Constitutional petition---Educational institution---Transfer from one college to another---Petitioner who earlier was transferred under Wedlock Policy to Government College at place "S", requested to Secretary Education for her second transfer to Government College at place "M"---Authorities had refused to accept the request of the petitioner---Validity----Constitution of Pakistan having determined the field and authority of organ of the State under the principle of trichotomy, High Court could not exercise the executive power as it was in the competence of authorities to accept the request of the petitioner and pass order---High Court could not issue direction to authorities that the petitioner should be transferred according to her request---Authorities however were directed to take into consideration the request of the petitioner for second transfer.

Muhammad Imran Reshid Solehri for the Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 1988 #

2010 Y L R 1988

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

TANVEER alias TEROO and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 664, 655 and 234-J of 2007, heard on 5th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/324/353/186/148/149/109---Anti-Terrorism Act (XXVII of 1997), S.7--Qatl-e-amd, attempt to commit qatl-e-amd and act of terrorism--Appreciation of evidence---F.I.R. in the case was recorded with an unexplained delay---None of the eye-witnesses had deposed that they knew accused and that they had seen them firing at the relevant time---Witnesses had made their statements only to the extent of their presence with Inspector/S.H.O. who had received an information that accused were present in the house in question and when they reached said house, the firing was started---Witnesses had not claimed that accused persons present in the house had actually fired at the Police party---Vague statements had been made by the eye-witnesses; and in such circumstances it could not be said that the prosecution had been able to prove case against accused through ocular account---Recovery of crime weapons was legally inconsequential and immaterial as there was no report of the Forensic Science Laboratory on record, whether the weapons recovered from accused persons had matched with the empties which were collected from the place of occurrence---As to which weapon had been used by them during the incident was not proved---To convict a person on capital charge, evidence should be of high quality and good standard, which was not available in the case---Prosecution was supposed to establish guilt against accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction, but in the present case the prosecution evidence was not of such a character to sustain conviction of accused persons---Accused having made out a case for their acquittal, impugned judgment of the Trial Court was set aside and accused were acquitted from all the charges and were released.

Muhammad Inayat Ullah Cheema for Appellants.

Amjid Rasool Chattha, D.P.-G. for Respondent.

Date of hearing: 5th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1992 #

2010 Y L R 1992

[Lahore]

Before Sh. Najam ul Hasan and Syed Mazahar Ali Akbar Naqvi, JJ

SHER MUHAMMAD alias SHEERI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1582 and Murder Reference No.620 of 2004, heard on 13th April, 2010.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence--.Sentence, reduction in---Complainant, who was father of deceased, resided in the same house which was near to place of occurrence---Other prosecution witness also resided close to the place of occurrence---There being report of firing before the occurrence, it was natural for the witnesses to have been attracted towards the place of occurrence---Presence of complainant and prosecution witness at the place of occurrence, in circumstances, was more than natural---Seat of injury and kind of weapon was supported by the medical evidence---Enmity existed between the parties---Presence of light at the place of occurrence was duly mentioned in the F.I.R. and the draftsman who prepared site plan also mentioned the presence of electric light near the place of occurrence---Even otherwise the parties were fully known to each other and there was no chance of mistaken identity---Son of the complainant had been killed by accused, it did not seem to be plausible that father would involve enemy and let of real culprits---Huge quantity of empties were collected by the investigator from the place of occurrence on spot inspection and the empties of 303 rifle matched with the rifle recovered from accused---Recovery of weapon of offence from accused and positive report of Forensic Science Laboratory was also a factor which had gone against the accused---All such things had shown that it was the accused who had committed the murder of the deceased---Prosecution witnesses were subjected to lengthy cross-examination, but the defence could not create a dent in their testimonies---Only a single shot was fired by accused, which hit the deceased and accused did not repeat the same---Four co-accused had been acquitted and in such a situation, as abundant caution, accused was also entitled to lesser penalty---Case being not of capital punishment, while maintaining the conviction of accused under S.302(b), P.P.C., sentence of death awarded to accused was converted into imprisonment for life---Direction for payment of amount of compensation, however was maintained---Benefit of S.382-B, Cr.P.C. was also granted to accused.

PLD 1985 SC 11 ref.

Ijaz Ahmad Chadhar and Danyal Ijaz Chadhar for Appellant.

Qazi Zafar Iqbal for the State.

Date of hearing: 13th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 1998 #

2010 Y L R 1998

[Lahore]

Before Hassan Raza Pasha, J

Mst. SHAHNAZ AKHTAR---Petitioner

Versus

MUHAMMAD ASIF and others---Respondents

Criminal Miscellaneous No. 454-BC of 2010, decided on 22nd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.365 & 452---Kidnapping or abduction with intent secretly and wrongfully to confine person and house trespass after preparation for hurt, assault or wrongful restraint---Petition for cancellation of bail---Accused allegedly abducted his own daughter one day after she had been married off to a man of her choice by her mother who had brought up the daughter while living in separation from the accused/her husband for the last twenty two years---Having been granted bail by Additional Sessions Judge, accused removed the alleged abductee from jurisdiction of the said District Court, filed a suit for dissolution of marriage and private complaint on her behalf but later himself disappeared from the court---Despite repeated directions by High Court, accused did not produce the alleged abductee in the court---Evasive and frustrating conduct of the accused would disentitle him to the concession of bail---Petition for cancellation of bail was allowed in circumstances.

1992 SCMR 1286; 2009 SCMR 1202 and 1980 SCMR 203 ref.

Fakhar Hayat Awan for the Petitioner.

Qazi Muhammad Amin for Respondents Nos. 2 to 4.

Kh. Sohail Iqbal, D.P.G. with Khalid Malik, S.-I.

Malik Sheryar Khan for alleged abductee.

YLR 2010 LAHORE HIGH COURT LAHORE 2010 #

2010 Y L R 2010

[Lahore]

Before Iqbal Hameed ur Rehman, J

RIZWAN ULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4871/B of 2010, decided on 18th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 148, 149 & 109---Attempt to commit qatl-e-amd---Bail, grant of---Accused was behind the bars for the last more than one year and four months, but the trial had not concluded---Such an unconscionable delay amounted to punishment in advance, without trial---Accused had a fundamental right to demand speedy trial and accused could not be detained in jail for an indefinite period as it would tantamount to punishing accused without trial---Accused was admitted to bail, in circumstances.

Atto alias Atta Muhammad v. The State PLD 2008 Kar. 177; Muhammad Ashraf v. The State 2007 PCr.LJ 1636 and Gul Zaman v. The State 1999 SCMR 127 ref.

Danyal Ijaz Ahmad Chadhar for the Petitioner.

Sarfraz Klian Gondal for the Complainant.

Abid Kharral, A.S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2015 #

2010 Y L R 2015

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ABBAS ALI---Petitioner

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE 2 and others---Respondents

Writ Petition No. 3788 of 2010, decided on 22nd April, 2010.

(a) West Pakistan Land Revenue Rules, 1968---

----R. 17(a)---Punjab Government Notification No. 81-2006/50 C(u) dated 17-1-2006 Notification No.1762-2007/ 1263-C dated 22-10-2007---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of land to lamberdar---Cancellation of---Amending notification---Interpretation---Scope---Amendment in the notification showed that after adding slash' the wordadjoining villages' had been added---Word "physically joining village/adjoining villages" connotated that "in case the land was not available in the village of lamberdar, he might be provided State land in village which was physically joining village with the village of lamberdar and if the land was not available in physically joining village then it could be allotted in adjoining villages "---Word "adjoining villages" had been inserted intentionally keeping in view the fact that State land might not be available in the adjoining village.

(b) West Pakistan Land Revenue Rules, 1968---

----R. 17(a)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Lamberdar---Allotment of land---Notification--- Expression "physically joining village/adjoining villages" in the notification--- Interpretation--- Scope---Word "villages" denoted the bundle of villages---Land could be allotted in any village of Tehsil of lamberdar provided the land was not available in the village of lamberdar or in physically joining village or even adjoining village---If the intention of author of the notification was that land could be allotted only in physically joining village/adjoining village, there was no need to mention the word "villages"---If construed the word "adjoining villages" in singular form, the very purpose of grant of land to lamberdar would fail.

----Interpretation of statute should be constructive and not destructive.

Rana Khalil Ahmed for the Petitioner.

Mian Abdul Rasheed for the Respondent.

Date of hearing: 7th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2021 #

2010 Y L R 2021

[Lahore]

Before Shahid Hameed Dar, J

GHULAM SHABBIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3343/B of 2010, decided on 29th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque--Pre-arrest bail, grant of---Accused's contention that cheques were not issued to the complainant but given to the arbitrators as token of security, was corroborated by arbitrators who testified his version in the court---Investigating Officer also concluded that the complainant had obtained cheques from arbitrators by lying to them and that the complainant and the accused had no monetary dealing between them---Mere issuance and dishonour of cheque in the absence of other essential ingredients such as repayment of loan or discharge of any lawful obligation, did not constitute offence under S.489-F, P.P.C.--Alleged offence did not fall within prohibitory clause of S.497, Cr.P.C.---Malice on the part of complainant could not be ruled out in view of litigation between the parties---Cheques issued by the accused, as per agreement, could only be presented to Bank for encashment after the funds mentioned in the agreement had been credited to the drawee's account whereas complainant presented the same before said funds were received by the Bank---Accused was admitted to pre-arrest bail in circumstances.

Mazhar Iqbal v. The State 2006 YLR 406; Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607; Iftikhar Akbar v. The State 2008 MLD 159; Riaz Ahmad v. The State 2009 SCMR 725; Muhammad Bakhsh v. The State 2006 YLR 23; Muhammad Tariq Javed v. The State 2008 YLR 947 and Jamil Ahmad and 2 others v. The State 2008 YLR page 1868 ref.

Malik Muhammad Awais Khalid for the Petitioner.

Syed Kazim Bukhari for Respondent No.2.

Sahibzada M.A. Amin Mian, Addl. P.G.

Khamis Baig, S.-I. with police file.

YLR 2010 LAHORE HIGH COURT LAHORE 2026 #

2010 Y L R 2026

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Waqar Hassan Mir, J

TARIQ MEHMOOD alias TARA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 298-M of 2010 in Criminal Appeal No. 48-J of 2009 decided on 3rd May, 2010.

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

----Ss. 476-A & 476---Penal Code (XLV of 1860), S.302--- Qatl-e-amd---Application for initiation of proceedings against respondent under S.476-A, Cr.P.C.---Respondent had filed appeal against his conviction and death sentence passed by Trial Court---During pendency of appeal, respondent/accused filed application for his acquittal on the basis of compromise with the legal heir of the deceased---High Court called report from Sessions Judge and on the basis of the same, came to the conclusion that the compromise had been effected, resultantly, appeal was allowed and acquittal order was passed---Complainant however denied the compromise and thumb marks on statement of compromise---Matter was sent to Sessions Judge who sent a detailed report which revealed that complainant had neither appeared before Sessions Judge nor he had put his thumb-impressions on the statement of compromise---Respondent had produced someone else in the court and thumb marks were found fake---Sessions Judge was directed by High Court to proceed against respondents under Ss.476 and 476-A, Cr.P.C. and issue non-bailable warrants of the respondents---Convict was ordered to be sent to jail to serve the sentence awarded by Trial Court---Application having been allowed, acquittal order was recalled.

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

----S. 345---Compromise, recording of---High Court issued directions to be strictly followed and adhered to by the Judicial Officers throughout the Province.

Following are the directions of the High Court with regard to recording of compromise:--

a) In all the Courts computer facilities are available. With every computer Webcam (Cambera) be attached which costs only Rs.2000.00/3000.00.

b) At the time of recording of statement of a witness or any of the legal heirs of deceased, photograph can be obtained directly from that Webcam.

c) When the print of statement is to be obtained, on one side of the said statement the print of photo of the person concerned can also be taken.

d) By using Webcam and getting printing of photograph from printer, all possibilities of tampering even for replacement of snap shall be eliminated. (Note: a specimen statement with photograph is attached with this report for kind perusal).

e) The Nazim or Naib Nazim must be of the same locality where legal heirs of deceased reside for the purpose of verification of compromise and particularly identification of the persons who appear in the Court.

f) Bio Metric System is the most important and modern device because by using this system the thumb impression of a person can be received through scanner without use of any ink.

g) Once thumb-impression is received, it can be saved in computer. A CD can be prepared of all these proceedings and can be sent along with report to the honourable High Court.

h) Once thumb-impression is received and saved in a secret file, in future, there will be no need to send the same to any handwriting expert because this job shall be done by the computer within minutes.

i) Till the time all these proposals are considered a direction be issued to all the Sessions Judges/all Judicial Officers that inquiry should be made in immediate presence of concerned Judge. By no means matter shall be dealt by any duty Sessions Judge, unless specifically directed by the honourable High Court. Latest coloured photograph of every legal heir must be pasted with the gum of quality on the statement in a way that its replacement may not be possible in future."

Hafiz Khalil Ahmed for the Petitioner.

Syed Faisal Raza Bukhari, Deputy Prosecutor General for the State.

Date of hearing: 28th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2033 #

2010 Y L R 2033

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDUS SALAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9558-B of 2009, decided on 12th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.408---Criminal breach of trust---Bail, grant of---Accused had allegedly committed criminal breach of trust---Two different sets of Auditors of the Board (department) had given contradictory reports in the matter, which actually related to rendition of accounts---Further inquiry into the guilt of accused, as envisaged under S.497(2), Cr.P.C., thus was needed in his case---Offence of accused did not attract the prohibition contained in S.497(1), Cr.P.C. and grant of bail in such a case was a rule and refusal an exception---Involvement of huge amount in the matter was not an exceptional circumstance---Accused being a heart patient had undergone bypass surgery and now needed opinion from the consultant in a well-equipped hospital, which facility was not available in jail--Treatment of choice being a right of accused could not be denied to him and his case also fell within the ambit of first Proviso to S.497(1), Cr.P.C.---Accused was admitted to bail in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Mian Muhammad Qamar-uz-Zaman for the Petitioner.

Qazi Zafar Iqbal, Additional Prosecutor-General Punjab for the State.

Muhammad Boota, S.-I, Police Station Gulberg, Lahore with the police record.

YLR 2010 LAHORE HIGH COURT LAHORE 2035 #

2010 Y L R 2035

[Lahore]

Before Ijaz Ahmad Chaudhay and Sardar Tariq Masood, JJ

FAROOQ AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 490 of 2005, 171 of 2007 and Murder Reference No. 514 of 2005, decided on 26th April, 2010.

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

----Ss.302(b)/34 & 364/34---Qatl-e-amd and abducting for murder---Appreciation of evidence--- Benefit of doubt--Identification of accused in dark hours of night in the absence of light was not possible---Moon light introduced as a source of light in the occurrence was not available at the relevant hours of the night---Delay in lodging the F.I.R. and in conducting the post mortem examination of the deceased had indicated fabrication on the part of the prosecution and doubt about the prosecution story---Motive for the incident had been disbelieved---Crime empties collected from the spot and the pistols recovered at the instance of accused having remained together in the "Malkhana", possibility of tampering and manufacturing of empties after the recovery of pistols could not be ruled out--Recoveries, thus, were of no consequence---Benefit of every doubt found in evidence about the truthfulness of the prosecution story had to be given to accused without any reservation as a matter of right and not as a matter of grace---No conviction could be recorded merely on the basis of probabilities---Accused were acquitted in circumstances.

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

----Ss.302(b)/34 & 364/34---Qatl-e-amd and abduction for murder---Appreciation of evidence---Benefit of doubt, extension of---Principles---Many circumstances creating doubt are not required in the case for giving benefit of doubt to accused---Single circumstance which creates reasonable doubt in a prudent mind about the guilt of accused would entitle him to its benefit not as a matter of grace and concession but as a matter of right.

Sahibzada Farooq Ali and Malik Fazal Karim for the Appellants (in Criminal Appeal No. 490 of 2005).

Syed Mukhtar Masood Bokhari, D.P.G. for the State.

Malik Abdul Aziz Khan Niazi and Altaf Ibrahim Qureshi for the Complainant (in Criminal Appeal No 171 of 2007).

Pervaiz Aftab for Respondent No.1 (in Criminal Appeal No171 of 2007).

Date of hearing: 26th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2044 #

2010 Y L R 2044

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUKHTAR HUSSAIN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No. 110/CB of 2008, decided on 30th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.337-A(iii), 337-F(i), 337-F(v) & 34---Shajjah-i-Khafifah and Damiyah--- Cancellation of bail, petition for---Accused though were nominated in the F.I.R., but accused to whom injury on the right leg of injured prosecution witness had been attributed, had been found to be innocent during course of investigation---Injury on the left leg below the knee did not find mention in the F.I.R. and similar was the position of another injury---Challan had been submitted before the court---No complaint was on record to show that accused persons were misusing the concession of bail---Even otherwise, true import of the allegations against accused persons would be determined at the time of trial after recording of some material evidence---Trial Court had given elaborate reasons for allowing bail to accused persons---For a bail granting order, to be eligible to be interfered with under S. 497(5), Cr.P.C., the same had to be arbitrary, absurd or fanciful---Discretion left in the court under S.497(5), Cr.P.C., was pari materia with the principles, which applied to the setting aside of the orders of acquittal---Counsel for the complainant/ petitioner had not been able to point out any such illegality or absurdity in the impugned order so as to warrant interference by High Court---Petition for cancellation of bail was dismissed.

Mian Dad v. The State and another 1992 SCMR 1286 and Muhammad Tayyab v. The State 1997 PCr.LJ 597 ref.

Malik Akhtar Raza Lodhra for the Petitioner.

Sardar Tanveer Haider Buzdar, Assistant District Public Prosecutor for the State.

Ms. Safia Gulzar and Rana Asif Saeed for Respondents Nos. 2 and 3.

YLR 2010 LAHORE HIGH COURT LAHORE 2046 #

2010 Y L R 2046

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Najam ul Hasan, JJ

THE STATE through Deputy Director---Petitioner

Versus

MUHAMMAD SAFDAR---Respondent

Criminal Miscellaneous No. 9147/BC of 2009, decided on 3rd November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---West Pakistan Arms Ordinance (XX of 1965), S.13---Possession of narcotics and arms---Cancellation of bail, petition for---Accused had been allowed bail by considering the maximum period for his sentence and by holding that the offence committed by accused did not fall under prohibitory clause of S.497, Cr.P.C.---Accused appeared to be ill and keeping him in jail would be injurious to his life---Case being not fit for cancellation of bail, petition for cancellation of bail, was dismissed.

Ghulam Murtaza and another v. The State PLD 2009 Lah.362 ref.

A.D. Naseem, Special Prosecutor for the State.

Hammad Akber Walana for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 2047 #

2010 Y L R 2047

[Lahore]

Before Khalil Ahmad and Muhammad Akram Qureshi, JJ

MUHAMMAD ILYAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8332/B of 2008, decided on 4th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Sub-stances Act (XXV of 1997), Ss.6/9---Possession of narcotic---Bail, grant of---Further inquiry---Recovery proceedings were witnessed by the Police Officials---Case of the prosecution was not that accused was previously known to the Police Officials who conducted the alleged raid---Accused, after his apprehension in the case, was never put to the identification parade---Nothing was on record to confirm that the house from which alleged recovery was effected, was exclusively owned by accused---Case against accused, in circumstances, was of further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.---Accused was granted bail, in circumstances.

Hammad Akbar Wallana for the Petitioner.

M.M. Alam, A.P.-G. for the State.

Muhammad Sadiq, S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2048 #

2010 Y L R 2048

[Lahore]

Before Syed Hamid Ali Shah and Tariq Shamim, JJ

PAKISTAN ENGINEERING COUNCIL---Appellant

Versus

RACHNA COLLEGE OF ENGINEERING AND TECHNOLOGY and others---Respondents

I.C.A. No. 308 of 2007, decided on 12th November, 2008.

Pakistan Engineering Council Act (V of 1975)---

----S. 30---Law Reforms Ordinance (XII of 1975), S.3---Grant of accreditation---Appellant in intra-court appeal, had called in question order passed in constitutional petition on the ground that accreditation was granted to the institutions and not to the students who were being imparted education in the institution---Impugned judgment of the High Court was also attacked on the ground that order was passed on the basis of concurrence, while Legal Advisor of Engineering Council had never concurred---Validity---Counsel for the appellant had concurred to the report by experts for the purpose of decision of the constitutional petition---Record had revealed that the consent of the Legal Advisor for the appellant was recorded by the court in its order---Affidavit of counsel contrary to the record of the court had no value---Court proceedings had always a precedence over the affidavit of the counsel---Any material placed on record, which would negate the court proceedings, had no value and the same could not be considered---Panel of six experts was nominated by the court with the consent of the parties---Party when persuaded a court to adopt a procedure for resolution of dispute, each party was barred from challenging its validity on the ground of non-compliance of prescribed procedure---Accreditation to the college was provisional and half of the period had already lapsed---College was being run and managed by University of Engineering and Technology---University after taking over its control, as per report of the Committee of Experts, had improved the standard---Teaching and other facilities of the University were made available to the college---Withdrawal of the accreditation midway was not proper in circumstances---Appeal was dismissed.

Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964; Iqbal Ahmad Khan and another v. Asif Ali Khan and 8 others 2007 CLC 1156 and Yasin and others v. Muhammad Taqi, 1999 CLC 1371 ref.

Khurram Fraz for Appellant.

Sh. Shahid Waheed for Respondent No. 1.

Syed Sajjad Hussain Shah for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 2050 #

2010 Y L R 2050

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IBRAR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9150-B of 2009, decided on 19th August, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss. 302/34/148/149/109---Qatl-e-amd---Bail, grant of---Accused was nominated in the F.I.R. with the allegation that he, while riding a motorcycle raised a "Lalkara" on which the pillion rider fired with his Kalashnikov on the head and chest of the deceased, and thereafter accused fired a pistol shot which hit at the arm of the deceased---Doctor had given general opinion that all the injuries on the person of the deceased were sufficient to cause his death---Injuries on the vital parts of the body of deceased were attributed specifically to main accused---Accused during investigation was found present in the neighbouring village doing electricity wiring in a mosque and his plea of alibi was supported by sworn affidavits of twenty six persons of the locality, who had appeared before the Investigating Officer--Presence of accused at the place of occurrence at the relevant time was not proved during investigation---Although opinion of police was not binding on the Court, yet it could be considered for grant of bail to accused---Accused having succeeded in making out the case for further inquiry, he was admitted to bail accordingly.

Qadir Bakhsh v. Allah Wasayo and others 2008 SCMR 182 and Muhammad Jabbar v. Shah Daraz Khan and another 2009 PCr.LJ 370 ref.

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

----S.497---Penal Code (XLV of 1860), S.302/34/148/149/109- Qatl-e-amd--Bail--Police opinion-Although opinion of police is not binding on the Courts, yet the same can be considered for grant of bail to an accused.

Ch. M. Ayub for the Petitioner.

Sahibzada M.A. Amin Mian, A.P.-G. with Mukhtar, S.-I.

Ms. Najma Parveen for the Complainant with Muhammad Shah, S.H.O.

YLR 2010 LAHORE HIGH COURT LAHORE 2054 #

2010 Y L R 2054

[Lahore]

Before Sh. Azmat Saeed, J

MEHBOOB ELAHI---Petitioner

Versus

SABIR ALI and 5 others---Respondents

Civil Revision No. 1339 of 2008, decided on 12th April, 2010.

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

----S. 53-A---Specific Relief Act (I of 1877), S.12---Suit for partition of disputed land against the defendant on the ground that their predecessor-in-interest had purchased disputed property jointly with the defendant in equal share---Defendant contested suit on the ground that during his life time, the predecessor-in-interest of the plaintiffs had executed an agreement to sell in respect of his half share and received the entire consideration--Contention of the defendant was that his possession was protected under S.53-A of the Transfer of Property Act, 1882---Trial Court rejected defence of the defendant and passed a preliminary decree---Appeal filed by defendant was also dismissed by the Appellate Court---Validity---Agreement to sell did not show that possession in terms of the same was handed over to the defendant---Provision of S.53-A of the Transfer of Property Act, 1882 was not applicable---Defendant had failed to point out any illegality in the impugned judgment and decree passed by courts below---Revision petition was dismissed by High Court.

Muhammad Rasheed Chaudhry for the Petitioner.

Mehr Shahid Mehmood for the Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2059 #

2010 Y L R 2059

[Lahore]

Before Syed Mazhar Ali Akbar Naqvi, J

MUHAMMAD TARIQ and others---Petitioners

Versus

THE STATE and 6 others---Respondents

Writ Petition No.35/Q of 2009, decided on 25th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.420, 468 & 471---Punjab Fertilizer (Control) Order, 1999, S.18---Chemical Fertilizers (Development Surcharge) Act (XLI of 1973), S.6---Punjab Essential Articles (Control) Act (XVII of 1973), Preamble---Cheating, forgery, using as genuine a forged document---Quashing of F.I.R., petition for---Accused persons being labourers by profession, were illiterate/uneducated persons and it could not be said that they might be having knowledge about what kind/standard of fertilizer was being prepared in the factory; at the most the offence under Ss.420, 468 & 471, P.P.C. read with S.6 of the Chemical Fertilizers (Development Surcharge) Act, 1973 and S.18 of Punjab Fertilizer (Control) Order, 1999 could be attributed to the owner of the factory, but he was declared innocent by the Police---Accused persons by no stretch of imagination could be said that they were having any criminal intent---Investigation of the case was conducted by A.S.-I., which was in clear contravention of the Punjab Essential Articles (Control) Act, 1973, whereby a Gazetted Officer should have investigated the case---Further proceedings in the impugned F.I.R. would be futile exercise; and in such circumstances, there was no likely-hood that accused could be convicted---F.I.R. was quashed, in circumstances.

Nadeem Shibli for Petitioners.

Imtiaz Ahmed Kaifi, Addl. A.-G. Punjab for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2061 #

2010 Y L R 2061

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

SHAHID HUSSAIN---Petitioner

Versus

JUDGE FAMILY COURT and 2 others---Respondents

Writ Petition No.4650 of 2010, decided on 16th April, 2010.

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

----S.5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.7---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Suit for recovery of maintenance by wife--- Plea raised by husband in written statement dated 14-11-2002 was that he had already divorced plaintiff, thus, she was not entitled to maintenance---Passing of ex parte decree by Family Court due to failure of husband to produce evidence---Photo-copy of divorce deed filed before High Court did not show its date of execution except purchasing of its stamp paper on 5-4-2002---Plea of husband was that be had announced Talaq orally in presence of witnesses in October, 2001, which was reduced in writing subsequently; and that oral talaq would become effective despite non-issuance of certificate of Talaq---Wife's plea was that alleged divorce deed was a fake / forged document, which was neither produced before Family Court nor sent to Union Council for issuance of certificate of Talaq and that husband had manoeuvred same just to avoid payment of decretal amount---Validity---All such facts would show that husband was only gaining time to avoid payment of amount of decree, which had become final---High Court declined to give finding on such factual issue, which husband might raise before Executing Court, if so advised---Impugned judgment and decree did not suffer from any illegality---High Court dismissed constitutional petition in circumstances.

(b) Constitution of Pakistan (1973)--

----Art. 199---Constitutional jurisdiction---Scope---High Court could not interfere in a decree passed by a competent Court, in absence of jurisdictional defect therein.

Javed Akhtar Siddiqui for Petitioner.

Waqar Anjum for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2064 #

2010 Y L R 2064

[Lahore]

Before Manzoor Ahmed Malik, J

ABDUL QADEER---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous. No.15751-B of 2009, decided on 12th January, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.420/468/471---Cheating and forgery---Bail, grant of---Prosecution's plea was that accused being beneficiary of forged document would be presumed to have prepared the same---Validity---Neither original document nor any evidence was available on record to show that accused had prepared said document---Question, whether or not accused had prepared forged document, could be decided by Trial Court only after recording of evidence---Offences under Ss. 420 & 471, P.P.C. being bailable, whereas offence under S. 468, P.P.C. did not fall within prohibitory clause of S. 497, Cr.P.C.--- Accused was admitted to bail.

Ch. Ishtiaq Ahmad Khan for petitioner.

M.M. Alam Chaudhry, Addl. Prosecutor-General.

Arif, A.S-I with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2065 #

2010 Y L R 2065

[Lahore]

Before Tariq Shamim, J

SHAFQAT HAYAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous. No.796/B of 2009, decided on 6th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---F.I.R. in the case was lodged against unknown assailants by the complainant---Accused was implicated on the basis of a supplementary statement which did not have much evidentiary value---During investigation, no incriminating material was recovered from the possession of accused who was found innocent, as according to the Police, with the exception of supplementary statement, no other direct evidence was available on the record connecting accused with the crime--Investigation of the case had been finalized and accused was not required by the Police for any purpose---Accused was admitted to bail, in circumstances.

Nadeem Mumtaz Khan for Petitioner.

Chaudhry Qaiser Imam for Complainant.

Sh. Muhammad Munir, Deputy Prosecutor-General for the State along with Muhammad Akbar, S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2066 #

2010 Y L R 2066

[Lahore]

Before Ch. Mahmood Akhtar Khan, J

Malik MUHAMMAD KHAN--- Petitioner

Versus

INSPECTOR GENERAL OF POLICE PUNJAB, and others---Respondents

Writ Petition No.418 of 2009, decided on 6th April, 2009.

Police Order (22 of 2002)---

----Art. 18(6)---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Dishonouring of cheque---Suspension of arrest of accused---Record had shown that impugned order for suspension of arrest of respondent/accused, was issued by the police functionary without having lawful authority, as investigation of the case had never been entrusted to said functionary under Art.18(6) of Police Order, 2002---Impugned order passed by police functionary was set aside and Investigating Officer was directed to investigate the case purely on merit.

Ch. Qaiser Imran for Petitioner.

Muhammad Abid Raja, A.A.-G. Abdul Ghaffar A.S-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2067 #

2010 Y L R 2067

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD JAVAID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous. No.14392-B of 2009, decided on 11, January, 2010.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.392/337-J---Robbery---Bail, grant of-Accused had been arrested two years back, but his trial had not made any progress--Accused had not been nominated in the F.I.R. and test identification parade had been held after about three months of the alleged occurrence---Mobile telephone set had allegedly been recovered from the possession of accused, but Deputy Prosecutor General had confirmed the fact that no Memorandum of Identification was available on the record establishing that the recovered mobile telephone set was the same telephone set which had allegedly been snatched away by the accused---Continued custody of accused in jail, without any progress in his trial was unconscionable---Accused was admitted to bail, in circumstances.

Muhammad Tahir Butt Saleh for Petitioner.

Mrs. Farzana Shahzad Khan, Deputy Prosecutor-General for the State.

Iftikhar Ahmed, S-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2068 #

2010 Y L R 2068

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Najam-ul-Hasan, JJ

THE STATE---Petitioner

Versus

NISAR AHMAD and others---Respondents

Crl. M. No.193/CB/2010, decided on 4th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)--- Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Cancellation of bail, petition for---Accused was not apprehended at the spot despite the fact that a number of Police Officials along with vehicle were present and the only evidence against accused was statement of his co-accused, who was inimical to the accused---Report under S.173, Cr.P.C. had been submitted and nothing was to be recovered from the accused---Criteria for cancellation of bail was entirely different from grant of bail---Accused continuously appeared before the Trial Court and had not misused the concession of bail---Bail cancellation was declined in circumstances.

Ch. Abdul Razaq, Deputy Prosecutor-General.

Muhammad Ahsan Nazami for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 2070 #

2010 Y L R 2070

[Lahore]

Before Tariq Shamim, J

MUKHTAR AHMAD---Petitioner

Versus

INSPECTOR GENERAL OF POLICE and others---Respondents

Writ Petition No.3250 of 2007, decided on 30th April, 2007.

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

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case---Application for---Ex-officio Justice of Peace, after going through the contents of the application and the report submitted by the Police, dismissed application for registration of criminal case---Validity---Essentially the dispute between the parties was one of civil nature---Application filed by the petitioner did not prima facie disclose commission of any cognizable offence by accused/petitioner---Petitioner had an equally efficacious remedy available to him by way of filing a private complaint against accused---All the contentions related to the realm of a factual controversy which could not be resolved by High Court in exercise of its constitutional jurisdiction under Art.199 of the Constitution---Constitutional petition was dismissed.

Abdul Wahab Khan v. Government of Punjab PLD 1989 SC 508; Raja Muhammad Ramzan v. Union Council Bainail and others 1994 SCMR 1484 and Khizar Hayat v. The State 2005 Lah. 470 ref.

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

----S. 561-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner, prima facie appeared to be involved in the crime alleged against him, which was evident from the contents of the F.I.R.---Allegations levelled against the petitioner were not baseless or without any substance---Quashing of F.I.R. would amount to stifling the prosecution---Quashing of F.I.R. by the High Court in circumstances would amount to short circuiting the normal procedure of law as provided under Cr.P. C. and Police Rules--Accused had more than one alternate remedies available to him under the Cr.P.C. and the Police Rules---Constitutional petition was dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Mirza Tahir Baig for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2072 #

2010 Y L R 2072

[Lahore]

Before Ijaz Ahmad Chaudhry and Anwar-ul-Haq Pannun, JJ

MUHAMMAD PERVAIZ alias KALA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.736 of 2002 in M.R. No. 298 of 2002 decided on 24th March, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-A(iii)/34---Qatl-e-amd and attempt to commit Qatl-e-amd-Appreciation of evidence---Sentence, reduction in---Complainant who was real brother of deceased, had supported the prosecution story---No previous enmity existed between accused, prosecution witnesses and the deceased---Complainant was an independent witness who had no motive to falsely implicate accused in the case---Two other prosecution witnesses were not related to the deceased or the complainant party, but only had friendly relations with the complainant party and said witnesses could not be termed as `interested witnesses'---Presence of said witnesses was not at all doubtful as they also received serious injuries during the incident---Presence of said witnesses at the spot was established beyond any shadow of doubt and they had made consistent statements---All the three eye-witnesses were subjected to length cross-examination but the defence had failed to gain anything in its favour and to cause any dent in the ocular account furnished by said eyewitnesses---Incident was a daylight occurrence wherein both the parties were injured and were known to each other---No chance of misidentity of accused persons existed---Time and place of occurrence had shown that occurrence could not go un-witnessed---Ocular account to the extent of accused persons, in circumstances was fully reliable and confident and was supported by medical evidence---Time and the place of incident was not specifically denied by the defence as well---Recovery of weapon from. one of co-accused, however, could not be used as corroborative piece of evidence to the ocular account as report of the Forensic Science Laboratory did not show that the empties allegedly recovered from the spot were fired from said weapon---Motive of incident was also established---Prosecution, in circumstances, had succeeded in proving the case against accused persons---Conviction of accused was maintained, however the incident had taken place at the spur of moment without any premeditation and the person from accused party also received injuries during the scuffle at the spot---Motive part also disclosed that it was the complainant party which had grievance against accused due to causing of injuries by them in the earlier incident to the brother of the complainant---Imposing of death penalty against accused being harsh, was converted to life imprisonment---Sentence awarded to other accused who were facing the agony of the trial since 15-7-1997 and had already undergone sufficient period of imprisonment, was reduced to the period already undergone by them.

Mian Abdul Qayyum Anjum and Muhammad Tazir Butt, Defence Counsel for Appellants.

Tariq Mahmood Sipra for Complainant.

Mazhar Sher Awan, Additional Prosecutor-General for the State.

Date of hearing: 24th March, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 2079 #

2010 Y L R 2079

[Lahore]

Before Asif Saeed Khan Khosa, J

SHER KHAN and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.472 of 2007, decided on 16th April, 2009.

Penal Code (XLV of 1860)---

----Ss. 337-A(i), 337-F(i) & 337-F(v)--Criminal Procedure Code (V of 1898), S.439---Causing injuries---Accused and one of his co-accused who were convicted and sentenced, filed revision against their conviction and sentence---During pendency of revision a compromise was arrived at between the parties and complainant party had forgiven the two accused persons---Conviction and sentences awarded to accused persons were set aside and they were acquitted of the charge---Second co-accused had allegedly given Danda blow on the body of the complainant---Weapon used by said co-accused was an ordinary Danda which was not a lethal weapon---Co-accused had no credentials or antecedents of being a previous convict, habitual or hardened, desperate or dangerous criminal within the purview of S.337-N(2), P.P.C. so as to attract the optional additional sentence of imprisonment as Ta'zir---Revision petition of said co-accused was dismissed to the extent of his conviction under S.337-F(i), P.P.C., but was partly allowed to his sentence of imprisonment as Tazir which was set aside as unwarranted by the law---Sentence of payment of Daman of Rs.1000 passed against said co-accused was upheld and maintained---Said co-accused who was already admitted to bail during the pendency of revision, was directed to deposit the requisite amount of Daman within specified period.

Ijaz Ahmad Awan for Petitioners.

Mrs. Farzana Shahzad Khan, Deputy Prosecutor-General for the State.

Saif-ul-Haq Ziay, for the Complainant.

Date of hearing: 16th April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 2081 #

2010 Y L R 2081

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUSSARAT BIBI---Petitioner

Versus

THE STATE---Respondent

C.M. No.1 of 2009 in Crl. A. No. 1004 of 2009, decided on 24th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302(b)/149---Qatl-e-amd---Suspension of sentence, petition for---Trial Court, had reproduced dying declaration of the deceased in its judgment, according to which name of the petitioner had not been mentioned as one of accused who had administered something in the water given to the deceased immediately before she was taken to hospital---Nothing was available to the effect that any other person had witnessed the incident---No likelihood of hearing of the main appeal in near future---Nothing was recovered from the possession of the petitioner during the investigation---Case being fit for suspension of sentence, petition was accepted and sentence of the petitioner was suspended.

Muhammad Bashir Choudhary for Petitioner.

Mian Asmat Ullah, D.P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 2088 #

2010 Y L R 2088

[Lahore]

Before Asif Saeed Khan Khosa, J

Rana IFTEKHAR AHMED-Petitioner

Versus

ALI AHMAD and 6 others---Respondents

Petition for Special Leave to Appeal No.81 of 2007, decided on 6th May, 2009.

Penal Code (XLV of 1860)---

---Ss.324/365/337-A(i)/337-F(i)/148/149---Criminal Procedure Code (V of 1898), S.417(2)---Attempt to commit qatl-e-amd and abduction---Special leave to appeal---Private complaint in the case had been instituted with a delay of nineteen days---Accused party was already present at the place of occurrence at the relevant time and it was the complainant party which had gone to that place and had restrained accused party from doing what it was doing at the spot---According to the prosecution itself it was the intervention of the complainant party which had enraged accused party and had propelled it into aggression---Case was not one of premeditation or pre-concert on the part of accused party---Trial Court after detailed assessment and evaluation of the evidence had concluded that the story of prosecution regarding construction of a water course at the spot by accused party was not correct---Star witness of the prosecution, who was injured, had refused to support the story of prosecution---Defence witness had stated that incident was a trifling one of an ordinary scuffle and no weapon had been used---No legitimate exception could be taken to the conclusion of the Trial Court---Leave to appeal was refused.

Zahid Hussain Khan for petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2090 #

2010 Y L R 2090

[Lahore]

Before Nazeer Ahmad Ghazi, J

GUL ZAMIN KHAN and another---Petitioners

Versus

JUSTICE OF PEACE/ ADDITIONAL SESSIONS JUDGE, MIAN CHANNU DISTT. KHANEWAL and 2 others---Respondents

Writ Petition No.6509-B of 2008, decided on 21st May, 2009.

Penal Code (XLV of 1860)---

----Ss. 365/420/468/471---Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Abduction, cheating, forgery---Registration of case--- Respondent had already lodged an F.I.R. under Ss.365/420/468/471, P.P.C. registered at Police Station in which allegation of abduction of son of respondent had been levelled and without considering the pendency of said earlier F.I.R., the Justice of Peace passed the impugned order---Petitioner had alleged that abductee had been bumped of, if that was so, the Police had got every power to add any section--Even otherwise, the trial of the said case was pending adjudication before the court; and if the complainant would produce evidence and make statement, even the Trial Court was competent to frame/amend the charge at any time and look into the contents of the statement of the petitioner--Impugned order passed by the Justice of Peace, was declared to be illegal and unlawful.

Rana Asif Saeed for Petitioner (with Petitioner in Person).

Javaid Ahmed Khan for Respondent No.3.

Zulfiqar Ali Sindhu, Additional Prosecutor-General for Respondents.

2010 Y L R 2096

[Lahore]

Before Kh. Imtiaz Ahmad, J

ABDUL SABOOR and 2 others---Petitioners

Versus

THE STATE and 2 others ---Respondents

Criminal Miscellaneous. No.19/ Q of 2009, decided on 23rd October, 2009.

Penal Code (XLV of 1860)---

----S. 365-B---Criminal Procedure Code (V of 1898), Ss.561-A & 265-K --Abduction---Petition for quashing of F.I.R. and proceedings---Contention of counsel for the petitioner was that he had contracted marriage with alleged abductee and that challan had been submitted in the competent court of law---Petitioners, in circumstances should have moved the Trial Court for their acquittal under S.265-K, Cr.P.C.---Trial Court was directed by High Court that if any petition in that respect was moved, same would be disposed of within specified period in accordance with law.

M. Tanveer Ch. for Petitioner.

Muhammad Feisel Rafique, A.A.-G.

YLR 2010 LAHORE HIGH COURT LAHORE 2097 #

2010 Y L R 2097

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD AKBAR and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1609, 1688 and Criminal Revision No. 929 of 2003, decided on 19th April, 2010.

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

----Ss.302/34 & 302(c)--- Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Presence of eye-witnesses at the scene of occurrence was established---F.I. R. had been promptly lodged with the details of the incident---Ocular testimony was consistent on all material particulars and inspired confidence--- Medical evidence and ocular account were not in conflict---Case was of free fight, as there was no premeditation or preplanning--Occurrence had taken place at the spur of the moment---Prosecution had suppressed the injuries received by two persons front the accused side---Trial Court had convicted the accused under S.302/34, P.P.C. without mentioning subsection (a), (b) or (c) of S.302, P.P. C.--Provisions of S.302(c), P.P.C. were attracted in the case---Conviction of accused under section 302/34, P.P.C. was consequently, converted into offence under S.302(c), P.P. C. and their sentence of imprisonment for life was reduced to ten years' R.I. each in circumstances.

Abdul Subhan v. Raheein Baldish and another PLD 1994 SC 178; Bashir Ahmad and another v. The State 1974 PCr.LJ 385; Muhammad Aslam Khan v. The State 1999 SCMR 172; Munawar Shah v. The State 1990 SCMR 1293; Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484; Syed Ali Beopari v. Nibaran Mollah and others PLD 1962 SC 502 and Abdul Karim v. The State 2007 SCMR 1375 ref.

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

----S.302(c)---Qatl-e-amd---Appreciation of evidence---Conflict in ocular and medical evidence---Such is not an inflexible rule that in all circumstances contradictions and discrepancies in ocular testimony and medical evidence must be treated to be injurious to the credibility of a witness and his evidence must be excluded from consideration or he must be held not a truthful witness, rather the ultimate test of veracity of a witness is the inherent merit of his own statement.

----S.417---Penal Code (XLV of 1860), S.302---Qatl-e-amd--- Appeal against acquittal---Trial Court had acquitted the accused on cogent reasons---Accused after their acquittal on regular trial had gained double presumption of innocence in their favour---Impugned judgment of acquittal was not arbitrary, capricious, fanciful or against the record to warrant interference by High Court---Appeal was dismissed accordingly.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Ghulam Sikandar and another v. Mamraiz Khan and others PLD 19851 SC 11 and Haji Paio Khan v. Slier Biaz and others 2009 SCMR 803 ref.

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

----S.417---Appeal against acquittal---Scope---Rule of caution---Accused after his acquittal of the charge enjoys double presumption of innocence in his favour---Courts dealing with acquittal appeal, therefore, are under obligation to be very careful in dislodging such presumption.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 ref.

Kh. Sultan Ahmad assisted by Sher Afghan Asadi for Appellants.

Malik Abdus Salam, Deputy Prosecutor-General, Punjab for the State.

Mrs. Khalida Perveen for the Complainant.

Date of hearing: 12th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2108 #

2010 Y L R 2108

[Lahore]

Before Sardar Tariq Masood, J

BHUTTA and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2869/B of 2009, decided on 30th September, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss.302/148/149----Qatl-e-amd---Bail, grant of---Rule of consistency---One fire shot each was attributed to both the accused hitting on the abdomen of the deceased---Co-accused who was also attributed a solitary fire shot on the abdomen of the deceased, had already been granted bail by High Court---Case of accused was not distinguishable from that of co-accused---Courts had always considered the rule of consistency in order to give equal treatment to the accused persons having one and the same role in the same case---Case of present accused was at par with that of the co-accused who had been allowed bail by High Court---Following the rule of consistency accused were also admitted to bail in circumstances.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Khadim Hussain v. The State 1983 SCMR 124; Manzoor Ahmad and others v. State PLJ 1999 Cr.C. Lah. 570 and Muhammad Daud and another v. The State and another 2008 SCMR 173 ref.

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

----S.497---Bail---Rule of consistency---Practice and procedure---Courts always consider the ground of rule of consistency, because an accused cannot be denied bail whose case is at par with that of co-accused, who had already been granted bail---Courts have to give equal treatment to the accused persons having one and the same role in the same case.

Muhammad Fazal alias Bodi v. State 1979 SCMR 9; Khadim Hussain v. State 1983 SCMR 124; Manzoor Ahmad and others v. State PLJ 1999 Cr.C. (Lah.) 570 and Muhammad Daud and another v. State and another 2008 SCMR 173 ref.

Mian Jehangir Kamran for the Petitioners.

Tanveer Haider Buzdar, ADPP along with Muhammad Aslam, S.-I. for the State.

Mian Arshad Ali for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2110 #

2010 Y L R 2110

[Lahore]

Before Muhammad Yawar Ali, J

TANVIR ELAHI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 5326-B of 2010, decided on 9th June, 2010.

Criminal Procedure Code (V of 1908)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail before arrest, grant of---Three cheques referred in the F.I.X. were issued on 4-11-2006, whereas the F.I.R. was lodged on 2-4-2010, after about 3-1/2 years---No plausible explanation was forthcoming for said inordinate delay---Record had revealed that cheques were dishonoured for the reason that rubber stamp of the company was not affixed and not for the reason of insufficient funds in the account of accused---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C. and it carried a maximum punishment of three years---Ad interim pre-arrest bail already granted to accused, stood confirmed, in circumstances.

Mazhar Iqbal v. State 2006 YLR 406; Ali Murtaza v. State 2005 PCr.LJ 1773; Major Anwar ul Haq v. The State PLD 2005 Lah. 607; Shameel Ahmed v. The State 2009 SCMR 174; Seema Fareed and others v. The State and another 2008 SCMR 839; Muhammad Nadeem v. The State 2006 YLR 2006 YLR 3043; Muhammad Bakhsh v. The State 2006 YLR 23 and Ibrahim Ghulam Mustafa v. State 2007 PCr.LJ 1748 ref.

Ch. Sarfraz Ali Diyal for Petitioner.

Aamir Asif Ranjha, Deputy Prosecutor General.

Asad Manzoor Butt for Respondent No.2.

Asghar, A.-S.I. in person.

YLR 2010 LAHORE HIGH COURT LAHORE 2112 #

2010 Y L R 2112

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD SAEED---Petitioner

Versus

DISTRICT JUDGE, VEHARI and 2 others---Respondents

Writ Petition No. 3308 of 2008, heard on 25th 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 recovery of dowry articles---Plaintiff filed suit for recovery of dowry articles valuing Rs.2,48,000, but Family Court decreed suit to the extent of Rs.1,00,000, however on filing appeal by the defendant/judgment-debtor against the judgment of the Family Court, Appellate Court reduced amount of dowry from Rs.1,00,000 to Rs.75,000---Family Court after evaluating the evidence led by the parties came to the conclusion that keeping in view the financial status of the parents of the plaintiff, she was entitled to get dowry articles of Rs.1,00,000, however, rest of the claim was declined---Appellate Court after reappraising the evidence available on the record proceeded to partly allow the appeal of the defendant and reduced the amount of dowry articles to Rs. 75,000 from Rs. 1,00,000---Conclusions arrived at by the Appellate Court were based on sound reasons---No illegality or infirmity or misreading of evidence had been pointed out by the defendant calling for interference by High Court in the impugned judgments and decrees---Constitutional petition was dismissed.

Rana A.D. Kamran for the Petitioner.

Rana Asif Saeed for Respondents Nos. 2 and 3.

Date of hearing: 25th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 2114 #

2010 Y L R 2114

[Lahore]

Before Asad Munir, J

SAMI SALEEM BHATTI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad

and others---Respondents

Writ Petition No. 787 of 2010, decided on 6th April, 2010.

Constitution of Pakistan (1973)---

----Arts.199 & 38--Constitutional petition--Gender Identity Disorder---Surgical treatment of---Permission---Grant of---Effect---Petitioner filed constitutional petition seeking permission to be granted for surgical treatment by means of a simple surgery called "Re-assignment Surgery" for Gender Identity Disorder---Petitioner asserted that the expertise for the said surgery was available but the doctors were reluctant to carry out the operation as they apprehended certain legal and social complications unless permission for the required medical treatment was allowed by High Court---Respondents asserted that they had no objection if the said surgery took place in accordance with law at the risk and cost of the petitioner---High Court disposed of constitutional petition with direction to respondents to allow the medical facilities prayed for by the petitioner.

Muhammad Nouman Shams Qazi for the Petitioner.

Babar Ali, Standing Counsel.

Shahid Mahmood Abbasi, A.A.-G.

YLR 2010 LAHORE HIGH COURT LAHORE 2115 #

2010 Y L R 2115

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD SALEEM---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 1336 of 2004 and Murder Reference No. 618 of 2004, heard on 5th May, 2010.

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

----S.302 (b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Story given in the F.I.R. was absolutely different from the one given in the private complaint--- Eye-witnesses had made dishonest improvements in their previous statements at the trial deliberately to improve the prosecution case and such type of evidence could not be relied upon--Five co-accused had been acquitted by Trial Court on the basis of same evidence, which was not corroborated by any independent evidence for maintaining conviction of accused---Medical evidence being only confirmatory in nature could not be used as a corroboratory piece of evidence---No recovery was effected from the accused---Motive for the occurrence was not proved---Benefit of every doubt had to be given to accused as a matter of right--- Accused was acquitted in circumstances.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Akhtar Ali and others v. The State 2008 SCMR 6; Jafar Ali v. The State 1998 SCMR 2669; Saeed Muhammad Shah v. State 1993 SCMR 550; Khalid Javed v. State 2003 SCMR 1419; Falak Sher v. State 1995 SCMR 1350; Khalid Javed v. State 2003 SCMR 1419; Iftikhar Hussain v. State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Noor Muhammad v. State and another 2010 SCMR 97; Muhammad Akram v. State 2009 SCMR 230 and Tariq Pervez v. State 1995 SCMR 1345 ref.

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

----S.302(b)--- Qatl-e-amd--- Appreciation of evidence---Statement improved by a witness at the trial---Effect---If a witness improves his statements on material aspects of the case in the court, then such improvement was not worthy of reliance and his evidence requires corroboration.

Muhammad Rafique and others v. The State and others 2010 SCMR 385; Seed Muhammad Shah v. State 1993 SCMR 550 and Khalid Javed v. State 2003 SCMR 1419 ref.

----S.302(b)---Criminal Procedure Code (V of 1898), S.161---Qatl-e-amd---Appreciation of evidence----Supplementary statement of complainant --- Nature and value--- Any statement or further statement of the first informant recorded during investigation by police would neither be equated with F.I.R. nor read as part of the same---Involvement of additional accused in such statement was fake improvement which made the basis for other eye-witnesses as well for false implication---Such witness would be unreliable.

Muhammad Rafique and others v. The State and others 2010 SCMR 385; Falak Sher v. State 1995 SCMR 1350 and Khalid Javed v. State 2003 SCMR 1419 ref.

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

----S.302(b)--- Qatl-e-amd--- Appreciation of evidence--- Corroboration--- Medical evidence cannot be used as a corroboratory piece of evidence as it is only confirmatory in nature.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Principles--- Maxim "falsus in uno falsus in omnibus"---Applicability---Courts for safe administrator of justice follow the, principle of sifting of grain out of chaff" i.e. if ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing the same trial, then the court must search for independent corroboration on material particulars.

Iftikhar Hussain v. The State 2004 SCMR 1185 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Principles---In case of doubt, the benefit thereof must accrue in favour of accused as matter of right and not of grace---Not many, but even a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, would make him entitled to its benefit.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Nazir Ahmad Ghani, assisted by Anas Bin Ghazi and Abdul Khaliq Safrani for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor General, Punjab for the State.

Arif Hussain Cheema for the Complainant.

Date of hearing: 5th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2127 #

2010 Y L R 2127

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD ISMAIL---Petitioner

Versus

THE STATE and 3 others--- Respondents

Criminal Miscellaneous No. 12389-BC of 2009, decided on 8th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Cancellation of bail, application for---Accused having been nominated on the basis of suspicion, false involvement of accused could not be ruled out---Challan had been submitted before the Trial Court, charge had been framed and trial was fixed for prosecution evidence---Any finding by High Court for or against impugned order was not advisable---Once bail was granted, it could only be cancelled or recalled on very strong and exceptional reasons i.e. misuse of concession of bail; bail order passed in violation of basic law; accused had repeated the offence; or there was evidence on record that accused had hampered the progress of the trial---None of said reasons were found on record in that case---No allegation was on record against accused that they misused the concession of bail or hurled any threat on the complainant--Cancellation of bail was declined by High Court.

Muhammad Iqbal and another v. Abdul Qahar and another 2003 MLD 87; Munir Ahmed Saifi v. Muhammad Javaid and 6 others 2007 PCr.LJ 108 and Aurangzeb v. Shakeel Ahmad and another 2008 PCr.LJ 1565 ref.

Abdul Latif Hanjra for the Petitioner.

Zaheer-ul-Hassan Zahoor for Respondent No.2.

Mazhar Sher Awan, Addl. Prosecutor General for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 2132 #

2010 Y L R 2132

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD ASHIQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 319(BWP) and Murder Reference No. 60 of 2006, heard on 20th April, 2010.

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

---Ss.302 (b)/34, 460 & 109---Qatl-e-amd, lurking house trespass by night and abetment---Appreciation of evidence---Benefit of doubt--- Complainant had initially nominated three persons in the F.I.R. on suspicion as murder of the deceased and involved the present accused as actual culprits subsequently in his supplementary statement---Complainant had admittedly not identified the accused at the spot and he had relied on the statement of his real brother, other eye-witness, who could not be relied upon being inimical towards the accused---Medical evidence having belied the ocular testimony had ruled out the possibility of the eye-witnesses of having seen the occurrence and being present at the spot---Witnesses of abetment or conspiracy were chance witnesses and eavesdroppers, who had not disclosed about it to the deceased or to any public authority and their testimony was not reliable---Evidence of wajtakkar was highly improbable and having come through inimical witnesses was of no avail to prosecution---Witnesses of extra judicial confession had been given up by the prosecution after their examination-in-chief had been recorded without giving any chance to the accused to cross-examine them and reliance of Trial Court on their testimony was not legal---Benefit of every doubt in the prosecution story was to go to the accused not as a matter of grace but as a matter of right---Accused were acquitted on benefit of doubt in circumstances.

Fakku Mia alias Motahar v. State 1969 SCMR 620 and Muhammad Akram v. State 2009 SCMR 230 rel.

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

----Ss.302(b)/34,460 & 109---Qatl-e-amd, lurking house trespass by night and abetment---Appreciation of evidence---Benefit of doubt, extension of ---Principle---Benefit of doubt appearing in the prosecution story shall go to the accused not as a matter of grace, but as a matter of right.

Muhammad Akram v. State 2009 SCMR 230 ref.

Sardar Ahmad Khan assisted by Asad Ali Bajwa for Appellants.

Malik Abdul Salam, D.P.G., Punjab for the State.

Date of hearing: 20th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2145 #

2010 Y L R 2145

[Lahore]

Before Mansoor Akbar Kokab, J

RASHED ALI---Petitioner

Versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 2 others---Respondents

Writ Petition No. 3628 of 2009, decided on 19th April, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Examination---Petitioner/candidate had contended that because of hostility and grudge of two Professors against him he was failed in one subject---One of said two Professors had stated on oath that though he was Internal Examiner, but paper in question was checked by External Examiner who evaluated the marks of paper in question---Said Professor had further stated that he being the Internal Examiner was competent to review the same marking having the powers of only plus and minus 5 marks, which he even did not do as he was satisfied with the marking made by the External Examiner--- Counsel for University authorities referring the comments submitted by the university, had made it clear that applications made by the petitioner to the university in that regard were thoroughly examined and the competent Authorities being satisfied with the correct marking as per rules, rejected the application on three occasions---Present petition, in circumstances, was found mere on misapprehension, especially in the wake of statement made by Internal Examiner who was specifically made a party by the petitioner---Constitutional petition was dismissed.

Muhammad Amin Bhatti for the Petitioner.

Muhammad Tariq Rajwan for University.

Sohail Iqbal Bhatti for Respondent No.3.

Professor Kamran Sibtain for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 2149 #

2010 Y L R 2149

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD ARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 346/J of 2004 and

Murder Reference No. 902 of 2004, heard on 29th April, 2010.

Penal Code (XLV of 1860)---

----Ss.302 (b) & 324--- Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Accused had caused two fire-arm injuries to the deceased, one on the abdomen which proved to be fatal---Accused had also caused a fire arm injury on the left thigh of the injured witness---Ocular account qua the said injuries furnished by the eye-witnesses was duly corroborated by medical evidence---Accused had admitted the occurrence but in a different manner taking the plea that during a scuffle the pistol possessed by the deceased went off hitting the deceased at his abdomen and the other fire after passing through the deceased hit the injured witness---Said plea was neither convincing nor probable---Accused had been arrested immediately after the occurrence---Convictions of accused on both the charges and his sentence under S.324 P.P.C. were consequently maintained---No enmity existed between the parties, incident had started suddenly over the charges of a telephone call made by accused from the PCO of complainant, prosecution had divided one incident into two incidents and the accused was provided a counsel at State expense in the Trial Court as well as in High Court---Sentence of death awarded to accused under S.302 (b) P.P.C. was altered to imprisonment for life in circumstances, both sentences were made to run concurrently.

Ijaz Ahmad Bajwa, Defence Counsel at State expense assisted by Mazhar Ali Ghallu for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor General Punjab for the State.

Ch. Ghulam Sarwar Nihang for the Complainant.

Date of hearing: 29th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2157 #

2010 Y L R 2157(1)

[Lahore]

Before Khawaja Muhammad Sharif, C.J.

MEHWISH ASLAM and others---Applicant

Versus

S.H.O. and others---Respondents

Criminal Miscellaneous Application No.2748 of 2009, decided on 23rd June, 2009.

High Court (Establishment of Benches) Rules, 1981---

----Rr.3 & 5---Application for entertaining the main writ petition at principal seat of High Court---Both the applicants were residents of a place falling under the jurisdiction of Bench of High Court and respondents were also working within jurisdiction of said Bench of High Court--No case for entertaining the writ petition at the principal seat of High Court having been made out, application was dismissed.

Muhammad Tanvir Chaudhry for Applicant.

YLR 2010 LAHORE HIGH COURT LAHORE 2159 #

2010 Y L R 2159

[Lahore]

Before Ch. Muhammad Tariq, J

Mst. AZRA BIBI---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE and 7 others---Respondents

Writ Petitions Nos. 33/R, 35/R and 93/R of 2009, decided on 28th April., 2010.

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

----Art. 199---Constitutional jurisdiction---Scope---Settlement Authorities---Allotment by---Fraud and forgery---Commission of--Cancellation of allotment by Board of Revenue---Effect---Where the allotments relied upon were made by the Settlement Authorities were illegal and without jurisdiction and were based on fraud and forgery, in that eventuality, even if, Board of Revenue which had exposed the fraud and forgery and set aside illegal transfer of properties by its own orders, High Court, would not, in exercise of its discretionary jurisdiction annul the order of Board of Revenue even though it was clearly without jurisdiction.

PLD 1991 SC 84; PLD 1993 SC 1047; 2009 YLR 1255 and PLD 2009 Lah. 78 ref.

Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 rel.

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

----Art. 199---Constitutional jurisdiction---Scope---Title, possession and allotment of land---Civil litigation between rival claimants and complicated question of title, possession and allotment of land were involved---Such question could not be looked into in the constitutional jurisdiction by High Court.

---Art. 199---Constitutional jurisdiction---Scope---Civil litigation was already pending between the parties---Civil court had jurisdiction to entertain the matter--Jurisdiction of civil court could not be ousted---Constitutional petition was not maintainable.

2009 SCMR 1233 rel.

Ch. Muhammad Jahangir Wahla, Ch. Muhammad Latif Khan Sara and Shahzad Mahmood Butt for the Petitioner.

Rana Shamshad Khan, A.A.-G. for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2168 #

2010 Y L R 2168

[Lahore]

Before Hassan Raza Pasha, J

CHAMAN DIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6/Q of 2010, heard on 7th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.452 & 506---House-trespass after preparation for hurt, assault or wrongful restraint and criminal intimidation---Quashment of proceedings---Jurisdiction of S. 561-A, Cr.P.C.---Scope---Magistrate 1st Class had summoned the accused to face trial after recording preliminary statements of the complainant and prosecution witness during pendency of private complaint---Petitioner/accused contended that order of Magistrate was against law, therefore, proceedings were liable to be quashed---Validity---Magistrate 1st Class had applied his independent judicial mind after going through the statements of the complainant and his witness---When the court was satisfied that prima facie case . had been made out against accused persons, there was no bar on summoning such accused persons' to face trial---Inherent jurisdiction under S.561-A, Cr.P.C. was not an alternative or additional jurisdiction but a jurisdiction preserved in the interest of justice to seek redress of grievances for which no other procedure was available---Powers under S.561-A, Cr.P.C. could not be used to interrupt or divert the ordinary course of criminal procedure---High Court would be reluctant to interfere in a case where a court of competent jurisdiction had come to the conclusion that a prima facie case was made out after examining the evidence adduced before it---Petitioner, if so advised, could make an application under S. 249-A, Cr.P.C.-Petition under S.561-A, Cr.P.C. was dismissed in circumstances.

Qadar Dad v. Sher Muhammad and another 1980 SCMR 843 rel.

Raja Muhammad Afsar Asad Ullah Khan for Petitioner.

Malik Ghulam Mustafa Kandwal for the Respondent.

Date of hearing: 7th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2184 #

2010 Y L R 2184

[Lahore]

Before S. Ali Hassan Rizvi, J

SAFDAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 342-J of 2005, heard on 22nd July, 2009.

Penal Code (XLV of 1860)---

----Ss.302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence--- Sentence, reduction in---Prosecution had suppressed the mode of occurrence and the injury on the body of the uncle of the accused---Defence plea was supported to the extent of being reasonably possible by prosecution evidence --- No previous enmity existed to show intention of murder---Accused had confessed to have caused a dagger blow to the deceased in exercise of his right of private defence to save himself and his family members, when the complainant party had criminally trespassed into his house by scaling over the wall---Culpable homicide would not amount to Qatl-e-amd, if the injury caused to deceased resulted into his death in exercise of his lawful right of private defence by the accused, where a clash between two rival parties had taken place at the spur of the moment, which was initiated by the aggressing complainant party---Accused, however, had exceeded his said right by causing more harm than was necessary and he was guilty of culpable homicide---Conviction of accused under section 302(b) P.P.C. was consequently converted into S.302(c), P.P.C. and his sentence of life imprisonment was reduced to ten years' R.I. in circumstances.

Shahid Azeem, Defence Counsel for Appellant.

Azra Israr, D.P.G. for the State.

Date of hearing: 22nd July, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 2198 #

2010 Y L R 2198

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD NAWAZ alias MAAJI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1869 of 2004 and Murder Reference No.477 of 2005, heard on 3rd May, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence--- Sentence, reduction in---Lodging of F.I.R. was not delayed---Accused in the F.I.R. was specifically alleged to have fired at the deceased hitting on the left side of his chest, which had been confirmed by both the eye-witnesses at the trial including the complainant---Ocular testimony was supported by medical evidence and inspired confidence---Contradiction in ocular account and medical evidence being technical in nature, could not shatter the testimony of the natural witnesses of the occurrence---Conviction of accused was maintained in circumstances--- Eye-witnesses while making improvement in their statements at the trial had attributed another specific shot to the accused on the right side of the chest of the deceased and also attributed specific fire-arm injuries to the acquitted co-accused---Motive alleged by prosecution had also not been proved---Sentence of death of accused was converted into imprisonment for life in circumstances.

Muhammad Safdar v. The State 2006 YLR 124; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Muhammad Ashfaq v. The State 1995 SCMR 1321; Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Muretaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 ref.

Iftikhar Ahmad Kisana for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor General, Punjab for the State.

Dates of hearing: 29th April and 3rd May, 2010.

Bakhtiar Ali Sial for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2207 #

2010 Y L R 2207

[Lahore]

Before Mian Shahid Iqbal and Nasir Saeed Sheikh, JJ

MUHAMMAD YASIN and 3 others---Appellants

Versus

GOVERNMENT OF THE PUNJAB through Secretary Housing and Physical Planning Department and 8 others--- Respondents

I.C.As. Nos. 276 and 281 of 2004 in Writ Petition No.13400 of 2003, heard on 14th April, 2010.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-court appeal---Scope---Appellants challenged the order passed by Single Judge of High Court on the ground that the Single Judge granted relief to five writ petitioners but refused to five relief to the appellants in the same case, as case of the appellants stood on equal footings with those of five petitioners--- Appellants further contended that their possession over the disputed plots was not specifically denied while their construction was admitted by the authorities and they were entitled for the allotments---Appellants were denied relief by Single Judge through a short sentence that they were unable to establish their claim---Observation by Single Judge was vague and was not based upon any legally sound reasons and was the result of overlooking the admission made by the authorities wherein not only possession of the appellants was admitted but even the construction raised by them was specifically described---Relief granted to five petitioners had been illegally denied to the appellants---Intra-court appeal was allowed.

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

----Art. 199--- Constitutional petition---Maintainability---Show-cause notice---Where show-cause notices issued were challenged through constitutional petitions on the plea of being illegal, without lawful authority and biased ones, the constitutional petitions were entertained and were accepted.

Seven-Up Company v. Kohinoor Thread Ball Factory and 3 others PLD 1990 SC 399 (b); Adamjee Insurance Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798 (a); Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Haider Ali Muljee v. Secretary, Government of Sindh 1986 CLC 1136; Pakistan Metal Industries v. Assistant Collector, Central Excise and Land Customs and another 1990 CLC 1022; Maple Leaf Cement Factory Limited v. Collector of Customs; Customs House, Faisalabad 2000 MLD 1989; Haji Noor-ul-Haq v. Collector of Customs and others 1998 MLD 650; Attock Cement Pakistan Ltd. v. Collector of Customs, Collectorate of Customs and Central Excise, Quetta and 4 others 1999 PTD 1892 and Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 PTD 1392 rel.

Uzair Karamat Bhandari for the Appellants (in I.C.A. 276 of 2004).

Ch. Muhammad Yasin for Appellants (in I.C.A. No. 281 of 2004).

Date of hearing: 14th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2216 #

2010 Y L R 2216

[Lahore]

Before Sardar Tariq Masood, J

Mst. SHAMIM GHAFFAR---Petitioner

Versus

GHULAM SHABBIR and 2 others---Respondents

Criminal P.S.L.A. No. 17 of 2007, decided on 29th September, 2009.

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

---S.302/34---Criminal Procedure Code (V of 1898), S.417(2)---Special leave to appeal, refusal of---Despite the deceased having disclosed the names of the accused person who had fired upon him, their names were not mentioned either in the F.I.R. or in the statement under S.161, Cr.P.C. recorded subsequently---Accused were declared innocent during investigation and nothing was recovered from them---No doubt, police opinion was not binding on the court, but the same would have weight, especially where names of accused were not given in the F.I.R.---Medical evidence had fully contradicted the story put forward in the F.I.R. and even the story put forward after 2 1/2 years in the private complaint---Delay in filing the complaint admittedly was not explained---Double presumption of innocence had attached to accused after their acquitted by a competent Court and superior Courts would not interfere unless the order of acquittal was arbitrary, capricious, fanciful and against the record---Even a different view emerging on reappraisal of evidence would not be sufficient to justify any interference with the acquittal judgment---Acquittal of accused by Sessions Court was not based on perverse or whimsical reasons---Special leave to appeal was declined to complainant accordingly.

State through Advocate General Sindh v. Bashir and others PLD 1997 SC 408; 1995 SCMR 535; 1991 SCMR 2220; Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 and Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 ref.

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

----S.417---Appeal against acquitted---Scope and extent---Law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law---Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non-reading of evidence---Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 ref.

Malik M. Qasim Awan for the Petitioner.

Tanveer Haider Buzdar, A.D.P.P. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 2225 #

2010 Y L R 2225

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

GHULAM SARWAR---Petitioner

Versus

PROVINCE OF PUNJAB--- Respondent

Writ Petition No. 260 of 2010, decided on 5th March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and application for permanent injunction against sanction of additional nakka to defendant by Canal authorities---Trial Court dismissed the suit and appeal also failed---Validity---Sanction of nakka, being technical in nature, opinion of the Canal authorities had to be given weight---Concurrent finding could not be dismissed unless there was some jurisdictional error or defect--Revision was dismissed in limine.

Tahir Mehmood for the Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2228 #

2010 Y L R 2228

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Kh. Imtiaz Ahmed, J

ABDUL GHAFFAR alias BILLA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 58 of 2006 and Murder Reference No. 87 of 2006, heard on 8th April, 2010.

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

----Ss.302(b)/34, 302(c), 324/34, 337-F(ii)/34 & 337-L(ii)/34---Qatl-e-amd, attempt to commit qatl-i-amd and causing of hurt---Appreciation of evidence---First version taken by female accused before police on the day of occurrence that she had fired pistol shots on the deceased and three prosecution witnesses in exercise of right of self defence of her person and property, was more plausible---Occurrence had taken place in the street where the accused used to reside---Two crime empties collected from the spot had matched with the pistol recovered at the instance of female accused---Injury sustained by female accused during the occurrence stood proved---Conviction of female accused under S.302(b), P.P.C. was converted into S.302(c), P.P.C. and she was sentenced thereunder to undergo ten years' R.I. in circumstances---Other convictions and sentences of female accused were maintained directly all the sentences to run concurrently---Sentence to pay compensation was set aside as complainant party was itself responsible for the incident.

Muhammad Yaqub v. The State PLD 1969 Lah.548; Syed Ali Bepari v. Nabaran Mollah and others PLD 1962 Lah.502 and Mairaj Begum v. Ejaz Anwer etc. PLD 1982. SC 294 ref.

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

---Ss. 302(6)/34, 324/34, 337-F (ii)/34 & 337-L(ii)/34---Qatl-e-amd, attempt to commit qatl-e-amd and causing hurts---Appreciation of evidence--- Wife of accused, co-accused in the case, had admitted the occurrence stating to have acted in self defence of her person and property, for which she had been convicted and sentenced accordingly by High Court---Crime empties secured from the place of occurrence had not matched with the pistol recovered from the accused---Accused though was present at the spot, yet he had neither fired at the deceased nor at any injured witness---Accused was acquitted in circumstances.

Syeda B. H. Shah for the Appellants.

Sh. Munir Ahmad, D.P.G. for the State.

Date of hearing: 8th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2236 #

2010 Y L R 2236

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD RAMZAN and another---Petitioners

Versus

GHULAM SHAFIA and others---Respondents

R.S.A. No. 117 of 2004, decided on 8th April, 2010.

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

----S. 5, Arts.168 & 181---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for re-admission of appeal dismissed in default---Petitioners' appeal was transferred from High Court Circuit Bench to the principal seat; transfer of appeal was communicated to the petitioners but they waited for notice of fixation which they did not receive; on 5-9-2009 petitioners came to know that their appeal had been dismissed on 1-2-2006---Petitioners contended that they did not file application under S.5 of Limitation Act, 1908 for condonation of delay as the period for restoration under Art.181, Limitation Act, 1908 was three years--- Validity--- Held, petitioners, admittedly were informed of the transfer of their case but they remained indolent whereas they should have been vigilant---Constitutional petition was dismissed, in circumstances.

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

----Arts. 168 & 181---Applicability of Arts.168 & 181, Limitation Act, 1908---Scope---Restoration of appeal was not governed by Art.181 of Limitation Act, 1908 which provided for three years limitation period but by Art.168 of the Act which provided for readmission of appeal dismissed for want of prosecution.

----Art.168---Limitation, computation of---Time for readmission of appeal dismissed for want of prosecution--- Period of limitation ran from the date of dismissal of appeal for non prosecution and not from gaining knowledge of its dismissal.

1992 SCMR 1895 ref.

Haji Ghulam Sarwar v. Daya Ram 1975 SCMR 179 rel.

Ch. M. Jahanzeb Wahla for the Petitioners.

Rana M. Arif Vice Counsel for Respondent No.4.

YLR 2010 LAHORE HIGH COURT LAHORE 2243 #

2010 Y L R 2243

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD TUFAIL---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, MANDI BAHUDDIN and another---Respondents

Writ Petition No.2835 of 2008, decided on 6th April, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plaintiff filed suit for recovery of dowry articles in the Trial Court---Suit was contested by defendant on the ground that marriage between the parties was solemnized on Watta Satta and sister of the defendant was married with the brother of the plaintiff and further that the dowry articles were not given to the plaintiff at the time of her marriage---Trial Court dismissed suit of the plaintiff---Appellate Court, on appeal, allowed the same and decreed suit of the plaintiff---Validity---Defendant while appearing as witness in his cross-examination admitted that the plaintiff was the only daughter of her parents and parents of the plaintiff had prepared dowry articles for her---Dowry articles mentioned in the list were of daily use---Such like dowry articles were given to the bride by parents at the time of marriage irrespective of their financial status---Settlement between the parties that sister of the defendant would be married with the brother of the plaintiff, could not be finalized due to some unknown reasons---Marriage between the parties could not be said to have been solemnized as Watta Satta---Constitutional petition was dismissed by High Court.

A.G. Mian for Petitioner.

Mian Abdul Ghafoor for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 2248 #

2010 Y L R 2248

[Lahore]

Before Mian Muhammad Najam uz Zaman and Kazim Ali Malik, JJ

Mst. SHAMIM AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4370-B of 2008, decided on 17th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of Narcotic---Bail, grant of---Narcotic was recovered from the house of accused by raiding party when accused was not present in the house nor the raiding party had obtained permission from the Magistrate---Report submitted by the Trial Court had revealed that the case would be completed within three months, but needful had not been done---Accused who was a woman, was behind the bars for the last more than three years---Accused was admitted to bail, in circumstances.

Hammad Akbar Wallana for Petitioner.

Rana Sohail Iqbal for ANF.

YLR 2010 LAHORE HIGH COURT LAHORE 2253 #

2010 Y L R 2253

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD IQBAL---Petitioner

Versus

Mst. AZIZ FATIMA through Legal Heirs---Respondents

Writ Petition No.6133 of 2004, heard on 30th March, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plaintiff filed suit for recovery of dowry articles---Plaintiff died during pendency of the suit---Parents of the plaintiff were transposed as plaintiffs---Trial Court decreed suit in favour of the plaintiffs to the sum of Rs.52,400---Appellate Court on appeal, allowed the same and directed the defendant to pay an amount of Rs, 30,000 as the remaining amount---Contention of the defendant was that the decretal amount might be modified from Rs.30,000 to Rs.15,000 on account of his share as legal heir of the plaintiff and the same amount had been paid in compliance with the earlier order of the High Court---Validity---Plaintiff being wife of the defendant had died during pendency of her suit for recovery of dowry articles---Defendant being husband of the deceased was entitled to a share, out of estate of her deceased wife---Parents of deceased wife were also entitled to a share out of her estate---High Court modified the judgment and decree of both courts below to the extent that parents of the deceased wife were entitled to recover an amount of Rs.15,000 as price of dowry articles as her legal heirs and the said amount had already been paid during pendency of the constitutional petition---Constitutional petition was disposed of accordingly.

Malik Munsif Awan for Petitioner.

Malik Matiullah for Respondents.

Date of hearing: 30th March, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2258 #

2010 Y L R 2258

[Lahore]

Present Saif-ur-Rehman and Kazim Ali Malik, JJ

SAFDAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6468-B of 2009, decided on 18th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---Possession of narcotics---Bail, grant of---Further inquiry---Charas was not recovered from the direct custody of accused---As to whether accused had knowledge of presence of narcotic in the car in question or he shared knowledge with his co-accused that they were carrying narcotic with them, was a question which would be determined after recording of evidence---Except presence of accused in the car in question, no other circumstance had come on the record indicating his connection with the offence or even the car---All those facts had made the case as one of further inquiry---Accused was admitted to bail, in circumstances.

Hammad Akbar Wallana for the Petitioner.

Rana Sohail Iqbal, SSP, ANF.

YLR 2010 LAHORE HIGH COURT LAHORE 2260 #

2010 Y L R 2260

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. WAZIRAN MAI---Petitioner

Versus

HAQ NAWAZ and 3 others---Respondents

Writ Petition No.365 of 2010, decided on 12th April, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 76---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for specific performance of agreement to sell---Trial Court dismissed plaintiff's application for exhibition of photostat copy of the agreement to sell as secondary evidence---Plaintiff's appeal was accepted by Appellate Court---Petitioner/defendant contended that appeal allowed by Additional District Judge was not maintainable as order of Trial Court was not appealable and the respondent/plaintiff should have filed revision instead of appeal---Defendant contended that the Additional District Judge's order was void ab initio, therefore, constitutional petition would not be hit by limitation or laches as void order could be assailed any time---Validity---Additional District Judge correctly allowed the exhibition of the agreement to sell as secondary evidence---When the original document had been lost or destroyed, secondary evidence could be produced under Art.76 of the Qanun-e-Shahadat, 1984---Defendant had explained that reason for seeking permission to produce secondary evidence was that the original document was stolen---Plaintiff/respondent was right in filing appeal before Additional District Judge as the Trial Court had disposed of three applications by one single order which was assailed in toto by the plaintiff in appeal---Petitioner/defendant could not point out any material illegality in impugned order--Delay of two years in filing constitutional petition showed that the petitioner was indolent; law helped the vigilant, and not indolent---Any objection as to exhibition of the agreement to sell as secondary evidence could be raised at the time of final arguments in the civil suit which- was still pending---Constitutional petition was dismissed, in circumstances.

Land Acquisition Collector, Nowshera and others v. Sarfaraz Khan and others PLD 2001 SC 514 and Member (S&G)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 distinguished.

Muhammad Yafis Naveed Hashmi for Petitioner.

Sagheer Ahmad Bhatti for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 2267 #

2010 Y L R 2267

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD RIAZ---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others---Respondents

Writ Petition No.1163 of 2010, decided on 30th April, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dowry articles or Rs.250,000 in the alternative---Trial Court decreed the suit to Rs.75,000 while Appellate Court also dismissed the appeal of defendant/petitioner---Validity---Plaintiff/respondent had proved her claim by producing receipts--- Concurrent findings of both the courts below needed no interference by High Court in constitutional jurisdiction---Constitutional petition was dismissed accordingly.

Khan Muhammad Shafi Shakir for Petitioner.

Humayoun Syed Rasool for Respondent No.3.

YLR 2010 LAHORE HIGH COURT LAHORE 2272 #

2010 Y L R 2272

[Lahore]

Before Muhammad Yawar Ali, J

DEPUTY INSPECTOR GENERAL OF POLICE and 2 others---Petitioners

Versus

MUHAMMAD JAMSHAID---Respondent

Civil Revision No 928 of 2009, decided on 19th April, 2010.

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

----S. 8---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13--Ejectment of tenant---Disputed property was beyond the limits of Municipal Corporation--- Jurisdiction---Plaintiff filed suit for ejectment of tenant of disputed property on the ground of personal use and default in payment of rent---Trial Court passed an ejectment order---Appellate Court on appeal, remanded the case to Trial Court with observation that the disputed property was beyond limits of Municipal Corporation and Trial Court should decide the case as civil court and not as a Rent Controller---Trial Court again decreed the suit without awarding the arrears of rent to the plaintiff---Appeal filed by defendants was dismissed by Appellate Court---Contention of the defendants was that the disputed property was beyond the limits of Municipal Corporation, Rent Controller could not have jurisdiction in the matter---Validity---Record revealed that the Trial Court clearly stated that it was bound to try the suit as civil suit and not as a rent petition--Decree sheet had been drawn which had supported the contention that the Trial Court had decided the case as civil court and not as a Rent Controller---Defendants had failed to rebut the plaintiff's claim of ownership of disputed property acquired through sale-deed--Plaintiff stepped into the shoes of seller---Defendants had failed to point out any illegality, misreading or non-reading of evidence---Revision petition was dismissed by High Court.

Mubarik Ali and others v. Syed Ishaq Hussain Rizvi and others 1989 MLD 497; Syed Kamal Shah v. Inayat Muhammad and others 2002 CLC 1704; Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50; Muhammad Bakhsh v. Ellahi Bukhsh and others 2003 SCMR 286 and Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others 2007 SCMR 870 ref.

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

----O. XX, R.5---Judgment---Issues linked with each other---Effect---Judgment which deals with all points raised, fulfils the requirements of law even though it may not have discussed each issue separately---Where certain issues were inextricably linked with each other and those were considered together, such consideration would not be violative of the mandate of law.

Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647 and Muhammad Amir through L. Rs. v. Muhammad Sher and others 2006 SCMR 185 rel.

Syed Nayyar Abbas Rizvi, A.A.-G. for Petitioners.

Nazim Ali Awan for Respondents.

Date of hearing: 14th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2279 #

2010 Y L R 2279

[Lahore]

Before Hassan Raza Pasha, J

Dr. MUHAMMAD AMJAD---Petitioner

Versus

S.H.O. POLICE STATION SECRETARIAT, ISLAMABAD and others---Respondents

Writ Petition No.1542 of 2010, decided on 6th May, 2008.

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

----S.489-F---Constitution of Pakistan (1973), Art. 199--- Dishonestly issuing a Cheque--- Constitutional petition---Quashing of F.I.R.---Complainant had transferred his title in the property in favour of accused through registered sale-deeds, which had been duly incorporated in the Revenue Record and at the same time the accused had got possession of the land---When complainant had fulfilled his obligation then it was the duty of the accused to fulfil his obligation as well---Accused had issued a cheque amounting to Rs.130,000,000 in favour of the complainant, but he had dishonestly made a request to the Bank Authorities through a letter to stop the payment of the said cheque---Circumstances, thus, had spelt out commission of a cognizable offence by the accused---Since the investigation in the case had not yet completed High Court could not control or interfere in the investigation, which was the sole prerogative of the Investigating Agency---Prima facie, the facts of the case did not disclose that the allegations made by the complainant in the F.I.R. were baseless or motivated out of malice---Controversy between the parties being factual, F.I.R. could not be quashed at the preliminary stage of investigation, as the same would amount to short-circuiting the normal procedure of law as provided under the Code of Criminal Procedure, 1898---Even otherwise, accused had more than one alternate remedies under the law, which he could avail at appropriate stage---Constitutional petition was dismissed in circumstances.

Sheikh Mureed Hussain v. S.H.O. Police Station Kohsar, Islamabad and 2 others 2005 PCr.LJ 144; 2005 SCMR 306; Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957; Muhammad Younas and others v. Mst. Perveen alias Mano and others 2007 SCMR 393 and Seema Fareed and others v. The State and another 2008 SCMR 839 ref.

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

----Art.199---Constitutional jurisdiction---Scope---Quashing of F.I.R.---Interference in the process of investigation in the exercise of constitutional jurisdiction under Article 199 of the Constitution was deprecated.

Muhammad Latif Khawaja for Petitioner.

Azmat Ali Bokhari, Standing Counsel.

Syed Nayab Hussain Gardezi for the Complainant Shahid Mehmood S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 2287 #

2010 Y L R 2287

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD YAR alias MUHAMMAD ALI---Petitioner

Versus

MEMBER JUDICIAL-III, BOARD OF REVENUE, PUNJAB and another---Respondents

Writ Petition No.4141 of 2003, heard on 1st June, 2010.

West Pakistan Land Revenue Rules, 1968---

----R. 19(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of lumberdar---Rule of primogeniture-Applicability-Petitioner applied for appointment as lumberdar after death of his father who was a permanent lumberdar but District Collector appointed the respondent---Petitioner challenged the order of District Collector before Divisional Commissioner who appointed the petitioner as lumberdar under rule of primogeniture---Member, Board of Revenue restored the order of District Collector and appointed respondent as lumberdar---Petitioner contended that his father, the late Lumberdar, died on 9-9-1996 while the Supreme Court of Pakistan declared the rule of primogeniture as `unislamic' in the year 1999 so the petitioner's appointment as lumberdar had become due under R.19(2) of the West Pakistan Land Revenue Rules, 1968, which were prevalent at that time---Validity---In the present case appointment of petitioner under the rule of primogeniture had become due, before the Supreme Court of Pakistan declared the said rule against the Injunctions of Islam, so the appointment should have been made according to the provisions of the law in force at the relevant time---Record showed that the petitioner had been performing the duties of a substitute lumberdar (Sarbarah lumberdar)---Member, Board of Revenue erred in holding that the rule of primogeniture was not attracted in petitioner's case---If law was altered during pendency of an action, dispute would be settled according to law as it existed when the action was initiated and not in the light of law that existed at the time of final adjudication of the dispute---Petition was allowed and order of the Member, Board of Revenue was set aside. ?

PLD 1999 SC 484 ref.

Noor Muhammad Lumberdar v. Member, Board of Revenue Punjab Lahore 2003 SCMR 708 fol.

Mian Muhammad Siddique Kamyana for Petitioner.

Ch. Muhammad Naeem for Respondent.

Rana Shamshad Khan, A.A.-G. for State.

YLR 2010 LAHORE HIGH COURT LAHORE 2294 #

2010 Y L R 2294

[Lahore]

Before Tariq Javaid, J

AYESHA AROOJ---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY and another---Respondents

Writ Petition No.1767 of 2010, decided on 24th March, 2010.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Educational institution---Low result--Mala fide---Answer sheets---Re-evaluation of---Prayer for---No specific allegation of mala fide had been alleged in the constitutional petition---Answer books had been seen, none of the questions was left unchecked and it could not be said that there was an error or omission while granting marks to the petitioner---Question of re-evaluation could not be gone into in constitutional jurisdiction---Sharp decline in marks awarded to the petitioner was visible as in the first attempt she secured 45 marks, in second attempt she obtained 27 marks and in third attempt she secured 7 marks out of each 200 marks which meant that the petitioner had not been taking interest in the subject---Petitioner had not made out a case for re-evaluation of answer books, constitutional petition was dismissed.

Farmanullah Khan v. Controller of Examination, Karachi University 2010 MLD 85; Ms. Shakeela v. University of Peshawar PLD 2003 Pesh. 69; Abdul Hakeem Hashmi v. Federal Public Service Commission PLD 2002 SC 404; Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 and Murred Hussain v. Bahauddin Zakariya University, Multan through Vice Chancellor and 2 others 2005 YLR 1556 ref.

Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 and Murred Hussain v. Bahauddin Zakariya University, Multan through Vice Chancellor and 2 others 2005 YLR 1556 rel.

Tariq Muhammad Iqbal Ch. for the Petitioner.

Malik Muhammad Tariq Rajwana for Respondent-University.

YLR 2010 LAHORE HIGH COURT LAHORE 2301 #

2010 Y L R 2301

[Lahore]

Before Ch. Iftikhar Hussain, J

IRFAN AHMED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4185/B of 2010, decided on 7th June, 2010.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/148/149--- Qatl-e-amd and having fire-arms in prosecution of common object of unlawful assembly--- Bail, grant of---Accused along with his co-accused was alleged to have fired on the complainant, which did not hit anyone---Fatal fire on the deceased was attributed to principal co-accused and the question of vicarious liability of the accused for the same was to be determined at the trial---Finding of acquittal of co-accused of the accused with similar allegation as against him and maintenance of their acquittal by High Court had created doubt qua his involvement or participation in the matter--Case of accused, thus, needed further inquiry within the meaning of S. 497(2) Cr.P.C.---Alleged abscondence of accused in such circumstances could not come in his way to grant of bail---Accused was admitted to bail accordingly.

Mumtaz Ali v. The State PLD 2007 Kar. 127 rel.

Khial Gul and another v. The State and another 2002 PCr.LJ Pesh. 1054; Mehtar v. The State and another 2000 PCr.LJ 60 and Karim Bus v. The State 2000 SCMR 1405 ref.

(b) Administration of criminal justice---

----Precedents---Applicability---Principle---Each case is to be adjudged in the background of its own facts and circumstances---Facts of two criminal cases seldom coincide--Precedent will be applicable on a given case, when it will be on fours to the same.

Aftab Ahmad Bajwa for Petitioner.

Ch. Abdul Razzaq, D.P.G. for Respondent No.1.

Sultan Ahmad, S.-I. with record.

Malik Qamar Masood Khokhar for Respondent No.2/Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2313 #

2010 Y L R 2313

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. BALQEES BIBI---Petitioner

Versus

MUMTAZ ALI and 2 others---Respondents

Writ Petition No. 16419 of 2003, decided on 17th May, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction--- Scope--- Suit for dissolution of marriage, maintenance allowance and dowry articles--- Finding of facts---High Court, in its extraordinary jurisdiction, could neither substitute finding of facts recorded by Family Court nor give its opinion about adequacy or quality of evidence.

Mian Muhammad Haneef for Petitioner.

Respondent No.1 proceeded ex parte.

YLR 2010 LAHORE HIGH COURT LAHORE 2320 #

2010 Y L R 2320

[Lahore]

Before Sayyed Mazhar Ali Akbar Naqvi, J

USMAN LATIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5569-B of 2010, decided on 7th June, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/337-F(v)/34---Attempt to commit qatl-e-amd, causing of hurt "ghayrjaifah "---Bail, grant of---Accused allegedly had fired a gun shot at the right shin of the witness, which was a non-vital part of his body---Accused a young man of 19/20 years had passed his F.A. examination in first division while in judicial lock-up, and appeared to have mended his ways---Bail was allowed to accused in circumstances.

Muhammad Umar v. The State and another PLD 2004 SC 477 rel.

Mazhar v. State 2008 MLD 1277 and Criminal Miscellaneous. No.4355-B/2010 ref.

Sarfraz Khan Gondal and Tahir Mehmood Khan Gondal for Petitioner.

Ahsan Rasool Chathha, Deputy Prosecutor General, Punjab for Respondent.

Dilshad Ahmed, A.S.-I. with police record.

YLR 2010 LAHORE HIGH COURT LAHORE 2327 #

2010 Y L R 2327

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

MUHAMMAD ZAHID---Petitioner

Versus

Dr. MUHAMMAD ALI---Respondent

Civil Revision No. 421 of 2010, heard on 27th April, 2010.

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

----S. 13---Pre-emption suit---Plaintiff filed suit for possession through pre-emption on the ground that he had a superior right of pre-emption over the disputed property---Defendant contested suit on the ground that plaintiff had no superior right of preemption---Trial Court dismissed suit of the plaintiff---Appellate Court, on appeal, allowed the same and set aside the judgment and decree of the Trial Court---Contention of the plaintiff was that he was only required to prove performance of Talb-i-Ishhad and if at all notice was not served as claimed by the defendant, that would not vanish right of plaintiff and even performance of Talb-i-Ishhad, under Islamic Law in presence of two truthful witnesses was a condition precedent and the proof of dispatch was sufficient---Defendant contended that the plaintiff had failed to prove Talb-i-Muwathibat and Talb-i-Ishhad mentioned in S.13 of the Punjab Pre-emption Act, 1991---Validity---Appellate Court was right in disagreeing with the finding of Trial Court that the plaintiff could not announce immediately his first jumping demand as the plaintiff on having knowledge of the sale of the disputed land had been expressing sorrow and grief as to why the vendors had sold away the disputed land and thereafter proclaimed that he should pre-empt it, as he had superior right of pre-emption qua the vendees---Mere uttering words of sorrow and proclaiming intention of enforcement of his superior right of pre-emption by the pre-emptor did not amount to non-compliance of the provisions of law---Appellate Court had rightly found that plaintiff had fulfilled the requirements of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with the law---Revision petition was dismissed.

Khizar Hayat v. Ghulam Shabbir 2006 MLD 1201; Altaf Hussain v. Ali Muhammad through L.Rs. 2006 CLC 799; Sajid Muhammad Shah v. Ghulam Hussain 1993 CLC 105; Muhammad Siddique v. Muhammad Sharif and others 2006 AC 234; Muhammad Saleem and another v. Muhammad Ramzan 2005 YLR 3017; Mumtaz Hussain and another v. Muhammad Achar and 2 others 1991 CLC 209; Abdul Ghani v. Muhammad Latif PLD 2000 Lah. 428; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302; Wilayat Khan v. Muhammad Sharif through Mst. Irshad Bibi and others 2004 CLC 240; Ali Muhammad v. Ghulam Muhammad 2003 CLC 282; Rai Walayat Khan v. Muhammad Aslam 2002 CLC 714; Faiz Ahmad and 7 others v. Ghulam Haider and 2 others 2007 YLR 1694; Muhammad Sadiq v. Muhammad Shafi 2007 MLD 460; Malik Nazir Ahmad through his legal heirs v. Muhammad Yar" 2004 SCMR 1377; Muhammad Ishaque and 6 others v. Suleman 2007 MLD 752; Syed Ghulam Mustafa Shah and another v. Syed Muhammad Hussain Shah and 2 others PLD 1993 Kar. 369; Muhammad Hussain v. Manzoor Hussain and others 2004 SCMR 737; Din Muhammad v. Abrar Hussain and another PLD 2009 SC 93; Pervaiz and another v. Muhammad Nawaz 2006 SCMR 4; Muhammad Ali and another v. Allah Bakhsh and 5 others 2004 CLC 1949; Rabnawaz v. Anwar Ali and 4 others PLD 2004 Lah.784; Zafar Ali v. Zainul Abidin and another 1992 SCMR 1886; Muhammad Siddique and others v. Sajawal Khan and another 2001 SCMR 302; Umar Khan v. Abdul Ghaffar 2003 CLC 838; Mst.Farzana Bibi v. Manzoor Elahi and 4 others 2006 CLC 1669 and Khushiu Muhammad v. Muhammad Yousaf 2008 YLR 362 ref.

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

----S. 6---Shafi-e-Khalit and Shafi-e-Jar---Superior right of pre-emption---Scope---properties of both parties were adjacent to each other---Disputed sale was effected by way of mutation dated 14-3-1995---Record revealed that transaction of sale in favour of defendant and mutation was effected on 7-10-1996---Defendant became owner in the Deh after the disputed sale---Transactions in favour of defendant were subsequent in time---Defendant could not claim superior right of pre-emption as Shafi-e-Khalit and Shafi-e-Jar on the basis of subsequent transfer in its favour.

Ali Hussain Mohsin for Petitioner.

Ch. Abdul Majeed for Respondent.

Date of hearing: 27th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2335 #

2010 Y L R 2335

[Lahore]

Before Sh. Najam-ul-Hassan and Sayyed Mazahar Ali Akbar Naqvi, JJ

IKRAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 2109 of 2004, heard on 3rd June, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence--- Benefit of doubt---Delay of six hours in reporting the matter to the police and delay of eleven hours in conducting the post-mortem examination of the deceased, had made the prosecution case highly doubtful---Real facts being not known to the complainant and the witnesses, said time appeared to have been consumed in consultation and preparation of police papers---Medical evidence had contradicted ocular testimony indicating that eye witnesses had not seen the occurrence and had only concocted the story on guess work involving the whole family of occurred in the case---Motive being not so strong as to lead only to the murder of the deceased, the same could not be used as independent corroboration of unimpeachable source to substantiate the ocular account---Prosecution had tried to suppress the evidence from the Court by not examining the Investigating Officer---No crime empty was found from the place of occurrence---Accused had been arrested with his gun from his house and recovery of gun being not the result of any disclosure made by him, could not be used against him---Opinion of the Investigating Officer or any of his seniors had no legal value and the same alone could not be made a ground for conviction---Accused was acquitted on benefit of doubt in circumstances.

Ata Muhammad and another v. The State 1995 SCMR 599 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

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

----S.302(b)--- Qatl-e-amd--- Benefit of doubt---General rule---Finding of the guilt should be rested surely and firmly on the evidence produced in the case and plain inference irresistibly drawn therefrom---By deciding criminal case merely on surmises, conjectures or high probabilities, the golden rule of benefit of doubt having a dominant feature of administration of justice with consistent approval of Supreme Court, will be reduced to naught.

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

----S. 302(b)---Qatl-e-amd-Appreciation of evidence-Benefit of doubt---Principle---Single infirmity and not many, creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makers, shall make the whole case doubtful---Burden on the accused to prove his innocence does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt---Finding of guilt against an accused cannot be based merely on high probabilities inferable from evidence on record---Proof cannot be replaced by mere conjectures and probabilities.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S.417--- Qatl-e-amd---Appeal against acquittal---Appreciation of evidence---Accused had been declared innocent during all the investigations---No specific role had been attributed to accused---Complainant had involved one accused in the case in his supplementary statement made after fifteen days of the registration of the F.I.R.---Nothing incriminating had been recovered from any of the accused---Three accused had been assigned the role of firing whereas deceased had received two firearm injuries and it could not be ascertained as to who was the real culprit---Five brothers had been involved in the case---Due to existing enmity between he parties involvement of innocent persons could not be ruled out---Reasons given by Trial Court for acquitting the accused were neither perverse nor arbitrary---Appeal against acquittal of accused was dismissed in circumstances.

Ch. Saeed Ahmed for Appellant.

Qazi Zafar Iqbal, Additional Prosecutor General for the State.

Nusrat Javed Bajwa for the Complainant.

Date of hearing: 3rd June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2344 #

2010 Y L R 2344

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

YASIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 173 of 2004(BWP) and Murder Reference No. 921 of 2004, heard on 26th May, 2010.

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

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---complainant was not present at the scene of occurrence and he had got F.I.R. registered on the information given by other witnesses---Delay of five hours in lodging the F.I.R. was tried to be covered by an implausible explanation---Possibility of deliberations and consultations prior to registration of the case could not be ruled out---Motive having not been proved, ocular evidence required cautious scrutiny---Justification given by eye-witness for being present in the house of occurrence at the crucial time having been belied by circumstances was not acceptable and he being a chance witness his testimony could not be relied upon without any corroboration---Children of ages of comprehension who were admittedly present at the site and were most natural witnesses of the occurrence, were neither associated with the investigation, nor were produced by prosecution at the trial---Dishonestly improved ocular account had been contradicted by medical evidence---Crime empties and the pistol secured by Investigating Officer having been sent to the Forensic Science Laboratory together, positive report of the Expert had no evidentiary value---Prosecution case was full of doubts---Accused were acquitted in circumstances.

Ali Sher v. The State 2008 SCMR 707; Mushtaq and 3 others v. The State PLD 2008 SC 1; Noor Muhammad v. The State and another 2010 SCMR 97; Zulfiqar Haider v. State 2003, PCr.LJ 1036; Fayyaz Hussain Shah v. The State 2002 SCMR 1848; Muhammad Hanif and another v. The State and another 2002 PCr.LJ 238; Faiz Rasool alias Faisal alias Faizi v. The State 2002 PCr.LJ 551; Ghulam Mustafa v. The State 2003 PCr.LJ.221; Amal Sherin and another v. The State through A.G. N.-W.F.P. PLD 2004 SC 371; Gharib Alam alias Gharibu v. The State 2004 SCMR 299; Jawed Malik v. The State 2005 SCMR 49; Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Mirza Khan and another v. The State 2005 SCMR 1110; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432; Ameenullah v. State PLD 1976 SC 629; Zafar Hayat v. The State 1995 SCMR 896; Ijaz Ahmad v. State 1997 SCMR 1279; Asadullah v. Muhammad Ali PLD 1971 SC 541; Saifullah v. The State 1985 SCMR 410; Riaz Masih v. State 1995 SCMR 1730; Siraj v. Crown PLD 1956 FC 123; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S.302(b)/34--- Qatl-e-amd---Appreciation of evidence---Chance witness---Corroboration---Testimony of a chance witness unless corroborated, has to be excluded from consideration.

Zafar Hayat v. The State 1995 SCMR 896 ref.

----S.302(b)/34-- -Qatl-e-amd--- Appreciation of evidence---Forensic Science Laboratory's positive report---Value---Crime empties having been retained at Police Station till the recovery of crime weapon and thereafter both the recoveries sent to Forensic Science Laboratory together, such procedure destroys the evidentiary value of the positive report issued by the said laboratory about the recoveries.

Ali Sher v. The State 2008 SCMR 707 and Mushtaq and 3 others v. The State PLD 2008 SC 1 ref.

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

----S.302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Principle---When ocular testimony is not reliable then conviction cannot be made merely on the basis of supporting pieces of evidence.

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

----S.302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Benefit of doubt, extension of---Principle---Benefit of any doubt, arising in the prosecution case will go to accused as a matter of right and not as a matter of grace.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Azam Nazeer Tarar assisted by Malik Sadiq Mahmood Khurram for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General, Punjab for the State.

Mumtaz Hussain Bazmi for the Complainant.

Dates of hearing: 25th and 26th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2364 #

2010 Y L R 2364

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD MUNIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.40-J of 2004 and Murder Reference No. 353 of 2004, heard on 19th May, 2010.

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

----S. 302(b)--- Qatl-e-amd---Appreciation of evidence---Complainant and other eye-witness, both real brothers of the deceased, had no enmity or strong motive for false implication of accused in the case and they had reasonably explained their presence at the scene of incident---Ocular evidence was consistent on all material aspects of the case, was quite natural and inspired confidence---Medical evidence had supported the ocular testimony--Specific plea qua the occurrence taken by accused could not be substantiated by him on record and the same seemed to be an afterthought---Abscondence of accused for one year and ten months had further contributed towards his guilt---Conviction of accused was maintained accordingly---Occurrence had taken place suddenly over a petty matter without any pre-meditation--No deep routed enmity existed between the parties---Death sentence of accused was reduced to imprisonment for life in circumstances.

Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906; Abdul Wahid v. The State 2003 SCMR 668; Muhammad Ibrar v. The State 2006 SCMR 1175; Iftikhar ul Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Murtaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 ref.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Specific defence plea---Burden of proof---Initial burden to prove the guilt against the accused lies upon the prosecution, but when a specific plea has been raised by the accused in defence then both are to be considered in juxtaposition and the one which is nearer to the truth is to be given weight.

Abdul Wahid v. The State 2003 SCMR 668 ref.

Mian Abdul Qayyum Anjum, Defence Counsel at State expense.

M.M. Alam Chaudhry, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 19th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2370 #

2010 Y L R 2370

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD INAYAT and another---Petitioners

Versus

MEMBER, BOARD OF REVENUE, PUNJAB and 7 others---Respondents

Writ Petition No. 10506 of 2009, decided on 25th May, 2010.

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

----Ss. 163 & 172--- Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioners inherited the suit land from their father and mutation of inheritance was sanctioned in their favour but Executive District Officer passed an ex parte order against petitioners while deciding the review application filed by the respondents---Revision before Member, Board of Revenue was also dismissed---Petitioners contended that the deceased owner of suit land was survived by only three legal heirs i.e. one petitioner and two respondents, but District Officer, Revenue illegally declared another respondent also the legal heir of the deceased---Petitioner further contended that the review petition was time barred and despite the fact that respondents had failed to explain the long delay, revenue authorities decided the title of petitioners and shares of parties transgressing their jurisdiction---Respondents contended that revenue authorities were vested with exclusive power to make correction in mutations which was done correctly under S.172 of the West Pakistan Land Revenue Act, 1967---Validity---Review petition was filed by respondents after twenty four years whereas the limitation period for review under section 163 of the West Pakistan Land Revenue Act, 1967 was ninety days, yet the review petition was allowed---Number of questions of fact and title were involved which were not within the jurisdiction of revenue authorities which proceeded without deciding the questions of limitation and jurisdiction first---West Pakistan Land Revenue Act, 1967 provided for exclusive jurisdiction of civil court to decide complicated questions such as question of title etc.---Revenue authorities could not be allowed to wreak havoc with express provisions of limitation and jurisdiction---West Pakistan Land Revenue Act, 1967 was a special law which had provided for periods of limitation for review/revision/appeals etc. so revenue authorities could not be allowed to travel beyond that limitation---Constitutional petition was accepted in circumstances.

Hafiz Khalil Ahmad for Petitioners.

Ata-ul Mohsin Lak for Respondent No.4.

Mohsin Raza Gondal for Respondent No.5.

YLR 2010 LAHORE HIGH COURT LAHORE 2377 #

2010 Y L R 2377

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD TUFAIL and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6312/B of 2010, decided on 25th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 336, 337-F(iii), 337-F(v), 148 & 149---Attempt to commit qatl-e-amd, itlaf-i-udw and ghayr-jaifah---Bail, grant of---Further inquiry---Though the accused were nominated in the F.I.R. with specific allegations of causing , fire-arms injuries but the fact remained that they were found innocent in the course of investigation and nothing was recovered from them---Both injured persons did not implicate, the accused in their statements made under section 161, Cr. P. C. ---Accused could be allowed bail at any stage and commencement of trial was no bar to release the accused on bail if he was otherwise entitled to the same---Case of the accused was one of further inquiry within the ambit of subsection (2) of section 497, Cr. P C.-Accused were, therefore, admitted to bail with direction to Trial Court to conclude the trial as early as possible.

The State through Force Commander, Anti Narcotics Force, Rawalpindi v. Khalid Sharif 2006 SCMR 1265 distinguished.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 fol.

Malik Muhammad Akbar Awan for Petitioners.

Dost Muhammad Kahoot for the Complainant.

Muhammad Ishaq, Deputy Prosecutor-General with Saeed, A.S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2380 #

2010 Y L R 2380

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD ARIF---Petitioner

Versus

DISTRICT CO-ORDINATION OFFICER RAJANPUR and others---Respondents

Writ Petition No. 9017 of 2009, decided on 20th April, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner was awarded contract for construction of drains and pavement by the a government department but after completion of work, he was not paid the outstanding amount of Rs.177,600---Earlier constitutional petition for the recovery of the same amount was dismissed on the ground that factual controversy could not be resolved in constitutional jurisdiction---Law Officer representing the department contended that petitioner was awarded contract in 1999 but he completed work in 2000---Validity---Whether the petitioner had completed work in accordance with the terms and conditions of the contract could only be determined by recording of evidence---Petitioner could recover the outstanding amount through civil suit by proving his case---Having completed the work in 2000, petitioner claimed the amount in 2009, therefore, his claim was hit by the principle of laches--- Contractual obligation, however, could not be enforced through constitutional jurisdiction---Constitutional petition was, therefore, dismissed.

Zonal Manger v. Mst. Parveen Akhtar PLD 2007 SC 298 rel.

Ch. Muhammad Tariq Manj for Petitioner.

Aurangzeb Khan, A.A.-G. along with Ghulam Qasim, T.M.A., Jampur.

Ahsan Raza Hashmi for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2383 #

2010 Y L R 2383

[Lahore]

Before Muhammad Anwaarul Haq, J

RAHAT BASHIR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and anther---Respondents

Writ Petition No. 18730 of 2009, decided on 3rd May, 2010.

(a) Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan (1973), Art.199---Constitutional petition---Complaint---Not maintainable---Plea of---Effect---Plaintiff filed suit against defendant regarding disputed property while the defendant filed complaint under S.3 of the Illegal Dispossession Act, 2005 in respect of the same property---Plaintiff also filed an application under S.265-K, Cr. P. C. for acquittal---Trial Court dismissed the said application---Plaintiff asserted that the dispute between parties should have been resolved by the civil court and the complaint under S.3 of the Illegal Dispossession Act, 2005 was not maintainable---Validity---Trial Court had summoned the plaintiff/accused in the complaint after considering the evidence on record---Dispute between the parties should have been decided on merits after recording of evidence--- Illegal Dispossession Act, 2005 being a special law, High Court declined to circumvent the process of special law promulgated for a particular purpose---Constitutional petition was dismissed.

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

----Art.199---Constitutional jurisdiction--Scope---High Courts, in matters of factual controversy between the parties, would interfere only in extraordinary circumstances under constitutional jurisdiction.

----S. 3---Special law--Interference by High Court---Scope---Illegal Dispossession Act, 2005 being a special law, High Court declined to circumvent the process of special law promulgated for a particular purpose.

Ch. Shahid Tabassum for Petitioner.

Ch. Muhammad Ishaq, Additional Advocate-General.

Mian Irfan Akram for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 2385 #

2010 Y L R 2385

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD ABBAS---Petitioner

Versus

THE STATE and another--- Respondents

Criminal Miscellaneous No. 6245/B of 2010, decided on 25th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 148 & 149---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Accused allegedly injured two persons of the complainant side according to the F.I.R. ---Police opined after investigation that the accused was empty handed and no recovery of firearms was made from him---Accused also filed a private complaint against the complainant side---Lady who sustained six injuries in the occurrence stated during complaint proceedings in Trial Court as cursory witness that she was injured by the firing of the complainant side---Case, in circumstances, was of two versions; one set out in the F.I.R. and the other in the private complaint---Though the accused was arrested after six months of occurrence, yet mere fact that the accused remained fugitive from law did not disentitle him from the concession of bail if otherwise his case was one of further inquiry---Case of the accused being one of further inquiry he was, therefore, allowed bail.

Khalida Bibi v. Nadeem Baig PLD 2009 SC 440 distinguished.

Malik Nazar Fareed Khokhar for Petitioner.

Niaz Ahmad Phullarwan for Complainant.

Muhammad Ishaque, Deputy Prosecutor-General with Niaz Ahmad, A.S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2390 #

2010 Y L R 2390

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

SHAHID NAVID and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 540 and Murder Reference No. 239 of 2007, heard on 24th May, 2010.

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

-----Ss. 302(6)/34, 337-A(i)/34 & 337-A(ii)/34---Qatl-e-amd, causing a hurt "shujjah "---Appreciation of evidence---Case was of two versions, one set up by prosecution and the other by the accused---None of the parties had come to the court with clean hands---Sudden fight had started between the parties without any pre-meditation---Immediate cause of incident was not known---Eye-witnesses had improved their statements in the Court to cover medical evidence---Recovery of "Sarya" at the instance of accused was of no avail to prosecution, as the same was not proved to have been used in the commission of the murder of the deceased---Accused was, consequently, acquitted of the charge under section 302(6)/34 P.P.C.-- However, injury attributed to accused on the person of the injured witness had been proved by the statement of the said witness made in the court, which was supported by medical, evidence---Convictions and sentences of accused under sections 337-A(i) and 337-A(ii), P.P.C. were maintained in circumstances.

Syed Ali Beopari v. Nibaran Mollah and others PLD 1962 SC 502 and Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Case of two versions--. Inference---Scope---Parties not coming to court with clean hands---Where in a case of two versions each party tries to minimize its own role in the occurrence, court can draw the inference properly flowing from the evidence and circumstances of the case.

Syed Ali Beopari v. Nibaran Mollah and others PLD 1962 SC 502 ref.

----S. 302(b)/34--- Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Principle---In case of doubt, its benefit must go to the accused not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----Ss. 302(b)/34, 337-A(i)/34 & 337-A(ii)/34---Qatl-e-amd causing of hurt "shajjah "---Appreciation of evidence- -Eye witnesses had corroborated each other an material aspects of the case---Parties being known to each other, no question of false identity could arise---Ocular testimony inspired confidence, which was supported by medical evidence as well as by the recovery of hatchet at the instance of accused and positive report of Serologist---Conviction of accused under section 302(b)P.P.C. for the murder of deceased was, therefore, upheld---However, prosecution had failed to prove the motive---Accused had given only one hatchet blow to the deceased---As to what had exactly happened at the spot prior to the occurrence was not known---Murder was not preplanned---Sentence of death awarded to accused was converted into imprisonment for life in circumstances---Case was of sudden fight and the injured witness had not attributed any injury to accused on his person---Accused was, thus, acquitted of the charges under sections 337-A(i)(ii)/34 P.P.C.---Appeal was disposed of accordingly.

Muhammad Ayaz Khan v. Murtaza and others 2008 SCMR 984; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432; Ameenullah v. State PLD 1976 SC 629; Muhammad Israr v. The State 2006 SCMR 1175; Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Muretaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 ref.

Chaudhry Ghulam Mustafa Bandesha for Appellants.

M.M. Alam Chaudhry, Additional Prosecutor-General, Punjab for the State.

Mian Muhammad Ismail Thaheem for the Complainant.

Date of hearing: 24th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2408 #

2010 Y L R 2408

[Lahore]

Before Tariq Javaid, J

ABDUL GHANI---Petitioner

Versus

SUB-DIVISIONAL OFFICER (E) MEPCO S/TOWN SUB-DIVISION, BUREWALA and 2 others---Respondents

Writ Petition No. 3259 of 2010, decided on 27th April, 2010.

Constitution of Pakistan (1973)---

---Arts. 38 & 199---Constitutional petition---Petitioner was a mill worker, living in mills' promises, was involved in litigation with the mill management who stated that the petitioner was a trespasser in the premises of the mill---WAPDA Authorities disconnected petitioner's electricity supply and his application for electricity connection was refused maintaining that under Reference No.24 of the Commercial Procedure, electricity connection could not be provided to any person who was not owner of the property to be supplied with electricity or who could not procure `No Objection Certificate' from the landlord---Validity---WAPDA Authorities' interpretation of Reference No.24 of the Commercial Procedure which set the conditions for electricity connection, was violative of the Article 38 of the Constitution which provided for the State's obligation to provide basic necessities of life to citizens---Basic necessities enumerated in Article 38 of the Constitution included housing and framers of the Constitution could not be supposed to envisage housing without electricity which could safely be termed a basic necessity of life---Reference No.24 of the Commercial Procedure was, therefore, liable to be struck down as the same was prone to an interpretation which had resulted in denial of-basic necessity of life to a citizen---If a landlord or employer wanted to eject any person from their property, they were obliged to adopt legal procedure, for if they were allowed to disconnect electricity, they would disconnect other facilities like water supply and natural gas also to illegally evict the tenants from rented premises---No instrument or rule vulnerable to illegal and mala fide interpretation could be allowed to be operative for such rules or instruments were sound to arm the landlord with weapon to evict the tenant illegally by disconnecting the electricity rather than adopting proper procedure---WAPDA Authorities had tried to coerce the petitioner into evicting the property by denying him basic necessity---Constitutional petition was allowed and WAPDA Authorities were directed to install electricity meter at the residence of petitioner and restore his connection forthwith while Reference No.24 of Commercial Procedure was strike down by High Court.

Ch. Pervaiz Akhtar Gujjar for Petitioner.

Zia Ullah Khan, Advocate along with Fayyaz Hussain, S.D.O., WAPDA for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 2418 #

2010 Y L R 2418

[Lahore]

Before Muhammad Yawar Ali, J

Mst. ROBINA AKRAM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 919 of 2008, decided on 25th May, 2010.

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

----S. 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Zar-i-Soam, non-deposit of within time---Plea of---Application for rejection of plaint---Order not challenged--Effect---Defendant neither impugned the order of Trial Court wherein an application for rejection of plaint on the grounds of non-deposit of Zar-i-Soam in time, was dismissed, nor the order wherein the time for deposit of Zar-i-Soam was extended---Defendant could not be permitted to challenge the same in constitutional petition before High Court---Constitutional petition was dismissed.

Mst. Zaira Khatoon v. Mst. Kishwar Jamal 2009 MLD 67; Shah Wali, v. Ghulam Din alias Gaman and another PLD 1966 SC 983 and Muhammad Din and others v. Jamal Din and others 2007 SCMR 1091 ref.

Sarfaraz Ahmed Cheema for Petitioner.

Syed Muhammad Shah for Respondent No.3.

Date of hearing: 7th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2421 #

2010 Y L R 2421(2)

[Lahore]

Before Sheikh Ahmad Farooq, J

MUHAMMAD SARFRAZ---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No. 1899-B of 2010, decided on 17th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant of---Accused volunteered to pay alleged amount of cheque, subject to the condition that complainant would be bound to refund said amount, in case the suit for rendition of account and return of original documents, which had been filed by accused against the complainant in a civil court, was decided against him---Pendency of a civil suit, prima facie had established that there was some business transaction and the matter in dispute was primarily of a civil nature---In view of the payment of amount in dispute by accused to the complainant, the intended arrest of accused by the Police would be of no use, except causing unnecessary harassment and humiliation to accused at the hands of investigating agency---Accused was admitted to bail, in circumstances.

Muqtedir Akhtar Shabir and Mehar Qamar Sajajd for Petitioner.

Rana Abdul Majid Khan for the Complainant.

Muhammad Iqbal Chaudhry, Deputy Prosecutor General with Rana Shamim, S.-I. Police Station Sabzazar, Lahore for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 2425 #

2010 Y L R 2425

[Lahore]

Before Ch. Iftikhar Hussain, J

Hafiz ALLAH YAR---Petitioner

Versus

MUHAMMAD AMEER KHAN---Respondent

T.A. No.89-C and C.M.A. No. 1-C of 2010, decided on 3rd June, 2010.

Civil Procedure Code (V of 1908)---

----S.24---Specific Relief Act (I of 1877), S.12---Transfer of case---Suit for specific performance---Defendant filed application for transfer of case during pendency of suit for specific performance on the ground that plaintiff being a senior member of District Bar Association was influencing his lawyer and the court---Trial Court transferred the case to another Tehsil of the District---Suit was dismissed by Trial Court---Plaintiff filed appeal before Additional District Judge in the Tehsil where the case had been transferred---During pendency of appeal, original Tehsil was upgraded/made District and the case/appeal was transferred there again---Defendant prayed again for the transfer of case outside said new District---Validity---Held, a lawyer in a district was definitely in advantageous position to contest a case in comparison to an ordinary litigant---Appeal was transferred to another adjoining district by High Court, in order to ensure fairness and impartiality---Order accordingly.

Petitioner in person.

Nemo for the Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 2436 #

2010 Y L R 2436

[Lahore]

Before Iqbal Hameed ur Rehman, J

ABDUL JABBAR and another---Petitioners

Versus

GOVERNMENT OF PUNJAB and 3 others---Respondents

Writ Petitions Nos. 4506, 7214 and 11470 of 2010, decided on 4th June, 2010.

Land Acquisition Act (I of 1894)---

----S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioners were owners of various portions of land situated in the same revenue estate which was identified for requisition by District Officer (Revenue)---Notification was issued under S. 4 of Land Acquisition Act, 1894 for acquisition of area which also included lands of petitioners but said notification was cancelled later through another notification---Cancelled notification was, however, revived after two months---Petitioner contended that Land Acquisition Act, 1894 contained no provision for revival of a notification after cancellation and withdrawal---Validity---Land Acquisition Act, 1894 contained no provision for revival of any previous notification which had duly been cancelled---Government could acquire said land but the same could be done only by adopting a fresh procedure provided in law which required a fresh notification under S. 4 of Land Acquisition Act, 1894 for re-initiation of acquisition proceedings---Logic of such principle was that after cancellation of a notification, owners of lands might enter into sale agreements thereby giving rise to new claims and creating complications involving new claimants---Revival of previous notification duly cancelled was, therefore, not allowed by law---Constitutional petition was accepted and impugned order of revival of notification was set aside and declared to be null and void by High Court.

Tauqir Ahmad Khan and 6 others v. Government of Pakistan through the Secretary, Works, Central Secretariat, Islamabad and 6 others 1994 MLD 186; Syed Mahboob Alam Shah and others v. Deputy Commissioner and others 1989 CLC 1801 and Province of Punjab and 2 others v. Muhammad Haziq and 3 others 1986 CLC 530 rel.

Shehram Sarwar for Petitioners.

Malik Muhammad Azeem, Addl. A.-G.

Manzoor Ahmad Deputy Director, PHATA Sub-Region Sheikhupura.

YLR 2010 LAHORE HIGH COURT LAHORE 2441 #

2010 Y L R 2441

[Lahore]

Before Ijaz ul Ahsan, J

Syed MUHAMMAD TOQEER AZMI---Petitioner

Versus

Mst. ALIA WAQAR and 2 others---Respondents

Writ Petition No. 10961 of 2009, heard on 15th April, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-exhibition of list of dowry articles---Effect---Plaintiff filed suit for recovery of dowry articles or its value to the sum of Rs.1,301,092 in the Trial Court---Defendant contested suit on the ground that no documentary evidence was placed on the record---Trial Court decreed suit of the plaintiff---Appellate Court, on appeal allowed the same and reduced the amount from Rs. 1,301,902 to Rs. 834,713--Contention of the defendant was that list of dowry articles was never exhibited in the record and that the plaintiff while appearing as witness herself admitted that list had been prepared at the time of filing of the suit---Validity---Fact that the list was not exhibited was not of much consequence in view of the fact that in her statement, the plaintiff recounted the list---List was not specifically cross-examined---Such fact was also substantiated in the evidence of plaintiff's father who specifically stated that a list was indeed prepared at the time of marriage which was noted in his diary on the basis of which a fresh list was prepared for the purpose of filing suit in the court---Plaintiff stated in her statement that groom's mother had taken over the dowry articles as well as receipts thereof---Value of dowry articles mentioned in the list attached with the plaint had not been questioned---Subordinate courts had acted fairly, justly and with circumspection and had exercised jurisdiction within the parameters prescribed by law---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Defendant had offered to return dowry articles admitted by him which according to him were in his possession---Held, if the said offer was accepted, it would open up another controversy regarding the condition of the articles, their value and possibility of substitution---Such offer was not a feasible solution to the issue.

----Art. 199---Constitutional Jurisdiction---Scope---High Court did not act as an Appellate Court and detailed appraisal and reappraisal of evidence was not required in constitutional petition---In order to succeed, party had to establish that subordinate courts had acted in excess of jurisdiction or exercised jurisdiction in a manner which was perverse or beyond the parameters laid down by law; it was further incumbent upon the party to show misreading or non-reading of evidence.

Ahmed Raza Malik for Appellant.

Shahzad Ahmad Durrani for Respondent.

Date of hearing: 15th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2446 #

2010 Y L R 2446

[Lahore]

Before Hasnat Ahmad Khan, J

ATTIQUE-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8931-B of 2008, decided on 21st October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-F(iii)/337-A(I)/336/34---Mutalahimah, Shajjah-i-Khafifah, Itlaf-i-Salahiyyat-i-Udw---Bail, refusal of---Serious allegation was levelled against accused of causing five stab wounds to the injured prosecution witness with a dagger on the vital organs---One of the injuries caused by accused attracted the provisions of S.336, P.P.C., which fell within the prohibitory clause of S.497, Cr.P.C.---Prosecution story, prima facie was corroborated by the statement of injured prosecution witness as well as the medical evidence---Reasonable grounds were existed for believing that accused was guilty of an offence, which fell within the prohibitory clause---Trial Court, after framing of charge, had already commenced the trial and statements of two prosecution witnesses already been recorded by the Trial Court---Deeper appreciation of evidence could not be resorted to at bail stage---Bail application was dismissed, in circumstances.

Najamul Saqib Rai for Petitioner.

Shahid Mehmood Khan, Deputy

Prosecutor-General with Ilyas, A.S.-I. for the State.

Rana Saqib Mumtaz and Rana Ishfaq Ahmad for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2448 #

2010 Y L R 2448

[Lahore]

Before Shahid Hameed Dar, J

GUL KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 47/Q of 2009, decided on 28th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K & 561-A---Penal Code (XLV of 1860), Ss. 302 & 392---Qatl-e-amd and robbery---Quashing of proceedings---Appreciation of evidence---Bail, grant of---One prosecution witness recognized the accused and three other co-accused during identification Parade---During proceedings of trial, complainant filed application under section 345, Cr.P.C. which could not make any progress as the offence was not compoundable---Accused filed application under section 265-K, Cr.P.C. which was dismissed by Trial Court---Accused then filed petition under S.561-A, Cr.P.C. which was disposed of by High Court with direction to complete the trial within eight weeks---Prosecution, however, failed to proceed its case expeditiously---Accused filed another application for acquittal which was dismissed--- Eye-witnesses categorically stated in their testimonies that they could not recognize the accused and that the accused persons facing the trial were not the persons who had killed the deceased---Remaining two eye-witnesses had migrated to USA for good---Fate of the case, thus, hinged on the testimony of said two witnesses who were needed to be examined by prosecution though the witnesses had left the country, yet their availability was not an impossibility so the Trial Court did not commit an error in dismissing the accused's application for acquittal---Agony of the accused, languishing in jail, however, could not be brushed aside as he was not responsible for delay in trial but as crucial evidence of prosecution had yet to be recorded, nothing certain could be predicted about conclusion of trial---Accused could not be allowed to rot in jail indefinitely---Application for quashment of proceeding was, thus, converted into bail petition and accused was admitted to bail.

Mushtaq Ali Tahir Kheli for Petitioner.

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

YLR 2010 LAHORE HIGH COURT LAHORE 2459 #

2010 Y L R 2459

[Lahore]

Before Umar Ata Bandial, J

GHULAM MUSTAFA---Petitioner

Versus

GENERAL MANAGER, P.P.B., LTD. and others---Respondents

Writ Petition No. 3812 of 2005 and Civil Miscellaneous No. 1 of 2009, decided on 6th July, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Review of order---Petitioner had contended that, petition pertained to service matter, but by a ministerial error same had been linked up with the matters pertaining to challenge to the vires of S.15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, final judgment passed in the case, in circumstances, proceeded on a premise alien to the cause in the petition---Submission of the petitioner was that the order be reviewed and recalled and petition be decided on its merits--- Validity---Contention of the petitioner was correct, judgment of High Court was not based on the grievance, but proceeded on a different matter not raised in the petition---Judgment in question was recalled---Petition would be heard and decided on merits---Interim order prevailing in the case prior to the judgment in question, would stand restored.

Syed Shamim Abbas Bokhari for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2466 #

2010 Y L R 2466

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD YAQOOB---Petitioner

Versus

Mst. SIANI BIBI alias SHAMMA and 2 others---Respondents

Writ Petition No. 15849 of 2005, decided on 22nd April, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of maintenance allowance; fine of alleged ouster from house, return of dowry articles and for restitution of conjugal rights---Trial Court passed the decree of maintenance allowance and recovery of Rs.1,00,000 in terms of column No.18 of Nikahnama; but suit for return of dowry articles was dismissed---Decree for restitution of conjugal rights was also passed by the Trial Court in favour of the husband subject to payment of maintenance allowance---Judgment and decree passed by the Trial Court had been maintained by the Appellate Court---Validity---Column No.18 of Nikahnama had clearly provided that amount of Rs.1,00,000 was payable as fine in case the husband would oust the wife from his house without reason---Said agreement had shown that amount was a fine payable on happening of an agreed event provided the ouster was without any reason; it was in circumstances a sort of pre-agreed damages---Payment of damages required evidence and payment of fine was not the subject of Family Court---Amount mentioned in column No.19 of the Nikahnama was not a personal belonging of wife---Personal belongings with reference to the West Pakistan Family Courts Act, 1964 would include the right to possess, use and enjoy determinable things like dowry, ornaments, gifts and dower---Personal property referred in column No.19 of Nikahnama was not a property in possession of plaintiff wife, the right to recover only would mature on happening of the incident that husband would throw the wife from his house---In the present case a decree for the right mentioned in column No.19 of Nikahnama was a civil right and could be brought into action through civil court---Contention that Family Court was a civil court for all purposes and intent, was repelled as the Family Court was a court established under S.3 of the West Pakistan Family Courts Act, 1964, but its jurisdiction was defined in S.5 of said Act---Argument that all civil rights of the parties could be adjudicated upon by the Family Court, was not correct---Decree passed by the courts below to the extent of amount mentioned in column No.18 of Nikahnama was not sustainable in the eye of law and same was declared without lawful authority---Suit to the extent of recovery of Rs.1,00,000, was dismissed.?

Naveed Ahmad Khawaja for Petitioner.

Arshad Munir for the Respondents.

Date of hearing: 18th March, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2473 #

2010 Y L R 2473

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

SHAUKAT ALI KHAN---Appellant

Versus

MUHAMMAD HUSSAIN---Respondent

S.A.O. No. 29 of 2008, decided on 10th May, 2010.

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

----S.13---Specific Relief Act (I of 1877), Ss.12 & 24(b)---Ejectment petition---Ground of non-payment of rent due by tenant---Denial of relationship of landlord and tenant between parties---Tenant's defence being based on agreement to sell executed in his favour by father of landlord and pendency of suit for its specific performance---Dismissal of tenant's suit finally by Supreme Court for his failure to pay balance sale price---Validity---Tenant in such agreement to sell had agreed to pay rent of Rs.6 per month till final payment of balance sale price to deceased vendor---Tenant had come into possession of shop as tenant of deceased vendor---Tenant himself had relied upon such agreement to sell, which could be read in ejectment proceedings---Tenant's such defence came to an end, when his suit was finally dismissed by Supreme Court, resultantly his status as tenant stood restored---Such final judgment of Supreme Court was binding on all parties thereto---Tenant had failed to tender rent in accordance with law in terms of demand of landlord's notice---Ejectment petition was accepted in circumstances.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1969)---

----Ss.13 & 13-A---Ejectment petition---Notice of change of ownership by landlord to tenant---Denial of receipt of such notice by tenant---Effect---Ejectment petition itself would be treated as a notice.

Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751; Syed Azhar Imam Rizvi v. Mst. Salina Khatoon 1985 SCMR 24 and Mst. Huma Bilal v. Ghulam Farid 2005 CLC 983 rel.

---Art.47--- Statements and pleadings between parties in earlier litigation would be relevant and could be read in subsequent litigation.

Muhammad Yasin Chughtai for Appellant.

Zaheer Zulfiqar for Respondent.

Date of hearing: 1st April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2485 #

2010 Y L R 2485

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

WALAYAT ALI---Petitioner

Versus

MUNAWAR HUSSAIN and 3 others---Respondents

Writ Petition No. 17317 of 2009, decided on 19th April, 2010.

West Pakistan Land Revenue Rules, 1968---

----R.17---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Lambardar, appointment of---Petitioner and respondent applied for appointment as lambardar---District Officer, Revenue recommended respondent for post of lambardar while Executive District Officer, Revenue accepted petitioner's appeal against respondent's appointment---Respondent filed revision petition before Member, Board of Revenue which was accepted---Petitioner contended that respondent was given preference over petitioner for being more educated than the petitioner whereas education was not a criterion for appointment of lambardar under R.17 of West Pakistan Land Revenue Rules, 1968 and that petitioner had been performing functions of temporary lambardar for last eighteen years---Respondent asserted that he owned more land than the petitioner and the estate was inhabitatd by majority of people who belonged to his caste---Validity---Property owned by a candidate for lambardar was a point of consideration but the same was not of primary importance---No doubt, ownership of land in larger holdings was meant to safeguard interests of government in relation to payment of government dues by lambardar but payment of government dues could also be safeguarded by requiring to furnish adequate security-Petitioner admittedly owned land which was sufficient to be used as security for the payment of dues collected by him on behalf of government---Petitioner had worked as temporary lambardar for eighteen years without any remuneration so he could not be ignored merely for owning lesser land than respondent being more experienced, petitioner had a preferential right to become lambardar---Fact that petitioner remained temporary lambardar for long time without any complaint from people of other castes showed his positive influence and good relations with people irrespective of caste and creed---Revenue authorities took erroneous view of law relating to requirements for appointment of lambardar---Services rendered by petitioner for government should have been taken into account---Petition was allowed and order of Member, Board of Revenue, was declared to be without lawful authority and order passed by Executive District Officer was restored.

Ch. Ijaz Akbar for Petitioner.

Sardar Mohabbat Ali Dogar for Respondent No.1.

Shahid? Mubeen, Additional Advocate-General.

YLR 2010 LAHORE HIGH COURT LAHORE 2497 #

2010 Y L R 2497

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. HALEEMA RASHEED---Petitioner

Versus

REGISTRAR COOPERATIVE HOUSING SOCIETY and 32 others---Respondents

Writ Petitions Nos. 2663 and 3844 of 2010, heard on 19th May, 2010.

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

---Ss. 16-A, 44-D & 54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioners had challenged the notification/schedule issued for election of Co-operative Society and for appointment of Election Commission---Petitioners contended that their application filed under S.54 of the Co-operative Societies Act, 1925 was dismissed by Circle Registrar of the Cooperative Societies in utter disregard of the directions earlier issued by the Deputy District Officer to amend bye-laws and to provide right of vote to all members of the society---Circle Registrar of the Co-operative Housing Society instead of first getting implemented his own directions issued under S.44-D of the Co-operative Societies Act, 1925 and to implement the award announced by the Deputy District Officer Cooperative Housing Societies got conducted election in violation of his own order and the award without mentioning the law or bye-laws under which the election was being held--- Validity--- Petitioners had inalienable right to vote and to participate in the elections being members of the Cooperative Housing Society which right had also been guaranteed by the Constitution---Whole process of election, in circumstances was against the spirit of law as the petitioners were deprived of their rights of franchise along with other members---Action of constituting a sub-committee at the discretion of Society thus depriving more than 7000 members to their right of vote was absolutely illegal and against the norms of justice---High Court allowed the constitutional petitions and declared the election null and void with direction to the Registrar Cooperative Societies to amend the Byelaws of the respective society as provided under S.164-A of the Cooperative Societies Act, 1925 giving right to all members of the concerned society to cast their votes and to participate in the election process, issue a new list of members of the society in question and hold new elections within a period of three months from the date of order in accordance with law with further direction that till such time the election to be held, an Administrator be appointed for looking after the affairs of the society.

PLD 1989 SC 396; PLD 1970 Kar. 200; 2004 CLC 587; 2007 YLR 522 and PLD 2003 SC 1329 ref.

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

----S. 64---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Alternate remedy--- Appeal--- Non filing of---Effect---Whole action on the part of authorities regarding holding of election of the Managing Committee of Housing Society being illegal, High Court could exercise constitutional jurisdiction against such an action---Constitutional petition was allowed.

----S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Restriction on right to vote---Right of vote was inalienable right of every member of the cooperative society which could not be taken away under the garb of an undertaking which even otherwise was against the law.

Imran Sarwar for Petitioner.

Waqas Qadeer Dar, A.A.-G.

Waqar A. Sheikh and Javed Iqbal Qureshi for Respondents.

Date of hearing: 19th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2506 #

2010 Y L R 2506

[Lahore]

Before Ijaz Ahmad, J

LIBERTY POWER LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 37 of 1997, decided on 18th May, 2010.

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

----Art. 199--- Constitutional petition---Agreement of power generation complex---Performance guarantee---Encashment of--Scope---Letter of support by the President of Pakistan--- Significance--- Petitioner filed constitutional petition on the ground that failure in accomplishment of power generation complex was due to failure of gas supply by the gas supply Company---Contention of the petitioner was that on account of failure of the petitioner to achieve the financial close, authorities were demanding the encashment of performance guarantee, which was not warranted by law as authorities cancelled the agreement for the project---Authorities had bound-down themselves to supply the natural gas to the petitioner and President of Pakistan had permitted the petitioner in the Letter of Support to operate and obtain a Thermal Power Generating plant by using local gas from the company---Petitioner, in effect had a guarantee by the Head of the State and deserved a respect---Not only initial supply was assured but alternate supply of gas from other blocks was also guaranteed---Validity---Petitioner, held, could not be held to be a defaulter in the agreement---Authorities had no authority to unilaterally cancel the Letter of Support and resultantly, to get the Performance Guarantee encashed--Constitutional petition was allowed accordingly.

Lahore Cantonment Cooperative Housing Society Ltd. Lahore Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068 and Bavindir Insaat v. Pakistan through Ministry of Communications and 3 others PLD 2001 Lah. 426 ref.

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

----Art. 199---Constitutional petition---Locus standi to file---Agreement of Construction of Power Generation Complex---Contention of the authorities, that the petitioners (contractors) were alien to the whole affair as they had not negotiated with them, was not tenable and that petitioners were obliged to establish a public limited company in accordance with law thus resulting in the incorporation and registration of the petitioners---Authorities did not raise any such question while the contract was being performed and phase-I was being established---Authorities, held, could not refuse to recognize the petitioners' status---Petitioner had locus standi to move the constitutional petition which was allowed by High Court.

----Art. 199--- Constitutional petition---Interpretation of terms of contract and its enforcement Jurisdiction of High Court---Scope---High Court, in ordinary circumstances, should not embark upon the interpretation of terms of contract and its enforcement---In the present case, the President of Pakistan, in his Letter of Support had opted to stand as a guarantor---High Court, in circumstances, was not devoid of jurisdiction to interpret the terms of contract and its enforcement.

Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay AIR 1989 SC 1642 and Muhammad Ashraf Ali v. Muhammad Naseer and 2 others 1986 SCMR 1096 rel.

Syed Ali Zafar and Raja Zafar Khaliq Khan for Petitioner.

Syed Ishtiaq Haider for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 2515 #

2010 Y L R 2515

[Lahore]

Before Ijaz Ahmad, J

Mst. QAMAR SULTAN and others---Petitioners

Versus

Mst. BIBI SUFAIDAN and others---Respondents

Civil Revision No. 69 of 2002, heard on 26th May, 2010.

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

----S. 8-Suit for possession and rendition of accounts on the ground that plaintiff being collateral was entitled to 1/6th share of disputed property of the deceased as the same was Sunni by faith and the mutation sanctioned in respect of disputed property in accordance with Shia law was illegal---Defendants contested the suit on the ground that deceased professed Shia faith, therefore, the disputed properly devolved upon the defendants in toto---Trial Court dismissed the suit of the plaintiff---Appellate Court, on appeal, allowed the same and decreed the suit---Contention of the plaintiff was that funeral prayer of the deceased was led by Sunni Sect Scholar, therefore, the deceased was Sunni by faith---Validity---Funeral prayer by a Sunni Imam was no proof of the faith of the deceased---Documentary evidence had weighed heavily in favour of the plaintiff and against the defendants---Deceased, held, was Sunni by faith in circumstances---Revision petition was dismissed by High Court.

Pathana v. Mst. Wasai and others PLD 1965 SC 134 ref.

Pathana v. Mst. Wasai and others PLD 1965 SC 134 rel.

(b) Islamic law---

----Inheritance---Great majority of the Muslims in Indo-Pak subcontinent being sunnis, the presumption would be that the parties to the suit were sunnis, unless proved otherwise.

----Art.129---Faith---Presumption---Burden of proof---Burden to rebut the presumption would lie heavily on the one who attributed the faith to any person.

Ayub Bukhari for the Petitioners.

Maulvi Ijaz-ul-Haq for Respondents.

Date of hearing: 26th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2526 #

2010 Y L R 2526

[Lahore]

Before Ch. Muhammad Tariq J, MUHAMMAD JAVED IQBAL---Petitioner

Versus

MEMBER (JUDICIAL-H) Board of Revenue Punjab, Lahore and others---Respondents

Writ Petition No. 13942 of 2004 heard on 21st May, 2010.

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

----S.172--- Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for specific performance--- Petitioner purchased suit land and possession was handed over to him at the time of agreement to sell---Revenue Officer conducted demarcation and incorporated petitioner's name in Register Khasra Girdawari---Said demarcation was challenged by the respondent before revenue hierarchy and ultimately Member, Board of Revenue decided against petitioner who filed constitutional petition seeking cancellation of the order of Member, Board of Revenue and a direction to revenue authorities to record petitioner's possession in Khasra Girdawari during pendency of suit as the said order of the Member Board of Revenue was likely to prejudice petitioner's case in civil court---Respondent contended that section 172 of West Pakistan Land Revenue Act, 1967 excluded the jurisdiction of civil courts from matters which were in the ambit of revenue authorities which could not be directed to be maintained or corrected by High Court in its constitutional jurisdiction to maintain or correct Register Khasra Girdawari---Validity---Petitioner's contention that change in entry of Khasra Girdawari would prejudice his case in civil court was misconceived, for, Register Khasra Girdawari was maintained by Patwari to keep the revenue record up-to-date and record his inspection of crops conducted by him twice a year so any change of possession entered by Patwari was of no legal consequence unless the same was incorporated in Register Taghyyar Kasht duly verified by the field Qanungo and countersigned by revenue officer in charge of the revenue circle---Entry in girdawari was neither proof of possession nor did it confer any rights---Petitioner had already instituted suit for specific performance of agreement to sell which was pending before competent civil Court, interference was declined.

Ghulam Nabi and others v. Muhammad Hussain and others 2003 SCMR 1780 fol.

Syed Misbah-ul-Hassan, for Petitioner.

Muhammad Yaqoob Sindhu for Respondents.

Date of hearing: 21st May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2532 #

2010 Y L R 2532

[Lahore]

Before Umar Ata Bandial and Muhammad Khalid Mehmood Khan, JJ

LAHQRE DEVELOPMENT AUTHORITY-Appellant

Versus

MUHAMMAD TARIQ---Respondent

I.C.As. Nos.49 and 40 of 2010, decided on 12th May, 2010.

Auction---

----Auction of plot--- Cancellation of auction---Authority put plot in question to auction and highest bid offered by the respondent was accepted and he deposited the amount--- Subsequently when appellant/intervener offered excess amount, Authority cancelled sale made in favour of petitioner through auction---Single Judge of High Court vide the impugned judgment held that contract of sale between the Authority and respondent stood finalized and concluded with full payment of the bid price having been made by the respondent; that in absence of any allegation by the Authority of fraud or mala fide by any party to the transaction, no ground was for the Authority to interfere with the said sale in favour of the petitioner--- Fictitious offer allegedly offered by the appellant/intervener for excess amount, without testing his bona fides before the Authority, seemed to have been the basis of the impugned action---Presumed premise of the impugned order had been exposed and had collapsed---Findings of the Single Judge, could not be interfered with in Intra-Court appeal, in circumstances.

Mian Muzaffar Hussain for Appellant.

Mehmood A. Sheikh for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 2536 #

2010 Y L R 2536

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

MUHAMMAD YUSUF---Petitioner

Versus

Malik KHIZAR HAYAT KHAN and 6 others---Respondents

Writ Petition No. 17714 of 2009, heard on 25th May, 2010.

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

----S. 176--- Constitution of Pakistan (1973), Art. 199---Constitutional petition---Second judicial inquiry ordered under S.176, Cr.P.C.---Validity---Two judicial inquiries into the cause of death of the brother of the petitioner had been held under the orders of the Chief Justice of High Court---In one inquiry report, dated 2-6-2009 Magistrate had held that brother of the petitioner had been killed in a fake police encounter and he had been murdered at the instance of a DSP---In the second inquiry report, dated 7-8-2009 Additional Sessions Judge had held that the police officers had simply performed their duty with the aim and purpose of apprehending the robbers and to recover the snatched car, and the incident of the unfortunate death of the innocent brother of the petitioner was a mishap beyond their control, which was probably unavailable and also without their knowledge and could be named as an inevitable accident--Contention on behalf of the respondents that Chief Justice had unfettered powers to order second inquiry had no force, as S.561-A, Cr.P.C. did not reveal any such power---Proceedings of a Magistrate who holds inquests under these sections are judicial proceedings open to revision by High Court---Any order on administrative side by the Chief Justice would be considered without lawful authority---Second judicial inquiry into the cause of death of the deceased brother of the petitioner held on the orders of the Chief Justice, was not permissible under the law---Second inquiry report dated 7-8-2009 of the Additional Sessions Judge was consequently declared as without jurisdiction, without lawful authority and of no legal effect and the same was set aside--- Constitutional petition was accepted accordingly.

Mumtaz Hussain v. Deputy Director-General Faisalabad and 7 others PLD 202 Lah. 78 ref.

Khuda Bakhsh v. Province of West Pakistan and another PLD 1957 (W.P.) Lah. 662 and Mst. Nargis v. The District Magistrate Gujrat and others 1985 MLD 782 rel.

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

----S.176---Inquiry by Magistrate into cause of death---Second inquiry not competent---No second judicial inquiry under S.176, Cr.P.C. can be ordered to be held.

Khuda Bakhsh v. Province of West Pakistan and another PLD 1957 (W.P.) Lah. 662 and Mst. Nargis v. The District Magistrate Gujrat etc. 1985 MLD 782 ref.

Aftab Gul for Petitioner.

Ch. Saeed Ahmad, Muhammad Azeem Malik, Addl. A.-G., Saleem Mahmood Waraich DSP, Asmatullah Inspector, Mazhar ul Haq Inspector, Farrakh Waheed S.-I. and Muhammad Tahir Constable for Respondents.

Date of hearing: 25th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2543 #

2010 Y L R 2543

[Lahore]

Before Ijaz Ahmed, J

MUHAMMAD MUNIR ABDULLAH-Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION and others---Respondents

Writ Petition No. 2078 and C.M. No. 1411 of 2010, decided on 31st May, 2010.

Cantonments Act (II of 1924)---

----Ss. 3, 4, 5, 112 & 116---Cantonments Land Administration Rules, 1937, Rr.4 & 5---Punjab Local Government Ordinance (XIII of 2001), S.54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Station Head Quarter, auctioned the right to hold cattle-market to petitioner, the highest bidder, on a piece of land purportedly belonging to the Armed Forces of Pakistan---Petitioner alleged that Municipal Administration were interfering with the lawful commercial activity which was carried out under valid contract with the Station Head Quarter of the Cantonment---Petitioner contended that land leased for cattle-market was a Camping Ground falling in Class A-1 category under Rule 4 of the Cantonments Land Administration Rules, 1937 which allowed the use of said land for holding the cattle-market---Petitioner further contended that under S. 3 of the Cantonments Act, 1924, "Cantonment" included the places situated in the vicinity of any place where the regular Armed Forces were quartered or were required for the service of such forces---Petitioner also contended that under Ss. 4 and 5 of Cantonments Act, 1924, Federal Government might include any local area of local council in territorial limits of a Cantonment whereafter such area would become subject to the Cantonments Act, 1924 and to all other rules, regulations, bye-laws issued or made thereunder---Municipal Administration contended that the area in question was situated within territorial limits of Tehsil Municipal Administration and was owned by the Provincial Government as was apparent from register Haqdaran-e-Zamin which showed that the Defence Department was possessor in the column of cultivators and another person was entered as tenant; that agreement for holding cattle-market did not bear petitioner's name as a party, rather name of somebody else was mentioned therein and that petitioner, had no locus standi to file the constitutional petition---Validity---Agreement in question was executed by the Station Head Quarter' as lessor andresident' called as lessee but the same was of no legal value as one of the two parties was not ascertainable whereas a valid agreement could only be executed by two or competent persons---Land in question was occupied by the Armed Forces but it belonged to the Provincial Government---Petitioner's contention that the area in question was included in the Cantonment limits had no force because such inclusion required notification which had not been issued by the Federal Government---Under Rule S of Cantonments Land Administration Rules, 1937 land in question was categorized as class A-1 land which could only be used or occupied by military for specific purposes---Said land being a Camping Ground, could not be used for any other purpose such as holding of cattle-market---Armed Forces were held in high esteem by people of the country; their involvement in commercial activities like holding of cattle-market etc. was bound to undermine their esteemed position and a reverse trend might ensue---Station Head Quarter could not use the area for the purpose of its choice even if the said area belonged to it---Said area having never been notified as Cantonment area still remained under control and limits of Tehsil Municipal Administration which could regularise its use even if it belonged exclusively to an individual or an Authority---Holding of cattle-markets and fairs was function of Tehsil Municipal Administration which could prescribe limits for such activities and as per regulations, a new cattle-market could not be established within 1S kilometres of an already existing cattle-market without prior approval of the Government---Establish?ment of cattle-market in question was illegal as another .such cattle-market was already functioning within a distance of 2-1/2 kilometres--- Under S.3 of Cantonments Act, 1924 Federal Government might by notification declare any place where Arms Forces were quartered to be a Cantonment but holding of cattle-market was not connected with the quartering of Armed Forces nor was required for the service of such forces---Subsection (4) of S.198 of the Cantonments Act, 1924 barred the Cantonment Boards from establishing public markets or public slaughter house etc. within limits of any area administered by any local authority without permission of such local authority---Holding of cattle-market was not a function or duty of the Cantonment Board under S. 116 of Cantonments Act, 1924, instead, Tehsil Municipal Administration was tasked with holding of such markets under Punjab Local Governments Ordinance, 2001---Under section 112 of the Cantonments Act, 1924 the Board could enter into those contracts only which were necessary for the purposes of said Act---Station Head Quarter could not award contract to the petitioner because a contract for holding cattle-market was not necessary for the purposes of Cantonments Act,, 1924---Cantonment Board or the Station Head Quarter could not supersede the rights of the Tehsil Municipal Administration which was responsible for holding cattle-markets--- Constitutional petition was dismissed, in circumstances.?

2001 CLC 1808 rel.

Sardar Asmat Ullah Khan for Petitioner.

Muhammad Siddique Awan, for Respondents Nos. 1 and 2.

Malik Faisal Rafique, learned A.A.-G.

Muhammad Siddique, TMO, Jand. Aurang Zeb Inspector.

YLR 2010 LAHORE HIGH COURT LAHORE 2562 #

2010 Y L R 2562

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Khawaja WASEEM HUMAYUN--- Petitioner

Versus

REGISTRAR CO-OPERATIVE, PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No. 4172 of 2010, heard on 31st May, 2010.

Constitution of Pakistan (1973)---

----Arts. 199, 17 & 24---Constitutional jurisdiction---Scope---Petitioner purchased a plot of land in a Co-operative Housing Society and became member of the Society, but was disallowed from contesting election of Management Committee of the said Society for not holding a bachelor's degree---Petitioner contended that the bye-laws barring him from contesting the election was discriminatory and violative of Articles 17 and 24 of the Constitution---Counsel for the Society contended that bye-laws of the Society could not be assailed in constitutional jurisdiction---Validity---Perusal of bye-laws of the Society imposing condition of graduation showed that prior to its imposition on 18-10-2007 member without bachelor's degree had been contesting election for Management Committee of the Society--Only 2% of total members of the Society were graduates, therefore, any imposition of graduation condition would exclude 98% members from election process---Court could not deprive 98 per cent members of their right to contest election for the sake of only 2% members under the garb of bye-laws---Law provided equal opportunities to every citizen and majority could do a particular thing in the manner of its choice without being hampered by minority---Whenever rights of an individual were infringed or usurped by any act of any authority, High Court could step into to safeguard said rights---Byelaws of the Society had infringed the valuable rights of majority thus prompting the High Court to exercise its constitutional jurisdiction---Writ could not be declined merely on technical grounds---Bye-laws of the Society provided for equal rights for all members but the bye-law in respect of a member eligible to vote had to be a. graduate was discriminatory and could not be sustained---Constitutional petition was accepted and bye-law imposing condition of holding a bachelor degree was declared null, void and contrary to fundamental rights of the members of the Society---Consequently, election of Management Committee held under the said bye-laws was also declared null and void while the Society was directed to hold election without any qualification condition.

PLD 1963 SC 382 and PLD 2009 SC 107 fol.

Mahmood A. Sheikh for Petitioner.

Waqas Qadeer Dar, Assistant Advocate-General for Respondents Nos. 1 and 2.

Waqar A. Sheikh, Advocate appearing on behalf of Cooperative Department.

Aamir Iqbal Basharat, Advocate Respondents Nos. 3 and 4.

Date of hearing: 31st May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2568 #

2010 Y L R 2568

[Lahore]

Before Khawaja Muhammad Sharif, C. J.

KASHIF MERAJ---Petitioner

Versus

JUDGE FAMILY COURT and another---Respondents

T.A. No. 185-C of 2010, decided on 3rd June, 2010.

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

----Ss. 5, Sched. & 25-A---Suit for recovery of dowry---Transfer of case---Application for---Suit for recovery of dowry filed by female in court at place was sought to be transferred in court at place `L'---Convenience of ladies should be seen first---Place where suit filed by the female was pending hardly was at a distance of 15 K.M. from the court at place case for transfer having been made out, transfer application was dismissed and suit filed by female would be heard and decided in court at place 'F'.

Raja Muhammad Munir for Petitioner.

Liaquat Ali Cheema, for Respondent.

Ch. Muhammad Hanif Khatana, Addl. Advocate-General with Shaukat Ali S.-I. for Respondent.

2010 Y L R 2601

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

MAQBOOL AHMAD---Appellant

Versus

MUHAMMAD AWAIS QARNI--- Respondent

Regular First Appeal No.287 of 2004, heard on 14th May, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2---Qanun-e-Shahadat (10 of 1984), Art.84---Suit for recovery of amount on the basis of pro note---Comparison of signatures---Powers of court---Scope---Plaintiff and scribe of the pro note and receipt pro note had fully proved execution of the document---High Court, in exercise of powers conferred under Art.84 of the Qanun-e-Shahadat, 1984 compared signatures on disputed pro note and receipt pro note with those on written statement, reply to surety bond, application for recalling order, affidavits, statement before the Trial Court, memorandum of appeal, civil miscellaneous applications and power of attorney and by comparison of all said signatures, being satisfied, that the disputed signatures of the defendant were reasonably same with the signatures on pro note and receipt pro note held that findings by the Trial Court were based upon the correct appreciation of evidence--Appeal was dismissed with costs throughout.

Tahir Mahmood Khokhar for Appellant.

Syed Afzaal Haider Naqvi for Respondent.

Date of hearing: 14th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2604 #

2010 Y L R 2604

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and Waqar Hassan Mir, J

FARHAT SHAMSHAD---Petitioner

Versus

COURT OF NATIONAL ACCOUNTABILITY BUREAU, LAHORE and another---Respondents

Writ Petition No.4858 of 2010, decided on 27th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Corruption Act (II of 1947), S.5(1)(C)(2)---National Accountability Ordinance (XVIII of 1999), S.16-A--- Constitution of Pakistan (1973), Art.199--- Constitutional petition---Criminal misconduct; dishonest and fraudulent misappropriation by public servant---Bail, refusal of---F.I.R. was registered against husband of petitioner/accused under S.5 of Prevention of Corruption Act, 1947 but case was transferred to Accountability Court---Petitioner sought post-arrest bail through constitutional petition alleging that National Accountability Bureau was coercing her to enter into plea bargain--Investigating Officer had obtained her thumb impressions and signatures forcibly---Petitioner pleaded that there was no use keeping her behind bars after all her bank accounts had been freezed---Validity---Husband of petitioner had prepared bogus bills fraudulently and embezzled four hundred million rupees out of which one hundred and twenty million rupees were deposited in her bank account---Petitioner actively purchased immovable properties in her name knowing fully well that her husband was amassing wealth through illegal means and she actively aided and abetted him by depositing ill-gotten money in her bank account and when she came to know that investigating agencies were probing allegations against her husband, she transferred money from her bank accounts, therefore, she was not merely a `benamidar' but an "associate" as defined by section 5(d) of National Accountability Ordinance, 1999---Petitioner was given an opportunity to enter into plea bargain without being asserted but she did not surrender ill-gotton wealth and was arrested only after she failed to return the money despite the fact that the National Accountability Officials had waived 15% incidental charges in order to facilitate her release but she used plea bargain as a ploy to manage her release and retain ill-gotton wealth which still remained unaccounted for---Having run and managed a bank account of more than four hundred million rupees, she could not be termed illiterate, therefore, High Court declined to grant bail to her---Constitutional petition was dismissed in circumstances.

Syed Afzaal Haider Naqvi for Petitioner.

Mian Muhammad Imran, Special Prosecutor for NAB for Respondent.

Nadeem Sajid, Investigating Officer, NAB.

2010 Y L R 2622

[Lahore]

Before Sardar Tariq Masood, J

KHUDA BAKHSH---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, D.G. KHAN and 3 others---Respondents

Writ Petition No. 6801 of 2009, decided on 5th October, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S.201---Police Order (22 of 2002), Art.155---Constitution of Pakistan (1973), Art.199---Constitutional petition---Causing disappearance of evidence---Justice of Peace directed S.H.O. concerned to register a case against petitioner under S.201, P.P.C. and Art.155(c) of Police Order, 2002---Offences against the petitioner were non-cognizable and instead of taking cognizance in a non-cognizable offence, only entries were to be made in the Roznamcha Waqiati and Investigating Officer could not investigate the case at all without the direction of the Magistrate---Justice of Peace fell in error in passing the impugned order---Impugned order was declared to be without lawful authority and of no legal effect.

Sheikh Abdul Samad for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2643 #

2010 Y L R 2643

[Lahore]

Before Ijaz Ahmed, J

PETROSIN GAS PAKISTAN (PVT.) LTD.---Petitioner

Versus

PAKISTAN STATE OIL and another---Respondents

Writ Petition No. 2321 of 2010, decided on 12th July, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petitioner and respondent entered into an agreement whereby the petitioner agreed to supply LPG and establish auto gas stations for the respondent---Respondent rescinded the agreement through a letter stating that the petitioner was involved in multiple litigations---Respondent maintained that the alleged agreement was, in fact, a licence which did not create any right in the favour of petitioner and that the respondent being a public limited company was governed by its own independent Board of Governors and was not amenable to constitutional jurisdiction----Petitioner contended that the respondent was a public limited company owned and controlled by the Federal Government, therefore, constitutional petition was maintainable---Validity---High Court was empowered to examine and strike off any order qua a concluded contract if such order was made in exercise of discretionary power with mala fide and in an arbitrary manner---Companies or institutions funded by the Federal Government or any provincial government for performing vital functions of providing amenities of life to citizens, represented the State, therefore, actions taken and orders passed by such companies or institutions were subject to judicial review of High Court under constitutional jurisdiction---Respondent company owned and controlled by the Federal Government was saddled with the vital function of exploiting and developing economic resources of the State was amenable to the constitutional jurisdiction--- State functionaries and institutions were bound to follow the rules of fairness and impartiality while awarding or rescinding contracts---Recitals of the agreement in question revealed that it was an agreement and not a licence---Petitioner had made huge investment towards performance of the contract--Involvement of petitioner in litigations was no justification for the respondent to rescind the agreement unilaterally--Litigation, being a mode of resolution of disputes, did not render a person incapable of performing a contract---Constitutional petition was allowed and letter rescinding the contract was held to be illegal and was set aside accordingly.

Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. and others 1998 CLC 1890; Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others 2009 CLD 937; Network Television Marketing Ltd. v. Government of Pakistan and another 2001 CLC 681; Messrs Wak Orient Power and Light Limited through Chief Executive of Water and Power through Secretary, Islamabad and 2 others 1998 CLC 1178; Pak Shaheen Containers Service (Pvt.) Ltd. v. Trustees of Port of Karachi and others PLD 2001 Kar. 30 and Messrs Maxim Advertising Company (Pvt.) Ltd. v. Province of Sindh and 3 others 2007 MLD 2010 rel.

M.A. Naser v. Chairman Pakistan Eastern Railways and others PLD 1965 SC 83; Printing Corporation of Pakistan v. Province of Sindh and others PLD 1990 SC 452; Messrs Pakistan Associated Construction Ltd. v. Asif H. Kazi and another 1986 SCMR 82; Zonal Manager U.B.L. and another v. Mst. Perveen Akhtar PLD 2007 SC 298 and Nizam Din and another v. Civil Aviation Authority and 2 others 1999 SCMR 467 ref.

Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 fol.

Miangul Hassan Aurangzeb and Hassan Ali Raza for Petitioner.

Raja Zaheer-ud-Din Babar for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2653 #

2010 Y L R 2653

[Lahore]

Before Muhammad Ashraf Bhatti and Saghir Ahmad, JJ

SHAHZAD alias SHADA and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 78/BWP, 121/BWP, 83/BWP of 2004, Criminal Revision

No. 50/BWP of 2004 in Murder Reference No.19/BWP of 2004, decided on 19th November, 2008.

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

----Ss. 302(b)/324/148---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Eye-witnesses had furnished ocular account in detail and in a frank and honest manner without any dishonest improvement on their part---High Court relied upon said evidence and brushed aside the defence plea taken by accused persons---Recovery of weapon of offence i.e. 'chhuries', both stained with human blood, as per report of Serologist had been established on record---Nothing was available on record to show that same were sham or planted nor the veracity of the witnesses attesting such recoveries could be shattered through cross-examination conducted at length---Recovery of `chhuries' proved to be genuine and properly effected in accordance with law from accused persons on their pointation-Medical evidence, coupled with the evidence of recoveries, had fully corroborated the ocular account brought on record by the complainant and prosecution witness---Prosecution, in circumstances had been successful to set up a case beyond reasonable doubt against four accused persons---Causing of injuries on the part of accused persons on deceased was nothing more than the result of sudden flare up and provocative act of the complainant party---Conviction of two accused persons under S.302(b), P.P.C. was maintained, however their ' death sentence was converted into imprisonment for life---Conviction and sentence of other two accused persons who were awarded punishment of one and two years respectively, were maintained.

(b) Criminal trial---

----Motive---Motive was always not legally necessary to be proved, if set up or even if the prosecution had failed to prove the same, no adverse inference had to be drawn.

----Ss.302/324/337-A(i)/337-F(i)-Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd and attempt to commit qatl-e-amd---Appeal against acquittal---Out of six accused persons two were acquitted by the Trial Court and complainant party had filed appeal against their acquittal---Said two acquitted co-accused had got presumption of innocence and to set aside their acquittal, very strong evidence was required, which was lacking in the case, because they did not play any active role in the occurrence; nor they caused any injury to the deceased or the injured; and even no motive was attributed to them---Accused had rightly been acquitted by the Trial Court---Appeal against acquittal was dismissed in circumstances.

Sardar Ahmad Khan, Hafiz Shahid Nadeem Kahlon and Muhammad Sharif Bhatti for Appellant in Criminal Appeal No.78 of 2004 and Criminal Appeal No.83 of 2004).

Mirza Mukhtar Baig, Deputy Prosecutor-General for the State.

Nemo For Complainant/Appellant in Criminal Appeal No. 121 of 2004 and Criminal Revision No. 50 of 2004).

Date of hearing: 19th November, 2008.

YLR 2010 LAHORE HIGH COURT LAHORE 2664 #

2010 Y L R 2664

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ABDUL QADEER KHAN and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6990/B of 2008, decided on 17th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.447, 511, 337-H(ii), 379, 148 & 149---Criminal trespass, attempt to commit offences, hurt by rash or negligent act and theft---Bail, refusal of---Accused was on bail before arrest---Earlier, the Trial Court had refused bail to accused for non-prosecution and later on bail application filed by accused was dismissed by the High Court on account of non-prosecution-Said two orders had shown that accused had been misusing extraordinary concession of pre-arrest bail---Even otherwise, accused were named in F.I.R. with a specific role---Prima facie, no element of mala fide was available in the case---When first bail application was dismissed by the Trial Court, accused despite surrendering themselves, had been playing hide and seek by filing application for pre-arrest bail and then not appearing--- Bail application was dismissed, in circumstances.

Mian Muhammad Nawaz for Petitioners.

Hammad Akbar Walana for the Complainant.

Ishaque Masih Naz, Deputy Prosecutor-General Punjab with Shaukat, S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 2667 #

2010 Y L R 2667

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

SHAFQAT NAWAZ and 2 others---Petitioners

Versus

ADMINISTRATOR, MUSLIM AUQAF DEPARTMENT, LAHORE and 3 other's---Respondents

Civil Revision No. 536 of 2008, decided on 13th July, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.11---Suit for declaration with application for temporary injunction---Res judicata, principle of---Applicability---Plaintiff contended that the suit property was waqf and the same could not be leased for a petrol pump, which if constructed, would result in irreparable loss to the plaintiff who, therefore, was entitled to the grant of temporary injunction---Respondent contended that an earlier suit by the plaintiff on same cause of action had been dismissed so the present suit was not maintainable under S.11, C.P.C.---Validity-Earlier suit pertaining to the same subject-matter and based on the same cause of action filed by the plaintiff having been adjudicated and dismissed by all competent courts upto the Supreme Court had attained finality---Plaintiff's application for temporary injunction was without merits, rather it was the defendant who was likely to suffer irreparable loss in case the Regulatory Authority cancelled his licence for construction of the petrol pump--- Balance of inconvenience, therefore, lay in favour of the defendant as he had obtained electricity connection and permission from the Highway department---Orders of the courts below suffered from no illegality or irregularity--Revision was dismissed in circumstances.

Naeem Ahmad v. Chief Administrator, Auqaf, Aiwan-e-Auqaf, Lahore and 2 others 2004 CLC 599; Messrs Noor Shah Filling Station (Regd.) through Manager (Administration) v. Auqaf Department through Secretary/Chief Administrator Auqaf, Punjab and 4 others 2009 CLC 1148; Malik Aslam Pervez, Advocate v. Province of Punjab through Secretary, Auqaf Department, Lahore and 15 others 1994 MLD 1986; Pir Baksh and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 and Ghulam Ahmad Chaudhry v. Akbar Hussain through legal heirs and others PLD 2002 SC 615 ref.

Malik Noor Muhammad Awan for Petitioners.

Farooq Qureshi Chishti for Respondent No.4.

Zaheer Ahmad Sagheer for Respondent No.2.

Muhammad Azeem Malik, Additional A.G. for Respondents Nos. 1 and 3.

YLR 2010 LAHORE HIGH COURT LAHORE 2673 #

2010 Y L R 2673

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

IMRAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3110/B of 2009, decided on 15th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd and attempt to qatl-e-amd---Bail, grant of---Injury attributed to accused was on the left chin of the body of deceased, which was not a vital part of the body---Said injury had also been declared simple by the doctor---Accused was behind the bars for the last more than two years and there was no material progress of the trial---Accused was admitted to bail, in circumstances.

Ghulam Rasool v. The State PLD 1981 SC 234 ref.

Sardar Mehboob for Petitioner.

Shahid Iqbal, DDPP for the State along with Khizar Hayat, S.-I. with record.

Naveed Rana for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2676 #

2010 Y L R 2676

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SAFDAR---Petitioner

Versus

D.C.O. and others---Respondents

Writ Petition No. 6008 of 2009, decided on 18th May, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Lease and lessee---Petitioner contended that respondent/Tehsil Municipal Administration was trying to dispossess him from the suit-land leased out to him by Evacuee Property Trust Board by constructing a park on said land---Validity---Land was leased out to petitioner by Evacuee Property Trust Board in violation of law---Suit-land being ﻏﻴﺮﻤﻤﮑﻦﮁﻬﭘﮍ could not be used for any purpose other than ﺮﻔﺎﻩﻋﺎﻢ---Land reserved for, ﻤﻔﺎﺪﻋﺎﻤﻪ could only be used for welfare purposes of public at large---Evacuee Property Trust Board was restrained by High Court from leasing out suit land to petitioner again or to any third party and directed to utilize the same only for the welfare and benefit of public at large, such as construction of a park, library, school, hospital or for any other similar purpose---Constitutional petition being meritless, was dismissed.

Ali Ahmad and others v. Municipal Corporation, Talagang and others 2001 SCMR 585 fol.

Mian Muhammad Naseem for Petitioner.

Rana Shamshad Khan, A.A.-G. Mrs. Farah Sharif Khosa for Respondent No.6.

YLR 2010 LAHORE HIGH COURT LAHORE 2678 #

2010 Y L R 2678

[Lahore]

Before Khawaja Muhammad Sharif, C.J.

SARFRAZ---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No. 1086/B of 2010, decided on 10th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of---Accused made extra judicial confession---Recovery was effected from accused and crime empties already taken into possession were sent to Fire-arm Expert for report---Trial had started and main witness of the prosecution had been examined---Report of Fire-arm Expert was against the accused---No case for bail having been made out, bail petition was dismissed.

Muhammad Wasil Khan Sherwani for Petitioner.

Rana Bakhtiar Ali, D.P.-G. along with Ghulam Raza, S.-I.

Muhammad Yaseen Hatif for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2681 #

2010 Y L R 2681

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ABDUL REHMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3766/B of 2009, decided on 16th October, 2009.

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

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4---Manufacture and possession of intoxicant---Bail, grant of---Accused was allegedly found manufacturing liquor in his house and being in possession of 20 litres of liquor---Place of occurrence being not a public place, police could not conduct raid there without prior permission of Magistrate---Offence under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, was punishable with maximum sentence of five years' R.I., whereas Article 4 thereof was a bailable offence---Case of accused, therefore, did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such cases was a rule and its refusal an exception---Accused was admitted to bail in circumstances.

1998 PCr.LJ 591; 2002 PCr.LJ 1133; Tariq Bashir and others v. The State PLD 1995 SC 34 and Imtiaz Ahmad and another v. The State PLD 1997 SC 545 ref.

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

----Ss.497/498---Bail in cases not hit by prohibitory clause---Principle---Grant of bail in cases not falling within the domain of the prohibitory clause of S.497(1), Cr.P.C. is a rule and refusal of the same is an exception.

Tariq Bashir and others v. The State PLD 1995 SC 34 and Imtiaz Ahmad and another v. The State PLD 1997 SC 545 ref.

Malik Javed Akhtar Wains and Muhammad Imran Shehzad Bhatti for Petitioner.

Shahid Iqbal, D.P.-G. for the State with Zafar Khan, S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2685 #

2010 Y L R 2685

[Lahore]

Before Khawaja Muhammad Sahrif, C.J.

ABDUL GHAFFAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 14421/B of 2009, decided on 19th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F--Dishonestly issuing a cheque---Bail, grant of--- Further inquiry---Accused remained on physical remand for 12 days and only cheque was recovered from him which allegedly had been bounced---Separate case under S.489-F, P.P.C. could be registered against accused by the complainant---Counsel for accused had stated that other cases against the accused had been discharged---If the statement of counsel for accused was found to be false, complainant could move for cancellation of bail---No useful purpose could be served to detain accused in jail---Case of accused being of further inquiry falling under sub-clause (2) of S.497, Cr.P.C.---Accused was allowed bail, in circumstances.

Zafar Iqbal Bhatti for Petitioner.

Adeel Aqil Mirza, D.P.-G. along with Ali Sher, S.-I.

Muhammad Yasin Hatif for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2691 #

2010 Y L R 2691

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD MUNIR---Petitioner

Versus

KANEEZ FATIMA and another---Respondents

Writ Petition No. 10032 of 2010, decided on 14th May, 2010.

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

----S. 5, Schd. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability-- Suit for recovery of maintenance, dower amount and gold ornaments---Trial Court decreed the suit for recovery of maintenance and dower amount but dismissed the claim of gold ornaments---petitioner had failed to file appeal within prescribed period of limitation and challenged judgment of Trial Court through constitutional petition---Validity---Appeal was a statutory right wherefor specific provision had been made in the statute, statutory right could only be exercised in accordance with specific provisions---Appeal against judgment of Family Court would lie to District Judge under S.14 of West Pakistan Family Courts Act, 1964---Remedy of appeal being available, constitutional petition could not be allowed as remedy---Constitutional petition was not a substitute of appeal, petitioner remained indolent for a year and half and did not file appeal---Equity helped the vigilant and not the indolent---Constitutional petition being without merit was dismissed in limine.

Syed Mazhar Hussain Shah for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2695 #

2010 Y L R 2695

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. NASIM BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4437-B of 2009, decided on 12th January, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.496-A/380---Enticing a woman with criminal intent and theft in dwelling house---Pre-arrest bail, grant of---Co-accused had been allowed bail---Nothing was to be recovered from the accused, who being a woman her case fell under second proviso of S.497. Cr. P. C. ---Accused had obtained an ex parte decree of dissolution of marriage against her husband, who was co-accused in the case---Complainant had made his best efforts to involve maximum persons in the case---Abductees in their statements under S.164, Cr. P. C. had not supported the prosecution story---F.I.R. got registered by co-accused, father of the abductees, having been declared false, had established the mala fides of the complainant---Ad interim pre-arrest bail allowed to accused was confirmed in circumstances.

Mian Muhammad Shabbir for Petitioner.

Ch. Muhammad Iqbal for the Complainant.

Shahid Iqbal, DDPP with Noor Muhammad, S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 2699 #

2010 Y L R 2699

[Lahore]

Before Ch. Muhammad Tariq, J

PROVINCE OF PUNJAB through District Deputy Collector, Toba Tek Singh and

another---Petitioners

Versus

ABDUL HANIF and 3 others---Respondents

Civil Revision No. 20 of 2002, heard on 19th April, 2010.

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

----S.36---Specific Relief Act (1 of 1877), S.42---Transfer of Property Act (IV of 1882), S.52---Allotment of land under Grow More Food Scheme---Suit for declaration---Bar of jurisdiction of civil Court---Scope---Plaintiff filed suit for declaration on the ground that he was bona fide purchaser of the disputed land from the vendees who were allotted land under "Grow More Food Scheme" by the Government of the Punjab and were cultivating the same--- Defendants contested suit on the ground of lack of jurisdiction by Trial Court and further that earlier allotment had been procured through deceitful manner and late submission of application---Trial Court dismissed suit of the plaintiff---Appellate Court, on appeal, allowed the same and reversed the findings of the Trial Court---Defendants asserted that the applicant who was allotted land first was minor, of the age of five years in the year, 1958 and was not eligible for the allotment of land as he was not cultivating or in possession of the same---Defendants further contended that thumb impression affixed on the applications for allotment of land were also forged---Validity---Last date for submission of application for the alternate land under "Grow More Food Scheme" was 31-7-1983 while the applicant submitted application on 22-7-1973---Disputed land was allotted in the year, 1990---Trial Court would have jurisdiction to interfere where order passed under the Colonization of Government Lands (Punjab) Act, 1912, was void or without jurisdiction or mala fide or in excess of jurisdiction or otherwise not in accordance with law or based on fraud---Bar under S.36 of the Colonization of Government Lands (Punjab) Act, 1912 would be available only where authorities acted within four corners of their jurisdiction and not otherwise---Defendants could not point out about the bar that under law, land for "Grow More Food Scheme" could not be allotted to a minor and about the forged application---Revision petition was dismissed by High Court.

Province of Punjab through Collector District Khushab, Jauharabad and others v. Haji Yaqoob Khan and others 2007 SCMR 554 rel.

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

---Preamble--- Government land---Cultivation of--- Guardian--- Bar in the Act---Effect---There was no bar in the Colonization Government Lands (Punjab) Act, 1912 that land could not be cultivated through guardian or other sources.?

----S.10---Government land---Allotment---Rate of the disputed land---Not proper---Plea of---Effect---Record revealed that rate of the disputed land per acre was fixed at Rs.4240 in the year, 1973, which was assessed by the Tehsildar with the aid of field staff and this rate was never challenged before---No cogent evidence had been produced in support of contention that in the year, 1973, the average rate of disputed land was higher than the assessed rate---Civil revision was dismissed by High Court.?

Rana Shamshad Khan, A.-A.G. for Petitioners.

Ch. Muhammad Jahanzeb Wahla for Respondents.

Date of hearing: 19th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2707 #

2010 Y L R 2707

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD ASHRAF and 3 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4908-B of 2009, decided on 1st February, 2010.

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

----S.497---Penal Code (XLV of 1860), S. 337-A(i)(ii)/337-F(i)(v)/337-L(ii)/148/149---Hurts of different types---Bail, grant of---Suppression of the injuries of accused by the complainant in the F.I.R. had made their case of further inquiry---None of the offences fell within the range of the prohibition contained in S.997(1), Cr. P. C. ---Challan had been submitted in Trial Court---Accused were no more required for further investigation and they could not be kept behind the bars for an indefinite period as punishment before the trial---Bail was allowed to accused in circumstances.

Ghulam Muhammad and another v. The State 1977 PCr.LJ 161; Inayat Baig v. The State 1986 PCr.LJ 2526; Muhammad v. The State 1986 PCr.LJ 205; Ali Akbar Shah v. Banaras and others 1990 SCMR 1097; Azmat v. The State 1981 PCr.LJ 1158; Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----S.497---Bail in non-bailable offences not falling under the prohibitory clause of S.497, Cr. P. C. ---Principles---Grant of bail in non-bailable offences, not hit by the prohibitory clause of S.497, Cr. P. C., is a rule and refusal an exception---Mistaken relief of bail granted to an accused can be repaired by his ultimate conviction and incarceration, but the wrong of unjustified incarceration of an innocent person cannot be satisfactorily rectified, even if he is acquitted.

Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Athar Aziz Chaudhry for Petitioners.

Malik Kashif Salim Arfaa, Law Officer for the State with Asghar Ali, S.-I. with record.

Ch. Muhammad Rafique Zafar Amratsari and Raja Sultan Khuram-uz-Zaman for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2711 #

2010 Y L R 2711

[Lahore]

Before Ch. Muhammad Tariq, J

AMANAT MASIH---Petitioner

Versus

Mst. NAJMA BIBI and 2 others---Respondents

Writ Petition No. 14770 of 2009 and C.M. No. 1858 of 2010, decided on 28th April, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Suit for recovery of maintenance---Jurisdiction of Family Court---Suit filed by plaintiff/wife for recovery of maintenance was decreed by the Family Court which fixed Rs.2000 per month as maintenance on account of past maintenance and also future maintenance at the same rate---Appeal filed by the defendant against the judgment of the Family Court was dismissed by the Appellate Court---Contention of counsel for the defendant was that since the defendant was Christian by religion, so Family Court had no jurisdiction to pass an order against the defendant---Validity---Question of jurisdiction had never been raised by the defendant---Defendant had not raised any such ground before the Appellate Court while filing appeal and even the defendant had failed to incorporate that ground in the constitutional petition---Defendant could not go beyond his pleadings---All the matters would be decided within four corners of the pleadings---Question of jurisdiction could be raised at the earliest, but that had not been done so in the present case---Even otherwise the provisions of West Pakistan Family Courts Act, 1964 would apply in the present case--Family Court had extensive jurisdiction to entertain matter pertaining to recovery of maintenance.

PLD 1978 Kar.336 ref.

Ch. Samed Ahmed Wains for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2716 #

2010 Y L R 2716

[Lahore]

Before Khawaja Muhammad Sharif, C.J.

INTIZAR HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 15957/B of 2009, decided on 31st December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.382/411--- Theft and dishonestly receiving stolen property---Bail, grant of---Further inquiry---Accused along with his two real brothers and three others was involved in F.I.R. which was recorded after delay of three months---Complainant had let-off three co-accused---Real brother of accused was also allowed bail---Accused was behind the bars for the last three months---Amount Rs.20, 000 was recovered from the accused while a cheque was recovered from the co-accused which was bounced---Case of accused was fully covered by subsection (2) of S.497, Cr.P.C. and required further probe into his guilt---Accused was released on bail, in circumstances.

Zafar Iqbal Bhatti for Petitioner.

Rana Bakhtiar Ali, Deputy Prosecutor-General with Ali Sher, S.-I.

Muhammad Yasin Hatif for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2717 #

2010 Y L R 2717

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

Mst. FARZANA alias SABA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 229/J and 233/J of 2005 in Murder Reference No. 701 of 2005, decided on 6th May, 2010.

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

----S.302(b)/34--- Qatl-e-amd--- Appreciation of evidence---No direct evidence against the accused had come on record---Complainant had not seen the occurrence--Prosecution witness who had claimed to have seen the accused,coming out of the house of the female accused in an embarrassing condition, could not be believed being not a resident of the locality in which the house of occurrence was situated---All other pieces of evidence were also not of incriminatory nature---Nothing on record had connected the accused with the commission of the crime---Alleged abscondence of accused for twenty days was not proved, which even otherwise could not be used against them for conviction in the absence of trustworthy ocular evidence---Accused were acquitted on benefit of doubt in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S.302(6)/34---Qatl-e-amd---Appreciation of evidence---Abscondence---Effect---Abscondence of accused alone is not a proof of his guilt---Abscondence may be a relevant fact, but it cannot be used for entailing conviction on a capital charge alone, when ocular account is not trustworthy and is not corroborated by any other source.

----S.302(b)/34---Qatl-e-amd--- Appreciation of evidence---Benefit of doubt, extension of---Principle---Accused is entitled to benefit of doubt as a matter of right and not as a matter of grace arising in the prosecution story.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Ch. Muhammad Siddique Virk for Appellant.

Ch. Ghulam Mustafa Bandesha for Appellants (in Criminal Appeal No. 233/J of 2005).

Ch. Muhammad Aslam Sandhu, Additional Prosecutor-General Punjab and Malik Abdul Salam, Deputy Prosecutor-General Punjab for the State.

Ch. Shahid Tabassam for the Complainant.

Dates of hearing: 5th and 6th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2729 #

2010 Y L R 2729

[Lahore]

Before Ch. Muhammad Tariq, J

Mst. KHURSHID BIBI and others---Petitioners

Versus

LIAQAT ALI and others---Respondents

Civil Revision No. 1114 of 2005, decided on 20th April, 2010.

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

----S.161--- Specific Relief Act (1 of 1877), S.42---Suit for declaration---Jurisdiction of civil court---Mutation of sale of suit land sanctioned in favour of predecessor-in-interest of plaintiff was challenged by the predecessor-in-interest of the defendants in appeal twenty four Years after sanction of mutation---Under S. 161 of West Pakistan Land Revenue Act, 1967, appeal could be preferred to the Collector (Revenue) within a period of thirty days from the date of original order and appeal against the order of Collector to the Executive District Officer could be filed within a period of sixty days from the date of announcement of order---Revenue Authorities could not exercise their power in appeal after period prescribed under S.161 of West Pakistan Land Revenue Act, 1967---Predecessor-in-interest of the defendants had never challenged the mutation of sale in favour of predecessor-in-interest of the plaintiffs till he remained alive---Proceedings before the Revenue Officer or before the Revenue Court was of summary nature and whenever there was complicated question of law or fact involved the exclusive jurisdiction vested in the civil court to decide the same---Revenue Authorities had exceeded from their jurisdiction and had erred while interfering in the complicated question of title---Long standing entries qua the allegation of fraud should be dealt with by the civil court, because Revenue Authorities had no jurisdiction to interfere in such like matters---Mutation being summary proceedings, Revenue Authorities could not clinch complicated matter in summary proceedings---Predecessor-in-interest of the defendants had failed to produce any corroborative evidence in support of her version; even she herself did not appear as a witness---Impugned judgment passed by Appellate Court was in accordance with law and facts---In absence of any illegality or infirmity in the impugned judgment of the Appellate Court, revision petition against said judgment was devoid of merit---No interference was called for, revision petition was dismissed.

1990 CLC 1968 and 1994 MLD 2254 ref.

Liaqat Ali Bhatti and Muhammad Ghani for Petitioners.

Salman Afzal Malik for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2732 #

2010 Y L R 2732

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

TAHIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1555 and Murder Reference No.916 of 2004, heard on 20th May, 2010.

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

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Possibility of deliberations and consultations prior to the registration of the case could not be ruled out---Going of the deceased after having received three "Chhurri" injuries on his person to a distance of 476 feet which being chased by three persons, was not probable---No valid reason having been assigned by the eye-witnesses for their presence at the venue of crime, their presence thereat was doubtful---Complainant, father of the deceased, after the occurrence did not make an attempt to save the life of his son and he remained with the deceased for about two hours without any explanation, such conduct of the complainant was not understandable---Recovery of "Chhurri" at the instance of accused and positive report of Serologist was not reliable, as it was an ordinary "Chhurri" mostly used in the kitchen and easily available in the market, it was rusted and not blood stained and had been recovered from a place not owned by the accused---Complainant despite being a retired police official having remained associated with the court as Naib Court, did not lodge the F.I.R. immediately- after the occurrence, particularly when his brother was a police Inspector and his conduct had made the prosecution story doubtful---Accused were extended the benefit of doubt and acquitted in circumstances.

Irshad Ahmad v. The State 2008 SCMR 72; Liaqat Ali v. The State 2008 SCMR 95; Pathan v. The State 2008 SCMR 123 and Allah Bachaya and another v. The State PLD 2008 SC 349 ref.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S. 302(6)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principle---Prosecution is duty bound to prove its case beyond any doubt, but when any doubt arises in the evidence on record, the accused is entitled to its benefit as a matter of right and not as a matter of grace.

Muhammad Akram v. The State 2009 SCMR 230 ref.

M.S. Shad and Muhammad Aqeel Wahid Chaudhry for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General Punjab for the State.

Nemo for the Complainant

Dates of hearing: 19th and 20th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2743 #

2010 Y L R 2743

[Lahore]

Before Ch. Muhammad Tariq, J

SULTAN AHMAD---Petitioner

Versus

ALLAH DITTA and another---Respondent

Writ Petition No. 6498 of 2009, decided on 20th April, 2010.

West Pakistan Land Revenue Rules, 1968---

----R.19---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Appointment of Lamberdar---Petitioner who was son of deceased Lamberdar had challenged appointment of respondent as Lamberdar claiming that he being son of deceased Lamberdar, should have been appointed under the condition of hereditary---Validity---Claim of the petitioner had no force because the rule of primogeniture was un-Islamic and against the Injunctions of Islam---Concurrent findings of four courts below against the petitioner and counsel for the petitioner having failed to point out any illegality or jurisdictional error in the impugned order, petitioner had completely failed to show any genuine grievance to make out a case for interference by the High Court in its constitutional jurisdiction.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 ref.

Syed Meeno Chehr for Petitioner.

Ch. Shahid Tabbassam for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2747 #

2010 Y L R 2747

[Lahore]

Before Ijaz Ahmad Chaudhry and Sardar Tariq Masood, JJ

ABDUL LATIF---Appellant

Versus

THE STATE ---Respondent

Criminal Appeal No.456 of 2005 and Murder Reference No.374 of 2005, heard on 22nd April, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Prompt reporting of the matter to the police had ousted the chance of fabrication or consultation---Eye-witnesses being the inmates of the house of occurrence were natural witnesses and their presence at the scene of crime could not be doubted---Ocular testimony was straightforward, consistent and confidence inspiring---Eye-witnesses were also related to the accused and they had no reason to depose falsely against him--Bringing of the "Chhuri" with him had indicated the intention and premeditation of accused to murder the deceased---Medical evidence had corroborated ocular account---Recovery of "Chhuri", found to have been stained with human blood, at the instance of accused had further supported the ocular version---In the case of single accused substitution was a rare phenomenon, especially when the complainant party had no ill will against the accused and the accused was also related to the complainant---Age of accused being 17 years at the time of occurrence was not substantiated on record---Accused had brutally murdered the 16/17 years old girl by giving ten "Chhuri" blows on different parts of her body and he deserved no leniency qua the quantum of sentence---Conviction and sentence of death of accused were affirmed in circumstances.

Khalid Ibn-i-Aziz for Appellant.

Mian Bashir Ahmad Bhatti, Addl. P.-G. for the State.

Nemo for the Complainant.

Date of hearing: 22nd April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2759 #

2010 Y L R 2759

[Lahore]

Before Ch. Muhammad Tariq, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

MUHAMMAD IQBAL and others---Respondents

Civil Revision No. 446 of 2003, decided on 17th June, 2010.

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

----Ss.8 & 42---Suit for possession by plaintiff having imperfect title in suit property--- Maintainability--- Such suit without seeking declaration would not be maintainable---Principles.

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

----S.8---Limitation Act (IX of 1908), S.3 & Art. 144---Suit for possession---Defendant was in possession of suit land since year 1962--- Filing of suit on 2-7-1989 i.e. after 26 years---Validity---Period of limitation prescribed for such suit was 12 years, thus, same was time-barred.

----S.115---Limitation Act (IX of 1908), S.5---Revision petition---Delay of 117 days, condonation of---Impugned order was passed on 2-2-2000---Petitioner applied on 1-4-2002 for certified copy of impugned order, which was prepared on 9-4-2002---Revision filed on 27-4-2002 was returned to petitioner for removing objection within 3 days---Petitioner refiled revision on 8-6-2002--- Validity---Provisions of S.5 of Limitation Act, 1908 did not apply to revision petition---Delay could not be condoned, if revision was time-barred---Period for filing revision was 90 days, but same had been filed with delay of 117 days---Revision was dismissed in circumstances.

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

----S.115---Limitation Act (IX of 1908), S.5---Time-barred revision petition---Delay, condonation of ---Scope---Provisions of S.5 of Limitation Act, 1908 did not apply to revision---Delay in such case could not be condoned.

Shahid Mehmood Abbasi, Assistant Advocate-General for Petitioners.

Hussain Ali Safdar for Respondent No.3.

Gulzar Hussain Shah, Incharge Budget and Accounts Officer/Litigation, C/o DEO(SE) Male Chakwal.

YLR 2010 LAHORE HIGH COURT LAHORE 2764 #

2010 Y L R 2764

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD MANSHA KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4686/B of 2010, decided on 19th May, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Prearrest bail, refusal of---Accused had given a cheque of Rs.3,75,000 to the complainant in the backdrop of a dispute over a property deal, which had been dishonoured by the Bank on presentation for lack of funds---Prima facie, the offence committed by accused fell within the ambit of S.489-F, P.P.C.---No malice or ulterior motive on the part of the complainant or the police was hinted at on behalf of accused, which was a condition precedent for seeking extraordinary concession of bail before arrest---Apparently, no reasons existed to believe that accused had not committed a non bailable offence---Pre-arrest bail was refused to accused in circumstances.

Iftikhar Shahid for Petitioner.

Muhammad Saeed Tahir Sulehri for the Complainant.

Sahibzada M.A. Amin, Additional Prosecutor-General and Mahboob, A.S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 2772 #

2010 Y L R 2772

[Lahore]

Before Shahid Hameed Dar, J

MEHMOOD ALI---Petitioner

Versus

KHADIM HUSSAIN alias BAGH ALI and 3 others---Respondents

Writ Petition No. 11268 of 2010, decided on 28th May, 2010.

Penal Code (XLV of 1860)---

----Ss.324/148/149--- Constitution of Pakistan (1973), Art.199---Attempt to commit qatl-e-amd, rioting armed with deadly weapons---Constitutional petition---Request of petitioner for re-examination of the injuries of the respondent by a Special Medical Board had been turned down by the Courts below---Validity---None of the injuries of the respondent as described in his medico-legal report could be said to be a fabricated injury or caused with a friendly hand---Medico-legal report of an injured person could exhibit the number of injuries, seat of injuries, duration of injuries, the weapon used for infliction of injuries etc., but it could not disclose the identity of the author of such injuries---Contention that the respondent could not have been authored an injury on non-vital part of his body and his medical re-examination was essential, was hardly entertainable, as the same related to deeper appreciation of evidence, which could only be done by Trial Court during trial---Order passed by Magistrate refusing the prayer of petitioner being an administrative order was not prone to revision under section 435, Cr. P. C., but still the Sessions Court entertained the revision petition against the said order and decided the same on merits, which could have been dismissed only on the ground of being not maintainable under the law---Constitutional petition was dismissed in limine in circumstances.

Shahzada Muhammad Zeeshan Mirza for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2780 #

2010 Y L R 2780

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Manzoor Ahmad Malik, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No. 94-J of 2006 and Murder Reference No. 312 of 2005, heard on 15th June, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Prosecution witness/complainant, though closely related to the deceased yet she had no enmity or strong motive to implicate the accused in the case---Complainant being real mother of the deceased was not likely to substitute the real culprit with an innocent person---Complainant had reasonably explained her presence at the place of the occurrence while defence failed to discredit her testimony---Testimonies of other prosecution witnesses also remained consistent on all material particulars of the case---Presence of witnesses at the scene was reasonably proved---No question of false identity could arise when the occurrence had taken place in broad-daylight and parties were known to each other---Ocular account was fully supported by medical evidence---Prosecution could not prove the motive of the quarrel of the deceased with the accused three days before the occurrence through independent witness---Recovery of the gun at the instance of the accused and report of the Forensic Science Laboratory was of no avail to the prosecution because no crime empty was recovered from the spot to connect the gun with the commission of the offence---Incriminating material on record was sufficient to conclude that the accused had done the deceased to death which was sufficient to maintain his conviction for the murder of the deceased, however, extenuating circumstances namely, only single shot fired by the accused; insufficient evidence to establish the motive of the accused and no previous enmity between the parties, suggested that the case was not fit for capital sentence---Court, in circumstances had discretion to award punishment of Tazir to an accused of qatl-e-amd---High Court maintained the conviction of the accused under S.302(b), P.P.C. but converted the death sentence into imprisonment for life with benefit of S. 382-B, Cr.P.C.-Appeal was partly allowed---Murder Reference was answered in the negative and sentence of death was not confirmed.

Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111 fol.

Maqbool Ahmad Qureshi, Defence Counsel at State Expenses.

Syed Faisal Raza Bokhari, D.P.-G. for the State.

Date of hearing: 15th June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2790 #

2010 Y L R 2790

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ZIA-UR-REHMAN and another---Petitioners

Versus

HAFEEZ-UR-REHMAN and another---Respondents

Civil Revision No.235 of 2010 decided on 29th March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Plaintiffs' application for temporary injunction was dismissed by both the Trial and the Appellate Court---Plaintiffs contended that they were owners of the suit-land in respect whereof they had executed general power of attorney in favour of defendant for the sale of said land while plaintiffs were living in England but defendant illegally gifted said land to his brother---Validity---Trial Court rightly arrived at the conclusion that plaintiffs would not face any inconvenience and irreparable loss as they themselves had given the general power of attorney to defendant to deal with the suit land---Appellate Court was right in dismissing appeal as plaintiffs had failed to establish their possession, for admittedly, they were living in England---High Court could not interfere in concurrent findings with regard to facts and law in revisional jurisdiction unless there was jurisdictional defect in the orders passed by courts below---Revision was, therefore, dismissed.

Muhammad Khalid Farooq for Petitioners.

M.M. Waheed Rana for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2796 #

2010 Y L R 2796

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD SARWAR and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 774 and 775 of 2007, heard on 13th April, 2010.

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

----S.417---Appeal against acquittal---Appraisal of evidence--- Principle---Accused after his acquittal of the charge enjoys double presumption of innocence and Courts seized with the acquittal appeal are obliged to be very careful in dislodging such presumption.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 ref.

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

---S. 302(b)---Qatl-e-amd---Appreciation of evidence---Principle---Sifting of grain out of chaff---Where ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing the same trial, Court must search for independent corroboration on material particulars.

Iftikhar Hussain and another v. The State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Zaiaullah v. State 1993 SCMR 155; Ghulam Sikandar v. Mamraiz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647 and Irshad Ahmed and others v. The State and others PLD 1996 SC 138 and Ahmad Khan v. The State 1990 SCMR 803 ref.

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Ten co-accused had been acquitted in the case and no independent corroboration was available on record to convict the present accused on the basis of same set of witnesses---No witness had deposed that he had taken the gun recovered from the accused and the crime empties to the Forensic Science Laboratory---Said articles had been sent to the Laboratory after the arrest of the accused---No reliance, therefore, could be placed on the report of the Forensic Science Laboratory, especially when the same was not put to the accused in his statement under S.342, Cr.P.C.-Co-accused charged with the identical role as assigned to accused had been acquitted on benefit of doubt by Trial Court---Accused was extended benefit of doubt and acquitted in circumstances.

Iftikhar Hussain and another v. The State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Zaiaullah v. State 1993 SCMR 155; Ghulam Sikandar v. Mamraiz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647 and Irshad Ahmed and others v. The State others PLD 1996 SC 138 and Ahmad Khan v. The State 1990 SCMR 803 ref.

Nemo for Appellants (in Criminal Appeal No. 774 of 2007).

Ch. Muhammad Aslam for Appellants (in Criminal Appeal No. 775 of 2007).

Malik Abdul Salam, Deputy Prosecutor-General for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 2805 #

2010 Y L R 2805

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ELAHI BAKHSH---Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), D.G.KHAN and another---Respondents

Writ Petition No.1899 of 2010 decided on 8th March, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction--Scope-Contractual rights and obligations, enforcement of---Petitioner had donated land to Provincial Government for construction of Government School with the condition that when education would commence in the school, the department would accommodate the children of the petitioner's family as class-IV employees and an Iqrarnama was executed between the parties and same was signed by District Education Officer---Petitioner had sought implementation of said agreement---Said Iqrarnama appeared to be invalid and unlawful as no Government Official could strike such a deal for recruitment of employees in the Government Department; secondly, if there was violation of any terms and conditions of agreement, the proper remedy for the petitioner was to file a civil suit before the court of competent jurisdiction, because for the enforcement of contractual liability the appropriate forum was the civil court---Contractual rights and obligations had to be enforced through courts of ordinary jurisdiction---High Court, in exercise of its constitutional jurisdiction would be loath to interfere in matters arising out of contractual obligations and could not exercise powers under Art.199 of the Constitution for the enforcement of any alleged undertaking between the parties.

Pakistan Mineral Development Corporation v. Pak. WAPDA PLD 1987 Lah. 262; Chandpur Mills Ltd. v. District Magistrate Tippesa PLD 1986 Quetta 181; Zonal Manager v. Mst. Parveen Akhtar and another PLD 2007 SC 298; Muzaffar-ud-Din v. Chief Settlement Commissioner 1968 SCMR 1136 and Momin Motor Company v. Regional Transport Authority PLD 1962 SC 108 ref.

Sardar Zafar Ahmad Khan Lund for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2811 #

2010 Y L R 2811

[Lahore]

Before Muhammad Anwaarul Haq and Ch. Iftikhar Hussain, JJ

MUHAMMAD TUFAIL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3493-B of 2010, decided on 20th April, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---No one was apprehended from the car being used for the transportation of the narcotics---Many persons were in the car, when it was intercepted by the Police party at the picket point---None of the prosecution witness had stated that accused was found on the driving seat of the car---Nothing was recovered from direct personal possession of the accused---Case of accused was not distinguishable from his co-accused who had been granted bail by the court---Rule of consistency also had come into play in his case---Accused was behind the bars since 16-10-2009 and previous non convict---Case of accused was an appropriate one to release him on bail---Accused was admitted to bail, in circumstances.

Jafar Mehmood Malik for Petitioner.

Chaudhry Jamshed Hussain, Deputy Prosecutor-General for the State/respondent No.1 with Muhammad Asghar, S.-I./I.O. with police record.

Abdullah Inspector/S. H.O. and Muhammad Azam, S.-I./complainant in person.

YLR 2010 LAHORE HIGH COURT LAHORE 2812 #

2010 Y L R 2812

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD AMBER-Petitioner

Versus

JAN MUHAMMAD and another--- Respondents

Civil Revision No. 296 of 2010, decided on 12th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Civil Procedure Code (V of 1908), S.115---Suit for specific performance of oral agreement and permanent injunction-Suit was dismissed by the Trial Court and appeal filed against judgment and decree of the Trial Court had also been dismissed---Validity---Concurrent findings of two courts below with regard to facts and law were based on cogent reasons and no illegality or irregularity was found in the said orders---Unless there was jurisdictional defect in the orders passed by the two courts below, High Court could not interfere in said concurrent findings in exercise of powers under S.115, C.P. C.

Sardar Abdul Qayyum Khan for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 2825 #

2010 Y L R 2825

[Lahore]

Before Ch. Muhammad Tariq, J

Haji IMAM DIN---Petitioner

Versus

Mst. SIFTAN BIBI---Respondent

Writ Petition No. 2328 of 2010, decided on 28th June, 2010.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Decree, setting aside of---Fraud and misrepresentation--- Proof--- Petitioner assailed judgment and decree passed in favour of respondent on the ground of fraud and misrepresentation---Plea raised by, petitioner was that application under S.12(2), C.P.C. could not be decided without framing of issues---Validity---Petitioner was well aware of pendency of suit in year, 1997 but he never applied under O.I, R.10, C.P.C. to the concerned Court that he was a necessary and proper party, therefore, he should be impleaded as party to suit---Petitioner kept waiting for passing of decree and after final judgment of Trial Court, petitioner filed application under S.12(2), C.P.C. without disclosing ground of misrepresentation and fraud committed either with petitioner or with Trial Court---Application under S.12(2), C.P.C. was filed after 12 years, which was barred by time---Petitioner also failed to point out any illegality or jurisdictional error in the judgment---Application under S.12(2), C.P.C. could be decided without framing of issues in appropriate cases, Court could determine controversy just with simple inquiry---High Court declined to set aside judgment and decree passed in favour of respondent---Petition was dismissed in circumstances.

Ghulam Asghar Khokhar for Petitioner.

Mirza Viqas Rauf for Respondents Nos.1-3.

YLR 2010 LAHORE HIGH COURT LAHORE 2829 #

2010 Y L R 2829

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Waqar Hassan Mir, J

MUHAMMAD NAWAZ---Petitioner

Versus

CHAIRMAN, NAB and 3 others---Respondents

Writ Petition No. 8717 of 2010, decided on 27th May, 2010.

Criminal Procedure Code (V of 1898)---

----S.403--- National Accountability Ordinance (XVIII of 1999), S.25(a)---Constitution of Pakistan (1973), Arts.199 & 13---Constitutional petition---Quashment of inquiry---Rule of autrefois acquit and autrefois convict or double jeopardy---Scope and application---National Accountability Bureau had initiated inquiry against petitioner on a previous occasion for corruption and corrupt practices under the provisions of the National Accountability Ordinance, 1999 and allowed the petitioner to adopt Voluntary Return and Plea Bargain under section 25(a) of the National Accountability Ordinance, 1999 which was settled and finalized between the petitioner and the Chairman, National Accountability Bureau--- Petitioner contended that he was again being investigated about the matters which had been settled in the previous inquiry and that he was proceeded again in violation of Art.13 of the Constitution and S.403, Cr.P.C. which protected an accused person against double jeopardy, so, the second inquiry against him was not permissible under law---Petitioner further contended that discharge of an accused person under section 25(a) of the National Accountability Ordinance, 1999 had the same effect as discharge by the Court---National Accountability Bureau contended that previous inquiry was initiated against the petitioner for misappropriation of funds by means of bogus bills and fake vouchers thereby causing loss of Rs. 70,00,000 to the State exchequer while the current inquiry pertained to the accumulation of assets beyond legitimate sources by the petitioner---Validity---Voluntary Return and Plea Bargain under S.25(a) of the National Accountability Ordinance, 1999 having been taken place out of the Court strictly between the Chairman, National Accountability Bureau and the accused, culminated into release and not in discharge or acquittal of the accused by a Court---Under Voluntary Return, the petitioner was not released after a trial but before any trial at all as Voluntary Return proceedings did not take place before a Court---No question of vexing the petitioner twice could, therefore, arise--Earlier inquiry was about misappropriation of funds while latter one pertained to accumulation of assets beyond legal means---National Accountability Bureau was allowed to conduct the inquiry which was held to be in no way against the Fundamental Rights of the petitioner---Petition was dismissed in circumstances.

Ashutosh Tokdar v. The State PLD 1963 Dacca 719; Madad Ali v. The State PLD 1965 (W.P.) Kar. 541 and Muhammad Ikram and others v. The State PLD 1965 (W.P.) Lah. 461 rel.

Muhammad Ashraf and others v. The State 1995 SCMR 626 fol.

Zulifqar Ahmad Bhutta for Petitioner.

Rana Abdul Shakoor Khan, Legal Expert for NAB.

Muhammad Aamer Marth, A.D./I.O. NAB.

YLR 2010 LAHORE HIGH COURT LAHORE 2836 #

2010 Y L R 2836

[Lahore]

Before Ch. Muhammad Tariq, J

MEHBOOB ALI QURESHI---Petitioner

Versus

SHAFIQUL HAQ SHIRAZI and others---Respondents

Civil Revision No. 431 of 2000, decided on 16th June, 2010.

Specific Relief Act (I of 1877)---

----S.8--Recovery of possession---Disputed title---Failure to seek declaration---Concurrent findings of fact by the Courts below---Plaintiff sought recovery of possession of roof of building in question without seeking declaration of title---Trial Court and Lower Appellate Court concurrently dismissed the suit and appeal filed by plaintiff---Validity---Building plan was sanctioned in year, 1975, and thereafter construction was completed---Plaintiff filed suit for recovery of possession which was not proceedable because plaintiff was estopped by his conduct to file the suit---Properties in question were allotted to parties during decade of 1950 to 1960 but plaintiff never bothered about the possession which he claimed in year, 1987, in shape of suit after completion of construction by other party, therefore, suit for possession was barred by time---As ownership of property was disputed, therefore, suit for possession without seeking relief of declaration was not maintainable and there were concurrent findings of facts against plaintiff---High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Abdur Rashid Awan for Petitioner.

Mrs. Talat Farooq and Romana Yaqoob for Respondents.

Malik Feisel Rafique, A.-A.G.

YLR 2010 LAHORE HIGH COURT LAHORE 2841 #

2010 Y L R 2841

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and Kh. Imtiaz Ahmed, J

LIAQUAT IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 351, 385, Criminal Revision No. 164 of 2004 and Murder Reference No. 435 of 2004, heard on 7th April, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. was promptly lodged keeping in view the long distance of 30 kilometers between the police station and the place of occurrence---Fire shot hitting on the head of the deceased was specifically attributed to accused, which had caused his immediate death at the spot---Three crime empties had matched with the rifle recovered at the instance of accused---Accused had remained a fugitive from law for 35 days---Occurrence had taken place in broad-daylight---Medical evidence and the report of Forensic Science Laboratory had fully supported the ocular account of the incident---Accused party had already murdered one son of the complainant and the present deceased was his second son, who had been killed by the accused---Conviction and death sentence of accused were affirmed in circumstances.

2008 SCMR 6; 2008 SCMR 707 and 2006 YLR 2170 ref.

Sardar Muhammad Ishaq Khan and Sadaqat Ali Khan for Appellant.

Sh. Muhammad Munir, D.P.-G. for the State.

Ali Hussain Bhatti for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2846 #

2010 Y L R 2846

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

RIAZ HUSSAIN and 2 others---Petitioners

Versus

Mst. WASO and others---Respondents

Civil Revision No. 295-D of 2010, decided on 11th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction against predecessor-in-interest of the defendants on the ground that plaintiffs were owners in possession of 5/6 share of the disputed property while the defendants were owners to the extent of 1/6 share of the same and that the defendants had falsely got mutated property in their favour depriving plaintiffs from their alleged share---Defendants contested suit by filing written statement---Trial Court decreed suit of the plaintiffs---Appellate Court, on appeals, in consolidated judgments modified the same to the extent that transfer of disputed property to the extent of 1/6 share in favour of vendees by one of the legal heirs of the deceased was valid, justified and legal and remaining disputed property to the extent of 5/6 share from the total property, should devolve to the remaining legal heirs of the deceased---Validity---None could confer a better title in property than he himself possessed---Transfer of disputed property to the extent of 1/6 share to the purchasers of the land in question was valid and to the extent of remaining transfer, that is 5/6 share in favour of purchasers was not valid and justified as one of the legal heirs had transferred her respective share in favour of the purchasers---No illegality or irregularity, misreading or non-reading of evidence having been committed by the Appellate Court, revision petition was dismissed in limine by High Court.

Saeed Ahmad Khan Sherwani for Petitioners.

YLR 2010 LAHORE HIGH COURT LAHORE 2852 #

2010 Y L R 2852

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD YOUSAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 301 of 2004, heard on 5th April, 2010.

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

----Ss.302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Ocular account was not in line with medical evidence and complainant in order to patch up the difference had made improvements in his statement in the Court---Complainant had got his another statement recorded after the postmortem examination of the deceased and he had been disbelieved qua his own injuries attributed to three acquitted co-accused of the accused---Other eye-witness admittedly had reached the venue of occurrence after firing on the complainant---Eight co-accused had been acquitted by Trial Court and appeal against their acquittal had been dismissed by High Court---Strong corroboration of ocular testimony, therefore, was required for maintaining conviction of accused on a capital charge, especially when statement of complainant suffered from inherent defects on account of his changed versions---No independent piece of evidence furnishing independent corroboration through an unimpeachable source to the ocular account was available on record---Abscondence of accused in such circumstances could not corroborate the statement of the complainant---Accused was acquitted in circumstances.

Taj Muhammad v. Pesham Khan and others 1986 SCMR 823; Muhammad Irshad v. The State 1999 SCMR 1030; Falak Sher alias Sheru v. The State 1995 SCMR 1350; Aneesur Rehman and another v. The State PLD 2002 Lah. 110; Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Muhammad Fazil v. Bashir Ahmad and another 2009 SCMR 1382; Shahbaz Khan Jakhrani's case 1984 SCMR 42; Muhammad Shafique Ahmad's case PLD 1981 SC 472; Bagh Ali's case PLD 1973 SC 321; Darey Khan's case 1972 SCMR 578; Shah Bakhsh's case 1990 SCMR 158; Iftikhar Hussain v. The State 2004 SCMR 1185; Akhtar Ali and others v. The State 2008 SCMR 6; Ghulam Mustafa v. The State 1995 SCMR 175; Atta Muhammad and another v. The State 1995 SCMR 599; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Ghulam Muhammad's case PLD 1995 SC 588; Sheral alias Sher Muhammad's case 1999 SCMR 697; Faiz Bakhsh's case PLD 1959 PC 24; Nadia's case 42 Cr. L.J. 53; Muhammad's case PLD 1954 FC 84; Sher Bahadar's case 1972 SCMR 651; Muhammad Afsar's case PLD 1954 FC 171; Hadi Bakhsh's case PLD 1963 Kar. 805; Muhammad Farooq and another v. The State 2006 SCMR 1707; Abdul Khaliq v. The State 2006 SCMR 1886; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Muhammad Zaman and another v. The State PLD 2008 Kar. 348; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Improvements made by witnesses---Effect---Improvements made by witnesses in their statements to bring the same in line with medical evidence cast serious doubt on their veracity.

Shahbaz Khan Jakhrani's case 1984 SCMR 42 and Muhammad Shafique Ahmad's case PLD 1981 SC 472 ref.

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Principle---Evidence on capital charge must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of interested and partisan witnesses.

Falak Sher alias Sheru v. The State 1995 SCMR 1350 ref.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Principle---Maxim "Falsus in uno falsus in omnibus" is no more applicable---Courts in view of prevailing circumstances and for safe administration of justice now follow the principle of appraisal of evidence i.e., sifting of grain out of chaff i.e., if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars.

Iftikhar Hussain v. The State 2004 SCMR 1185 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

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

----Ss.302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence--- Principle--- Deliberate and dishonest improvements made subsequently by witnesses in order to strengthen the prosecution case cast serious doubt on their veracity and the same cannot be relied upon.

Hadi Bakhsh's case PLD 1963 Kar. 805 ref.

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

----Ss.302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Abscondence---Abseondenee of accused alone cannot be considered as a corroborative piece of evidence to maintain his conviction.

Muhammad Farooq and another v. The State 2006 SCMR 1707; Abdul Khaliq v. The State 2006 SCMR 1886; Rahimullah Jan v. Kashif and another PLD 2008 SC 298 and Muhammad Zaman and another v. The State PLD 2008 Kar. 348 ref.

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

----Ss.302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Recovery---Nonrecovery of crime empty---Effect---When no crime empty is recovered from the spot, recovery of fire-arm from accused is of no consequence.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 ref.

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

----Ss.302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principle---In case of doubt in the prosecution case its benefit must accrue in favour of accused as a matter of right and not of grace.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Nazir Ahmad Kamboh for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General, Punjab for the State.

Rai Zamir-ul-Hassan for the Complainant.

Date of hearing: 5th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2862 #

2010 Y L R 2862

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ABDUL GHAFFAR---Petitioner

Versus

AMEER ALTAF and others---Respondents

Writ Petition No. 9677 of 2009, decided on 18th February, 2010.

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

----S.13---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope--- Ejectment petition---Grounds of default in payment of rent, sub-letting the property, bona fide personal need of the landlord and damage to the rented property---Trial Court ordered the tenant to vacate the property within thirty days---Appeal of tenant was also dismissed--- Validity--- Tenant contended for the first time in constitutional petition that the property was situated beyond municipal limits and did not mention the same in his written statement---Parties would be bound by their pleadings---Petitioner could not plead what he had not argued in his written statement---Concurrent findings of the Courts below could not be disturbed in the constitutional jurisdiction unless some jurisdictional error or defect had been pointed out---Constitutional petition was dismissed.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 ref.

Ahmad Raza for Petitioner.

Khawaja Noor Mustafa for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 2872 #

2010 Y L R 2872

[Lahore]

Before Sh. Azmat Saeed, J

Messrs NOORANI STEEL MILLS---Petitioner

Versus

FEDERATION OF PAKISTAN--- Respondent

Writ Petitions Nos. 5466, 5454, 5464, 5242, 5243, 5465, 5463, 5461, 5462, 5460, 4555, 5453, 5458, 5459, 5457, 5456, 5452, 5241, 5239, 5651, 5432, 5240, 5650, 5649, 5646, 5645, 5653, 5654 and 5652 of 2010, heard on 24th March, 2010.

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

----S.31(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notification issued by National Electric Power Regulatory Authority (NEPRA) regarding fuel adjustment charges on basis of monthly consumption of electricity by consumers---Validity---NEPRA had given notice in national press before issuing impugned notification, but except one Association, no body including petitioners had contested matter---NEPRA would determine such charges for each subsequent month after initiating proceedings under S.31(4) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---NEPRA had validly issued impugned notification---High Court dismissed constitutional petition in circumstances.

Faiz Ahmad Khan Baloch for Petitioner.

Umar Sharif for Respondent.

Date of hearing: 24th March, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2875 #

2010 Y L R 2875

[Lahore]

Before Sh. Ahmad Farooq, J

FAZAL ABBAS alias FOJU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 803 of 2006, decided on 10th June, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Bullet recovered from the body of the deceased was not proved to have been fired from the gun allegedly recovered on the disclosure of the accused---Statement of deceased recorded by police in injured condition prior to his death and thumb marked by him, could neither be considered as a substantive piece of evidence nor as his dying declaration---Dying declaration being a weak type of evidence could only be accepted if the person making it was in immediate danger of death and unlikely to speak falsely, whereas the deceased was not engulfed in such a situation---Motive for the occurrence was not established---Ocular account was not trustworthy and confidence inspiring---No reason was available to disbelieve the resiled statements of eye-witnesses---Cause of death of deceased was not disclosed by doctor in his post-mortem examination---Medical evidence had not supported ocular testimony---Acquittal of co-accused had seriously damaged prosecution story qua the accused---Accused was acquitted in circumstances.

Ch. Irshad Ullah Chatta for Appellant.

Muhammad Iqbal Ch., D.P.-G. for the State.

Date of hearing: 10th June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2886 #

2010 Y L R 2886

[Lahore]

Before Tariq Javaid, J

IRAM JAVAID through her father---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 4 others---Respondents

Writ Petition No. 1660 of 2010, decided on 15th April, 2010.

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

----Art. 199--- Constitutional petition---Educational institution---Admission---Selffinancing scheme---Petitioner who had been denied admission, had claimed that she was entitled for admission in one out of the two seats reserved for women---Out of two seats reserved for women, one seat was allocated to self-financing scheme---Validity---If at all any seats were to be allocated for self-financing scheme, those could have either been created or in any event, could have been taken from the general seats; and the reserved quota for women could not have been allocated to self-financing as it was already a special quota and a method adopted by Institutions for uplift and to reverse the general discrimination against women---Idea of accommodating the students on self-finance basis was counter productive inasmuch as that those students who deserved to be admitted on merit were being deprived from the admission and economically better placed candidates, who otherwise did not qualify on merit for admission were being allowed to occupy the seats---Shelving the women quota appeared to be illegal---Education of women was as much important as of the male students---No lawful justification was available for the authorities to allocate one seat out of two seats reserved for women for admission on self-finance basis---Candidate on top of the list was admitted, whereas candidates at serial Nos.2 to 5 of merit list did not opt to agitate and petitioner who was next candidate on merit list had assailed the admission---Petitioner who was the only next available candidate, was held to be entitled to the admission.

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

----Art. 199--- Educational institution---Admission on self-finance basis---No doubt education could be imparted on self-finance basis, but the able and deserving students could not be denied admission for accommodating the rich who were otherwise lacking in ability as compared to others, with humble means---High Court observed that it would be appropriate to increase the number of seats to accommodate the students on self finance scheme, but they could not be adjusted on the general seat available in the State-run educational institutions or institutions having substantial support out of the public funds---Public funds could only be utilized for the general good and for the education of able and deserving students.

Muhammad Khalid Farooq for Petitioner.

Malik Muhammad, Tariq Rajwana for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 2892 #

2010 Y L R 2892

[Lahore]

Before Ijaz Ahmad, J

ZUMMRUD KHAN, MANAGING DIRECTOR, PAKISTAN BAIT-UL-MAL---Petitioner

Versus

GHULAM SYEDAIN RIZVI and another---Respondents

Criminal Miscellaneous Application No.677/B of 2010, decided on 21st June, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.420/409/468/471/109---Prevention of Corruption Act (II of 1947), S.5---Cheating, criminal breach of trust, forgery, using as genuine a forged document, abetment, criminal misconduct---Bail, cancellation of---Case was not one of an individual wrong or delinquency---Complainant had launched a scheme to help the poor patients of Hepatitis-C and other epidemic deceases---Accused and his co-accused acting in premeditated style and nicely arranged combination had not only conjointly looted the public exchequer, but had also deprived the languishing poor patients of their last hope for being treated for high cost epidemic diseases, and had thus facilitated the proliferation of such horrific diseases---Accused and other officials of the Hospital in gross violation of the procedure had made payments against fake memos---Required medicines could only be purchased by the recommended medical stores from two specified Pharmaceutical Companies, which provided the medicines at subsidized rates to Bait-ul-Maal patients---Accused had made fake purchases from unauthorized dealers---Although the offences mentioned in the F.I.R. did not fall within the prohibitory clause of S.497(1), Cr.P.C., yet the crime committed by the accused and co-accused was so heinous, intricately woven and minutely premeditated that no leniency by grant of bail could be extended to them---Accused could not deny his responsibility as an Accounts Officer from the whole affairs and he was individually and vicariously liable for the alleged offence---Bail granted to accused by the Special Judge was cancelled in circumstances.

Raja Aftab Ahmad for Petitioner.

Syed Zulifqar Abbas Naqvi for Respondent No.1.

Irfan Azeem Barni, Inspector F.I.A. Crime Circle.

YLR 2010 LAHORE HIGH COURT LAHORE 2895 #

2010 Y L R 2895

[Lahore]

Before Sagheer Ahmed Qadri, J

MUHAMMAD IDREES---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence, Government of Pakistan---Respondent

Writ Petition No. 1109 of 2009, decided on 25th March, 2010.

Pakistan Army Act (XXXIX of 1952)---

----Ss.2 (b)(a), 34, 55 & 133(b)---Constitution of Pakistan (1973), Arts. 8(3(a), 199(1) & 199(3)---Constitutional petition---Maintainability---Summary Court Martial--- Conviction, appeal against---Disputed questions of fact---Petitioner was member of Armed Forces, who was convicted and sentenced by Summary Court Martial---Conviction and sentence awarded by Summary Court Martial was maintained by Court of Appeal---Plea raised by petitioner was that this conviction was illegal as no procedure provided under law was followed during Summary Court Martial---Validity---Summary Court Martial was convened in accordance with the provisions of Pakistan Army Act, 1952, procedure provided under relevant law was followed and petitioner was found guilty and was convicted---Petitioner preferred appeal before Court of Appeal provided under S.133(b) of Pakistan Army Act, 1952, wherein he was afforded full opportunity of hearing and ultimately the same was dismissed---Petitioner failed to point out any jurisdictional error and he raised only controversial questions of fact which could not be looked into by High Court in limited extraordinary jurisdiction---Petition was dismissed in circumstances.

Mrs. Sahahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 ref.

Col. (R.) Muhammad Akram for Petitioner.

Muhammad Nazir Abbasi, Standing Counsel.

YLR 2010 LAHORE HIGH COURT LAHORE 2902 #

2010 Y L R 2902

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SHEHZAD alias BHUTTO and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 228, 354 and Criminal Revision No. 118 of 2008, heard on 16th June, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Presence of the eye-witnesses could not be denied--Identification of the accused who were identified by the complainant, an injured witness, along with other eye-witness of the case; especially, when the parties belonged to the same area and knew each other well, could not be said to be doubtful---Ocular account was fully corroborated by medical evidence---Defence had failed to discredit prosecution evidence---Deceased breathed his last after lapse of forty days from date of occurrence---Expert opinion of the medical officer indicated that death of the deceased might have resulted from septicemia caused by negligence of the staff in treatment of the injury caused by the accused---Circumstances of the case had given rise to doubts as to the cause of death of the deceased---Benefit of doubt must always go to the accused and not to prosecution---Accused, therefore, should have been awarded lesser punishment---Conviction of the accused was converted from under S.302(b), P.P.C. to S.302(c), P.P.C. reducing the sentence of imprisonment for life to rigorous imprisonment of ten years with benefit of S.382-B, Cr. P. C. ---Appeal was partly allowed.

Muhammad Ilyas Siddiqui and Alam Khan for Appellants.

Sanaullah Zahid for the Complainant.

Tanvir Mahmood, Deputy Prosecutor-General for the State with Muhammad Arshad, S.-I.

Date of hearing: 16th June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2907 #

2010 Y L R 2907

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

GHAZANFAR ALI---Petitioner

Versus

MUBASHAR ALI KHAN---Respondent

Civil Revision No. 1717 of 2010, decided on 29th June, 2010.

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

----S. 12---Civil Procedure Code (V of 1908), S.12(2)---Suit for specific performance---Trial Court decreed the suit---Defendant filed application under S.12(2), C.P.C. for setting aside the decree---Plaintiff sought adjournment but did not appear on the fixed date---Trial Court closed plaintiff's right to submit written reply of the application under S.12(2), C.P.C.---Appeal against the order of Trial Court was also dismissed for nonprosecution---Validity---Plaintiff seemed to be not interested in prosecution of the appeal---Trial Court had rightly closed plaintiff's right to submit written reply of the application under S.12(2), C.P.C. in view of the conduct of the plaintiff and the Appellate Court rightly concurred with the findings of the Trial Court---Concurrent findings of facts were not liable to be interfered in exercise of jurisdiction under S.115, C.P.C.---Revision was dismissed in circumstances.

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

----S. 115-Revision-Scope-Concurrent findings of fact were not liable to be interfered in exercise of revisional jurisdiction under S. 115, C.P.C.

Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and anther 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293 fol.

Shahid Mahmood Khokhar for Petitioner.

Respondent in person.

YLR 2010 LAHORE HIGH COURT LAHORE 2911 #

2010 Y L R 2911

[Lahore]

Before Waqar Hassan Mir and Hassan Raza Pasha, JJ

THE STATE through Force Commander Regional Directorate ANF, Rawalpindi---Appellant

Versus

ABDUL JABBAR alias JABBARA---Respondent

Criminal Appeal No. 424 of 2003, heard on 16th June, 2010.

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

----Ss. 12, 13, 48 & 50---Pakistan Criminal Law Amendment Act (XL of 1958), S.10(1)(2)---Criminal Procedure Code (V of 1898), S.417(2-A)---Possession of narcotics---Acquisition of assets derived from narcotic offences---Regional Directorate, Anti-Narcotics Force filed appeal against acquittal---Accused contended that Pakistan Criminal Law Amendment Act, 1958 provided no legal right of appeal to the aggrieved person against order passed by the Special Court--Validity---Control of Narcotic Substances Act, 1997 contained no provision conferring specifically upon the State a right to file appeal against acquittal---Section 50 of the Control of Narcotic Substances Act, 1997 referred only to competence of the Special Prosecutor to "conduct proceedings" before a Special Court, similarly, S.48 of the said Act provided for appeal against the order of a Special Court to the High Court but did not specify whether the appeal was meant to be against conviction or acquittal---If legislature intended to retain the right to appeal against acquittal, it should have made an unequivocal provision for the same---State, thus, was not competent to file appeal against acquittal---No maternal on record showed that the Special Prosecutor was authorized by the Federal Government through any specific direction to file appeal against acquittal of the accused---Prior to 1972, government alone could present an appeal to the High Court against the orders of acquittal both in challan and complaint cases---Through an amendment in 1972, right to prefer appeal in complaint case, upon grant of special leave, was conferred upon complainant also---At the time of promulgation of the Control of Narcotic Substances Act, 1997, newly added subsection (2-A) to Section 417, Cr.P.C. was already in the field, but the legislature did not specifically provide for appeal against acquittal under the Control of Narcotic Substances Act, 1997---In absence of specific provision for appeal against acquittal under Control of Narcotic Substances Act, 1997, appeal could not have been validly initiated under S.417(2-A), Cr.P.C.---Objection raised by the accused as to the maintainability of appeal was sustained---Appeal was dismissed accordingly.

Ashiq Muhammad and another v. Khuda Bakhsh and others PLD 1998 Pesh. 68 and Abdul Qayyum v. Aziz-ur-Rehman Shah and another 2004 PCr.LJ 422 ref.

Mirza Viqas Rauf for Appellant.

Syed Zulfiqar Abbas Naqvi for Respondent.

Date of hearing: 16th June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2919 #

2010 Y L R 2919

[Lahore]

Before Sh. Najam-ul-Hasan and Sayyed Mazhar Ali Akbar Naqvi, JJ

KHADIM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1944 of 2004 and Criminal Appeal No. 5 of 2005 in Murder Reference No. 805 of 2004, decided on 25th May, 2010.

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

----Ss.302(b), 324 & 337-F(ii)---Qatl-e-amd, attempt to commit qatl-e-amd and causing of hart "ghayrjaifah"---Appreciation of evidence---Eye-witness had improved their statements at the trial by categorically showing source of light at the place of occurrence, which had taken place at night time---Venue of occurrence had not been established by prosecution---No crime empty was recovered from the spot---Weapon of offence had not been recovered from any accused during investigation---Specific plea of alibi taken by main accused in his defence had been established by consistent defence evidence---Motive asserted by prosecution was not proved---Statement of injured prosecution witness did not inspire confidence, as the same had been improved during trial---Assailants could not be correctly identified by the witnesses at the time of incident due to lack of sufficient light---Improved statements of prosecution witnesses were not corroborated by any independent evidence---Mode of occurrence was not established---Accused was acquitted in circumstances.

2010 SCMR 97; Muhammad Saleem v. The State 2010 SCMR 374; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Haroon v. The State 1995 SCMR 1627; Muhammad Rafique v. The State 1997 SCMR 457; Saeed Ahmed Shah v. The State 1993 SCMR 550 and Imran Hussain v. Amar Arshad and 2 others 1997 SCMR 438 ref.

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

----Ss.302 (b), 324 & 337-F (ii)---Qatl-e-amd, attempt to commit qatl-e-amd and causing of hurt--- Appreciation of evidence---Improvements made at trial---Effect---Statement of any witness improved at the trial is not worth relying, rather such improvement creates serious doubts about its veracity and credibility.

Muhammad Shafique and others v. The State and others 2010 SCMR 385 and Saeed Ahmed Shah v. The State 1993 SCMR 550 ref.

----Ss.302(b), 324 & 337-F(ii)---Qatl-e-amd, attempt to commit qatl-e-amd and causing of hurt--- Appreciation of evidence---Benefit of doubt---Shifting of venue of occurrence---Whenever the venue of occurrence is shifted and there is no report of serologist to supplement the same, the benefit of such circumstance has to be resolved in favour of accused.

Imran Hussain v. Amar Arshad and 2 others 1997 SCMR 438 ref.

Muhammad Nawaz Shah for Appellant.

Qazi Zafar Iqbal, Additional Prosecutor-General for the State.

Date of hearing: 25th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2926 #

2010 Y L R 2926

[Lahore]

Before Ijaz ul Ahsan, J

MUHAMMAD MANSHA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6117/B of 2010, decided on 17th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-B, 420, 468 & 471---Kidnapping, abduction or extorting property, valueable security, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating and using a genuine as forged document---Bail, refusal of---Accused was named in the F.I.R. with a specific role in commission of serious offences liable to punishment of imprisonment for life---Dignity and honour of the victim (lady) and her family was involved in cases of abduction, therefore, delay in lodging the F.I.R. was not fatal in such cases---One of the witnesses of alleged Nikah had denied that he attested the Nikahnama while the Nikahkhawan who allegedly solemnized / administered Nikah had been declared proclaimed offender---Accused was charged with offences which fell within the prohibitory clause of S.497, Cr.P.C.---Sufficient incriminating material was available on record to connect the accused with the commission of the offences---Key witnesses had absconded---Accused, if enlarged on bail, could influence and pressurize witnesses---Proper procedure was to give the law enforcement agencies sufficient time for apprehending the absconding witnesses whose testimony was material to the case---Bail was refused in circumstances.

Shahid Iqbal v. State PLD 2002 Kar. 152 rel.

Zafar Iqbal Chohan for Petitioner.

Abdul Ghaffar Dhariwal for Respondent No.2.

Azhar Javed Rana, D.P.G. with Muhammad Ramzan, A.-S.I.

YLR 2010 LAHORE HIGH COURT LAHORE 2928 #

2010 Y L R 2928

[Lahore]

Before Manzoor Ahmad Malik, J

Mst. ASIFA BIBI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous Nos. 14733-B and 15198-B of 2009, decided on 26th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395/412---Dacoity and receiving the property stolen in commission of dacoity---Bail, grant of---Accused was not nominated in the F.I.R., but was implicated through supplementary statement---Co-accused was having a milk suckling baby with her in jail---Both accused being women, in view of the second and third provisos of S.497, Cr.P.C., both accused were admitted to bail.

Ch. Zakar Hussain Pawar for Petitioner.

Malik Muhammad Sharif Khokhar for Petitioner (in Criminal Miscellaneous No. 15198-B of 2009).

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General with Riasat Ali, S.-I. for the State.

Nemo for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 2930 #

2010 Y L R 2930

[Lahore]

Before Ch. Iftikhar Hussain and Muhammad Anwaarul Haq, JJ

IMDAD HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1090 of 2009 and C.Ms. Nos. 655 and 744-M of 2010, decided on 13th May, 2010.

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

----S.514---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Forfeiture of bond---Sessions Court after forfeiting the surety bonds of the petitioners submitted for the bail of accused in the case, had imposed a penalty of Rs.100, 000 each on them---In matters of sureties no lenient view should be taken and the entire amount of the bail bond should be recovered as an amount of penalty, and that the failure thereof and the reduction of penalty to the tune of 1/5th or 1/10th was simply ridiculous and encouraged the people to go into abscondence---Sessions Court while taking a lenient view had already 'reduced the penalty imposed upon the petitioners upto 50% in the present case---Impugned order did not warrant any interference---Appeal was dismissed accordingly.

Karam Ali v. The State 2008 PCr.LJ 213 and Gul Muhammad v. The State 2005 YLR 1602 distinguished.

Saeed Akhtar v. The State 2009 SCMR 834; Zeeshan Kazmi v. The State PLD 1997 SC 267; Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 and Abbas Ali and another v. The State 2004 SCMR 879 ref.

Muhammad Aslam and another v. The State 2004 SCMR 211 rel.

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

----S.514---Forfeiture of bond---Imposition of penalty---Rule of caution---No lenient view should be taken in the matters of sureties and the entire amount of bail bond should be recovered as an amount of penalty, failure thereof and reduction in amount of penalty would simply encourage the people to go into abscondence.

Muhammad Aslam and another v. The State 2004 SCMR 211 ref.

Muhammad Javaid Iqbal Qureshi for Appellants.

Chaudhry Jamshaid Hussain, Deputy Prosecutor-General for the State.

Date of hearing: 13th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2932 #

2010 Y L R 2932

[Lahore]

Before Tariq Javaid, J

MANZOOR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 66 of 2009, decided on 19th January, 2010.

Penal Code (XLV of 1860)---

----Ss.337-F(v)/337-L(ii)/34---Hashimah and hurt---Appreciation of evidence---Only independent witness in the case, had deposed during his cross-examination that he was at a distance of about one acre when he saw the complainant and accused fighting each other and he was unable to identify as to which of the accused had caused injury to the injured prosecution witness---Neither accused was associated with the Police proceedings nor his statement was recorded by the Police---If the statement of said prosecution witness was admitted to be correct, findings recorded by the courts below for recording conviction of accused appeared to be misreading of the evidence---Prosecution was bound to prove the charge against accused---Conclusion arrived at by the courts below did not appear to be legal---Even otherwise accused had served out almost entire sentence which appeared to have been awarded illegally---Impugned judgment of conviction passed by the Trial Court was set aside and accused was acquitted of the charge and was released.

Asmat Ullah Khan Niazi for Petitioner.

Malik Muhammad Rafiq Khokhar, D.P.G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 2933 #

2010 Y L R 2933

[Lahore]

Before Ijaz Ahmad Chaudhry, J

WAJID ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8680/B of 2009, decided on 30th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 148, 149 & 109---Qatl-e-amd---Bail, refusal of---Role of accused was distinguishable from the role of co-accused who had been allowed bail---Co-accused who were released on bail had not joined the trial and were using delaying tactics---Trial Court was unable to conclude the trial on account of delaying tactics used by accused party---Even otherwise accused was arrested about six months after the incident and during that period he was declared proclaimed offender---Case of accused, being not fit for bail, his application for bail was dismissed.

Shahzad Saleem Warriach for Petitioner.

Amjad Rasool Chatha, D: P. G. for the State.

Mian Parvaiz for the Complainant.

Muhammad Shafi, Sub-Inspector.

YLR 2010 LAHORE HIGH COURT LAHORE 2935 #

2010 Y L R 2935

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ARSHAD RANA-Petitioner

Versus

Ch. M. SHAFIQUE and 3 others---Respondents

Writ Petition No.13184 of 2010, decided on 17th June, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for registration of criminal case---Station House Officer Police Station concerned despite direction of Ex-officio Justice of Peace to entertain application of the petitioner and proceed in accordance with law, failed to attend application of the petitioner and grievance of the petitioner had not been redressed---Superintendent of Police was directed by High Court to entertain petitioner's application and comply with order passed by Ex-officio Justice of Peace within seven days.

Petitioner in person.

Muhammad Siraj-ul-Islam Khan, Addl. A.-G. Punjab on Court's call.

YLR 2010 LAHORE HIGH COURT LAHORE 2936 #

2010 Y L R 2936

[Lahore]

Before Shahid Hameed Dar, J

INAYAT BIBI---Petitioner

Versus

AMJAD ALI and 4 others---Respondents

Writ Petition No. 8521 of 2007, decided on 29th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 382-B---Penal Code (XLV of 1860), S.302/34--- Constitution of Pakistan (1973), Arts.199 & 9--- Constitutional petition--- Qatl-e-amd--- Award of remissions in sentence---Superintendent, District Jail released the accused from jail granting them 13 years, 6 months and 4 days remission in their sentence, which remission had been challenged by the petitioner in her constitutional petition---Accused who were convicted and sentenced to imprisonment for life, were extended benefit of S.382-B, Cr.P.C.---Convict who had been extended the benefit of S.382-B, Cr.P.C. would be entitled to grant of remission from the date of his arrest as an under-trial prisoner---Refusal to allow remission of pre-sentence custody period to a convict, whom the court had granted the benefit of 5.382-B, Cr.P.C. would be tantamount to deprivation of his liberty within the contemplation of Art.9 of the Constitution---Accused had not been convicted and sentenced for an offence which could debar the extension of benefit of S.382-B, Cr.P.C. to them, which had been validly conferred upon them---Accused could not be denied the remission in sentence announced from time to time by the President or the Provincial Government by way of issuance of notification in that regard---No illegality, in circumstances had been committed by Superintendent District Jail while he set accused persons at liberty by taking into account said remissions---Release of accused person, could not be interfered with nor they could be remitted to custody on the wishes and whims of the petitioner.

Shah Hussain v. The State PLD 2009 SC 460; Inayat Bibi v. Amjad Ali 2001 PCr.LJ 1453 and Aamer Ali v. State 2002 YLR 1902 ref.

Khalida Parveen for Petitioner.

Asif Hussain Sheikh for Respondents.

Aamir Jalil Siddiqui, A.A.-G.

Adeel Akram Cheema, Assistant Superintendent, District Jail, Gujrat.

YLR 2010 LAHORE HIGH COURT LAHORE 2941 #

2010 Y L R 2941

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ABDUL RASHID---Petitioner

Versus

MUNSHI KHAN and 5 others---Respondents

Civil Revision No. 1307 of 2002, heard on 23rd June, 2010.

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

----S.13---Right of pre-emption---Talb-i-Muwathibat---Time, date and place of knowledge of sale---Proof---Informer, non production of in evidence--Trial Court decreed the suit in favour of pre-emptor but Lower Appellate Court allowed the appeal and dismissed the suit---Validity---According to pre-emptor's witness, pre-emptor had come to know about pre-empted sale through husband of vendor, who was not produced in evidence---Husband of vendor was the most important witness for corroborating knowledge of pre-emptor who was not the employee of revenue department and his source of information was only husband of vendor---Record established as to how husband of vendor met pre-emptor and why he disclosed his personal affair to preemptor---If incident of information and pronouncement of Talb was genuine why such fact was not mentioned in plaint, which was silent about the incident---Witnesses who appeared on behalf of pre-emptor failed to disclose the true facts---Record showed that incident narrated by pre-emptor's witnesses about knowledge of sale was concocted and was not credible especially when pre-emptor did not appear in witness box and as such suit was bound to fail and judgment passed by Lower Appellate Court was bound to prevail---High Court maintained the judgment and decree passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through LRs. and others PLD 2007 SC 302; Nadir Khan v. Itebar Khan 2001 SCMR 539; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958; Haji Abdullah through Legal heirs v. Haji Abdul Majeed 1999 MLD 2670 and Khursheed Akbar v. Saadullah Khan 2001 CLC 981 ref.

Shahid Waheed Sheikh for Petitioner.

Malik Abdul Waheed for Respondents.

Date of hearing: 23rd June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2950 #

2010 Y L R 2950

[Lahore]

Before Muhammad Anwar Bhaur and Waqar Hassan Mir, JJ

MUHAMMAD SHAHID alias SHAHDI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 212/J, 579 of 2003 and Murder Reference No. 94 of 2004, decided on 13th July, 2010.

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

----S.396--Dacoity with murder--Identification---Appreciation of evidence---Features of the accused were not given in the F.I.R.---Identification parade was not conducted in accordance with the High Court Rules and Orders---Magistrate who had conducted the said proceedings did not check and narrate the features of the dummies and their comparison, if any, made with the features of the accused--Identification of accused by simply placing hands on their heads was not sufficient, rather further their roles were to be disclosed as to which part of the occurrence had been played by each of them and how---Prosecution witnesses were interested and chance witnesses of the occurrence, who had not plausibly explained their presence at the scene of crime and their evidence was highly doubtful---Accused were acquitted in circumstances.

(b) Identification parade---

----Nature, evidentiary value, scope and utility of identification parade explained.

The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know all accused persons. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight.

In a case where the accused were not known to the witnesses and have only a glimpse of them in dark night during the occurrence, the F.I.R. gives vague description of culprits, the Identification Parade was held after the lapse of considerable period from the date of occurrence, the accused were alleged to have been shown to the witnesses prior to Identification Parade, the purpose of identification parade was not explained to the witnesses by the Magistrate at the time of Identification Parade; then the evidence of Identification Parade being weak type of evidence would have title evidentiary value and no reliance can be placed on such evidence.

Moreover, if the description of the accused is not given in the F.I.R., then the Identification Parade has no value in the eye of law. Absence of such details in the F.I.R. militates against bona fides of the prosecution and greatly marrs evidentiary value of the test identification parade. When description by appearance of accused was not given in the F.I.R. and specific role was not attributed to him, identification of such accused in the Court for the first time, in absence of strong corroboratory evidence is not safe to be relied upon as by passage of time memory would fade and possibility that the accused might not have been mistakenly picked out was augmented.

If role of the accused was not described by witnesses at identification parade, such type of identification parade loses its value and cannot be relied upon and if the prosecution witnesses had seen the accused before identification parade, such piece of evidence of identification parade can also not be relied upon.

Likewise, if the identification parade was held with the delay not satisfactorily explained and the identification parade was not conducted in accordance with the rule of mixing nine or ten strangers with one accused in that case the possibility of errors in identification cannot be ruled out and it will not be safe to base the conviction on the evidence of solitary eye-witnesses particularly when the witnesses could have only a fleeting glimpse of accused and no description of the assailant was given by the witness in his statement to the police. Vague/unclear description of the accused given in the F.I.R. would not be sufficient for the purpose of Identification Parade.

S.M. Nazim, Syed Afzaal Haider Naqvi and Barrister Salman Safdar for Appellants.

M.M. Alam, Additional Prosecutor-General for the State.

Date of hearing: 13th July, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 2959 #

2010 Y L R 2959

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

HUMAYUN AKHTAR KHAN---Petitioner

Versus

ELECTION TRIBUNAL, LAHORE and 12 others---Respondents

Writ Petition No. 12656 of 2010, decided on 30th June, 2010.

(a) Interpretation of statutes---

----Law helps people and not creates hurdles in their way.

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

----Ss.42-A & 64---Civil procedure Code (V of 1908), O.XI, R.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election dispute---Discovery of documents---Petitioner assailed election of returned candidate on the ground that his declaration of assets in his nomination papers were incorrect---Returned candidate relied upon prize money won by him through Prize Bonds---Petitioner sought direction to State Bank to produce the record of Prize Bonds---Validity---Petitioner had specifically pointed out to Election Tribunal that entry in declaration about assets of declarant was doubtful and as such he be directed to produce documents in support of the entry and as such Election Tribunal should have not dismissed the application---Election Tribunal was empowered under the provisions of O. XI, R.12, C.P.C., to direct any party to produce any document for its inspection---High Court directed the returned candidate to produce documents in support of disputed entry mentioned in his declaration submitted under S.42-A of Representation of the People Act, 1976, to Election Commission---High Court also directed State Bank to produce demanded documents---Order passed by Election Tribunal was set aside and application under O.XI, R.12, C.P.C. filed by petitioner was allowed---Petition was allowed accordingly.

Haji Abdul Sattar v. M. P.S.M.F. Produce (T&D Co-op. M.F.) Ltd. AIR 1989; MP 16; Shri M.L. Sethi, v. Shri R.P. Kapur, AIR 1972 SC 2379; Raj Narain v. Smt. Indira Gandhi and others AIR 1972 Allahabad 41; Sheikh Rashid v. Election Tribunal PLD 1993 Lahore 791; Dr. Shela B.Charles v. Election Tribunal and another CLC 1995 Lahore 344; Pir Sabir Shah v. Election Commission of Pakistan PLD 1994 Lahore 516 FB; Osman Khan through Attorney v. Aisha Naz and 2 others CLC 2010 Peshawar 475; Election Commissioner of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396; Upadhyaya Hargovind Devhanker v. Dhirendrasingh Vrbhadraisingh Ji Colank and others AIR 1988 SC 915; Muhammad Asim Kurd v. Nawabzada Mir Kashkari Khan PLD 1998 Quetta 1; Bhagwandas v. Returning Officer 1990 SCMR 1228; Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426; Ahmed Khan Bhatti v. Maj. (R) Zulfiqar Ali Gondal 2010 CLC 131; Masudul Hassan v. Khadim Hussain PLD 1963 SC 203; Udhav Singh v. Madhav Rao Scindia AIR 1976 SC 74; Ram Singh and others v. Col. Ram Singh AIR 1986 SC 3; Daulat Ram Chauhan v. Anand Sharma AIR 1984 SC 621; Ch. Razik Ram v. Ch. J.S. Chouhan AIR 1975 SC 667; Capt. Syed Muhammad Ali v. Salim Zia 1999 CLC 1026; Illahi Bux Soomro v. Aijaz Hussain Jakhrani and 7 others 2004 CLC 1060; Fahad Malik v. Mir Mumtaz Hussain Jakhrani 2008 CLC 457 and Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others 1987 SCMR 1107 ref.

Ch. Fawad Hussain and Miss Alia Ijaz and Rana Asadullah for Petitioner.

Raheem Nawaz for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 2967 #

2010 Y L R 2967

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ASIF---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 4 others---Respondents

Writ Petition No. 4097 of 2010, decided on 23rd June, 2010.

Penal Code (XLV of 1860)---

----S. 381-A---Criminal Procedure Code (V of 1898), S.550---Constitution of Pakistan (1973), Art.199---Constitutional petition---Theft of car---Superdari of the vehicle---Petitioner challenged order of Additional Sessions Judge whereby he had dismissed petitioner's application for superdari of car which was seized by police on suspicion of having been stolen---Validity--Three different reports of Forensic Science Laboratories had established that vehicle in question was a stolen property---Neither the registration book bore the name of the petitioner nor could petitioner produce any documentary evidence of transfer of ownership of the vehicle in his favour--Impugned order did not suffer from any illegality warranting High Court's interference---Constitutional petition was dismissed in circumstances.

Muhammad Imran Butt for Petitioner.

Aamir Jalil Siddiqui, A.A.-G.

2010 Y L R 3002

[Lahore]

Before Ch. Muhammad Tariq, J

SULTAN AHMAD and others---Petitioners

Versus

Ch. MUHAMMAD IRSHAD and others---Respondents

Civil Revision No. 1275 of 2009, decided on 10th June, 2010.

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

----S. 42---Civil Procedure Code (V of 1908), Ss.11, 107(2), O. VII, R.11 & O.XXXIX, Rr.1, 2---Limitation Act (IX of 1908), Art.120---Suit for declaration on the ground that alleged mutation and order of Deputy District Officer (Revenue) to reject application for cancellation of the said mutation, was illegal and ineffective on the rights of the plaintiffs---Plaintiffs also filed an application under O.XXXIX, Rr.1 & 2, C.P. C. for the grant of ad interim injunction---Defendants contested suit and also filed an application under O. VII, R.11, C. P. C. ---Trial Court dismissed application of the plaintiffs for the grant of ad interim injunction---Appellate Court, on appeal, instead of deciding the said matter, dismissed suit of the plaintiffs---Plaintiffs asserted that the Appellate Court had dismissed the suit when the matter before it was a mere an appeal for grant of interim injunction---Validity---Section 107(2), C.P.C. provided that the Appellate Court should have the same powers and should perform as nearly as might be the same duties as were conferred and imposed by C.P.C. on account of original jurisdiction in respect of suits instituted therein and had entrusted powers of Trial Court upon the Appellate Court---Provisions of S.11 of C.P.C. were also fully applicable in the present case---Both courts below had also ignored the question of limitation as the plaintiffs had challenged mutation dated 3-12-1995 in the suit filed on 21-1-2008 which was barred by limitation---Revision petition was dismissed by High Court.

1996 CLC 892 and 2006 MLD 810 ref.

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

----Art. 120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Limitation---Period of limitation for filing a suit for declaration was six years.

Shiraz Faiz Bhatti for Petitioners.

2010 Y L R 3014

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Mazhar Iqbal Sidhu, J

ABDUL KHALIQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 45 and 51 of 2006 in Murder Reference No. 11 of 2006, decided on 4th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 337-A(ii), 337-F(i)(iv), 337-L(ii) & 148/149---Qatl-e-amd, ghayrjaifah, damiyah and mudihah, rioting, armed with deadly weapon; offence committed in prosecution of common object by members of unlawful assembly---Appreciation of evidence---Free fight---Principle---Sentences, reduction in---Mitigating circumstance---Accused also suffered injuries in the occurrence showing that it was a case of free fight---Under the law relating to free fight, the accused would be awarded sentence according to the role played by him in the occurrence---Both the accused convicted under section 302(b), P.P.C. had given one injury each on the person of the deceased which led to his death, but one of the accused was also injured in the fight; in addition another accused was also injured---Injuries suffered by the accused gave rise to mitigating circumstance in their favour---Death sentences of the accused were, therefore, converted into life Imprisonments with benefit of section 382-B, Cr.P.C.---Death sentences were not confirmed and Murder Reference was answered in the negative.

Muhammad Afzal Cheema for Appellant.

Rehan Zafar for the Complainant.

Ch. Haq Nawaz, DDPP for the State.

Date of hearing: 4th March, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3025 #

2010 Y L R 3025

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD RAHIM through L.Rs. and others---Petitioners

Versus

Mst. SAKINA BIBI and others---Respondents

Civil Revision No. 1927 of 2004, decided on 25th May, 2010.

Civil Procedure Code (V of 1908)---

----O. IX, R.4---Suit dismissed for non-prosecution---Restoration application---Sufficient cause--- Application for restoration of suit of plaintiffs was dismissed by Trial Court for non-prosecution and the same was maintained by Appellate Court---Contention raised by the plaintiffs/applicants was that, Trial Court should have framed issues and after recording of evidence, the application should be decided---Validity---Application for restoration of suit was moved by counsel of the applicants/plaintiffs but neither it was signed nor same was supported by an affidavit of the counsel, nor there was a plausible reason regarding their absence---Reasons for absence of the applicants/plaintiffs were not pleaded in the application, which were necessary for restoration of the suit---Contents of the application for restoration of the suit were not convincing, therefore, same did not require that issues should be framed and after recording of evidence, the application should be decided---High Court declined to interfere in revisional jurisdiction---Revision petition was dismissed by High Court.

Malik Bilal Nazir for Petitioners.

Syed Kaleem Ahmad Khurshid for Respondents.

Date of hearing: 25th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3027 #

2010 Y L R 3027

[Lahore]

Before Pervaiz Inayat Malik, J

Malik MUHAMMAD MURAD--- Appellant

Versus

Malik MUHAMMAD SADIQ--- Respondent

R.F.A. No. 101 of 1998, decided on 14th April, 2009.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.1, 2 & S.96---Suit for recovery of amount on the basis of promissory note---Suit for recovery of amount on basis of promissory note having been decreed by the Trial Court, defendant had filed appeal against judgment and decree passed by the Trial Court---On the very date the appeal was admitted to regular hearing, execution of the impugned judgment and decree was stayed subject to furnishing of adequate security equivalent to the decretal amount to the satisfaction of the executing court, but defendant had failed to do so---Regular first appeal was only maintainable against a decree, but in the present case no decree had been appended by the defendant with the appeal---Appeal, in circumstances was incompetent and merited rejection on that score only---Appeal, otherwise was barred by time---Upon the query of the court as to whether the defendant had ever filed any suit seeking cancellation of the promissory note and receipt on the basis whereof the impugned judgment was passed, counsel for the defendant had conceded that defendant had not challenged same before independent forum---Points urged by the counsel for the plaintiff found support from the record---Appeal by the defendant was barred by time, besides the defendant had also not complied with order passed by the High Court, whereby defendant was ordered to furnish adequate security to the satisfaction of the executing court---Defendant having no case at all, well reasoned judgment passed by the court below, could not be interfered with by High Court in appeal.

Malik Muhammad Rafique Rajwana for Appellant.

Bashir Ahmad Sial for Respondent.

Date of hearing: 14th April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 3031 #

2010 Y L R 3031

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and Kh. Imtiaz Ahmed, J

AMJAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 373 of 2005 (in Murder Reference No. 813 of 2005), decided on 6th April, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Crime empty secured from the place of occurrence had matched with the pistol recovered at the instance of accused according to the report of Fire Arm Expert---F.I.R. had been lodged without any loss of time---Case was of two versions---Version put forth by the prosecution was more plausible---Presence of complainant at the scene of occurrence was established---Conviction of accused was maintained---Deceased had disgraced the accused by abusing him and turning him out of the house of his maternal uncle---Accused had fired a single shot on the person of the deceased which had proved fatal---Sentence of death of accused was altered to imprisonment for life in circumstances.

Syeda B.H. Shah for Appellant.

Sh. Muhammad Munir, D.P.G. for the State.

Date of hearing: 6th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3034 #

2010 Y L R 3034

[Lahore]

Before Hassan Raza Pasha, J

TAHAIR SIDDIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1013/B of 2010, decided on 14th July, 2010.

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

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Accused had issued two cheques of huge amount being fully aware of the consequences thereof, which had been dishonoured on presentation by the Bank due to insufficient funds---Accused was specifically nominated in the F.I.R.---Sufficient material was available on record to connect the accused with the alleged offence---Trial of accused was in progress before Trial Court and the case was now fixed for recording the statement of accused under S.342, Cr.P.C.---Court under the law could refuse bail even in cases not falling within the prohibitory clause of Section 497(1), Cr.P.C.---Case was not fit for grant of bail---Petition for bail was consequently dismissed.

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

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail in cases not hit by prohibitory clause of S. 497, Cr.P.C.--- Principle--- Bail ordinarily is granted as a rule in cases not covered by the prohibitory clause of Section 497(1), Cr.P.C., but Court may refuse bail in such cases if the same are found unfit for grant of bail.

Masood Ahmad Abbasi for Petitioner.

Tanveer Mehmood, D.P.G.

Ch. Amjad Mehmood for the Complainant.

Iftikhar Hussain, S.-I. with record.

YLR 2010 LAHORE HIGH COURT LAHORE 3036 #

2010 Y L R 3036

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD SADIQ and others---Petitioners

Versus

Malik MUHAMMAD JAVED through legal heirs and others---Respondents

Civil Revision No. 1682 of 2009, decided on 12th July, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff filed suit for declaration to challenge mutation on the ground that he was in possession of the disputed property and mutation of alleged gift in favour of one of his sons was made for raising loan for the purchase of tractor---During pendency of suit plaintiff had died and rest of his legal heirs were impleaded as party to the suit---Defendants contested suit on the ground that the story narrated by plaintiff about raising of loan for tractor was not proved on record---Trial Court dismissed suit of the plaintiff---Appellate Court on appeal, allowed the same and set aside the judgment and decree of the Trial Court---Validity---One of the defendants appearing as a witness, admitted that he was maintaining good relations with the donee as his daughter was living with him as an adopted daughter---Said defendant was an interested witness---One of the witnesses also admitted that he had signed mutation of gift without reading the same--Identifier of the plaintiff had admitted that plaintiff had died in a house where all brothers were living jointly---Trial Court had misread the evidence and failed to appreciate the real controversy between the parties---Petition was dismissed by High Court.

Ch. Tariq Javed for Petitioners.

Muhammad Iqbal for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 3039 #

2010 Y L R 3039

[Lahore]

Before Ch. Muhammad Tariq, J

Syed MURAD ALI SHAH---Petitioner

Versus

HAFEEZULLAH and others---Respondents

Civil Revision No. 1217 of 2003, heard on 25th May, 2010.

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

----S. 13---Suit for pre-emption---All notices of Talb-i-Ishhad were admittedly sent by registered post which were received by the same person---Notices were admittedly sent on the address mentioned in mutation of sale; therefore, the presumption would be that the notices were duly served upon the defendants---No benefit could be extended to defendants on the plea that the notice of Talb-i-Ishhad was not served upon one of the defendants who was living abroad.

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

----Ss. 6 & 13---Suit for pre-emption on the ground of having superior right---Defendants contested suit on the ground that plaintiff had failed to fulfil the talbs as required under the law---Trial Court and Appellate Court dismissed suit of the plaintiff---Contention of plaintiff was that one of his witnesses stated that on 25-6-1998, plaintiff came to know about the sale of the disputed land but this figure was manipulated later on with 26-2-1998---Validity---Argument of the plaintiff was that date of 26-6-1998 was manipulated but neither any question was put to the plaintiff's witness during his cross-examination nor such objection was raised before the Trial Court---Such objection was not entertainable at revisional stage---Plaintiff had failed to point out any illegality or irregularity in the impugned judgments---Revision petition was dismissed by High Court.

----S.5---Suit for pre-emption---Objection of pecuniary jurisdiction was not raised before Trial Court---Such objection could not be allowed to be raised at revisional stage.

Muhammad Nawaz for Petitioner.

Malik Abdul Wahid for Respondent.

Date of hearing: 25th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3044 #

2010 Y L R 3044

[Lahore]

Before Manzoor Ahmad Malik and Hassan Raza Pasha, JJ

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 196 and Murder Reference No. 491 of 2006, heard on 13th July, 2010.

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

----S.302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Dying declaration---Scope---Nobody was named as an accused in the F.I.R.---Complainant in his subsequent statement had involved the accused as the murderer of his brother---Two other witnesses had also claimed to have seen the occurrence---Ocular evidence furnished by all the three witnesses including the complainant was of no avail to the prosecution---Statement of the deceased made before police before his death had been proved on record---Police Officer deposing in the Court had stuck to his stance that he had recorded the said statement of the deceased, wherein the deceased had specifically named the accused as the person who had fired at him---No suggestion had even been made to the said witness that he had not recorded the statement of the deceased---Statement of the deceased made in an injured condition, thus, had attained the status of dying declaration---Dying declaration did not necessarily require to be made before a specific person---Accused had been specifically attributed the role of firing at the deceased with a pistol in the dying declaration, which alone was sufficient in the circumstances for maintaining the conviction of accused---However, accused had fired only one shot and there was no deep-rooted enmity between the parties---Even the motive disclosed by complainant in his supplementary statement - was different from the motive mentioned by the deceased in his dying declaration---Conviction of accused was upheld, but his sentence of death was reduced to imprisonment for life in circumstances.

2010 SCMR 55; PLD 2007 SC 111; Ghulam Murtaza v. State 2004 SCMR 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203, Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 ref.

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

----Art. 46---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd--- Appreciation of evidence---Dying declaration---Scope---If dying declaration is made even before a private person which is free from influence and the person before whom such dying declaration was made had been examined, then it becomes substantive piece of evidence, for which no corroboration is required and the same can be made basis for conviction.

2010 SCMR 55 ref.

Syed Mumtaz Hussain Shah Sherazi for Appellant.

Basharat Ullah Khan for the Complainant.

Ahmad Raza Gilani A.P.-G. for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 3050 #

2010 Y L R 3050

[Lahore]

Before Manzoor Ahmad Malik, J

ZAHEER AHMAD and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 307 and Criminal Revision No. 128 of 2008, heard on 14th July, 2010.

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

----S.302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Prosecution case was solely founded on circumstantial evidence--- Complainant, father of deceased, did not nominate any person as an accused in the F.I.R., but had named the present accused in his subsequent application on the information of two witnesses---Evidence of motive was hearsay evidence and the same was inadmissible, which even otherwise was not reliable---Witness of last seen was not the resident of the place where he had seen the deceased with the accused and he could not plausibly explain his presence at. the said place at the relevant time---Extrajudicial confession had been allegedly made by all the four accused after going together to the witness who was closely related to the deceased and was sitting in the house of the complainant and had no status in the society to prompt them to make a confession before him---No reliance could be placed on the statement of said witness---Recovery of some stones by Investigating Officer ten days after the occurrence was of no use, as the same were not blood-stained and being ordinary stones were easily available in the area---Additionally, Investigating Officer had not recovered the said stones at the time of inspection of the place of incident and preparation of the site plan---Prosecution case was not free from doubt---Accused were acquitted in circumstances.

Khurshid Ahmad v. Kabool Ahmad and others PLD 1964 W.P. Karachi 356; Sajid Mumtaz and others v. Bashrat and others 2006 SCMR 231; Ahmed v. The Crown PLD 1951 FC 103-107; Ch. Barkat Ali v. Majo Karam Elahi Zia and another1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. State 1999 SCMR 1034; Siraj v. The Crown PLD 1956 FC 123; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Muhammad Akram v. The State 2009 SCMR 230 ref.

(b) Criminal Procedure Code (V of 1998)---

----S.164--- Extra judicial confession---Nature and essentials-Extra-judicial confession is always considered to be a weak type of evidence---Such evidence can easily be procured in the absence of direct evidence, therefore utmost care and caution is required before placing any reliance on the same---Prosecution must prove that the extra judicial confession was actually made and that it was made voluntarily and truly---Three factors are very important for relying on extra judicial confession; social status of the person before whom extra judicial confession is made; character of such person, and his influence over the family of the deceased.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Ahmed v. The Crown PLD 1951 FC 103-107 ref.

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence--- Circumstantial evidence---Utmost care and caution is required for reaching a just decision---In cases of circumstantial evidence every chain must link with other chain so as to form a continuous chain in the manner that its one end touches the dead body and its other end touches the neck of the accused---Benefit of any missing link in the chain must go to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188 and Asadullah and another v. State 1999 SCMR 1034 ref.

Sardar Muhammad Ishaque for Appellants.

Ch. Sajid Mahmood Chatha for the Complainant.

Khawaja Sohail Farooq, Deputy Prosecutor-General for the State.

Date of hearing: 14th July, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3062 #

2010 Y L R 3062

[Lahore]

Before Pervaiz Inayat Malik, J

Sh. MUHAMMAD NAEEM---Appellant

Versus

Sh. MUHAMMAD SHARIF through Special Attorney---Respondent

S.A.O. No.7 of 2008, heard on 30th June, 2009.

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

----Ss.13(2)(i), (3) & 15---Ejectment of tenant on grounds of default in payment of rent and personal bona fide need--Ejectment application filed by landlord against tenant on grounds of default in payment of rent and personal bona fide need was dismissed by the Rent Controller, but on filing appeal by landlord against order of Rent Controller Appellate Court set aside order of Rent Controller and allowed ejectment application with direction to tenant to hand over vacant possession of property to the landlord---Tenant had impugned order of Appellate Court in second appeal---Landlord produced cogent evidence before the Rent Controller in support of his contention, but, Rent Controller dismissed ejectment application of landlord---Said illegality was rightly corrected by Appellate Court---Default in payment of rent stood admitted---Tenant had not only to pay the rent at the agreed rate of rent, but as per. law had to pay rent at the enhanced rate---Even if tenant continued to pay the normal rent agreed between the parties, without enhancing the rent as per law and failed to pay the enhanced rent tenant would commit a default under the law and liable to be ejected on the ground of default---Landlord had successfully proved his case through cogent evidence that the property in question was required by him for his personal bona fide need---Rent Controller, in view of evidence available on record had committed serious illegality in not allowing ejectment application of the landlord---No illegality existed, in circumstances in the order of Appellate Court assailed through second appellate order.

Syed Muhammad Ali Gillani for Appellant.

Mirza Aziz Akbar Baig for Respondent.

Date of hearing: 30th June, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 3064 #

2010 Y L R 3064

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD IQBAL and 14 others---Petitioners

Versus

MUHAMMAD HANIF and 4 others---Respondents

Civil Revision No. 255 of 2002, decided on 13th July, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Arbitration Act (X of 1940), Ss.22 & 17---Suit for declaration---Suit land was exchanged between the parties and mutations were sanctioned on the basis of exchange deed in favour of both the parties in pursuance of order passed by Civil Judge---Trial Court appointed local commission for demarcation of suit property---Parties filed application for decision of disputed property through arbitration during pendency of litigation---Trial Court appointed five-member committee of arbitrators which announced award in the light whereof Trial Court dismissed the suit---Appellate Court set aside the judgment and decree and remanded the case to Trial Court with direction to frame issue to determine whether the parties were provided an opportunity to file their objections to the award---Validity---Trial Court referred the matter to the arbitrators without framing the issues and recording the statements of the parties---Plaintiffs were not provided any opportunity to file objections to the award and arbitrators summoned the plaintiffs only at the time of pronouncement of the award---Statements of parties were not recorded at the time of nominations of arbitrators which was a mandatory provision for the appointment of arbitrators---Appellate Court, therefore, had rightly remanded the case to the Trial Court---Impugned judgment and decree did not suffer from any illegality or irregularity---Revision was dismissed in circumstances.

Muhammad Tufail and Muhammad Sharif Chohan for Petitioners.

YLR 2010 LAHORE HIGH COURT LAHORE 3068 #

2010 Y L R 3068

[Lahore]

Before Hassan Raza Pasha, J

MUHAMMAD RAMEEZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1108-B of 2010, decided on 20th July, 2010.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---No direct evidence of murder of deceased was available against the accused---Sim of the cell number of the last call received by the deceased, was not in the name of accused---Cringe empty recovered from the spot having been sent to Forensic Science Laboratory after seven days of the arrest of accused, had no evidentiary value---Accused had been nominated by the complainant in his supplementary statement---Eye-witnesses had admittedly reached the place of occurrence when the deceased was lying in injured condition---No specific role had been attributed to accused in the occurrence---Case of accused needed further inquiry and he could not be denied the right of bail merely on the ground that the offence fell within the prohibitory clause of S. 497(1) Cr.P.C.---Although trial had commenced and two prosecution witnesses had been examined, yet the trial was not likely to conclude soon---Co-accused had already been released on bail by High Court---Accused on the rule of consistency was also entitled to the same relief---Bail was allowed to accused in circumstances.

Muhammad Shahid v. The State 2009 YLR 2281; Muhammad Ali v. The State 2008 PCr.LJ 87; Muhammad Ilyas v. The State 2009 YLR 2311; Muhammad Mansha v. The State 2006 PCr.LJ 47; Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525, The State through Force Commandar, Anti Narcotics Force, Rawalpindi v. Khalid Sharif 2006 SCMR 1265; Rana Muhammad Safdar v. Gulzar Ali alias Papoo (2) The State 1999 PCr.LJ 1 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Case of further inquiry---Prohibitory clause not a bar---If reasonable ground appeared that accused was not guilty of the offence with which he was charged, he 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 for grant of bail to him.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Muhammad Arshad Tabraiz for Petitioner.

Ch. Abdul Aziz for the Complainant.

Muhammad Shafique S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 3070 #

2010 Y L R 3070

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD SADIQ---Appellant

Versus

THE STATE and another---Respondent

Criminal Appeal No. 164 of 2007 and Criminal Revision No. 298 of 2006, heard on 22nd July, 2010.

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

----Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Statement of deceased made before his death had been proved by the Investigating Officer---Eye-witnesses had also supported the said version of the deceased---Plea taken by accused in his defence had not been substantiated on record by producing any evidence---Parties had not come to the court with clean hands and had tried to suppress their own role and to highlight the role of the other side---Court, however, could draw the inference that would flow properly from the evidence and circumstances of the case---Case was one of sudden fight---No long-standing enmity existed between the parties--- Occurrence was not premeditated---Wife of accused had also been injured in the incident---Conviction of accused was converted from S.302(b), P.P.C. to S.302(c), P.P.C. and his life imprisonment was reduced to ten years' R.I. in circumstances.

Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 ref.

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

---Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Principle---Court must not be deterred by the incomplete tale, where parties do not come out with the true story and while suppressing their own role highlight the role of the other side, from drawing the inference flowing properly from the evidence and circumstances of the case.

Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 ref.

Raja Zahoor Ahmad for Appellant.

Khawaja Sohail Iqbal, Deputy Prosecutor-General for the State.

Raja Ikram Amin Minhas for the widow.

Date of hearing: 22nd July, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3079 #

2010 Y L R 3079

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

MUHAMMAD TARIQ and others---Petitioners

Versus

CHAIRMAN/CIVIL MEMBER BAC and others---Respondents

Writ Petition No. 12-R of 2009, decided on 29th April, 2010.

West Pakistan Border Area Regulations, 1959 [MLR No.9]---

----Paras. 4 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of land under Border Area Scheme---Cancellation of allotment---Counsel for the petitioners had contended that petitioners who had major shares in the subject land had not been heard properly---Counsel for the Border Area Committee had submitted that notices were issued to the petitioners, but they did not appear---Counsel for the respondent Border Area Committee, however was not in possession of any document showing service of notices upon the petitioners--Impugned order having been passed against the petitioners without hearing them, in the interest of justice, said order to the extent of the petitioners, was set aside, with direction that Border Area Committee would hear the petitioners and after providing them necessary opportunity of hearing, would decide the case afresh in accordance with law expeditiously.

Ch. Muhammad Hussain for Petitioners.

Amir Zahoor Chohan for Respondent No.1/Border Area Committee.

YLR 2010 LAHORE HIGH COURT LAHORE 3080 #

2010 Y L R 3080

[Lahore]

Before Ijaz-ul-Ahsan and Sh. Ahmad Farooq, JJ

HASSAN AUTOMATION through Chief Executive and another---Appellants

Versus

WORLD DATACOM (PVT.) LTD. through Chief Executive---Respondent

R.F.A. No. 416 of 2006, decided on 21st June, 2010.

Arbitration Act (X of 1940)---

----Ss. 20 & 40---Application for appointment of arbitrator---Defendant filed petition under S.40 of the Arbitration Act, 1940 for recovery of certain amount on the basis of contract---Both the matters were consolidated---Trial Court rejected defendant's application for submission of amended list of witnesses--Trial Court, during pendency of the revision by defendant in the court of Additional District Judge made the award Rule of the court, passed decree accordingly and dismissed defendant's application through a consolidated judgment---Defendant contended that the Trial Court closed his right to produce evidence without any notice and passed impugned judgment without any material evidence on record; that he was not given any notice to join proceedings after the Trial Court had received back record of the case from the revisional Court and that though the case was adjourned for evidence of defendant yet neither any evidence was recorded on the fixed date nor any request was made by defendant for adjournment---Held, Trial Court was not justified in closing the right of defendant to produce evidence--Trial Court decided the case without any material evidence on record---Law favours decisions made on merits without allowing technicalities to thwart the course of justice---Impugned judgment was set aside, case was remanded to the Trial Court to be decided afresh after affording both parties opportunity to produce their evidence.

Amanullah Khan and 5 others v. Mst. Hayat Bibi and 4 others 2006 CLC 1546; Mst. Nazima Batool v. Sabar Ali Shah 2004 CLC .1175; Alam v. Mirza Hashim Baig 2004 YLR 818 and Ghulam Mustafa and another v. Muhammad Aslam 2007 CLC 343 ref.

Muhammad Masood Jehangir for Appellant.

Ex parte for Respondent.

Date of hearing: 2nd June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3087 #

2010 Y L R 3087

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

THE STATE---Petitioner

Versus

ABDUL MAJEED---Respondent

Murder Reference No. 650 of 2003, decided on 10th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 379 & 411---Qatl-e-amd, theft and dishonestly receiving stolen property---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---F.I.R. in the case was promptly lodged, wherein accused was named with a specific role---Ocular account was furnished by the complainant and other prosecution witness who had no enmity or motive against accused to falsely depose against him---Statements of complainant and prosecution witnesses on material points, were identical to each other and despite cross-examination the defence could not shake their testimony---Even otherwise, substitution in such-like cases was a rare phenomenon as it could not be expected from the real brother of the deceased that he would let off the real killer and involve an innocent person with whom he had no enmity---Ocular account furnished by said eye-witnesses found support from medical evidence---Statement of Doctor who conducted post-mortem on the dead body, was similar to the statement of the prosecution witness---Time given by the Doctor qua infliction of injuries and of the occurrence coincided with each other--Deceased who at the relevant time was injured died three days after the occurrence, had recorded his statement under S.161, Cr. P. C., which statement had become dying declaration after his death wherein the story given by him had supported the story given in the F.I.R.---Police Officer appeared as prosecution witness before the court and proved the case and his statement could not be lightly ignored---Statement of a dying man was considered to be substantive piece of evidence---Accused remained absconder for a period of more than one and a half years and without any reasonable and plausible explanation said abscondence was a corroborative piece of evidence in the case---If recovery of Danda and wrist watch was excluded in the prosecution case, even then there was sufficient material in the form of ocular account, medical evidence, dying declaration and abscondence to prove case against accused coupled with the fact that it was the quality which weighed with the court and not the quantity---Prosecution in circumstances, had proved its case against accused beyond any shadow of doubt to sustain conviction of accused---Conviction of accused under Ss.302(b), 397 & 411, P.P.C. were maintained, however it was not a case of capital punishment as there were mitigating circumstances; firstly, the main object of accused persons was to rob the deceased and had no intention to kill the deceased as the deceased was given 'danda' blows only when he showed resistance to snatching of motorcycle by accused and his co-accused after snatching it, no injury was caused to anybody and secondly, prosecution case was that co-accused was carrying a pistol at that time, but no shot was fired from the said pistol either at the deceased or the complainant--Sentence of death of accused was converted into imprisonment for life, however, the convictions and sentences awarded to accused under Ss.397 & 411, P.P.C. by the Trial Court were maintained along with compensation.

Majeed v. The State 2010 SCMR 55; Farmanullah v. Qadeem Khan 2001 SCMR 1474; Muhammad Ahsan alias Aksan v. The State PLD 2006 SC 163; Muhammad Rafiq v. The State PLD 2005 SC 186; Mirza Khan and another v. The State 2005 SCMR 1110; Mst. Dur Naz and other v. Yousuf and another 2005 SCMR 19 Muhammad Riaz v. The State 2004 SCMR 897 and Mst. Rashida v. Khan Bahadur and another 1992 SCMR 1036 ref.

Ijaz Ahmad Bajwa for the State.

M.M. Alam Chaudhry, Additional Prosecutor-General for the State.

Nemo for the Complainant.

Date of hearing: 10th March, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3093 #

2010 Y L R 3093

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAHZAD alias SHADDA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9225-B of 2009, decided on 3rd August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.394/412---Voluntarily causing hurt in committing robbery---Bail, grant of---Benefit of doubt---F.I.R., showed that the name of accused was not mentioned therein and it was in supplementary statement that his name appeared as one of the accused, without disclosing any source, from which the complainant came to know his name and other particulars---Record revelaed that the mother of accused filed habeas corpus petition and a Bailiff produced accused before the High Court as an alleged detenu---Accused claimed that he had been arrested and was severaly tortured---Sufficient material was available to cause reasonable doubt about the involvement of accused in the case---Wherever reasonable doubt was noticed and matter required deeper appreciation, bail could be granted to accused, even in offences falling within the prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

PLD 1972 SC 277 ref.

Muhammad Tanveer Chaudhry for Petitioner.

Rana Muhammad Azhar Javed, D.P.-G.

Khadim Hussain, S.-I. along with record.

ORDRE

EJAZ AHMAD CHAUDHRY, J.--Shahzad alias Shadda, petitioner, seeks post-arrest bail in case F.I.R. No. 847 of 2008 dated 23-10-2008 under sections 394/ 412, P.P.C. registered with Police Station, Sargodha Road, Faisalabad.

The learned counsel for petitioner contends that the petitioner was arrested on 22-10-2008; that mother of the petitioner filed Habeas Corpus Petition No.1203-H of 2008 in this Court; the petitioner was recovered and produced before this Court, when it was brought to the notice of this Court that the petitioner was an accused of case F. I. R. No. 703 of 2008 under section 392, P.P.C. and that his arrest in that case was recorded as on 27-10-2008 at 7-30 a.m. It is further contended that in the case in hand the petitioner has been nominated on the basis of supplementary statement, but no source of the information has been brought on record; that the Police has allegedly effected some recoveries, which, however, do not connect the petitioner with the alleged incident.

YLR 2010 LAHORE HIGH COURT LAHORE 3098 #

2010 Y L R 3098

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

GHULAM NABI---Petitioner

Versus

Mst. ASIA PERVEEN and 3 others---Respondents

Writ Petition No. 9838 and Criminal Original No. 925-W of 2010, decided on 5th July, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Arts.199 & 204---Constitutional petition--- Petitioner challenged proceedings, conducted by Judge Family Court in respect of dissolution of marriage, on the ground that judgment and decree passed by the said court was without jurisdiction and that the suit was not entrusted to the court as per transfer order---Petitioner also filed criminal original that contempt of court and disciplinary action might be taken against the Judge---Contention of petitioner was that the High Court on transfer application had passed an order on 4-12-2009 and directed both parties to appear before the Senior Civil Judge on 15-12-2009 and the said court entrusted the case to Judge Family Court but, somehow the file had been transferred to Judge Family Court who despite appraisal of transfer application of case from him to some other Judge Family Court and non-cognizance of the same had passed decree on the statement of respondent for dissolution of marriage---Validity---Record revealed that both parties were present before Judge Family Court and had admitted divorce decree and made signatures and thumb impressions on the first page of the impugned order---Record also revealed that as per stamp of entrustment of the case to Judge Family Court, the Senior Civil Judge entrusted the case to Judge Family Court on 15-10-2009 and parties were directed to appear on 16-12-2009, therefore, it was not believable that as the transfer order of High Court was of dated 4-12-2009, how the case could be entrusted to Judge Family Court on 15-10-2009 and that too one and half months earlier than transfer order of the High Court---Order of Senior Civil Judge regarding entrustment of suit to Judge Family Court was correct and there was no ambiguity in the said order---High Court dismissed constitutional petition along with criminal original in single judgment and found that proceedings before Judge Family Court had been conducted in accordance with law and impugned order had rightly been passed; no case for contempt of court had been made out.

Ch. Muhammad Asif Ranjha for Petitioner.

Gohar Nawaz Sandhu for Respondent.

Date of hearing: 5th July, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3101 #

2010 Y L R 3101

[Lahore]

Before Ijaz-ul-Ahsan, J

MUHAMMAD RIZWAN QURESHI---Appellant

Versus

SHEHNAZ AKHTAR---Respondent

F.A.O. No.19 of 2010, decided on 10th June, 2010.

(a) 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 and interim injunction---Plaintiff filed suit for specific performance of agreement to sell on the ground that defendant had executed agreement to sell in respect of disputed property and had received a sum of Rs.3,000,000 out of consideration amount of Rs.3,200,000 and possession of property had also been delivered---Plaintiff also filed an application under O.XXXIX, Rr.1, 2, C.P.C. for the grant of interim injunction---Defendant contested suit and denied execution of alleged agreement to sell and stated that plaintiff was her tenant in possession of disputed property and she had received a sum of Rs.100,000 by way of lease money---Trial Court dismissed application for grant of temporary injunction---Contention raised by the plaintiff was that pursuant to the agreement to sell, defendant had received an additional sum of Rs.100,000 through cheque---Validity---Defendant was an old, illiterate and parda observing lady---Defendant had specifically denied having executed agreement to sell or having received any sum by way of sale consideration from the plaintiff---Receipt of a sum of Rs.100,000 had adequately been explained as lease money from the plaintiff who was admittedly in possession as a tenant which was evident from copies of the revenue record---Plaintiff had neither managed to establish a prima facie case nor was able to convince that he would suffer irreparable loss in case the injunction was not granted in his favour---High Court dismissed the appeal against order denying the injunction and observed that remarks made in the order were of tentative nature which should not prejudice final decision of the suit.

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

----O. XXXIX, Rr.1, 2---Interim injunction---Essentials---In order to be entitled for interim relief, the claimant must establish all three ingredients for the grant of interim relief in his favour.

----Art. 84---Agreement to sell---Denial of execution--- Comparison of thumb impression---Dismissal of application for---Prejudice---Plea of---Effect---Contention that application for comparison of thumb impression was not decided by Trial Court, had prejudiced case of the party---Suit was in its initial stages and the question of genuineness of the signatures/thumb impression would be decided by the Trial Court after recording evidence at the appropriate stage---Plea of prejudice was repelled.

(d) Pardanashin lady---

----Where the executant of a document was Pardanasheen or illiterate woman, notwithstanding the fact that she was known to the vendee or was a stranger to him, if she denied the execution of document, the party placing reliance on such document must prove its execution---Burden of proving the negative fact was shifted to such a woman, executant, if the initial burden of proving the genuineness of document was discharged.

(e) Pardanashin lady---

----Identification of an illiterate or Pardanasheen woman, vendor, must be established beyond doubt and court must be vigilant in taking extra care to ascertain the genuineness of a registered document which was alleged to have been executed by an illiterate or parda observing lady.

Abdul Hameed through L.Rs. and others v. Shamsuddin and others PLD 2008 SC 140; Khawas Khan v. Sabir Hussain Shah 2004 SCMR 1259; Ghulam Muhammad v. Farooq Ahmed and others 2002 SCMR 1801 and Arshad Khan v. Mst. Reshman Jhan and others 2005 SCMR 1589 rel.

(f) Document, execution of---

----Document purporting to create a right in the property must be proved to have been actually executed by a person, who allegedly executed such document; however if the executant was an illiterate person and without being aware of the contents of the document, put his/her thumb impression on it at the instance of a third party, even an admission of such thumb impression would not ipso facto raise a presumption of its being a genuine document.

Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808 rel.

Taki Ahmad Khan for Appellant.

Syed Faiz ul Hassan for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 3106 #

2010 Y L R 3106

[Lahore]

Before Manzoor Ahmed Malik, J

SHAHNAZ BIBI---Petitioner

Versus

QAMAR ABBAS and another---Respondents

Criminal Miscellaneous No. 3559/BC of 2010, decided on 20th April, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.336, 365, 337-K & 337-L(i)---Abduction and causing injuries---Bail, cancellation of---Application for---Accused were nominated in the F.I. R. with specific role of abduction and causing injuries to the victim and four injuries were found on her person---Complainant/victim who was present in the court, was unable to raise her arms---All those circumstances which were not only relevant, but material for the disposal of bail petition, were not considered by the court below while allowing bail to accused persons---Bail had been allowed to accused person by just mentioning that no specific role was attributed to accused persons, whereas in the F.I.R. specific allegations were found against the persons mentioned therein---Offence alleged fell within the prohibitory clause of S.497(1), Cr.P.C.---Discretion exercised by the Trial Court was without any valid reason or justification---Bail granting orders of the Trial Court, were recalled and accused were ordered to be taken into custody.

Mst. Haliman Bibi v. The State 2007 PCr.LJ 1367, Muhammad Ahmad Sheikh v. Muhammad Aslam and another 2007 PCr.LJ 1481 and Aurangzeb v. Shakeel Ahmad and another 2008 PCr.LJ 1565 ref.

Ch. Nazir Ahmad Ranjha for Petitioner.

Malik Tanvir Ahmad Khan for Respondents Nos. 1 and 2.

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General.

Muhammad Mehdi, A.S.-I with record.

YLR 2010 LAHORE HIGH COURT LAHORE 3108 #

2010 Y L R 3108

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD USMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7739-B of 2010, decided on 21st July, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.379---Theft---Pre-arrest bail, refusal of--Accused was nominated in the F.I.R. with the specific role of having committed the theft of trees owned by Forest Department by cutting the same---Wood valuing Rs.75,550 had been recovered from the possession of accused---Accused had admitted the crime and deposited the compensation on account of loss caused to Forest Department---Offence under S.379, P.P.C. was being heinous one, extraordinary relief of bail before arrest could not be extended to a thief, who had admitted to have committed the theft---Prearrest bail was refused to accused accordingly.

Rai Muhammad Hussain Khan Kharl for Petitioner.

Ch. Abdul Razzaq, D.P.-G.

YLR 2010 LAHORE HIGH COURT LAHORE 3111 #

2010 Y L R 3111

[Lahore]

Before Ch. Muhammad Tariq, J

Rana PERVAIZ AKHTAR and 6 others---Petitioners

Versus

MUHAMMAD UMAR FAROOQ PASHA through legal heirs and another---

Respondents

Civil Revision No. 402 and R.S.A. No. 11 of 2001, decided on 22nd July, 2010.

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

----Ss. 8 & 42---Suit for declaration for cancellation of registered sale-deed---Predecessor-in-interest of plaintiffs filed suit for declaration for cancellation of registered sale deed on the ground that neither he had signed any document nor made any statement before the Sub-Registrar, nor received consideration for the disputed land---Defendants also filed suit for possession through specific performance of contract against predecessor-in-interest of the plaintiffs---Trial Court dismissed suit for declaration to cancel the registered sale-deed while decreed the suit for possession of the defendants---Appellate Court, on appeals, dismissed both the suits through separate judgments and decrees---Contention raised by defendants was that plaintiffs had failed to produce marginal witnesses of the sale deed even though they were aware of the fact that onus of proof had shifted upon them---Validity---Plaintiffs had failed to produce even a single marginal witness of the sale-deed---Onus to prove that sale-deed was a forged and fabricated document lay with the plaintiffs but they had failed to discharge such duty---Each party had to stand on his own legs---Plaintiffs having failed to prove their case by cogent evidence, High Court dismissed the petition along with the appeal being without force or any jurisdictional error.

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

----Art. 134---Discrepancies in evidence of witnesses during cross-examination---Cross-examination of witnesses, after a long period of time---Effect---Party had pointed out some discrepancies during cross-examination of plaintiffs' witnesses--Minor discrepancies were natural; because evidence of plaintiffs' witnesses was recorded after a long time---Such minor discrepancies in circumstances were to be ignored.

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 134-Non-production of marginal witnesses of the registered sale deed would tantamount that claim of the plaintiffs was not justified.

S.M. Masud for Petitioners.

Nawab Saeedullah Khan for Respondents.

Date of hearing: 22nd July, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3114 #

2010 Y L R 3114

[Lahore]

Before Rauf Ahmad Sheikh, J

KHAN MUHAMMAD---Petitioner

Versus

MUHAMMAD BILAL and another---Respondents

Civil Revision No. 679 of 2006, decided on 9th July, 2010.

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

----Ss. 6 (iii) & 13---Civil Procedure Code (V of 1908), O. VII, R.11---Court Fees Act (VII of 1870), S.28---Plaintiff filed suit for possession through pre-emption on the ground that he being "Shafi Jar" had a common source of irrigation and passage had performed Talb-i-Muwathibat and Talb-i-Ishhad and prayed that suit be decreed in his favour---Defendant contested the suit on the ground that the required court fee was not paid by the plaintiff on valuation of the suit---Trial Court rejected plaint under O. VII, R.11, C.P.C. on the ground that plaintiff had failed to comply with the order of court to affix court fee according to 15 times of the net profits---Appellate Court, on appeal, also dismissed the suit---There were two statements of net profits, one indicating the net profits as Rs.1019.51 arising from Kharif, 2001 to Rabi, 2002 and the other showing net profit of Rs.9695.85 with effect from Kharif, 1998 to Kharif, 2002---Net profits arising out of last five years, was irrelevant for determining the valuation of suit for the purposes of court-fee and jurisdiction---Impugned order was ambiguous and did not mention deficiency in court fee in specific terms which was required to be made up and did not bear a direction requiring the plaintiff to correct the valuation or to make up the deficiency in the court fee indicating the specific amount---Plaint could not have been rejected under O. VII, R.11(b) or (c), C.P.C. in circumstances---High Court remanded the case to Trial Court with the direction that valuation of suit for the purposes of court fee and jurisdiction be determined in accordance with law and if it was found that there was any deficiency in the court fee, the plaintiff be directed in specific and clear terms to make up the same and further directed to Trial Court to decide the suit within three months without fail.

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

----O. VII, R.11---Rejection of plaint---Scope---Order rejecting the plaint was ambiguous and did not mention the deficiency in court fee in specific terms, which was required to be made up and did not bear a direction requiring the plaintiff to correct valuation or to make up deficiency in the court fee indicating the specific amount---Plaint could not have been rejected under O. VII, R.11(b) or (c), C.P.C.

Ch. Nisar-i-Khubaib Sabri for Petitioner.

Arshad Ali Chohan for Respondents.

Date of hearing: 29th June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3125 #

2010 Y L R 3125

[Lahore]

Before Ch. Iftikhar Hussain, J

FAYYAZ alias BAGGI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3754-B of 2010, decided on 19th April, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.337-F(v)/148/149---Causing of hurt "ghayr jaifah"---Bail, grant of---According to F.I.R. and the medical reports some injuries suffered by the daughter of the complainant at the hands of accused fell within the ambit of bailable offences, whereas the rest of her injuries did not attract in offence falling within the prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such-like cases was a rule and refusal an exception---Accused was behind the bars for about six months and bail could not be withheld as punishment in advance---Trial in the case had commenced, even otherwise, the same could not come in the way of grant of bail---Accused was admitted to bail in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Akhtar Hussain Bhatti for Petitioner.

Ch. Abdur Razzaq, D.P.-G. for the State.

Muhammad Yaqub S.-I. with Police record for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 3127 #

2010 Y L R 3127

[Lahore]

Before Ch. Muhammad Tariq and Muhammad Anwar Bhaur, JJ

MUHAMMAD IQBAL alias SHADDI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1821, 1822, 440-J, 1907 Criminal Revision No.1052 and Murder Reference No. 672 of 2003, heard on 3rd June, 2010.

Penal Code (XLV of 1860)---

----S.302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Prosecution version that after offering Fajr prayer and reciting the Holy Quran, deceased proceeded towards a Shrine was just a padding in the story---No incriminating recovery could be effected from two accused---Alleged abscondence of accused having not been put to them during their examination under S.342, Cr.P.C. could not be benefited by the prosecution---Eye-witnesses were neither natural nor truthful witnesses and they were not present at the spot at the relevant time---Occurrence had not taken place at the alleged place of incident or in the manner as claimed by the prosecution---Accused were acquitted in circumstances.

Malik Saeed Hassan for Appellant.

Khawaja Sultan Ahmed for Complainant.

M. M. Alam, A.P.-G. for Respondent.

Date of hearing: 3rd June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3137 #

2010 Y L R 3137

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mrs. SHAUKAT AMJID and others---Petitioners

Versus

Sheikh AHMAD SAEED and another---Respondents

Writ Petition No. 8495 of 2007, heard on 12th July, 2010.

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

----S. 13(6)---Constitution of Pakistan (1973), Art.199-Constitutional petition---Inherent jurisdiction of Rent Controller---Scope---Recalling of its order by Rent, Controller on examination of documents available on record---Effect---Petitioners had challenged the order of Rent Controller in constitutional petition on the ground that Rent Controller while passing order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 had no jurisdiction to review its own order---Respondents raised contention that impugned order was not, in fact a review but was an order passed under the inherent jurisdiction which was available to the Rent Controller---Validity---Authority competent to issue order had also the power to vary or recall that order---Rent Controller had inherent power to rectify its own order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 and to frame issue about existence of relationship of landlord and tenant keeping in view the pleadings of parties---Impugned order showed that Rent Controller had recalled its order on examination of documents available on record under its inherent jurisdiction---Petitioner had failed to make out a case for interference in the impugned order; however it was an ejectment application and the parties were litigating with each other since long, it was appropriate that the Rent Controller should decide the petition expeditiously and as such the Rent Controller was directed by High Court to decide the ejectment petition within two months under intimation to the Deputy Registrar of High Court---Constitutional petition was dismissed.

Messers Pakistan Industrial Chains Company v. American Oriential Lines Inc. flew York and others PLD 1968 Kar. 89 and Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603 ref.

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

----S.13---Rent Controller---Inherent jurisdiction---Scope---Setting aside of ex parte order---Validity---No provision existed in the West Pakistan Urban Rent Restriction Ordinance, 1959 for setting aside ex parte ejectment order, but the Rent Controller could enjoy its inherent powers to set aside such order.

----S.13---Review---Review was a creation of statute and admittedly in the West Pakistan Urban Rent Restriction Ordinance, 1959, the Rent Controller had no power to exercise the power of review, but Rent Controller being a quasi-judicial tribunal had the power to summon witness and to adopt procedure provided in the Civil Procedure Code, 1908 and under the Ordinance, the Rent Controller was competent to pass order judiciously according to circumstances of each and every case.

Muhammad Ayub Shaheen for Appellant.

Agha Abul Hassan Arif for Respondent.

Date of haring: 12th July, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3142 #

2010 Y L R 3142

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD HAFEEZ---Petitioner

Versus

DISTRICT POLICE OFFICER NAROWAL and 4 others---Respondents

Writ petition No. 2913 of 2010, decided on 13th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 156 & 173---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Reinvestigation of case---When case got registered by the respondent/ complainant against the petitioner was under investigation complainant moved for transfer of the investigation, but Standing Board comprising three Police Officers, did not agree to his request---Same Board subsequently recommended to change the investigation---Validity---Petitioner/accused had neither been tried earlier nor his case was finally decided up to the level of Supreme Court---No legal bar existed for reinvestigation of criminal case, even after submission of final report under S.173, Cr.P.C.---Police could carry out fresh investigation after submitting the report to the Court; however, that would not mean that in a case wherein after completion of investigation, challan was submitted for trial of an offence on which accused had been tried and the case was finally decided upto the level of High Court or the Supreme Court, subsequent challan would be entertained, which was submitted as a result of reinvestigation or further investigation of the case by the Police on the happening of a subsequent incident and that the Court would proceed with the trial in the case in normal course---In the present case, accused had neither been tried earlier nor his case was finally decided upto the level of Supreme Court---Nothing was wrong, in circumstances, with the reinvestigation of the case---Petition having no force was dismissed as such.

Javaid Iqbal v. Additional Inspector-General of Police, Lahore and 4 others PLD 2008 Lah. 488; Din Muhammad Shakir alias D.M. Shakir v. D.S.P. Ichhra, Lahore PLD 1977 Lah. 180 and Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

Ch. Ijaz Akhtar for Petitioner.

Wali Muhammad Khan, A.A.-G. with Muhammad Javed, S.P. (Investigation)/Respondent No.2 and Mukhtar Ahmad, Inspector with record.

Complainant in person.

YLR 2010 LAHORE HIGH COURT LAHORE 3150 #

2010 Y L R 3150

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1145 of 2009 and Murder Reference No. 162 of 2004, decided on 11th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Injuries sustained by the co-accused during the incident had been suppressed by the prosecution not only in the F.I.R. but before the Trial Court as well---Both the parties in the case had not come with truth regarding the motive of the occurrence, the manner in which the occurrence had taken place and how the injuries were suffered by various persons of either side---Contention that accused had acted in his self defence did not inspire confidence, as no such plea had been taken before Trial Court---Positive report of Serologist regarding the hatchet recovered from the accused was not so material, because it was not clear from the evidence as to when the hatchet was sent to Malkhana, how long it remained there and when it was dispatched to Chemical Examiner---Prosecution, thus, had failed to prove that it was a case of Qatl-e-amd falling under S.302(b), P.P.C.---Conviction of accused under S.302(b), P.P.C. was consequently altered to S.302(c), P.P.C. and his death sentence was reduced to ten years' R.I in circumstances.

Ahmad Din v. Faiz Ahmad and 2 others 1972 SCMR 549; Muhammad Riaz v. The State 2006 SCMR 954; Aziz Ullah v. The State 2008 SCMR 922; Tasawar Ahmad v. The State 2008 PCr.LJ 202 and Ghulam Sarwar alias Baga v. The State 2002 PCr.LJ 908 ref.

Tassawar Hussain Qureshi for Appellant.

M.M. Alam, Additional Prosecutor-General for the State.

Nemo for the Complainant.

Date of hearing: 22nd Mach, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3159 #

2010 Y L R 3159

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD AKRAM---Petitioner

Versus

YASEEN through L.Rs. and another---Respondents

Civil Revision No.2807 of 2010, decided on 21st July, 2010.

Oaths Act (X of 1873)---

----S. 8---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Offer to decide suit on oath--- Acceptance of offer--- Scope---Plaintiff offered that if special attorney of the defendants stated on oath that no agreement was executed by defendants with plaintiff, then suit of the plaintiff be dismissed---Special attorney of the defendants stated on oath that the suit was frivolous and defendants had never executed any agreement with the plaintiff--Effect---Held, in the light of the statement of special attorney of defendants on oath, the suit of the plaintiff was dismissed which should amount to all consent decree--Plaintiff could not be allowed to resile from his commitment---High Court maintained judgments and decrees of both courts below---Petition was dismissed.

Zahid Hussain Khan for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 3161 #

2010 Y L R 3161

[Lahore]

Before Shahid Hameed Dar, J

EHSANULLAH and 2 others---Petitioners

Versus

MANZAR HUSSAIN---Respondent

Criminal Revision No. 439 of 2010, decided on 7th June, 2010.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss.3/4---Application filed by the accused petitioners under S. 265-K, Cr.P.C. in a private complaint instituted by the respondent under Ss.3/4 of Illegal Dispossession Act, 2005, had been dismissed by Trial Court---Validity---Second complaint filed by the respondent on the same subject did not suffer from any defect, as the earlier complaint had not been decided on merits---Civil litigation between the parties could not bar the criminal proceedings initiated by the complainant in the form of a challan case or a complaint case and both civil and criminal proceedings could proceed ahead parallel to each other under the law---According to the complainant, he had been dispossessed of his landed property by the accused persons, which was an offence punishable under the Illegal Dispossession Act, 2005---Impugned order was based on cogent reason and dismissal of the application moved by accused under S.265-K, Cr.P.C. for acquittal, was neither capricious nor arbitrary---Revision petition was dismissed in circumstances.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss.3/4---Second complaint---Practice and procedure---Law does not restrict filing of second or third complaint on the same subject under Ss.3/4 of Illegal Dispossession Act, 2005, if the earlier complaint had not been decided on merits.

----Ss.3/4---Civil and criminal proceedings---Practice and procedure---Civil and criminal proceedings on the same subject can proceed ahead parallel to each other, under the law.

Ch. Muhammad Anwar Bhindar for Petitioner.

Sahibzada M.A. Amin Mian, Additional Prosecutor-General for Respondent.

YLR 2010 LAHORE HIGH COURT LAHORE 3164 #

2010 Y L R 3164

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAHZAD alias SAJID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2950-B of 2010, decided on 9th April, 2010:

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-A(ii), 337-F(iii), 337-L(ii), 395, 148 & 149---Attempt to commit qatl-e-amd and dacoity---Bail, grant of---Detention period of accused was spread over a year and about two months, which was a long period---Twice the direction was issued by the High Court to the Trial Court to conclude the trial within a specified period of time, but such directions were never complied with---Speedy trial was right of an accused, which could not be denied to him without any due or just cause---Complainant had not been able to convince that accused in any manner was responsible to occasion delay in the trial---Contention that accused had earlier remained an absconder, was absolutely irrelevant and without significance for the purpose of disposal of the matter---Accused had a case for bail only on the score of non-compliance of direction of High Court issued more than once---Accused was admitted to bail, in circumstances.

Gul Hasan Penhyar v. The State 1997 SCMR 390 and Gul Muhammad and another v. The State 2003 MLD 154 ref.

Imran Javed Gil for Petitioner.

Ch. Muhammad Aslam Sindhu, Additional Prosecutor-General on behalf of respondent No.1/the State with Muhammad Akbar, S.-I. with police record.

Respondent No. 2 Iftikhar Ahmad, Advocate/Complainant in person.

YLR 2010 LAHORE HIGH COURT LAHORE 3167 #

2010 Y L R 3167

[Lahore]

Before Hajiz Abdul Rehman Ansari, J

Mst. SHUMAILA BIBI---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No. 2511 of 2010, decided on 26th March, 2010.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for jactitation of marriage---Plaintiff's application for summoning some witnesses was dismissed during pendency of the suit by the Trial Court---Validity---Order of dismissal of application was an order of interim nature which did not bear the characteristic of a 'final order', therefore, same could not be assailed in constitutional jurisdiction---Constitutional petition was dismissed.

Ishfaq Ahmad v. Judge, Family Court 2007 YLR 1550 and Abdul Karim v. Ata Mansoor 2007 CLC 1671 rel.

Nasir-ud-Din Mehmood for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 3171 #

2010 Y L R 3171

[Lahore]

Before Ch. Iftikhar Hussain, J

HABIB MUSTAFA and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6437-B of 2010, decided on 5th July, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.420/468/471---Cheating, forgery for cheating, using as genuine a forged document---Pre-arrest bail, grant of---Forged and fictitious agreement to sell was in question---Suit for specific performance of the contract with permanent injunction had been brought by the accused and another suit for declaration along with cancellation of the agreement to sell had been filed by the complainant---Both the suits of the parties were pending before a Civil Court, in which the question of genuineness of the said document was directly and substantially in issue--High Court, therefore, did not deem it appropriate to go into the detail of the same at such stage, lest it might be prejudicial to any party---Case against accused was amply covered under S.497(2), Cr.P.C. calling for further inquiry into their guilt---Accused had joined the investigation before DSP---Document in question was in the challan file pending before the Magistrate---Ad interim pre-arrest bail allowed to accused was confirmed in circumstances.

Miss Rushda Lodhi for Petitioner.

Ch. Abdur Razzaq, D.P.G. for Respondent No.1/State with Muhammad Aslam Rana, Inspector and Ijaz Ali, S.-I./Investigating Officer with police record.

G.A. Khan Tariq for Respondent No.2/Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 3177 #

2010 Y L R 3177

[Lahore]

Before Ijaz Ahmad Chaudhry, J

INAMUDDIN KHAN---Petitioner

Versus

THE STATE and anther---Respondents

Criminal Miscellaneous No. 4938-B of 2010, decided on 19th May, 2010.

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

----S.498---Penal Code (XLV of 1860), Ss. 409/420/468/471/109/166---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, cheating, forgery, using forged document as genuine, abetment, disobeyance of law by public servant to cause injury to another person and criminal misconduct---Pre-arrest bail, refusal of---Accused was a Building Inspector and all the illegal constructions had been raised in the specified buildings during his tenure of service---Director Town Planning during investigation had specifically incriminated the accused with the commission of the offences--- Sufficient incriminating material was available against the accused connecting him, prima facie, with the crime---Extraordinary concession of pre-arrest bail could only be extended to an accused involved in false criminal cases with the connivance of complainant---Record did not show any ill-will or bitterness between the complainant and the accused for false implication of the latter by the former---Reasonable grounds existed to believe the involvement of accused in the alleged offences---Pre-arrest bail was declined to accused in circumstances.

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

----S.498---Pre-arrest bail---Scope---Pre-arrest bail is an extraordinary relief which is always extended in favour of the person who has been involved in a false criminal case with the connivance of the complainant.

Syed Sajjad Haider for Petitioner with Petitioner in person.

Ch. Amjad Hussain, Deputy Prosecutor-General for the State with

Abdul Sattar, A.S.-I, ACE, Lahore with record.

YLR 2010 LAHORE HIGH COURT LAHORE 3179 #

2010 Y L R 3179

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. ADAN MUSHTAQ---Petitioner

Versus

SHAHID MAJEED and others---Respondents

Writ Petitions Nos. 8117 and 9475 of 2009, decided on 23rd February, 2010.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for dissolution of marriage, recovery of dowry articles, or in the alternative price of Rs. 6,00,000 and for maintenance allowance at the rate of Rs.10,000 per month---Defendant contended that the petitioner took all her articles with her when she left his house---Trial Court decreed the plaintiff's claim for dissolution of marriage on the basis of khulla, maintenance allowance at the rate of Rs.2,000 per month for the Iddat period of three months while decreed the price of dowry articles in the alternative at the value of Rs.200,000---Plaintiff's claim of recovery of gold ornaments, however, was not accepted---Plaintiff filed appeal praying for decree of the suit in toto as claimed by her---Defendant filed a separate---Appellate Court by consolidating both appeals dismissed the same---Validity---Findings of the courts below were based on cogent reasons---Concurrent findings of both the Courts below did not need any interference in constitutional jurisdiction---Constitutional petition was dismissed.

Makhdoom Syed Mumtaz Hussain for Petitioner.

Muhammad Mushtaq Chaudhry for Respondent in this Petition and for the Petitioner Shahid Majeed in Writ Petition No. 9475 of 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 3184 #

2010 Y L R 3184

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

Chaudhry ASGHAR SHAHEEN-Petitioner

Versus

Raja MUNAWAR HUSSAIN and 12 others---Respondents

Writ Petition No. 8949 of 2010, decided on 6th May, 2010.

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

----S. 6---'Terrorism'---Determination as to whether an offence falls within the ambit of S.6 of Anti-Terrorism Act, 1997---Essentials elaborated.

Basheer Ahmad v. Muhammad Siddique' and others PLD 2009 SC 11 ref.

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

----Ss.6/7 & 23---Penal Code (XLV of 1860), Ss. 324/440/452/506/337-A(ii)/337-L(2)/109---Constitution of Pakistan (1973), Art. 199---Act of terrorism, attempt to commit qatl-e-amd, mischief committed after preparation made for causing death for hurt, house-trespass after preparation or hurt, assault or wrongful restraint, criminal intimidation, causing hurt, abetment---Constitution petition---Transfer of case by Anti-Terrorism Court to Regular Court for trial---Validity---Motivation, object, design or purpose behind an act had to be assessed to label the same as a terrorist act---Two groups of Advocates had clashed with each other in a full house session of District Bar Association with the agenda of discussing the probabilities of dismembering certain Members of District Bar Association, which was purely a personal agenda and had nothing to do with any design to commit the act of 'terrorism'---Receipt of injuries by a few during the occurrence was, at the most, an aftermath of the brawl between the two groups of Advocates and by no stretch of imagination the occurrence contained in the F.I.R. or in the private complaint could be termed as an act of terrorism---Anti-Terrorism Court had rightly concluded on sufficient reasons that the occurrence did not fall within the mischief of terrorism as defined in section 6 of Anti-Terrorism Act, 1997, and had termed the same as a purely indigenous trouble, haunting affairs of the District Bar Association---Impugned order of transfer of case to the Court of Area Magistrate did not suffer from any misreading or non-reading of the record---Constitutional petition was dismissed in limine in circumstances.

Basheer Ahmad v. Muhammad Siddique and others PLD 2009 SC 11 ref.

Ahmad Awais for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 3189 #

2010 Y L R 3189

[Lahore]

Before Syed Mansoor Ali Shah, J

GHULAM MURTAZA---Petitioner

Versus

Rana MUHAMMAD HAFEEZ and another---Respondents

Writ Petition No. 8966 of 2010, decided on 10th June, 2001.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 22(2) & (6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Leave to contest ejectment petition, application for---Filing of leave application after expiry of prescribed statutory period without explaining delay---Order of Rent Tribunal accepting leave application--- Validity--- Provisions of S.22(2) of Punjab Rented Premises Act, 2009 were mandatory as subsection (6) thereof provided for passing of final order in case of non filing of leave application within statutory period---Leave application was time-barred and could not be entertained---Tribunal had not given any reason for passing impugned order---High Court set aside impugned order and directed Tribunal to decide ejectment petition in terms of S. 22(6) Punjab Rented Premises Act, 2009 by passing a final order.

Waseem Mumtaz Malik for Petitioner.

Muhammad Riaz Hanjra for Respondent No.1.

YLR 2010 LAHORE HIGH COURT LAHORE 3201 #

2010 Y L R 3201

[Lahore]

Before Hassan Raza Pasha, J

MIR DAD---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB---Respondent

Writ Petition No. 1406 of 2010, heard on 23rd April, 2010.

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

----Ss. 156 & 173---Police Order (22 of 2002), Art. 18(6)---Penal Code (XLV of 1860), Ss. 302/324/427/148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan (1973), Art. 199--Qatl-e-amd, attempt to commit qatl-e-amd, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapons, acting in prosecution of common object of unlawful assembly, committing an act of terrorism---Constitutional petition---Second change of investigation challenged---Inspector-General of Police vide impugned order had approved the second change in investigation entrusting the same to DSP, Investigation Branch--Issue was, whether the Police Authorities were empowered to initiate re-investigation in respect of the same crime, for which they had already filed report under S.173, Cr. P. C. in the Court---Provisions of Article 18(6) of the Police Order, 2002, had empowered the duly constituted Board to recommend for re-investigation of the case even after the submission of the challan in the case and such reinvestigation could not be debarred---Job of Investigating Officer was only to collect all the relevant evidence pertaining to the allegations levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the Court to administer justice between the parties---Successive investigations in the case, no doubt, were deprecated by Superior Courts, with the intent to avoid undue lingering on the case, but how a subsequent challan which was almost complete for submission in the Court could be withheld or brushed aside---Even otherwise, submission of subsequent challan in the Court was not debarred under the Criminal Procedure Code, 1898---However, it was entirely the discretion of the Court to admit additional evidence if it had already taken the cognizance of the case submitted to it by the police---Complainant in case of any grievance had an alternate remedy of filing a private complainant---Constitutional petition was dismissed in circumstances.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Ashiq Ali v. Deputy Inspector-General of Police, Punjab, Lahore and 4 others 2008 PCr.LJ 830; Javaid Iqbal v. Additional Inspector General of Police, Lahore and 4 others PLD 2008 Lah. 488; Muhammad Naseem v. S.H.O. Police Station Thikriwala, District Faisalabad and 2 others 1997 MLD 1555; Saddar Din v. Deputy Inspector-General of Police (Investigation), Capital City Police, Lahore and 6 others PLD 2009 Lah. 585; Muhammad Yousaf v. The State and others 2000 SCMR 453 and Khizar Hayat and others v. Inspector General of Police Lahore and others PLD 2005 Lah. 470 ref.

Atta Muhammad v. Inspector General of Police PLD 1965 Lah. 734 rel.

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

----Ss. 156 & 173---Police Order (22 of 2002), Art. 18(16)---Re-investigation after submission of challan in Court---Validity--Re-investigation of a case after submission of the Challan in the Court could be debarred.

Atta Muhammad v. Inspector General of Police PLD 1965 Lahore 734 rel.

Raja Rizwan Abbasi for Petitioner.

Syed Zafar Ali Shah and Syed Ali Shah Bukhari for Respondent.

Abdul Wahid Babar A.A.-G. for the State.

Date of hearing: 23rd April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3206 #

2010 Y L R 3206

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD KABIR AHMED PIRACHA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous 3871-B of 2009, decided on 2nd June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Pre-arrest bail, confirmation of---Dishonoured cheque was not issued dishonestly by accused nor to repay a loan, but it was issued to cover a potential uncertain liability---Entire amount of dishonoured cheque was fully secured and a commercial dispute was pending between the parties on the liability under the said cheque---Held, coercive arm of law should await the outcome of that commercial dispute, rather than harassing accused--Pre-arrest bail already granted to accused was confirmed, in circumstances.

Iftikhar Akbar v. State 2008 MLD 159 ref.

Mian Sultan Tanvir for Petitioner.

Muhammad Ali Lashari for the Complainant.

Ishaque Masih Naz, DPG with Abid Hassan, S.-I.

YLR 2010 LAHORE HIGH COURT LAHORE 3211 #

2010 Y L R 3211

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD WALAYAT and others---Petitioners

Versus

MEMBER JUDICIAL, BOARD OF REVENUE, PUNJAB and others---Respondents

Writ Petition No. 2958 of 2004, decided on 4th August, 2010.

(a) Void order---

----Remedy against void order---Order/ judgment has to be challenged within the period of limitation, if the order is allegedly a void order.

Masooda Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 SC 90; Srafraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 and "Muhammad Raz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397 rel.

(b) Jurisdiction---

----Jurisdiction cannot be conferred with the consent of parties.

-Condonation of delay---Principle---Delay of each and every day has to be explained to the satisfaction of the Court.

(d) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Consolidation proceedings---Powers of revision by Board of Revenue---Petitioners were aggrieved of the order passed by Board of Revenue in revisional jurisdiction with regard to consolidation proceedings---Validity---Board of Revenue had examined the case minutely in revision petition---Powers of revision were much wider in scope than the powers of High Court in Constitutional petition---High Court in Constitutional petition could only consider question of jurisdiction or illegality, whereas, revisional Court could not only consider the legality but that of correctness and even of the propriety of any finding passed by subordinate Courts---Order passed by Board of Revenue could not be challenged in Constitutional petition---Petitioners failed to point out any illegality or jurisdictional error in the judgment passed by Board of Revenue---Petition was dismissed in circumstances.

Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Moulana Atta-ur-Rehman v. Al-Haji Sardar Umar Farooq and others PLD 2008 SC 663 and Allandino v. Fakir Muhammad and another PLD 1969 SC 582 distinguished.

Syed Qalb-i-Hassan for Petitioners.

Sh. Zameer Hussain for Respondents.

YLR 2010 LAHORE HIGH COURT LAHORE 3222 #

2010 Y L R 3222

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD YOUSAF---Appellant

Versus

MUHAMMAD RAMZAN and another---Respondents

Regular Second Appeal No. 90 and Civil Revision No.1455 of 2008, decided on 6th July, 2010.

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

----Ss. 8, 12 & 42---Contract Act (IX of 1872), S.214---Qanun-e-Shahadat (10 of 1984), Art.79---Plaintiff filed suit for possession through specific performance of agreement to sell or in alternative the recovery of Rs. 1,800,000 and permanent injunction against defendants on the ground that one of the defendants had received Rs.1.5 million of sale consideration and had handed over possession of one of the rooms---One of the defendants contested suit on the ground that he never allowed his general attorney to sell disputed property because ultimate beneficiary of the same was brother of the general attorney and said defendant also filed suit for declaration and permanent injunction both against general attorney and his brother---Trial Court decreed suit of the plaintiff and dismissed the suit filed by one of the defendants---Appellate Court, on appeals, dismissed the same---Validity---Plaintiff and one of the defendants were real brothers---Amount of Rs.1.5 million was not proved to have been paid---One of the marginal witnesses had not appeared and as such, it had been proved on record that the ultimate beneficiary of the alleged agreement to sell was the brother of the plaintiff---Lower courts below had not considered the evidence which clearly showed that not a single penny was paid to the principal/one of the defendants and it was the general attorney who played the fraud with collusion of his real brother; however if there was a transaction of Rs.1.5 million between one of the defendants and the general attorney as alleged, it was very easy for the general attorney to obtain a decree on the basis of that; why did he arrange a new agreement to sell---Natural inference in such circumstances was that he was not confident about the new agreement to sell and as such decided -to insert the disputed agreement to sell in the transaction with collusion and connivance of his real brother---High Court allowed appeal and set aside the judgments and decrees of both the courts below in a suit for specific performance of agreement to sell which suffered from mis-reading and non-reading of record.?

Fida Muhammad v. Pir Muhammad Khan (Deceased) through legal heirs and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389; Qasim Ali v. Khadim Hussain through Legal Representatives and others PLD 2005 Lah. 654; Mrs. Nasrin Awan v. M. Sadiq and 2 others 1989 ALD 136(2); Madholal Sindhu v. Asian Assurance Co. Ltd. and others AIR 1954 Bombay 305 and Abdul Rahim v. Mukhtar Ahmad and 6 others 2001 SCMR 1488 ref.

Abdul Rahim v. Mukhtar Ahmad and 6 others 2001 SCMR 1488 distinguished.

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

----S. 12---Suit for specific performance of agreement to sell---Decree under Specific Relief Act, 1877 was discretionary relief and could be allowed only to a person who approached the court with clean hands. ?

----S. 214---Agent/attorney if transferred the property in favour of those who were closely related to hint and that; ultimate beneficiary of the said transfer was the attorney, he was bound to obtain the consent of the principal, failing which, the principal was at liberty to repudiate the transaction.?

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

----Art. 79---Two marginal witnesses of the agreement were required to be examined for proving the same.?

Ch. Manzoor Hussain Basra for Appellant.

Ijaz Ahmed Chadhar for Respondent.

Date of hearing: 28th May, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3233 #

2010 Y L R 3233

[Lahore]

Before Asad Munir and Ijaz Ahmed, JJ

Haji MAAZULLAH KHAN---Appellant

Versus

KAIYAN HOMI KAIKOBAD and 2 others---Respondents

R.F.A. No. 25 of 2008, heard on 15th April, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Suit property at the time of the execution of agreement to sell was subject to a mortgage created by the defendant in favour of the Bank in consideration of a loan advanced to the defendant---Defendant undertook that the transfer of the suit property to the plaintiff would be free from the mortgage which would be redeemed by him by returning the outstanding amount of the loan to the Bank---On failure of the defendant to transfer and deliver the possession of the suit property, the plaintiff filed suit for specific performance of agreement to sell with permanent injunction restraining the defendant from alienating the suit property---Defendant in written statement admitted execution of agreement to sell and also receipt of earnest money paid to him by the plaintiff---Defendant appeared in the court and recorded his statement that he had no objection if the suit of the plaintiff was decreed as he had received the balance sale price and that entire loan amount due to Bank had been paid back---Trial Court instead of making an inquiry as to the status of mortgage, particularly as to whether it had been redeemed, proceeded to pass a money decree in favour of the plaintiff to the effect that he was entitled to receive from the defendants double the amount paid by him, on the ground that defendant had committed fraud as they had no title to sell the suit property as long as it was mortgaged with the Bank---Counsel for the Bank had stated that the entire amount due and payable to the Bank had been paid by the defendant;. and that Bank had no objection, if the decree for specific performance was passed in favour of the plaintiff and against the defendant---Bank had no interest in the suit property which would be transferred to the plaintiff free of mortgage in accordance with the terms of agreement to sell---Judgment and decree passed by the Trial Court, were set aside and suit filed by the plaintiff was decreed as prayed for in the plaint.

Umar Farooq for Appellant.

Nadeem Yousaf Rana for Respondent No.3.

Date of hearing: 15th April, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3242 #

2010 Y L R 3242

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ATTA MUHAMMAD through L.Rs.---Petitioner

Versus

MUHAMMAD SHARIF through L.Rs.---Respondent

Writ Petition No. 5202 of 2010, decided on 2nd June, 2010.

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

----S. 12(2)---Transfer of Property Act (IV of 1882), S.52--- Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Petitioners challenged concurrent findings of dismissal of their application under S.12(2), C.P.C. on the ground that petitioners were bona fide purchasers of the disputed land and it was mandatory for the plaintiff to include names of the petitioners in the array of defendants but respondents obtained decree against petitioners by concealing facts and by putting the court in dark---Respondents contended that suit for specific performance was filed by them earlier and registered sale-deed in favour of petitioners was registered later on, so, under the rule of lis pendens the petitioner could not challenge the decree---Registered sale-deed in favour of predecessor-in-interest of petitioners was executed after about 11 months front the date of filing of suit, at the filing of civil suit there was no reason to implead predecessor-in-interest of the petitioners as party---Petitioners could not take plea of bona fide purchasers with consideration without notice because they did not purchase the disputed land before the filing of the suit---No plea of fraud, committed by respondents had been proved---Revisional order could not be assailed in constitutional petition---Constitutional petition was dismissed by High Court.

Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 13 others 1991 SCMR 970; Ghulam Hussain v. Malik Shahbaz Khan 1985 SCMR 1925; Muhammad Bukhsh v. Ghulam Hussain 1989 SCMR 443 and Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322 rel.

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

----S. 115---Constitution of Pakistan (1973), Art.199--- Constitutional jurisdiction of High Court---Scope---Order passed in revision could not be assailed in constitutional petition.

Malik Altaf Hussain Mohal for Petitioner.

Raja Mehboob Ahmad Khaliq for Respondent.

Muhammad Afzal, A.S.-I., P.S. Abdul Hakeem.

YLR 2010 LAHORE HIGH COURT LAHORE 3248 #

2010 Y L R 3248

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

Syed MOHSIN NAQVI and others---Petitioners

Versus

FEDERAL LAND COMMISSION and others---Respondents

Writ Petitions Nos. 5039, 13251, 14660 to 14667, 14795, of 2008, 1684, 1685, 3481, 8422, 9225, 9226, 9548, 10362, 10655, 10782, 10877, 10910, 10911, 10934, 12762, 18773 of 2009 and 12800 of 2010, heard on 29th June, 2010.

(a) Land Reforms Regulations, 1972 (MLR 115)---

----Regln. 12---Land Reforms Act (II of 1977), Ss. 7 & 27---Punjab Land Reforms Rules, 1972, R.12(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Resumption of excess land by Deputy Land Commissioner (DLC) in year, 1977---Determination of resumed land by Senior Member Federal Land Commission and remanding case to Deputy Land Commissioner in year, 1983 for redetermination of holding of declarant after calculating Produce Index Units---Resumption of land by Deputy Land Commissioner in year, 2007 after re-determining Produce Index Units---Plea that after 30-4-1975, Deputy Land Commissioner in year, 2007 could not review his original order of resumption of year, 1977 by virtue of proviso to R.12(3) of Punjab Land Reforms Rules, 1972---Validity---Making of declaration by declarant, assign of original resumption order by Deputy Land Commissioner and then such order of Senior Member of the Commission all constituted decisive steps in such matter---Second order of Deputy Land Commissioner calculating Produce Index Units of declarant as resumed land had been passed in implementation of original order of Senior Member of the Commissioner---High Court declined to strike down second order of Deputy Land Commissioner in circumstances.

Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408; Dilshad Nabi Riaz and 7 others v. District Nazim, District Rahimyar Khan and 3 others 2008 CLC 1120; Khan Muhammad and 6 others v. Federal Land Commission through Senior Member, Islamabad and 6 others 2008 CLC 467; Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99; Siraj Din v. Member, Federal Land Commission and others PLD 1996 Lah. 243; Muhammad Yusuf Ali Shah v. Federal Land Commission, Government of Pakistan, Rawalpindi and 2 others 1995 CLC 369; Ranjha and others v. Mst. Zahrai Begum and others 2004 SCMR 734; Mst. Sharifan Bibi v. Federation of Pakistan through Cabinet Secretary, Islamabad and 3 others 2002 YLR 3320; Chief Land Commissioner, Punjab and others v. Chief Administrator of Auqaf, Punjab and others PLD 1998 SC 132; Khan Muhammad Khan through Legal Heirs v. Member (Judicial-I), Board of Revenue Punjab, Lahore and 5 others PLD 2006 Lah. 322; Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Co. (R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others 2004 CLC 1019; The Chief Land Commissioner, Punjab, Lahore and another v. Ch. Atta Muhammad Bajwa and others 1991 SCMR 736; Aacher and 5 others v. Dur Muhammad Usto and 9 others 2002 SCMR 958; Shah Jehan Khan Abbasi v. Deputy Land Commissioner Bahawalpur and another 2006 SCMR 771; Chief Administrator of Auqaf, Punjab v. The Federal Land Commissioner and 8 others PLD 1994 Lah. 50; Attaullah alias Billa and others v. Muhammad Ilyas and others, 2004 SCMR 830; Syed Ale Ali v. Muhammad Asghar, and others 1986 MLD 2782; Niaz Ahmad v. The State PLD 2003 SC 635; Muhammad Yusuf Ali Shah v. Federal Land Commission, Government of Pakistan, Rawalpindi and 2 others 1995 CLC 369 and Azra Parveen and 2 others v. Additional Deputy Commissioner (General)/Deputy Land Commissioner, Multan and another 2002 CLC 654 ref.

Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 rel.

(b) Land Reforms Regulations, 1972 (MLR 115)---

----Regln. 12---Land Reforms Act (II of 1977), S.7---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Ex parte order of resumption of excess land by Deputy Land Commissioner---Plea that such order had been passed without hearing petitioner---Validity---Deputy Land Commissioner before fixing case for hearing in order to procure attendance of petitioner had issued to him notice and then got published notice in newspapers, but he did not turn up---Case had been adjourned for seven times before initiating ex parte proceedings against petitioner--Deputy Land Commissioner in such circumstances had no option except to examine case himself and passed impugned order---High Court dismissed constitutional petition in circumstances.

----Art. 199---Constitutional petition, pendency of---Order of status quo obtained by petitioner from High Court---Violation of status quo order by petitioner by alienating major portion of suit land---Effect---Constitutional petition was liable to be dismissed on such score alone---Principles.

Attaullah alias Billa and others v. Muhammad Ilyas and others 2004 SCMR 830 and Syed Ale Ali v. Muhammad Asghar and others 1986 MLD 2782 rel.

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

----S. 41---Constitution of Pakistan (1973), Art.199---Constitutional petition, pendency of---Purchase of property from petitioner during status quo order---Applicant's plea to be bona fide purchaser of suit land---Validity---Applicant had purchased suit land during pendency of constitutional petition---Applicant had not displayed any efforts to satisfy himself about bona fide claim of petitioner---High Court repelled such plea of applicant in circumstances.

Mian Muhammad Kashif for Petitioners.

Ijaz Ahmad Awan for Petitioners (in connected Writ Petitions Nos.14660 to 14667 and 14795 of 2008).

Waqar A Sheikh for Petitioner (in connected Writ Petition No. 10934 of 2009).

Barrister Muhammad Ahmad Pansota for Petitioners (in connected Writ Petitions No. 10362, 18773 and 12762 of 2009).

S.M. Masud, for Petitioners (in Writ Petitions Nos. 13251 of 2008, 10782 and 8422 of 2009).

Hafiz Saeed Akhtar for Petitioners (in Writ Petitions Nos. 9225 and 9226 of 2009).

Shakil-ur-Rehman Khan, Addl. A.-G. for Respondents.

Ch. Bashir Ahmad for F.L.C. (in Writ Petitions No. 5039, 13251 of 2008 and 8422, 1684, 1685, 9225, 9226 of 2009).

Shaukat Ali Mehr for Respondents Nos. 5 to 7 (in Writ Petition No. 5039 of 2008).

Muhammad Shahzad Shaukat for Respondent No. 8 (in Writ Petition No.5039 of 2008).

Parvez I. Mir for Respondent, Imtiaz Rafi Butter.

Syed Salman Jafri for Respondents Nos. 15, 16, 22, 26 and 33.

Muhammad Iqbal Javed Deputy Secretary Punjab Land Commission, Board of Revenue, Punjab.

Muhammad Rizwan Butt, Patwari Halga Amirpur, Tehsil and District Lahore.

Date of hearing: 29th June, 2010.

YLR 2010 LAHORE HIGH COURT LAHORE 3264 #

2010 Y L R 3264

[Lahore]

Before Mian Shahid Iqbal, J

Rana AHSAN MAHMOOD AHID----Petitioner

Versus

JUDGE FAMILY COURT, FAISALABAD and 2 others---Respondents

Writ Petition No. 15190 of 2010, decided on 23rd July, 2010.

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

----S. 5, Sched. & S.9(1)(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for restitution of conjugal rights by plaintiff (husband)---Defendant (wife) also filed suit for dissolution of marriage, recovery of dowry articles along with maintenance allowance---Plaintiff filed application before Trial Court that the plaint of the defendant (wife) to the extent of dissolution of marriage be rejected---Trial Court dismissed application of the plaintiff---Contention raised by the plaintiff was that it was incumbent upon the defendant to have raised all claims if any through written statement and specifically on the basis of Khula; however in absence of that she could not agitate her claim through separate suit in view of provisions of S.9(1)(b) of the West Pakistan Family Courts Act, 1964---Validity---Once she had opted to file her claim through written statement she would be debarred from subsequently agitating the same through another suit and if she did not claim then she had every right to file an independent suit as provided in the Schedule of the West Pakistan Family Courts Act, 1964---Constitutional petition was dismissed by High Court.

Ahmad Hassan v. Judge Family Court and another 2006 CLC 1178 and Mst. Kausar Jabeen v. Additional District Judge and another 2006 CLC 1185 ref.

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

----S. 9(1)(b)---Interpretation of S.9, West Pakistan Family Courts Act, 1964---Use of the word "may" in S.9(1)(b) of West Pakistan Family Courts Act, 1964, thereby giving option to a person to do or not to do a thing---Bare reading of closing part of the said section narrated as "which shall be deemed as a plaint and no separate suit shall lie for it"; which explain and convey meanings that in case the wife made a claim in an earlier suit filed by husband then subsequently she would be estopped from raising her claim in a separate suit--Interpretation of S.9 could also be viewed from another angle where under O. VIII, R.6, C.P.C. parties were allowed to raise their claim of set off in the said suit, so that firstly they were not subjected to multiple litigation, moreover, on the basis of said set off, they could easily lessen their expenses so the only intention which could be drawn out from S.9(1)(b) of West Pakistan Family Courts Act, 1964 was that the section had been enacted in order to enable the wife to raise her claim in written statement in order to enable her to shoulder off her expenses but also to shorten her agony which a party had to undergo during all process of litigation.

Ahsan Shahzad for Petitioner.

Sheikh M. Mushtaq for Respondent No.2.

YLR 2010 LAHORE HIGH COURT LAHORE 3269 #

2010 Y L R 3269

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD AMIN---Petitioner

Versus

THE STATE and another-Respondents

Criminal Miscellaneous No. 9523-B of 2010, decided on 16th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406 & 408---Criminal breach of trust---Bail, refusal of---Accused was working as a Manager at the shop of the complainant on a monthly salary of Rs.15,000---Allegation against accused was of misappropriating the hard cash of Rs.20,28,728 and goods/stocks worth Rs.21,21,500---During course of investigation an amount of Rs.75,000 along with few vouchers was got recovered on behalf of accused by one who was his close relative which prima facie connected the accused with commission of alleged offence---Recovery of a huge amount of Rs. 75,000 could not possibly be planted by the Police or the complainant---Suit for declaration, rendition of account and recovery was filed by accused after registration of criminal case---Even otherwise, civil and criminal proceedings could proceed simultaneously---Accused was arrested only about two months earlier and a serious allegation of misappropriation of huge amount of the complainant was against him---Accused was not entitled to be released on bail.

Muhammad Tahir Chaudhry for Petitioner.

Muhammad Iqbal Chaudhry, DPG, Khamis, S.-I.

Barrister Muhammad Ahmad Pansota, for the Complainant.

YLR 2010 LAHORE HIGH COURT LAHORE 3279 #

2010 Y L R 3279(1)

[Lahore]

Before Waqar Hassan Mir, J

Nawabzada Syed SHAMS HAIDER--- Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7907-B of 2009, decided on 23rd July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd and attempt to commit qatl-e-amd---Protective bail, grant of----Contention of accused was that at the time of occurrence, he was conducting a meeting with his party workers at his house and he had been involved in the case just to scandalize the matter and injure his reputation as well as political career---Accused was admitted to protective bail for the period of one week, in circumstances.

Barrister Muhammad Ahmad Pansota for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 3282 #

2010 Y L R 3282

[Lahore]

Before Waqar Hassan Mir, J

MANZOOR HUSSAIN---Petitioner

Versus

SESSIONS JUDGE, TOBA TEK SINGH and 2 others---Respondents

Criminal Miscellaneous No. 2035-M of 2009, decided on 19th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A, 516-A & 561-A---Penal Code (XLV of 1860), Ss.379/411---Theft and dishonestly receiving stolen property---Superdari of stolen property, application for---Quashing of order, petition for---Accused who was acquitted by the Trial Court under S.249-A, Cr.P.C., after his acquittal, submitted application first time before the Judicial Magistrate for return of stolen money on superdari, which application was dismissed by Judicial Magistrate vide speaking order---Revision petition filed by accused against order of Magistrate was accepted by Sessions Judge, who passed impugned order for superdari of stolen money and petitioner/complainant had filed petition for quashing of said order---Accused had never claimed the case property throughout the proceedings, even in his application for acquittal filed under S.249-A, Cr.P.C. and had not mentioned that Police had recovered said amount illegally; or that same belonged to him---As accused had ample opportunity to lay his claim on the case property, even before passing of the order, but nothing was done by him, finding merit in the submission of the counsel for the complainant impugned order was set aside by High Court.

Muhammad Tariq and 3 others v. The State 1998 PCr.LJ 1482 rel.

Muhammad Ibrahim Khalil for Petitioner.

Muhammad Asif Kainth for Respondent No.2.

Ch. Muhammad Aslam Sindhu, Additional Prosecutor General for the State.

YLR 2010 LAHORE HIGH COURT LAHORE 3283 #

2010 Y L R 3283

[Lahore]

Before Syed Akhlaq Ahmad, J

TASADUQ HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DISTRICT VEHARI and 2 others---Respondents

Writ Petition No. 7004 and C.M. No.1 of 2010, decided on 5th July, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dowry articles---Appeal against decree passed in suit---Offer by defendant and his counsel before Appellate Court for treating his appeal as withdrawn if plaintiff's father made statement on oath of Holy Quran about truthfulness of her claim---Dismissal of appeal by Appellate Court after plaintiffs father took required oath---Defendant's plea that after recording offer and acceptance of both parties and their counsel, Appellate Court ought to have adjourned case for further thinking whether case should be decided on merits or special oath--- Validity--- Neither plaintiff nor Appellate Court had prompted or compelled defendant or his counsel for decision of case on such oath---Defendant and his counsel instead of arguing appeal had made such offer, which was accepted by plaintiff and her father, who took required oath in court---Such offer of defendant and his counsel for being voluntary was binding upon him, thus, he could not back out there from in any case---High Court dismissed constitutional petition for being not maintainable.

PLD 2008 Pesh. 95 distinguished.

Humera Bashir Chaudhry for Petitioner.

YLR 2010 LAHORE HIGH COURT LAHORE 3290 #

2010 Y L R 3290

[Lahore]

Before Malik Saeed Ejaz, J

FAROOQ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 461 of 2003, heard on 10th April, 2009.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Version of the two witnesses with regard to occurrence, stood belied by the statement of another witness, who though was not produced at the trial by the prosecution, but was produced by accused as defence witness, who corroborated the statement of said two prosecution witnesses to the extent that he along with said two witnesses and other given up prosecution witness had gone to the sugarcane field where they saw a dead body, which was not identified---Said witness further stated that statements as narrated in F.I.R. by the complainant was false; he was subjected to cross-examination, but nothing favourable to the prosecution could be brought on record---Both the witnesses, before whom the alleged extra-judicial confession was made, neither mentioned the place nor time when such extra judicial confession was made---Alleged extra-judicial confession made by accused could hardly be believed as both witnesses were closely related to the deceased and they would not have shared accused or left him from after listening from his mouth that he had murdered the deceased---Both witnesses did not bother to apprehend accused after hearing the alleged confession---Reaction of both the witnesses, in circumstances was highly unnatural and unbelievable---Alleged confession of accused, was also not voluntary at all---Story narrated in the F.I.R., was in conflict with the medical evidence---Accused termed his false involvement in the case double enmity over a dispute of land---In view of close relationship of prosecution witnesses with the deceased and the fact that some dispute over a piece of land existed between the parties, the false involvement of accused in the case, could not be ruled out---Case against accused being replete with doubts, prosecution had failed to prove the same against him beyond doubt---Impugned judgment was set aside extending benefit of doubt to accused; he was acquitted of the charge and was released.

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

----S. 164---Confession---Nature---Extrajudicial confession was the weakest type of evidence and it should be evaluated with care and caution and same should be voluntary.

Saghir Ahmad Bhatti for Appellant.

Shahid Iqbal, DDPP for the State.

Date of hearing: 10th April, 2009.

YLR 2010 LAHORE HIGH COURT LAHORE 3309 #

2010 Y L R 3309

2010 Y L R 284

[Peshawar]

Before Syed Yahya Zahid Gilani, J

QADAR KHAN alias DOCTOR KHAN alias GUL MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petitions Nos.241 & 227 of 2008, decided on 9th May, 2008.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, refusal of---Due to red-handed arrest and recovery of 2kg heroin from one of accused persons, his case for bail was not arguable---Ground of suffering of accused from hepatitis-C was not supported by any medical certificate---Application of accused for bail was dismissed, in circumstances.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Only evidence available on record regarding involvement of said co-accused was that principal accused had mentioned him as owner of heroin in his judicial confession, but it had been retracted in his bail application---Case of accused, in circumstances had become arguable for the purpose of bail---Co-accused was admitted to bail in circumstances.

Noor Alam Khan for Petitioner.

Salahuddin Khan, Dy. A.-G. for the State.

Date of hearing: 9th May, 2008.

YLR 2010 PESHAWAR HIGH COURT 306 #

2010 Y L R 306

[Peshawar]

Before Ghulam Mohyuddin Malik, J

DOCTOR KHAN alias QADIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No.307 of 2008, decided on 7th May, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Possession of narcotic---Accused was not arrested red handed---During interrogation neither accused confessed the guilt nor led to the recovery of any incriminating articles---Accused had been arrayed on the basis of statement of co-accused made to the Police, which legally speaking, was hardly admissible against the maker what to talk of co-accused---No legal direct or circumstantial evidence was connecting accused with the crime---Accused, in circumstances, was entitled to concession of bail.

2001 SCMR 14; 2000 SCMR 667 and 1999 SCMR 1271 ref.

Noor Alam Khan for Petitioner.

Salahuddin Khan, Dy. A.-G. for Respondent.

Date of hearing: 7th May, 2008.

YLR 2010 PESHAWAR HIGH COURT 504 #

2010 Y L R 504

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

EJAZ MUHAMMAD KHAN---Petitioner

Versus

HAYATULLAH KHAN---Respondent

Civil Revision Petition No. 123 of 2009, decided on 6th November, 2009.

Civil Procedure Code (V of 1908)---

----O.XXX VII, Rr.2, 3 & S.12(2)---Suit for recovery of amount on basis of pro note---Ex parte decree---Execution of decree---Notice was issued by trial Court to defendant to appear for onward legal proceedings and upon failure of the defendant, to appear, proclamation notice was issued, but despite that defendant again failed to get leave from the court to defend suit---Trial Court, on account of repeated absence of defendant, passed on ex parte decree in favour of plaintiff, which was challenged by the defendant/judgment debtor submitting application for setting aside the ex parte decree---Pro note on basis of which suit was filed, was duly scribed between the parties in the year 2003 and on account of repeated absence of defendant, decree was passed in 2006---Execution of said decree and procurement of defendant was a debatable question for the court; which clearly inferred that defendant by any means, was trying to delay the execution proceedings to deprive the plaintiff/decree-holder from usufruct of decree since long ago passed in his favour; and a handsome portion of the decretal amount had been deposited through attachment---Petition being meritless and having no substance, was dismissed---Decree-holder/plaintiff was allowed to withdraw the decretal amount already deposited in the court, according to law.

1996 SCMR 1530; 2003 YLR 2208; 2006 CLC Lahore 236 and 2006 SCMR 630 ref.

Malik Muhammad Jehangir for Petitioner.

Respondent in person.

Date of hearing: 26th October, 2009.

YLR 2010 PESHAWAR HIGH COURT 537 #

2010 Y L R 537

[Peshawar]

Before Attaullah Khan, J

DAMSAZ KHAN---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION (M.C.), D.I. KHAN through Tehsil Nazim and another---Respondents

Civil Revision No.224 of 2009 with C.M. No.180 of 2009, decided on 15th December 2009.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O. VI, R.17---Suit for declaration---Amendment of plaint, application for---Suit for declaration had been dismissed---Plaintiff filed application for amendment of the plaint and record had shown that it had been simply placed on file and no reply had come from the defendants---Amendment sought by the plaintiff was his right and it was the discretion of the court to which it was submitted either to accept it or disallow---Disposal of said application was mandatory---Neither reply had been submitted by the defendants nor defendants had been asked to the same and the Appellate Court remained silent about the said application---Amendment sought by the plaintiff went to the root of the case and its disposal was necessary---In view of the non-disposal of the application for amendment of plaint, impugned judgment of the Appellate Court had become nullity in the eye of law---Judgment and decree passed by the Appellate Court was set aside and case was remanded with the direction to dispose of application filed by the plaintiff for amendment in accordance with law and thereafter dispose the appeal.

Fazlur Rehman Baloch for Petitioner.

Malik Muhammad Asad for Respondent No.1.

Salahuddin Gandapur for Respondent No.2.

YLR 2010 PESHAWAR HIGH COURT 549 #

2010 Y L R 549

[Peshawar]

Before Liaqat Ali Shah, J

SHER AFZAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.1580 of 2009, decided on 6th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497 (2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-i-amd and attempt to qatl-i-amd---Bail, grant of---Further inquiry---Facts of the case would indicate that in the initial transaction, where grappling was alleged and when accused was stated to be armed with dagger, no attempt whatsoever was made at the deceased by accused---Tragedy took place when according to F.I. R., prosecution witness tried to separate the parties---Even at that stage too, accused was not alleged to have made any attempt for causing any blow with the dagger to the deceased---Accused had been assigned the injuries caused to prosecution witness as according to the Medico-legal Report only one stab wound on left lower buttock was found on the person of said prosecution witness---Fact of common intention, in circumstances, was yet to be established and accused was held to be entitled to concession of bail---Accused was admitted to bail, in circumstances.

Muhammad Taif Khan for Petitioner.

Aminur Rehman for Respondent.

Muhammad Usman Turlandi for the Complaint.

Date of hearing: 6th November, 2009.

YLR 2010 PESHAWAR HIGH COURT 561 #

2010 Y L R 561

[Peshawar]

Before Said Maroof Khan and Abdul Aziz Kundi, JJ

NASEEB KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.337 of 2008, decided on 13th October, 2009.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Sentence, reduction in---Counsel for accused did not press the appeal, however, he requested for reduction of sentence stating that accused was first offender; and that recovered substance was 10 Kg of Charas Garda, which in the process of baking would have reduced by 50%---Keeping in view nature and quantity of Charas recovered in the case, appeal to the extent of sentence was accepted and imprisonment for life was convicted into rigorous imprisonment for 7 years---Sentence of fine, however, remained intact.

Noor Alam Khan for Appellant.

Sahibzada Baha-ud-Din for the State.

Date of hearing: 13th October 2009.

YLR 2010 PESHAWAR HIGH COURT 578 #

2010 Y L R 578

[Peshawar]

Before Tariq Parvez Khan, C.J. and Ghulam Mohyud Din Malik, J

ASFANDIYAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.503 of 2008, decided on 29th July, 2009.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Investigating Officer of the Custom's Staff, did not take samples from each packet of the narcotics; and what they did was that they mixed all the alleged recovered narcotics and prepared three samples; and only very meagre quantity was sent to the Chemical Examiner for report---In the case out of 125.300 Kgs. a sample of just 10 grams was sent---Wherever there were two versions and the version set up by the defence was probable, courts were invariably inclined to fallow the defence version---Case of the prosecution was doubtful to the extent of presence of accused only and also to the extent as secret cavities were in his knowledge or not---Accused was extended benefit of doubt---Conviction and sentence awarded to accused, were set aside and he was acquitted of the charge and was set at liberty.

Noor Alam Khan for Appellant.

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

Date of hearing: 29th July, 2009.

YLR 2010 PESHAWAR HIGH COURT 593 #

2010 Y L R 593

[Peshawar]

Before Mian Fasih-ul-Mulk and Miftah-ud-Din Khan, JJ

Syed KAMAL SHAH and 5 others---Petitioners

Versus

MUHAMMAD KHATEEB and 3 others---Respondents

Writ Petition No.523 of 2009 decided on 15th December 2009.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5 & 6---Constitution of Pakistan (1973), Art.199--- Constitutional petition--- Illegal dispossession---Petitioners/complainants in their complaint had alleged that respondents were in possession of the suit land since long; and that respondents had illegally taken the possession of said land and had retained the same---Petitioners had never disclosed in the complaint that from whom and how the respondents had occupied the disputed land---Complainants, in the complaint as well as during deposition, had admitted that respondents were in possession of land since long---Petitioners were not sure as to when the possession of the disputed property was taken by the respondents either from the petitioners or their forefathers---Respondents were admittedly in possession of the suit land for 50 years and during those five decades the petitioners or their co-sharers never initiated proceedings of any kind against the respondents---No evidence was on record to show that the respondents had illegally taken possession of suit land; and it was the case of respondents that the disputed land was given to their fathers on mortgage and their possession was that of mortgages---It could be safely inferred, in circumstances that respondents being in possession for a long time, their possession would be presumed to be lawful unless, it was declared otherwise by a court of law--Trial Court, in circumstances had rightly dismissed complaint filed by the petitioners and had found that the complainants if so desired, could approach civil court for redressal of their grievance.

(b) Illegal Dispossession Act (XI of 2005)---

----Preamble & S.3---Illegal dispossession---Illegal Dispossession Act, 2005 being penal law, its provisions had to be strictly construed---Section 3(1) of Illegal Dispossession Act, 2005 was preventive in nature, which indicated that all persons had been prohibited to commit offence, detailed therein---In order to get the benefit of subsection (1) of S.3 of Illegal Dispossession Act, 2005, the complainants had to show before the court that they were the lawful owners or occupiers of the property in question; that accused had entered into said property; that their entry into or upon the said property was without having any lawful authority; and that they had done so with the intention to dispossess to grab or to control or to occupy the said immovable property.

Rashid ul Haq Qazi for Appellants.

Nemo for Respondents.

Date of hearing: 15th December, 2009.

YLR 2010 PESHAWAR HIGH COURT 614 #

2010 Y L R 614

[Peshawar]

Before Muhammad Raza Khan, J

Mst. RUKHSANA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous (B.A.) No.895 of 2006, decided on 25th July, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Contentions that the raiding Police party had the prior information, but there was no arrangement of the lady Police constable with the team for the search of accused lady and that accused lady was having a suckling baby, were devoid of force, because the baby was allegedly not present with accused at the time of her arrest and the baby was also about 2-1/2 years old, so the term "suckling baby" was not attracted to that case and no benefit could be extended to accused on that count---Accused lady having been charged for carrying huge quantity of Charas, the minor procedural irregularity, would not negate the effect of such a huge recovery--Quantity as recovered from possession of the accused could have devastating effect on the society---Case of accused for her release on bail did not justify on merits, in circumstances---However, in accordance with the latest amendment, the extraordinary relief had been extended to the women prisoners---Accused lady had to be released on bail except in the cases where the punishment was prescribed as death or imprisonment upto ten years and that too in a restricted categories of terrorism, financial corruption and murder---Offences under the Control of Narcotic Substances Act, 1997 were not excluded from the said provision---Nonetheless, in the wisdom of the legislature, since no exception had been specified in the said proviso for not extending the benefit for the offences under the Control of Narcotic Substances Act, 1997, despite the severe punishment of death and imprisonment for life under S.9(c) of said Act for the quantity of 10 Kgs. and above, accused, had to be released on bail pursuant to the amendment in Cr.P.C.---Newly added proviso to S.497, Cr.P.C. extended the facility to the offences under all the laws for the time being in force and that Control of Narcotic Substances Act, 1997, could not be deemed to be an exception---Bail was granted.

Noor Alam Khan for Appellant.

Muhammad Ayub Khan, A.A.-G. for the State.

Date of hearing 25th July 2006.

YLR 2010 PESHAWAR HIGH COURT 631 #

2010 Y L R 631

[Peshawar]

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

MUHAMMAD EHSAN ---Petitioner

Versus

TAYYABA YUNUS and 2 others---Respondents

Writ Petition No.297 of 2009, decided on 19th November, 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---Claim for dower amount---Relations between the parties having become strained, on filing suit for dissolution of marriage, Family Court granted decree for dissolution of marriage on the basis of khula, dowry articles as per list annexed with the plaint by the plaintiff/wife or in alternate their market value; and maintenance allowance for the period of Iddat, in favour of the plaintiff--Appellate Court allowed appeal against the order of Trial Court and passed decree for recovery of dower amount to the tune of Rs.1,50,000 and maintenance allowance in favour of the plaintiff---Defendant had filed constitutional petition against judgment and decree of the Appellate Court---Judgment and decree for dissolution of marriage on the basis of khula, was not appealable, but Appellate Court ignored that important aspect, though the ground of competency of appeal was agitated by defendant in his arguments, but same was dealt with in slipshod manner---Appellate Court had failed to appreciate that in the present case, the relief of dower amount could not be considered in isolation, but same had nexus with the dissolution of marriage based on khula---Findings of Trial Court for not granting dower could not be reversed without disturbing the ground of khula, which essentially would tantamount to an appeal against dissolution---No appeal lay against dissolution, whether it was on the ground of cruelty or khula---Appellate Court exercised appellate jurisdiction and had wrongly assumed himself as Qazi which was not only against Islamic Jurisprudence, but also Family Laws prevalent and governing family disputes---Grant of dower by the Appellate Court below was without jurisdiction---Grant of maintenance allowance having been proved on record, findings of Appellate Court and Trial Court in that respect were maintained---Constitutional petition was partly allowed to the extent that the judgment and decree granted to plaintiff for the recovery of dower amount, was set aside, while remaining decree of maintenance granted by the Trial Court as well as Appellate Court, was upheld and left intact.

Qazi Ghulam Rauf for Petitioner.

Miss Uzma Munawar for Respondents.

Date of hearing: 19th November, 2009.

YLR 2010 PESHAWAR HIGH COURT 638 #

2010 Y L R 638

[Peshawar]

Before Miftah ud Din Khan, J

SAID MUHAMMAD---Petitioner

Versus

ALLAH DITTA---Respondent

Civil Revision No.288 of 2005, decided on 24th November, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.2(d), 6 & 13---Qanun-e-Shahadat (10 of 1984), Arts.117, 118 & 129(g)---Suit for pre-emption---Transaction whether sale or gift---Burden of proof---Suit for pre-emption filed by the plaintiff against defendant had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Plaintiff alleged in the plaint that in fact defendant had purchased suit property for a sum of Rs. 8,000, but the transaction of sale had been given the colour of gift mutation in the impugned mutation---Claim of the defendant was that transaction in question was gift mutation and none of the legal heirs of donor of property had questioned the validity of gift mutation---Plaintiff had specifically alleged that owner of suit land sold the same to the defendant for a sale consideration and that plaintiff was informed by an informer regarding the sale transaction---Onus to prove said allegation was heavily on the plaintiff as required under Arts.117 & 118 of the Qanun-e-Shahadat, 1984 and not on defendant who was beneficiary of transaction of gift---Principle that beneficiary of gift had to prove the same could not be applied in the case--Plaintiff/pre-emptor had failed to discharge the burden of proof to establish through cogent and convincing evidence that the exchange of money had taken place and the transaction in question was sale and not gift---Both courts below while making proper appraisal of evidence, had rightly dismissed the suit of the plaintiff---Concurrent findings of both the courts below which neither suffered from misreading and non-reading of evidence nor any jurisdictional defect, could not be interfered with in exercise of revisional jurisdiction of High Court.

1987 SCMR 1277; 1996 CLC 902; 1994 SCMR 1836; AIR 1931 Oudh 425; PLD 2003 Pesh. 189; PLD 1988 Pesh. 126; 1998 SCMR 2124; 2004 CLC 1884; 2005 SCMR 1499; 2007 MLD 811; 1988 MLD 126 and 2004 CLC 1884 ref.

Mir Afzal Malik for Petitioner.

Qazi Rashid Ahmed Arshed for Respondent.

Date of hearing: 24th November, 2009.

YLR 2010 PESHAWAR HIGH COURT 670 #

2010 Y L R 670

[Peshawar]

Before Attaullah Khan, J

FARMAN ULLAH---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous. Bail Petitions Nos.406 and 405 of 2009, decided on 16th December, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-i-amd---Bail, refusal of---Contention of counsel for accused was that a cross-case was registered on behalf of accused party under S.337-A(ii), P.P.C. and it was not known as to which of the parties was aggressor---Validity---Every cross-case could not entitle accused for concession of bail---Such was not a rule, but discretion and other attending circumstances were also to be taken into consideration---In the present case the attending circumstances had gone against the accused---Prima facie, single injury had been caused to the deceased as per medical report and contents of F.I.R.---Accused was charged for firing on the deceased and had also been attributed, in the F.I.R., firing of one single shot---Such was a sufficient evidence to connect accused with the offence, unless it was rebutted during the trial---Plea of self-defence, seemed to .be an afterthought because while lodging cross-case, accused party had omitted to take that plea in their report---Such-like pleas, could be raised during trial and not at bail stage---Ocular evidence was against the accused and in support of prosecution stand---Incident was a daylight occurrence and the chance of misidentification stood eliminated---Active participation of accused was proved on file---Death of deceased was the result of one shot and that shot had been attributed to accused by giving him a specific role---Report was also lodged with reasonable promptitude and mere filing of cross-case would not benefit the accused---Accused, was not entitled to bail in circumstances.

Nazir Ahmad v. Muhammad Ismail and another 2004 SCMR 1160; Zarghun Shah, v. The State and another 2004 PCr.LJ 127 and Ehsan Akbar v. The State and 2 others 2007 SCMR 482 rel.

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

----S.497(5)---Penal Code (XLV of 1860), Ss. 302/324/34---Qatl-i-amd---Cancellation of bail, petition for---Principles for grant of bail and cancellation thereof are altogether different---Complainant was required to make out a case for cancellation by bringing material on record, that either accused who was granted bail had misused the concession of bail; or tampered with the evidence---Nothing of that sort had been brought on record nor proved---There must be exceptional circumstances for cancellation of bail---No good ground was available for recalling bail of co-accused who were granted bail--Petition for cancellation of bail, was dismissed, in circumstances.

Abdul Latif Khan for Petitioner.

Sana Ullah Khan Shamim Gandapur, D.A.-G. for the State.

Younis Ali Khan for the Complainant.

Date of hearing. 16th December, 2009.

YLR 2010 PESHAWAR HIGH COURT 688 #

2010 Y L R 688

[Peshawar]

Before Attaullah Khan, J

MUHAMMAD YAQOOB---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail No.390 of 2009, decided on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-i-amd---Bail, refusal of---F.I.R. had been lodged after twenty minutes of the occurrence, wherein accused was directly charged for committing the offence---Ocular evidence, prima facie had connected accused with the commission of the crime--Cross-case alone was not sufficient for making a case for bail in presence of ocular evidence and other material available on file---Prima facie, case having been made out against accused, his bail petition was dismissed.

Gohar Zaman Khan Kundi for Petitioner.

Sanaullah Shamim Gandapur, Dy. A.-G. for the State.

Saleemullah Khan Ranazai for the Complainant.

Date of hearing: 21st December, 2009.

YLR 2010 PESHAWAR HIGH COURT 714 #

2010 Y L R 714

[Peshawar]

Before Attaullah Khan, J

ZAINUDDIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.396 of 2009, decided on 15th December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, refusal of---Accused was directly charged by the complainant who succumbed to injuries after two days; in a way, his report could be considered as dying declaration---Medical report also supported involvement of accused---Site plan had corroborated the evidence collected by the prosecution---Existence of cross case or difference in number of injuries and number of accused would not make accused entitled to bail---Case of accused being not fit for bail, bail petition was dismissed.

1999 PCr.LJ 810; Laiq Shah and another v. The State and others 2006 PCr.LJ 184; Safirulah v. The State and another 2003 PCr.LJ 1691; Zarghun Shah v. The State and another 2004 PCr.LJ 127 and Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822 ref.

Saadullah Khan for Petitioner.

Fazlur Rehman Khan Baloch for the State.

Shah Hussain for the Complainant.

Date of hearing: 15th December, 2009.

YLR 2010 PESHAWAR HIGH COURT 750 #

2010 Y L R 750

[Peshawar]

Before Attaullah Khan, J

HAKAMZAAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.321 of 2009, decided on 14th December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Murder---Bail, grant of---Further inquiry---Nobody was charged in the F.I.R. and three unknown persons were charged therein---Later on in the supplementary statement accused was charged along with other two accused---About 16 days having been spent in deliberations, false implication of accused could not be ruled out---Even no ocular evidence was available against accused to connect him with the offence---Accused was involved in the supplementary statement in. which no good ground had been given as to why accused was charged at such a belated stage---No source of information had been disclosed in the supplementary statement---Case of accused being of further inquiry, no purpose would be served if he was kept in further custody---Accused was admitted to bail, in circumstances.

Mehmood Ahmad v. State 2009 Cr.LJ 474 rel.

Gohar Zaman Khan Kundi for Petitioner.

Sanaullah Shamim Gandapur. D.A.-G. for the State.

Date of hearing: 14th December, 2009.

YLR 2010 PESHAWAR HIGH COURT 766 #

2010 Y L R 766

[Peshawar]

Before Attaullah Khan, J

MUHAMMAD RAFIQ---Petitioner

Versus

FAZAL MAHMOOD and another---Respondents

Criminal Miscellaneous Bail Petition No.403 of 2009, decided on 16th December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.365-B/376/109---Abduction and rape---Bail, grant of---Further inquiry---Offence, no doubt was heinous, because allegedly abduction of a school girl had taken place, but the case had taken somersault and new developments had taken place--Nikahnama on the file had shown that abductee had entered into Nikah with accused---Another development was the filing of criminal complaint under S.506, P.P.C. by the abductee against her father, which complaint had revealed that she had entered into a valid Nikah with accused and was living happily with him, while her father was annoyed and gave her threats---In the affidavit filed by alleged abductee, she had stated that she had never been abducted; and that she was living happily with accused as his wife---Another document was the decision of arbitrators, which had revealed that the matter had been patched up between the parties and that accused had been burdened with the cost of Rs.3,00,000 out of which Rs.1,00,000 had been paid, while the remaining was promised to be paid later on-In addition, there was delay of one day in lodging F.LR., which though was not so much fatal keeping in view the nature of case, but when examined together with the said developments, some doubts appeared regarding involvement of accused---All such developments had made the case, on all counts as of further inquiry and further probe---Accused being entitled to bail, was released on bail, in circumstances.

Abdul Latif Khan Baloch for Petitioner.

Fazlur Rehman Khan Baloch for the State.

Muhammad Ismail Alizai for the Complainant.

Date of hearing: 16th December, 2009.

YLR 2010 PESHAWAR HIGH COURT 798 #

2010 Y L R 798

[Peshawar]

Before Attaullah Khan, J

INAMULLAH KHAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.35 of 2009, decided on 17th December, 2009.

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

----S.324/34---Attempt to commit Qatl-i-amd---Appreciation of evidence---In view of medical evidence and that of ocular account, discrepancies, if any, being minor, were immaterial---Medical evidence as given by the doctor in the Trial Court had fully corroborated the ocular account and the eye-witnesses both in respect of seat of injuries and number of injuries---Medical evidence had supported the testimony of injured prosecution witness in respect of number of shots and number of fires---Contention that injury on the body of the injured was self-inflicted, was not proved nor that plea was taken in defence nor question was asked in the cross-examination from the doctor---Delay of 30 minutes in making report, which otherwise was fully explained, being more than prompt, element of consultation or false implication, was . ruled out altogether---Counsel for accused had contended that the prosecution witnesses being related and inimical, could not be relied safely being highly interested---Contention was repelled in view of settled principle of law that even an interested witness could be believed if his testimony was corroborated by other evidence---Mere relationship, was not enough to discard the other evidence---Court at the most was required to ascertain as to whether the witness saw the occurrence and was in a position to give evidence and whether he should be believed without corroboration or not---Evidence of an interested witness could not be disbelieved, unless any ill-will on his part with accused was brought on record---Related witness could be relied when found truthful in context with other circumstances of the case---On the contrary, inimical or interested witness, could not be stopped from deposition because the court had to see, whether the said testimony was in consonance with the material evidence which otherwise was confidence inspiring---Accused had failed to bring on record any material to stamp both the prosecution witnesses with material ill- will for false implication---Evidence of said witnesses was in consonance with the medical evidence and other circumstances and they could not be discarded simply because of their enmity and relation inter se---Appeal filed by accused being without merit was dismissed.

Saeedullah Khan v. The State 1986 SCMR 1027; Abdur Rauf v. The State and others 2003 SCMR 522; Wazir Khel alias Wazir Gul v. Nawab Khan and another 2002 YLR 1523; Abdur Rahman v. State 1998 SCMR 1778; Ata Muhammad and another appellants v. The State respondent 1995 SCMR 599; Abdus Sattar v. Muhammad Anwar in PLD 1974 SC 266; Ibrahim v. The State reported in 1969 PCr.LJ 1565 and Shahzado v. The State PLD 1977 SC 413 rel.

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

----S.324/34---Attempt to commit qatl-i-amd---Petition for enhancement of sentence---Accused persons were sentenced for five years' R.I. and fine of Rs.5,000---Complainant had failed to make a case for enhancement of sentence and to prove breach of any principle of law with regard to the award of sentence---Keeping in view the nature of evidence, the Trial Court had awarded the sentence which was correct and needed no interference---Petition was dismissed, in circumstances.

Sultan Shaharyar Khan Marwat for Appellant.

Jameel Abdul Nasir for the State.

Muhammad Ismail Alizai for the Complainant.

Date of hearing: 17th December, 2009.

YLR 2010 PESHAWAR HIGH COURT 829 #

2010 Y L R 829

[Peshawar]

Before Attaullah Khan, J

QISMAT ALI KHAN and another---Petitioners

Versus

MUHAMMAD YOUSAF KHAN through legal heirs and 5 others ---Respondents

Criminal Miscellaneous Bail Petition No.399 of 2009, decided on 14th December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/324/148/149---Qatl-i-amd---Bail, refusal of---Both accused persons were directly charged in F.I.R. which was promptly lodged, for the murder of complainant and injuring his mother---Medical evidence and recovery of blood-stained earth from the relevant places, had connected accused with the offence---Murasila was in the shape of dying declaration, because after two days of receiving injuries, the complainant succumbed to injuries and expired---Bail petition was dismissed.

Mst. Musarat Bibi and another v. The State 1992 PCr.LJ 158; Muhammad Arif and 2 others v. The State 2004 YLR 33; Manazar Hussain Shah v. The State 1999 PCr.LJ 86; Muhammad Mansha v. The State 2006 PCr.LJ 47; Mubarak Ali v. The State 2003 PCr.LJ 986; Abdur Rahim v. The State 1999 PCr.LJ 1305; Habib ur Rehman alias Rehman alias Raja Bottal v. The State 1992 SCMR 1625; Sabir Hussain v. The State 2005 MLD 1756; Sher Khan and 2 others v. The State and another 2003 PCr.LJ 1149; Mehmood Sultan v. The State 1998 PCr.LJ 1769; Abdur Rahim v. The State 1999 PCr.LJ 1305; Mehmood Sultan v. The State 1998 PCr.LJ 1769; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 and Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786 ref.

Muhammad Ashraf Khan Marwat for Petitioners.

Farooq Akhtar for the State.

Muhammad Yaqoob Khan Marwat for the Complainant.

Date of hearing: 14th December 2009.

2010 Y L R 913

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandari, JJ

Pir MUHAMMAD SABIR SHAH---Petitioner

Versus

Mst. HASINA BEGUM through Legal Heirs and 6 others---Respondents

Writ Petitions Nos.179 and 205 of 2006, decided on 14th January, 2010.

Arbitration Act (X of 1944)---

----Ss. 17 & 20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Making award rule of the court---Application for---Application was dismissed by the Court---Validity---Two contradictory stands had been taken, one was that the award in question was torn and the other was that it was misplaced---No clear cut stand as to the fact that any award was given by the arbitrators was available---Existence of award being doubtful, the court could not act upon the same---No illegality, misreading or miscarriage of justice was found in the impugned order, judgment and decree---Constitutional petition filed against said judgment and decree and impugned order, was dismissed, in circumstances.

Malik Muhammad Jehangir Awan for Petitioner.

Sajid Nawaz Khan Sadozai for Respondents.

Date of hearing: 4th November, 2009.

YLR 2010 PESHAWAR HIGH COURT 935 #

2010 Y L R 935

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

ZARIF KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.59 and Criminal Revision No.17 of 2006, decided on 28th January, 2010.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of 45 minutes in lodging the report had not been sufficiently explained---Complainant was the sole witness to the occurrence without any corroboration from impeachable source---Placing reliance on his statement for sustaining the conviction of accused would be unsafe---In such situation caution should be taken at the time of assessment---No independent person came forward before the Police to depose against accused despite the fact that many people of the general public saw the commission of offence in the Bazar--Nobody from "Mohallah" was produced to corroborate the evidence of the solitary witness---Factum of the case, in circumstances, had not been proved by any impeachable source from the locality---Presence of the complainant at the spot was also doubtful---Complainant was an interested witness of the occurrence for the reason that on one hand, he was on inimical terms with accused and on the other hand he was the son of the deceased and interested to bring accused under the gallows while deposing against him in the court falsely---It would be unsafe to rely upon the solitary evidence of an interested witness---Weapon of offence had not been recovered and taken into possession---Medical evidence did not support the version of the complainant/prosecution witness, which had shown that he was either telling a lie or he was not present on the spot at the time of occurrence---Medical evidence would not connect accused with the commission of crime nor corroborated the statement of complainant---Contradiction arising out of medical evidence and ocular account would make the prosecution episode doubtful---Motive resulting into the murder, of the deceased had not been proved either by way of producing any oral or documentary evidence to substantiate the same---Accused allegedly remained absconder for about 14 long years, but mere abscondence of accused was not a conclusive proof of the guilt of the accused---Accused persons generally disappear due to fear of Police or because of the findings of the guilt---Prosecution had badly failed to prove the guilt of accused on the basis of solitary evidence of complainant being an interested witness of the occurrence---Case against accused, in circumstances was very much doubtful--Impugned judgment of conviction and sentence awarded to accused by the Trial Court, were set aside and he was acquitted and set free, in circumstances.?

1999 AC 564; PLD 2004 Pesh. 294 and PLD 2008 SC 298 ref.

Sanaullah Khan Gandapur for Appellant.

Saleemullah Khan Ranazai Alvi for the State.

Muhammad Karim Anjum for the Complainant.

Date of hearing: 28th January, 2010.

JUDGEMNT

MUHAMMAD SAFDAR KHAN SIKANDRI, J.---We propose to dispose of the Criminal Appeal No.59 of 2006 under section 410, Cr.P.C. brought by Zarif Khan against his conviction and Criminal Revision bearing No.17/2006 under section 439, Cr.P.C. lodged by Hamidullah complainant against the convict-appellant Zarif Khan for enhancement of the sentence by this single judgment as both the appeal and criminal revision are arising out of one and the same judgment dated 1-6-2006 passed by learned Additional Sessions Judge-V, D.I. Khan whereby the convict-appellant was convicted under section 302(b), Cr.P.C. and sentenced to life imprisonment with payment of Rs.1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. vide case F.I.R. No.378 dated 10-9-1990 registered under section 302/34, P.P.C. at Police Station City, District D.I. Khan.

Succinct facts forming the background of the present case are that Hamidullah complainant lodged the report in the shape of murasila in Civil Hospital, D.I. Khan wherein he alleged that he along with his father were going to Ustrana Hotel in "Commissionery Bazar, D.I. Khan for taking lunch. When they reached at the end of "Mohallah Hayatullah", the complainant was going ahead of his father and heard the scream of his father and on turning his face towards him, the complainant saw that the convict-appellant was catching hold of the deceased and ordered accused Nazir to kill him and resultantly Nazir gave two dagger blows on his back with which he got injured. The complainant took him for medical treatment in a rickshaw to the hospital but the injury succumbed to his injuries on the way and hence the present case.
The convict-appellant was arrested on 13-7-2004 and supplementary challan against him was submitted for trial. After fulfilling the legal formalities, the trial Court framed charge against the accused and the prosecution produced the required evidence. Statement of accused under section 342, Cr.P.C. was also recorded.
It is pertinent to mention that only P.W.7 Hamidullah was produced as eye-witness to the occurrence whereas the other P.Ws including Doctor (P.W.3) are formal in nature and as such placing reliance on the statement of P.W.7 in particular and the other P.Ws in general, the learned trial Court determined to decide the case and accordingly arguments of learned counsel for the prosecution as well as defence were heard and impugned judgment was passed as referred to above which is now impugned in this Court by the accused on one hand and the complainant on the other.
Learned counsel for the convict-appellant contended at the bar that there is considerable delay in lodging the F.I.R. as the Police Station is lying at a distance of two furlongs from the place of occurrence which suggests consultations and deliberations on the part of complainant and his relatives. He further contended that the trial Court has convicted the appellant on the basis of solitary interested and related witness who happened to be the son of the deceased but the prosecution has not proved the case against the convict-appellant on the basis of his deposition adduced in the Court. He urged that P.W. Hamidullah was not present on the spot and his attendance was procured later on, therefore, the report was recorded after a considerable delay which carries on element of consultations and deliberations. Learned counsel for the convict-appellant urged that P.W.7 is not a truthful witness for the reason that on one hand he has alleged the motive of previous blood feud with the accused party and on the other hand, he is interested to prosecute the accused being the son of the deceased. Learned counsel for the convict-appellant urged before us that the motive of dispute over the landed property as well as the previous animosity with the accused has not been proved by the prosecution as neither any document regarding the previous enmity nor any document regarding criminal or civil litigation has been produced in the Court. He urged that the medical evidence does not support the story of prosecution as the complainant has alleged in his statement that he and his deceased father were going to take lunch in the hotel but the doctor has opined that the stomach of the deceased was containing food.
On the other hand, learned State Counsel assisted by privately engaged counsel for complainant argued that the complainant has lodged the report promptly and the delay of 45 minutes was consumed in arranging the conveyance for shifting the deceased then injured to the hospital which is not fatal for prosecution. State Counsel contended that P.W.7 is the son of the deceased who is a natural witness to the occurrence and he has not exaggerated the occurrence and has deposed against the convict-appellant whatever he has seen on the spot. He further urged that it is the quality and not the quantity of evidence which has been taken into consideration by the trial Court for the conviction of the convict-appellant and has dubbed the complainant being a truthful witness to the occurrence as he has correctly identified the points of blood and the availability of sheath of the dagger on the spot to the Investigation Officer. State Counsel further urged before us that the medical evidence fully supports the story of prosecution as the complainant has attributed the role of two stab blows to the absconding accused and facilitating the inflicting of blows by catching hold of the deceased by the convict-appellant. He strenuously argued that through the solitary evidence of Hamidullah P.W.7 has not been corroborated by any independent witness because nobody comes forward to share in the enmities of others just for nothing and that is why nobody out of the public in a busy Bazar has come forward to depose against the convict-appellant, otherwise, ocular version finds support from medical and other circumstantial evidence which is sufficient proof of guilt of the accused. They further urged that the convict-appellant remained absconder for considerable long period of 14 years which is a corroborative piece of evidence supporting the deposition of P.W.7 who is eye witness to the occurrence.
We have given our thoughtful consideration to the above arguments and perused the material on record as well as the grounds considered by the trial Court for sustaining the conviction of convict-appellant.
As envisaged from the contents of the occurrence has taken place on 10-9-1999 at 1145 hours and the report has been lodged at 1230 hours and there is admitted delay of 45 minutes though the distance between the spot of occurrence and the Police Station is hardly two furlongs, however, the deceased then injured was taken to the hospital instead of taking him to the Police Station, therefore, the delay occurring in such like circumstances of the case is natural but here in this case, when the complainant Hamidullah came to know during transit that the injured succumbed to his injuries, then he was supposed to have taken the deceased to the Police Station, therefore, the delay in lodging the report promptly has not been sufficiently explained and thus the reporting of the matter in the murasila is not safe for the prosecution in view of verdict reported in 1999 AC 564 as indication towards consultations and deliberations on the part of complainant with his kith and kins as well as the local police cannot be ruled out.
Hamidullah complainant has lodged the report and he has recorded statement in the Court as P.W.7 and his statement was relied upon by the trial Court and conviction of the convict-appellant was based on his ocular account. Evidently, Hamidullah is the sole witness to the occurrence without any corroboration from impeachable source, therefore, placing reliance on his statement for sustaining the conviction of convict-appellant will be unsafe. In such like situation caution should be taken at the time of assessment. It was the duty of the prosecution to procure the ocular evidence from the vicinity where the deceased was done to death but in view of general phenomenon of the locality, nobody independent comes forward before the police to depose against the accused in spite of the fact that many people of the general public see the commission of offence in the Bazar and streets but in his case nobody from "Mohallah Hayatullah" was produced to corroborate the evidence of the solitary witness. Hamidullah P.W.7 has claimed that he was present with his father at some distance ahead and has claimed to have seen the convict-appellant catching hold of his father and facilitating the murder by the absconding co-accused but this factum of the case has not been proved by any impeachable source from the locality. Even, we doubt the presence of complainant on the spot because the prosecution was duty bound to produce the rickshaw driver in the Court about the presence of complainant taking his injured father to the hospital but the prosecution badly failed to prove it. P.W. Hamidullah is an interested witness of the occurrence for the reason that on one hand, he is on inimical terms with the convict-appellant and on the other hand, he is the son of the deceased and interested to bring the convict-appellant under the gallows while deposing against him in the Court falsely, therefore, in such like circumstances, it will be unsafe to rely upon the solitary evidence of an interested witness. Reliance in this regard is placed on PLD 2004 Peshawar 294 where the evidence of solitary interested witness was not considered for conviction.
Dr. Shah Jehan Baloch has been examined as P.W.3 and he has opined the two injuries inflicted on the deceased on the scapula deep in chest but this cannot be taken as evidence against the convict-appellant because the weapon of offence has not been recovered and taken into possession by the police nor the prosecution has claimed these injuries inflicted by the convict-appellant. The doctor has opined in his report that the stomach of the deceased contained food material but the complainant has alleged that they were going to take meals in the hotel, meaning thereby that the stomach of deceased at the time of occurrence was empty, therefore, the medical evidence does not support the version of P.W.7 which shows that he is either telling lie or he was not present on the spot at the time of occurrence, therefore, he did not know about the taking of the food by his deceased father and as such, the medical evidence would not connect the convict-appellant with the commission of crime nor corroborates the statement of complainant P.W.7. Reliance in this respect is placed on PLD 2008 SC 298 where it has been held that medical evidence may confirm the ocular evidence with regard to the locale of injury, nature of injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. The contradiction arising out of the medical evidence and ocular account will make the prosecution episode doubtful and conclusion can be drawn about the failure of prosecution case.
As envisaged from the allegations put forth by the complainant and the vehement arguments of both the counsel at the bar for and against, the complainant claimed the motive for the occurrence as criminal and civil litigations between the complainant party on one hand and the accused party on the other, however, as alleged by the complainant (P.W.7), after attending the District Courts in connection with proceedings under sections 107/151, Cr.P.C. with the accused party, they proceeded to Commissionery Bazar, D.I. Khan but this factum of the case regarding the motive resulting into the murder of the deceased has not been proved either by way of producing any oral or documentary evidence to substantiate the same which could lead to the inference that actually the accused was interested to do away with the deceased. Neither any document about the presence of P.W.7 participating in the proceedings in the District Courts has been produced nor any witness from that Court was produced to establish his presence on the day of occurrence in the city of D.I. Khan or any document showing the motive with the accused party, therefore, it is settled law that the motive once alleged is to be proved; otherwise, it will adversely affect the prosecution case because motive is a double edged weapon and cuts both ways.
It is an admitted fact on record that accused remained absconder for about 14 long years, however, when question was put to the convict-appellant about the abscondence, he categorically denied the same and averred that he had not absconded but was present in his village Kirri Shamozai lying at certain distance from D.I. Khan City and nobody has informed him about the summons or warrant issued against him. There is also plethora of authorities of superior Courts on this point that mere abscondence of accused is not a conclusive proof of the guilt of the accused. The value of abscondence depends upon the fact of each case abscondence alone cannot take the place of guilt unless and until the case is otherwise proved on the basis of cogent and reliable evidence. The accused persons generally disappear due to fear of police or because of the feelings of the guilt, therefore, in view of the dictum handed down in PLD 2008 SC 298 mere abscondence would not be taken as a conclusive proof of guilt of accused. If any other authority in respect of abscondence is needed, reliance can also be placed upon 1999 AC 564 wherein long abscondence of four years of the accused was not taken as a ground for conviction of the accused and accordingly the conviction was set-aside.
In view of afore-mentioned observations, we have been led to the conclusion that the prosecution badly failed to prove the guilt of the convict-appellant on the basis of solitary evidence of P.W.7 being an interested witness of the occurrence. Moreover, in view of the medical evidence, his presence on the spot has been rendered doubtful. The delay per se in lodging the report in the shape of murasila creates doubt in the prosecution case that the time of 45 minutes has been consumed in deliberations either with relatives or police which is indicative towards doubt. The prosecution failed to prove the alleged motive on the record to avail it for the conviction of the convict-appellant. All these factors mentioned above show that the case against the convict-appellant is very much doubtful and not many doubts but only a single doubt will be sufficient for acquittal of the accused. Therefore, we do not agree with the findings of the trial Court holding the convict-appellant guilty of offence of murder of deceased Musa Khan.

YLR 2010 PESHAWAR HIGH COURT 955 #

2010 Y L R 955

[Peshawar]

Before Dost Muhammad Khan and Hamid Farooq Durrani, JJ

MUKHTAR AHMAD KHAN---Applicant

Versus

Dr. Syed SOHAIL ILTAF, SECRETARY, HEALTH GOVERNMENT OF N.-W.F.P., PESHAWAR and another---Respondents

C.O.C. No.47 and C.M. No.482 of 2009 in Writ Petition No.201 of 2007, decided on 13th October, 2009.

Constitution of Pakistan (1973)---

----Art. 204---Contempt of court---Application for initiating contempt of court proceedings---Grievance of the applicant was that the order of the court passed on constitutional petition had been violated by the respondents because the Hospital, had not been made functional despite of all equipment/purchases and facilities available; and the respondents had blatantly violated the undertakings given to the court at the time of passing said judgment---Stand of the respondents was that due to the mass displacement of people from the concerned area, two largest Camps were established around the new Hospital/project and at some distance and the entire medical staff of the area and also from other Hospital was deeply involved in examining and treating of almost 30,000 displaced persons---Delay, in circumstances occurred in completion of the project mostly for that reason, which was beyond the control of the respondents---Explanations offered by the respondents were worth acceptance and there was no visible defiance on the part of the respondents, but for genuine reasons, the new Hospital could not be made fully functional---Directions were issued by the High Court to the effect that by all means the matter should be brought to the conclusion to facilitate the respondents to make functional the new Hospital in the interest of public at large, particularly the ailing community.

Applicant in person.

Bughdad Shah, S.O. Litigation for Respondent No.1.

Respondent No.2 in person.

Date of hearing: 13th October, 2009.

YLR 2010 PESHAWAR HIGH COURT 987 #

2010 Y L R 987

[Peshawar]

Before Attaullah Khan, J

MOHSIN RAZA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.217 of 2010, decided on 3rd March, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 196---Penal Code (XLV of 1860), Ss.295-A & 295-B---Outraging religious feelings and defiling of copy of Holy Quran---Bail, grant of---Further inquiry---Allegation against accused was that he torn the pieces of Holy Quran and by doing so had teased the sentiment of the people of the locality---When a person was charged under Ss.295-A & 295-B, P.P.C., it was mandatory that the complaint against such person be filed by Provincial or Federal Government or an officer authorized by them as provided under S.196, Cr.P.C.---F.I.R. in the present case was lodged on the complaint of private person who could not do so in violation of provisions of S.196, Cr.P.C.-Police was supposed to have complied with that Provision of law---Proceedings could not be launched, unless it was ordered under the authority of Federal or Provincial Government---Accused had submitted an affidavit in which he had negated the charges levelled against him---Contention of accused was that case against him had been lodged on the basis of misconception---Recovery memo through which the torn pages of Holy Quran had been taken into possession, was not witnessed by any public person, despite the fact that many persons were available at that time, which was also a legal defect--In view of illegality in lodging the F.I.R. in violation of S.196, Cr.P.C., marginal witnesses, recovery memo and affidavit, accused had made out a case for further inquiry---Accused was admitted to bail, in circumstances.

Bashir Ahmad v. State 2000 PCr.LJ 902 ref.

Sahibzad Sikandar for petitioner.

Hastam Khan for the State.

Date of hearing: 3rd March, 2010.

YLR 2010 PESHAWAR HIGH COURT 1021 #

2010 Y L R 1021

[Peshawar]

Before Attaullah Khan, J

YAQUB KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Bail Petition No.33 of 2010, decided on 22nd February 2010.

Criminal Procedure Code (V of 1898)---

----S. ----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-i-amd and attempt to commit qatl-i-amd---Bail, refusal of--Incident was daylight occurrence and report was promptly lodged---Accused was directly charged in the F.I.R. and ocular evidence was available---Medical report also supported the ocular version---Accused remained fugitive for a long period without any explanation---Accused, in circumstances was not entitled to concession of bail.

2002 YLR 1523 and 2002 PCr.LJ 60 ref.

Anwarul Haq for the Petitioner.

Sanaullah Shamim Gandapur, D.A.-G. for Respondent.

Ahmed Ali Khan Marwat for the Complainant.

Date of hearing: 22nd February, 2010.

YLR 2010 PESHAWAR HIGH COURT 1036 #

2010 Y L R 1036

[Peshawar]

Before Attaullah Khan, J

JAMEEL AKHTAR---Petitioner

Versus

Mst .TEHSILA and another---Respondents

Civil Revision No.375 of 2005, decided on 11th January, 2010.

Specific Relief Act (I of 1877)---

---S. 12---Qanun-e-Shahadat (10 of 1984), Art.76---Suit for specific performance of contract---Production of secondary evidence---Scope---Application filed by the defendant for production of secondary evidence in respect of receipt allegedly misplaced from him, was accepted by the Trial Court and the case was fixed for secondary evidence---Appeal against the order had been returned in original to the plaintiff for its representation to the proper forum because of lack of jurisdiction---Validity---When a document was lost, secondary evidence was permissible; however, it was necessary that the fact about missing the document was to be proved first---When a document was not proved to have been lost, secondary evidence would be of no value, even if it was produced, which would mean that secondary evidence was permissible, if lost of the document was proved---Witnesses (one of them being marginal witness) produced by the defendant had deposed that original receipt existed but during renovation of the house of the defendant said original receipt was misplaced, however, it was yet to be proved after recording of secondary evidence that as to whether the contents of the document in question were true or not or whether it was actually executed between the parties---Provisions of Art.76 of Qanun-e-Shahadat, 1984, in circumstances, had been complied with, which was a mere formality and had no adverse effect on the case of plaintiff---Plaintiff had ample opportunity to disprove the claim of the defendant by cross-examining the witnesses appearing in secondary evidence and also to rebut the !ante by producing his own witness---No illegality or irregularity had been committed by Trial Court in passing the impugned order.?

Gohar Zaman Khan Kundi for Petitioner.

Muhammad Salim Khan Marwat for Respondent.

Date of hearing: 11th January, 2010.

YLR 2010 PESHAWAR HIGH COURT 1066 #

2010 Y L R 1066

[Peshawar]

Before Attaullah Khan, J

NIAMATULLAH and 2 others---Petitioners

Versus

AMINUDDIN alias GHALIB and another---Respondents

Civil Revision No.118 of 2004, decided on 11th January, 2010.

North-West Frontier Province Pre-emption Act (I of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of talbs---Trial Court decreed suit, but appellate Court, after setting aside judgment and decree of the Trial Court, had dismissed suit---Validity---Plaintiffs being minors were represented by their father as their guardian---Plaintiffs had failed to perform the talb-i-muwathibat and talb-i-ishhad by not giving the exact date in their evidence--Pre-emptor was obliged to prove the exact date of making talb-i-muwathibat---Mere giving approximate period would render the talb-i-ishhad ineffective---If the pre-emptor would fail to disclose a definite date of talb-i-ishhad; the suit would be liable to be dismissed---Guardian of the plaintiffs (minors) had mentioned in general terms of period in which he acquired the knowledge of sale in question---Essential ingredients of the talbs was that it must be pronounced and performed in Majlis' immediately after receiving information regarding the sale transaction---Essential component of saidMajlis' was its members who were supposed to be witnesses of talb-i-muwathibat and in that way the members of Majlis were important witnesses who were to be produced in the court in support of talb-i-muwathibat, but no person present in the Majlis was produced by the plaintiff---Talbs, in circumstances were not in accordance with law and were defective; so in that way demand was also defective---Suit filed by the plaintiffs was rightly dismissed by the appellate court---In absence of any illegality or gross miscarriage of justice in the impugned judgment and decree, same could not be interfered with in revision.

Rustam Khan Kundi for Petitioner.

Saleem Nawaz Awan for Respondent.

Date of hearing: 11th January, 2010.

YLR 2010 PESHAWAR HIGH COURT 1153 #

2010 Y L R 1153

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

NAWAB ALI KHAN and 9 others---Petitioners

Versus

MUHAMMAD NAZIF KHAN and 14 others---Respondent

Civil Revision Petition No.17 of 2006, decided on 18th January, 2010.

Civil Procedure Code (V of 1908)---

----S. 115---Limitation Act (IX of 1908), Ss.5 & 12(2)---Revision---Limitation---Application for obtaining copies of impugned judgment and decree passed by the Appellate Court was moved after one month and 14 days of decision which were delivered to the petitioners on the same date, whereas revision petition against judgment of the appellate court was filed within ninety days---Objection with regard to limitation was raised on the very day of filing the revision and same was returned to the counsel for petitioners, but he wasted further 15 days without any valid reason and ground---Delay of six days on the part of the Petitioner for filing the revision petition, had neither been explained nor there was any application for condonation of the exhausted period of limitation---Prescribed period of filing the revision having expired, delay on the part of Petitioners was deliberate---Petition was dismissed being barred by time.

PLD 2006 Pesh. 157 and 2008 YLR 1553 ref.

Muhammad Ayaz Khan Qasuria for Petitioners.

Rustam Khan Kundi along with Sanaullah Shamim Gandapur, D.A.-G. for Respondents.

2010 Y L R 1337

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No. 1600 of 2009, decided on 2nd November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Manufacturing, owning or possessing intoxicant---Bail, grant of---Further inquiry---No doubt, a huge quantity of liquor had allegedly been recovered from accused, but the prosecution had failed to confirm it with its chemical analysis that the alleged recovery was in fact alcohol, possession and use of which was prohibited under the law---One could not presume the alleged recovery to be liquor which would make the case of accused as that of further inquiry entitling him to concession of bail---Refusal of grant of bail would amount to punishment before the trial which was against the settled principles---Accused was released on bail, in circumstances.

Qaisar Zaman for the Petitioner.

Fazalur Rehman Khan, A.-A.G. for the State.

Date of hearing: 2nd November, 2009.

YLR 2010 PESHAWAR HIGH COURT 1377 #

2010 Y L R 1377

[Peshawar]

Before Attaullah Khan, J

IBRAHIM KHAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.23 of 2010, decided on 22nd February, 2010.

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

----Ss. 154 & 161---Delayed F.I.R. and statement under S.161, Cr.P.C.---Delayed statement recorded under S.161, Cr. P. C., could not substitute an F.I.R. because there was no provision available to give preference to a statement recorded by the Police under S.161, Cr. P. C. over the F.I.R. which was lodged under S.154, Cr.P.C.---Statement recorded by Police could neither be equated with the F.I.R. not it could be taken into consideration unless strong reasons were shown.

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

----S.497(2)---Penal Code (XLV of 1860), Ss. 302/109/120/34--- Qatl-e-amd--- Bail, grant of---Further inquiry---F.I.R. did not show that any body had been charged---After two weeks of the report, accused were nominated by the prosecution witness, but he had not disclosed the source of information---Two weeks' time spent in lodging the F.I.R. had created doubt and pointed out possibility s of deliberation for false implication---No ocular evidence was on record and no recovery had been made out from the accused persons to connect them with the commission of offence---Role of complainant had also become doubtful when he was contradicted by witness---All said facts had made the case of accused persons that of further inquiry--Accused were admitted to bail, in circumstances.

Marghub Hassan Khan and Faqir Mahboobul Hamid for Petitioner.

Sanaullah Shamim Gundapur D.I.G the State.

Gohar Zaman Kundi for the Complainant.

Date of hearing: 22nd February, 2010.

YLR 2010 PESHAWAR HIGH COURT 1422 #

2010 Y L R 1422

[Peshawar]

Before Attaullah Khan, J

MUHAMMAD AAMIR RAUF---Appellant

Versus

AHMAD NAWAZ---Respondent

First Appeal against Order No.3 of 2009, decided on 21st December, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2, 3 & O.XLII R.1(d)----Suit for recovery of amount---Application for leave to appear and defend suit---Ex parte decree, setting aside of---Appeal---Defendant having failed to appear, he was proceeded against ex parte---Application for setting aside ex parte decree filed by the defendant was dismissed--- No summons as prescribed under the law had been served upon the defendant---Plaint was not annexed with the summons and resultantly the defendant was not in the know of nature of the case--Application for condonation of delay was also not required to have been filed without any rhyme or reason---Impugned orders were set aside and the case was sent back to the Trial Court for decision afresh strictly in accordance with law.

Taj Ali Khan v. Haji Muhammad Ali 2003 YLR 1130; Zahoor Ahmad v. Asif Hussain 2001 MLD 1759 and Abdul Karim v. Nazir Ahmad PLD 1998 Lah. 163 ref.

Ahmad Ali Khan for Petitioner.

Muhammad Abu Bakar Usman for Respondent.

Date of hearing: 21st December, 2009.

YLR 2010 PESHAWAR HIGH COURT 1439 #

2010 Y L R 1439

[Peshawar]

Before Attaullah Khan, J

AURANGZEB ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.114, 121 and Criminal Revision No. 26 of 2006, decided on 30th March, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Timing of death was contradicted by postmortem report, which was damaging for the prosecution case and cast doubt about .the manner of occurrence and even it made doubtful the presence of eye-witnesses---From the escape of the two prosecution witnesses unhurt, it could be inferred that they were not present at the spot at the time of occurrence---Trial Court had fallen into error in believing the evidence against the convicted accused which was not believed against the acquitted co-accused in the peculiar circumstances of the case---Present case was full of doubts, while only one doubt was sufficient to discredit the entire evidence and to favour accused---Was not .necessary that a number of doubts should exist---Even a single circumstance creating reasonable doubt about the guilt of accused would entitle him to acquittal and it was his right---Presence of eye-witnesses was not proved beyond doubt---Actual culprit who fired at the deceased, was not known---Benefit of doubt must go to accused---Accused who deserved acquittal, was acquitted of the charges levelled against him and was set free.

Sherdal alias Sher Muhammad v. The State 1999 SCMR 697; Aftab Zaman v. The State 1991 PCr.LJ 76; Muhammad Farooq and another v. The State 2006 SCMR 1707; Khawaja Ahmad Khan and 2 others v. The State 1998 PCr.LJ 1192; PLD 1971 Kar. 156; Ghulam Nazik v: The State 2009 PCr.LJ 321 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Sultan Shaharyar Khan Marwat for Appellant.

Saleem Ullah Khan Ranazai for the State.

Marghub Hassan Khan for Complainant.

Date of hearing: 30th March, 2010.

YLR 2010 PESHAWAR HIGH COURT 1455 #

2010 Y L R 1455

[Peshawar]

Before Attaullah Khan, J

GUL MARIAN-Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Misc. Bail Petition No.81 of 2010, decided on 19th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, refusal of---Contention of the accused was that according to final report submitted by Investigating Officer there was cross-version in another F.I.R., which was not believed and that difference between number of injuries and number of accused, was also not accepted---In the present case it was yet to be decided as to whether the other case was cross case or not---Injury in that case was simple and not on the vital part---Victim who was present in the court, his neck was covered with plaster and injury was on the left side of his neck---Bullet was still inside and so far was not extracted---Victim who seemed to be under treatment was aged about 14/15 years---Injury on the neck of the victim had shown that the intention of accused was definitely to kill him because the injury was on the most vital part of the body---Keeping in view the injury on the neck of the victim, it was a case of brutal attempt at his life---Technicalities, if any, were ignorable, in circumstances---Bail petition was dismissed, in circumstances.

Saleem Ullah Khan Ranazai for Petitioner.

Sanaullah Shamim Gandapur D.A.-G. for the State.

Noor Gul Khan Marwat for Complainant.

Date of hearing: 19th March, 2010.

YLR 2010 PESHAWAR HIGH COURT 1464 #

2010 Y L R 1464

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SHER ZADA and another---Petitioners

Versus

ROSHAN ZARI and another---Respondents

Criminal Miscellaneous 1800 of 2009, decided on 4th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/427--- Qatl-e-amd---Bail, refusal of---Case was under investigation--Accused were directly charged by the widow of deceased in her statement recorded under S.164, Cr.P.C. just on the next day of the commission of offence---Recovery of 47 empties from the spot, blood stained earth and damaged van got support from the statement of widow of deceased---Factum of previous enmity at the moment was sufficient motive for the commission of offence---Plea of alibi raised by accused person could not be considered at the bail stage because the investigation of the case was in progress and the authenticity of the same could well be ascertained by the Trial Court---In the bail matters specially when the case was in the process of investigation, court was not required to evaluate the material on the record in presence of the grounds disclosing the complicity of accused in the commission of the offence---Only recognized principle, in circumstances, was the' tentative assessment of the material available on the record---Reasonable grounds existed which prima facie connected accused with the commission of offence---Bail petition was dismissed, in circumstances.

Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829; Nazar Hussain Shah and another v. The State 2007 PCr.LJ 1274 and Noor Muhammad v. The State 2008 SCMR 1556 ref.

Sahibzada Asadullah for Petitioners.

Akhtar Naveed A.A.-G. for the State.

Akhtar Naveed for the Complainant.

Date of hearing: 4th December, 2009.

YLR 2010 PESHAWAR HIGH COURT 1476 #

2010 Y L R 1476

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

INAM ULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous (BA) No.1794 of 2009, decided on 23rd November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324---Qatl-e-amd and attempt to commit qatl-i-amd---Bail, refusal of---Record had reflected that single accused had been charged for effectively firing at deceased and injured who also died later on---Motive for the occurrence was on record---Three empties of pistol and blood were also recovered from the spot and witnessed by one, which for the purpose of bail was sufficient to prima facie connect accused with the commission of offence---Certain questions raised by accused could not be considered at bail stage as consideration of such questions required deeper appreciation of evidence, which was not permissible in the bail matters---For the purpose of bail only tentative assessment of the material available on the record had to be considered---Sufficient material was available on record connecting accused with the commission of offence which had disentitled accused to concession of bail---Bail petition was dismissed, in circumstances.

Shah Faisal Khan for Petitioner.

Arbab Aziz Ahmad for the State.

Zahid Yousaf Qureshi, A.A.-G.

Date of hearing: 23rd November, 2009.

YLR 2010 PESHAWAR HIGH COURT 1488 #

2010 Y L R 1488

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SAID REHMAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1591 of 2009, decided on 23rd November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-e-amd and Haraabah---Bail, grant of---Further inquiry---Record of the case had revealed that incident was an unseen occurrence and no material evidence connected the accused with the commission of offence, except the statement of the brother and driver of the deceased, recorded under S.164, Cr.P.C. at a belated stage---Recovery of the car of the deceased was also made on the information provided by the informer; and that too not from accused persons---Alleged motive was attributed to the absconding accused---Nothing material was recovered from or at the instance of accused---Nothing was on record which could prima facie connect accused with the commission of offence which would make the case of accused as that of further inquiry entitling them for the release of bail under S.497(2), Cr.P.C.---Accused were admitted to bail, in circumstances.

Adil Ahmad Batgram for Petitioner.

Sahibzada Baha-ud-Din for the State.

Gul Daraz Khan for the Complainant.

Date of hearing: 23rd November, 2009.

YLR 2010 PESHAWAR HIGH COURT 1496 #

2010 Y L R 1496

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

LAL ZAMEEN---Applicant

Versus

THE STATE and another---Respondents Criminal Miscellaneous (Bail Application)

No.1807 of 2009, decided on 4th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-iamd---Bail, refusal of---Five persons were charged for effectively firing on the person of the complainant to commit his qatl-iamd; and recovery of empties of different weapons were also made from the spot---No specific rule of criminal dispensation of justice could be framed which could be applied to each and every case---Each case had to be seen in its own facts and circumstances---In the present case accused was arrested after about 5 months of the occurrence and such abscondance had not been fully explained on the record---Accused remained absconder and waited till the acquittal of other accused---For bail matters, such abscondance could not be left unnoticed as fugitive from the law and courts would lose some of normal rights; and privileges granted by the procedural as well as substantive law---Unexplained noticeable abscondance would be sufficient for the refusal of bail to accused; and acquittal per se of the co-accused in the case would not be a sufficient ground for the release of accused on bail---Bail application was dismissed in circumstances---Trial Court, however, was directed to conclude the trial of the case within a shortest possible span of time.

2005 PCr.LJ 748 and 2006 PCr.LJ 184 rel.

Bakht Nawaz Khan for Petitioner.

Akhtar Naveed, A.A.-G. for the State.

Astagferullah for the Complainant.

Date of hearing: 4th December, 2009.

YLR 2010 PESHAWAR HIGH COURT 1508 #

2010 Y L R 1508

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

HAMEEDULLAH KHAN---Petitioner

Versus

ABDUL WADOOD QURESHI--- Respondent

Civil Revision No.158 of 2009, decided on 5th April, 2010.

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---Defendant submitted an application under O. VII, R.11, C.P.C. for rejection of plaint being barred by time--Defendant in his application had averred that sale mutation was entered on 6-5-2008 and was attested on 14-5-2008, suit was filed on 26-9-2008, which would mean that suit was filed after 4 months and 20 days from date mutation was entered and after 4 months and 12 days from attestation of mutation---Under S.31(b) of North-West Frontier Province Pre-emption Act, 1987 a suit for pre-emption was to be filed within 120 days if the sale was effected through registered deed or sale mutation from the date of registration or attestation thereof---Trial Court accepting application filed by the defendant dismissed the suit filed by the plaintiff, but on filing appeal by the plaintiff against judgment and decree passed by the Trial Court, Appellate Court, set aside judgment and decree passed by the Trial Court and remanded case to the Trial Court---Validity---Pre-emption suit having arisen from sale effected through mutation, the time for filing suit within 120 days would run from the date of attestation of the mutation---Issuance of public notice under S.32 of North-West Frontier Province Pre-emption Act, 1987, had no nexus with period of limitation prescribed by S.31 of the said Act--Impugned judgment of Appellate Court, was illegal, against the mandatory provisions of S.31 of the North-West Frontier Province Pre-emption Act, 1987 and was liable to be set aside---Judgment of the Appellate Court was set aside and judgment and decree passed by the Trial Court was restored. ?

Mian Asif Islam v. Miann Muhammad Asif and others PLD 2001 SC 499; Yaqoob Khan and others v. Rafiullah Shah and others 2004 CLC 284; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 and Muhammad Aqeel v. Fayaz Hussain and 2 others 1999 MLD 1506 ref.

Asghar Ali for Petitioner.

Asghar Khan Kundi for Respondent.

Date of hearing: 10th March, 2010.

YLR 2010 PESHAWAR HIGH COURT 1517 #

2010 Y L R 1517

[Peshawar]

Before Mian Fasih-ul-Mulk, J

MUHAMMAD SIDDIQUE---Petitioner

Versus

MUHAMMAD AJMAL and others---Respondents

Criminal Miscellaneous No. 148 of 2009, decided on 25th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34--- Qatl-e-amd---Cancellation of bail, petition for---Respondents/accused persons were directly charged in the promptly lodged F.I.R. for the brutal murder of deceased with lethal weapons---Accused persons obtained transit bail from the Trial Court but never appeared before the competent Court for its confirmation or otherwise---Accused persons since the date of occurrence never joined the investigation--- Certificate regarding plea of alibi was produced before the Investigating Officer who did not deem proper to verify the same---No body stood behind said certificate, but Investigating Officer placed both accused at his own in column No.2 of challan---Trial Court without looking into challan, framed the charge against both accused without ascertaining the legal position as to whether accused were sent for trial or otherwise; and whether accused were in custody or on bail---Trial Court vide impugned order was not justified to direct accused to furnish bail bonds without serving any notice upon the legal heirs of deceased, which had not only adversely affected the interest of deceased party, but was also against the principles of natural justice---Bail cancellation petition was allowed.

1998 PCr.LJ 752; PLD 1986 Pesh. 64; 1985 PCr.LJ 1157; PLD 1974 SC 62, PLD 1990 SC 83; PLD 1994 Pesh. 268;' 2002 SCMR 1381; 1980 SCMR 203 and 1982 SCMR 440 ref.

Qazi Shamsudin Din for Appellant.

Ghulam Mustafa Sawati and Nasim Khan for Respondents.

Munir Ahmad Bhatti for the State.

Date of hearing: 25th January, 2010.

YLR 2010 PESHAWAR HIGH COURT 1520 #

2010 Y L R 1520

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD FAYYAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1697 of 2009, decided on 6th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheques---Bail, grant of---Record had shown that certain disputes existed between the complainant and accused, because another F.I.R. was also registered against accused on the report of complainant---During course of submission before High Court, certain cash payments by accused to the complainant had also been admitted at the Bar---Facts of record had reflected that both accused and the complainant had some common business for which such dealing through cheques were made and presence of civil suit confirmed that very fact---Question whether cheque in question was dishonestly issued to the complainant was a fact, genuineness or otherwise of which had to be proved at the trial---Punishment for the offence provided for, did not come under the prohibitory clause of S.497, Cr.P.C., which would entitle accused to the grant of bail---Accused was released on bail, in circumstances.

Alam Sher Afridi for Petitioner.

Matiullah Baloch for the State.

Malak Aman Khan for the Complainant.

Date of hearing: 6th November, 2009.

YLR 2010 PESHAWAR HIGH COURT 1531 #

2010 Y L R 1531

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

ROMAN ALI---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeals Nos. 95, 89 and Criminal Revision No.33 of 2005, decided on 10th March, 2010.

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

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Complainant who was mother of deceased was the only eye-witness present on the spot at the time of occurrence---Whatever details had been given by the complainant in the F.I.R., had been confirmed by her in her statement before the Trial Court---Nothing about her motive for false implication of accused was established---Complainant herself reported the matter and shifted her son in injured condition to the hospital---Nothing was mentioned in her cross-examination to suggest that she was not present at the spot---Ocular evidence was duly corroborated by other pieces of circumstantial evidence which included medical report and recovery of empties---Quality of evidence was to be counted and not the quantity---Only the testimony of one witness, if he was truthful, was enough for recording conviction of accused---No discrepancy was found in the statement of said sole eye-witness---Discrepancies pointed out by the counsel for accused were of minor nature and would not affect the prosecution case---Despite lengthy cross-examination, no direct or indirect enmity or grudge on the part of eye-witness against accused had been proved---Said eye-witness had given her straightforward deposition in the Trial Court; her statement was found truthful and nothing was on record against her that she was motivated to falsely implicate accused---Statement of said eye-witness, in circumstances, was trustworthy and had been rightly believed---Report of Forensic Science Laboratory relied upon by the defence, would lose its significance because ocular evidence was available which had supported the case against accused; and in that way, even no corroboration was needed---Medical report also corroborated the eye version of the complainant---Accused also remained absconder for eleven months and no plausible explanation was available for said abscondence---Ocular evidence and other circumstances proved the case against accused and his abscondence was an added circumstance to be taken against him---Report in the case was lodged in reasonable time, keeping in view the circumstances of the occurrence and accused was directly charged---Impugned judgment of the Trial Court convicting and sentencing accused was maintained, in circumstances---Application for enhancement of sentence, was dismissed. ?

PLD 2001 SC 112; 2006 SCMR 919 and 2003 SCMR 522 ref.

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

----S.302/34---Criminal Procedure Code (V of 1898), S. 417---Qatl-e-amd---Appeal against acquittal---Co-accused having been acquitted by the Trial Court, complainant had moved appeal against acquittal---Trial Court had believed the defence evidence in respect of plea of alibi taken by co-accused, who produced five witnesses in support of his plea---According to said co-accused on the day of occurrence he was arrested by the Police and a case was registered against him---Since said acquitted co-accused was serving in Irrigation Department, Investigating Officer also got verified his departure on the fateful day from the office by procuring the attendance register of co-accused, who was shown absent---Trial Court had believed the defence evidence and statement of accused recorded under S.340(2), Cr.P.C. on the ground that nothing had been brought out in cross-examination to make that evidence unreliable---Trial Court also taken into consideration the opinion of Forensic Science Laboratory---Evidence against acquitted accused was not sufficient for his involvement in the offence---When an accused was acquitted of the charges, he enjoyed double presumption of innocence in his favour and the Appellate Court was required to be careful while considering appeal against acquittal---Appeal against acquittal was dismissed.?

2004 SCMR 1185 ref.

Gohar Zaman Khan Kundi for Appellant.

Sanaullah Shamim, D.A.-G. for the State.

Sanaullah Khan Gandapur for the Complainant.

Dates of hearing: 9th and 10th March, 2010.

YLR 2010 PESHAWAR HIGH COURT 1548 #

2010 Y L R 1548

[Peshawar]

Before Imtiaz Ali, J

BANARAS KHAN---Petitioner

Versus

GALIYAT DEVELOPMENT AUTHORITY through District General G.D.A. Officer---Respondent

Civil Revision No. 347 of 2009, decided on 9th April, 2010.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and permanent injunction---Rejection of plaint---Trial Court, suo motu rejected plaint under O. VII, R.11, C.P.C. and Appellate Court dismissed the appeal against the judgment of the Trial Court---Validity---Power of rejection of plaint was an exceptional power to be exercised by court with extreme caution because such power was an exception to general rule---All cases were to be decided on merits, after recording of evidence and not on technical grounds---Law permitted consideration of only averments made in the plaint for the purpose of deciding; whether the plaint should be rejected or not, for failure to disclose cause of action; or the suit being barred under some provisions of law---Court, for rejection of plaint, could not even consider pleas raised by defendant in the suit for his defence---Courts below, in the case had not only mis-applied the provisions of O.VII, R.11, C.P.C., but the manner in which power thereunder had been exercised was highly inappropriate---Judgments of both the courts below were in excess of jurisdiction, based on misapplication of law contrary to the pleadings of the parties---Said judgments were set aside and case was remanded to Trial Court for decision on merits, after recording of evidence in accordance with law.

(b) 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---Grant of temporary injunction--- Rejection of plaint---Scope---Scope of proceedings of an application under O.XXXIX, Rr.1, 2. C.P.C. for grant of temporary injunction and that of rejection of plaint under O. VII, R.11, C.P.C., were quite different---If at all the Trial Court was of the view that provisions of O. VII, R.11, C.P.C. were attracted in the present case, proper notice should have been given to plaintiff to meet such objection instead of rejecting the plaint while disposing of application for temporary injunction---Plaintiff in the present case had based his claim upon an admitted document i.e. lease agreement and had sought declaration and injunction against defendant to abide by the terms of that deed and refrain from taking any action contrary to the terns and condition of lease agreement, it was beyond comprehension as to how in view of those averments in the plaint, courts below came to the conclusion that plaint did not disclose cause of action---Case was remanded by High Court with observations that nothing in the present judgment shall preclude respondent/defendant from moving an application for rejection of plaint within the para-meters of Order VII, Rule 11, C.P.C. and if such application was moved, trial court may decide same on merits in accordance with law and should not be influenced by observations in the judgment which are tentative in nature, based on available record.

Abdul Shakoor Khan for Petitioner.

Nasruminallah Khan for the Respondent.

Date of hearing: 9th April, 2010.

YLR 2010 PESHAWAR HIGH COURT 1570 #

2010 Y L R 1570

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SHOKAT---Petitioner

Versus

THE STATE and another---Respondents

Cr. Miscellaneous (BA) No.1717 of 2009, decided on 13th November 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 336/34---Itlaf-i-Salahiyyat-i-udw--Bail, refusal of---Contents of the F.I.R. and medical report present on the file had reflected that it was a heinous offence of Itlaf-i-Salahiyyat-i-Udw---Section 336, P.P.C. for which accused along with his wife had been charged and on the face, it appeared that accused was charged for an offence, punishment provided for which, came under the prohibitory clause of S.497, Cr.P.C., disentitling him to the concession of bail---Challan in the case was complete which had to be submitted before the Trial Court---Prosecution was directed to submit the challan before the Trial Court and Trial Court was directed to decide the matter earlier---Bail petition was dismissed, in circumstances.

Noroz Khan for petitioner.

Riaz Afridi for the State.

Date of hearing: 13th November, 2009.

YLR 2010 PESHAWAR HIGH COURT 1597 #

2010 Y L R 1597

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD MUNIR---Petitioner

Versus

MUHAMMAD ISHAQ and another---Respondents

Cr. Miscellaneous.(B.A) No.1679 of 2009, decided on 6th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149/427---Qatl-e-amd---Bail, grant of---Further inquiry---No effective and specific role had been attributed to accused, persons, involvement of whom would be considered at the time of trial---Sole injury had been attributed to co-accused who was absconding---No material was on record against accused, persons, except the allegations made in the F.I.R.--Question of common intention of accused party would be determined at the time of trial---Case of accused appeared to be as that of further inquiry and he was entitled to the concession of bail under S.497(2), Cr.P.C.---Accused was released on bail, in circumstances.

Umar Hayat v. The State 2009 PCr.LJ 1058 ref

Khawaja Muhammad Khan for Petitioner.

Sahibzada Asadullah for Complainant.

Bilal ud Din for the State.

Date of hearing: 6th November, 2009.

YLR 2010 PESHAWAR HIGH COURT 1612 #

2010 Y L R 1612

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

KHAN ZEB---Petitioner

Versus

THE STATE and another---Respondents

Cr. M. No.1639 of 2009, decided on 30th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 457/380/411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Theft, lurking house-trespass and dishonestly receiving stolen property---Bail, grant of---Certain alleged stolen property, no doubt had been recovered from accused, but nothing was on record to reflect that those were the articles belonging to the complainant---In absence of such evidence, alleged recovery had become doubtful on the ground that such articles were commonly available in every house and easily available in the market---While considering the question of rule of consistency, High Court was of the opinion that same set of evidence was against all accused persons---Other two co-accused having been released on bail by High Court, accused was also entitled to be released on bail---Accused was released on bail, in circumstances.

Arbab Zafar Ali Khan for Petitioner.

Ikramullah Khan, A.A.-G. for Respondents.

Syed Sultan Ahmad Shah for the Complainant.

Date of hearing: 30th October, 2009.

YLR 2010 PESHAWAR HIGH COURT 1630 #

2010 Y L R 1630

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

WAHAB---Petitioner

Versus

THE STATE and another---Respondents

Cr. Misc. B. A. No.1578 of 2009, decided on 16th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-A---Abduction for ransom---Bail, refusal of---Record had revealed that alleged abductee was abducted for ransom and initially accused demanded Rs. one crore as ransom and lastly his claim was reduced to Rs.25,00,000-Nothing on the record would suggest that the complainant or the prosecution witnesses had any malice to falsely implicate accused for the commission of the offence---Specific role of demanding ransom in absence of any mala fide on the part of the complainant or the witnesses, prima facie suggested the involvement of accused in the case---Without going deep into the merits of the case, involvement of accused was very much there---Offence for which accused had been charged, fell under the prohibitory clause of S.497, Cr.P.C.---Accused was not entitled to the concession of bail---As investigation in the case was completed and challan had also been submitted before the Trial Court, Trial Court was directed to complete the trial of the case within three months.

Khan Askar Afridi for Petitioner.

Zahid Yousaf, A.A.-G. for the State.

Assadullah Chamkani for the Complainant/Respondent No.2.

2010 Y L R 1763

[Peshawar]

Before Liaqat Ali Shah, J

IRFAN---Applicant

Versus

THE STATE and another---Respondents

Bail Application No.394 of 2010, decided on 9th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Deceased had sustained one firearm inlet wound---Accused along with his brother and nephew was charged for the commission of the offence---No empty had been recovered from the spot---Unlike his co-accused, accused had voluntarily surrendered to the process of law---In view of circumstances, coupled with volunteer appearance before the process of law, whether the same were compatible with his guilt or innocence, was a question which had made the case of accused one of further inquiry---Accused was admitted to bail, in circumstances.

Sahibzada Asadullah for Petitioner.

Bilaluddin Khan and Fakhar Zaman Khattak for the Complainant.

Date of hearing: 9th April, 2010.

YLR 2010 PESHAWAR HIGH COURT 1792 #

2010 Y L R 1792

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

QASIM KHAN---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 144 of 2006, decided on 28th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/337-F(ii)/34---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Delay of two hours and thirty minutes in lodging F.I.R. had sufficiently been explained---Every delay in lodging the F.I.R. was not fatal in each case as it would depend upon facts and circumstances of each case---Both the complainant and other prosecution witness had witnessed the occurrence, their testimony was in consonance with the contents of the F.I.R. wherein no contradiction was found and same was trustworthy---Both complainant and prosecution witness, though were related to the deceased; but mere relationship was no disqualification, unless it was proved that the witness was inimical or interested to falsely implicate accused---Nothing was available to establish that either of the eye-witnesses was inimical or interested against accused to falsely implicate him---Both the eye-witnesses were put to a lengthy cross-examination, but nothing contrary had been brought out from their mouths which was sufficient to prove that the witnesses were reliable---Complainant being an injured witness, presumption of truth was attached to his presence on the spot---Empties were recovered from the points and nearby place where the deceased and injured witness were hit which had corroborated the prosecution case---Non-examination of the empties by the Laboratory, would not affect the case, because no recovery of weapon of offence was made---Investigating Officer was competent to satisfy himself about the bullets---According to the evidence of Doctor who conducted autopsy of the dead body of the deceased and post-mortem report about four injuries were present on the body of the deceased, which had corroborated the version of the eyewitnesses---In the F.I.R. and in the statements of eye-witnesses, accused was charged for effective firing over the deceased as well as the injured complainant, which had corroborated the ocular version---Contradictions or discrepancies, if any would not affect the case of the prosecution, firstly, because those were not material; and secondly that the occurrence took place more than ten years before recording of evidence and after such a long time the discrepancies were bound to occur---Accused remained absconder for about ten years---Proceedings under S.512, Cr. P. C. were completed against accused and he was declared proclaimed offender---Such long absconsion was not justified and had gone against the accused---Prosecution had succeeded to prove its case against the accused beyond any shadow of reasonable doubt and the Trial Court, in circumstances, had correctly appraised the evidence by not awarding the normal penalty of death to accused.

1996 SCMR 167; PLD 1992 SC 211; NLR 1998 Criminal 82; NLR 2008 Criminal 183; 2006 YLR 858, 1999 SCMR 1943; 2003 SCMR 522 and PLD 1977 SC 557 ref.

Anwarul Haq for Appellant.

Sanaullah Shamim D.A.G. for the State.

Abdul Latif Baloch and Muhammad Yaqoob Marwat for the Complainant.

Date of hearing: 28th April, 2010.

YLR 2010 PESHAWAR HIGH COURT 1865 #

2010 Y L R 1865

[Peshawar]

Before Ejaz Afzal Khan, C J

MUHAMMAD SHER---Petitioner

Versus

NAWAR KHAN and others---Respondents

Civil Revision No. 536 of 2009, decided on 22nd February, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42----Suit for possession and declaration---Suit had concurrently been decreed by the Trial Court and Appellate Court---Counsel for the plaintiff by describing the background of the case had explained the origin of the title of each of the parties and person claiming through them, but when he was asked to refer to evidence on record, he could not do that---Courts below, in circumstances, had not applied their minds while handing down the impugned judgment, which could not be maintained---Impugned judgments and decrees were set aside and case was sent back to the Trial Court for decision afresh after recording additional evidence.

Iftikhar Ali Qadir for Petitioner.

Fahim Wali for Respondents.

Date of hearing: 22nd February, 2010.

YLR 2010 PESHAWAR HIGH COURT 1876 #

2010 Y L R 1876

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

PESCO through Chief Executive PESCO and 5 others---Petitioners

Versus

SHAHJAHAN KUNDI and 2 others---Respondents

Writ Petitions Nos.180 of 2006 and 10 of 2007, decided on 25th March, 2010.

Electricity Act (V of 1910)---

----S. 26---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispute between Electric Supply Company and consumer with regard to meter---Powers of Electric Inspector---Scope and extent---Under provision of S.26 of Electricity Act, 1910 any dispute between the parties regarding meter would be adjudicated upon Electric Inspector within a period of ninety days as to whether any meter, maximum demand indicator or other measuring apparatus was or was not correct---Electric Inspector could not go beyond the said limits---Impugned order had shown that Electric Inspector had given findings in the matter which hardly touched the issue within his jurisdiction---Electric Inspector could only entertain and decide the matter under S.26(6) of Electricity Act, 1910 relating the meter correctness and consequent determination thereto and no other dispute---Appellate Authority in the present case, had accepted the appeal against order of Electric Inspector and then by subsequent order dismissed same---Order of the Appellate Authority was illegal because while altering/modifying his earlier order he failed to provide opportunity of hearing to the aggrieved party---Electric Inspector, in circumstances, had trespassed his domain by exercising jurisdiction, not vested in him---Constitutional petitions were allowed with direction to Electric Inspector to process the complaint of complainant strictly in accordance with law.

Arif Rahim Ustrana for Petitioners.

Rustam Khan Kundi for Respondents.

Date of hearing 17th March, 2010.

YLR 2010 PESHAWAR HIGH COURT 1899 #

2010 Y L R 1899

[Peshawar]

Before Liaqat Ali Shah, J

HAROON and another---Applicants

Versus

JEHANZEB and another---Respondents

Bail Application No.310 of 2010, decided on 5th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/148/149/427---Qatl-e-amd--Attempt to commit qatl-e-amd---Bail, refusal of---Points agitated by the counsel for accused persons would need deep appreciation of evidence, which was not permissible at bail stage---On the basis of tentative assessment of the evidence available, it was found that accused were directly charged for an incident in which three persons had lost their lives--Some 128 empties were recovered from the spot--Both the vehicles in question were found having bullet marks---Accused persons, prima facie, were not found entitled to the concession of bail---Complete challan had been submitted in the court and the charge had been framed against accused persons--Trial Court, was directed to conclude the trial within six months.

Zahur-ul-Haq for Applicants.

Asadullah Khan Chamkani and Sher Bahader Khan for Respondents.

Dates of hearing: 2nd and 5th April, 2010.

YLR 2010 PESHAWAR HIGH COURT 1913 #

2010 Y L R 1913

[Peshawar]

Before Liaqat Ali Shah, J

MUHAMMAD IQBAL---Appellant

Versus

THE STATE and others ---Respondents

Criminal Appeal No.847 of 2004, decided on 15th March, 2010.

Penal Code (XLV of 1860)---

----Ss.324/452/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Attempt to commit qatl-e-amd and house-trespass---Appeal against acquittal---Evidence had been appreciated by the Trial Court in the background of previous F.I.R. registered between the parties---Number of accused charged in F.I.R. was four---According to the prosecution evidence, the injured and the eye-witnesses were sitting close to each other on cots and the same position was given in the site plan as well---When four accused were firing and members of complainant party were sitting close to each other, it did not appeal to logic that the other eye-witnesses would escape unhurt---On the back of the place where the injured and the eye-witnesses were shown present, there were rooms coming in the line of fire, but only two spent bullets were recovered and no other bullet mark or spent bullet was shown in the site plan---As the occurrence had allegedly taken place inside the house, it could not be said that somebody had taken away the empties---No mention of the tube-rod in the F.I.R. was found and perusal of the site plan had indicated that mark where the tube-rod was lit had been written with different pen which had led to the inference that such addition had been made---Such fact alone had created doubt about the identification of accused at the relevant time---Addition had been made intentionally as in the absence of source of identification, it was not possible for any of the prosecution witnesses to identify the culprits---One of prosecution witnesses had admitted that as a result of investigation, another person was found responsible for the occurrence, however the complainant party did not charge him---Said witness had further admitted that from the investigation accused were found innocent---Otherwise too, after acquittal, accused persons had earned double presumption of innocence, which could not be interfered with lightly---Trial Court, in circumstances had rightly acquitted accused persons.

Mian Iqbal Hussain for Appellant.

Asfandyar Khan for the State.

Astaghfirullah for Respondents.

Date of hearing: 15th March, 2010.

YLR 2010 PESHAWAR HIGH COURT 1930 #

2010 Y L R 1930

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MIR AMAN---Petitioner

Versus

SARDAR JEHAN and another ---Respondents

Criminal Misc. No.455 of 2010, decided on 23rd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.319/322---North-West Frontier Province (Prohibition of Firing and Use of Explosive Substance at Marriage and other Ceremonies) Act (IV of 1988), Ss.3/4---Qatl-e-khata---Bail, grant of---Further inquiry---Accused had been charged for aerial firing in a marriage ceremony wherein deceased fell victim to the aerial firing of accused---Contention of counsel for the complainant that death of the deceased was the result of intentional act of accused, would find no support from the record of the case---Punishment provided for the offence under S.322, P.P.C. was only Diyat' and' under S.319, P.P.C. in addition toDiyat' punishment as Ta'azir was five years imprisonment---Law on the point was silent as to whether the punishment of `Diayat' would fall under the prohibitory clause of S.497, Cr.P.C. or not---One could not be kept in jail for a matter which still required further probe as to whether it was an offence of qatl-e-khata/qatl-e-bissabab or an intentional act of accused---Accused charged in such like situation would be entitled to the concession of bail under S.497(2), Cr.P.C. on the point of further inquiry---Accused was released on bail, in circumstances.

Yousaf Khan v. The State 2000 PCr.LJ 203; Syed Asif Mateen Zaidi and 3 others v. The State 2008 PCr.LJ 125 and Fayyaz Ali Khan v. The State 2007 Cr. LJ 160 ref.

Sahibzada Asadullah Khan for Petitioner.

Akhtar Ali Khan for the Complainant.

Guldaraz Khan for the State.

Date of hearing: 23rd April, 2010.

YLR 2010 PESHAWAR HIGH COURT 1939 #

2010 Y L R 1939

[Peshawar]

Before Zia ur Rehman and Yahya Afridi, JJ

YAR MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 434 of 2009 and 6 of 2010, decided on 10th May, 2009.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution had failed to prove the physical presence of accused a4 the time of the recovery of the contraband from the passenger bus---Prosecution, in circumstances, should have at least produced evidence to the effect that accused had conscious knowledge about the contraband in the passenger bus, but that was not done---Conduct of accused was very much natural and innocent; he approached the Police party after the recovery of the contraband was effected from the bus and to introduce himself as the owner of the said vehicle---Conduct of said person (accused) was surely not that of a criminal offender---Prosecution, no doubt had proved the recovery of the contraband from the passenger bus, however, missing link was noticed between the recovered contraband and the positive chemical report which had cast serious doubts on the prosecution version of the recovery of contraband---Prosecution evidence showed that 20 slabs of Charas were recovered, while the inspection of the same by the Trial Court had shown these to be otherwise---Such crucial contradiction was not even explained by the prosecution---Investigating Officer, despite being provided the names of the driver and the conductor, took no step to arrest them or to include them in the investigation; he did not even verify the ownership of the vehicle from the Registration Authority---Serious doubts being present in the prosecution's case, benefit of said doubt would surely go to accused---Prosecution having not been able to prove the case against accused beyond reasonable doubt, conviction and sentence awarded to accused by the Trial Court, were set aside and they were acquitted of the charge under S.9(c) of Control of Narcotic Substances Act, 1997 and were released.

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

---Ss. 32, 33 & 48---Confiscation of vehicle---Trial Court confiscated the passenger bus allegedly carrying the contraband, without any proof of the condition precedent stated in S.32 of Control of Narcotic Substances Act, 1997---No evidence was produced by the prosecution to prove firstly as to who was the owner of the vehicle; and that the owner knew that the offence was being or was to be committed---Order of confiscating the passenger bus, without any evidence to prove the conscious knowledge of the owner was illegal and without lawful authority---Impugned order was set aside and case was remanded to Judge Special Court to inquire into the claim of ownership made by appellants or any other person; and thereafter hand over the confiscated bus to its legal owner.

Noor Alam Khan for Appellant.

Riaz Khan Afridi for the Respondent.

Date of hearing: 4th May, 2009.

YLR 2010 PESHAWAR HIGH COURT 1974 #

2010 Y L R 1974

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

YASIN GUL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 117 of 2009, decided on 19th May, 2010.

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

----Ss.9(c) & 48---Possession of narcotic--Appreciation of evidence---Benefit of doubt---Contradictions existed in the statement of the Investigating Officer with regard to the timings of preparation of murasila and recovery memos, which contradictions had adversely affected the root of the case---No clear cut evidence was available about the number of parcels prepared---Prosecution witness in his cross-examination had stated that he prepared six parcels, but in the court six parcels and one bundle were produced which were not properly sealed--Contradictions in the statements of the prosecution witnesses were material which had adversely affected the case of prosecution---Contraband were recovered from the secret cavities prepared for the purpose in the truck and not from the personal possession of accused--Prosecution was duty bound to probe, as to whether the presence of the narcotics in the secret cavities of the truck was in the knowledge of accused or not, but that was not done in the case---Conscious possession in narcotics cases, was essential and unless such possession was proved accused could not be held guilty---Prosecution had failed to prove possession of the contraband with accused---Despite the allegation that accused was driving the truck in question, no driving licence was recovered from him---Such fact had suggested that accused was not driving the truck---Presence of accused on the spot, in circumstances, was doubtful, which was also a dent in the prosecution case---Marginal witness had admitted that parcels were not sealed in his presence---Such fact had also damaged the prosecution case---Exclusive possession of narcotics of accused had not been proved---Prosecution having failed to prove case against accused beyond any shadow of reasonable doubt, benefit thereof would go to accused--Impugned conviction and sentences awarded to accused were set aside and he was acquitted and set free---Impugned order of the Trial Court with regard to the confiscation of the truck and narcotics, would remain intact which would be disposed of according to law by the concerned Authorities.?

Ghulam Saddique v. The State 2005 YLR 605 and 2006 PCr.LJ 58 ref.

Farooq Akhtar for the Appellant.

Sana Ullah Shamim, D.A.-G. for the State.

Date of hearing: 19th May, 2010.

YLR 2010 PESHAWAR HIGH COURT 1997 #

2010 Y L R 1997

[Peshawar]

Before Abdul Aziz Kundi and Mazhar Alam Khan Miankhel, JJ

YOUSUF---Petitioner

Versus

BAHADAR SHER and another---Respondents

Writ Petition No. 1843 of 2010, decided on 1st June, 2010.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3/4---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Illegal dispossession---Petitioner had impugned the order of the Trial court vide which his complaint filed under Ss.3/4 of Illegal Dispossession Act, 2005 was dismissed---Available record of the case never suggested that any unlawful and illegal act of dispossession of the petitioner was committed by respondent which was a sine qua non for taking cognizance under S.3 of Illegal Dispossession Act, 2005---Site plan prepared by police would reveal that the disputed piece of property apparently appeared to be the part and parcel of the property owned by the respondent---Nothing was available on record except an unregistered sale-deed to the extent of 1-1/4 Marlas which alone would not be sufficient to reflect the ownership as well as possession of the petitioner over the property---If at all the petitioner felt himself aggrieved, he could approach the competent court to have a declaration of his title and possession of the property---In absence of any piece of evidence reflecting ownership or possession over the property, one could not be given a licence on the strength of an unregistered sale-deed to claim ownership---Petitioner who had taken possession of disputed property few days before the complaint had alleged unlawful and illegal dispossession from said property without any specific evidence---For making a case under Illegal Dispossession Act, 2005, one should come forward with a positive evidence of his lawful ownership with possession; or a lawful possession in any capacity and then his unlawful and illegal dispossession from the property which the petitioner failed to show---Petition was dismissed being meritless, in circumstances.

Aziz-ur-Rehman for the Petitioner.

YLR 2010 PESHAWAR HIGH COURT 2024 #

2010 Y L R 2024

[Peshawar]

Before Imtiaz Ali, J

AHMAD RAZA---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No. 363 of 2010, decided on 31st March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3, 4 & 22--- Manufacturing, owning or possessing intoxicant---Bail, grant of---No evidence was available to support the charge under Art. 3 of Prohibition (Enforcement of Hadd) Order, 1979 against accused as to manufacture, import or export of the liquor---Machines to cap the bottles or empty bottles could hardly be termed as evidence of manufacturing the liquor; while Art.4 of Prohibition (Enforcement of Hadd) Order, 1979, which was bailable, was also not made out against accused; as he was not transporting the said materials to anywhere else---Gross violation of 5.103, Cr.P.C. and Art.22 of Prohibition (Enforcement of Hadd) Order, 1979 had been committed in the case---Prosecution had not collected any evidence that either accused was owner of the house or in exclusive possession of the portion of the house from where the recovery had been made---Besides even Forensic Science Laboratory report was not available on file to show that what was recovered, was in fact liquor/intoxicant--Accused was admitted to bail, in circumstances.

Qasim Khan for the Applicant.

Bilal-ud-Din for the State.

Date of hearing: 31st March, 2010.

YLR 2010 PESHAWAR HIGH COURT 2055 #

2010 Y L R 2055

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

MUHAMMAD IQBAL---Appellant

Versus

SHAFQAT ULLAH JAN and 2 others---Respondents

Criminal Appeal No. 157 of 2006, decided on 1st June, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/307/148/149--- Qatl-e-amd---Appreciation of evidence---Ocular account was furnished by two prosecution witnesses who had also received injuries in the incident---Both said witnesses were subjected to lengthy cross-examination, but their testimony could not be shattered--Presence of said witnesses on the spot at the relevant time was duly proved---Five accused persons who were closely related inter se, were charged for commission of the offence over a common motive and had been alleged to have formed an unlawful assembly duly armed, had come together to the spot and launched attack on the complainant party---Common object of said accused persons in the crime, in circumstances, was duly established---Accused was attributed the shot of double barrel shot gun at the time of occurrence and during spot inspection an empty of the same bore was recovered---Medico-legal report of injured indicated that he had received firearm wounds, which had been fired from .12 bore shot gun---Medicolegal reports of the injured witnesses, the ocular account of the eye-witnesses, the long and unexplained abscondence of accused for about fifteen years, soon after the occurrence, the recoveries made in the case, the lodging of cross report on the same day against the complainant party and the motive fully connected accused with the commission of crime---Accused was rightly found guilty by the Trial Court for commission of the crime in furtherance of common object with the absconding co-accused---Prosecution had successfully brought home guilt against accused for which he had been rightly awarded conviction and sentence.

Muhammad Karim Anjum for the Appellant.

Sanaullah Shamim, D.A.-G. for the State.

Anwarul Haq for the Complainant.

Date of hearing: 1st June, 2006.

2010 Y L R 2193

[Peshawar]

Before Abdul Aziz Kundi and Imtiaz Ali, JJ

SHAHZAIB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 325 of 2009, decided on 29th April, 2010.

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

----S. 9(c)---Possession, import, export and trafficking of narcotic---Appreciation of evidence---Case of prosecution was that when the coach stopped, a young boy having a plastic bag on his shoulder deboarded therefrom; and on seeing the Police party tried to make good his escape, but was overpowered---One of the prosecution witnesses in his cross-examination had stated that the recovered substance was lying on the floor of the coach on which accused had put his legs and when accused deboarded on the direction of the S.H.O. from the coach, he himself picked up the same; and that accused was occupying the rear seat of the coach along with three other passengers---Another prosecution witness had stated that on stopping the coach, accused deboarded from the coach having a plastic bag on his shoulder, who on seeing the Police party tried to escape---Said witness on cross-examination had stated that accused was sitting on the second seat of the coach---Report of Chemical Examiner had shown that the samples were received on 13th day of the alleged recovery of narcotic---Number and colour of the coach from which accused had allegedly deboarded, was also conspicuous by its absence---Analysis of the entire record of the case showed that the prosecution, because of the concessional statements of the prosecution witnesses, had failed to prove the charge against accused---Conviction and sentence recorded by the Trial Court against accused, were set aside and he was acquitted and set free, in circumstances.

Noor Alam Khan for Appellant.

Abdur Rauf Gandapur for the Respondent.

Date of hearing: 29th April, 2010.

YLR 2010 PESHAWAR HIGH COURT 2219 #

2010 Y L R 2219

[Peshawar]

Before Miftah-ud-Din Khan, J

ASIF GOHAR---Petitioner

Versus

Sardar AMAN KHAN and 2 others---Respondents

Writ Petition No. 527 of 2009, decided on 8th June, 2010.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----Ss. 3(1) & 12(3)---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Preventive detention---Registration of criminal case, application for---Powers of Ex-officio Justice of Peace---Scope---Warrant under S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960 was issued against respondent who was a lawyer in connection with lawyers' movement to prevent law and order situation-Petitioner/S.H.O. who was entrusted with the said warrant for execution, performed his duty in his official capacity in execution of warrant strictly in accordance with law---Respondents who were advocates filed petition under S.22-A, Cr.P.C. with Ex-officio Justice of Peace for registration of case against the petitioner (S. H.O.)---Justice of Peace instead of deciding the application filed by the respondents, issued directions to the DPO for departmental action against the petitioner---Review petition filed by the petitioner against order of the Justice of Peace having been dismissed, he filed constitutional petition---Validity---Exofficio Justice of Peace was neither acting in judicial capacity nor was a court, while exercising powers under S.22-A, Cr.P.C.-Role of Ex-officio Justice of Peace primarily was rendering assistance to the Police in the matter of keeping the peace; and in case of breach of the peace apprehending the culprit and rendering assistance to the Police in an investigation of the crime---Functions and duties conferred on an Ex-officio Justice of Peace were administrative, executive and ministerial in nature and character---Section 12(3) of West Pakistan Maintenance of Public Order Ordinance, 1960, empowered the petitioner (S.H.O.) or any other Police Officer executing the warrant under S.3 of said Ordinance to enter a place or house without recourse to general law or obtaining search warrant---Under the law presumption of good faith was attached to official acts committed during discharge of official duties unless proved to the contrary and it could not be held to be tainted with mala fide and in excess of authority/power amounting to abuse and misuse of authority by the petitioner in the discharge of his legal duties and functions---Justice of Peace, in circumstances, was not justified to issue directions for taking disciplinary action against the petitioner---By passing impugned order, Justice of Peace had travelled beyond his jurisdiction under S.22-A, Cr.P.C.---Justice of Peace by his order had practically punished the petitioner without any show-cause notice, inquiry and departmental proceedings which amounted to usurpation of powers of departmental authority responsible for maintaining departmental check and balance within the Police hierarchy--Impugned orders were declared wrong, illegal, without jurisdiction and without lawful authority---Petition was allowed.

PLD 2005 Lah.470; PLD 1992 SC 207; PLD 2007 Lah.53; 2005 YLR 3297; 2009 MLD 1020; PLD 2007 SC 539 and 2010 PCr.LJ 45 ref.

Mushtaq Ali Tahirbhai for Petitioner.

Respondent No.1 in person.

Rashid-ul-Haq Qazi for all Respondents.

Date of hearing: 20th May, 2010.

YLR 2010 PESHAWAR HIGH COURT 2249 #

2010 Y L R 2249

[Peshawar]

Before Attaullah Khan, J

NOOR MUHAMMAD KHAN---Petitioner

Versus

THE STATE and 7 others---Respondents

Criminal Miscellaneous Q.P. No.38 of 2010, decided on 17th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 173 & 200---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd--- Quashing of order---During investigation of the case Police submitted report under S.173, Cr.P.C. to the Magistrate concerned seeking cancellation of said case against accused person and also initiating proceedings against the petitioner/ complainant under S.182, P.P.C.---Magistrate concerned accepting said report cancelled the case against respondents---Appellate Court dismissed revision filed against order of Magistrate and petitioner had filed petition under S.561-A, Cr.P.C. for quashing of order of courts below---Contention of petitioner/complainant was that submission of report under S.173 by Police Official other than S.H.O., was bad in the eyes of law and could not be acted upon by the Magistrate and that allegations contained in F.I.R. could only be resolved after recording evidence---Validity---Under provisions of S.173, Cr.P.C. report of inquiry was to be submitted by the In charge of Police Station through Public Prosecutor---Under Police Order, 2002, function of the Police Department had been reorganized and under said reorganized system, S.H.O. was replaced by other Police Officer belonging to the Investigating Department---In the present case report under S.173, Cr.P.C. having been submitted by Sub-Inspector, In charge Investigation, same was in accordance with the Police Order, 2002, which could not be objected---Report under S.173, Cr.P.C., related to a very initial stage and evidence was always recorded at the trial stage and not at the stage of submission of report under S.173, Cr.P.C.---Magistrate had given detailed reasons for concurring with the police report and order of Magistrate was a speaking order---Magistrate was required to pass order after considering the material before him---Petitioner had also availed the alternate remedy by way of filing a private complaint which stood dismissed---Remedies available to the petitioner having stood exhausted, to entertain petition under S.561-A, Cr.P.C. would be an exercise in futility as the matter had attained finality and it had become a past and closed chapter.

PLD 1985 SC 68; AIR 1968 SC 117; 2009 MLD 156 and 2000 PCr.LJ 31 ref.

Saleem Ullah Khan Ranazai for Petitioner.

Khial Muhammad Khan for the State.

Anwarul Haq for Respondents.

YLR 2010 PESHAWAR HIGH COURT 2259 #

2010 Y L R 2259

[Peshawar]

Before Attaullah Khan, J

ZAINUDDIN---Petitioner

Versus

FARMAN and another---Respondents

Criminal BCA No.24 of 2010, decided on 21st June, 2010.

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

----Ss. 497 & 498---Principles in case of pre-arrest bail were different from the principles laid down for post-arrest bail.

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

----S. 497(5)---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Cancellation of bail, application for---Principles for cancellation of bail were different and needed strong reasons to recall the bail already granted by a competent court---Very strong and exceptional grounds were required for cancellation of bail which were lacking in the present case---Grant of bail to accused seemed to be based on sound reasons keeping in view the injury on the non-vital part of the body of the complainant---Fire was not repeated in spite of opportunity available to accused and that fact had created doubt about the intention of accused to kill the complainant---Case was that of further inquiry, in circumstances---Cancellation of bail application was devoid of force on the grounds that applicant could not avail benefit of order of High Court whereby pre-arrest bail granted to accused was cancelled, because matter decided was in respect of cancellation of grant of bail before arrest, while the present case dealt with post-arrest bail and different principles/parameters were applied and present matter pertained to cancellation of bail which again was to be dealt with under different grounds which included strong and exceptional reasons to be established.

Farooq Khan Sokari for Petitioner.

Respondent in person.

Date of hearing: 21st June, 2010.

YLR 2010 PESHAWAR HIGH COURT 2283 #

2010 Y L R 2283

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

ABDUL JANAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.13 of 2009, decided on 1st June, 2010.

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

----Ss.9(c) & 25---Possession of narcotic--Appreciation of evidence---Benefit of doubt---Parcel of recovered contraband Charas contained no seal-Non-fixing of any seal on the parcel had made the narcotic doubtful---Weight of the narcotic was also found to be doubtful---Some pieces of Charas were found in the parcel which were totally different from the remaining lot, and it could not be ascertained as to whether same were Charas or "Khal "---Condition of the parcel and its contents, had made the case of the prosecution very doubtful, in circumstances---Conductor and the driver of bus in question, who were very important witnesses should have been cited and examined as prosecution witnesses because their depositions might have been helpful to the prosecution, but they were not associated with the investigation process---Such omission had also created doubt about the veracity of the prosecution version---Narcotics were recovered from the conscious possession of accused, but said physical and conscious possession was not proved in the evidence of the prosecution---No ticket was recovered to show that accused was travelling in the same bus, such omission would 'create doubt because accused had altogether denied travelling in the bus---Though S.103, Cr.P.C. was excluded through S.25 of Control of Narcotic Substances Act, 1997, but it was to be complied with when there was a prior information---In the present case prior information being available, association of public independent witnesses with the recovery was necessary---Non-association of public witnesses with the recovery in spite of prior information was fatal to the prosecution case---Sample of contraband Charas was sent for chemical analysis with a delay of 27 days, which had gone against the case of the prosecution---Case against accused was full of doubts and contradictions---Prosecution had not been able to prove its case against accused and impugned judgment of the Trial Court was result of non-appraisal of material evidence brought on record---Impugned conviction and sentences awarded to accused by the Trial Court, were set aside and accused was acquitted of the charge and was set at liberty.?

PLD 2002 SC 590 and Mst. Fahmida v. The State 1997 SCMR 947 ref.

Muhammad Ismail Alizai for Appellant.

Sanaullah Shamim, DAG for the State.

YLR 2010 PESHAWAR HIGH COURT 2303 #

2010 Y L R 2303

[Peshawar]

Before Zia-ur-Rahman Khan, J

IMRAN and others---Petitioners

Versus

ZAHID ANWAR---Respondent

Civil Revision No. 670 of 2005, decided on 12th April, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Suit had concurrently been decreed by the Trial Court and Appellate Court---As the plaintiff was enforcing his right of pre-emption qua the suit property against the defendants, the plaintiff was burdened with initial responsibility to prove his superior right of pre-emption, observance of legal formalities of Talb-e-Muwathibat and Talb-e-Ishhad Plaintiff besides recording of his own statement, had examined five more witnesses in support of his assertions made in the plaint---Plaintiff had succeeded in producing cogent and reliable witnesses in whose presence all legal formalities were observed---Statement of all said witnesses were in line and in consonance with each other and defendants despite subjecting the said witnesses to a lengthy cross-examination, had not been able to shatter their testimony or to prove the claim of the plaintiff as a false one---Two courts below after scanning the entire evidence on record had rightly found the plaintiff entitled to the decree for pre-emption, however as the defendants were able to prove some improvements in the suit property, Trial Court had found them entitled to the amount of compensation---Plaintiff did not dispute the fixation of sale price and amount of improvement, the Trial Court thus had committed no error in that respect---Counsel for the defendants having not been able to make out a case for indulgence of High Court within the purview S.115, C.P.C., revision petition being without substance, was dismissed in absence of any material irregularity, illegality, misreading and non-reading of evidence or jurisdictional defect.

Sohail Akhtar for Petitioners.

Saifullah Khalil for Respondent.

Date of hearing: 12th April, 2010.

YLR 2010 PESHAWAR HIGH COURT 2322 #

2010 Y L R 2322

[Peshawar]

Before Abdul Aziz Kundi and Yahya Afridi, JJ

Syed AKBAR SHAH---Petitioner

Versus

FAZAL-E-REHMAN and 2 others---Respondents

Writ Petition No. 262 of 2010, decided on 16th June, 2010.

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

----Ss.13, 15 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment proceedings---Application for summoning of witness---Rejection of application---Appeal against rejection order--- Maintainability--- Respondent/ tenant during pendency of ejectment petition filed application for summoning of one as a witness on his behalf---Application of tenant having been rejected by the Rent Controller, tenant filed appeal before Appellate Court and said court without attending to the question of maintainability of appeal, accepted the same and directed the Rent Controller to record the statement of witness sought to be summoned---Under second proviso to S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959, no appeal against interlocutory order passed by the Rent Controller could be filed---Order rejecting application of tenant being interlocutory in nature, same was not open to challenge in appeal---Explanation of Appellate Court that keeping in view the guidelines given by Superior Courts for disposal of case on merits, it had proceeded to dispose of the appeal as a revision, again was an illegality as orders passed under West Pakistan Urban Rent Restriction Ordinance, 1959, were not open to challenge through revision petitions, more particularly when appeal against that order was specifically barred---Order passed by the Appellate Court was declared to be without lawful authority and jurisdiction and was struck down.

Malik Zeb Khan for Petitioner.

Zia-ud-Din Siddiqui for Respondent No.1.

YLR 2010 PESHAWAR HIGH COURT 2361 #

2010 Y L R 2361

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

KARAM ILLAHI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail No. 250 of 2010, decided on 1st July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, grant of--- Further inquiry---Question of firing at the victim was shrouded in mystery as to why the accused had fired at the complainant when he had no direct motive against the complainant for firing at him---Such factum of the case would be seen at the time of trial---Medical evidence available on record indicated that blackening was near the seat of injuries on the thigh of the complainant but the site plan did not support the version of the victim as the distance between the assailant and the complainant was more than six feet and in case of firing with pistol, no blackening would occur from such a distance---Such fact of the case would be scrutinized at the time of recording evidence, which required further inquire---If the injured was taken to the hospital by his relatives, then their names would have been ascribed by the doctor, but non-appearance of the names of the relatives in the Medico-legal certificate would bring the case under the ambit of further inquiry---Accused was a government servant who had voluntarily surrendered before the Police and there was no likelihood of his absconsion or violating the terms and conditions of the bail, nor he was hardened criminal---Accused had not repeated the volley of fires at the complainant, most probably he had no enmity with the complainant--Intention of accused, in circumstance, was not to kill the victim which fact of the case required further probe as to how the occurrence had taken place---When no intention of killing the complainant by accused was found, S.324, P.P.C. would not be applicable and the only hurt caused coming under S.337-F(i)(ii), P.P.C. was not punishable for more than five years---Accused, in circumstances, would be entitled for bail.

2010 PCr.LJ Lah. 379 and 2008 SCMR 1621 ref.

Muhammad Ismail Khan Alizai for Petitioner.

Sanaullah Khan for the State.

Shamim, D.A.G. for the State.

Muhammad Anwar Awan for the Complainant.

Date of hearing: Ist July, 2010.

YLR 2010 PESHAWAR HIGH COURT 2400 #

2010 Y L R 2400

[Peshawar]

Before Abdul Aziz Kundi and Yahya Afridi, JJ

MUHAMMAD RAHEEM and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.379 and Criminal Revision No. 171 of 2008, decided on 20th May, 2010.

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

----Ss. 302(b), 324, 337-E(iv), 337-F(iv), 427, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd and mischief---Appreciation of evidence---Delay of 2 hours and 15 minutes in reporting the incident, had not been reasonably explained in the prosecution evidence---Doctor who conducted the autopsy of the deceased, had stated during his cross-examination that the dead body of the deceased was brought by the Police---Said statement of doctor had cast serious doubts about the prosecution version of the complainant being at the spot and taking his dead brother to the hospital---Delay in filing F.I.R. had created very serious doubt about the presence of the complainant and his brother at the place of occurrence---Out of two injured witnesses, only one was produced by the prosecution, who was the grandson of the deceased---Other eye-witness produced by the prosecution, was not confidence-inspiring and truthful witness as he swayed from his stance in his statement and followed his brother, the complainant, even to the extent of improvements that he made--Medical evidence also did not corroborate the ocular evidence of the eyewitnesses---Site plan was prepared next day of the occurrence--- Prosecution evidence, was not natural in circumstances---Recoveries made from the spot and in particular the 32 empties, though sent to the Forensic Science Laboratory, but the report thereof had not been produced in evidence---Absence of report of Laboratory regarding the empties, cast further doubt on the version of prosecution, as to whether the same were fired from one weapon or from more than one---Motive of the offence as stated by the complainant in the F.I.R., was not, substantiated by any evidence---Prosecution, in circumstances, had not been able to prove the case against accused beyond reasonable doubt---Conviction and sentence awarded to accused persons were set aside, they were acquitted and were released, in circumstances.

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

----Ss. 302(b), 324, 337-E(iv), 337-F(iv), 427, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd and mischief---Appreciation of evidence---Testimony of injured witness was to be considered reliable, however, the same could not be accepted with shut eyes---Testimony of an injured witness, if it was blatantly contradictory and inconsistent with other evidences, then the same had to be viewed with great caution.

----Art. 3---Penal Code (XLV of 1860), Ss.302(b), 324, 337-E(iv), 337-F(iv), 427, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd and mischief---Child witness---Conviction on testimony of a child---No doubt convictions could be recorded/based on the testimony of a child witness, however, the same had to be consistently credible, confidence-inspiring and straightforward and be duly corroborated by other circumstantial and medical evidence---Evidence of a child witness, in circumstances would require corroboration and could not in isolation be basis of any conviction.

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

----Ss. 302(b), 324, 337-E(iv), 337-F(iv), 427, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd and mischief---Motive--Absence of motive or failure of prosecution to prove the motive when the offence had been witnessed by reliable, trustworthy and confidence-inspiring witnesses would not adversely affect the prosecution case.

Asadullah Khan Chamkani and Mian Mohibullah Kakakhel for Appellants.

Khawaja Muhammad Khan Guara and Alamgir Khan Durrani, A.A.-G. for the State.

Date of hearing: 31st March, 2010.

YLR 2010 PESHAWAR HIGH COURT 2423 #

2010 Y L R 2423

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

SHAMIM KHAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Bail Petition No.31 of 2010, decided on 24th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Specific role of causing fatal injury to the deceased had not been attributed to anyone of the accused---Co-accused charged with similar role had already been acquitted by the Trial Court--Accused also deserved to be treated at par with his co-accused---Abscondence of accused alone would not be hurdle in his way for his release on bail---Case of accused requiring further inquiry, he was admitted to bail, in circumstances.

2009 SCMR 299; PLJ 2010 Cr.0 (Lahore) 292 and Mitno Pitafi v. The State 2009 SCMR 299 ref.

Muhammad Ismail Khan Alizai for Petitioner.

Khiyal Muhammad for the State.

Complainant in person.

Date of hearing: 24th June, 2010.

YLR 2010 PESHAWAR HIGH COURT 2447 #

2010 Y L R 2447

[Peshawar]

Before Liaqat Ali Shah, J

AKHTAR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Bail Petition No. 163 of 2010, decided on 19th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing narcotic---Bail, grant of---Accused stood implicated in the case on the basis of his statements recorded by the Police---As to what was the legal worth of the statement of accused recorded by the Police, needed no explanation---Statement so recorded, in no way could constitute reasonable grounds to believe that accused was guilty of the offence charged with---Accused was admitted to bail, in circumstances.

Saifullah Khalil for Petitioner.

Fazal Rehman, A.A.-G. for the State.

Date of hearing: 19th February, 2010.

YLR 2010 PESHAWAR HIGH COURT 2452 #

2010 Y L R 2452

[Peshawar]

Before Liaqat Ali Shah and Syed Sajjad Hassan Shah, JJ

Mst. ISHRAT BANO---Petitioner

Versus

NOOR HUSSAIN and 2 others---Respondents

Writ Petition No. 922 of 2009, decided on 9th June, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Suit for recovery of dower---Nikahnama---Presumption---Family Court decreed suit of plaintiff as prayed for, but Appellate Court modified the judgment and decree of the Family Court and fixed dower amount as entered in the Nikahnama---Detail regarding the columns relating to dower amount, had clearly specified that eight tolas gold ornaments were also agreed to be given by defendant to the plaintiff at the time of reciting Nikah---Said entries had not been challenged at any time before or after institution of suit---Under the law Nikahnama was treated at par with the registered deed---Strong presumption of truth was attached to the entries made in Nikahnama---Said eight tolas gold ornaments were also to be given in addition to dower amount of Rs.50,000-Judgment passed by Appellate Court was modified to the extent that besides the payment of Rs.50,000, as dower amount, the plaintiff was entitled for eight tolas of gold ornaments/market value to be paid by the defendant to the plaintiff.

(b) Interpretation of documents---

----Principles---Document was to be read as a whole and must be given effect to the intention of its maker and the contents to be interpreted in accordance with intent and purpose as being conveyed by the entries made in the document---No word could be added, engrafted, subtracted and omitted while interpreting the document---When the document itself was unambiguous, putting upon its language a speculative opinion or using surrounding circumstances in order to portray the instrument as different in nature, was not permissible in law, however, it could be employed in order to throw light on meaning thereof---All the words to be read in context of rest of the contents of the document and give them their simple or ordinary meanings.

Bank of Oman Ltd. v. East Asia Trading Company Ltd. 1987 CLC 288 and Pakistan State Oil Company Ltd. v. Burmah Oil Public Limited Company 1987 CLC 272 ref.

Hafeezul Ashad Shangla for Petitioner.

Sahibzada Asadullah for the Respondents.

Date of hearing: 21st May, 2010.

YLR 2010 PESHAWAR HIGH COURT 2469 #

2010 Y L R 2469

[Peshawar]

Before Yahya Afridi, J

NOOR RAHMAN---Petitioner

Versus

MUHAMMAD AZEEM BACHA--- Respondent

Civil Revision No. 763 of 2009, decided on 31st May, 2010.

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

----S. 115--Limitation Act (IX of 1908), Ss. 5 & 29(2)---Revision petition---Limitation--- Condonation of delay---Contention of respondent was that revision petition was time-barred and S.115, C.P.C. did not provide for any application for condonation of delay under S.5 of Limitation Act, 1908; on the other hand petitioner had pleaded that even if the petition was time-barred, High Court could exercise its suo motu powers under S.115, C.P.C. to correct the jurisdictional error committed by the Appellate Court---Validity---Period of limitation having been prescribed under S.115, C.P.C., had rendered the same as a "special law" in view of the provisions of S.29(2) of Limitation Act, 1908---Provisions of S.5 of Limitation Act, 1908 for condonation of delay were not applicable to revision petitions---High Court need not invoke its suo motu revisional powers to condone the delay in filing petition.

Alladino v. Muhammad Shah 2001 SCMR 286 rel.

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

----O. VII, Rr.11, 13 & S.115---Rejection of plaint---Revision against---Trial Court rejected plaint under O. VII, R.11, C.P.C. and appeal against order of the Trial Court was also dismissed by the Appellate Court---Defendant filed petition seeking the execution of the decree whereby the Trial Court had rejected plaint under O. VII, R.11, C. P. C. ---Executing Court having refused to entertain the said execution petition, defendant filed revision petition and Appellate Court converted revision petition into an appeal and accepted the same, holding that decree passed under O. VII, R.11, C. P. C. was executable---Decree passed in pursuance of a judgment under O. VII, R.11, C.P.C. would be a `decree' not only appealable, but also executable---In cases where rights were determined by a court and which culminated in rejection of plaint, same attained "finality and enforceability"---Decision of the court under O. VII, R.11, C.P.C. could be appealed against and enforced as decree.

Farman Ali Dewan v. Munsur Ali PLD 1962 Dhaka 214; Abdul Hamid v. Dilawar Hussain 2007 SCMR 945; Muhammad Ali v. Province of Punjab 2009 SCMR 1009 and Muhammad Saleemullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 ref.

Waqar Ahmad Khan for Petitioner.

Muhammad Saeed Shangla and Umar Farooq for Respondent.

Date of hearing: 24th May, 2010.

YLR 2010 PESHAWAR HIGH COURT 2503 #

2010 Y L R 2503

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

ZWAHIR JAN and others---Petitioners

Versus

LAL REHMAN and others---Respondents

Civil Revision No. 979 of 2010, decided on 11th June, 2010.

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

----Ss. 60, 72 & 91---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O. VII, R.11---Limitation Act (IX of 1908), S.28 & Art.148---Failure of mortgagors to redeem mortgaged property within limitation period of 60 years---Right of mortgagee---Suit for declaration---Rejection of suit---Petitioners being mortgagees with possession of mortgaged property since prior to 1886 (more than 60 years) had filed suit for declaration by claiming prescriptive title of the property in question---Said suit was rejected being not maintainable as the provisions of S.28 of Limitation Act, 1908 were declared repugnant to the Injunctions of Islam by the Supreme Court and a target date 31-8-1991 was given by the Supreme Court to redeem the property---If mortgagee failed to get a decree in his favour before the target date then no decree of prescription could be passed in his favour and no suit could be filed after the said target date---Plaintiffs having filed their suit for the first time in the year 2006, when S.28 of Limitation Act, 1908 was no more on the statute book they could not ask for the decree of title through prescription and as such right of the owners/mortgagors to redeem their property, could not be extinguished by efflux of time---No unlawful exercise of jurisdiction of the courts below having taken place, revision petition was dismissed.

Durrani and 35 others v. Hamidullah and 15 others 2007 SCMR 480; Muhammad Akram and others v. Arsalla Khan and others 1997 MLD 138; Baidullah Jan and 3 others v. Hawas Khan and 11 others PLD 2002 Pesh. 92 and Muhammad Hussain and others v. Wahid Bakhsh (deceased) through legal heirs 2004 SCMR 1137 ref.

Haji Muhammad Zahir Shah for Petitioners.

YLR 2010 PESHAWAR HIGH COURT 2542 #

2010 Y L R 2542

[Peshawar]

Before Dost Muhammad Khan, J

SHAUKAT ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. (BA) No. 14 of 2010, decided on 5th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Motive for the crime was a dispute over property---Accused having been charged only for ineffective firing, it was to be ascertained from the available materials as to whether any circumstantial or corroboratory evidence showed participation of accused in the crime in any manner whatsoever---Neither any empty nor any spent bullet was recovered from the place of occurrence---Injury on the person of deceased had suggested that it was caused from the very close distance; and when empty of .12 bore had been recovered from the place of co-accused and medical evidence also supported the prosecution's case against the principal accused, while accused's case was entirely distinguishable and was clearly the one which would require further enquiry---Plea of complainant that accused having absconded, bail should be refused to accused was not tenable, because once the case was found one of further inquiry, then abscondence alone would not operate as absolute bar in the way of grant of bail---Accused was released on bail, in circumstances.

Mukhtar Ahmad Awan's case 1991 SCMR 322; Mitho Pitafi v. The State 2009 SCMR 299 and Ghulam Qasim v. The State and another 2008 PCr.LJ 1371 ref.

Pir Fayyaz Ali and Saifullah Khalil for Petitioner.

Alamgir Durrani, D.A.-G for the State and Rehman Ullah Shah for the Complainant.

Date of hearing: 5th March, 2010.

YLR 2010 PESHAWAR HIGH COURT 2569 #

2010 Y L R 2569

[Peshawar]

Before Syed Sajjad Hassan Shah, J

LIAQUAT ALI---Appellant

Versus

AZIZ-UR-REHMAN and others---Respondents

Civil Revisions Nos.338 of and 470 of 2009, decided on 28th April, 2010.

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

----Art. 114---Estoppel---Policy of the law was that the litigation must be concluded forever in between the parties to the suit, so that it could bring maintenance of public order and to prove both against the unnecessary and superfluous litigation to maintain the public tranquility amongst the people, eventually to accord the conclusive effect to a lis, decided on its merits---If such safeguard or the flow of such litigation, would have not been checked and dealt with under the law, the burden of litigation could not be reduced to overcome that anomaly, the finality attached to the litigation under various provisions of law---People hailing from backward areas always had been victimized through frivolous and unnecessary litigation, even that phenomenon had also become popular, spreading its roots even in big cities---Such situation eventually created chaos and confusion amongst the people and destabilize the State pillars---Such was the reason that certain legal provisions had been introduced in the procedural law, whereby attempt had been made to plug the flow of such like litigation---Such provisions of law must be adhered to, so as to provide safety and security to the people, who had suffered and were still suffering that tiresome process---Such was the requirement of law that what had been finally and conclusively determined by a competent Court/Tribunal, would be followed as irrefragable legal truth---Law did not provide liberty to either party to reopen a matter at any time after it had been finally decided by a court of law, as the rationale behind the law was that at some stage the litigation must be brought to its logical end---Besides the provisions provided in Civil Procedure Code, 1908 there was another provision of law contained in Art.114 of the Qanun-e-Shahadat, 1984, which also created estoppel against such sort of litigation as it prevented a litigant again to cone with a fresh lis in the court of law and ask for decree in his favour, which had already been finally decided---Once again inconsistent plea could not be permitted to be raised in subsequently instituted proceedings and did not permit to contradict his own previous act.

Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Mir Zaman v. Mst. Begum Jan and 11 others PLD 1983 Pesh. 100 and Muhammad Sama Mondal v. Muhammad Ahmad Sheikh and others PLD 1963 Dacca 816 ref.

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

----S. 115---Revisional jurisdiction---Scope---Two courts below having on proper appraisal of evidence and application of correct law, non-suited the petitioner, such concurrent findings of two courts below could not be disturbed by High Court in exercise of its revisional jurisdiction, when same neither were suffering from any irregularity, illegality or jurisdictional defect.

Mian Shaukat Hussain for Petitioner.

Sherzada Khan for Respondents.

Date of hearing: 28th April, 2010.

2010 Y L R 2714

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SHAHZADA and others---Petitioners

Versus

Mst. ASEEL MAMANA and others---Respondents

Civil Revisions Nos. 273 and 274 of 2007, decided on 18th June, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit had concurrently been dismissed by two courts below, and plaintiff was non suited on the ground that notice of Talb-e-Ishhad was not issued within the prescribed period of two weeks and that plaintiffs had extinguished their right of pre-emption by not performing the requisite Talbs' as per requirement of law---Plaintiff, as per averment made in plaint, got knowledge of sale in question on 11-7-1997 and then and there declared intention to pre-empt by makingTalb-e-Muwathibat' and then performed Talb-e-Ishhad by issuing notice under S.13(3) of North-West Frontier Province Pre-emption Act, 1987 on 25-7-1997--- Period of limitation in circumstances would start running against pre-emptor from the next day he got knowledge of sale and first day i.e. 11-7-1997 would be excluded from the count---If period of limitation for performance of Talb-e-Ishhad was counted in such a manner, then the notice of Talbi-Ishhad dated 25-7-1997 was well within the prescribed time i.e. within two weeks as provided under S.13(3) of North-West Frontier Province Pre-emption Act, 1987---Impugned judgment and decree were set aside and the appeals of the pre-emptors would be deemed pending before the court of appeal, which would be decided afresh after hearing the parties---Order accordingly.

Abdul Majeed Khan v. Abdul Qadeer 2003 CLC 1764 ref.

Abdul Sattar Khan for Petitioners. Ahmed Jan for Respondents.

Date of hearing: 18th June, 2010.

YLR 2010 PESHAWAR HIGH COURT 2775 #

2010 Y L R 2775

[Peshawar]

Before Abdul Aziz Kundi and Sardar Shaukat Hayat, JJ

ARSHID---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 438 of 2009 and Murder Reference No. 20 of 2009, decided on 9th June, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant allegedly remained on the spot for 45 minutes without making an attempt to shift the dead body which had suggested that complainant was neither an eye-witness nor a truthful one--Non-recovery of wheat meant for sowing, tractor and particularly absence of factum of any cultivation having been done in the fields and more particularly non-association of the driver allegedly driving the tractor, also created serious dents in the prosecution case---Site plan showed that accused was at point No.6 while other absconding accused at points Nos.4, 5, 7 & 8, all surrounding the deceased at point No.1---Distance of point No.1 of deceased and that of point No.6 attributed to accused in four paces---Six empties of 7.62 bore rifle had been recovered from the point near points Nos.4 & 5 and not near point No.6 where accused was present at the time of alleged occurrence---Even a single doubt would be sufficient to earn acquittal to an accused, while in the present case, there were numerous doubts---Impugned judgment of conviction and sentence recorded by the Trial Court, were set aside and accused was acquitted of the charge and was set free, in circumstances.

M. Zahoor-ul-Haq for Appellant.

Naveed Akhtar, A.-A.G. for the State.

Hizar Hayat for Respondent No.2.

Date of hearing: 9th June, 2010.

YLR 2010 PESHAWAR HIGH COURT 2958 #

2010 Y L R 2958

[Peshawar]

Before Liaqat Ali Shah, J

ATIQ-UR-REHMAN---Petitioner

Versus

THE STATE and another---Respondents

Bail Application No. 713 of 2010, decided on 26th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Penal Code (XLV of 1860), S.411---Haraabah, dishonestly receiving stolen property---Bail, refusal of---Investigating Officer, during spot inspection had recovered two empties and registration copy of vehicle as well as the permit---Live round of .30 bore was also found besides the blood from the place where the deceased, then injured, was found---Record would further reveal that vehicle taken into possession and at that time besides others, accused was also found in the said vehicle and from the possession of accused a .30 bore pistol was also recovered---Said pistol along with the empty recovered from the spot was sent to the Forensic Science Laboratory and according to the report same was fired from the pistol recovered from the possession of accused---Reasonable ground had been created to connect accused with the commission of offence charged with---Bail application was dismissed, in circumstances.

Muhammad Ijaz Khan for Petitioner.

F.M. Sabir for Respondent.

Date of hearing: 26th July, 2010.

YLR 2010 PESHAWAR HIGH COURT 2984 #

2010 Y L R 2984

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

MUHAMMAD ASLAM KHAN---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No. 253 of 2010, decided on 30th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Penal Code (XLV of 1860), Ss. 406/419/420/468/471/477-A/489-F---Constitution of Pakistan (1973), Art.199---Constitutional petition---Criminal breach of trust, cheating, forgery, using as genuine a forged document, falsification of accounts and dishonestly issuing a cheque---Application for registration of criminal case was accepted under S.22-A(6), Cr.P.C. holding that a cognizable offence appeared to have been committed by the petitioner and S.H.O. was directed for registration of case---For invoking the jurisdiction of the ex-officio Justice of Peace under S.22-A(6)(i), Cr.P.C., pre-condition was that the S.H.O. concerned had refused to register a case regarding cognizable offence---In the present case application submitted before Justice of Peace, did not disclose that applicant had ever approached the concerned Police Station for registration of the case---Copy of the plaint submitted in the suit before the civil court had negated the contention of the applicant---Order passed by Justice of Peace being without jurisdiction and passed in violation of the statutory provisions of law, could be assailed in constitutional petition under Art.199 of the Constitution---Impugned order, being incompetent, premature, was dismissed in circumstances.

Mrs. Shahida Zahir Abbasi and four others v. President of Pakistan and others PLD 1996 SC 632 ref.

Abdul Latifur Baloch for Petitioner.

Sanaullah Shamim, D.A.G. for Respondents.

Salahuddin Gandapur for Respondent No.3.

Date of hearing: 30th June, 2010.

YLR 2010 PESHAWAR HIGH COURT 3019 #

2010 Y L R 3019

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

GUL ZAMAN---Appellant

Versus

SHERIN BAHADAR and others---Respondents

Criminal Appeal No. 33 of 2005, decided on 23rd June, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd and attempt to commit qatl-e-amd---Appeal against acquittal---Principles---Recovery of pellets from the body of deceased suggested that the contents of F.I.R. regarding the role of accused was not correct---Grave doubt had arisen, which would go in favour of accused---Material contradictions were found in the. statements of two witnesses, who were related to the deceased---F.I.R. revealed that motive of dispute was over women folk, which motive had been disclosed by both the eye-witnesses---Both the witnesses being closely related and inimical towards accused, rule of prudence demanded that the evidence of such witness required independent corroboration---Case of prosecution was full of doubts and where multiple doubts arose, the benefit would go to accused in the shape of acquittal---Ocular account of the two witnesses, was not in conformity with each other---Medical evidence did not support the version of the complainant---Prosecution, in circumstances, had not been able to prove its case against accused and the Trial Court had correctly assessed the evidence brought on record in acquitting accused---When an accused was acquitted by a competent court of law after facing agonies of protracted trial, he earned the presumption of double innocence, which could not be interfered or disputed slightly, unless and until a strong and exceptional grounds were proved in the order of acquittal, which were lacking in the present case---Evidence in the case being not enough to record conviction, appeal against acquittal was dismissed, in circumstances.

PLD 2004 Pesh. 294; PLD 1962 SC 269; 2002 PCr.LJ 1312; PLD 2003 Pesh. 6; 2003 YLR 777; Muhammad Akram v. The State PLD 2009 SCMR 230; 2009 SCMR 946; PLD 1985 SC 11 and Muhammad Khan v. Mir Abbas and 4 others 2010 MLD 817 ref.

Shaukat Hayat Khakwani for Appellant.

Anwarul Haq for Respondent.

Sanaullah Shamim Gandapur, D.A.G. for the State.

Date of hearing: 23rd June, 2010.

YLR 2010 PESHAWAR HIGH COURT 3042 #

2010 Y L R 3042

[Peshawar]

Before Abdul Aziz Kundi and Sardar Shaukat Hayat, JJ

GOVERNMENT OF N.-W.F.P. through Secretary Communication and Works Department, Peshawar and others---Appellants

Versus

MUHAMMAD SHAFIQ---Respondent

R.F.A. No. 149 of 2010, decided on 29th July, 2010.

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

----O. VII, R. 2, O. X VII, R. 3 & O. XX, R.5---Specific Relief Act (I of 1877), Ss.42 & 54---Suits for recovery of amount, declaration and injunction---Striking off right of defendants to produce evidence---Court without caring for issuing a notice to defendants, who were not present in the court; proceeded to apply the penal provisions of O.XVII, R.3, C.P.C. and struck off rights of the defendants to produce evidence---Trial Court after adjourning the suit a number of times, decreed suits filed by the plaintiff---Manner and the way in which defendants were treated in the suits and penal action-was taken against them under O.XVII, R.3, C.P.C., had spoken about the unnecessary haste and undue interest by the Trial Court---Such disposal of disputes between the contestants could hardly be termed to be a judicial disposal and could not be maintained on any principles governing the administration of justice---In the present cases, neither the merits were kept into consideration nor the law while passing the impugned judgments and decrees in favour, of the plaintiff---No doubt, the defendants had not shown due interest and diligence in defending the suits, but still when decision on merits was the most cherished goal of law, decision of the nature impugned in the two appeals could hardly be maintained---Impugned judgments and decrees were set aside---Cases were sent back to Senior Civil Judge who would proceed with the same in accordance with law and decide afresh.

(b) Administration of justice---

----Courts administering justice were required to decide the disputes purely on merits and strictly in accordance with law without caring for any other consideration. ?

Lal Jan Khattak, A.A.-G. for Appellants.

Amir Gulab Khan for Respondent.

Date of hearing: 29th July, 2010.

YLR 2010 PESHAWAR HIGH COURT 3066 #

2010 Y L R 3066

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. BUKHARI JAN---Petitioner

Versus

Haji AKHTAR KHAN and another---Respondents

Civil Revision No. 207 of 2005, decided on 2nd July, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Preamble, Ss.6 & 13---History and purpose of pre-emption---Suit for preemption---Making of Talbs---Purpose and object of the Legislature behind the promulgation of North-West Frontier Province Pre-emption Act, 1987 was to bring the pre-emption law in conformity with the Injunctions of Islam---Reference of date, time and place in the notice of Talb-i-Ishhad' and plaint was a must---In the present case, notice ofTalb-i-Ishhad' and the plaint were silent with regard to the source of information, date, time and place where the factum of sale first came to the knowledge of pre-emptor; and h~ accordingly performed the jumping demand of `Talb-i-Muwathibat'---Findings arrived at by the two courts below dismissing the suit for non-performance of talbs in accordance with law could not be interfered with in exercise of revisional jurisdiction of High Court, when no mis-appreciation of law and evidence was there.

Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883; Khani Zaman v. Shah Hussain and others PLD 1998 SC 121; Altaf Hussain v. Abdul Hamid alias Abdul Majeed through 'legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and others 2000 SCMR 329; Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201; Abdul Aziz through L.Rs. and others v. Malik Aman 2007 SCMR 383; Akbar Nawaz Khan v. Sher Dil Khan and 2 others 1995 MLD 1061; Haji Muhammad Salim v. Khuda Bakhsh PLD 2003 SC 315; Mian Pir Muhammad v. Faqir Muhammad (deceased) through L.Rs. and another PLD 2007 SC 302 and Mst. Imtiaz Begum and others v. Mst. Sultan Jan 2008 SCMR 1268 ref.

Abdul Sattar Khan for Petitioner.

S. M. Attique Shah for Respondents.

Date of hearing: 2nd July, 2010.

YLR 2010 PESHAWAR HIGH COURT 3094 #

2010 Y L R 3094

[Peshawar]

Before Syed Sajjad Hussain Shah, J

SHABAB HASSAN KHAN---Appellant

Versus

ABDUL HAKEEM SHAH---Respondent

R.F.A. No. 157 of 2010, decided on 1st July, 2010.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---North-West Frontier Province Pre-emption Act (X of 1987), Ss. 6 & 13---Suit for pre-emption---Closing of evidence and dismissal of suit---Scope---On date fixed for recording of oral evidence, plaintiff's evidence was not in attendance and case was adjourned on payment of costs---On adjourned date of hearing counsel for defendant was not present, whereas the witnesses and the attorney of the plaintiff were in attendance and evidence could not be recorded---Again on adjourned date of hearing, evidence of plaintiff was not present and last opportunity was given---On adjourned date of hearing evidence of the plaintiff was present, however plaintiff was not present and case was adjourned---On adjourned date of hearing, parties and witnesses were in attendance, but on account of strike observed by Bar Council, proceedings could not be taken up by the Trial Court and case was adjourned---On adjourned date of hearing the plaintiff and his witnesses were in attendance, but his counsel was busy before the Supreme Court and evidence could not be recorded and impugned order of dismissal of suit was passed by the Trial Court---Plaintiff, in circumstances, was less on fault as his evidence and he in person remained present in the court, but on account of certain unforeseen reasons on two occasions of hearing the proceedings could not be carried out---Where the party or his counsel had not committed default intentionally, but on account of certain compelling reasons, the court must keep in mind as to whether party was to be penalized by terminating proceedings or it could be adjourned---Provisions contained in O.XVII, R.3, C.P.C. were not mandatory in nature, but discretionary, however discretion must be exercised in accordance with principles of law---Appeal filed by the plaintiff was accepted, judgment and order passed by the Trial Court was set aside and case was remanded to the Trial Court to proceed in accordance with law and decide on its merits within a period of two months.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 ref.

Gul Sadbar Khan for Appellant.

Waheed ur Rehman Akhtar Jan for Respondent.

Date of hearing: 1st July, 2010.

YLR 2010 PESHAWAR HIGH COURT 3134 #

2010 Y L R 3134

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Haji AKHTAR KHAN---Petitioner

Versus

Mst. BUKHARI JAN---Respondent

Civil Revisions Nos. 43 and 206 of 2005, decided on 2nd July, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emption---Making of Talbs---Suit by plaintiff/pre-emptor was dismissed by Trial Court only on the ground that pre-emptor had failed to perform the requisite 'Talbs' in accordance with law---Issue of superior right of pre-emption was decided in favour of the plaintiff---Appellate Court, however, partially decreed the suit by declaring respondent/vendee having equal right of pre-emption with that of the plaintiff---Appellate Court .reversed the findings of the Trial Court on the issue of performance of 'Talbs' by declaring that requisite `Talbs' were performed by the plaintiff in accordance with law---Validity---Plaintiff had been shown to be the co-sharer in the suit Khata and vendee had also become co-sharer of the impugned property on the strength of registered sale deeds prior to the impugned transaction---Record had further revealed that property in question had changed its character from that of agricultural to one of residential---Plaintiff, in circumstances, could not claim to be the co-sharer of the property and as per site plan, could just claim participator in the special rights attached to the property or contiguity with the same, whereas the vendee by purchasing portion of suit property prior to the impugned transaction had become co-owner in the same as the property had changed its character from agriculture to that of residential and he in circumstances had superior right of pre-emption as compared to the plaintiff---Findings of the Appellate Court on the issue of superior right were modified to the effect that vendee being co-owner in the suit property had superior right of pre-emption as compared to that of the plaintiff.

Ellahi Bakhsh and others v. Allah Bakhsh and others 1982 SCMR 457; Raja Khizar Hayat and others v. Saleh Muhammad PLD 1986 Lah. 242; Dr. Abdul Jamil v. Malik Nazar Mohyuddin and others PLD 1988 Pesh. 13 and Muhammad Hanif and others v. Subedar Sher Afzal PLD 1994 Pesh. 188 rel.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-eruption---Making of Talbs---Evidence brought on record by the plaintiff would reveal that she had failed to prove jumping demand of Talb-i-Muwathibat' in accordance with law---Plaintiff herself had failed to give exact date of performance of Talb-i-Muwathibat and the exact place where she declared her intention to pre-empt the impugned transaction---Similarly, her informer who was her son had failed to mention the exact time and place of performance ofTalb-i-Muwathibat'---Performance of Talb-i-Muwathibat', could not be termed to have been performed in accordance with---Witnesses ofTalb-i-Ishhad' were consistent with regard to performance of the same, but when the pre-emptor had failed to prove the very first jumping demand of Talb-i-Muwathibat', then no question would arise to prove the subsequent demand ofTalb-i-Ishhad'.

Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 ref.

Abdul Sattar Khan for Petitioner.

Syed Mohd. Attiq Shah for Respondents.

Date of hearing: 2nd July, 2010.

YLR 2010 PESHAWAR HIGH COURT 3214 #

2010 Y L R 3214

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

Major General Dr. ASIF ALI KHAN---Appellant

Versus

NIAZ ALI KHAN and 2 others---Respondents

R.F.A. No.85 of .2010, decided on 25th August, 2010.

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

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Plaintiff sought declaration to the effect that he had purchased the suit house through registered sale-deed and was exclusive owner of the same and claimed that the defendants who were occupying the house in question under his licence had become trespassers since they had refused to vacate the same---One of the defendants had also filed a separate suit for declaration to the effect that registered sale-deed in favour of the plaintiff was Benami and that defendant was entitled to 1/8th share out of legacy of predecessor-in-interest of the parties---Both suits were consolidated and the Trial Court dismissed suit filed by the plaintiff and decreed suit filed by the defendant---Plaintiff had filed appeal against judgment and decree passed by the Trial Court---Plaintiff had amply proved that he had sufficient means to purchase the house---Findings of the Trial Court could not be sustained for the reasons that predecessor-in-interest of parties had never, in his life time, alleged the transaction as Benami though he died 23 years after the sale, during that life long period, no prospective legal heir could make such claim that no Benami could be alleged even by the financer, if the purchase was made in good faith with positive application of mind by one in the name of other; that Trial Court had been swayed with consideration other than judicial and relied upon those aspects of the case which were irrelevant and alien to law and documentary evidence produced by the plaintiff in proof of his claim, were altogether ignored by the Trial Court without even any discussion; that considering the issue of limitation, transaction in favour of the plaintiff could be challenged, either by the vendor or by the predecessor-in-interest of the parties, but both of them never did so; that no findings were given by the Trial Court on the issue of motive; that transaction in question was made through a registered deed, which was to be read in toto and not in pieces and that after the death of predecessor-in-interest of the parties, inheritance mutation was attested in favour of his legal heirs including the plaintiff and defendants regarding his legacy back in the year 2004---Defendants did not agitate or put claim on their so-called legal share in the suit house, only one defendant filed her suit in the year 2007 as a counter blast to the suit of plaintiff---Impugned judgment of the Trial Court, based on conjectures, surmises and hypothesis as well as contrary to evidence on record, was set aside and the plaintiff was declared exclusive owner of the suit house.

Ghulam Murtaza v. Mst. Bibi Asia and others Bibi Asia and others PLD 2010 SC 569 and PLD 2003 SC 215 ref.

(b) Benami transaction---

---Scope----Benami being neither a law nor a rule, extreme caution was to be observed; it simply would amount to challenging a genuine transaction made in good faith---To arrive at a just conclusion as to whether a transaction was benami or not, factors to be taken into consideration were the source of consideration; from whose custody the original title deed and other documents come in evidence; who was in possession of the suit property; and motive for benami transaction.

----Principle---Fundamental principle for interpretation of document was to attempt fully to save the document, rather to nullify it.

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

----Arts. 102 & 103---Exclusion of oral by documentary evidence---Oral evidence could not be given preference over documentary evidence.

2001 CLC 252 ref.

Abdul Lateef Khan for Appellant.

Q.M. Ghazanfar for Respondent.

Date of hearing: 25th August, 2010.

YLR 2010 PESHAWAR HIGH COURT 3246 #

2010 Y L R 3246

[Peshawar]

Before Mazhar Alam Khan Miankhel and Sardar Shaukat Hayat, JJ

RASHID IQBAL---Petitioner

Versus

Mst. UZMA KHAN and 2 others---Respondents

Writ Petition No. 2194 of 2010, decided on 18th August, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for custody of minor---Record had revealed that minor had become victim of the strained relations of his parents as he was suffering because of egocentric attitude portrayed by father of the minor---Last desertion of the spouses resulted into registration of criminal case by wife against her husband, the defendant, for causing hurts and other torture at her person---Plaintiff lady was forcibly deprived of the lawful custody of her minor son---Mother was a natural guardian and lap of the mother was the basic need of a minor; if a person being father of minor knowing such reality and just in the garb of his love and affection towards his child, it would deny the warmth of the lap of the mother to his child it would be nothing, but an egocentric behaviour having no love and affection towards his child in reality---Financial status of the defendant father, could in no way be a substitute to war/nth of the lap of mother and the minor of five plus was badly in need of the sane---Findings of the two courts below, were well-reasoned and within -the sphere of law regulating the custody of minor---High Court, in exercise of constitutional jurisdiction, could not enter to reappraise the evidence, when there was no misreading, error of jurisdiction or law.

Javed A. Khan for Petitioner.

Riaz Ahmad Khan for Respondents.

Date of hearing: 18th August, 2010.

YLR 2010 PESHAWAR HIGH COURT 3286 #

2010 Y L R 3286

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Sardar Shaukat Hayat, J

TUFAIL AHMED---Petitioner

Versus

GOVERNMENT OF NORTH-WEST FRONTIER PROVINCE through Secretary Ministry of Education, Peshawar and 6 others---Respondents

Writ Petition No. 2366 of 2009, decided on 1st June, 2010.

Constitution of Pakistan (1973)---

----Arts. 25 & 199---Constitutional petition--- Educational institution---Equality before law---All the recognized educational institutions of the country and certificates and diplomas by them being at par with each other, no condition of refresher course could be imposed on any of them for making same equivalent with the other; and imposition of any such condition being violative of the constitutional provisions ensuring equality before law was to be struck down---Condition imposed in the present case vide letter, being violative of the declared law, had to be set at naught---Direction asked for by the petitioner was issued, in circumstances.

Baber Elahi and 9 others v. Direct of Education, Primary Schools, N.-W.F.P., Peshawar and 3 others 2000 YLR (Pesh.) 3056 and Director of Education and others v. Babar Elahi and other 2007 PLC (C.S.) 157 fol.

Sharin Munir v. Government of Punjab PLD 1990 SC 95 and Attiyya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161; The Province of East Pakistan v. Dr. Azizul Islam PLD 1963' SC 296 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 others 1999 SCMR 2883 ref.

Adnan Saboor for Petitioner.

Barrister Waqar Ali D.A.-G. for Respondent.

Date of hearing: 1st June, 2010.

YLR 2010 PESHAWAR HIGH COURT 3310 #

2010 Y L R 3310

[Peshawar]

Before Attaullah Khan, J

ABDUL WALLI SHAH through Legal Heirs and 7 others---Petitioners

Versus

MUKHTIYAR HUSSAIN and 7 others---Respondents

Civil Revision No.185 of 2005, decided on 21st June, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption--Making of Talbs---Trial Court decreed suit in favour of the plaintiff to the extent of half of the share, whereas Appellate Court set aside judgment and decree of the Trial Court and dismissed the suit of plaintiff---Validity---Plaintiff claimed that Patwari halqa had informed him about the sale transaction, but said Patwari who appeared in the case, had stated nothing about contention of the plaintiff---Talb-e-Muwathibat allegedly made by the plaintiff was not proved, in circumstances---Plaintiff had not mentioned in the plaint, the time and place of making Talb-e-Muwathibat---Making of Talb-e-Muwathibat was an important step to be taken by the pre-emptor and it was necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property, he should have made immediate demand for his desire; and intention to assert his right of pre-emption without the slightest loss of time to the dispensation---Performance of Talb-e-Muwathibat, in terms of S.13(2) of the North-West Frontier Province Pre-emption Act, 1987 pre-emptor had another legal obligation to perform, i.e. making of Talbe-Ishhad, as soon as possible after making the Talb-e-Muwathibat---Non-mentioning of place, date and time of Talb-e-Muwathibat in terms of S.13 of the North-West Frontier Province Pre-emption Act, 1987, was fatal for the maintainability of the suit for pre-emption---In the present case said requirements had not been fulfilled and same had not been proved---Appellate Court, in circumstances had correctly dismissed the suit of the plaintiff---In absence of any illegality, misreading of evidence or jurisdictional defect, revision petition against judgment of the Appellate Court, stood dismissed.

2009 SCMR 673; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Bashiran Begum v. Nazar Hussain PLD 2008 SC 559 and Pir Muhammad v. Faqir Muhammad PLD 2008 SC 302 ref.

Rustam Khan Kundi for Petitioners.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 21st June, 2010.

YLR 2010 PESHAWAR HIGH COURT 3323 #

2010 Y L R 3323

[Peshawar]

Before Abdul Aziz Kundi, J

RUSTAM KHAN and 2 others---Petitioners

Versus

TAQDEER KHAN and 3 others---Respondents

C.R. No. 1055 of 2009, decided on 30th August, 2010.

Civil Procedure Code (V of 1908)---

----Ss. 48, & O.XXI, R.32---Execution of decree---Limitation---Application for execution of decree filed by the decree-holders was dismissed being barred by time---Period of six years for execution of decree as provided under S.48, C.P.C. related to execution of decree other than injunction decrees---Decree in the present case sought to be executed was an injunction-cum-declaratory one---Though declaratory decrees were not executable, but injunction decrees were executable under the provisions of O.XXI, R.32, C.P.C.---Since the period provided under S.48, C.P.C. was not applicable to the execution of injunction decree, nor was any such restrictive period provided anywhere else in the Civil Procedure Code, 1908 or under Limitation Act, 1908, provisions of Sub-rules 1 and 5 of R.32 of O.XXI, C.P.C. would come into play and the defaulter would be dealt with in accordance with the said provisions of law---Two courts below having failed to consider the case in the perspective of O.XXI, R.32, C.P.C., their impugned judgments and orders suffered from material illegalities and irregularities--Impugned judgments and orders of the two courts below were set aside and execution application filed by the petitioners/decree-holder was held to be not barred by time; and same was sent back to Executing Court for proceeding with in accordance with the provisions of O.XXI, R.32, C.P.C.

Muhammad Jan v. Suleman and others PLD 1968 Pesh. 181; Toor v. Abdul Qadir 2001 CLC 103; Khalid Latif v. UBL and others 2006 CLD 885; National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others 1996 SCMR 759; Mst. Hakam Bibi through LRs v. Khushi Muhammad through LRs 2007 SCMR 983; House Building Finance Corporation of Pakistan v. Rana Muhammad Iqbal through LRs 2007 SCMR 1929; Salma Akhtar Bhatti v. Mehboob Qadir Shah and 5 others 2004 YLR 1218; Muhammad Malik and 4 others v. Mansoor Siddiqui and 4 others 2004 YLR 890; Muhammad Hussain and others v. Muhammad Aslam 1988 SCMR 151; Municipal, Committee, Sonepat v. Dharem Chand and others AIR 1954 Punj. 197; Muhammad Azam Khan and 7 others v. Naubat Khan and 3 others 1990 MLD 1450; Toon Lal and others v. Sonoo Lail and others AIR 1938 Pat.-522; Mool Chandra Jain v. Jagdish Chandra Joshi AIR 1955 Allahabad 385; Nawab Singh v. Mithu Lal and others AIR 1935 Alabad 480; Prag Dutt v. Kedar Nath and others AIR (32) 1945 Oudh-81 and .V.S. Alwar Ayyangar v. Gurusamy Thevar AIR 1981 Mad. 354 ref.

Amir Gulab Khan for Petitioners.

Abdul Zakir Tareen for Respondents.

Date of hearing: 21st July, 2010.

YLR 2010 PESHAWAR HIGH COURT 3340 #

2010 Y L R 3340

[Peshawar]

Before Yahya Afridi, J

MUHAMMAD AMIN SHAH---Petitioner

Versus

ABD ULLAH---Respondent

Civil Revision No. 273 of 2010, decided on 17th May, 2010.

(a) 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---Resale of suit property--Issuance of notice---Rejection of plaint---Defendant filed written statement along with an application for rejection of the plaint under O. VII, R.11, C.P.C. contending that he had sold suit property to another vide mutation duly attested before the filing of suit by the plaintiff---Defendant sought the rejection of the plaint as the sale, which was under challenge, was not in existence and had been superseded by a subsequent sale---Trial Court accepting application of the defendant, rejected the plaint and Appellate Court had maintained order of the Trial Court---Validity---Subsequent sale of the suit property was effected whereby the defendant sold suit property to subsequent vendee who was not made a party to the suit---No suit could proceed against a vendee who had already sold his right in the property to another prior to the first Talb being made---Courts below in rejecting the plaint having exercised their jurisdiction in accordance with the evidence produced and correctly appreciated the same on the applicable and relevant law on the matter, revision petition was dismissed.

Ghulam Rasool v. Haroon Khan 1996 CLC 1517; Din Muhammad v. Ibrar Hussain PLD 2009 SC 93; Maulana Noor-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Rahim Badshah v. Zalia Khan and others 2004 SCMR 1941; Yaqoob Khan v. Rafiullah Shah 2004 CLC 284; Alladino v. Muhammad Shah 2001 SCMR 286; Abdul Yamin Khan v. Ashrat Ali Khan 2004 SCMR 1270; Din Muhammad v. Ibrar Hussain PLD 2009 SC 93 and Ghulam Rasoor (sic) v. Haroon Khan 1996 CLC 1517 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13, 31 & 32---Suit for preemption---Limitation---Issuance of notice in respect of registration or attestation of sale-deed---Section 31 of the North-West Pakistan Frontier Province Pre-emption Act, 1987 was an independent section and in no way conditional or subservient to the provisions of service of notices provided under S.32 of the Act.

Yaqoob Khan v. Rafiullah Shah 2004 CLC 284 and Maulana Narul Haq v. Ibrahim Khalil 2000 SCMR 1305 ref.

Muhammad Yasir Khattak for Appellant.

Muhammad Shuaib Khan for Respondent.

Date of hearing: 13th May, 2010.

Quetta High Court Balochistan

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 97 #

2010 Y L R 97

[Quetta]

Before Mehta Kailash Nath Kohli and Muhammad Nadir Khan, JJ

MUHAMMAD NASEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.45 of 2008, decided on 7th October, 2008.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---Sentence, reduction in--Charge framed against accused was denied by accused---Onus was upon the prosecution to have proved that 35 kilograms Charas was recovered from the possession of accused---After the recovery of articles, it was the duty of the prosecution to have kept the same either in mal khana or' in the safe custody---Prosecution had failed to establish as to whether incriminating articles were kept in safe custody---Unless the incriminating articles were produced before the court and the court was satisfied that the recovery was properly made, it was properly sealed and had kept in the proper possession, accused could not be held liable---Allegedly recovered article having not been produced, recovery, could not be termed to have been judiciously made---Factum of possession could only be established by production of the articles, so recovered and in the absence of the articles, no definite opinion could be formed--Onus was upon the prosecution to prove the case beyond shadow of doubt, which had not been discharged---Benefit of non production of article could not be extended to the prosecution and same definitely would go to accused---Prosecution, however, had been able to prove the case to the extent of 70 grams Charas, which was taken into possession and was sent for chemical analysis and Forensic Science Laboratory report was positive in respect thereof---Recovery of Charas was proved to the extent of 70 grams and accused could not be held liable for the entire alleged article in circumstances---Sentence of life imprisonment was modified to that one year R.I. and fine of Rs.5,000 only.

Syed Saleem Akhtar for Appellant.

Abdul Rahim Mengal for the State.

Date of hearing: 25th September, 2008.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1006 #

2010 Y L R 1006

[Quetta]

Before Muhammad Noor Meskanzai and Jamal Khan Mandho Khail, JJ

HASIL KHAN and another ---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.6 and Criminal Revision No.7 of 2007, decided on 11th November, 2009.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, enhancement of---Eye-witnesses including the complainant had corroborated each other on every minor and major point remaining firm and consistent in their stand---Ocular testimony did not suffer from any contradiction, discrepancy or improvement---Relationship of prosecution witnesses with the deceased, by itself, was no ground to discard their truthful, reliable and creditworthy statements, which had neither been misread nor mis-appreciated by the Trial Court---Recovery of crime pistol from the possession of accused having been effected in consequence of his disclosure, non-association of private witnesses in recovery proceedings, was immaterial---Medical evidence and undisputed motive had further supported the ocular evidence--Conviction of accused was upheld in circumstanced---Accused had committed a premeditated, intentional and cold blooded murder of an innocent person---Trial Court had illegally entertained a document without formal proof, exhibited the same in an illegal manner and treated as an extenuating circumstance in favour of accused for imposition of lesser sentence of imprisonment for life---Normal penalty of death should follow on proof of prosecution case and the same should not be altered to lesser punishment on flimsy grounds---No mitigating circumstance appeared an record in favour of accused and he deserved no leniency---Sentence of imprisonment for life of accused was enhanced to death accordingly.

The Holy Qura'n, Paara No.5 Sura Nisa IV in verse No.93; 1999 SCMR 1190; PLD 2007 SC 80; PLD 1975 SC 227; PLD 1976 SC 452; PLD 2000 SC 12; PLD 2001 SC 465; 1999 SCMR 2028 and 2001 SCMR 1750 ref.

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

----S.103---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Presence of local private witnesses not essential, if recovery effected on disclosure of accused---When crime weapon is recovered in consequence of the disclosure made by accused, non-association of private witnesses with the recovery proceedings becomes immaterial.

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Solitary statement sufficient to award death sentence---Solitary statement of a witness, if rings true, is sufficient to record major penalty of death.

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

----S. 302 (b)---Qatl-i-amd---Sentence---Administration of Criminal justice---Exemplary punishment need of the day---Murder cases must be seen with reference of society and to curb the crime is the need of the hour---One of the objects of criminal justice is to award exemplary punishment to offenders in order to deter them from committing crime and in this way also to serve a stern warning to those members of the society, who have behavioral leaning towards criminality---Normal penalty of death should follow when prosecution succeeds in proving its case---Avoiding deterrent punishment is a factor, which indirectly contributes to manifest incidents of crimes---Normal sentence of death in murder cases should not be reduced to lesser sentence on flimsy grounds.

1999 SCMR 1190 ref.

Kamran Murtaza for Appellants.

Miss Noor Jahan Kahoor for the State.

Date of hearing: 8th October, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1044 #

2010 Y L R 1044

[Quetta]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

Sardar AKHTAR JAN MENGAL---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior Islamabad

and another---Respondents

Constitutional Petition No.282 of 2006, decided on 24th December, 2009.

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

----S.12(i)(a)--- Constitution of Pakistan (1973), Art.199---Constitutional petition--. Cancellation of arms license---Principles of natural justice---Condemning unheard--Effect---Petitioner was aggrieved of the orders passed by authorities whereby arms licenses issued to him by Federal Government and Provincial Government were cancelled---Plea raised by petitioner was that no opportunity of hearing was provided to him before cancellation of his licenses---Validity---Order for cancellation of arms licenses could be passed under S.12 (i) (a) of West Pakistan Arms Ordinance, 1965, only after license-holder was given opportunity of showing cause against proposed cancellation---Neither any notice was issued to petitioner, nor any opportunity for hearing had been provided to him while cancelling his arms licenses, therefore, orders passed by authorities were not sustainable in the eyes of law---Orders for cancellation of licenses were vague and ambiguous in nature as neither any description of single license had been mentioned therein, nor any cogent reason was assigned---High Court in exercise of Constitutional jurisdiction set aside orders passed by authorities and all licenses of petitioner cancelled by authorities were restored---Petition was allowed in circumstances.

1970 PCr.LJ 647, PLD 1981 Lah. 386 and 2001 MLD 94 rel.

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

----S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Appeal, right of---Illegal order---Petitioner assailed orders for cancellation of licenses before High Court in exercise of Constitutional jurisdiction---Plea raised by authorities was that petitioner had right of appeal available to him against the order of cancellation of licenses, therefore, Constitutional petition was not maintainable---Validity---Though appeal against order for cancellation of licenses had been provided but as the order was not only without jurisdiction but also was of no lawful authority, petition was maintainable.

Muhammad Wassay Tareen for Petitioner.

Ch. Mumtaz Yousaf, Standing Counsel and Naseer Ahmed Bangulzai, Asstt. A.-G. for Respondents.

Date of hearing: 14th December, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1077 #

2010 Y L R 1077

[Quetta]

Before Ghulam Mustafa Mengal, J

QAIM KHAN and 5 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.208 of 2009, decided on 27th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/34/147/148/149---Qatl-i-amd, attempt to commit Qatl-i-amd, rioting---Bail, grant of---Accused were not nominated in the F.I.R.---Complainant and two eye-witnesses had implicated the accused in this supplementary statements--No other incriminating evidence was so far available to prima facie connect the accused with the commission of the offence---Vicarious liability of the accused in the crime would be determined at the trial after recording evidence---Case against accused was one of further inquiry---Nothing incriminating had been recovered from the accused during police investigation---Accused could not be detained in jail for indefinite period and bail could not be withhold as a punishment---Bail was allowed to accused in circumstances.

PLJ 1999 SC 727; 1997 PCr.LJ 494; 2000 PCr.LJ 1096; 1996 SCMR 1654; 1980 SCMR 784; 1994 SCMR 2051; 1997 SCMR 445; 1990 SCMR 346 and 2002 PCr.LJ 1532 ref.

Kamran Murtaza for Applicants.

H. Shakeel Ahmed, Muhammad

Rafique Langove and Malook Ahmed Langov for the Complainant.

Zahoor Ahmed Shahwani, P.-G. for the State.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1083 #

2010 Y L R 1083

[Quetta]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

LIAQUAT ALI---Appellant

Versus

SABRULLAH and 4 others---Respondents

Criminal Acq. Appeal No.363 of 2008, decided on 1st February, 2010.

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

----Ss. 302/147/148/149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd and rioting---Appeal against acquittal---Eye-witnesses had not assigned any specific role of firing to the accused on the deceased, for which only the absconding accused was made responsible---Mere presence of accused at the spot, even if believed did not contribute any offence---No crime weapon was recovered from the accused---Version of the complainant was not supported by any independent evidence---Common object of accused in commission of offence was not indicated by the record, nor they had been proved to be members of an unlawful assembly---No incriminating material had come on record to link the accused with the crime---Nine persons having been involved for a single murder, false implication of accused in the case could not be ruled out---Impugned judgment did not suffer from any illegality, irregularity, misreading or non-reading of evidence---Appeal against acquittal of accused was dismissed in limine in circumstances.

2001 SCMR 25 ref.

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

----S. 417---Appeal against acquittal---Appreciation of evidence---Principles---Acquittal always carries double presumption of innocence in favour of accused---Principle of appreciation of evidence in appeal against acquittal is altogether different from that of appeal against conviction---Courts are always reluctant to interfere in the judgment of acquittal, unless the same is shown to be perverse, ridiculous and shocking, or trial Court had failed to consider any material evidence having direct bearing on the case---Possibility of another view from the evidence on record is not sufficient to disturb the finding of acquittal arrived at by trial Court, provided both the conclusions are equally possible and probable.

Mehmood Sadiq Khokhar for Appellant.

Date of hearing: 23rd December, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1184 #

2010 Y L R 1184

[Quetta]

Before Ghulam Mustafa Mengal, J

GUL WALI---Appellant

Versus

WIDOW OF SHEIKH GHULAM NABI and others---Respondents

F.A.O. No.66 of 2009, decided on 27th October, 2009.

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

----S.13(6)--- Ejectment of tenant---Striking off defence---Tentative rent order---Denial of relationship of landlord and tenant---Tenant assailed eviction order passed by Rent Controller on the ground that on denial of relationship of landlord and tenant, tentative rent order could not be passed and defence could not have been struck off---Validity---Tenancy was not disputed and documents referred by landlords proved that they were landlords---Rent Controller did not commit any illegality by passing tentative rent order and it was obligatory upon the tenant to comply with the order ,of Rent Controller---In case of decision of issue in respect of non-existing of relationship of landlord and tenant between the parties, rent deposited in court would automatically be refunded to the tenant--High Court declined to interfere in eviction order passed by Rent Controller---Appeal was dismissed in circumstances.

Kausar Butt v. Lt.-Col. Syed Iftikhar Ahmed PLD 1991 Kar. 417; Malik Abdul Rashid v. Muhammad Gulfam 1984 CLC 2835; Muhammad Daud v. Mst. Surriya Iqbal and 3 others 2001 CLC 1819 and Mst. Razia Begum and others v. Senior Civil Judge (Rent Controller) Charsada and 2 others PLD 1996 Pesh. 8 ref.

Mst. Mahmooda Begum v. Mst. Mahmooda Jan 1973 SCMR 131 rel.

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

----S.13(6)--- Tentative rent order--Jurisdiction of Rent Controller---Scope---If Rent Controller omits or fails to pass an order for deposit of rent on first date of hearing or as soon as possible after framing of issues, the same does not mean that Rent Controller becomes debarred from passing any order for deposit of rent.

Muhammad Wassay Tareen and Abdul Khair Achakzai for Appellant.

Abdur Rasheed Awan for Respondents.

Date of hearing: 16th October, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1209 #

2010 Y L R 1209

[Quetta]

Before Muhammad Noor Meskanzai and Jamal Khan Mandokhail, JJ

HASIL KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.(S) 7 of 2007, decided on 11th November, 2009.

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

----S.13(e)---Keeping in possession unlicensed pistol---Appreciation of evidence---Unlicensed pistol had been recovered from the accused at his disclosure---Strict compliance of S.103, Cr.P.C. was not required in case of the recovery having been effected on the disclosure made by accused---Veracity of prosecution witnesses could not be damaged despite lengthy cross-examination---Recovery evidence was consistent and inspired confidence---No grievance or enmity of the witnesses with the accused was agitated---Prosecution evidence did not suffer from any discrepancy or doubt--Conviction and sentence of accused were upheld in circumstances.

Kamran Murtaza for Appellant.

Miss Noor Jahan Kahoor for the State.

Date of hearing: 8th October, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1933 #

2010 Y L R 1933

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

Haji MULLAH DAD KARIM and others---Petitioners

Versus

Mir ASSA GUL and 22 others---Respondents

Civil Revision No. 321 of 2006, decided on 7th June, 2010.

Civil Procedure Code (V of 1908)---

----Ss. 11 & 115---Res judicata---During pendency of suit filed by the plaintiffs, defendants filed application under S.11, C.P.C. which was accepted by the Trial Court and Appellate Court and suit was dismissed on ground of res judicata--Validity--- Point in respect of maintainability of suit being hit by S.11, C.P.C., was already decided by the Trial Court, recording findings in negative--Same court thereafter had no jurisdiction to again entertain the same question and take altogether a different view---Second order of the Trial Court was not only erroneous, but illegal being made without jurisdiction--Appellate Court did not consider said fact, which was specifically agitated before the Appellate Court---Both the courts had made an error which was required to be rectified---Orders of the courts below were set aside and suit stood restored and was remanded to the Trial Court to conduct proceedings in accordance with law.

Kamran Arshad Ch. for the Petitioners.

Tahir Ali Baloch for Respondents Nos.1 to 22.

Muhammad Aamir Rana for Interveners.

Date of hearing: 18th December, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1946 #

2010 Y L R 1946

[Quetta]

Before Jamal Khan Mandokhail, J

ABDUL SATTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Quashment No. 21 of 2010, decided on 1st June, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 514 & 561-A---Penal Code (XLV of 1860), Ss.109, 471, 420 & 406---Forfeiture of bond---Quashing of order, petition for--Petitioner stood guarantor for accused and deposited Rs.2,00,000 as surety in cash---Accused jumped off bail and the petitioner being guarantor had failed to produce him before the Trial Court and out of surety amount of Rs.2,00,000 deposited by the petitioner, amount of Rs.1,50,000 was forfeited by the Trial Court and the petitioner had filed petition for quashing the said order under S.561-A, Cr.P.C.---Counsel for the petitioner had requested for moderate reduction in the forfeited amount---Validity---Standing of surety for some one being an act of benevolence, unless and until it was established that the surety had got accused released on bail for any ulterior motive or for monetary gain, he was not to be treated harshly and not to be punished severely, without there being extraordinary circumstances calling for full forfeiture of the surety bond---In the present case the Trial Court had not assigned cogent reasons as had been mentioned in sub-clauses (I) & (2) of S. 514, Cr. P. C. ---Nothing was available on record to show that the surety submitted by the petitioner was for personal gain, but it seemed that same was out of benevolence and humanitarian considerations---Trial Court, while forfeiting the amount of Rs.1,50,000 out of Rs.2,00,000 had shown severity; it should have made investigation for arriving at a just conclusion with respect to a quantum of fine, but it had failed to do so---Amount of fine of Rs.1,50,000 imposed on the petitioner was reduced to that of Rs.80,000---Trial Court after deducting said amount, would return the remaining amount i.e. Rs.1, 20,000 to the petitioner accordingly.

Ajmal Khan Kakar for Petitioner.

Haji Liaquat Ali for the State.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 1969 #

2010 Y L R 1969

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

Messrs KALA KHAN TAREEN, COAL COMPANY DUKI through attorney---Petitioner

Versus

MEHRAB KHAN and 5 others---Respondents

Criminal Revision No. 16 of 2006, decided on 17th March. 2010.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5 & 9---Illegal dispossession---Proceedings under Ss.3, 4, 5 & 9, Illegal Dispossession Act, 2005---Scope---Complaint by complainant under Illegal Dispossession Act, 2005 had been dismissed by the Trial Court---Trial Court on receiving complaint sent the same to the concerned S.H.O. for investigation of the matter, who submitted his report and Trial Court after hearing the parties, dismissed the complaint---Validity---Complaint was made under the provision of Illegal Dispossession Act, 2005, which was a special law and would prevail over the general law---Dispute in respect of property and mining was pending between the parties since long---Both the parties were litigating before different forums, and as to what was the result of the same, no specific order was placed on record in that respect---Settlement of title and possession thereof was out of the scope in proceedings initiated under Illegal Dispossession Act, 2005, decision in respect of title and ownership, in circumstances, had less bearing on proceedings pending under provisions of the Act---Only fact which was required to be considered and decision given was to the effect of possession of the aggrieved person, which was disturbed by the other side without any lawful excuse---In the present case, the complainant though had claimed himself to be in possession of property in question, but neither in the complaint nor in pleadings, the exact date of dispossession was disclosed---Area from which the complainant was dispossessed, exact measurement and the boundaries were not specified in the complaint---Complainant had not alleged that he had been deprived of the whole area leased in his favour, property in question thus was not specific---Suit and constitutional petition were pending before filing of the complaint---Complainant was well aware about the act of the respondents, but despite that he remained silent for more than one year, whereafter he filed the complaint---Complainant had failed to assign any reason for such delay---Rapid remedy was provided under Illegal Dispossession Act, 2005---Litigation was pending between the parties on civil and revenue side and the rights were to be ascertained by the said courts under relevant law, which could not be interfered in the present proceedings---Trial Court, therefore, had come to the right conclusion---Complainant having failed to make out any case in his favour, petition was dismissed being without merits.

M. Qahir Shah and Baz Muhammad Kakar for the Petitioner.

Kamran Murtaza and Miss Saima Jamal for the State.

Date of hearing: 27th October, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2011 #

2010 Y L R 2011

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

Mst. ZEBA and others---Petitioners

Versus

SHER MUHAMMAD and others---Respondents

Civil Revisions Nos. 182 and 172 of 2005, decided on 7th June, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration and injunction---Application for rejection of plaint---Defendants filed application under O. VII, R.11, C.P. C. for dismissal of suit being not maintainable---Trial Court came to the conclusion that suit was not maintainable on grounds mentioned in said application and dismissed the suit--- Appellate Court/Majlis-e-Shoora, however, set aside order of the Trial Court accepting appeal and remanded the case for further adjudication on merits---Validity---Suit was dismissed by the Trial Court on application filed by the defendants under O. VII, R.11, C.P.C., in its initial stage, without framing issues, simply on legal objection raised by the defendants in their written statements---Appellate Court reversed the order of the Trial Court on grounds that the Trial Court neither framed any issues nor called for evidence and that findings of the Trial Court were not based on record nor on law---No contradiction was found in memo of plaint or prayer as alleged by the defendants---No suit must fail on ground of lack of proper description of property in dispute---While deciding a suit the material consideration was to give decision on merits, rather deciding same on mere technicalities---Trial Court was bound to frame issues on merits as well as on legal objections also, whereafter decide the same keeping in view the relevant provisions of law, but Trial Court had simply decided the objections on application made by the defendants in their application for rejection of suit---Some of the objections raised by the defendants were factual as well as legal and for deciding the same, evidence was required to be called which was to be considered---Trial Court, however, gave findings on presumption, which was not proper---Even objection to the extent of nail joinder and non joinder of the parties could easily be met by adding or deleting the parties---Trial Court had failed to exercise the powers vested in it and came to the conclusion which was not in conformity with relevant provisions of law---Appellate Court though had not discussed each and every objection, raised by the defendants, but had arrived to correct decision that the Trial Court had made error while dismissing the suit being not maintainable in such a way---No illegality or irregularity was pointed out which could make order of Appellate Court contrary to law---Defendants having failed to make out any case in their favour, impugned order of Appellate Court was upheld.

Kamran Arshad Ch. for the Petitioners (in Civil Revision No. 182 of 2005).

Muhammad Aamir Rana for the Respondents (in Civil Revision No 182 of 2005).

Basharatullah for the Petitioners (in Civil Revision No. 172 of 2005).

Muhammad Aamir Rana for the Respondents (in Civil Revision No 172 of 2005) .

Date of hearing: 18th December, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2083 #

2010 Y L R 2083

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

AMANULLAH and another---Appellants

Versus

ROHI MUHAMMAD---Respondent

F.A.O. No.43 of 2008, decided on 13th April, 2010.

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

----Ss. 2(c), (i), 13(2)(i), (3)(a)(ii) & 15---Ejectment of tenant on grounds of default in payment of rent and bona fide personal requirement---Relationship of landlord and tenant---Appeal to High Court---Case of respondent/landlord was that he had purchased shop in question through registered sale-deed from its previous owners and appellant being existing tenant was informed about said change---Landlord raised demand for vacant possession of shop and on request of tenant six months time was given to him 1 subject to payment of rent, but tenant had failed to pay the rent---Rent Controller on basis of evidence on record had come to the right conclusion that relationship of landlord and tenant existed between the parties, while tenants had failed to pay the rent of shop which was required by the landlord for his personal bona fide use and occupation---Tenants with mala fide intention denied the title of landlord depriving landlord from payment of rent for which he was legally entitled---Sufficient evidence was available on record establishing bona fide requirement of landlord in respect of shop in question--Rent Controller on basis of evidence on record had rightly found that relationship of landlord and tenant existed between the parties; tenants had failed to establish any legal title in respect of shop in question in this favour---Landlord had fully proved default in payment of rent by the tenant and that landlord required shop in question for his bona fide personal need---Findings of Rent Controller based on record, were upheld with modification that landlord was entitled for recovery of rent from the tenant till recovery of possession of shop in question by the landlord---Tenants were directed to be evicted forth-with from the shop in question.

Basharatullah for Appellants.

Kamran Murtaza for Respondents.

Date of hearing: 15th October, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2139 #

2010 Y L R 2139

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD QASIM and others---Petitioners

Versus

AHSAN RAZA and 2 others---Respondents

Criminal Revisions Nos. 84 and 57 of 2009, decided on 8th January, 2010.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5, 6, 7 & 9---Criminal Procedure Code (V of 1898), S.248---Illegal dispossession---Complaint against---Withdrawal of complaint---Attachment of property---School building and residential flat owned by the petitioner, having forcibly been occupied by respondent, on direction of the petitioner, the other complainant filed complaint---Trial Court took cognizance in the matter and issued process---Respondent failed to explain as to how he came into possession of property in question---Trial Court passed interim order whereby property in dispute was attached and Nazir of the Court was appointed to take accounts---During proceedings, complainant filed application under S.248, Cr.P.C. for withdrawal of complaint and the Trial Court through the impugned order allowed withdrawal of the complaint---Trial Court found that as per S.9 of Illegal Dispossession Act, 2005 a mechanism was provided to proceed in the complaint as per provisions of Criminal Procedure Code, 1898 threrefore request for withdrawal was allowed---Trial Court could neither elaborate the point, nor discussed same and gave no proper reasoning in that respect---Case having been filed in respect of the offence under Illegal Dispossession Act, 2005, which was a special law, procedure provided therein was to be observed, while conducting trial/decision of the case---No provision existed as to withdrawal of the complaint in Illegal Dispossession Act, 2005 and once a complaint had been filed under the said Act, it had to be decided as per provisions of that Act---Trial Court having taken the cognizance of the case, it had to observe procedure provided in the Act---Impugned order was set aside and complaint would be deemed to be pending before the Trial Court---Regarding order of attachment of school, though on dismissal of complaint through impugned order, petition against attachment order had become infructuous---As both the parties claimed ownership of the property in dispute, it was an appropriate order to attach the same---School being in the property it was earning huge amount from the School---Held, in order to save the interest of the parties, it would be just and proper that order attaching the property remained in field---No illegality was pointed out by the petitioner in that matter impugned order was upheld---Case was remanded to the Trial Court with direction to proceed with the matter in accordance with relevant law.?

M. Zafar and Tahir Muhammad Khan for Petitioner (in Criminal Revision No. 84 of 2009).

Muhammad Sadiq Khokhar, Syed Abu Zar Haider for the Respondents (in Criminal Revision No.84 of 2009).

Syed Abu Zar Haider, Qazi Abdul Malik and Saima Jamal for the State (in Criminal Revision No. 84 of 2009).

Mehmood Khokhar for the Petitioner (in Criminal Revision No.57 of 2009).

Habib Tahir and Syed Abu Zar Haider for Respondents (in Criminal Revision No.57 of 2009).

Qazi Abdul Malik and Saima Jamal for the State (in Criminal Revision No.57 of 2009).

Date of hearing: 28th September, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2157 #

2010 Y L R 2157(2)

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

SAMIULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 114 of 2009, decided on 12th January, 2010.

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

----S. 13(e)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)---Criminal Procedure Code (V of 1908), S.423---Possessing arms and Haraabah---Appreciation of evidence--Counsel for accused had contended that he did not want to press appeal on merits, if the court while exercising powers under S.423, Cr.P.C. forego the remaining period of sentence as accused had already undergone 1/3rd of his sentence---In the present case though the accused was charged only for keeping in possession arms without any legal or lawful title, permit or licence, and the quantum of sentence was also two years, but record had revealed that accused was apprehended from the spot when he along with his co-accused were snatching motorcycle from a person---Allegation against accused, in circumstances, was not simply in respect of illegal possession of arms, but major offence was of Haraabah under S.17(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Crime weapon was also in working condition as per Examination Report---Accused was further involved and booked in commission of major offence---Lenient view was not required to be taken in favour of accused, in circumstances--Accused had failed to point out asserted contradictions present in the evidence and any illegality in the judgment of the Trial Court---No interference, in circumstances was required to be made in the impugned order.

Muhammad Ibrahim Umar Lehri for the Appellant.

2010 Y L R 2309

[Quetta]

Before Jamal Khan Mandokhail, J

Dr. NASEER KAKAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 292 of 2002, decided on 3rd June, 2010.

Penal Code (XLV of 1860)---

----Ss. 409, 468 & 477-A---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal misconduct of public servant, criminal breach of trust, forgery and falsification of accounts---Appreciation of evidence---Accused, cashier of a government hospital, was alleged to have misappropriated medicines which he used to collect from Medical Store Department as incharge of Medical Store of said hospital---Accused contended that he had nothing to do with receiving medicines, and Medical Store Incharge was responsible for all transactions of medicines---Evidence on record showed that the accused used to collect medicines from Medical Store Department but prosecution failed to place on record any notification showing posting of accused as Medical Store Incharge---Accused, in fact, .was given charge of Medical Store unofficially but it could not be found out as to who had given him charge of such important position orally or unofficially---Prosecution, thus, failed to prove appointment of accused as Incharge of medical store---Indents issued by Medical Superintendent of the hospital to the Incharge, Medical Store Department showed that medicines were requisitioned but it was not proved that the medicines were received and misappropriated by the accused---As per procedure, medicines were requisitioned through indents issued by the Medical Superintendent of the hospital and were received by Incharge of Medical Store--- Indents produced by prosecution showed that alleged medicines were received by the Store Incharge who was not competent to alter indents issued by the Medical Superintendent---Record of the case revealed that alterations made in indents were endorsed by the Medical Superintendent but he disowned his initials in the court---Prosecution had held the accused solely responsible for alleged offences without associating the Medical Superintendent---Prosecution also failed to place on record the Stock Register which could prove whether the medicines were received by Incharge, Medical Store from Medical Store Department and given to patients--- Allegations levelled by prosecution were of vague nature because exact value of embezzled medicines could not be determined without ascertaining the quantity of medicines so misappropriated-Non-production of Stock Register, therefore, made the case of prosecution highly doubtful---Evidence revealed that the Medical Superintendent and Incharge of Medical Store were responsible for requisition, management and distribution of medicines---Prosecution failed to show that the accused was Incharge of Medical Store and he received medicines which were allegedly misappropriated---Appeal was accepted and accused was acquitted of the charges in circumstances.

Naeem Akhtar Afghan for Appellant.

Noman Shafique for Respondent.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2382 #

2010 Y L R 2382

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

BHAWAL KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. (s) 4 of 2007, decided on 20th May, 2010.

Penal Code (XLV of 1860)---

----S. 337-H(ii)---Criminal Procedure Code (V of 1898), S.435---Hurt by rash or negligent act---Acquittal of accused on ground of compromise---Application for return of amount deposited in lieu of fine--Applicant/accused had filed application seeking return of amount of Rs.5000 deposited by him in lieu of fine imposed on him while convicting him under S.337-H(ii), P. P. C. as the matter had been compromised and accused was acquitted of the charge---Amount of fine had already been paid by accused through Superintendent Jail---No Arsh or Daman was imposed on accused, and he was only fined---In case of compromise and on waiving right of Arsh or Daman by the victim, amount paid as Arsh or Daman could be returned to the accused, but in case of fine, return of amount of fine was not possible as that amount was deposited in favour of State, which could not be refunded, even in case of acceptance of compromise and setting aside of conviction order.

2010 Y L R 2512

[Quetta]

Before Jamal Khan Mandokhail, J

MUHAMMAD and 15 others---Petitioners

Versus

DAD RAHIM and another---Respondents

Civil Revision No. 17 of 2008, decided on 31st May, 2010.

Specific Relief Act (I of 1877)---

---S. 42 & 55---Suit for declaration and permanent injunction--- Contention of plaintiffs was that they were owners in possession of the property in dispute which the defendant had illegally and unlawfully mutated in his name in the settlement proceedings---Trial Court dismissed suit while Appellate Court dismissed appeal---Validity---Plaintiffs contended that they were owners of the suit land but revenue entries were made in the name of defendant during the settlement proceedings while they were out of the country---Perusal of evidence produced, however, showed that no witness had supported plaintiffs' averments--Plaintiffs' assertion that they were out of the country during settlement proceedings was contrary to usual course of procedure adopted during settlement proceedings which were always carried out on the spot in the presence of owners or claimants and were followed by preparation of Record-of-Rights, thereafter objections could be raised within six years---One of the plaintiffs' witnesses in cross-examination had admitted the presence of plaintiffs in the area at the time of settlement proceedings---Plaintiffs were bound by the statements of their witnesses, therefore, their plea that they were not aware of the settlement proceedings was not acceptable--- Even otherwise, neither plaintiffs nor their witnesses had disclosed as to when they came to know about settlement proceedings---Plaintiffs neither raised any objection before revenue authorities nor did they challenge the mutation in time---Admittedly neither the plaintiffs were recorded owners nor were they in possession of the property in dispute, therefore, they had no right, title or interest under S.42 of the Specific Relief Act, 1877 to file the suit---Defendant had been recorded as owner during settlement proceedings, therefore, presumption of the highest degree was attached to such entries/proceedings---Strong evidence was required to rebut such entries which the plaintiffs had failed to do---Plaintiffs had sought cancellation of mutation entries but extract of disputed revenue entries was not produced to prove illegality or fraud by defendants during settlement proceedings--Plaintiffs had failed to point out any irregularity or illegality in the impugned judgments warranting interference by High Court---Petition was dismissed in limine.

Bibi Khatoon v. Taj Muhammad and others 1991 SCMR 1984 and Haji Allah Bakhsh v. Abdullah Khan and others 2001 SCMR 363 fol.

H. Shakil Ahmad for Petitioners.

Kamran Murtaza for Respondent No. 1.

Date of hearing: 18th May, 2010.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2529 #

2010 Y L R 2529

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

FAIZ MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 23 of 2009, decided on 10th March, 2010.

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

----S. 13(e)--- Recovery of arms--Appreciation of evidence---Trial Court had completely relied on evidence produced by prosecution---Contents of F.I.R. did not corroborate the view and facts taken and described by the Trial Court while disposing of the matter---Nothing was available in F.I.R. about effecting recovery of arms from possession of accused when his house was allegedly raided by the Police---No explanation was found on record from prosecution side about reason of presence of accused in front of some specific house at such odd hours of the night and no explanation was given as to where were the klashnikov and two magazines at the time of recovery---Alleged magazines and cartridges so recovered, were not produced before the court---Recovery of alleged articles from possession of accused, was not established free from all doubts, the benefit of the same would go to accused, which had not been given by the Trial Court---Trial Court had also failed to observe the contradictions and flaws present in the statements of the witnesses---Prosecution had failed to establish the charge against accused---Trial Court having not come to the right conclusion, same could not remain in field---Impugned judgment of the Trial Court was set aside and accused was acquitted of the charge under S.13(e) of West Pakistan Arms Ordinance, 1965 and was ordered to be released.

Miss Shahida Parveen for Appellant.

Qazi Abdul Malik for the State.

Date of hearing: 2nd November, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2566 #

2010 Y L R 2566

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

HAZOOR BAKHSH ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Before arrest Application No. 85 of 2009, decided on 11th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 147, 148 & 149---Attempt to commit qatl-e-amd---Bail before arrest, refusal of---Accused was specifically nominated in F.I.R. and remained absconder and he only appeared before the Trial Court when his four co-accused were acquitted of the charge---Contention of accused was that he was unaware of filing of case and trial and when he came to know about the same he approached his counsel with intention to surrender him before the Trial Court which seemed to be less believable, as accused and other accused persons who faced trial were residents of the same area and his unawareness about institution and trial of the case was not possible---Accused avoided to appear before the Trial Court and tried to obtain bail from the High Court without surrendering himself unconditionally, his conduct was not proper---Accused could not take benefit of order of acquittal of co-accused---Accused in circumstances was not entitled for concession of pre-arrest bail---Order granting ad interim bail in favour of accused, was withdrawn, in circumstances, and he was directed be taken in custody.

Asadullah for Applicant.

Abdul Rahim Mengal A.A.-G. along with Musthaq S.-I./Investigating Officer Present along with record for Respondent.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2578 #

2010 Y L R 2578

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

GOVERNMENT OF BALOCHISTAN through Secretary Board of Revenue and 2 others---Petitioners

Versus

RAHEEM BAKHSH and 13 others---Respondents

Civil Revision No.44 of 2007, decided on 3rd December, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Trial Court dismissed the suit, but Appellate Court on appeal decreed the same---Plaintiffs claimed that their predecessor-in-interest was owner of the suit property from time of her forefathers and produced only two oral witnesses and recorded their statements through attorney---No title deed in favour of their predecessor-in-interest was produced by the plaintiffs before the Trial Court---None of the witnesses of the plaintiffs had clarified as to how suit property devolved upon their predecessor-in-interest---Even the attorney who appeared on behalf of the plaintiffs, also failed to disclose the source from which the property was devolved upon their predecessor-in-interest---Attorney was also unable to disclose that as to when disputed mutations entries were made---Appellate Court had simply relied on oral statements of the witnesses appeared from the side of the plaintiffs and neither discussed nor analyzed the material present on record---No documentary evidence was produced, nor the witnesses appeared during the trial deposed specifically about the ownership of the plaintiffs; and the channel through which suit property devolved upon the plaintiffs---Suit though was hit by limitation, but Appellate Court had found that suit was filed by the plaintiffs well within time---Appellate Court, on both the issues, had taken erroneous view, findings given by the Appellate Court were without basis as nothing was on record from which it could be ascertained that previously the property in question was ever in possession of the plaintiffs being owners thereof---No explanation was on record about delay in filing of the suit---Burden lay on the plaintiffs to prove their claim in respect of suit property, but they had completely failed to discharge the same---Trial Court had rightly found that suit was hit by limitation and was not maintainable---Order of Appellate Court was set aside, while that of the Trial Court was upheld.

Amanullah Tareen, A.A.-G. for Petitioners.

Ayaz Swati for Respondents.

Date of hearing: 8th October, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2596 #

2010 Y L R 2596

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ABDUL KARIM MENGAL---Petitioner

Versus

SULTAN BADSHAH---Respondent

Civil Revision No.160 of 2007, decided on 7th December, 2009.

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

----O.XXXVII, Rr.2, 3, O.XLIII, R.1, Ss.104 & 115---Suit for recovery of amount---Application seeking leave to defend suit was granted with condition---Revision--- Maintainability---Defendant raised objection with regard to jurisdiction of the court, regarding condition to furnish surety to the tune of amount involved in the suit---Objection so raised by defendant was rejected by the Trial Court---Plaintiff had contended that revision petition filed by (he defendant was not competent as High Court had no jurisdiction to exercise its revisional jurisdiction in respect of order made under O.XXXVII, R.3, C.P.C.---Counsel for the plaintiff had failed to elaborate his objection so raised---Held, High Court under S.115, C.P.C. could call for record of any case which had been decided by any court subordinate to it and in which no appeal lay---In the present case, suit filed by the plaintiff was not decided by the Trial Court, rather interlocutory orders had been made during course of trial---Section 104, C.P.C. and O.XLIII, R.1, C.P.C. had specified the orders against which appeal lay and orders made under O.XXXVII, R.3, C.P.C. were not included therein; it could safely be presumed, in circumstances, that orders made under O.XXXVII, R.3, C.P.C. were not appealable and orders of such nature could be challenged/questioned before the High Court in its revisional jurisdiction---Revision petition filed by the defendant, in circumstances, was very much competent.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount---Application seeking leave to defend suit---Order for furnishing surety for suit amount---Leave to defend suit was allowed to the defendant with direction to furnish reliable security for suit amount---Defendant was aggrieved of the condition/direction furnishing of surety---Defendant also filed application seeking reduction of security and modification of the order to that extent---Trial Court had declined to accept said objections/prayers made by the defendant--Discretion had been given to the Trial Court under O.XXXVII, R.3(2), C.P.C., either to grant leave to defend suit unconditionally or subject to some terms---Giving security was one of the same terms, to that extent the Trial Court had the power to call for deposit of security in the matter and there was no illegality to that extent in the impugned orders passed by the Trial Court---Contention of defendant was that there was no justification under the law for imposing the condition of furnishing reliable security; and that court had mis-exercised its authority by granting leave conditionally---Defendant was not specific in his contentions and he had failed to point out any illegality or irregularity in exercise of discretion by the Trial Court and to point out any illegality in order of the Trial Court whereby application made by defendant for reduction of surety amount was rejected---Trial Court had exercised its discretion properly---Defendant having completely failed to make out any case in his favour, revision petition was dismissed.

Syed Ayaz Zahoor for Petitioner.

Muhammad Qahir Shah for Respondent.

Date of hearing: 8th October, 2009.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2785 #

2010 Y L R 2785

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

KHALIQ DAD---Petitioner

Versus

NOOR BIBI and 6 others---Respondents

Civil Revision No.29 of 2005 decided on 13th July, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Suit was decreed by the Trial Court, but Appellate Court allowing appeal, set aside judgment and decree passed by the Trial Court and dismissed the suit----Plaintiff had claimed that land in dispute was allotted to defendant and thereafter same was purchased by him from said allottee on consideration---Land in dispute was property of Government which was allotted in favour of defendant in the year 1983, but plaint was completely silent to that effect---Sale-deed had revealed that nothing about leasehold rights was mentioned therein nor any reference was made to the allotment order/Patta issued in favour of defendant/vendor in the year 1983---No explanation was available about the fact as to when alleged sale was effected in year 1992 in favour of the plaintiff-Land in question was State-land and without sanction of competent authority, no legal document could be passed to the third party---Plaintiff was claiming ownership of land of a description, which was not available at the site---Plaintiff in circumstances, had failed to establish that any valid title in respect of suit-land was transferred in his favour, while he was required to prove the same---In absence of any valid title, plaintiff was not entitled for any relief claimed by him---Appellate Court had assessed the evidence properly and had come to the correct conclusion--Plaintiff having completely failed to make out any case in his favour, no grounds were made out to make interference in the impugned order passed by the Appellate Court below.

Riaz Ahmed for Petitioner.

Zahid Muqeem Ansari for Respondents.

Date of hearing: 23rd April, 2010.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 2868 #

2010 Y L R 2868

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

Miss ASMA GULISTAN---Appellant

Versus

TARAQEE FOUNDATION through Chief Executive---Respondent

Civil Miscellaneous Appeal No. 33 of 2009, decided on 14th January, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.2, O.IX, R.13 & O. XLIII, R.1(c)(d)---Suit for recovery of amount--Ex parte decree---Application for setting aside of ex parte decree---Defendant having failed to appear before the Trial Court despite publication, she was proceeded ex parte and the Trial Court decreed suit of the plaintiff against defendant, ex parte---Defendant filed application for setting aside ex parte decree after lapse of 10 months under O.IX, R.13, C.P.C. along with application for condonation of delay under S.5 of Limitation Act, 1908---Said application had been dismissed by the Trial Court being devoid of merits---Validity---Negligence on part of counsel for the defendant was no ground for condonation of delay---Defendant who slept over her own rights, had to bear the consequences--Trial Court had come to the right conclusion keeping in view the material on record---As the defendant had failed to establish her contention about her absence and further no ground for condonation of delay occurred in filing of application, was established by her, her application under O.IX, R.13, C.P.C. was rightly rejected by the Trial Court, which required no interference---Appeal was dismissed.

Sundar Dass for Appellant.

Obaidullah Qureshi for Respondent.

Date of hearing: Ist October, 2010.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 3000 #

2010 Y L R 3000

[Quetta]

Before Qazi Faez Isa, C.J.

ATTA MUHAMMAD and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Quashment Application No. (s) 06 of 2010, decided on 29th April, 2010.

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

----S.561-A--- Offence of Zinc: (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Abduction---Quashing of F.I.R., application for---Allegation in the F.I.R. was that accused female was abducted by male accused with the help of his brothers---Accused persons (male and female), however, had stated that they got married and their Nikah was duly performed---Copy of Nikah Nama was attached with the application filed by them for quashing of F.I.R.---Complainant/ mother of alleged abductee appeared in the Court along with her counsel and stated that alleged abductee had married without her permission and that if male accused was to provide a lady member of his family for marriage to the complainant's daughter she would compromise the matter and withdraw the complaint---Fact that alleged abductee appeared in the Court and denied her alleged abduction, there remained no case---Alleged abductee had married of her own free will which fact was not stated in the application, but also in the affidavit submitted in the Court---F.I. R. had clearly been lodged to harass accused persons and to settle the scores---High Court invoking its inherent powers, quashed the F.I.R., in circumstances.

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

----S.561-A---Inherent powers of High Court---Scope---Section 561-A, Cr.P.C. stipulated that inherent powers vested in the High Court to prevent the abuse of the process of any Court or otherwise to secure the ends of justice were not limited.

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

Shaukat Ali Qadri for Petitioner.

Mrs. Noor Jehan Kahoor for the State.

Nadir Ali Chalgari for Respondent No.2.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 3144 #

2010 Y L R 3144

[Quetta]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

MUNIR AKHTAR AWAN and others---Petitioners

Versus

KHALID MANSOOR and others---Respondents

Constitutional Petitions Nos. 143 of 2003 and 334 of 2008, decided on 4th August, 2010.

(a) Al-Khair University of Azad Jammu and Kashmir Act (XXVIII of 1994)---

----Preamble---Establishment of university--Recognition of degree by Pakistan---Scope---Degree of Al-Khair University of Azad Jammu and Kashmir has been recognized by Higher Education Commission of Pakistan as equivalent to degrees of other universities of Pakistan.

(b) Balochistan University Act (III of 1996)---

----S.31---Affiliation of campus---Object, purpose and scope---Affiliation of campus with Balochistan University does not mean that it has become part of the University of the cities having jurisdiction in the area---Purpose for affiliation is to have a check on the standard of education of that campus.

----S.26---Balochistan Bar Council Rules, R. 3---Balochistan University Act (III of 1996), Ss. 5, 27 & 31---Constitution of Pakistan (1973), Arts.25 & 199--Constitutional petition---Discremination---Enrolment as advocate---No Objection Certificate from Balochistan University---Impact--Petitioners obtained LLB. degrees from Al-Khair University of Azad Jammu and Kashmir campus at Quetta but Balochistan Bar Council declined to enroll them on the ground that the University was not recognized by Pakistan Bar Council---Plea raised by petitioners was that Balochistan University had issued `No Objection Certificate' to the University for establishing its campus at Quetta---Validity---By not allowing petitioners to apply to Bar Council, it amounted to discrimination, because all of them were getting their legal education from Al-Khair University of Quetta before the resolution passed by Pakistan Bar Council---Petitioners were under bonafide impression that the University was duly affiliated by University of Balochistan-It was fault of Al-Khair University on the one hand, by not properly applying to Balochistan University for affiliation and on the other hand Balochistan University was at fault by simply issuing 'No Objection Certificate' for establishment of campus---Though No Objection Certificate was not equivalent to affiliation but still it had an impression on the raw minded students that campus at Quetta was working legally and lawfully---For mistaken act or fault of both the Universities, petitioners who had already got admissions or obtained degrees therefrom before the resolution of Pakistan Bar Council, could not be penalized---High Court, in exercise of Constitutional jurisdiction, directed the Bar Council to entertain applications of petitioners for enrolment---Petition was allowed accordingly.

Shahid Mehmood and others v. Pakistan Bar Council and others PLD 2002 Lah. 67 distinguished.

S.A.M. Qadri, Sabdar Jan, Shimsud-Din for Petitioners (in Constitutional Petition No. 143 of 2003).

Hadi Shakeel Ahmed, Ali Ahmed Kurd and Rauf Atta Standing Counsel for Respondents (in Constitutional Petition No.143 of 2003).

Shamas-ud-Din for Petitioners (in Constitution Petition No. 334 of 2008).

Hadi Shakeel Ahmed Ali Ahmed Kurd and Rauf Atta Standing Counsel for Respondents (in Constitution Petition No.334 of 2008).

Date of hearing: 29th April, 2010.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 3173 #

2010 Y L R 3173

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

GENERAL MANAGER, WTR, PTCL, QUETTA and others---Petitioners

Versus

Messrs DAILY MEEZAN and others through 1-A Muhammad Ali 1-B---

Respondents

Civil Revisions Nos. 15 and 17 of 2004, decided on 7th July, 2010.

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

----S. 81---Specific Relief Act (I of 1877), Ss.42 & 54---Recovery of outstanding dues as land revenue---Notices for---Suit for declaration and permanent injunction--Plaintiff was aggrieved of two notices issued by defendant under S.81 of West Pakistan Land Revenue Act, 1967 whereby the plaintiff was directed to deposit outstanding dues of telephone connection within 15 days---Trial Court decreed suit filed by the plaintiff, but on filing appeal by the defendant against judgment and decree of the Trial Court, Appellate Court, partially allowed appeal and both the plaintiff and defendant filed revision against judgment of the Appellate Court below---Case of the plaintiff was that old telephone number was changed into new number; and. that dues were already paid up-to-date, but notices were illegally issued and his phone was disconnected illegally---Plaintiff though in his plaint and through evidence had tried to establish that nothing was outstanding against him, but documents placed on record had revealed that the plaintiff had made clear admission about outstanding dues and requested for payment in instalments---Plaintiff had further made request for not disconnecting his telephone and also for restoration of the same in his letter---Record had established that the plaintiff was subscriber of both, old and new telephone numbers/connections and that amount in respect of dues was outstanding against him, which was not paid despite undertaking given by him time and again--Plaintiff could not take any adverse plea before the courts, only in order to avoid the amount for which he was surely liable to pay---Plaintiff being the defaulter, was not entitled for any concession---Plaintiff had completely failed to make out any case in his favour, while defendants had established their contention.

Adnan Ijaz for Petitioners (in Civil Revision No. 15 of 2004).

Mian Badar Munir for Respondents (in Civil Revision No. 15 of 2004).

Mian Badar Munir for Petitioners (in Civil Revision No. 17 of 2004).

Adnan Ijaz for Respondents (in Civil Revision No. 17 of 2004).

Date of hearing: 23rd April, 2010.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 3230 #

2010 Y L R 3230

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

SIRAJ AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 68 of 2007, decided on 21st July, 2010.

Penal Code (XLV of 1860)---

----Ss. 302 & 324---West Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Qatl-e-amd, attempt to commit qatl-e-amd and possession of unlicensed arms etc.---Appreciation of evidence---Benefit of doubt---Accused allegedly appeared and confessed before the Police to have committed the murder with the unlicensed dagger and surrendered himself to the Police which registered the present case against him under S.13(e) of the Pakistan Arms Ordinance, 1965---Another F.I.R. nominating the present accused in the same alleged murder had been lodged by the complainant party on the same date---F.I.R. registered on the basis of alleged confession mentioned the time of occurrence at 11.30 p.m. while the F.I.R. lodged by the complainant party alleged that the occurrence took place at 11.30 a.m. on the same date---Contradiction in the F.I.Rs. as to the timing of the occurrence created reasonable doubt and benefit of the same should have gone to the accused---Trial Court did not take into account the relevant facts of the case---Accused was acquitted in circumstances.

Waseem Dumar for Appellant.

Mrs. Sima Jamal for the State.

Date of hearing: 3rd May, 2010.

YLR 2010 QUETTA HIGH COURT BALOCHISTAN 3271 #

2010 Y L R 3271

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

Syed ABDUL JABBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 67 of 2006, decided on 18th August, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---High quantity of narcotic weighing 42 Kgs consisting of 1978 rods and 67 cubes having allegedly been recovered, samples should have been taken from each of the rods and the cubes as per legal requirement in order to sufficiently prove that the whole material was a narcotic drug---Investigating Officer and witnesses of recovery failed to point out the number of rods and cubes from which samples were taken; such rods and cubes were not separated from the rest either---Instead, only small quantity of 100 grams was sent to the Forensic Science Laboratory---Witnesses contradicted each other on several points---Incompetence, negligence and failure of the investigating agency to fulfil the requirement of law damaged the prosecution case and raised reasonable doubt as to recovery of the narcotics from the accused---Benefit of doubt thus would go to the accused---Trial Court failed to appreciate evidence and committed material irregularity which destroyed prosecution's case---Impugned judgment was set aside and accused was acquitted of the charge.

Baz Muhammad Kakar for Appellant.

Malik Zahoor Ahmed Shahwani, P.G. for the State.

Date of hearing: 10th May, 2010.