YLR 2011 Judgments - Pakistan Legal Archive

Courts in this Volume

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

Rana Abid Nazir for Respondent No.1.

Shabbir Ahmad Abbasi, Learned Standing Counsel with Farooq Latif SI, FIA/AHTC, RWP.

YLR 2011 ISLAMABAD 2280 #

2011YLR 2280

[Islamabad]

Before Riaz Ahmad Khan, J

LIAQAT ISLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.11 of 2011, decided on 14th June, 2011.

Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

-----S. 31-Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Penal Code (XLV of 1860), Ss.420 & 109--Cheating abetment----Terminating Inter-national Traffic bypassing PTCL gateway by using Internet Protocol Address---Appreciation of evidence---PTA had received a complaint through PTCL that accused was terminating International Traffic by passing PTCL gateway by using Internet Protocol Address as source---Accused was convicted and sentenced under S.31(3) of Pakistan Telecommunication (Re-organization) Act, 1996---Section 31(5) of Pakistan Telecommunication (Re-organization) Act, 1996 provided that the court would take cognizance only on the complaint by, the Frequency Allocation Board or any officer authorized by the Frequency Allocation Board---In the present case complaint was not lodged by the Frequency Allocation Board or any person authorized by the Board---F.I.R. registered under S.154, Cr.P.C. or challan submitted under S.173, Cr.P.C., could not be equated with the complaint---Cognizance taken by the Trial Court on the Police report and the trial conducted, in circumstances, was not in consonance with the mandatory provision of law and amounted to abuse of the process of the court and thus not maintainable---Judgment of court below was set aside and accused was acquitted of the charge levelled against him and was released, in circumstances.

PLD 1998 Kar. 116; 1993 PCr.LJ 1307; 1993 PCr.LJ 1448 and PLD 2001 Kar. 112 ref.

Ch. Abdul Aziz for Appellant.

Javed Iqbal Butt, Learned Standing Counsel for Respondent.

Date of hearing: 7th June, 2011.

YLR 2011 ISLAMABAD 2294 #

2011 Y L R 2294

[Islamabad]

Before Riaz Ahmad Khan, J

Malik ZAHEER AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.9 of 2011, decided on 21st March, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 528(1-C)---Penal Code (XLV of 1860), Ss.302, '420, 468 & 471---Qatl-e-amd, cheating, forgery, using as genuine a forged document---Powers of Sessions Judge to withdraw case from the court of' Magistrate and to entrust same to the court of Additional Sessions Judge---Scope---Case under S.302, P.P.C. was already pending trial in the court of Additional Sessions Judge, whereas second case regarding subsequently filed F.I.R. under Ss.420, 468 & 471, P.P.C.' was pending trial before the Illaqa Magistrate---Complainant in first F.I.R. regarding murder under S.302, P.P.C., submitted application before the Sessions Judge for consolidation of two cases and trial of two cases by one court---Said application was accepted and case pending before the Illaqa Magistrate was withdrawn and was sent to the court of Additional Sessions Judge for disposal---Validity---Sessions Judge had power to withdraw the case from the court of one Magistrate and transfer same to the court of another Magistrate---Such power was available to the Sessions Judge under S.528(1-C), Cr.P.C. and in exercise of said power, the Sessions Judge, could not withdraw the case from the court of Magistrate; and entrust same to the court of Additional Sessions Judge---If the case was withdrawn from the court of one Magistrate, it could be entrusted to another Magistrate---Order withdrawing case from Magistrate and entrusting same to Additional Sessions Judge, being against the law, was set aside by High Court---Case filed under Ss.420/468/471, P.P.C. was ordered to be withdrawn from the court of Additional Sessions Judge and sent back to the court of Illaqa Magistrate for farther proceedings in accordance with law.

Qazi Adil Aziz for Petitioner.

Raja Muhammad Yasin, Standing Counsel for Respondent No. 1.

Syed Muhammad Ali Bokhari for Respondent No.2.

Date of hearing: 14th March, 2011.

YLR 2011 ISLAMABAD 2897 #

2011 Y L R 2897

[Islamabad]

Before Riaz Ahmed Khan, J

ASIF NAWAZ KHOKHAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.439-B of 2011, decided on 16th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/109/34---Qatl-e-amd---Bail, grant of---Further inquiry---Counsel for accused raised plea of alibi, contending that accused had left for abroad three days prior to date of occurrence when F.LR. was recorded---No hard and fast rule could be made regarding plea of alibi; plea of alibi could not be taken into consideration at bail stage but it was to be dealt with on its own merits, keeping in view the facts and circumstances of each case---No final findings could be given regarding plea of alibi at bail stage, as same would require recording of evidence---Tentative assessment of such plea, could be made, if it was found that accused had succeeded in establishing an opposite version then the case of accused would become one of further inquiry and on that score, accused would become entitled to the concession of bail---Plea of alibi, however, would be finally determined by the Trial Court at trial stage---Passport produced by accused and verified by the prosecution had shown that on the day of incident accused was not present in Pakistan---Prosecution had supported the case of accused, as it was stated at the bar that accused had committed the murder of deceased through hired assassins---No evidence connected accused with the murder of deceased through hired assassins---Contention of counsel for the complainant that the plea of alibi was manipulated one, could not be decided at bail stage, as same would require recording of evidence---Finding regarding plea of alibi of accused would not be final, but at bail stage, it had made the case of accused one of further inquiry, and accused was entitled to concession of bail, in circumstances---If on merits, accused would succeed in making out a case of bail, then abscondance of accused, by itself would not be considered as hindrance in the grant of bail---Accused, was released on bail, in circumstances.

1997 SCMR 1829; 2011 SCMR 161; 1978 SCMR 242; 1987 SCMR 788; 2004 SCMR 283; 2010 PCr.LJ 1386 and 1979 SCMR 101 ref.

1978 SCMR 242; 1975 SCMR 219 and 1997 SCMR 1829 rel.

Ch. Abdul Aziz for Petitioner.

Muhammad Zafar Khokhar for the Complainant.

Rao Abdul Ghaffar, Standing Counsel Bashir S.-I. with record.

YLR 2011 ISLAMABAD 3016 #

2011 Y L R 3016

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

MUHAMMAD SALEEM and another---Plaintiffs

Versus

Messrs M.YOUSAF ADI SALEEM & CO. through Muhammad Yousaf Adil

and 6 others---Respondents

Civil Suit No.22 and C.M. No. 470-S of 2011, decided on 13th July, 2011.

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

----S. 10---Stay of subsequent suit---Scope---Every matter in dispute must directly and substantially be same in two suits.

Muhammad Younas v. Nargis Sultana PLD 1970 Lah. 41; Ghulam Mustafa v. Family Judge/Qazi Kharan and another PLD 1984 Quetta 43; Bashirullah Munshi v. Abdul Bari Bepari and others PLD 1969 Dacca 950; Messrs Nigar Pictures, Karachi v. Messrs United Brothers, Lahore and 6 others PLD 1970 Kar. 770; Syed Alauddin Ahmed v. MDF Mustafa PLD 1971 Dacca 286; Pakistan Industrial Credit and Investment Corporation Ltd., Karachi v. Modern Embroidery and Textile Mills Ltd., Lahore and 6 others PLD 1976 Kar. 249; Habib Bank Ltd. v. Ali Mohtaram Naqvi PLD 1987 Kar. 102; Dr. Haider Ali Mithani and another v. Ishraf Swaleh and others PLD 1999 Kar. 81 and Sakhawat Hossain v. (i) Ch. Muhammad Sarwar, and (2) the National Bank of Pakistan" PLD 1968 Dacca 557 rel.

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

----S. 10---Specific Relict Act (I of 1877), Ss. 42 & 54---Previous suit instituted at place "K" for declaring resolution of Board appointing plaintiff as Chief Executive of partnership firm to be binding on both parties and restraining defendant permanently from posing as partner of firm and interfering in its affairs---Subsequent suit by defendant instituted at place "I" for declaring such resolution to be fabricated/void and restraining plaintiff-Chief Executive from taking any measure on its basis or making interference in business of defendant and for recovery of damages for violating his goodwill---Application by plaintiff-Chief Executive under S.10, C.P.C., for staying proceedings in subsequent suit filed by defendant---Validity---Main controversy in both suits between parties had arisen after passing of such resolution, which was alleged by defendant in his subsequent suit to be fictitious---Dispute involved in previous suit was about appointment of plaintiff as Chief Executive and ousting of defendant from membership of Board---Real issues between parties was about affairs of firm on basis of such resolution of Board that was alleged by plaintiff to be legal, while defendant alleged same to be illegal---Main disputes in both suits were between same parties about the sane subject-matter, thus, issues would also be the same---Both such suits could not' run concurrently---High Court stayed proceedings in subsequent suit in circumstances.

Muhammad Younas v. Nargis Sultana PLD 1970 Lah. 41; Ghulam Mustafa v. Family Judge/Qazi Kharan and another PLD 1984 Quetta 43; Bashirullah Munshi v. Abdul Bari Bepari and others PLD 1969 Dacca 950; Messrs Nigar Pictures, Karachi v. Messrs United Brothers, Lahore and 6 others PLD 1970 Kar. 770; Syed Alauddin Ahmed v. MDF Mustafa PLD 1971 Dacca 286; Pakistan Industrial Credit and Investment Corporation Ltd., Karachi v. Modern Embroidery and Textile Mills Ltd. Lahore and 6 others PLD 1976 Kar. 249; Habib Bank Ltd. v. Ali Mohtaram Naqvi PLD 1987 Kar. 102; Dr. Haider Ali Mithani and another v. Ishraf Swaleh and others PLD 1999 Kar. 81 and Sakhawat Hossain v. (i) Ch. Muhammad Sarwar, and (2) the National Bank of Pakistan" PLD 1968 Dacca 557 rel.

'Raja Zafar Khaliq Khan Advocate Supreme Court for Applicants.

Muhammad Afzal Siddiqui Advocate Supreme' Court, Amjad Hameed Ghauri and Hamid Ahmad for Respon?dents.

Karachi High Court Sindh

YLR 2011 KARACHI HIGH COURT SINDH 4 #

2011 Y L R 4

[Karachi]

Before Muhammad Tasnim, J

PARVEZ ALI---Petitioner

Versus

Mst. ZUBEDA BEGUM and 3 others---Respondents

Constitutional Petition No.S-705 of 2009, decided on 12th October, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199--- Constitutional petition-:- Maintainability--- Scope--- Suit for recovery of dower, dowry articles and maintenance---Suit was decreed by the Trial Court and judgment and decree passed by the Trial Court was upheld by the Appellate Court---Validity---Judgment and decree was passed by the Trial Court strictly in accordance with law after taking into consideration all the material placed on record---Judgment of the Appellate Court was also in line with the material on record---High Court, in its constitutional jurisdiction, could not sit as court qt. appeal on the question of facts and concurrent findings of facts recorded by two courts below could not be disturbed---Counsel for the defendant had failed to point out any jurisdictional defect in the conduct of proceedings or any non-reading or misreading of evidence---Such findings of facts could not be disturbed in constitutional jurisdiction on the round that different view was possible on the same material---Decree passed in favour of the plaintiff had already been executed---Constitutional petition was dismissed.

Illahi Bakhsh Jamali for Petitioner.

Nemo for Respondent No.1.

Agha Athar Hussain Asstt.A.-G. for Respondents Nos. 2 to 4.

Date of hearing: 12th October, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 11 #

2011 Y L R 11

[Karachi]

Before Imam Bux Baloch, J

TOOT and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 29 of 2009, decided on 9th August, 2010.

Penal Code (XLV of 1860)---

----Ss.302 (b)/34---Qatl-e-amd---Benefit of doubt---Appreciation of evidence---Improvement in evidence---Interested witnesses---Trial Court convicted both the accused persons under S. 302(b), P.P.C. and sentenced them to imprisonment for life---Validity---Prosecution had produced interested and hostile witnesses and their evidence suffered exaggerations, discrepancies and contradictions and no independent witness was produced during the trial---Where capital punishment was to be awarded, evidence should come from unimpeachable source which was lacking in the present case---Enmity was admitted fact and it was also admitted fact that police party went to arrest the complainant party in odd hours of night and according to F.I.R. there was exchange of fire between complainant party and police, which fact during the trial was denied by complainant and their witnesses---All such circumstances created a doubt in prosecution case, which benefit was to be extended in favour of accused persons---Prosecution had failed to establish the guilt of accused beyond any shadow of doubt, therefore, accused were entitled to the benefit which was extended in their favour---Conviction and sentence awarded to accused persons was set aside by High Court and they were acquitted of the charge---Appeal was allowed in circumstances.

Tariq Pervaiz v. The State 1995 SCMR 1345; Murad Shah and others v. The State 1991 MLD 887; Muhammad Ilyas v. The State 1997 SCMR 251 and Wazir Muhammad v. The State 1992 SCMR 1134 ref.

Faiz Muhammad Larik for Appellants.

Hafiz Musab Baleegh Dhamrah for the State.

Sarfraz Khan Jatoi for the Complainant.

Date of hearing: 9th August, 2001.

YLR 2011 KARACHI HIGH COURT SINDH 35 #

2011 Y L R 35

[Karachi]

Before Muhammad Tasnim, J

KARIM KHAN---Applicant

Versus

ABDUL FATTAH---Respondent

Civil Revision No. S-19 and C.M.A. No.153 of 2010, decided on 6th October, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & S.12(2)---Summary suit for recovery of amount---Leave to defend suit---Application under S.12(2), C.P.C. for setting aside judgment and decree on basis of fraud---Defendant had filed application for leave to defend suit which was allowed with direction to the defendant to furnish bank guarantee---Order of Trial Court having not been complied with by the defendant, ex parte proceedings were drawn and suit was decreed ex parte---Application filed by the defendant under S.12(2), C.P.C. was allowed and judgment and decree passed by the Trial Court were set aside---Application filed by the defendant under S.12(2), C.P.C. was disposed of by the Trial Court without holding any summary enquiry in the matter---Effect---Trial Court ought to have framed issues and should have afforded an opportunity to the parties to lead their evidence and thereafter recording the evidence of the parties, application under S.12(2), C.P.C. should have been disposed of---Since proper course had not been adopted by the Trial Court, it would be just and fair to set aside the impugned order---Case, however was remanded to the Trial Court to decide application under S.12(2), C.P.C. after framing issues and affording the parties opportunity to lead evidence.

Mushtaque Ahmed Shahani for Applicant.

Hazoor Bakhsh Metlo for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 50 #

2011 Y L R 50

[Karachi]

Before Tufail H. Ebrahim, J

SHAKIR NAWAZ CHAUDHRY---Applicant

Versus

SARFARAZ KHAN and others---Respondents

Criminal Miscellaneous Applications Nos.195, 196 of 2010, decided on 29th September 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.337-A(iv) & 337-A(i)---Shajjah-i-Munaggilah, Shajjah-i-Khafifah---Pre-arrest bail, cancellation of---Trial Court had cancelled pre-arrest bail of the accused---High Court also declined the bail---Accused subsequently obtained bail from Trial Court suppressing the fact that the pre-arrest bail had been dismissed by the High Court---Complainant filed application for cancellation of bail---Validity---Accused having concealed the C refusal of bail from High Court, could not be reckoned to have come to the court with clean hands---Accused, therefore, were not entitled to the benefit of bail notwithstanding the fact that they might have a prima facie case for grant of bail on merits---Bails of accused were cancelled with direction to surrender before the Trial Court wherein they could file fresh bail applications disclosing all material facts in accordance with law.

Shandat Ali v. Mubarik Shah and another PLD 1987 SC 347; Nazir alia Jeera v. The State PLD 1981 SC 240; Amir Khan v. The State 1970 SCMR 789; Muhammad Hayat v. The State 2002 YLR 2733; Mst. Surrya Bibi v. Muhammad Mansha and another 2008 SCMR 558; Ghulam Hussain v. Karim Bakhsh and others 1987 PCr.LJ 852; 2006 YLR 3123; 1996 PCr.LJ 207; 2007 YLR 252; 2007 YLR 254; 1970 SCMR 786; 2004 PCr.LJ 996; PLD 2009 SC 707; 2005 MLD 1613; 2005 MLD 1615; 2008 SCMR 1448 and 2008 SCMR 1451 ref.

Jawaid Haider Kazmi for Applicant.

Ghulam Nabi Shaikh for Respondents.

Muhammad Iqbal Awan, Assistant Prosecutor-General, Sindh.

YLR 2011 KARACHI HIGH COURT SINDH 70 #

2011 Y L R 70

[Karachi]

Before Faisal Arab and Muhammad Tasnim, JJ

Miss ROZEENA and 8 others---Petitioners

Versus

SHAH ABDUL LATIF UNIVERSITY KHAIRPUR and 4 others ---Respondents

Constitutional Petition No. D-1799 and C.M.A. No. 4827 of 2010, decided on 8th October, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Appointment as Lecturer and award of scholarship---Petitioners in their constitutional petition had challenged offer/letter whereby award of scholarship and office order for appointment as Lecturers in BPS-18 had been kept in abeyance until further order---Case of the petitioners was that the University introduced a project for sending petitioners abroad on scholarship for obtaining the Ph.D. degree in different disciplines---Petitioners after going through the selection process and interview, were finally selected as scholars on the said project---Everything was going smooth, but all of a sudden petitioners vide impugned letter were informed that Planning Commission had not allocated funds for the project---Validity---Counsel for the petitioners had submitted that he would be satisfied if the petition be disposed of by directing the university that as and when adequate funds were received by the university for the project, petitioners' case would be proceeded in accordance with law---University was directed accordingly by the High Court.

Mukhesh Kumar G. Karara for Petitioners.

Abdul Qayum Shaikh along with Habibullah Director (P&D) and Wahid Bux Mallah, Director, Finance, Shah Abdul Latif University, Kahairpur for Respondents.

YLR 2011 KARACHI HIGH COURT SINDH 75 #

2011 Y L R 75

[Karachi]

Before Tufail H. Ebrhim, J

LAEEQ AHMED-Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.208 of 2010, decided on 21st September, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal 'Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Additional Sessions Judge confirmed pre-arrest bail but enhanced the surety amount from Rs.100,000 to 30,00,000-Accused sought reduction of surety amount---Validity---In bail matters relating to S.489-F, P.P.C., if Trial Court came to the conclusion that the accused was entitled to the grant of bail, surety amount should not have been equivalent to the amount of dishonoured cheque; the same should have been reasonable and in accordance with the facts and circumstances of each case so that the object of granting bail was not defeated---Even in matters of negotiable instruments under O.XXXVII, C.P.C. and Financial Institutions (Recovery of Finances) Ordinance, 2001, courts had discretion either to dismiss or grant leave to defend with or without surety/security considering nature and facts of the case---Accused was not in financial position to furnish the enhanced surety amount; being a respectable citizen and a former Olympian, he was not likely to abscond---Very object of granting bail could not be defeated by making the accused suffer unnecessarily for condition beyond his control---Surety amount was reduced from Rs.30,00,000 to Rs.750,000---Application was allowed, accordingly.

Ali Hakimuddin Ghulam Ali Mandviwala v. The State 2009 MLD 1189 distinguished.

Muhammad Naseeruddin for Applicant.

Ms. Rahat Ahsan, D.P.G. for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 105 #

2011 YLR 105

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

SHER DIL KHOSO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 195 of 2008, decided on 25th September, 2010.

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

----S.164---Extra judicial confession---Nature and scope of admissibility.

PLD 1951 FC 107 ref.

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

----Ss. 409, 467 & 477-A---Prevention of Corruption Act (II of 1947), S.5(2)---Qanun-e-Shahadat (10 of 1984), Art.102---Criminal breach of trust by public servant or by banker, merchant or agent, forgery of valuable security, will etc., and falsification of accounts---Appreciation of evidence---Documentary and oral evidence--- Preference--- Extra judicial confession, reliance on---Principle---Accused was an employee of bank and he had made extra judicial confession regarding the offence---Trial Court convicted and sentenced the accused under sections 409, 467 and 477-A P.P.C.---Validity-Mere word of mouth being a piece of ocular evidence in presence of documentary evidence i.e. cheque and such other documents establishing that the cheque was lodged and dishonoured, which documentary evidence was not produced in view of provisions contained in Art. 102 of Qanun-e-Shahadat, 1984, the same could not be relied upon---No explanation was provided by any of the witnesses as to why the cheque in question and other documents establishing lodgment of cheque and its dishonoring were not or could not have been produced---Extrajudicial confession could not be relied upon as it was uncorroborated by easily available documentary evidence and in presence of availability of documentary evidence which should have been naturally available and which was not produced, oral evidence could not be relied upon---If an employee of bank while comparing signatures with specimen signature card committed an error or with gross negligence passed a document or verified a signature it might be misconduct under the rules of the Organization for which employer might be justified in taking disciplinary action or imposing penalty on committing of such misconduct or negligence---Such verifying of signatures .could not be held to have established that employee had cheated a customer of the bank or had committed an offence---Prosecution failed to prove its case against accused, therefore, conviction and sentence awarded to him by Trial Court was set aside and he was acquitted of the charge---Appeal was allowed in circumstances.

Mst. Saima Sobia v. State and Zaheer Ahmed Abbasi v. State (Special Criminal A.T.A. No.12 of 2007; Special Criminal A.T.A. No.13 of 2007); Tahir Javed v. The State 2009 SCMR 166; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Ziaul Rehman v. The State 2001 SCMR 1405; Tayyab Hussain Shah v. The State 2000 SCMR 683; Sarfraz Khan v. The State and others 1996 SCMR 188; Muhammad Kamran and another v. The State 2003 SCMR 1070 and Wazir Muhammad and another v. State 2005 SCMR 277 rel.

----Benefit of doubt---Scope---Benefit of doubt if any whether caused by the conduct or by hyper efficiency of accused or otherwise must go to the person being tried and prosecution cannot be allowed to take advantage of such doubt---Doubt aids the defence and mars the prosecution.

A.Q. Halepota and Muhammad Saleem Mangrio for Appellant.

Umar Hayat Sindhu, D.A.-G. for Respondent.

Dates of hearing: 22nd, 26th and 27th July, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 127 #

2011 YLR 127

[Karachi]

Before Muhammad Tasnim, J

NAWAB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-686 and M.As. Nos. 2858, 2859 of 2010, decided on 9th September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Shocking and scandalous delay in trial---Accused was admitted to bail with direction to Trial Court to conclude trial at the earliest.

Ghulam Abbas alias Abasi and others v. The State PLD 2005 Kar. 255; Gul Beg alias Nangi v. The State 2005 PCr.LJ 147 and Aarab alias Katoo v. The State 2005 PCr.LJ 555 rel.

Ali Muhammad and another v. The State (2009 PCr.LJ 521 ref.

Muhammad Nawaz alias Deno and another v. The State 2003 MLD 79 distinguished.

Maqbool Ahmed Awan for Applicant.

Sardar Ali Shah Assistant Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 144 #

2011 Y L R 144

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

SAEEDULLAH SOOMRO---Appellant

Versus

THE STATE---Respondent

Criminal Accountability Appeal No.51 of 2001, decided on 31st August, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(v), 10 & 14(c)---Corruption and corrupt practices--Appreciation of evidence---Burden of proof---Accused was a public servant and properties acquired by him were disproportionate to his salary and emoluments which were not sufficient for purchase of said properties--Ingredients of the offence were proved---Burden lay on the accused to explain satisfactorily the acquisition of properties disproportionate to his income under S.14(c) of the National Accountability Ordinance, 1999---Accused was bound to prove beyond shadow of doubt that he had acquired the properties through known source and legitimate means---Accused I declared the value of the acquired properties below the prevailing market price in order to bring the value of the same in line with his known source of income which was not sufficient for buying the properties in question---Prosecution had proved its case against the accused beyond reasonable doubt---Presumption of involvement of the accused in corrupt practices was fully attracted in the case---Findings of the Trial Court were upheld; accused was ordered to serve the remaining sentence while properties found to be acquired by unlawful means were forfeited---Appeal was disposed of accordingly.

Jameel Akhtar Kiyani and another v. The State 2006 PCr.LJ 1409; 2007 MLD 910; Abdul Aziz Memon v. The State 2003 YLR 617; Iqbal Ahmed Turabi and 2 others v. The State MLD 2004 77; Chaudhary Aamir Ali v. The State 2002 YLR 1902 and Hakimali Zardari v. The State 2007 MLD 910 rel.

Muhammad Ashraf Kazi for Appellant.

Muhammad Riaz, Senior Prosecutor NAB for Respondent.

Dates of hearing: 19th, 20th, 29th and 30th July, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 158 #

2011 Y L R 158

[Karachi]

Before Shahid Anwar Bajwa, J

Syed MUHAMMAD ARSALAN FAIZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1203 of 2009, decided on 23rd November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409/420---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, cheating and embezzlement---Bail, refusal of---Accused was granted leave and in his absence allegation of embezzlement was levelled against him---Accused instead of coming back and joining service and clearing his name in domestic proceedings, submitted his resignation---Offence against accused fell under prohibitory clause of S.497, Cr.P.C. and conduct of accused in taking leave and then remaining absent, would not go in his favour---Bail application of accused was dismissed, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Abid Khan v. The State 2005 PCr.LJ 985; Nadeem Asghar Kaira v. The State 2006 YLR 164 and Muhammad Waqas v. The State 2002 SCMR 1370 ref.

Sathi M. Ishaq for Applicant.

Ms. Syed Ahmed Ali Shah, D.P.G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 167 #

2011 Y L R 167

[Karachi]

Before Irfan Saadat Khan, J

Messrs UNITED PAPER BOARD AND CONE INDUSTRIES through Partner---Plaintiff

Versus

SINDH INDUSTRIAL TRADING ESTATE LTD.---Defendant

Suit No. 1134 of 2007, decided on 6th September, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42, 12 & 54---Civil Procedure Code (V of 1908), O.XXXIX, R.1---Suit for declaration, specific performance, cancellation of documents and injunction--Plaintiff was allotted a plot of land on lease by the defendant, Sindh Industrial and Trading Estate---Plaintiff asserted that he witnessed some persons taking measurements on the suit plot and on his inquiry, said persons claimed that they had been allotted the suit plot---Plaintiff contended that cloud had been cast over his title and right to enjoy the property by intrusion of said persons---Validity---No averment of the plaintiff alleged that the defendant had declined to execute lease in his favour---Nothing on record showed that the defendant had executed any lease of said plot in favour of any other person---Plaintiff was supposed to approach the defendant for confirmation as to allotment of suit plot to any other person---Plaintiff filed suit on mere apprehension---Said persons never appeared again; they might well have mistaken the suit plot for their own---Civil suit could only be filed for restoration/restitution/recovery of individual right or redressal of individual wrong---Plaintiff sought cancellation of documents but Court could not pass a decree cancelling documents which did not exist---No specific document was mentioned in the plaint either---Prayers made in the plaint had no nexus with plaintiff's averments--Prayer clauses were not in conformity with the averments---Suit was dismissed for being without merits.

Abdul Muqtadir Khan for Plaintiff.

Nemo for the Defendant.

Date of hearing: 31st August, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 172 #

2011 Y L R 172

[Karachi]

Before Tufail H. Ebrahim, J

NOOR REHMAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.675 of 2010, decided on 20th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14 & 15---Possession of narcotic drugs etc., aiding, abetting or association in narcotic offences---Bail, refusal of---Accused were arrested red handed with huge quantity of heroin and charas---Reasonable explanation for non-availability of private mashirs during recovery proceedings was given---No reason for mala fide on the part of Police for implicating the accused was given either---Report of the Chemical Examiner was positive---No case of further inquiry within the meaning of S.497(2), Cr. P. C. was made out---Accused were alleged to have been involved in heinous crime, were not entitled to bail---Petition was dismissed.

1997 SCMR 543; PLD 2005 Pesh. 81; PLD 2009 Lah. 362; 2009 PCr.LJ 1334; 2009 PCr.LJ 523; 2010 PCr.LJ 567; The State v. Abdul Ghani 2010 SCMR 61 ref.

2000 SCMR 1837; 2003 SCMR 573 and The State v. Abdul Ghani 2010 SCMR 61 fol.

Azizullah Khan Shumali for Applicants.

Ms. Abida Parveen Channar, S.P.P. (ANF) for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 182 #

2011 Y L R 182

[Karachi]

Before Irfan Saadat Khan, J

UMAIR AHMED---Appellant

Versus

MUHAMMAD JAMEEL---Respondent

F.R.A. No.4 of 2010, decided on 29th October, 2010.

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

----Ss. 17(4)(b) & 21---Ejectment of tenant---Bona fide personal need of landlord---If a landlord was having a number of shops, it was for the landlord to decide as to which shop he wanted to occupy---No bar or restriction in that regard could be imposed on the landlord not to get vacation of anyone of his shops of his own choice where he wanted to conduct his business---In the present case landlord who was an old person, required shop in dispute for his own personal bona fide use---Counsel for the tenant was not able to demonstrate the apprehension that said shop would either be let out to some other person or the said shop could not be used other than for his own personal bona fide use---Even counsel for the landlord assured that shop was not needed either for subletting the same on enhanced rent or was an. attempt to extract enhanced rent from the tenant or to exert pressure on the tenant to indulge with landlord for entering into a new rent agreement for enhancement of rent---Landlord had been successful in demonstrating before the Rent Controller that shop in question was required by him for his personal bona fide use---Order passed by the Rent Controller whereby tenant was ordered to vacate shop in question was affirmed by High Court, in circumstances.

1997 MLD 560; 1998 CLC 937; 1983 CLC 2511; 1982 CLC 1847; Sardar Muhammad Yaqoob v. Muhammad Saleem 2000 CLC 274 and PLD 2002 Lah. 267 ref.

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

----S. 17(4)(b)---Ejectment of tenant--Bona fide personal use of landlord--- "Own use"---Scope---Term "own use" as appearing, in S.17(4)(b) of Cantonments Rent Restriction Act, 1963, was wide enough to embrace therein the need of a shop for own business use---Said terminology could not be given a restricted meaning---Landlord had prerogative to choose the premises where he wanted to conduct his business; and if the landlord had duly acquitted himself by stating on oath that his requirement of the said premises was in good faith, the landlord had to be deemed to have discharged his 'burden, even if the landlord was having some other property.

Tarique Masood v. Maroo Ali Shah 1999 YLR 394; S.M. Nooruddin and others v. SAGA Printers 1998 SCMR 2119 and Muhammad Yousif v. Shahida Khatoon 1994 CLC 240 ref.

S.M. Imran Ahmed for Appellant.

Rafique Ahmed for Respondent.

Date of hearing: 22nd October, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 188 #

2011 Y L R 188

[Karachi]

Before Muhammad Tasnim, J

UBEDULLAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail A. No.S-6 of 2009, decided on 6th October, 2010.

Penal Code (XLV of 1860)---

----S. 215---Taking gift to help to recover stolen property---Appreciation of evidence---Delay in F.I.R. was not explained---F.I.R. did not mention date of occurrence and time and place of alleged payment to the accused---Discrepancies in testimonies of witnesses made prosecution case highly doubtful---Prosecution failed to prove its case beyond shadow of doubt---Conviction and sentence of the accused was set aside.

Syed Jaffar Ali Shah for Appellants.

Syed Sardar Ali Shah Rizvi, A.P.G. for Respondent.

Date of hearing: 6th October, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 202 #

2011 Y L R 202

[Karachi]

Before Irfan Saadat Khan, J

SAIFULLAH KHAN and others---Plaintiffs

Versus

KARACHI CUSTOMS AGENTS ASSOCIATION and others---Defendants

Suit No. 1190 of 2009, decided on 22nd September, 2010.

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

----S.17---Qanun-e-Shahadat (10 of 1984), Art. 114---Arbitration, consent to---Principle of estoppel---Applicability---Principle of estoppel and acquiescence is applicable with full force to which parties have consented to arbitrate and participate in proceedings before Arbitrator.

(b) Arbitration---

----Award---Duty of Court---Scope---Law leans in favour of upholding award and not vitiating the same, when a party having submitted to the jurisdiction of arbitration.

----Ss.14, 17 & 30---Sindh Chief Court Rules (OS), Rr. 282 & 283---Award---Objections---Matter was referred to sole arbitrator, with the consent of parties and arbitrator filed award for making the same as rule of the Court---Defendant objected to award on the ground that he was not given opportunity of hearing---Validity---Defendant had fully participated in proceedings and had specifically mentioned in the objections that his averments had duly been incorporated by the Arbitrator in his Award---Having allowed to deal with the matter, defendant was estopped and acquiesced with the matter of objecting to the same on the ground that he was either not heard or not given sufficient opportunity to present his case-High Court found the objections filed by defendant as frivolous and contrary to record---No error was apparent as alleged by defendant calling interference by High Court---Valid award had binding force and such award was to be made rule of the Court---Award was made rule of the Court.

PLD 2004 Lah. 404 and 2001 CLC 289 rel.

Plaintiff No.5 in person.

Nemo for the Defendants.

Date of hearing: 16th September, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 212 #

2011 Y L R 212

[Karachi]

Before Muhammad Tasnim, J

WAHID BUX and another---Applicants

Versus

THE STATE---Respondents

Criminal Bail Application No. 557 of 2010, decided on 6th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.354-A & 353---Assault or use of criminal force to woman and stripping her off her clothes, assault or criminal force to deter public servant from discharge of his duty---Bail, grant of---Further inquiry---Provisions of S.354-A, P.P.C. would be attracted where victim was stripped off her clothes and was exposed to public view in that condition---Facts alleged in the F.I.R. did not constitute the offence under S.354-A, P.P.C.---Case of accused required further inquiry---Bail was granted.

Gulzar alias Gulzar Ahmed v. The State 2003 PCr.LJ 727; Karam Dad and another v. The State and another PLD 2008 Lah. 308 and Abida Jabeen v. Imtiaz Ahmad and others 1997 PCr.LJ 600 rel.

Zulfiqar and others v. The State 1996 PCr.LJ 620 distinguished.

Zulifqar Ali Sangi for Applicant.

Mrs. Rana Shah for the Complainant.

Syed Sardar Ali Shah, Assistant Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 246 #

2011 Y L R 246

[Karachi]

Before Gulzar Ahmed and Salman Hamid, JJ

CITIZEN COOPERATIVE HOUSING SOCIETY LTD. through Chairman---Petitioner

Versus

AGHA TAJ MUHAMMAD ACADEMY through Present Secretary and 2 others---Respondents

Constitutional Petition No. D-87 of 2005, decided on 31st August, 2010.

(a) Cooperative Societies Act (VII of 1925)---

----Ss.3 (c), 17-B, 54 & 64-A---Transfer of Property Act (IV of 1882), S.54---Constitution of Pakistan, Art. 199---Constitutional petition---Membership of society---Entitlement---Respondent Academy purchased plot in question from member of the society and paid entire sale consideration but petitioner society declined to give membership to respondent Academy---Concerned Minister of Provincial Government, in exercise of powers under S. 64-A of Cooperative Societies Act, 1925, directed the petitioner society to give membership to respondent Academy---Validity---For transfer of ownership of plot and its allotment, petitioner society had received from respondent Academy full price---Respondent Academy passed the test of S.54 of Transfer of Property Act, 1882, and had become entitled to be admitted as member of society in terms of the provisions of S. 17-B of Cooperative Societies Act, 1925, as it essentially stipulated that when an interest in immovable property in society was transferred in favour of any other person then that person, subject to rules, be admitted as member---Petitioner society instead of accommodating the respondent academy after receipt of entire sale consideration of land in question remained on the offensive to cover up their own wrong doings---Society remained unreasonable and unjust, therefore, could not claim any benefit by' way of filing present proceedings---Courts were to protect interest of parties rather than to destroy same---Respondent Academy became member of petitioner society and order passed by the Minister under S. 64-A of Cooperative Societies Act, 1925, required no interference of High Court and the same could not be declared illegal or unwarranted in law---Order passed by the Minister was to put right a wrong and the same must sustain---Petition was dismissed in circumstances.

Lahore Cantt. Co-operative Society v. Muhammad Asif 1998 MLD 1850; Azizuddin Ahmed v. Aziz Ahmed and others PLD 1955 (W.P) Kar. 497 and Siraj Muhammad v. Pir Illahi But Cooperative Society and others PLD 1956 Sindh 1995 distinguished.

(b) Cooperative Societies Act (VII of 1925)---

----S.64-A---Expression "if in any case" in S.64-A Co-operative Societies Act, 1925---Scope---Provincial Government---Powers---Bar of membership---Provincial Government has vast powers to keep vigil over the acts of Society and put at right any wrong committed by that society and bar of membership is not attracted in order to make an application before it as the provisions of S.64-A of Cooperative Societies Act, 1925, are general in nature for the benefit of all as S. 64-A starts with "if in any case" covers all sorts of cases.

Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304; Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907 ref.

Kishanchand for Petitioner.

Jhamat Jethanand for Respondent No.1.

Mumtaz Alam Leghari, A.A.-G., for Respondent Nos. 2 and 3.

Date of hearing: 10th August, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 255 #

2011 Y L R 255

[Karachi]

Before Salman Hamid, J

NASIR ALI JATT---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. S-314 of 2010, decided on 16th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.420, 379 & 506(2)---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.2(d)---Cheating, theft, criminal intimidation---Scheduled offence---Referring case to Special Court---Quashing of order, application for---Magistrate referred case to Special Court on the ground that offence against accused under S.420, P.P.C., was a scheduled offence, exclusively triable by Special Court---Applicant/accused had assailed the order passed by the Magistrate in his application filed under S.561-A, Cr.P.C. on the ground that Magistrate had passed the impugned order by misconstruing the law---Magistrate had straightaway come to the conclusion that case fell within the meaning of S.2(d) of Offences in Respect of Banks (Special Court) Ordinance, 1984, without appreciating the fact that in order to bring the offence within the meaning of said section, it was incumbent upon him to examine whether the scheduled offence was committed in respect or in connection with the business of the bank---In the present case it had clearly come on record that at the best case of the complainant was against an other person in respect of the alleged violation of the terms and conditions of the agreement and/or cheating in respect thereof wherein the property of the complainant, which was mortgaged with the bank, was mentioned to be sold by the complainant in favour of said person towards the satisfaction of the loan liability of the bank---Offence with which accused was charged, did not fall within the meaning of S.2(d) of Offences in Respect of Bank (Special Courts) Ordinance, 1989, as neither it was in respect nor in connection with the business of the bank---Application was granted and Magistrate concerned was directed to proceed further into the matter.

Noorul Haq Qureshi for Applicant.

Shahid Ahmed Shaikh, Assistant Prosecutor-General, Sindh along with A.S.-I. Shaukat Ali, Police Station Tando Adam for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 268 #

2011 Y L R 268

[Karachi]

Before Amir Hani Muslim and Syed Hasan Azhar Rizvi, JJ

DOST MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 101 of 2009, decided on 21st September, 2010.

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

----S.28---Complainant as investigating officer---Scope---Held, there was no bar in law which restricted the Investigating Officer and Seizing Officer from acting as complainant.

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

----Ss. 9(c) & 25---Appreciation of evidence---Sentence, reduction in---Possession of narcotics---Officials as recovery witnesses---Failure to return wrappers of samples---Ailment of accused---Reduction in sentence---Accused was arrested during raid and 58 kilograms of Chars in a packing of one kilogram each was recovered from his possession--Investigating officer took 10 grams from each packet as sample and sent the same for chemical examination---Accused was convicted and sentenced for life imprisonment---Plea raised by accused was that no public witness was associated at the time of recovery and wrappers in which samples were packed were not returned by Chemical Examiner---Validity---Nobody was available at the spot at the time of arrest and recovery from accused---Investigating officer had rightly made Masheers from the members of raiding parties---Once it had been mentioned in Chemical Examiner's report that samples were consumed during test, the wrappers containing samples, being empty, were not required to be sent back by Chemical Examiner---Presence of accused on motorcycle along with sack of 58 bags each containing one kilogram of Chars and apprehension by Anti Narcotic Force officials was not denied specifically by. accused---Accused, in his statement under S. 342, Cr.P.C., had stated that Chars was not his property and had been foisted upon him by police---Prosecution proved the guilt of accused beyond reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence---High Court did not find any illegality or infirmity in the judgment passed by Trial Court warranting interference in appeal---Accused was diabetic which resulted in amputation of his right leg, therefore, keeping in view the ailment of accused High Court reduced quantum of sentence from life imprisonment to that of 20 years---Appeal was disposed of accordingly.

2003 SBLR Sindh 1082; 2004 MLD 542; 2008 YLR 985 and 2007 YLR Kar. 3087 distinguished.

2008 PCr.LJ 146; 2006 YLR 378; 2007 PCr.LJ. 269; 2005 MLD 1949; 2003 SCMR 1237; 2007 PCr.LJ .1237 and 2007 PCr.LJ 1515 ref.

M.R. Syed for Appellant.

Syed Ashfaq Hussain Rizvi Special Public Prosecutor, ANF for Respondent.

Date of hearing: 15th September, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 277 #

2011 Y L R 277

[Karachi]

Before Muhammad Ali Mazhar, J

IQBAL M. HAMZAH---Plaintiff

Versus

GILLETTE PAKISTAN LTD.--- Defendants

Suit No. 308 of 2007, decided on 17th September, 2010.

Civil Procedure Code (V of 1908)---

----O.XXVI, R.1---Recording of evidence--Local Commissioner--- Principle---Expeditious disposal of case---Procedural technicalities---Scope---Defendant objected recording of evidence through Local Commissioner on the ground that suit involved intricate details and other legal issues---Validity---Defendant had no lucid justification to oppose the application as taking steps for early decision in the matter and recording evidence on Commission to save time of parties could not be termed to be erroneous or an act against principle of natural justice---It was in the interest of both the parties if they would have come out of litigation as early as possible---All technicalities had to be avoided unless it was essential to comply with them on the grounds of public policy---English system of administration of justice on which system in Pakistan was based might be to certain extent technical but defects from that system should not be taken--Any system which by giving effect to the form and not to the substance had defeated substantive rights, was defective to that extent---Ideal was always a system that had given to every person what was his---Plaintiff was ready to bear expenses of Commission and no prejudice would be caused to defendant---High Court allowed recording of evidence before Local Commissioner---Application was allowed in circumstances.

Khawaja Feroz v. Muhammad Dawood and others PLD 2008 Kar. 239; Mrs. Badar Rahim v. Hammad Asif Dosslani and another 2009 CLC 459; Archibald Campbell Mackillop v. Tobacco Manufacturers (India) Ltd. PLD 1951 Sindh 22; Gul Hasan v. Mst. Fatima PLD 1961 (W.P.) Pesh. 36; Babu Gulab Rai Ghutghutia v. Babu Mahendra Nath Sreemani AIR 1935 Patna 220; Thiagaraja Mudaliar v. Vedathanni AIR 1933 Madras 48 and Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 rel.

Arshad Tayebally for Plaintiff.

Khawaja Mansoor the Defendant.

YLR 2011 KARACHI HIGH COURT SINDH 298 #

2011 Y L R 298

[Karachi]

Before Abdul Hadi Khoso, J

MUHAMMAD RAHEEM and 8 others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.S-507 and M.A. No.3172 of 2009, decided on 16th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 324, 114, 120-B, 147, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd and criminal conspiracy---Quashing of order---Application for---Two rival F.I.Rs. were lodged, one by the complainant and other by accused---Magistrate concerned in the impugned order observed that as prosecution witnesses in the case of the complainant had given incriminating evidence against accused persons shown in the F.I.R. and offence being exclusively triable by the Court of Session, let the final report be sent to District Judge concerned---No justification was available to interfere with impugned order passed by the Magistrate as he had exercised his jurisdiction, discretion and had taken the cognizance for which he was fully competent---Trial Court was to decide that which set of accused was guilty and who were innocent which would be decided after conducting trial on merits---Application for quashment was dismissed.

2004 PCr.LJ 1023; 2002 SCMR 63 and PLD 1967 SC 425 ref.

Ishrat Ali Lohar for Applicants.

M. Iqbal Kalhoro, A.P.G.

Ghulamullah chang for the Complainant.

YLR 2011 KARACHI HIGH COURT SINDH 317 #

2011 Y L R 317

[Karachi]

Before Irfan Saadat Khan, J

MUHAMMAD ATHER HAFEEZ KHAN---Plaintiff

Versus

Messrs SSANGYONG AND USMANI JV---Defendant

Suits Nos. 305 and 200 of 2010, decided on 17th September, 2010.

Arbitration Act (X of 1940)---

----S.20---Arbitrator, appointment of---Plaintiff sought appointment of arbitrator as there was arbitration clause available in the agreement between parties---Validity---Parties were ad idem with reference to essential terms of contract with regard to referring dispute/disputes, which might not be resolved mutually, to arbitration---High Court directed the parties to submit names of their chosen arbitrators so that the matter could be referred to any one of them---High Court directed the defendant to file its claim before arbitrator---Suit was disposed of accordingly.

2003 YLR 1109; 1997 CLC 1177; 1989 MLD 1144 and Hitachi Ltd. v. Rupali Polyester 1998 SC 721 distinguished.

Mansoorul Arfin for Plaintiff.

Bilal A. Khawaja for Defendant.

YLR 2011 KARACHI HIGH COURT SINDH 329 #

2011 YLR 329

[Karachi]

Before Muhammad Tasnim, J

YOUSIF KHAN---Applicant

Versus

THE STATE-Respondent

Criminal Bail Application No. S-459 of 2010, decided on 16th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)---Possession of narcotics---Bail, grant of---Further inquiry---Uncertainty had arisen as to whether clause (b) or clause (c) of S.9 of the Control of Narcotic Substances Act, 1997 was attracted in the case---Recovery of considerable sum of money from accused did not imply that the money was sale proceeds of charas---Discrepancy In the Chemical Examiner's report necessitated further inquiry in terms of S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Ghulam Murtaza v. The State PLD 2009 Lah. 362; Dilabaz Khan v. The State 2008 PCr.LJ 1437 and Noor Ali Khan v. The State 2003 MLD 1637 ref.

Ibrar v. The State 2008 PCr.LJ 1449 and Noor Ali Khan v. The State 2003 MLD 1637 rel.

Muhammad Ishaque v. The State 2007 YLR 1026; Sucha Gul v. The State 2000 PCr.LJ 945; Muhammad Razzaque v. The State 2006 YLR 1833 and Muhammad Ishaque v. The State 2002 PCr.LJ 746 distinguished.

Ghulam Murtaza Korai for Applicant.

Faizullah Korai, SPP for the State.

YLR 2011 KARACHI HIGH COURT SINDH 350 #

2011 Y L R 350

[Karachi]

Before Salman Hamid, J

ZAHID HUSSAIN---Petitioner

Versus

Mst. MEHMOODA---Respondent

Constitutional Petition Nos. S-1351 and M.As Nos. 6105, 6106, 6107 of 2010, decided on 5th August, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199--Constitutional petition--Suit for maintenance of wife and minor daughter---Trial Court decreed the suit allowing the past and future maintenance--Appellate Court upheld the judgment of Trial Court---Validity---Plaintiff had ousted his wife at advance stage of her pregnancy and did not bear expenses incurred on the birth of his daughter---He who sought equity must do equity---Plaintiff forsook his wife and forced her to live with her parents---Grant of past maintenance was not against the Injunctions of Islam---Judgments of the courts below warranted no interference of the High Court which should exercise discretionary powers with caution especially when the party seeking relief had not come with clean hands---Petition was dismissed in circumstances.

Muhammad Shareef v. Additional District Judge and others, 2007 SCMR 49 fol.

None present.

YLR 2011 KARACHI HIGH COURT SINDH 355 #

2011 Y L R 355

[Karachi]

Before Bhajandas Tajwani, J

EHSANULLAH KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 723 of 2010, decided on 28th August, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/435--Qanun-e-Shahadat (10 of 1984), Arts.16 & 34---Qatl-e-amd and mischief---Bail, grant of---Further inquiry---Confession---Only evidence in case was in shape of confession of the accomplice, which was inconsistent with her earlier stand; and no corroboration was available of said confession, recorded after a delay of about 2-1/2 years---Such confession of accomplice, without any corroboration, would not be sufficient to record conviction in the matter---Extra judicial confession, otherwise was a weak type of evidence and on the basis of such evidence, there were hardly any chances that same would help the case of prosecution---In the present case it was yet to be determined by the trial Court after recording evidence that accomplice, who had been changing her statements, version and making inconsistent statements, could be termed as trustworthy witness; or conviction could be based on her sole statement---Case of accused needing probe/inquiry, he was admitted to bail, in circumstances.

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

----Art. 34---Confession, use of---Confession of accused admitting the guilt of commission of offence could only be used against that accused and not against the co-accused---Under Art.34 of Qanun-e-Shahadat, 1984 an admission could be proved by or on behalf of a person making it and not against any other person.

Messrs Syed Mehmood Alam Rizvi and Muhammad Amin Lakhani for Applicant.

Kashif Hanif for the Complainant.

Imtiaz Ali Jalbani APG for the State.

YLR 2011 KARACHI HIGH COURT SINDH 366 #

2011 Y L R 366

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

MUHAMMAD SHAHID---Petitioner

Versus

STATION HOUSE OFFICER (PS Preedy) and others---Respondents

C.P. No.D-787 of 2010, decided on 4th May, 2010.

(a) Constitution of Pakistan---

----Art. 199--Constitutional petition---Petitioner had sought declaration to the effect that presentation of cheques by the respondents before the Bank, was mala fide and in violative of order passed in civil suit---High Court in exercise of constitutional jurisdiction could not grant declaration of a nature, when subject matter of relief sought by the petitioner, was already subject matter of suit---In order to grant such a relief, which was based on question of facts, a finding could not be given without 'recording evidence of the parties, which could not be done in constitutional jurisdiction of High Court.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.154---Constitutional petition---Registration of criminal case---Petitioner had prayed that S.H.O. concerned be directed not to register F.I.R. on the basis of cheques in question; and that if registered, the petitioner should not be arrested till final decision of the petition---Relief sought by the petitioner, was not warranted in law as no restraining order could be passed against a party from approaching a forum for redressal of its grievance---Section 154, Cr.P.C. provided that any party could approach the Incharge of a Police Station, get his statement recorded, the contents of which disclosed cognizable offence, the In charge of Police Station would be bound to reduce same in writing and register the case---Relief sought by the petitioner could not be granted, in circumstances.

----Art. 199---Criminal Procedure Code (V of 1898), 5.498-A---Constitutional petition---Bail before arrest---Petitioner had prayed that necessary bail be granted to him---No occasion existed to grant bail to the petitioner, who apprehended his arrest when there was no F.I.R.---Even otherwise the petitioner was required to approach the appropriate forum under S.498-A, Cr. P. C. for bail---Relief prayed for by the petitioner, being misconceived was denied, in circumstances.

Moulvi Iqbal Haider for Petitioner.

Muhammad Noman Khan for Respondents Nos. 2 to 6.

YLR 2011 KARACHI HIGH COURT SINDH 371 #

2011 Y L R 371

[Karachi]

Before Imam Bux Baloch, J

DIVISIONALFOREST OFFICER, LARKANA and 3 others---Applicants

Versus

Mst. RAJ BIBI and others---Respondents

Civil Revision No. 1 of 1999, decided on 1st October, 2010.

Specific Relief Act (I of 1877)---

---Ss.42 & 54---Civil Procedure Code (V of 1908), S.79 & O.XLI, R.31---Constitution of Pakistan, Art.174---Suit for declaration and permanent injunction---Trial Court decreed the suit---Appellate Court dismissed appeal of defendant upholding the decision of Trial Court---Defendant, Forest Department, claimed ownership and possession of the property through Bombay Gazette Notification dated 26-4-1887---Validity---Plaintiff failed to comply with provisions of S.79 of C.P.C. and Art.174 of the Constitution, which required her to sue the Province by the name of that province through secretary of the department but she sued the Provincial Government through the Deputy Commissioner---Suit was, therefore, not maintainable--- Defendant (Forest Department) produced Gazette Notification of Bombay Government to show that the land belonged to the Forest Department---Courts below erroneously disbelieved the genuineness of the Gazette Notification of Bombay Government---Appellate Court violated mandatory provisions of O.XLI, R.31, C.P.C. by not framing points for determination---Plaintiffs did not examine any person from Revenue Department and failed to produce revenue record in original in the course of evidence---Defendants produced Gazette Notification of Bombay Government, 1887 which having not been rescinded or recalled after its promulgation was held by the Supreme Court of Pakistan to be in force---Land in question, was therefore, never available for disposal or cultivation purposes---Defendants, Forest Department, had proved their ownership of the land in question---High Court while accepting revision petition set aside the judgment of Appellate Court and dismissed the suit of plaintiffs.

Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16; Ghulam Muhammad v. Ghulam Ali 2004 SCMR 1001; Muhammad Waris and others v. Chief Conservator of Forest Sindh and others Civil Petition No. 172-K of 2006; Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 fol.

Khalil Ahmad v. Abdul Jabbar Khan 2005 SCMR 911; K.M. Muneer v. Mirza Rashid Ahmed PLD 1964 (W.P) Kar. 172; Badsha Meah v. Muhammad Serajul Islam PLD 1964 Dacca 300; Abdul Hakeem v. Habibullah 1997 SCMR 1139; Habib Khan v. Mst. Hafiza Bibi 1987 SCMR 1149; Muhammad Bux v. Muhammad Ali 1984 SCMR 504 and Khan Muhammad v. Muhammad Ishaque 1975 SCMR 471 ref.

Muhammad Aslam v. Surkharu Khan 2007 CLC 750 rel.

Abdul Hamid Bhurgri, Addl. A.-G. for Appellants.

Gulab Rai C. Jessrani for Respondents.

Date of hearing: 27th August, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 384 #

2011 Y L R 384

[Karachi]

Before Muhammad Tasnim, J

Syed HAKIM ALI SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. S-764 of 2010, decided on 22nd September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 114 & 34---Qatl-e-amd---Bail, grant of---Further inquiry---Accused according to F.I.R. was empty handed and no active role was assigned to him---Allegation of common intention could properly be dealt with by the Trial Court when evidence of prosecution was recorded---Since allegation of only Hakal, which too was after the commission of offence had been made against the accused; and it was yet to be seen as to whether accused was any way connected with the commission of offence or not; for which further inquiry was called for in terms of subsection (2) of S.497, Cr. P. C. ---Accused was admitted to bail, in circumstances.

Yaroo v. The State 2004 SCMR 864; Rustam alias Hoto v. The State 2004 PCr.LJ 1753; Jahndoo and another v. The State 2006 YLR 3206; Rajib Ali v. The State 2005 SLJ 1529 and Abdul Ghaffar v. The State 2009 PCr.LJ 187 ref.

Nisar Ahmed Bhambhro for Applicant.

Sardar Ali Shah, Assistant Prosecutor-General for the State.

2011 Y L R 422

[Karachi]

Before Muhammad Tasnim, J

SADAM HUSSAIN and 5 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-485 of 2010, decided on 13th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (V of 1860), S.324---Attempt to commit qatl-e-amd---Pre-arrest bail, confirmation of---Allegations in the F.I.R. were general in nature and no specific role had been assigned to any of accused---No instance had been pointed out by the counsel for the complainant or State Counsel that after grant of bail, accused persons had misused the bail---Other co-accused had already been granted bail on the ground that allegations against them were general in nature, accused persons, in circumstances, were also entitled to same treatment as their case were similarly placed---Case was that of counter version and it was yet to be seen that which of the accused had caused injury to the injured persons---Interim pre-arrest bail granted to accused persons, was confirmed on the same terms and conditions, in circumstances.

Khalil Ahmed and others v. The State 2007 YLR 2688 and Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 ref.

Ghulam Shabbir Bhutto for Applicants.

Manzoor Hussain A. Ansari for the Complainant.

Sardar Ali Shah, A.P.-G. for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 433 #

2011 Y L R 433

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. S-445 of 2010, decided on 7th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 201 & 34---Qatl-e-amd, causing disappearance of evidence of offence---Bail, grant of---Further inquiry---Co-accused had already been admitted to bail and incident was unseen---About four years had passed, but the trial had not been concluded---Every citizen had a right to get speedy justice, but due to delay in trial, accused was behind the bars---Accused could not be kept behind the bars on the anticipation that tomorrow he should be convicted by the court---Accused who had admitted his presence at the scene in his confessional statement, however, had specifically stated that other person had made firing and due to his firing deceased had died---Accused, in his alleged confessional statement, had said that dead body was suppressed by him along with other accused persons, but they had already been admitted to bail---Accused was also entitled to similar treatment---Delay per se was not a ground for grant of bail, but when the delay was scandalous, the indulgence was to be shown by the court---Accused at the best, could be charged for the offence under S.201, P.P.C., which was bailable---Case was fit in which further inquiry in terms of subsection (2) of S.497, Cr. P. C. was called for---Accused was admitted to bail, in circumstances.

Khamiso Khan Rind for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 452 #

2011 Y L R 452

[Karachi]

Before Muhammad Tasnim, J

SHAH ALI and 2 others---Petitioners

Versus

THE STATE Respondent

Criminal Bail Application No. S-113 of 2010 decided on 8th September, 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---Deeper appreciation at bail stage was not allowed and only tentative assessment was to be made to find out as to whether accused was connected with commission of offence or not---Names of two, out of three accused persons, did not find place in the F.I.R. and no overt act had been attributed to both of them though their names had been added through the statement under S.161, Cr.P.C.---No overt act had been assigned to the accused in the said statement under S.161, Cr.P.C.---Third accused, no doubt, was present at the scene having pistol, but it was not the case of the prosecution that said accused caused any firearm injury---Said third accused, however, had facilitated the co-accused in providing opportunity to the co-accused to commit murder of the deceased---Such aspect of the matter called for further inquiry; as it could not be said that as to whether said third accused was present at the scene of offence or not---Accused were admitted to bail, in circumstances.

Rana Arshad v. Muhammad Rafique PLD 2009 SC 427; Imtiaz Ahmed and others v. The State PLD 1997 SC 545 and 2007 MLD 1935 ref.

M/s. Faizullah Korai and Shamsuddin, N. Kobhar for Applicants.

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

YLR 2011 KARACHI HIGH COURT SINDH 468 #

2011 Y L R 468

[Karachi]

Before Muhammad Tasnim, J

SHAKEEL AHMED alias DODO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-500 of 2010, decided on 16th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---To substantiate the contents of F.I.R., medical evidence was called for, which was missing---Case required further inquiry as to whether any injury was caused by the accused---Accused was admitted to bail, in circumstances.

Manzoor Hussain Larik for Applicant.

Sardar Ali Shah Assistant Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 493 #

2011 Y L R 493

[Karachi]

Before Salman Hamid, J

Mst. SHAZIA and another---Petitioners

Versus

S.H.O. POLICE STATION KUMB, DISTRICT KHAIRPUR and 7 others---Respondents

Constitutional Petition No.1234 of 2010, decided on 28th July, 2010.

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

----S. 362---Constitution of Pakistan, Art.199--- Constitutional petition---Abduction---Petitioner had prayed that police officials be restrained from causing harassment to the petitioners in any manner and that they be directed to provide protection to the petitioners as guaranteed under the Constitution---Petitioners who claimed to be of the age of majority and sui juris, had deposed that they had married with her free will and that girl was never abducted---Girl stated that she did not wish to go back to her parents and relatives as they would beat her and maltreat her and her husband---Evidence on record had established that petitioner (girl) was of full age and capable of possessing civil and social rights being sui juris---Girl was of the age of majority at the time of her nikah---Allegation of counsel for the parents/ relatives that girl was under the influence of male petitioner or that she had been abducted, or that her marriage was not at her will, was of no significance in view of statement of the girl that she wished to live rest of her life with male petitioner as her wife.

Hafiz Abdul Waheed v. Mrs. Asma Jahangir and others PLD 2004 SC 219 ref.

(b) Words and phrases---

----`Sui juris', defined and explained.

Allah Bux Jatoi for Petitioners.

Sarfaraz Khan Jatoi for Respondents Nos. 5 to 7.

Abdul Hamid Bhurgari, Addl. A.-G. A.S.-I. on behalf of S.H.O. Police Statoin Khairpur Mirs.

YLR 2011 KARACHI HIGH COURT SINDH 502 #

2011 YLR 502

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

SHAHHAROON COOPERATIVE HOUSING SOCIETY, through Chairman---Petitioner

Versus

CITY DISTRICT GOVERNMENT, through District Coordination Officer and 5 others---Respondents

Constitution petition No.2229 of 2007, decided on 13th January, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Removal of alleged encroachment---Petitioner had sought directions for removal of alleged encroachment over land in question---Possession letter had shown that vacant physical possession of land in question had been handed over to the petitioner according to the demarcation---Sindh Public Property (Removal of Encroachment) Act, 1975, was only applicable as regard the encroachment on public property and not on private property---Remedy of the petitioner, squarely lay either under general law i.e. S.9 of Specific Relief Act, 1877 or under the Illegal Dispossession Act, 2005 or under criminal proceedings.

Abrar Hasan for Petitioner.

Manzoor Ahmed for C.D.G.K.

Meeran Muhammad Shah, A.A.-G.

YLR 2011 KARACHI HIGH COURT SINDH 519 #

2011 Y L R 519

[Karachi]

Before Amir Hani Muslim and Syed Hasan Azhar Rizvi, JJ

MUHAMMAD YASEEN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 388 of 2010, decided on 11th October, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---No material contradiction, improvement or exaggeration was observed in evidence of prosecution witnesses who remained consistent and unshattered---Accused failed to establish hostility or grudge on the part of the raiding party of the Anti-Narcotics Force to implicate him falsely---Report of Chemical Examiner was positive---Travel documents recovered from accused a first offender, proved his presence at the airport---Trial Court had already taken a lenient view while awarding sentence to the accused following guidelines set by Supreme Court in cases of first offenders---Judgment of Trial Court being well-reasoned and comprehensive, did not warrant interference---Appeal was dismissed in circumstances.

Gul Raeef Khan v. The State 2008 SCMR 865 fol.

Noor Muhammad Appellant (in person).

Ms. Abida Parveen Channar for ANF for the State.

Date of hearing: 4th October, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 539 #

2011YLR 539

[Karachi]

Before Mushir Alam and Safdar Ali Bhutto, JJ

MUHAMMAD RAMZAN and 3 others---Petitioners

Versus

CITY DISTRICT GOVERNMENT KARACHI through Deputy Director (Land) and 4 others---Respondents

Constitutional Petition No. D-31 of 2008, decided on 26th May, 2009

Constitution of Pakistan---

----Art. 199---Constitutional petition--Regularization of Katchi abadi---Petitioners had impugned action of authorities, whereby the encroachment had been made on the road and lane of the area where the petitioner resided---Area in question was a Katchi abadi, which later on was regularized on the basis of possession---No standard criteria or principles had been laid down while carrying out the regularization of the property in possession of various occupants and any order passed would affect a long number of the occupants and residents of the area---High Court while dismissing the constitutional petition, directed the authorities to adhere to the minimum criteria while regularizing any Katchi abadi and it should be ensured that all the properties were properly aligned with proper demarcation and alignment providing egress and ingress---Public functionaries should ensure that al the civil agencies utility service provided were given easy access and approach---Such aspect and guideline should be adhered to at the time of its regularization in future.

Islam Hassan for Petitioner.

Safdar Hussain Shah Bukhari for Respondent No.5.

Manzo Ahmed for C.D.G.K.

YLR 2011 KARACHI HIGH COURT SINDH 551 #

2011 Y L R 551

[Karachi]

Before Amir Hani Muslim and Syed Hasan Raza Rizvi, JJ

MUHAMMAD QASIM and another---Appellants

Versus

THE STATE---Respondent

Special Criminal A.T. Appeals Nos.16 and 11 of 2009, decided on 14th October, 2010.

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

----S. 7(e)---Penal Code (XLV of 1860), S.365-A/34---Act of terrorism committed by kidnapping for ransom, kidnapping or abducting for extorting property, valuable security, acts done by several persons in furtherance of common intention---Appreciation of evidence---Abductee fully implicated the accused by adducing specific confidence inspiring evidence---Record revealed that the mobile phone recovered from the accused was used by him to make calls to the complainant--Accused recorded his confessional statement before Magistrate voluntarily---Delay did not invalidate judicial confession---Confession of accused was corroborated by independent evidence produced by the complainant, abductee and Police---No allegation of false implication was made by the accused---No tampering was made in the entry of Roznamcha as alleged by accused---house where the abductee was kept was in possession of the accused as tenant---Prosecution proved its case beyond doubt---Impugned judgment did not suffer from any infirmity---Appeal was dismissed.

2003 SCMR 1419; Tariq Pervez v. The State 1995 SCMR 1345; 1995 SCMR 614; 1991 SCMR 1617 and 2000 MLD 275 ref.

Muhammad Rafi Muzni for Appellants (in Special Cr. A.T.A. No.16 of 2009).

Ali Haider Saleem, A.P.-G. for the State (in Special Cr. A.T.A. No. 16 of 2009) .

Habib Ahmed for Appellants (in Special Cr. A.T.A. No. 11 of 2009).

Ali Haider Saleem, A.P.-G. for the State (in Special Cr. A.T.A. No. 11 of 2009).

Date of hearing: 11th August, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 563 #

2011 Y L R 563

[Karachi]

Before Amir Hani, Muslim and Syed Hasan Azhar Rizvi, JJ

RAJIB ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.62 of 2010, decided on 15th October, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Investigating Officer could neither explain the standard/ formula employed by him to separate samples from bars allegedly recovered from accused and nor could he disclose the quantity of charas taken from each bar---Chemical Examiner's report contradicted Investigating Officer's statement as to quantity of charas sent for analysis to the laboratory---Investigating Officer never produced in the court the charas that was not used in analysis and was returned to him by the Chemical Examiner--Investigation was conducted dishonestly to favour the accused who was a Police Official---Prosecution failed to prove its case beyond reasonable doubt---Appeal was accepted.

A.Q. Halepota for Appellant.

Abdur Rahman Kolachi, Assistant P.G. along with Inspector Ahsanullah and S.-I. Israr Hussain for Respondents.

Date of hearing: 15th October, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 570 #

2011 Y L R 570

[Karachi]

Before Imam Bux Baloch, J

THE STATE through Additional Advocate-General, Sindh---Appellant

Versus

MUHAMMAD NAZIR---Respondent

Criminal Acquittal Appeal No.12 of 2006, decided on 28th September, 2010.

Penal Code (XLV of 1860)---

----Ss. 409, 477-A & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S.249-A---Criminal breach of trust by public servant, or by banker, merchant or agent, falsification of accounts, criminal misconduct of public servant---Appreciation of evidence---Accused was involved in the case on the statement of co-accused who had already been acquitted under S.249-A, Cr.P.C.-Acquittal of co-accused having not been challenged by the State, had attained finality while prosecution had failed to prove its case against the accused---Benefit of acquittal of co-accused was extended to accused who was acquitted by the Trial Court---Accused, held, was rightly acquitted.

Altai Hussain Surahyo for the State.

Asif Ali Abdul Razak for Respondent.

Date of hearing: 28th September, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 582 #

2011 Y L R 582

[Karachi]

Before Ghulam Sarwar Korai and Imam Bux Baloch, JJ

BILAL AHMED BHUTTO---Petitioner

Versus

PROVINCE OF SINDH through Secretary Works and Services Department

and 5 others---Respondents

Constitution Petition No. D-69 of 2010, decided on 7th October, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner undertook levelling and earthwork of a government park but burrow pits, as per his contention, were not available at a distance lesser than 7 miles as against the distance of 3 miles as per sketch prepared and approved by the authorities---Petitioner asked for enhanced rates for the work---Petitioner's application to excavate soil from the burrow pits lying at 7 miles from the site .of said park was allowed by the authorities but funds were not released for the work---Validity---Petitioner was fully aware of the details of tender notice at the time of accepting the tender; he moved frivolous application for enhancement of earth rates, in collusion with officials of the department---Petitioner completed construction work after accepting the tender notice which clearly mentioned the distance of burrow pits---Demand for extra rates was based on mala fide in order to cause loss to the public exchequer---Petition, being misconceived, was dismissed.

Abdul Qadir Abro for Petitioner.

Abdul Hamid Bhurgri, A.A.-G for Respondent.

Date of hearing: 23rd September, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 588 #

2011 Y L R 588

[Karachi]

Before Salman Hamid, J

MUHAMMAD MITHAL---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.S-29 of 2010, decided on 12th July, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 540, 561-A & 435---Application for recalling a witness---Sessions Judge dismissed accused's application for recalling of two witnesses---Accused contended that said prosecution witnesses were not properly cross-examined by his counsel---Validity---Power to recall a witness under S.540, Cr.P.C., could not be exercised as a matter of routine unless grave illegality or irregularity was shown to have taken place---Calling the record of subordinate courts under S.435, Cr.P.C. would not serve the purpose of cross-examination of witnesses---Inherent powers could be exercised under S.561-A; Cr.P.C. in the instance of grave injustice---Application was made, prima facie, to fill the lacunas and delay the case---Application, being meritless, was dismissed.

Altaf Hussain Shamim v. The State PLD 1992 Kar. 91 and Muhammad Iqbal Khetana v. The State 1992 MLD 930 distinguished.

Liaquat Ali alias Foji v. The State 2009 MLD 980 ref.

Ghulam Ali J. Rind for Applicant.

Wahid Bux Balouch for the Complainant.

Naimatullah Bhurgri for the State.

YLR 2011 KARACHI HIGH COURT SINDH 590 #

2011 Y L R 590

[Karachi]

Before Mushir Alam and Aqeel A. Abbasi, JJ

MUHAMMAD RAEES---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Ministry of Housing and Town Planning

and another ---Respondents

Constitutional Petitions Nos. D-2348, 2349, 2350, 2351, 2352, 2353 and 2354 of 2006, decided on 1st October, 2009.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Claim in respect of property---Petitioners had sought direction against authorities to hand over the possession of the respective properties claimed by them---Counsel for authorities had rightly pointed out that petitioners had specifically mentioned in their petition that acknowledgment of possession order was issued in favour of the original allottees---Petitioners had also pleaded that they had acquired the properties from the third successive owners thereof---In view of such admission by the petitioners, they could not come forward to seek any relief front the authorities---Petitioners, if had any right or title to the property, could claim relief under the Illegal Dispossession Act, 2005 or any other law as could be available to them.

Abdul Wajid Wyne for Petitioners (in C.Ps. Nos. D-2348, to 2354 of 2006).

Manzoor Ahmed for the C.D.G.K.

YLR 2011 KARACHI HIGH COURT SINDH 601 #

2011 Y L R 601

[Karachi]

Before Salman Hamid, J

ABID SOLANGI---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application Nos.S-375 and M.A. No.1458 of 2010, decided on 9th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hadd) Ordinance (VI of 1979), Ss.17/3---Penal Code (XLV of 1860), Ss.341 & 337-H(i)---Haraaba, wrongful restraint, hurt by rash or negligent act---Bail, refusal of---Negotiations by accused and his relatives with complainant party for the return of allegedly robbed articles, itself made a prima facie case of robbery---Trial Court had rightly denied bail to the accused---Petition was dismissed.

Mithal v. The State 2000 PCr.LJ 360; Abdul Aziz v. State 1996 SCMR 1693 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Azizullah M. Buriro for Applicant.

Ali Raza Pathan, for the State.

YLR 2011 KARACHI HIGH COURT SINDH 613 #

2011 Y L R 613

[Karachi]

Before Salman Hamid, J

IBRAHIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-297 of 2010, decided on 16th July, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.324, 379, 353 & 337-H(ii)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14--Attempt to commit qatl-e-amd, theft, use of criminal force to deter public servant from discharge of his duty, rash or negligent act -to endanger human life---Bail, grant of---Further inquiry--Neither anything was recovered from the accused nor was he ever declared an absconder---Two out of nine accused were released by Police after showing their names in column No.2 of the challan despite the fact that the role assigned to all the nine accused was the same---Accused having made out a case of further inquiry, was admitted to bail.

Ali Nawaz Ghanghro for Applicant.

Ameer Ahmed Narejo for the State.

YLR 2011 KARACHI HIGH COURT SINDH 623 #

2011 Y L R 623

[Karachi]

Before Imam Bux Baloch, J

ALI NAWAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. S-68 of 2009, decided on 24th September, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 506(2) & 34---Qatl-e-amd, criminal intimidation; threat to cause death or grievous hurt, acts done by several persons in furtherance of common intention---Appreciation of evidence---Benefit of doubt---Witnesses testified to the involvement of the deceased in a murder case and subsequent acquittal but father of the deceased expressed his ignorance of the same---Ocular and circumstantial evidence was full of discrepancies---Evidence, in cases of capital punishment should have come through unimpeachable source, which lacked in the present case---Only relatives of the deceased were associated as witnesses and no independent witness was cited by the prosecution to corroborate the evidence---Dead body of the deceased was not received and report of the chemical examiner was not produced to establish that blood-stained earth contained human blood---Recoveries effected from accused were not sent to Chemical Examiner/Ballistics Expert to connect, the accused with the commission of crime---Accused could not be convicted on the evidence produced by interested witnesses---Appeal was allowed, conviction and sentence of the accused were set aside and they were acquitted.

Asif Ali Abdul Razak Soomro for Appellants.

Altaf Hussain Surahio, State Counsel.

Faiz Muhammad Larik for the Complainant.

Date of hearing: 24th September, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 632 #

2011 Y L R 632

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

Mst. SAIMA alias SOBIA and another---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos. 12 and 13 of 2007, decided on 2nd September, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/365-A/114/109/34---Anti-Terrorism Act (XX VII of 1997), S. 7(a) & (e)---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-e-amd, kidnapping or abducting for extorting property, valuable security and abetment---Appreciation of evidence---Identification parade---Benefit of doubt---Defective investigation---Credibility of witness---Intoxication, proof of---Accused were convicted by Trial Court and sentenced to imprisonment for life---Validity---One prosecution witness lived in the locality for a long time, therefore, possibility of his having prior sighting of accused could not be ruled out---Another prosecution witness was close to investigating officer as he had been involved in a number of criminal cases and had also been lodged in jail for quite some time and evidence of such prosecution witness could not be accepted at its face value---Investigating officer in his cross-examination accepted that after identification parade, accused and witnesses were taken in the same vehicle back to police station---If the accused and witnesses were taken to court in separate vehicle then there should have been an explanation as to where did the second vehicle had gone and why accused and witnesses travelled in the same vehicle---Investigating Officer also admitted that when prosecution witness had come to police station, accused persons were present in lock-up---One of the prosecution witnesses alleged that he saw deceased drowsy and charge was of administration of intoxicating substance but no chemical report of any intoxicant having been administered was produced---Another prosecution witness claimed that he taped telephone calls but investigating officer did not take possession of the tape and obtained no voice matching information--Investigating Officer also admitted that he did not inspect even petrol pump where prosecution witness stated to have seen the deceased with accused---Investigating officer recorded statement of one of the accused but did not produce that statement in court---Investigating Officer had performed very poorly and prima facie it appeared that when he was entrusted with the case in order to prove his success and earn plaudits, he caught hold of lady accused and thereafter created evidence---High Court recommended departmental authority to take appropriate action against Investigating Officer in accordance with law---High Court set aside the conviction and sentence awarded to accused persons and acquitted them of the charge--Appeal was allowed in circumstances.

State v. Manzoor Ahmed, PLD 1966 SC 664 and Mirza Tahir Hussain v, The State 1999 MLD 2675 ref.

Shoukat Hayat for Appellant No.1.

Khawaja Naveed Ahmed for Appellant No.2.

Pir Rehman Masood for the Complainant.

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

Dates of hearing: 22nd, 27th, 28th and 29th July, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 655 #

2011 Y L R 655

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

MUHAMMAD SHAHID HANIF and 2 others---Appellants

Versus

THE STATE---Respondent

Special Criminal ATAs Nos. 43, 44 and 26 of 2002, decided on 14th January, 2011.

Penal Code (XLV of 1860)---

----S. 302(a)/34---Anti-Terrorism Act(XXVII of 1997), Ss.6(1)(c), 6(2)(a) & 7(a)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, terrorism and possession of arms---Appreciation of evidence---Benefit of doubt---Confessional statements of accused persons were recorded after a delay of more than 10 days and prosecution had failed to explain said inordinate delay in recording the same---Confessional statements were not corroborated by any independent evidence---Confessional statements of accused were recorded after 8 days of the Identification Parade, which appeared to be not voluntary and true and also generated doubt in the prosecution case---Witnesses had not assigned any role to any of accused at the time of identification parade, which had created doubt in the prosecution case---Recoveries as alleged were effected in presence of two persons, but the prosecution had failed to examine the said two persons---Non-examination of the private witnesses also had created serious doubt in the prosecution case---Recoveries, in circumstances were doubtful---Two prosecution witnesses were chance witnesses and no person from the locality was examined by the prosecution, while they were available---Complainant had not given the names of two prosecution witnesses in his statement under S.154, Cr. P. C. ---Evidence of said witnesses could not be taken into consideration, in circumstances---Evidence on record did not satisfy accepted requirements of safe administration of criminal justice---Accused, in circumstances, were entitled to benefit of doubt--Impugned judgment of court below was set aside, accused were acquitted of the charge and were released, in circumstances.

Muhammad Bashir alias Pervaiz and another v. The State 2005 PCr.LJ 1135; Syed Azeem Shah v. The State PLD 1987 Quetta 96; Khalid Javed v. The State 2003 SCMR 1419; Mehboob Ahmed v. The State 1995 SCMR 127; Lal Pasand v. The State 1971 SCMR 569; Khadim fIussain v. The State 1985 SCMR 721; Muhammad Irshad v. The State 1992 PCr.LJ 756; Muhammad Gul and others v. The State 1991 SCMR 942; Shaukat Saeed v. The State PLD 1978 Quetta 1; Syed Sharifuddin Prizada v. Sohbat Khan and 3 others PLD 1972 SC 363; Zafar Hayat v. The State 1995 SCMR 896; Noor Muhammad and 3 others v. The State 1973 PCr.LJ 891; Mumtaz Khan v. The State 1984 PCr.LJ 407; Lal Singh v. Crown ILR 51 Lah. 396 and Sher Zaman alias Shero v. The State 1983 PCr.LJ 2519 ref.

Ilyas Khan and M. Farooq Ahmed for Appellants.

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

Dates of hearing: 2nd, 10th, 15th, 22nd November and 7th and 8th December, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 669 #

2011 Y L R 669

[Karachi]

Before Amir Hani Muslim and S. Zakir Hussain, JJ

MANZOOR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 74 of 2010, decided on 25th May, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Counsel for accused did not press the appeal on merits and prayed. that impugned sentence and fine be reduced to that of already undergone by accused---Out of total sentence of five years and two months awarded to accused, he had served out sentence of three years, seven months and twelve days, including remission---Accused was first offender and claimed to be the sole bread earner of his family---Sentence awarded to accused was modified to that of already undergone by accused---Accused was ordered to be released, in circumstances.

Mahmood A. Qureshi for Appellant.

Mrs. Abida Parveen Channer, Special Prosecutor, ANF.

YLR 2011 KARACHI HIGH COURT SINDH 672 #

2011 Y L R 672

[Karachi]

Before Amir Hani Muslim and Irfan Saadat Khan, JJ

ZULFIQAR ALI and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Forest and Wildlife, Government of Sindh, and 7 others---Respondents

C.Ps. Nos. D-1105, D-1116 and 1134 of 2010, decided on 7th December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioners challenged the auction proceeding of sale of standing trees by the Forest Department contending that the auction was not held on the relevant date---Validity---District Forest Officer admitted in his statement recorded on oath that he received the bid money in cash but did not issue the receipt---Government Officials could not accept any bid money in cash which could only be paid either through cheque or by pay order---Private respondents having not paid money to the Forest Department; auction was declared to be without lawful authority for having not been conducted in transparent manner---Petition was accepted---Forest Department was directed to reauction the trees.

Jhamat Jehtanand for Petitioners (in C.P. No.D-1105 of 2010).

Noor-ul-Haq Qureshi for Petitioners (in C.P. No.D-1116 of 2010).

Haji Khan Hingoro for Petitioners (in C.P. No. D-1134 of 2010).

Allah Bachayo Soomro, A.A.-G. along with Meer Nadir Ali Talpur, Chief Conservator of Forest and Habibullah Nizamani, Conservator of Forest Hyderabad.

YLR 2011 KARACHI HIGH COURT SINDH 674 #

2011 YLR 674

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

SHAH NAWAZ and another---Appellants

Versus

THE STATE---Respondent

Spl. A.T. Appeals Nos. 1 and 4 of 2008, decided on 14th January, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(6), 396, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, dacoity with murder and terrorism---Appreciation of evidence---According to the prosecution, in a broad-daylight near the village of complainant party, accused along with their accomplices had taken away 65 buffaloes---Different community people were following the dacoits, but none of them was cited as a witness---Even owners of buffaloes had not been cited as witnesses; it was unbelievable that 65 buffaloes had been taken any near a big village in day time but the people could not follow up the dacoits---Accused resided near village of the complainant party having disputes on landed property---During investigation, Police recorded statement of one who related to the complainant party, but during trial the prosecution had not examined said witness---On the contrary, the defence had examined the witness, who in his evidence, had falsified the evidence of the complainant and his witnesses---No buffalo was recovered from the possession of accused persons---No weapon was recovered from the possession of accused---Complainant who was eye-witness, had not given the names of the owners of buffaloes during trial---One set of accused persons had been acquitted on the same evidence, while remaining accused were convicted, which was against the norms of criminal justice---Once the prosecution case was doubtful for one set of accused; the benefit could be given to other set of accused, which the Trial Court had not done---Same benefit was to be extended in favour of remaining accused persons---Prosecution case as to the veracity and credibility of eye-witnesses, was full of contradictions and doubts, benefit of which must go to accused persons---Accused were acquitted of the charges and were set free.

Atta Muhammad and another v. The State 1995 SCMR 599; Rat, it Ali v. The State 2010 SCMR 584, Akhtar Ali and another v. The State 2008 SCMR 6; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Bux v. Abdul Aziz and others 2010 SCMR 1959; Ghulam Mutsafa v. The State 2009 SCMR 916; Allah Wadayo v. The State 2001 SCMR 25; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474; Bahawal Bakhsh v. The State 2002 PCr.LJ 1902; Ghulam Muhammad's case PLD 1975 SC 588; Sheral alias Sher Muhammad's case 1999 SCMR 697; Ata Muhammad's case 1995 SCMR 599; Faiz Bakhsh's case PLD 1959 PC 24; Nadia's case 42 Cr.LJ 53; Muhammad's case PLD 1984 FC 84; Shear Bahadar's case 1972 SCMR 651; Muhammad Afsar's case PLD 1954 FC 171; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432; Ameenullah v. State PLD 1976 SC 629; Muhammad Nawaz v. State 1969 SCMR 132; Shafoo v. State 1968 SCMR 719; Allah Ditta v. State PLD 2002 SC 52; Waris Khan v. The State 2001 SCMR 387 and Allah Ditta's case 2002 SCMR 99 ref.

Mehmood A. Qureshi for Appellants (in Spl. ATA No.1 of 2008).

Ghulam Qadir Jatoi for Appellants (in Spl. ATA No. 4 of 2008).

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

Dates of hearing: 30th November, 9th and 10th December, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 691 #

2011 Y L R 691

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

IMDAD ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-42 of 2007, decided on 25th May, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Complainant and other two eye-witnesses of the occurrence had remained unshattered during lengthy cross-examination---Accused had the motive to commit the murder of the deceased for taking the revenge of the murder of his father---No contradictions or discrepancies could be pointed out in Prosecution evidence---Eye-witnesses being related to both the parties had no reason for false implication of accused in the case---Ocular testimony was in conformity with medical evidence as well as recovery evidence---Empty bullets and empty cartridges were recovered from the place of occurrence---Ocular evidence was trustworthy and inspired confidence---Conviction and sentence of accused were upheld in circumstances.

Aftab Ahmed Gorar for Appellant.

Naimtullah Bhurgari for the State.

Date of hearing: 5th May, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 711 #

2011 Y L R 711

[Karachi]

Before Shahid Anwar Bajwa, J

FURQAN QADRI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1401 of 2010, decided on 4th January, 2011.

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---Prosecution claimed that a pistol was recovered front accused; and that four empties were recovered from the spot---Crime number of the case was not mentioned in the report of Forensic Science Laboratory--Assistant Public Prosecutor failed to point out whether empties recovered, had been matched with the pistol---Case of the prosecution at the best was of further inquiry---Contention of counsel for accused was that name of accused had not been mentioned in the F.I.R.---Since the person who lodged F.I.R. did not know the culprit, it was not expected that names would be mentioned in the F.I.R.---Counsel for accused had also argued that it was also claimed that firing took place from a motorcycle, therefore, at the best, the witnesses got a glimpse of the culprits and after sixteen months it was not expected that witnesses would remember as to who committed the crime--Such aspect could only be thrashed after evidence was recorded---Sole piece of evidence in the case was identification parade---Had the empties been tested and matched with the recovered pistol, the position might have been different, but that had not been done---Case against accused being of further inquiry, he was admitted to bail, in circumstances.

2002 PCr.LJ 1386; PLD 2004 SC 822; Shafqat Mehmood and others v. The State 2010 PSC (Crl.) 263 and Sardar Munir Ahmed Dogar's case PLD 2004 SC 822 ref.

Mehmood A. Qureshi and Jamshed Iqbal for Applicant.

Imtiaz Ali Jalbani, A.P.-G.

YLR 2011 KARACHI HIGH COURT SINDH 727 #

2011 Y L R 727

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD HANIF BANGASH---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. 1374 and M.A. No.6716 of 2010, decided on 4th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395---Dacoity---Bail, grant of--Investigating Officer was directed to produce closed circuit television camera photographs---Investigating Officer had brought not only C.D of camera, but had also brought as many as 14 photographs taken from C.D and had stated that accused did not appear in any of the photographs---Accused was also not seen in video---F.I.R. did not mention that any one of the culprits stayed outside the gate of the bank; in fact it was clearly stated that five accused persons entered into the bank which clearly had created doubt---Benefit of any doubt must be given to accused even at the bail stage---Accused was admitted to bail, in circumstances.

Khadim Hussain v. The State 1994 PCr.LJ 1408; Habibur Rehman and another v. The State 1994 PCr.LJ 1773; Farman Ali v. The State 1997 SCMR 971; Abdul Aziz Khan Niazi v. State through Chairman, NAB, Islamabad PLD 2003 SC 668 and Muhammad Asif v. The State 1998 MLD 1549; Imtiaz Ahmed v. The State PLD 1997 SC 545 and 2008 SCMR 807 ref.

Ali Ahmed Jan Bangash for Petitioner.

Imtiaz Ali Jalbani A.P.-G. along with S.-I. I/O. Sibtain Hassan.

YLR 2011 KARACHI HIGH COURT SINDH 746 #

2011 Y L R 746

[Karachi]

Before Gulzar Ahmed and Imam Bux Balouch, JJ

MINHON KHAN CHANDIO---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Director General, Regional National Accountability Bureau---Respondent

Constitutional Petition No.D-1161 of 2010, decided on 8th December, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) (iv) & 25(b)---Constitution of Pakistan, Art.199--Constitutional petition--Discretion--- Ill-gotten gains--- Plea-bargaining--- Defaulter--- Assets beyond known sources of income---Accused was arrested by National Accountability Bureau, as he defaulted in payment of plea-bargaining amount---Plea raised by accused was that his all assets were justified which were alleged by National Accountability Bureau to be beyond known sources of income---Validity---No person could be granted discretionary relief under Art. 199 of the Constitution for making of illegal gains---Plea of accused was in the nature of deeper appreciation of matter which at stage of granting bail could not be gone into---Provisions of S.25(b) of National Accountability Ordinance, 1999, were mutually beneficial to National Accountability Bureau as well as to accused---National Accountability Bureau received money agreed to be returned by accused while on payment of plea bargain amount and accused got benefit of disposal of case against hint and also obtained his release from the custody---Initial plea bargaining with National Accountability Bureau having been made by accused and same having not been complied with by hint in toto, the accused could not get benefit of his release---Petition was dismissed in circumstances.

Badar Alam Bachani and others v. The State PLD 2004 Kar. 160; Shamraiz Khan v. The State 2000 SCMR 157; Farrukh Javed Ghumman v. The State PLD 2004 Lah. 155; Makhdoom Javed Hashmi v. The State and 2 others 2003 PCr.LJ 266; Bosh Muhammad v. Chairman, National Accountability Bureau, Islamabad 2007 PCr.LJ 1260 and Syed Ali Nawaz Shah and 2 others v. The State and others PLD 2003 SC 837 ref.

Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28 rel.

Muhammad Anwar Tariq for Petitioner.

Muhammad Riaz, Sr. Prosecutor NAB along with Rais Ahmed, FIA for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 783 #

2011 Y L R 783

[Karachi]

Before Salman Hamid, J

Haji RAHMAN ALI---Applicant

Versus

NAMDAR and 4 others---Respondents

Criminal Transfer Application No. S-65 of 2010, decided on 29th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), Ss. 302/148/149/114--- Qatl-e-amd---Transfer of case---Application for---Complainant/applicant sought withdrawal of case from the court which was trying the case and to transfer to any other court---Applicant had stated that attitude of trial Judge towards him was very harsh and favourable to accused persons; that Trial Judge was compelling the applicant to compound the offence with accused, failing which he would acquit accused from all the charges and that accused was publicly expressing the said opinion of the Trial Judge and that in such circumstances the applicant had lost confidence in the Judge who was presiding over the court---Upon a report being sought, Trial Judge reported that all the allegations raised in the application were false, frivolous, baseless and concocted; and that the transfer of the case on such ground was uncalled for---According to the report said allegations had been raised by the applicant, when the entire evidence of the prosecution had been completed---Case was at terminal stage, application in such circumstances, had been filed so that accused continued to suffer unnecessarily---Court, while deciding application for transfer, must consider that no injustice was caused to anyone---In the present case it was clear that application had been moved to delay the matter and that the allegations raised had no substance---Transfer of a case from one court to another court could not be claimed as a matter of right or could not be granted as a matter of routine; and that court before whom application for transfer was moved, had to see whether the mistrust which was shown by the applicant was genuine or otherwise---Application for transfer was dismissed in circumstances.

Nisar Ahmed Abro for Applicant.

Syed Fida Hussain Shah State Counsel .

YLR 2011 KARACHI HIGH COURT SINDH 789 #

2011 Y L R 789

[Karachi]

Before Tufail H. Ebrahim, J

Miss. NAYAB and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1087' of 2010, decided on 24th December, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.376(2)/342/354-A/337-J/506(2)--Rape, wrongful restraint, assault or criminal force to woman, causing hurt and criminal intimidation---Pre-arrest bail, confirmation of---Further inquiry---Unexplained delay of six days in lodging F.I. R., consultation and deliberation, could not be ruled out for mala fide implication of accused in the case---Statement of alleged victim made under S.164, Cr. P. C., was not in consonance with the statement of complainant---Record prima facie showed that the victim girl was expelled from the school due to her absence---Even enrolment of one of accused, was also cancelled in the school---No independent eye-witnesses were available as to the attendance of said accused or the victim in school on the day when victim was allegedly forcibly taken by accused---No specific role had been assigned to accused who on the date of occurrence had appeared in ward test at the university---Truth or otherwise of the plea of alibi taken by accused persons would be considered and decided by the Trial Court after recording of evidence--Prima facie, there were different versions as to the involvement of accused persons in the statement of victim recorded under. S.161, Cr. P. C. ---Mala fide intention and deliberation on the part of the complainant party could not be ruled out due to different versions---Accused were young women belonging to respectable family and had no previous criminal record---Prima facie no incriminating material was available to show that second accused with pre planned objective, forcefully or manipulatively brought the victim from the school to the house where alleged crime took place; and/or to connect all accused persons with the alleged offence or forming any unlawful entity, participated in the commission of the offence; or facilitated the men accused in commission of heinous crime---Rape was an abhorrent, condemnable and a deplorable offence, not against the victim alone, but society at large; and the grant of bail before arrest, was not the rule in such cases; and the grant of bail could only be considered when such cases would fall within the para meters of S.497(2), Cr. P. C. ---In the present case, there were conflicting versions for consideration before the court which would require further inquiry, within the meaning of S.497(2), Cr.P.C.---Accused, in circumstances, were entitled to the confirmation of pre-arrest bail---Prearrest bail granted to accused was confirmed on the same terms and conditions, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Rais Wazir Ahmad v. The State 2004 SCMR 1167; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Ali v. Maqsood Ma 1989 PCr.LJ 2153; Miss Shahla Raza v. The State 1991 MLD 1814; Mst. Allah Jiwai v. The State 1984 PCr.LJ 120; Mst.Elvinia alias Guddi v. The State 1984 PCr.LJ 2911; Nasir Mehmood Khan v. The State 1985 PCr.LJ 159; Mst. Baboo Jana v. The State 1990 PCr.LJ, 326; Mst. Gugoo v. The State PLD 1985 (Pesh.) 114; Mst. Asfar Bibi v. The State 2005 PCr.LJ 164; Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31; Muhammad Younus v. The State 1992 SCMR 1592; Muhammad Rahim and another v. Baita Gul and another PLD 1994 SC 86; Lal Muhammad Kalkoro and others v. The State 2008 SCMR 843; Imtiaz Ahmed v. State PLD 1987 SC 545; Haji Wali Muhammad v. The State 1996 SCMR 233; The State v. Abdul Malik alias Malkoo PLD 2000 Lah. 449; Shahzad alias Shaddu and others v. The State 2002 SCMR 1009; Mst. Bibi Rani v. Najabat Ali and another 1994 SCMR 2277; Mst. Safia Bano v. The Tanveer Ahmed and 2 others 2005 MLD 440; Muhammad Yakub v. Iltafur Rahman and another PLD 1974 SC 83; Safirullah v. State and another 2003 PCr.LJ 1691; Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412; Mst. Yasmin Butt v. Majid Baig alias Bobby Pehlwan and another 2008 SCMR 1602 and Mazhar Igbal v. The State and another 2010 PCr.LJ 1702 ref.

Mehmood A. Qureshi Applicants.

Muhammad Ashraf Kazi for the Complainant.

Abdullah Rajput, A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 809 #

2011 Y L R 809

[Karachi]

Before Tufail H. Ebrahim, J

FURRUKH SHAHZAD and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Bail Applications Nos. 811 and 813 of 2010, decided on 22nd December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.408 & 34---Criminal breach of trust by clerk or servant, acts done by several persons in furtherance of common intention---Bail, confirmation of---Further inquiry---Deliberation and consultation could not be ruled out in view of unreasonable and unexplained delay of 10 years in lodging of the F.I.R.---Complainant failed to show entrustment of goods or property to the accused---Goods were directly delivered to the customers after booking of orders and deposit of money in the company's bank accounts---Prima facie, allegations of misappropriation were contradicted by the record of the case which showed that the services of the accused were appreciated and said accused were promoted by the company---No allegation of non-cooperation of the accused with the Investigating Officer was alleged---Alleged documentary evidence being in the possession of the prosecution, no tampering of the evidence was possible by the accused---Case of further inquiry was made out---Reasonable doubt as to involvement of the accused in alleged offence entitled them to benefit of bail--Interim bails of the accused were confirmed.

1999 PCr.LJ 1074; 2006 PCr.LJ 252; 1999 MLD 408; 2007 PCr.LJ 233; PLD 2005 Kar. 41; 1983 PCr.LJ 2010 and 1999 PCr.LJ 958 ref.

2004 SCMR 231; 1996 SCMR 1132 and PLD 1995 SC 34 fol.

PLD 2004 Kar. 617; 1971 PCr.LJ 537; 2006 PCr.LJ 202 and 2000 PCr.LJ 518 rel.

PLD 2009 SC 440; 2010 SCMR 1221; 2010 SCMR 855; 2009 PCr.LJ 1140; 2005 YLR 609; 2005 PCr.LJ 1797; 2006 YLR 3013; 1999 PCr.LJ 128 and 2000 PCr.LJ 103 distinguished.

Raja Sikandar Khan Yasir for Applicant.

Kumail Ahmed Shirazi (in Criminal Bail Application No.813 of 2010) for Applicant.

Liaquat Ali Qasim for the Complainant.

Khadim Hussain, A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 833 #

2011 Y L R 833

[Karachi]

Before Tufail H. Ebrahim, J

NAEEM SHAMSHED---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 812 and 874 of 2010, decided on 28th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Pre-arrest bail, grant of---Further inquiry-F.I.R. and statements under S.161, Cr.P.C. of complainant and prosecution witnesses showed that the names of accused were not mentioned therein, nor any role had been assigned to them; and no allegations were made against them---No eye-witnesses of the incident were mentioned and no description of alleged accused were given in the F.I.R.---Subsequent statements under S.161, Cr.P.C. of complainant as well as prosecution witnesses in which accused had been nominated for the first time, were contradictory to the earlier statements---Unexplained delay of four days in recording the subsequent statements under S.161, Cr.P.C., had created doubts as to the veracity of subsequent statements---Delay in recording supplementary statements of the informants giving different version after lodging the F.I.R., would be an important factor which was likely to give rise to an inference that second version contained in the supplementary statement was introduced by the prosecution after deliberation and consultation; and same would adversely affect the prosecution case---Nothing was on record to show that any weapon or the motorcycle allegedly used in the crime had been recovered from accused persons---Alleged recovery of different type of empties from the place of the alleged incident, did not prima facie support the case of the prosecution as allegedly only one person had fired upon both the deceased---As per F.I.R. the complainant had shown his suspicion upon unknown persons, who had not been interrogated by Police---Truth or otherwise of the plea of alibi taken by accused would be considered and decided by the Trial Court after recording the evidence of the parties---Reasonable doubt existed as to the guilt of accused in the commission of offence; and a case for further inquiry within the meaning of S.497(2), Cr.P.C. had been made out---Interim pre-arrest bail granted to accused were confirmed on the same terms and conditions, in circumstances.

2003 SCMR 1419; PLD 2009 SC 427; 2001 PCr.LJ 1679, 2010 PCr.LJ 1431; 2002 PCr.LJ 289 and 2001 PCr.LJ 134 rel.

Abdul Waheed Khan for Applicants.

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

Amanullah Khan Yousufzai for the Complainant.

YLR 2011 KARACHI HIGH COURT SINDH 846 #

2011 Y L R 846

[Karachi]

Before Muhammad Tasnim, J

ALI HASSAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-841 of 2010, decided on 6th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/147---Qatl-e-amd---Bail, refusal of---Direct role had been assigned to accused in the F.I.R. which had been fully supported by the statement of the prosecution witnesses in their statements under S.161, Cr.P.C.; and medical report also supported the case of the prosecution---Recovery of gun was also effected from the accused and empties were found at the place of ward at---Bail was denied to the accused---State Counsel had conceded the bail to one accused person who was granted bail---Other accused persons were behind the bars since their arrest on 11-2-2009, but trial had not proceeded---Trial Court was directed either to try the case itself or to transfer the same to some other Court for expeditious disposal of the case.

Aijaz Ali Maitlo for Applicants.

Sardar Ali Shah, A.P.-G.

YLR 2011 KARACHI HIGH COURT SINDH 852 #

2011 YLR 852

[Karachi]

Before Muhammad Tasnim, J

NOOR MUHAMMAD alias NOORO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-771 and M.A. No.3156 of 2010, decided on 8th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-A(i), (ii), 337-F(i), 506 & 504/34---Attempt to commit qatl-e-amd, Shajjah, Ghay-r-Jaifah, criminal intimidation and intentional insult---Bail, grant of---Co-accused had been granted pre-arrest bail while the bail application of accused had been rejected by the same court without any reasonable ground, though case of accused was on the same footings as that of co-accused who had been granted bail---Accused was also entitled to bail, in circumstances.

Muhammad Iqbal Mahar for Applicant.

Syed Sardar Ali Shah Rizvi. A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 858 #

2011 Y L R 858

[Karachi]

Before Muhammad Tasnim, J

NAEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-550 of 2010, decided on 7th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Sub-stances Act (XXV of 1997), S.9(e)---Possession of narcotics---Bail, grant of---Further inquiry---Deeper appreciation could not be gone into at the bail stage, but only tentative assessment was to be glade just to find out as to whether accused was connected with the commission of offence or not---Accused was in custody of the Police ever since 19-3-2010 and he had been implicated in the case on 22-3-2010---No private witness was associated at the time of arrest of accused, though his arrest had been shown from a thickly populated area---Weight of the substance was only 1100 grams and it was yet to be seen as to whether provisions of S.9(b) of Control of Narcotic Substances Act, 1997 would be attracted or 9(c) thereof would apply---Since delay was in sending the sample to Laboratory, benefit of such delay on the part of prosecution was to be extended to accused---Case being that of further inquiry in terms of S.497(2), Cr. P. C., accused was admitted to bail, in circumstances.

Hakeem Jamali v. The State 2009 PCr.LJ 695 and Taj Ali Khan v. The State 2004 YLR 439 ref.

Manzoor Hussain Larik for Applicant.

Zulfiqar Ali Jatoi, Deputy Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 868 #

2011 Y L R 868

[Karachi]

Before Bhajandas Tejwani, J

Malik CHANGEZ KHAN and 4 others---Petitioners

Versus

PROVINCIAL POLICE OFFICER, KARACHI and 7 others---Respondents

Constitutional Petition No.S-1043 and C.M.A. No.4713 of 2010, decided on 26th October, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Accused petitioners had sought protection against involvement and harassment by the police in the F.I.Rs. registered after 19 years of the alleged incident---Deputy Director of Anti-Corruption Establishment had admitted that they had been unable to locate or arrest any public servant involved in the alleged crime and that no permission from any competent authority was available on record for arrest of the present accused---Fundamental Rights enshrined in the Constitution had fully protected the rights of persons with regard to their lives and liberty and their treatment in accordance with law, which was an inalienable right---State functionaries, however, appeared to have been flagrantly and frequently violating the law and even they were not respecting the orders and directives of the High Court---High Court in such a situation would not refrain itself from assuming the jurisdiction to undo the wrong and the save the respectable citizens of the country from the pre planned victimization---Police including the Anti-corruption police were acting against the accused persons on the influence and advice of some political figure with mala fide intention---Despite the direction of High Court that the accused would not be arrested till a specified date without its permission, Anti-Corruption Department had arrested them in an Anti-corruption matter allegedly taken place 19 years back---Accused in circumstances were allowed interim post-arrest bail in all the registered cases with the direction to the Inspector General of Police and the Director Anti-corruption concerned not to arrest then in any case without leave of High Court---Present order of the High Court was to remain effective for six months---Constitutional petition was disposed of accordingly.

Abdul Wahab Baloch, Kh. Naveed Ahmed, Ghulam Akbar Jatoi, Syed Ghulam Ali Shah and Sardar Aslam Afridi for Petitioners.

Adnan Karim Memon, Asst. A.-G., Sindh and Haji Abdul Majeed, for State along with Aftab Mujahid Israr, Deputy Director, Muhammad Ismail Abbasi, Assistant Director (Executive) and Muhammad Murad Channa, Circle Officer, ACE, Hyderabad.

YLR 2011 KARACHI HIGH COURT SINDH 878 #

2011 YLR 878

[Karachi]

Before Bhajandas Tejwani, J

LIAQUAT ALI CHANNA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-348 of 2010, decided on 15th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, acts done by several persons in furtherance of common object---Bail, grant of---Delay in trial---Further inquiry---Fair and expeditious trial was a recognized constitutional right of each accused---Delay of 3-1/2 years in conclusion of the trial entitled accused to the concession of bail---Accused was not found to have led the commission of alleged offence as principal accused in investigation with direct role of committing the murder---Case required further inquiry---Bail was granted.

Peeral v. The State 2005 YLR 358 rel.

Syed Ghulam Mustafa v. The State 2007 PCr.LJ 139 ref.

Zuber Rajput for Applicant.

Shyam Lal Ladhani for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 885 #

2011 Y L R 885

[Karachi]

Before Amir Hani Muslim and Irfan Saadat Khan, JJ

MUHAMMAD USMAN---Appellant

Versus

RAMZAN and others---Respondents

Criminal Acquittal Appeal No. D-25 of 2010, decided on 25th November 2010.

Penal Code (XLV of 1860)---

----Ss. 302/337-A(i)/337-F(v)/504/34---Qatl-e-amd, causing of hurts "Shajjah" and "Ghayr jaifah", intentional insult with intent to provoke breach of the peace---Criminal Procedure Code (V of 1898), S. 417(2-A)---Appeal against acquittal---Complainant and his counsel despite having been given many opportunities did not appear before the Trial Court to make their submissions in the private complaint and sought unnecessary adjournments---F.I.R. was registered after three months and twenty days of the incident on the basis of N.C. already recorded at the instance of the deceased---No evidence or material had been produced either before Trial Court or High Court to substantiate that the cause of death of the deceased was the injuries caused by the accused during the occurrence---Deceased had remained in the hospital for about .one month and instead of getting himself fully cured had left the hospital against medical advice---Complainant had been making contradictory statements at different stages---Prosecution had failed to prove on record that the accused had caused the death of the deceased---Impugned judgment of acquittal did not call for any interference---Appeal was dismissed accordingly.

Muhammad Shafi Kashmiri for Appellant.

Present in person for Respondent No.1

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

YLR 2011 KARACHI HIGH COURT SINDH 893 #

2011 Y L R 893

[Karachi]

Before Muhammad Ather Saeed, J

ANJUM IQBAL VARSEY---Petitioner

Versus

THE STATE through F.I.A., Police Station Corporate Crime Circle, Karachi---Respondent

Criminal Bail Applications Nos. 1413, 1434 of 2010 and 1 of 2011, and decided on 30th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.409/109/34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, corruption and corrupt practice---Bail, grant of---Further inquiry---Where more than one statements/ reports of version were required and both of them appeared to be plausible, then further enquiry was needed to determine as to which of those statements/ reports was correct; as to which of the laboratory report was correct; as to the specific role of accused; as to why they had been nominated; and no other employees of the pre-shipment inspection companies had been nominated; as to whether any benefit of the alleged illegal gains acquired mala fidely with connivance of Officials, had been passed on accused and to determine as to how the accused could be charged under S.409, P.P.C. and under S.5(2) of Prevention of Corruption Act, 1997---Acc4sed, in circumstances were entitled to bail.

Khadim Hussain v. The State 2010 YLR 2919; Saeed Ahmed v. The State 1996 SCMR 1132; Muhammad Iqbal v. The State 2003 YLR 2346; Raza Muhammad Sial v. The State 1988 SCMR 1223; Adil Faheem Rizvi v. The State 2004 MLD 1940; Wajid Ali v. The State 2000 MLD 1572; Abdul Salam v. The State 2010 YLR 2033; Abdul Salam v. The State 1980 SCMR 142; Fide Hussain v. State PLD 2002 SC 46; Muhammad Yousuf v. The State 1983 SCMR 102 (1); Khadim Hussain v. State 1983 SCMR 124; Walayat and another v. State- 1984 SCMR 530; Mst. Fahmida Begum v. Federation of Pakistan PLD 2000 Lah. 602; Ch. Abdul Karim v. Grown PLD 1951 Lah. 342 and S.G. Guha v. Emperor AIR 1930 Rangoon at 332 ref.

Kh. Shamsul Islam for Applicant (in Criminal Bail Application No.1413 of 2010.)

S. Mehmood Alam Rizvi for Applicant (in Criminal Bail Application No.1434 of 2010).

Rasheed A. Razvi for Applicant (in Criminal Bail, Application No. 1 of 2011).

Rizwan Dodani Standing Counsel appearing for Federal Investigation Agency (FIA) along 'with Inspector Sirajuddin Panhwar I.O. of the Case.

YLR 2011 KARACHI HIGH COURT SINDH 907 #

2011 YLR 907

[Karachi]

Before Nisar Muhammad Shaikh, J

Syed WAZIR ALI SHAH---Petitioner

Versus

THE STATE and 9 others---Respondents

Criminal Acquittal Appeal No.S-9 of 2003, decided on 28th May, 2010.

Penal Code (XLV of 1860)---

---Ss. 506, 504, 380, 447, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Criminal Procedure Code (V of 1898), S.417---Criminal intimidation, intentional insult, theft in dwelling house, criminal trespass---Appeal against acquittal---Appraisal of evidence--Version of the complainant as mentioned in his direct complaint was not corroborated by his own evidence recorded by the Trial Court as he disclosed no name of accused persons or any of their weapons, nor deposed about the alleged abuse or the threats issued to hint by accused---Copy of the complaint, which was initially moved before the S.S.P., had not been produced during evidence in support of alleged version---No corroborative evidence was adduced by the complainant regarding second incident; and his evidence as well as of his two witnesses, was contradictory creating doubts in his alleged version---No recovery was available to connect accused persons for the alleged theft etc.---Since the self contradictory evidence of the complainant was not also corroborated by his witnesses on material particulars, itself created doubt in his alleged version, which did not constitute any offence with which accused were charged, no conviction could be warranted on such doubtful evidence---Trial Court had properly appraised relevant evidence available on record by making careful examination of the same which had not been misread or omitted front consideration---Impugned judgment of acquittal, in circumstances was unexceptionable, as same did not suffer from any factual or legal infirmity---Judgment of acquittal appeared to be the result of fair and legal appraisal of evidence on record with sound reasons---Since the complainant had not been able to show that the findings of the Trial Court were perverse, illogical, artificial or based on misreadings of evidence leading to miscarriage of justice; and since double presumption of innocence- was attached to the judgment of acquittal, appeal of the complainant against acquittal deserved no merits, in circumstances---Appeal was disallowed.

None present for Appellant.

Hafiz Musab Baleegh Dhamrah, State Counsel.

Nemo for present for Respondents Nos. 2 to 10.

Date of hearing: 28th May, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 913 #

2011 YLR 913

[Karachi]

Before Nisar Muhammad Sheikh and Imam Bux Baloch, JJ

ESSO---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.D-104 and S-103 of 2006, decided on 31st May, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Qatl-e-amd and attempt to commit qatl-e-amd--Appreciation of evidence---Benefit of doubt---Old/previous enmity existed between the parties---Enmity would cut both the ways, as it could be a motive of crime; and same could also be a reason of false implication---F.I.R. revealed that deceased had died at .the spot instantaneously, but medical evidence had clearly showed that time between the injuries and death was about half an hour and not instantaneous---Complainant in his cross-examination had deposed that F.I.R. was lodged by the Police after visiting the place of vardat---F.I.R. was proved to have been lodged after due consultation and deliberation, mala fidely showing same to have been lodged very promptly, which otherwise was not believable in circumstances of the case--Incident was a dark right occurrence and complainant party could not prove that electric bulb was available at the place of incident---Contradiction existed between ocular evidence and medical evidence and all such contradictions, had created doubts in the prosecution case---Independent villagers who had allegedly attracted at the spot after hearing the cries and firing, were not examined by the prosecution to corroborate the alleged incident---On the contrary only the close relatives of the complainant were examined by the prosecution---Prosecution witnesses though were related to the complainant, but despite that their evidence was contradictory on material particulars---Ocular account furnished by the prosecution, was not confidence inspiring---No circumstantial evidence of the nature to connect accused for the alleged crime was available---No other evidence' was produced to corroborated the prosecution case as set up in the F.I.R.---Conviction and sentence awarded to accused could not be sustained and accused being entitled to the benefit of doubt, were acquitted of the charges and were ordered to be released.

Asif Ali Abdul Razak Soomro for Appellants.

Naimatullah Bhurgri for the State.

Date of hearing: 19th May, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 931 #

2011 YLR 931

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

HASSAN AHMEDULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.169 of 2010, decided on 19th July, 2010.

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

----S.497---Bail, grant or refusal of---Principles---Decision about innocence or guilt of a person facing trial---Granting or refusal of bail---While deciding innocence or guilt of a person standing trial, the Trial Court was not to be swayed in any manner, whatsoever by any observation made by the High Court or even Supreme Court in a matter dealing with grant or refusal of bail to accused---Such was so because all such observations were tentative in nature and could not foreclose the matter before trial or preclude the Trial Court from making its independent, yet deeper and penetrative assessment of the evidence brought before it---Such deeper and penetrative exercise was not and indeed it could not be and should not be, carried out while bail was being considered.

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

----Ss. 409, 420, 468, 471 & 477-A---Qanun-e-Shahadat (10 of 1984), Art.129---Criminal breach of trust, cheating, forgery, falsification of account---Appreciation of evidence---Series of circumstantial evidence were on record which went against the accused---Accused, a Dank employee had received the cheque book containing seven unused cheques from account-holder, who came to close the account; four months thereafter accused visited the account-holder and asked her to return the cheque-book; and the account-holder stated to him that she had already given him the cheque-book; both said aspects were clearly stated by the account-holder in her deposition and no question, whatsoever was asked in her cross-examination in that regard; account-holder stated that after signing she handed over advice to accused who sent to NIFT; and lastly the person to whom it was allegedly sent, stated that he did not receive the same---All such aspects had remained un-shaken and un challenged throughout--Article 129 of Qanun-e-Shahadat, 1984, mandated that a court was to presume the existence of any fact which it thought likely to have happened, having regard to the common course of natural events, human conduct and public and private business---When accused received cheque-book from the account-holder and did not destroy or otherwise made it unusable, and then to cover the tracks, he visited the account-holder after the fraud had been committed, things speak for themselves---Conviction of accused was upheld.?

Syed Mahmood Alam Shah v. The State PLD 1987 SC 250; Nasim Ahmad v. The State 1992 MLD 620; Allah Dino and 2 others v. Muhammad Umar and 2 others 1974 SCMR 411; Sailendar Nath Halder v. The State PLD 1970 Dacca 690; Nando Lal Malik v. Punchanon Mukerjee AIR 1918 Calcutta 618 and Subedar Fazal Hussain v. Qazi Muhammad Bashir and 12 others PLD 1982 SC AJ&K 89 ref.

Faiz H. Shah for Appellant.

Umar Hayat Sindhu, D.A.-G. for Respondent.

Dates of hearing: 7th and 9th July, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 946 #

2011 Y L R 946

[Karachi]

Before Abdul Hadi Khosa and Syed Zakir Hussain, JJ

QURBAN ALI and others---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-92 of 2005, Criminal Acquittal Appeal No.3 and Criminal Revision No.D-2 of 2006 decided on 20th October, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 34, 147, 148, 149, 114 & 504---Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd, acts done by several persons in furtherance of common intention, rioting, rioting armed with deadly weapon, offence committed by member of unlawful assembly in furtherance of common object, abettor present when offence is committed, intentional insult with intent to provoke breach of the peace---Appeal against acquittal---Appreciation of evidence--Sentence, reduction in---Mitigating circumstances--- Eye-witnesses corroborated each other as well the story of the F.I.R. without any material variations---Case against accused had been established beyond reasonable doubt, however, delay in forensic reports and young age of the first offender who was the only earning hand of his family constituted mitigating circumstances calling for reduction in the sentence of the accused---Appeal against acquittal was dismissed.

Habibullah G. Ghouri for Appellant (in Criminal Appeal No.D-92 of 2005).

Altaf Hussain Surahio, State Counsel (in Criminal Appeal No.D-92 of 2005).

Khalid Iqbal Memon for Appellant (in Criminal Acquittal Appeal No.D-3 of 2006).

Altaf Hussain Surahio, State Counsel (in Criminal Acquittal Appeal No.D-3 of 2006).

Khalid Iqbal Memon for Appellant (in Criminal Revision Application No.D-2 of 2006).

Altaf Hussain Surahio, State Counsel (in Criminal Revision Application No.D-2 of 2006).

YLR 2011 KARACHI HIGH COURT SINDH 955 #

2011 Y L R 955

[Karachi]

Before Syed Zakir Hussain, J

HADI BUX---Petitioner

Versus

PROVINCIAL POLICE OFFICER and 3 others---Respondents

Constitutional Petition No. S-1801 of 2010, decided on 5th November, 2010.

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art.199---Constitutional petition---Qatl-e-amd---Petitioner, complainant of F.I.R., sought arrest of Police officials nominated in the F.I.R.---Validity---Purpose of F.I.R. registered on the prima facie fair statement of the complainant was frustrated by dishonest investigation of the Investigating Officer who recorded statements of prosecution witnesses and the complainant and submitted the report C' class---Persons produced as witnesses could not be believed to have made statements denying the commission of any offence at all---Inaction and indifference of Police high-ups to murders committed by Police officials under the garb of Police encounters was beyond the pale---Police officials involved in killing had to be treated like other murderers---Case was destroyed by the Investigating Officer and the other officers who acted on his opinion leading to submission of challan inC' class---`C' class report submitted by the Police before Judicial Magistrate was rejected/recalled for not being fair--Investigating Officer was directed to arrest the S.H.O. Police nominated in the F.I.R. and hand over his custody along with case record to the Deputy Superintendent Police who was appointed new Investigating Officer of the case---Order accordingly.

Nisar Ahmed Ghulam Hyder Abro for Petitioner.

Azizul Haq Solangi Asstt: A.-G. along with SIP Syed Fakharuddin I.O. and accused SIP Imam Bux Lashari.

YLR 2011 KARACHI HIGH COURT SINDH 961 #

2011 YLR 961

[Karachi]

Before Abdul Hadi Khoso and Syed Zakir Hussain, JJ

NOOR MUHAMMAD LUHAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-51 of 2009, decided on 19th October, 2010.

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

----S. 9(b)(c)---Possession of narcotics---Appreciation of evidence---Accused contended that Mashirnama having not mentioned whether the sample of 500 grams of contraband was taken out of all eleven packets or not, such sample would be deemed to have been taken out of only one packet attracting S.9(b) and not S. 9(c) of the Control of Narcotic Substances Act, 1997---Validity--Accepting accused's plea, High Court altered conviction of accused from under S.9(c) of the Control of Narcotic Substances Act, 1997 to the one under S.9(b) of the Act.

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

Ali Nawaz Ghanghro for Appellant.

Ali Raza Pathan counsel State.

Date of hearing: 19th October, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 965 #

2011 Y L R 965

[Karachi]

Before Imam Bux Baloch, J

MUHAMMAD SALEH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.88 of 2004, decided on 30th April, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Prosecution case rested only on circumstantial evidence---Witness having seen the deceased for the last time in the company of accused was related to the complainant and his statement was not supported by any evidence---Brother of the said witness who was also with him at the relevant time had not been examined by the prosecution---Medical evidence had totally wiped out the claim of complainant that on the day of incident deceased had left his house on his donkey cart and also the claim of the witness of last seen regarding having seen the deceased with the accused at 11 a.m. on the said day--Recovery of NIC and shoes of the deceased from the place of occurrence could not connect the accused with the crime---No motive, weak or strong, had been shown against the accusesl to kill the deceased--Extra-judicial confession allegedly made by accused disclosed that accused had killed the deceased in order to rob his donkey cart, but as per complainant and another witness the donkey cart of the deceased was also available near his dead body---Delay of one and a half months in the supplementary statement made by complainant and in recording the statement of another witness under S.161, Cr. P.C. implicating the accused in the case, was also fatal to prosecution case---Chain of circumstances set forth by the prosecution through highly interested witnesses closely related inter se, had created reasonable doubts in the prosecution case, which was replete with contradictions and improbabilities---Accused was acquitted in circumstances.

Rehmat v. State PLD 1977 SC 515 and Wall Muhammad v. The State 1982 PCr.LJ 798 ref.

Asif Ali Abdul Razak Soomro for Appellant.

Miss Rubina Dhamrah for the State.

Abdul Jabbar Lashari for the Complainant.

Date of hearing: 5th April, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 982 #

2011 YLR 982

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

KHADIM HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.61 and Criminal Revision Application No.82 of 2007, decided on 13th May, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)/34--- Qatl-e-amd---Appreciation of evidence---Ocular evidence was unimpeachable, trustworthy and confidence-inspiring---Eye-witnesses were unanimous on all aspects of the case---Mere relationship of eye-witnesses with the deceased was no ground to discard their trustworthy evidence---Incident had occurred in day time and one accused had been arrested on the main road by giving a chase, with the blood-stained revolver---Defence plea taken by other accused of alibi had not been substantiated .by him---Motive for the occurrence had been established---Dead bodies of both the deceased were found lying in the house of the accused---Accused had killed two innocent ladies on a petty matter without any cause or reason---Defence evidence being interested and partisan was not credible---Trial Court had already taken a lenient view by awarding lesser sentence to accused---Appeal was dismissed in circumstances.

Sahib Dino v. The State 2000 PCr.LJ 1191; Asghar v. The State 1999 PCr.LJ 20; Irshad and another v. The State 1999 SCMR 1030; and Iftikhar Hussain and others v. The State 2004 SCMR 1185 distinguished.

Abdullah and another v. The State 1999 SCMR 1034; Manzoor Ahmed v. The State 1999 SCMR 132; Talib and 2 others v. The Crown PLD 1955 Federal Court 42; Imam Ali alias Eniam Sadar and others v. The State PLD 1966 Dacca 83 and Letha Ram v. Wram and others 1986 SCMR 1056 ref.

Habibullah G. Ghori for Appellant.

Naimatullah Bhurgri for the State.

Date of hearing: 5th May, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 997 #

2011 YLR 997

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

RIAZ ALI alias RAJOO---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.D-184 of 2008, decided on 31st May, 2010.

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

----S. 561-A---Inherent jurisdiction of High Court---Not an alternative jurisdiction or additional jurisdiction; it was only in the interest of justice to redress grievances, when no other procedure was available---Power given by S.561-A, Cr.P.C., could certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.

The State, through Additional Advocate-General, High Court of Sindh v. Raja Abdul Rehman 2005 SCMR 1544; The State v. Asif Ali Zardari and others 1994 SCMR 798; Mst. Faiz Begum v. The State 1995 PCr.LJ 1601; Asif Ali Zardari v. The State PLD 2008 Kar. 310 and A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

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

----S. 561-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Quashing of proceedings---Application for---Case was pending in the court of competent jurisdiction and it was for that Court to decide the case after evaluating and appraising evidence; and the prosecution be given a chance to adduce its evidence---Frequent exercise of inherent jurisdiction contemplated under S.561-A, Cr.P.C. was deprecated---Application for quashment was dismissed in circumstances.

Asif Ali Abdul Razak Soomro for Applicant.

Naimatullah Bhurgri for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1010 #

2011 Y L R 1010

[Karachi]

Before Gulzar Ahmed, J

QAISER KHAN and another---Petitioners

Versus

DISTRICT AND SESSIONS JUDGE, SANGHAR and 2 others---Respondents

Criminal Revision Application No. S-86of 2009, decided on 8th September, 2009.

Penal Code (XLV of 1860)---

----Ss.193 & 195---Giving false evidence--Sessions Judge who found that the complainant and prosecution witness had given false evidence, issued a notice under S.193, P.P.C. to the complainant as well as said prosecution witness; to which both of them had submitted reply and contested the notice---Sessions Judge, after hearing the counsel, passed order whereby S.H.O. Police Station concerned had been directed to register the case against the complainant only, but nothing had been said' in respect of prosecution witness---Complaint of offence under S.193, P.P.C., had to be made in writing by the court before whom such offence had taken place---Impugned order to such extent did not appear to be sustainable in law---Same was set aside and case was remanded to the Sessions Judge for passing order afresh keeping in view the relevant provision of law after hearing the parties.

Hameedullah Dahri for Applicant.

Muhammad Iqbal Kathoro Additional Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1024 #

2011 Y L R 1024

[Karachi]

Before Shahid Anwar Bajwa, J

Mst. IMAMZADI---Petitioner

Versus

THE PROVINCIAL.POLICE OFFICER/I.G. SINDH, and 3 others---Respondents

Constitutional Petition No.1023 of 2009, decided on 12th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 173---Constitution of Pakistan, Art.199---Constitutional petition---Restraining Police officials from submitting report under S.173, Cr.P.C.-Counsel for the petitioner stated that on directions of High Court, statements of the prosecution witnesses had been recorded by the Police, but the Police was not submitting report under S.173, Cr.P.C.---Counsel for the petitioner had stated that he would be satisfied, if Police authorities were directed to submit their report after taking into consideration the statements of all the witnesses before the concerned Judicial Magistrate; and thereafter the Judicial Magistrate was directed to pass well considered and reasonable order---Restraint order was recalled by High Court and Police authorities were directed to submit a well considered and proper report before concerned Judicial Magistrate, who would thereafter pass administrative order after considering all the evidence and the report in accordance with the law.

Nisar Ahmed G. Abro for Petitioner.

Azizul Haq Solangi, Asstt: A.-G. for Respondents.

2011 Y L R 1091

[Karachi]

Before Shahid Anwar Bajwa, J

ALI MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1189 of 2010, decided on 8th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-H(2), 403 & 34---Attempt to commit qatl-e-amd, hurt by rash or negligent act, dishonest misappropriation of property--Bail, grant of---Benefit of doubt---Mashirnama of place of wardat, did not indicate any blood stained earth and no empties had been shown to have been recovered---Time of occurrence as recorded in medical report was different to one as stated in F.I.R.---Benefit of doubt could be extended to accused, even at bail stage---Accused being entitled, he was admitted, in circumstances.

PLD 1998 SC 97 ref.

Qurban Ali Malano for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 1095 #

2011 Y L R 1095

[Karachi]

Before Munib Akhtar, J

ABU SALEH---Petitioner

Versus

LEARNED IIND CIVIL JUDGE AND JUDICIAL MAGISTRATE, BADIN

and 2 others---Respondents

Criminal , Miscellaneous Application No.S-24 of 2011, decided on 17th January, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 523 & 550---Seizure of vehicle suspected to be stolen---Application for delivery of vehicle---Applicant who claimed to be owner of seized property had stated that without any cause, his vehicle had been taken into custody by the Police under S.550, Cr.P.C.---Counsel for applicant had stated that application was made under S.523; Cr.P.C. for immediate release of vehicle; and that proper registration documents in original, which were in possession of the applicant, were shown to the Magistrate; that Magistrate instead of considering the same, dismissed the application on the ground that proper verification from the Excise and Taxation Department, was awaited---Deputy Prosecutor-General had stated that proper course would to have said verification to confirm that the applicant was true owner of the vehicle---Impugned order was set aside and applicant was directed to appear before the Magistrate---Lt case the police were unable to specify the reasons as to why they suspected that vehicle was stolen or otherwise involved in commission of any offence; and on perusal of original Registration Book of the vehicle; the Magistrate was prima facie satisfied that vehicle was not involved in any crime; or was stolen property; and that prima facie it belonged to the applicant, he would make appropriate order under S.523, Cr.P.C. for interim release of the vehicle to the applicant, pending final confirmation from Excise and Taxation Department.

M. Sachal R. Awan for Applicant.

Syed Meeral Shah Deputy Prosecutor-General.

YLR 2011 KARACHI HIGH COURT SINDH 1120 #

2011 Y L R 1120

[Karachi]

Before S. Zakir Hussain, J

MUHAMMAD ASIF ALI SIDDIQUI alias ALI and another-Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.180 and M.A. No.3298 of 2009, decided on 23rd September, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---No postmortem examination of the deceased having taken place, cause of death could not medically appear to be so declared while there appeared a medical certificate produced in evidence not by the doctor, but by Investigating Officer---No doctor had been examined in the matter to establish such medical report---State Counsel admitted that cause of death was nowhere proved throughout the case due to lack of medical evidence---Other evidence which had come through statements of private witnesses, who were declared hostile, established that deceased stood burnt, but how and at whose hand, was not disclosed by them---Doubt existed in ocular account as to who caused the incident or who were actual culprits---Owing to lack of medical evidence as to injuries and cause of death of the deceased, charge of murder under S.302/34, P.P.C., was not proved beyond shadow of any reasonable doubt; and prosecution had failed to discharge its respective burden thereagainst--Investigation carried out in the matter, seemed to be an unfair and dishonest one--Evidence, was not of first degree in nature as same was carrying lapses of serious nature which served as mitigating circumstances for lesser punishment---Conviction awarded and sentence passed under S.302, P.P.C., were converted into that of S.324/34, P.P. C. in the interest of justice---Accused would accordingly be deemed to have stood convicted under S.324, P.P. C. and sentenced thereunder to suffer R.I. for the period they had already undergone.

Mehmood A Qureshi and Jamshed Iqbal for Appellants.

Abdullah for A.P.-G.

YLR 2011 KARACHI HIGH COURT SINDH 1138 #

2011 YLR 1138

[Karachi]

Before Muhammad Tasnim, J

MANZOOR HUSSAIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No.S-625 and

M.A. No.2541 of 2010, decided on 28th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, acts done in furtherance of common intention---Bail, grant of---Rule of consistency---Further inquiry---Two accused armed with kalashnikovs were released on bail---Case of the empty-handed accused with no specific role was on a higher pedestal than those of the accused released on bail---Allegations against the accused with specific role of firing pistol shot were not supported by medical evidence---Affidavits submitted by the prosecution witnesses in support of the innocence of the accused at initial stage were liable to be taken into consideration---Empty-handed accused was granted bail following rule of consistency while accused with specific role was released on bail as his case required further inquiry.

Abdul Salam v. The State 1980 SCMR 142 and Muhammad Nawaz alias Najja v. The State 1992 SCMR 111 fol.

Mohsin v. The State 1977 PCr.LJ 159; Zulfiqar v. The State 2002 PCr.LJ 791; Rehmat Ali and another v. The State 1979 SCMR 30; Syed Zahid Ali v. The State 1993 PCr.LJ 1489; Haji Inaytul Haq v. Said Muhammad Khan and another 1988 SCMR 1743; Muhammad Saddique v. Muhammad Abbass and another 1998 SCMR 284; Mumtaz Ali v. The State PLD 2007 Kar. 127 and Ibrahim v. Hayat Gul and others 1985 SCMR 382 ref.

Mushtaque Hussain Shah and Miss Rizwana Jabeen Siddiqui for Applicants.

Shyme Lal A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1147 #

2011 Y L R 1147

[Karachi]

Before Muhammad Tasnim, J

GHULAM MURTAZA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-292 of 2010, decided on 21st July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 342, 337-H(ii) & 34---Qatl-e-amd, wrongful confinement, rash and negligent act to endanger human life, acts done in furtherance of common intention---Bail, grant of---Further inquiry---F.I.R. was not in line with the statements of witnesses under S.161, Cr. P. C. ---Delay in lodging of F.I.R. and recording of statements of the witnesses cast shadow of doubt on prosecution case necessitating further inquiry---Accused was admitted to bail.

Nooruddin and another v. State 2005 MLD 1267; Mehmood Akhtar v Haji Nazeer Ahmed and 4 others 1995 SCMR 310; Muhammad Haroon and another v. The State 1994 SCMR 2161; Basharat Hussain v. Ghulam Hussain 1978 SCMR 357 and Inayatullah v. The State 2004 YLR 2182 ref.

Mazhar Iqbal v. The State and another 2010 SCMR 1171; Muhammad Azam and others v. The State 1990 SCMR 1319 and Gul Bahr and another v. The State 2002 PCr.LJ 1277 distinguished.

S. Mushtaque Hussain Shah and Miss Rizwana Jabeen for Applicants.

Manzoor Ahmed Junejo for the Complainant.

Shyme Lal A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1156 #

2011 Y L R 1156

[Karachi]

Before Muhammad Tasnim, J

ABDUL HAMEED---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No. S-627 of 2010, heard on 27th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.396---Dacoity with murder---Bail, grant of---Further inquiry---Name of the accused was not mentioned in the daily diary but was subsequently added to the F.LR.---Allegations against the accused were not in line with the medical evidence on record; benefit, if any, should go to the accused---Presence of the accused on crime scene was yet to be determined after recording of evidence---Delay in lodging of the F.I.R. and recording of statements of witness under S.161, Cr. P. C. remained unexplained--- Case required further inquiry---Accused was admitted to bail.

Nooruddin and another v. The State 2005 MLD 1267 rel.

Amjad Ameen v. The State Criminal Bail Application No.S-230 of 2010; Passand and 3 others v. The State 2003 PCr.LJ 747; Attaullah and 3 others v. The State and another 1999 SCMR 1320; Muhammad Akbar and 4 others v. The State and another 1978 SCMR 7; Khadim Hussain v. The State and another 1978 SCMR 147; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Zulfiqar v. The State 2002 PCr.LJ 791; Mehar and another v. The State 2000 PCr.LJ 1178; Muhammad Ali v. The State 2008 PCr.LJ 87; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Syed Amanullah Shah v. The State PLD 1996 SC 241 ref.

Ms. Rizwana Jabeen Siddiqui for Applicant.

Shyam Lal Ladhani, A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1181 #

2011 Y L R 1181

[Karachi]

Before Muhammad Tasnim, J

ABDUL REHMAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-263 of 2010, decided on 8th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of--Earlier, the Trial Court had granted bail to accused persons, but subsequently on application filed by the complainant party, bail was rejected/recalled---Validity--Accused persons had made out case for grant of bail--Once bail had been granted by the Trial Court, it was available not open to the Trial Court to recall such bail without having any material before it that the concession of bail was misused; or accused person absented or avoided judicial process---No material was available on record to substantiate that accused had misused the concession of bail granted to them---Accused were admitted to bail, in circumstances.

Manzoor Hussain Ansari for Applicants..

Syed Jaffar Ali Shall for the Complainant.

Zulfiqar Ali Jatoi, Deputy Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1185 #

2011 Y L R 1185

[Karachi]

Before Muhammad Tasnim, J

MUNAWAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.443 M.As. 2133 and 1830 of 2010, decided on 27th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 402, 399, 337-F(ii) & 427---Attempt to commit qatl-e-amd, assault, assembling for purpose of committing dacoity, badiah to any person and mischief---Bull, grant of---Further inquiry---Evidence at bail stage could not be appreciated and only bird eye-view was to be kept on record just to find out as to whether accused was connected with the commission of alleged offence or not---F.I.R. had shown that the allegations made therein were general in nature and no specific role whatsoever had been assigned to accused---Case fell within the ambit of S.497(2), Cr.P.C. calling for further inquiry at the trial---Accused was released on bail, in circumstances.

Sadaruddin Buriro for Applicant.

Shyme Lal, A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1192 #

2011 Y L R 1192

[Karachi]

Before Muhammad Tasnim, J

MUJAHID SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-424 of 2010, decided on 22nd July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.353 & 324---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)-Assault, attempt to commit qatl-e-amd, haraabah and possessing arms---Bail, grant of---Further inquiry---Incident was unseen and the only witness who was present at the site did not know the name of accused, nor he had ever seen him prior to the incident---No identification parade had been held---Case was fit for grant of bail calling for further inquiry.

Qurban Ali Malano for Applicant.

Shyme Lal A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1220 #

2011 Y L R 1220

[Karachi]

Before Muhammad Tasnim, J

SALAM alias ASLAM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-351 of 2010, decided on 23rd July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 201, 404 & 34---Qatl-e-amd, causing disappearance of evidence of offence and dishonest misappropriation of property---Bail, grant of---Further inquiry---Deeper appreciation of the evidence could not be' gone into at bail stage, but a bird eye view was to be taken to the record available before the court to satisfy as to whether accused was connected with the commission of offence or not---No evidence whatsoever was available on record which connected the accused with the commission of offence under S.302, P.P. C.---Could not be judged at bail stage as to whether the jwellery recovered front jewellery shop was sold by accused to the shopkeeper or someone else---Delay of 10 to 15 days in lodging of F.I.R. had not plausibly been explained by the prosecution---Statements under S.161, Cr.P.C., were also recorded after about 10 to 15 days of lodging of the F.I.R.; while statement under S.164, Cr.P.C. were recorded after about 14 days from the date of lodging of F.I.R. ---Commission of murder of deceased, required further inquiry in terms of 5.497(2), Cr.P.C.---Accused was admitted to bail, in. circumstances.

Mastoo and others v. State PLD 1977 Kar. 354 Sarfaraz Khan v. The State 1996 SCMR 188; Mumtaz Ahmed v. The State 2004 PCr.LJ 853; Ghulam Abbas v. The State 1987 PCr.LJ 569; Jamshed Ahmed v. The State 2006 MLD 288; Bilawal Waleed v. State 2008 MLD 7 and Muhammad Azam and others v. The State 1990 SCMR 1319 ref.

Syed Gulzar Hussain Shah Masomi for Applicant.

Shyam Lal Ladhani, A.P.-G. for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 1226 #

2011 Y L R 1226

[Karachi]

Before Irfan Saadat Khan, J

KHALID MEHMOOD MALIK and 2 others---Applicants

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Application No.303 of 2010, decided on 10th February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 107, 112, 117 & 561-A---Security for keeping the peace---Inquiry as to truth of information---Quashing of proceedings, application for---Deputy District Officer (Revenue), to whom matter was referred, on the same day passed order under S.112, Cr. P.C.---Record did not clearly showed as to whether relevant material was placed by the S.H.O. before the Deputy District Officer or not---Before issuing order under S.112, Cr.P.C., Deputy District Officer must have some material prima facie to form basis before passing said order, but no such basis appeared 'to have been present before hint---Law required that there must be sufficient ground before proceeding wider S.112, Cr.P.C.; Deputy District Officer (Revenue) had acted in a hasty manner without applying his judicial mind to the contents of the report under Ss.107/117, Cr.P.C. and his said action amounted to abuse of process of law--Order passed under S.112, Cr.P.C. had shown that no specific instances giving date, time and place had been shown from which it could be deduced that there was any apprehension of breach of peace, warranting the initiation of proceedings under Ss.107/117, Cr.P.C.---Order passed by Deputy District Officer under S.112, Cr.P.C., appeared to be vague---Proceedings initiated under Ss.107/117, Cr.P.C. pending against applicants before the Deputy District Officer and Special Magistrate concerned, were quashed being illegal.

Mst. Hameeda Begum v. S.H.O., Police Station Rohri PLD 2001 Kar. 235 and Obedaullah v. The State 1997 PCr.LJ 559 ref.

M.M. Tariq for Applicants.

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

Date of hearing: 31st January, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 1230 #

2011 YLR 1230

[Karachi]

Before Irfan Saadat Khan, J

AZHAR AHSAN THANVI---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.340 of 2010, decided on 9th February, 2011.

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

----Ss. 156, 157 & 158---Investigation---Opinion of Investigating Officer---Scope---Courts were not bound by arbitrary opinions of the Investigating Officer--Court had to apply its independent mind to the facts and circumstances of each case---Court could take cognizance even on negative report; and could refuse to take cognizance on positive report, depending upon facts and circumstances of each case.

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

----S. 173---Report of Police Officer---Powers of Magistrate---Scope--Magistrate while exercising his powers under S.173, Cr.P.C., would not act in a mechanical manner; his order must show his application of mind; his opinion must be supported by reasons; and his conclusion must be laced with evidence that judicial mind had been applied-In the present case, though the Magistrate was required to apply his judicial mind, but the order passed by him was not a judicial order, but was an administrative order---Such order in spite of being an administrative order, must be a judicious order.

----Ss. 489-F & 182---Criminal Procedure Code (V of 1898), S.561-A---Dishonestly issuing a cheque, false information with intent' to cause public servant to use his lawful power to the injury of another person---Quashing of order, application for---In the present case, Judicial Magistrate, rather than dilating upon the facts brought before him, had gone astray and decided the matter on extraneous grounds and had totally ignored that the complainant had admitted that cheque in question was not given to her by the applicant/accused, but by another one, who had also not come forward to assist in the proper investigation of the case---Opening of Bank account in the Bank was also shrouded in mystery as the applicant never visited the said Bank---All those facts, prima facie, had shown that applicant was trapped - by fraudulent means---In case applicant could prove that exercise of lodging F.I.R. was a sham, then he was fully entitled to the mechanism provided under S.182, P.P.C., so that all those involved in that fraudulent transaction were brought to book---Allowing application filed under S.561-A, Cr.P.C. impugned order was set aside and case was remanded to Judicial Magistrate concerned to decide the same afresh in accordance with law within 15 days.

Junaid Alam Rizvi for Applicant.

Zafar Ahmed Khan, A.P.-G. for the State.

Nemo for Respondent No.2.

YLR 2011 KARACHI HIGH COURT SINDH 1236 #

2011 Y L R 1236

[Karachi]

Before Tufail H. Ebrahim, J

NASIR ABBAS SOOMRO---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.986 and 1044 of 2010, decided on 6th December, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.409/420/467/471/34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery of valuable security etc,. using as genuine a forged document, criminal misconduct---Pre-arrest bail, grant of--Prima facie, no direct evidence was available to show that the accused had manipulated any Record of Rights or had made any false entry therein---Accused had no concern with the purchaser or the seller or even with the registration of the sale-deed---Allegations made against accused were vague---NOC for sale had been issued and then sale-deed had been registered---F.I.R. was lodged after considerable delay---All documents being in the custody of prosecution, accused were not required for any further investigation---Accused being Government employees, chance of their abscondence was very little---Arrest of accused could cause irreparable loss to their careers and reputation---Prosecution case seemed to be doubtful and guilt of accused required further inquiry---Pre-arrest bail was granted to accused in circumstances.

PLD 2009 SC 427 ref.

Ghulam Abbas Soomro for Applicant.

Ali Azad Salim for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 1250 #

2011 Y L R 1250

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

NOOR MUHAMMAD and another---Petitioners

Versus

THE STATE---Respondent

Special Criminal A.T.As. Nos. 28, 29 and Confirmation Case No.3 of 2009, decided on 30th July, 2010.

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

----Ss.302(b)/34 & 376/34---Qatl-e-amd, rape---Appreciation of evidence---Baby child aged 3/4 years, daughter of complainant, went missing and she was not found---Prosecution case rested on circumstantial evidence-Extra-judicial confession made by the accused at the spur of the moment could not be brushed aside merely being such confession and it could be used as a corroborative piece of evidence, where it would lead to the discovery of substantive, critical and direct evidence, such as discovery of corpusdelicti---Registration of F.I.R. by police after recovery of the dead body of the child had caused no injustice, nor had made the prosecution story doubtful---Medical evidence that the baby girl was brutally sexually assaulted and she died as a consequence thereof, had gone unchallenged-Unimpeachable evidence had proved on record that accused had led the police to a particular spot near a graveyard and from the gutter he recovered a bug containing the dead body of the missing baby girl-'-Prosecution, thus, had proved its case against accused without any doubt---Sentence awarded to accused was commensurate with the crime committed by him---Appeal was dismissed in circumstances.

Imran Ashraf and 7 others v. The State 2001 SCMR 424; Akhtar Ali and others v. The State 2008 SCMR 6; Sanaullah and 3 others v. The State 1999 YLR 815; Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84; 2001 SCMR 434; Dhani Bakhsh and another v. The State 2006 PCr.LJ 1671; Mst. Irshad Bibi v. Iftikhar and others 2008 SCMR 841; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Syed Hashim Ali v. The State 2006 PCr.LJ 1576; Allah Bux Laghari v. The State and others 1993 PCr.LJ 408; Javid Rashid v. The State PLD 1992 Lah. 243; Phalla Masih v. The State PLD 1989 FSC 72; Fayyaz Ahmed v. The State 2008 PCr.LJ 805; Arshad Ali v. The State PLD 2004 Kar. 602; Jawed Ahmed Siddiqui v. The State 2000 PCr.LJ 1721; Muhammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313; Babu Ram and another v. State of U.P. and others 2002 (5) Supreme 236 (Supreme Court of India); Sabz Ali v. The State 1985 PCr.LJ 437; Jahana and another v. The State 1985 PCr.LJ 1829; Muhammad Akbar v. The State 1995 SCMR 693; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Jafar Ali v. The State 1998 SCMR 2669 and Nadeem v. The State 2005 PCr.LJ 1010 ref.

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

----S.154---Police Rules, 1934, R.24.5(c)---Registration of F.I.R.---Provisions to be adhered to strictly---Provisions of S.154, Cr.P.C. read with Rule 24.5(c) of the Polices Rules, 1934, must be adhered to strictly---There should not be any negligence in recording the F.I.R. and supplying copies to the concerned quarters, because departure from the mandatory provisions of law creates a room to doubt the truthfulness of the allegation against the accused incorporated in F.I.R.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 ref.

----Ss. 156 & 161---Supplementary statement of complainant---Status and value---Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with F.I.R. nor read as a part of the same---Subsequent supplementary statement, therefore, is also considered as a statement recorded under S.161, Cr.P.C.

Akhtar Ali and others v. The State 2008 SCMR 6 ref.

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

---- Ss.302(b)/34 & 376/34---Qatl-e-amd, rape---Production of prosecution witnesses---Prerogative of prosecution---Prosecution has the exclusive privilege to decide as to which witness should be or should not be produced at the trial---If prosecution after producing certain witnesses is satisfied that required proof has been brought before the Court, then it cannot be compelled to produce other witnesses cited in the challan---Quality of the evidence and not its quantity or the number of witnesses, which determine fate of the trial.

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

----Ss.302(b)/34 & 376/34---Qatl-e-amd, rape---Appreciation of evidence---Benefit of doubt---Making of an extra judicial confession by the accused was not proved---Accused had neither pointed out any place about the presence of the dead body of the deceased child,, nor did he lead to the recovery of the same---Only evidence against accused was that of last seen, which was contradictory and not reliable---Benefit of doubt was extended to the accused in circumstances and he was acquitted accordingly.

Abdul Wahab Baloch for Appellant.

Ghulam Hussain Qureshi for Appellant.

Farida Moten for the Complainant.

Imtiaz Ahmed Jilbani, A.P.-G. for the State.

Date of hearing: 13th, 14th and 15th July, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 1274 #

2011 Y L R 1274

[Karachi]

Before Syed Hassan Azhar Rizvi, J

NAHEED---Petitioner

Versus

JAMIL AHMAD and 8 others---Respondents

Execution Application No.37 Suit No.811 of 1999 and C.M.A. No.91,3 of .2010, decided on 17th February, 2011.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr.10 & 23-A---Execution proceedings---Objection to execution---Intervenor had filed objection application with prayer therein to investigate his claim that he was owner of plot in question---Record had established that title documents of the subject property were in favour of decree-holder---Nazir of the court in his report had submitted that subject plot had been demarcated by the officials having layout plan of 1972---Counsel for intervenor had not filed any objection to the Nazir's report---Claim of the intervenor on the subject plot was baseless and his application was misconceived and was dismissed---Nazir of the court was directed to take physical possession of the subject plot of the execution proceedings, which had already been demarcated; and hand over physical possession of the same to the decree-holder.

Shaiq Usmani for Decree-Holder.

Khalid Latif for Judgment-Debtor.

YLR 2011 KARACHI HIGH COURT SINDH 1279 #

2011 Y L R 1279

[Karachi]

Before Irfan Saadat Khan, J

ANWAR ALI---Petitioner

Versus

MAZHAR HUSSAIN HISBANI and 7 others---Respondents

Constitutional Petitioner No.S-269 of 2010, decided on 13th December; 2010.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 22-A(6) & 200---Constitutional petition---Maintainability---Petitioner sought registration of criminal case against Police Officials on the ground that said Officials had illegally implicated the petitioner in member of fake cases and that direction be issued to the S.H.O. concerned to register F.I.R. against said Police Officials---Validity---On refusal of the Police to register the F.I.R., adequate remedy was to either approach the Ex-officio Justice of Peace or Magistrate, or to file direct complaint---If a direct complaint was filed before the Magistrate under S.200, Cr.P.C., then under S.202(1), Cr.P.C. Magistrate was empowered to direct the Police to investigate the case and in such a situation the Investigating Officer was authorized to exercise all powers available to him in the Cr.P.C. for investigating the case including the power to arrest the accused---Under S.22-A(6), Cr.P.C. Ex-officio Justice of Peace had the power to issue appropriate direction to the Police to register F.I.R., if cognizable offence was found out in the case---Even the Magistrate could exercise his power under S.156(3), Cr.P.C. in that regard---Provision of Art.199 of the Constitution, was not the .appropriate remedy available to the petitioner---Constitutional petition was dismissed.

2005 PCr.LJ 487; PLD 2002 Kar. 328; 2005 SCMR 951; PLD 2010 SC 691; PLD 2010 Lah. 419; 2009 YLR 1533 and Moula Bux alias Moluedino v. S.H.O. .Police Station Hatri Ghulam Rasool Shah and 2 others 2003 YLR 1316 ref.

Petitioner in person.

Amjad Ali Sahto for Respondents Nos.1, 2 and 4.

Zahoor A. Baloch for Respondents Nos. 5 and 6.

S. Madad Ali Shah, Advocate as Amicus Curiae.

Mukhtar Ahmed Khanzada, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 1282 #

2011 Y L R 1282

[Karachi]

Before Tufail H. Ibrahim, J

BASHIR AHMED---Plaintiff

Versus

Messrs AL-QADEER HOUSING PROJECT through Attorney and 6 others---Defendants

Suit No. 1073 of 2000, decided on 29th September, 2009.

Specific Relief Act (I of 1877)---

---Ss. 12, 42, 54 & 56---Suit for specific performance of agreement, declaration, permanent injunction and damages---Alleged claim of defendant in respect of entitlement of the suit plot had finally been adjudicated against him---Plaintiff seeking relief for specific performance against defendant, in respect of suit plot could not get a better title than. that what defendant had---Since defendant had no right, title or interest in the suit plot in any "manner whatsoever, claim of the plaintiff against the defendant for specific performance and declaration, also stood defeated---Suit by the plaintiff was not maintainable on the grounds of res judicata and within the meaning of Ss.42 & 56 of Specific Relief Act, 1877---Conduct of the plaintiff could not be said to be clean, bona fide and free from collusion with defendant---Suit of plaintiff with all pending applications, was dismissed with costs, in circumstances.

Muhammad Tariq for Plaintiff.

Khawaja Shamsul Islam for Defendant No.3.

Qasier Jameel for Defendant No.5.

Wazir Ali Lakhani for objector 11(a).

YLR 2011 KARACHI HIGH COURT SINDH 1296 #

2011 Y L R 1296

[Karachi]

Before Irfan Saadat Khan, J

MUHAMMAD SHAMIM FAROOQI through Attorney and another---Petitioners

Versus

FAISAL HADI and 2 others---Respondents

Constitutional Petition No.S-202 of 2010, decided on 9th February, 2010.

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

----S. 15---Constitution of Pakistan, Art.199--- Constitutional petition--Ejectment of tenant---Concurrent findings of fact by the Courts below---Ejectment application filed by landlord was accepted by Rent Controller and tenants were directed to vacate the premises---Eviction order passed by Rent Controller was maintained by Lower Appellate Court---Validity-Enough opportunity was provided to tenants to lead evidence but they failed to do so, and they were not condemned unheard---Courts could only provide opportunity to a party to lead evidence but could not compel it to do so---Rent Controller allowed the case on both points of personal requirement as well as subletting and Lower Appellate Court also maintained findings of Rent Controller---Concurrent findings against tenants on the point of subletting and personal requirement---Tenants did not say a single word on the findings in question and High Court in its Constitutional jurisdiction could not interfere with such findings of fact of the Courts below---Tenants failed to show any non-reading or misreading of evidence calling for interference by High Court---Constitutional Petition was dismissed in circumstances.

2004 MLD 587 ref.

M. Saleem Bhatti for Petitioner.

Raja Basantani for Respondent No.1.

Date of hearing: 2nd February, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 1305 #

2011 Y L R 1305

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

THE STATE through Chairman NAB, Islamabad---Appellant

Versus

ADAM KHAN and 5 others---Respondents

Criminal Accountability Acquittal Appeal No.15 of 2008, heard on 12th January, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 18 & 32---National Reconciliation Ordinance (LX of 2007), S.7----Criminal Procedure Code (V of 1898), Ss.265-K & 417(2A)---Corruption and corrupt practices---Appeal against acquittal---Appellant/Chairman NAB had challenged order passed by Accountability Court by which application filed by the respondents/accused under S.265-K, Cr. P. C. was accepted and accused were acquitted---Application filed by accused persons was allowed on the ground that one of co-accused was acquitted under S.265-K, Cr.P.C. and proceedings against some of co-accused were withdrawn and terminated under S.7 of National Reconciliation Ordinance, 2007---So far as the question of acquittal of one of accused persons was concerned, neither the counsel for appellant nor of accused persons were able to show as to on what ground he was acquitted under S.265-K, Cr.P.C.---Benefit of such acquittal could not be extended to accused persons---Benefit of acquittal had been extended to accused on basis of withdrawal and termination of proceedings against the Public Office Holder under the National Reconciliation Ordinance, 2007, which had been declared void ab initio and ultra vires by the Supreme Court and all proceedings which were terminated or withdrawn under the said Ordinance, stood revived---Result of the order of Supreme Court would be that the Public Office Holder against whom reference was withdrawn and terminated under National Reconciliation Ordinance, 2007 stood received, and the justification for acquitting accused under S.265-K, Cr. P. C. would also evaporate---Accused, in circumstances, would not be entitled to obtain benefit of withdrawal and termination of proceedings against the Public Office Holder under the Ordinance---Impugned order was set aside and matter was remanded to the Trial Court for deciding the same in accordance with law.

Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

Muhammad Riaz, Dy. Prosecutor General, NAB for Appellant.

Shafi Muhammad Rajput for Respondents Nos. 2 to 6.

Date of hearing: 12th January, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 1317 #

2011 Y L R 1317

[Karachi]

Before Aqeel Ahmed Abbasi, J

SAEED KHAN-Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 805 of 2009 I decided on 23rd December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.448/386---Sindh Public Property (Removal of Encroachment) Act (V of 1975), S.7(1)---House-trespass, extortion and encroachment---Bail, grant of---Further inquiry---Offences under S.448, P.P.C. and S.7(1) of Sindh Public Property (Removal of Encroachment) Act, 1975, did not fall within the prohibitory clause in terms of S.497(2), Cr. P. C. ---Delay of about more than one year and time, date or any independent eye-witness about the alleged offence had not been mentioned in the F.I.R.---Accused, as per admission of the complainant was in possession of the said plot for more than one year---Similarly ingredient of S.386, P. P. C. also appeared to be missing in view of allegation in the F.I.R., neither the time/date of the alleged offence under S.386, P.P.C. had been mentioned, nor it had been alleged that accused had issued threats or he had put the complainant in' fear of death or of grievous hurt for extortion of money---Case was of further inquiry and the ingredients of S.386, P.P.C. on the face of the contents of F.I.R. and the challan submitted in the Trial Court were clouded---Accused, in circumstances was entitled to grant of bail, which was granted to him.

Mst. Daulan v. Sardara and 5 others 1995 SCMR 177; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Anjum Sheraz v. The State 1997 MLD 3045; Noor Muhammad and another v. Muhammad Tufail 2004 YLR 3330; Nooruddin and another v. The State 2005 MLD 1267 and Muhammad Nadeem v. The State 2007 MLD 926 ref.

Nasir Ahmed for Applicant.

Muhammad Iqbal Awan, A.P.-G. along with Investigating Officer Abdul Razzak for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1319 #

2011 Y L R 1319

[Karachi]

Before Sajjad Ali Shah and Nisar Muhammad Shaikh, JJ

Syeda ZAHIDA RIZVI---Applicant

Versus

THE STATE through D.S.P. and another---Respondents

Criminal Revision Application No.20 of 2010, decided on 28th June, 2010.

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

----Preamble, Ss.2(t), 13, 17 & 21-M---Penal Code (XLV of 1860), S.182---Giving false information with intent to cause public servant to use his lawful power to cause injury to another person---Purpose of enactment of Anti-Terrorism Act, 1990---Powers of Anti-Terrorism Court to try a person accused of offence under S.182, P.P. C. ---Scope---Anti-Terrorism Act, 1990 which provided for the establishment of Anti-Terrorism Court as evident from its preamble, was enacted for the prevention of terrorism, sectarian violation and speedy trial of heinous offence and for matters connected therewith and incidental thereto---Purpose of establishment of Anti-Terrorism Court as envisaged in S.13 of Anti-Terrorism Act, 1997 was to provide a court for speedy trial of scheduled offences---"Scheduled offence" as defined by S.2(t) of Anti-Terrorism Act, 1997 was an offence as set out in the Third Schedule of the Ordinance---Anti-Terrorism Court, while trying an accused of a scheduled offence could also try such person for an offence which did not find mention in the scheduled of offences by trying it as a matter connected and incidental to a schedule offence as envisaged under S.21-M of the Act---Anti-Terrorism Court had no jurisdiction to try an accused for an offence which did not find mention in the schedule of offences---Offence under S.182, P.P. C., did not find mention in the scheduled offences to Anti-Terrorism Act, 1997, his trial before the Anti-Terrorism Court appeared to be without jurisdiction. ?

Rathinam Pillai v. Emperor AIR 1932 Madras 427; Mst. Rani Begum v. Murad Bibi and another 2002 MLD 459; Haji Muhammad and another v. Noor Hussain Alwani 1993 PCr.LJ 767; Qutub Din v. The State and another 2002 PCr.LJ 366; Maulana Muhammad Ryas Qadri v. Superintendent of Police, Haripur District 2005 PCr.LJ 623; Muhammad Murad v. The State 1983 PCr.LJ 1097; Muhammad Anwar v. The State 2000 YLR 2595 and Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik PLD 2007 SC 571 rel.

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

----S. 182---Criminal Procedure Code (V 4 1898), Ss.195 & 561-A---Giving false information with intent to cause. public servant to use his lawful power to cause injury to another person---Quashing of proceedings---Very nature of an offence under S.182, P.P.C. was such that an accused charged for committing such offence was always tried in seclusion for giving false information to public servant in order to use his lawful authority to cause injury to another person---Trial of accused charged with an offence under S.182, P.P.C. or the punishment for committing such offence, would not change with the gravity of false information---Such would remain a magisterial trial with maximum punishment of six months or fine of Rs.3,000 or both, notwithstanding the fact that the false information given by such accused was for an offence exclusively triable by Anti-Terrorism Court and carried capital punishment or a minor offence carrying punishment for a month---In the present case nothing was available on record to show that the Public Officer before whom .such information was given by accused was subordinate to the complainant---Filing of complaint by Investigating Officer, did not appear to be in terms of S.195, Cr.P. C.---Before initiating proceedings under S.182, P.P.C. the court was required to give a show-cause notice to person who allegedly gave false information and require him to explain as to why complaint under S.182, P.P. C. be not lodged against him---If such person would plead that he had made the. report under misapprehension, he was entitled to lead evidence to that effect and a complaint could be only lodged once the Magistrate would come to a prima facie conclusion that the information given was deliberately false---Proceedings were ordered to be quashed. ?

Khan Ghulam Qadir Khan Khakwani v. A.K. Khalid PLD 1960 (W.P.) Lah. 1039; Muhammad Murad v. The State 1983 PCr.LJ 1097 and Muhammad Anwer v. The State 2000 YLR 2595 ref.

Ms. Noor Naz Agha for Applicant.

Ms. Akhtar Rehana, Additional Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1334 #

2011 Y L R 1334

[Karachi]

Before Syed Hasan Azhar Rizvi, J

Mrs. ABIDA SALEEM---Plaintiff

Versus

Messrs A.I. BROTHERS (PVT.) LTD. and another----Defendants

Suit No.1628 and, C.M.As. Nos.8927, 8928 of 2008, and 10593 of 2007, decided on 28th February, 2011.

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

----O. VII, R.11---Rejection of plaint--Averments made by the plaintiff in the memo of plaint was to be accepted as correct for the purpose of considering the rejection of plaint.

Ghulam Qadir v. Khandu PLD 2004 SC 62; Abbas Ali Shah v. Ghulam Ali 2004 SCMR 1342; Haji Abdul Karim and others v. Messrs Florida Buliders (Pvt.) Limited PLD 2010 Kar. 17; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Mst. Batul and others v. Mst. Razia Fatal and others 2005 SCMR 544; Muhammad Ayub v. Abbas Ali 2005 MLD 774; Rana Allah Bakhsh v. Ghulam Sakina 2005 MLD 1700; Faheem Ahmed v. Ata-ur-Rehman 2007 CLC 1746 and Industrial Development Bank of Pakistan v. Muhammad Ayub Stone Crushers and others 2009 SCMR 611 ref.

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

----O.IX, Rr. 6 & 13---Specific Relief Act (I of 1877), Ss. 12, 42, 54 & 55---Suit for specific performance of contract, declaration, perpetual and mandatory injunction---Ex parte order,' setting aside of---In the present case, direct service upon the defendant having not been effected, in order to avoid multiplicity of litigation, application filed by the defendant seeking recalling the 'ex parte order, was allowed and impugned order was recalled.

Syed Tariq Ali Ahmed for Plaintiff.

Saalim Salam Ansari for Defendant No.1.

Ijaz Ahmed Defendant No.2.

YLR 2011 KARACHI HIGH COURT SINDH 1344 #

2011 Y L R 1344

[Karachi]

Before Sarmad Jalal Osmany, C.J.

KHADIM HUSSAIN and others---Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.567, 897 of 2010 and 1360 of 2009, decided on 6th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302/120-B/114/201 /147/148/149---Qatl-e-amd, criminal conspiracy, causing disappearance of evidence of offence--Interim bail, confirmation of---Crime against accused was unwitnessed one and' prosecution was not armed with any piece of evidence, which could prima facie connect accused persons with the crime in question---Perhaps some religious element was involved, as one of the witnesses stated that he had heard cries of "Gustakh-e-Rasool" raised by some of the inmates on the night of the incident--Interim bail already granted to accused was confirmed on the same terms and conditions for all accused persons as interim bail.

Hameedullah Dahri for Applicants (in Criminal Bail Applications Nos.567 and 897 of 2010).

Jamil Ahmed Mufti for Applicants (in Criminal Bail Application No.1360 of 2009).

Ali Haider Saleem A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1348 #

2011 Y L R 1348

[Karachi]

Before Ghulam Sarwar Korai, J

GHULAM ABBAS---Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No.S-60 of 2005, decided on 31st December, 2009.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Co-accused named in the F.I.R. with role were tried and acquitted, while case against accused was kept on dormant file as during the proceedings he had absconded---Accused. was again arrested and case was proceeded and he was convicted---According letter submitted by Superintendent Jail, accused had served out sentence of twelve years, one month and two days, while accused had earned eight years, seven months and 6 days as remission---Period for which accused was in jail, was sufficient for his conviction---Appeal filed by accused, was dismissed, but his sentence was reduced to which he had already undergone---Conviction of accused for offence punishable under S.302(b), P.P.C. was converted to S.302(c), P.P.C. and accordingly sentenced for imprisonment for which he had already undergone.

Nisar Ahmed G. Abro for Appellant.

Naimatullah Bhurgri for the State.

Date of hearing: 17th December, 2009.

YLR 2011 KARACHI HIGH COURT SINDH 1351 #

2011 YLR 1351

[Karachi]

Before Syed Hasan Azhar Rizvi, J

SALEEM IQBAL QURESHI---Plaintiff

Versus

Messrs A.I. BROTHERS (PVT.) LTD, and another----Defendants

Suit No. 1627 of 2007 and C.M.As. and 8925, 8926 of 2008 and 10591 of 2007, decided on 28th February, 2011.

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

----O. VII, R. 11---Rejection of plaint---Considerations---Averments made in plaint would be accepted as correct.

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

----O. V, R. 12, O. IX, R. 7 & O. XXIX, R. 2---Application for setting aside of ex parte proceedings against defendant (a private limited company)---Service of defendant only through courier service---Validity---Defendant had not been served personally through bailiff and registered post---Courier service was vague and baseless---While holding good service of such company, provisions of O. V. and O.XXIX, C.P.C., would require consideration---Matter should be decided on merits rather than on technicalities---No direct service had been effected upon defendant-company---In order to avoid multiplicity of litigation, such order was recalled and defendant was allowed to file written statement in circumstances.

Ghulam Qadir v. Khandu PLD 2004 SC 62; Abbas Ali Shah v. Ghulam Ali 2004 SCMR- 1342; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2010 Kar. 17; Muhammad Hussain others v. Dr. Zahoor Alam 2010 SCMR 286; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544; Muhammad Ayub Abbas Ali 2005 MLD 774; Rana Allah Bakhsh v. Ghulam Sakina 2005 MLD 1700; Faheem Ahmed v. Ataur-Rehman 2007 CLC 1746; Industrial Development Bank of Pakistan v. Muhammad Ayub Stone Crushers and others 2009 SCMR 611 and Faheem Ahmed v. Ata-ur-Rehman 2007 CLC 1746 ref.

Syed Tariq Ali Ahmad for Plaintiff.

Saalim Salam Ansari for Defendant No.1.

Ijaz Ahmed for Defendant No.2.

YLR 2011 KARACHI HIGH COURT SINDH 1369 #

2011 Y L R 1369

[Karachi]

Before Munib Akhtar, J

SULTAN---Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No. S-94 of 2007, decided on 4th March, 2011.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---No eye-witness was on record---Prosecution case was that no cartridges, spent or otherwise, were recovered from the place of the incident, but accused after his arrest had voluntarily confessed to the murder; and had taken the Police to the place where he had hidden the weapon---Weapon recovered was a country made pistol with three live cartridges found along with it; and a spent cartridge found inside it---Trial Court accepted the said evidence, connecting same to the fact that the deceased had been killed with a cartridge shot---Trial Court, in circumstances, had committed a material irregularity in that regard---Purported "confession" of accused to the Police, was entirely inadmissible---Substantial delay was taken in sending the country made pistol for ballistics testing and no proper explanation was available for said delay---Entire prosecution case rested on evidence of two witnesses, who were inimical to accused and no independent corroboration of their evidence was available---Evidence of said witnesses was not satisfactory---Evidence produced by the prosecution therefore, was not of the required nature and quality---Prosecution, in circumstances, was not able to establish its case beyond reasonable, doubt---Impugned judgment passed by the Trial Court was set aside, accused was acquitted and was set at liberty, in circumstances.

Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604; Suwali v. The State 1982 PCr.LJ 808; Laldino v. The State 2006 PCr.LJ 1846 and Ghulam Nabi and others v. The State 2009 MLD 49 ref.

Ms. Shabana Kausar Jatoi for Appellant.

Syed Meeral Shah, Deputy Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1383 #

2011 Y L R 1383

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

Messrs PAK SUZUKI MOTOR CO. LTD.---Petitioner

Versus

KARACHI PORT TRUST and 2 others----Respondents

Constitution Petitions Nps.874 to 876 of 1998, decided on 22nd February, 2011.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Disputed questions of title of property and possession thereof could not be entertained in such jurisdiction.

Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 ref.

I.H. Zaidi for Petitioner.

Kazim Hassan for Respondent No.1.

Faisal Kamal for Respondents Nos. 2 and 3.

Date of hearing: 22nd February, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 1390 #

2011 Y L R 1390

[Karachi]

Before S. Zakir Hussain, J

KARAMAT KHAN---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.58 and M.A. No.286 of 2010, decided on 9th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Explosive Substances Act (VI of 1908), Ss.4, 5 & 7---Attempt to cause explosion and possessing explosives---Bail, grant of---Necessary sanction for prosecuting accused which was mandatory in terms of S.7 of Explosive Substances Act, 1908 had not been obtained--Investigating Officer did not dispute that conditional bail could be granted for non-obtaining mandatory sanction---Accused was granted bail in circumstances.

Aamir Mansoob Qureshi for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 1411 #

2011 Y L R 1411

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

NASRULLAH---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.DB 228 of 2010, decided on 7th February, 2011.

Per Imam Bux Baloch, J.: Gulzar Ahmed, J. agreeing.

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

----Ss. 6 & 9(c)---Prohibition of possession of narcotic drugs---Appreciation of evidence---Contention of accused was that as 150 grams charas was sent from 15 bundles weighing 15 kgs., case of accused fell under S.9(b) and not under S.9(c) of Control of Narcotic Substances Act, 1997--Further contentions were that firstly, 150 grams of charas and then remaining contraband (charas) was sent for chemical examination and same was positive; such despatch of charas in two lots was with mala fide intention and ulterior motive; that second report being managed one, had no value in the eyes of law having been sent without approval of the Trial Court, but on directions of District Public Prosecutor---Validity---Held, in the first instance 150 grams of charas was sent for chemical examination, report in respect thereof was positive; in the second phase remaining contraband (charas) was sent for chemical examination, report in respect thereof was also positive---Counsel for accused was unable to show that accused had ever challenged before any court of law that recovered article was not narcotics---Even in the appeal, appellant had not alleged that the recovered item was not narcotics---No reason existed to interfere with the impugned judgment passed by the Trial Court---Appeal was dismissed.

Gulshan Ara v. The State 2010 SCMR 1162; The State v. Amjad Ali PLD 2007 SC 85; Asmatullah and 2 others v. The State 2010 PCr.LJ 1560; Nadeem Dehto v. The State 2010 YLR 1770; Kashif Amir v. The State PLD 2010 SC 1052; and Muhammad Khan v. The State 2008 SCMR 1616 ref.

Per Gulzar Ahmed, J. agreeing with Imam Bux Baloch, J.

Kashif Amir v. State PLD 2010 SC 1052 and Gulshan Ara v. The State 2010 SCMR 1162 ref.

M. Qadir Khan for Appellant.

Zafar Ahmed Khan, Additional Prosecutor-General Sindh for the State.

Date of hearing: 24th January, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 1419 #

2011 Y L R 1419

[Karachi]

Before Ghulam Sarwar Korai, J

SUFIYAN ALI and others---Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos. 190, 196 and 205 of 2010 decided on 22nd February, 2011.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Evidence against three accused persons was that they came to the house of the deceased, called him and went away along with him---Offence was not seen by any named witnesses---Death of deceased was unnatural as confirmed by the Medical Officer by deposing that deceased was murdered about 3 days back from the date of examination of his dead body---Dagger was recovered from water gutter near the place in question which would not connect accused automatically without any corroboration of the material evidence---If accused persons had confessed their guilt, before the Investigating Officer, then it was necessary for him to produce them before the Magistrate for recording their confessional statements, but it was not done---Complainant party themselves admitted in their evidence that there was no enmity between them and accused persons---Even no motive was shown against accused persons for commission of the offence---No evidence was available against one of accused persons, except evidence of maid servant of school, who deposed that finger of said accused was cut and was wrapped with plast---Said accused informed witness that her finger was cut by broken glass at the time when she was painting---Even that piece of evidence was not sufficient to connect the accused in the commission of offence---Complainant party in their depositions stated that they suspected accused persons as killers of deceased---Such piece of evidence, was also not sufficient to establish the guilt of accused persons--- Single circumstance was sufficient to extend benefit to accused, but in the present case there were number of circumstances from which accused were to be benefited---Unnatural death of the deceased, confirmed in medical evidence by itself, could not throw any light on the identity of accused persons---Case of the prosecution was highly doubtful against accused persons---Prosecution having failed to establish its case beyond any reasonable doubt, accused were acquitted, in circumstances.

Ch. Barkat Ali v. Major Karam Elahi Zia 1992 SCMR 1047 ref.

Zahir Hussain Baladi for Appellant (in Criminal Appeal No. 19 of 2010).

Nasir Mehmood Mughal, for Appellant (in Criminal Appeal No. 196 of 2010).

Muhammad Farooq, for Appellants (Criminal Appeal No.205 of 2010).

Muntazir Mehdi, A.P.-G. for the State.

Date of hearing: 23rd January, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 1429 #

2011 YLR 1429

[Karachi]

Before Tufail H. Ebrahim, J

ABDUL LATIF---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No. S-736 of 2010, decided on 21st January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.302, 337-H(2), 504 & 34---Qatt-e-amd, causing hurt by rash or negligent act, intentional insult--Bail, grant of---Further inquiry---Prima facie, doubt had arisen as to the identification of accused by, the complainant in the light of a moving motorcycle, who was allegedly sitting behind the deceased on the motorcycle in the darkness of night--Was not known as to whether or when the bullet was sealed and the rifle were respectively sent for ballistic examination---Trial Court was to decide as to when or whether any threats were extended by accused to the deceased---Co-accused had been granted bail by the Trial Court---Accused was also entitled to the concession of bail on the rule of consistency---Challan had been filed and there was no likelihood of tampering of evidence by accused---Case of prosecution was not free from doubt---Case of further inquiry within the meaning of subsection (2) of S.497, Cr.P.C. had been made out---Bail was granted to accused, in circumstances.

2001 PCr.LJ 344; NLR 2004, Criminal Cases 1029; 2007 MLD 340; 1983 PCr.LJ 892; 2003 SCMR 201; PLD 1997 Kar. 484; 2007 SCMR 482; 2008 SCMR 1372; 2010 SCMR 966; PLD 2007 Kar. 336; PLD 2009 Kar. 265; 2007 MLD 1749 and 1995 SCMR 1765 ref.

Sadar Akbar F. Ujjan for Applicant.

Achar Khan Gabole for the Complainant.

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

YLR 2011 KARACHI HIGH COURT SINDH 1435 #

2011 Y L R 1435

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

MUHAMMAD AKRAM and others---Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.D-112 of 2005, and 34 of 2009 decided on 24th December, 2010.

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

----S.342---Statement of accused---Fact not put to accused---Effect---Unless circumstance sought to be used against accused is put to him during examination under S.342, Cr. P. C., that circumstance cannot be used against him---Omission to draw attention of accused person to a circumstance to be used against him is prejudicial to him, therefore, such circumstance can neither be considered, nor used against him for any purpose.

Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 rel.

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

----S.340(2)---Statement of accused in defence-Scope-Such statement if found reasonably possible from material on record, then accused can be given benefit of doubt and acquitted.

Waris case PLD 1981 SC 127 and Safdar Ali's caes PLD 1953 FC 93 rel.

----S. 9(c)---Possession of narcotic drugs---Appreciation of evidence---Defence evidence---Charas weighing 10 kilograms and heroin weighing 8 kilograms were recovered from both the accused--Trial Court convicted both the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and sentenced them to 14 years imprisonment and fine---Plea raised by accused was that their defence evidence was not considered by Trial Court---Validity---After arrest of accused persons neither any complaint nor any application was moved by them or their relatives against complainant--Documents produced by one of the accused with his statement under S. 342 Cr.P.C. pertained to years, 1999 and 2000, whereas offence was committed in year, 2004, much after the petition was filed by a relative of one accused and prosecution witnesses were not party in those proceedings---Prosecution witnesses could not be disbelieved who had given consistent evidence on each and every aspect of the case---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Banwari Lal and another v. Emperor AIR 1920 Allahabad 203; Emperor v. Akub Ali Mazumdar and others AIR 1920 Calcutta 522; Mst. Jeejal and another v. The State 2005 MLD 1261; Shafiullah v. The State SBLR 2008 Sindh 60; Tariq Parvez v. The State 1995 SCMR 1345; The State v. Tariq Mehmood 1987 PCr.LJ 2173; Haji Muhammad Jee and others v. Muhammad Ibrahim Shauq and others 1988 SCMR 1691; Waqas Nazir and others v. The State 2007 SCMR 661; Ali Hassan v. The State PLD 2001 Kar. 369; Abdul Rasheed v. The State 2009 SCMR 306 and Muhammad Mushtaq and another v. The State 2008 SCMR 742 ref.

Abdul Qadir Halepota for Appellants.

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

Dates of hearing: 18th, 20th, 21st, 28th, 29th October and 22nd November, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 1446 #

2011 Y L R 1446

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

YASIR BIN MUHAMMAD and another---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Applications Nos.277 and 281 of 2010, decided on 10th November, 2010.

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

----S. 497(5)---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5(7)---Bail, cancellation of---Reduction of surety amount---Plea not raised---Trial Court granted bail to accused for a sum of Rs. 75 million with two sureties in the like amount but on application of accused reduced the amount to Rs. 41.5 million---Contention of complainant was that according to the provisions of S. 5(7) of Offences in Respect of Banks (Special Courts) Ordinance, 1984, Trial Court should have fixed the surety amount having regard with the gravity of charge---Validity---Reduced amount of surety was according to S. 5(7) of Offences in Respect of Banks (Special Courts) Ordinance, 1984---Complainant did not seek cancellation of bail on merits earlier and the bail was granted to accused which was within the ambit of S. 5 (7) of Offences in Respect of Banks (Special Courts) Ordinance, 1984, and called no interference by High Court---Trial Court committed no illegality or material irregularity while passing order granting bail to accused---Once a ground was available to complainant and the same was not pressed, then in second round of litigation he could not be permitted to press the same---High Court declined to cancel the bail granted to accused by Trial Court---Application was dismissed in circumstances.

Akmal Masih v. Salamat Masih and 4 others 1988 SCMR 918; Shamsurrehman v. Muhammad Rafiq and another PLD 1997 Isar. 194; Dil Murad v. Muhammad Aslam and 6 others 1996 PCr.LJ 745; Rana Iftikhar Ahmed v. Munir Khan and another 1997 MLD 2541; Ghulam Rasool v. Zafar Igbal and another 1996 PCr.LJ 276; Muhammad Ilyas, Chief Manager/Attorney, Allied Bank Ltd. v. Shahid Ullah and others PLD 2009 SC 446; Sikandar Abdul Karim v. 'The State 1998 SCMR 908; Rahimuddin v. The State 1991 PCr.LJ 2188 and Syed Lakhat-e-Hasnain v. State 2010 SCMR 855 ref.

Syed Mehmood Alam Rizvi for Applicant (in Criminal Miscellaneous No.277 of 2010) and for Respondent No.2 (in Criminal Miscellaneous No.281 of 2010).

ShahabSarki Standing Counsel for the State.

Muhammad Ashraf Kazi for Respondent No.2 (in Criminal Miscellaneous Nos. 277 of 2001) and for Applicant (in Criminal Miscellaneous No.277 of 2010).

YLR 2011 KARACHI HIGH COURT SINDH 1459 #

2011 Y L R 1459

[Karachi]

Before Ghulam Sarwar Korai, J

Mst. POONAM VERMA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1347 of 2010, decided on 7th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302--- Qatl-e-amd---Bail, grant of----Female accused---All legal heirs viz widow, daughter, son and brother-in-law of deceased sworn their affidavits for making accused lady as approver witness but was not done---Accused also made application to Investigating Officer making request that she should be cited as approver witness but nothing was done---One accused was let off by police and main accused, who allegedly killed. the deceased, was granted bail by High Court which position was intact---Effect---Evidence against accused was zigzag one, even if entire material collected by prosecution was believed in toto even then neither deceased was murdered by accused nor any allegation of conspiracy was against her---Accused was a woman and she also deserved some more leniency---'Investigation was completed and she was no more required for the purpose of investigation---Bail was allowed in circumstances.

Zohra Khanum v. The State 2009 SCMR 751; Mst. Naziran v. The State 1983 PCr.LJ 1972; Mst. Raeesa v.. The State 1985 PCr.LJ 2823; Mst.Zebo v. The State 1989 PCr.LJ 594; Rahim Khatoon v. The State 1989 PCr.LJ 1861; Ayesha and 3 others v. The State 2008 PCr.LJ 1149; Khalida Akram v. The State 2007 PCr.LJ 875 and Jiomal alias Jairam v. The State 1997 MLD 2470 ref.

Mamaras v. The State PLD 2009 SC 385; Altaf Hussain v. The State 1999 MLD 2199; Iqbal Brohi v. The State 1998 PCr.LJ 2066; S. Muhammad Hashim and 2 others v. The State 1998 PCr.LJ 817; Muhammad Rizwan v., The State 1998 PCr.LJ 746; Mst. Masood Begum v. Muhammad Maroof and 2 others 1998 PCr.LJ 56; Ajmal and another v. The State PLD 1997 Kar. 142, Ayyaz Ahmed v. Allah 'Wasaya and 2 others 1995 PCr.LJ 80; Bashir Ahmed v. The State PLD 1994 Kar. 462 and Fida Hussain and another v. The State 1985 PCr.LJ 336 distinguished.

Muhammad Akbar Khan for Applicant.

Kashif Hanif for the Complainant.

Abdullah Rajput, A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1465 #

2011 Y L R 1465

[Karachi]

Before Ghulam Sarwar Korai and Imam Bux Baloch, JJ

MUHAMMAD NAZIM RAO---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.98 of 2010, decided on 2nd March, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.342/220 & 365-A---Wrongful confinement, kidnapping or abducting--Pre-arrest bail, confirmation of----Complainant appeared in person and submitted that he had compromised with accused outside the court and had settled the dispute; that he had no objection if interim pre-arrest bail already granted to accused be confirmed---Complainant was identified, through CNIC and he also filed his affidavit duly sworn before the Commissioner for taking oath along with statement duly presented before Assistant Registrar---Alleged offence though was punishable under S.365-A, P.P.C. and was not compoundable, but since accused had tried to settle his dispute with the complainant who had no objection for confirmation of the bail of accused, in the interest of justice, interim pre-arrest bail granted to accused earlier, was confirmed on the same terms and conditions.

Aamir Mansoob Qureshi and Muhammad Shafiq for Applicants.

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

YLR 2011 KARACHI HIGH COURT SINDH 1473 #

2011 Y L R 1473

[Karachi]

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

Rana IMRAN and another---Appellants

Versus

FAHAD NOOR KHAN and 2 others----Respondents

High Court Appeal No. 147, C.M.A. No. 3142 of 2010 in Suit No. 1131 of 2009, decided on 23rd February, 2011.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Law Reforms Ordinance (XII of 1972), S. 3---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Intra Court appeal---Rejection of plaint---Term "cause of action"---Scope---Controversial questions of fact and law---Grievance of plaintiff was that he had purchased shares of company in question from defendant but defendant had declined to transfer the shares in his name---Defendants filed application under O. VII, R.11 C.P. C. for rejection of plaint on the ground that plaintiff did not have any cause of action against him---Validity---Word "cause of action" meant bundle of facts which if traversed, a suitor claiming relief was required to prove for obtaining judgment; it did not mean that even if one such fact, a constituent of cause of action was in existence, the claim could succeed---Totality of facts must co-exist and if anything was wanting the claim would be incompetent---One part was included in the whole but the whole could never be equal to one part---Not only the party seeking relief should have a cause of action when the transaction or alleged act was done but also at the time of institution of claim---Suitor was required to show that not only a' right had been infringed in a manner to entitle him to a relief but also that when he approached court, right to seek the relief was in existence---In case of controversial questions of fact or law, the provision of O. VII, R.11 C.P. C. could not be invoked rather proper course for court in such cases was to frame issues on such question and decide the same on merits in the light of evidence in accordance' with law---Single Judge of High Court dismissed application under O. VII, R.11 C.P.C. after appreciating entire facts of case and rightly held that grounds raised in the application could not be decided without adducing evidence, therefore, application was rightly dismissed---Division Bench of High Court declined to interfere in the order passed by single Judge of High Court---Intra Court Appeal was dismissed in circumstances.

Ghulam Ali v. Asmatullah 1990 SCMR 1630; Jewan v. Federation of Pakistan 1994 SCMR 826 and Saleem Malik v. Pakistan Cricket Board (PCB) PLD 2008 SC 650 ref.

Muhammad Mushtaq for Appellants.

Mohsin Shahwani for Respondents.

2011 Y L R 1541

[Karachi]

Before Imam Bux Baloch, J

Mst. NASEEM AKHTAR---Appellant

Versus

ARSHAD ALI and 7 others---Respondents

Criminal Appeal No.94 of 2011, decided on 28th February, 2011.

Penal Code (XLV of 1860)---

----S.459---Criminal Procedure Code (V of 1898), S. 417(2-A)---Hurt caused while committing lurking house-trespass---Appeal against acquittal---All the witnesses were related inter se---Prosecution during trial had not attempted to procure the attendance of woman Medical Officer who had issued the medical certificate---No corroboration of the alleged injuries therefore, was available as the woman Medical Officer was not examined---Alleged injuries were not proved, in circumstances---Clothes of victim were not secured during investigation to corroborate the oral version of the complainant---Witnesses who were alleged to be the eye-witnesses of the incident, had not supported the prosecution case---Accused were brothers of husband of the complainant and some civil dispute was going on between them---Corroboration, is such circumstances, had to be available during trial, which was lacking in the case-.-Prosecution having failed to prove its case beyond any reasonable shadow of doubt, Trial Court had rightly acquitted the accused persons.

Urooj-ul-Hassan for Appellant.

Nemo for Respondent.

YLR 2011 KARACHI HIGH COURT SINDH 1570 #

2011 Y L R 1570

[Karachi]

Before Muhammad Athar Saeed, J

MUHAMMAD FAISAL---Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.219 of 2009, decided on 30th September, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 249-A---West Pakistan Arms Ordinance (XX of 1965), S.13---Possessing unlicensed arms and aerial firing---Quashing of proceedings, application for---Application had been filed against order of Judicial Magistrate, whereby application filed under S.249-A, Cr.P.C. for quashing of proceedings and the acquittal of accused/petitioner, was dismissed---F.I.R. revealed that the only charge against accused was that he was resorting to aerial firing in celebration of new year---Aerial firing was a common practice in every town on new year and Eid---Picking up one person for alleged aerial firing, had shown the mala fide intention of the Police Officials---Charge against accused did not hold much water and the chances of his conviction were very feeble---Proceedings were ordered to be quashed.

Mahmood A. Qureshi for Applicant.

Jamshed Iqbal, Advocate.

Anwar Qureshi, Assistant Prosecutor General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1598 #

2011 Y L R 1598

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

GUL BEG---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION KAMBER and 2 others---Respondents

Constitutional Petition No.D-660 of 2010, decided on 18th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art.199---Habeas Corpus petition---District Police Officer and S.P. Investigation had stated that they had inquired into the matter of detention of alleged detainees and come to the conclusion that three Police Officials were responsible for illegal detention of detainees---Apart from departmental action, District Police Officer was directed to lodge F.I.R. of the petitioner against said three Police Officers and investigate the case and report under S.173, Cr.P.C. before the concerned court---District Police Officer was also directed to recover detainee, who had not yet been recovered---Said Police Officers would also pay compensatory cost to the detainees.

Sarfraz Khan Jatoi and Shamasuddin Abbasi for Petitioner.

Abdul Hamid Bhugri, Addl. A.-G. along with Junaid Ahmed Shaikh, D.P.O. Kamber-Shahdadkot and Aijaz Tareen, S.P. Investigation, Kamber-Shahdadkot.

YLR 2011 KARACHI HIGH COURT SINDH 1603 #

2011 Y L R 1603

[Karachi]

Before Munib Akhtar, J

MISRI through L.Rs. and others---Applicants

Versus

MUHAMMAD SULEMAN through L.Rs. and 3 others---Respondents

Civil Revision Application No.24 of 2002, decided on 3rd June, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement of sale---Suit filed by the plaintiff/buyer was decreed by the Trial Court as prayed for, but Appellate Court reversed the judgment and decree passed by the Trial Court and dismissed suit---Validity---Attorney of the plaintiff and attesting witnesses had specifically confirmed that agreement of sale had been executed in their presence; and that amount had been paid over to defendant/seller---Specific role required by attesting witnesses in respect of any agreement witnessed by them, was to confirm whether or not the agreement had been executed by the parties thereto---Evidence of the plaintiff's witnesses could not really be shaken in cross-examination---Fact that the witnesses did not know the name of the scribe of the agreement, which was peripheral issue, neither was required by the law nor was something from which a compelling adverse conclusion could be drawn---Main point on which Appellate Court disagreed with the Trial Court was that the signatures of seller on the agreement of sale were different from those admitted by him---Both courts examined the signatures of the seller, the Trial Court compared said signatures of his National Identity Card and concluded that the two were the same---Appellate Court compared the signatures with the specimen signature available with the Bank and concluded that the two were different---In view of different conclusions of the two courts, court ought to have considered seeking expert opinion on that point instead of simply relying on its own conclusion in that regard---Judgments of the both courts were set aside and matter was remanded to the Trial Court which would obtain handwriting expert opinion on the signatures of the seller/defendant as on the agreement to sell as compared with his signatures on his written statement and on the bank form and decide the case accordingly.

Nazir Ahmed Awan for Applicants.

Noor Hassan Malik for Respondents.

Date of hearing: 26th May, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 1609 #

2011 Y L R 1609

[Karachi]

Before Syed Mahmood Alam Rizvi, J

ROSHAN ALI---Petitioner

Versus

S.H.O. POLICE STATION RATODERO and 3 others---Respondents

Constitutions Petition No.S-565 of 2008, decided on 3rd September, 2008.

Police Order (22 of 2002)---

----Arts. 134 & 135---Constitution of Pakistan, Art. 199--- Constitutional petition---Disposal of unclaimed property--S.H.O. concerned seized 16 buffaloes, one motor cycle and some other articles being unclaimed property---Petitioner claimed that out of said 16 buffaloes, 7 belonged to him and remaining 9 buffaloes, motorcycle and other articles belonged to his nephew--Statements filed by authorities clearly stipulated that petitioner was entitled to have the cattle after proper verification---No claimant having come forward, S.H.O. concerned was directed to facilitate the petitioner and hand over all the cattle to him---One buffalo was obtained by a Police Officer on the ground that it belonged to him---District Police Officer was directed to call said Police Officer and get back said buffalo from him and hand over to the petitioner on his personal bond---Judicial Magistrate of the area was directed to conduct inquiry and after going through all the record, finally pass the order as to who was the real owner/last occupier of said buffalo.

Shamsuddin Abbasi for Petitioner.

Abdul Hamid Bhurgri, Addl: A.-G. for Respondents Nos. 1 and 2.

YLR 2011 KARACHI HIGH COURT SINDH 1623 #

2011 Y L R 1623

[Karachi]

Before Gulzar Ahmed and Arshad Siraj Memon, JJ

SIKANDAR DADA and another---Petitioners

Versus

ENVIRONMENTAL PROTECTION TRIBUNAL, SINDH and 2 others---Respondents

Constitutional Petition No.D-590 of 2010, decided on 15th March, 2010.

Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 2(xxxii), 11, 17 & 18---Constitution of Pakistan, Art.199---Constitutional petition---Complaint against pollution---Petitioner had stated that he could not be made personally liable for the acts of a corporate body and that issuances of bailable warrants against the petitioner was not in accordance with law---Petitioner had prayed that bailable warrants issued be quashed---Petition was disposed of ordering that bailable warrants issued against the petitioner were recalled---Petitioner would appear before the Tribunal when the matter would be fixed before the Tribunal and he could make appropriate application for dropping of the proceedings against him, upon which the Tribunal would pass order in accordance with law.

Jam Asif Mehmood for Petitioner No.1.

Saim Hashmi for Petitioner No.2.

Shafi Muhammad Memon, A.A.-G.

Qazi Abdul Hameed Siddiqui.

Abdul Maroof for Respondent No.2 along with S.M. Yahya.

YLR 2011 KARACHI HIGH COURT SINDH 1628 #

2011 Y L R 1628

[Karachi]

Before Syed Zakir Hussain, J

Mst. ZAINAB and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos.S-171 and S-234 of 2006, decided on 3rd August, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 34 & 109---Qatl-e-amd---Appreciation of evidence---Recovery of dead body and that of the blood-stained articles from different place, on pointation of the complainant, being not reliable, could not be useful for entailing conviction by use thereof as incriminating material against accused persons as the same itself, did not establish that accused were 'guilty' to the offence they had been charged with---Recovery of crime weapon i.e. revolver in presence of complainant and that of accused from place not belonging to accused, alone was not of much worth and no conviction could be based thereon, particularly, when the said weapon was left unsealed---Recovery of crime weapon effected after unexplained delay of seven days---No confession by accused persons---Evidence of the complainant, was doubtful in the circumstances of the case particularly when he delayed the lodging of the F.I.R., without any excuse---Evidence of prosecution witnesses remained unsupported by any independent corroborative piece of evidence---Trial Court had seriously erred to have carried out no proper appraisal and appreciation of evidence; and erroneously having believed the same, held the accused persons 'guilty' beyond shadow of any reasonable doubt, while there was no positive evidence against each of them---Impugned judgment passed by the Trial Court, was not sustainable which was set aside and accused persons were acquitted of the charge and were released.

Abdul Waqar Mahar for Appellant (in Cr.T.A. No.S-171 of 2006).

Riazat Ali Saahar for Appellant (in Cr.T.A. No.S-234 of 2006).

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

Date of hearing: 3rd August, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 1631 #

2011 Y L R 1631

[Karachi]

Before Faisal Arab and Abdul Hadi Khoso, JJ

ABDUL REHMAN alias ABRI and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-107 of 2002, and M.A. No.945 of 2009, decided on 7th January, 2011.

Penal Code (XLV of 1860)---

----Ss. 302 & 394---Anti-Terrorism Act (XXVII of 1997), S.39-B(2)---Qatl-e-amd and voluntarily causing hurt in committing robbery---Appreciation of evidence---Bail, grant of---When the alleged incident of murder took place, only such cases were covered under Anti-Terrorism Act, 1997 wherein automatic and semi-automatic weapons were used---In the present case, pistol was used in the commission of the murder of the deceased---Matter, in circumstances, ought to have been transferred to the Sessions Court of the area for its trial---Case was remanded to the court of appropriate jurisdiction for its trial---Accused were in custody for about 11 years and 15 days---Period about 6 years remission had been granted to accused during the period when they were in custody, but, that period was not taken into consideration---Keeping in view the long sentence that accused had undergone and on the point of jurisdiction, the matter was referred back to the court having jurisdiction for trial---Bail was granted to accused, in circumstances.

Ghazi Khan v. The State PLD 2003 Kar. 71 and PLD 2005 Kar. 18 ref.

Syed Madad Ali Shah for Appellants.

Muhammad Iqbal Kalhoro, A.P.-G. Sindh.

YLR 2011 KARACHI HIGH COURT SINDH 1639 #

2011 Y L R 1639

[Karachi]

Before Faisal Arab, J

MUHAMMAD ASIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.111 of 2010, decided on 11th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.381---Theft by clerk or servant of property in possession of master---Pre-arrest bail, refusal of---Accused was not nominated in the F.I.R., but during the investigation, co-accused, nominated him in his confessional statement that accused being an ex-employee of the complainant, was the master mind of the entire scheme of theft---Involvement of accused in the case during investigation and interrogation of the nominated accused, prima facie was established---Rule of consistency could not be applied in every case---No justification existed to interfere with the order of the Trial Court---Interim pre-arrest bail granted to accused, stood recalled, in circumstances.

Muhammad Farooq for Applicant.

Irfan Ahmed Memon for the Complainant.

Ms. Seema Zaidi for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1640 #

2011 Y L R 1640

[Karachi]

Before Ahmed Ali Shaikh, J

ACHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-437 of 2010, decided on 29th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/147/148/149 & 504/337-H(2)/ 109---Qatl-e-amd, intentional insult with intent to provoke breach of peace and hurt by rash or negligent act---Pre-arrest bail, confirmation of---Further inquiry---F.I.R. showed that five persons had committed the murder of deceased by causing him firearms injuries, but the accused (petitioner) was neither present at the time of occurrence nor any overt act was attributed to him---Prosecution had stated that co-accused while committing the murder of deceased disclosed that they had been sent by the accused (petitioner)---Mere words of co-accused that they had been sent by the accused were inadmissible piece of evidence and could not be relied upon---Case requiring further inquiry, interim pre-arrest bail earlier granted to accused, was confirmed on same terms and conditions, in circumstances.

Abdul Sattar Sarki for Applicant.

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

2011 Y L R 1655

[Karachi]

Before Tufail H. Ebrahim, J

MUHAMMAD ATIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1015 of 2010, decided on 28th September, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), S.498-F---Dishonouring of cheques---Pre-arrest bail, grant of---Counsel of accused had alleged that cheques in question had not been issued by accused, but same were issued on behalf of the company which company was the tenant of father of the complainant; and in terms of the tenancy agreement advance post-dated cheques were issued---Counsel of accused further stated that cheques were not dishonoured on account of any dishonesty which could be verified from the concerned bank---Sufficient funds were available in the account of the company at the relevant time---Matter was a civil dispute between the parties as a case had been filed by the company against the father of the complainant for recovery of amount and damages and compensation---Counsel of accused had apprehension and fear that accused would be arrested by the Police and humiliated---Interim pre-arrest bail, was granted to accused, in circumstances.

Jam Asif Mehmood and Muhammad Wasif Riaz for Applicant.

YLR 2011 KARACHI HIGH COURT SINDH 1662 #

2011 Y L R 1662

[Karachi]

Before Dr. Rana Muhammad Shamim, J

GUL HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-436 of 2008, decided on 28th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---'Haraabah' liable to Tazir---Bail, grant of---Further inquiry---Since no eye-witness was available in the case, provisions of S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, were not attracted---Identification parade was held in the case after 8 days of the arrest of accused without any explanation for such delay---Possibility existed that Police had shown accused to the complainant during custody---No recovery had been effected from accused or on his pointation---Allegations against accused appeared to be ill founded, vague and general in nature---Accused whose case was one of further inquiry, was behind the bars since more than one year without trial, which amounted to punishment before judgment--Accused was admitted to bail, in circumstances.

Ashique Hussain D. Solangi for Applicant.

Bahadur Ali Baloch State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 1682 #

2011 Y L R 1682

[Karachi]

Before Nadeem Azhar Siddiqui, J

SOOMAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-140 of 2007, decided on 4th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/337-H(2)/506(2)/148/149/114/504--Qatl-e-amd, hurt by rash or negligent act, criminal intimidation and intentional insult to invoke breach of the peace---Bail, refusal of---Allegation against accused was of straight firing upon deceased with intention to kill, which hit his left side belly---Medical evidence was in support of ocular evidence, and it was confirmed from medical report that the death was caused due to injury caused by discharge of firearm---Question whether the firing was done by a short gun or rifle, was to be decided at trial---Only tentative assessment of the material available on record, was to be made at bail stage and deeper appreciation of evidence, was not permissible---No case of bail having been made out, bail application was dismissed, in circumstances.

Aftab Ahmed Gorar for Applicant.

Nisar Ahmed Abro for the Complainant.

Mushtaq Ahmed Abbasi, Asstt. A.-G.

YLR 2011 KARACHI HIGH COURT SINDH 1697 #

2011 Y L R 1697

[Karachi]

Before Bhajandas Tejwani, J

FIDA HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-703 of 2010, decided on 9th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 147, 148, 427, 504, 337-A(i), 337-F(i) & 114---Qatl-e-amd, mischief causing damage, intentional insult, causing 'Shajjah-i-Khafifa' and 'Damiyah'---Bail, grant of---Further inquiry---Role assigned to accused persons was of causing simple injuries to the prosecution witnesses and no injury was attributed against accused persons to have been caused to the deceased---Incident appeared to be of sudden flare up during which both sides had caused injuries to each other and counter version of the incident was available on the Police record---No active role had been assigned to accused persons in causing death of deceased, coupled with delay in lodging of F.I.R.---Counter version raised by accused persons, was sufficient to constitute that case required further inquiry---Accused were admitted to bail, in circumstances.

Ghulam Shabir v. State 2003 MLD 1715 and Nooruddin v. State 2005 MLD 1267 ref.

Shahid Ali Memon for Applicants.

Qurban Ali Malano for the Complainant.

Shyam Lal, Assistant Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1699 #

2011 Y L R 1699

[Karachi]

Before Nisar Muhammad Shaikh, J

ARBAB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-164 of 2011, decided on 18th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)---Possession, import or export and trafficking of narcotics--- Bail, grant of--- F.I.R., did not show as to what was the weight of one piece of charas recovered from accused; and whether the samples were taken from one piece or from the both---Chemical Examiner's report had shown that only one sample was received---Contention of counsel for accused needed consideration that accused was liable for only one piece of charas allegedly recovered from his possession; and same would fall at the most under S.9(b) of Control of Narcotic Sub-stances Act, 1997---Delay of about ten days in sending the sample to Chemical Examination without any explanation for such delay---Accused was in jail since 27-6-2010---Accused was admitted to bail, in circumstances.

2006 PCr.LJ 840; 2006 SCMR 1051; 2007 MLD 1846; 2008 YLR 351 and 2009 PCr.LJ 695 ref.

Ahmed Ali Jarwar for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 1708 #

2011 Y L R 1708

[Karachi]

Before Bhajandas Tejwani, J

WASIF ELLAHI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1084 of 2010, decided on 3rd November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/392/34---Qatl-e-amd and robbery---Bail, grant of---Further inquiry---No direct evidence was available to connect accused with the alleged crime---Accused was involved by the Police after 25 days on the basis of some spy information---Father of the deceased, who was alleged to have identified accused, had denied such identification by disclosing that accused was shown to him one day prior to identification parade at the Police Station; and he had further clarified that accused was not involved in the commission of the offence---Brother of deceased, who was made Mashir of recovery of certain robbed property, had also denied that anything was recovered from accused in his presence---Case of accused, in circumstances would require further probe in the matter---Accused was admitted to bail, in circumstances.

Rasheed A. Rizvi, Mehmood A. Qureshi and Amer Raza Naqvi for Applicant.

Liaquat Hussain Khan, along with Birijlal and Surinderlal.

Zafar Ahmed Khan, Addl. P.G., Sindh.

YLR 2011 KARACHI HIGH COURT SINDH 1722 #

2011 Y L R 1722

[Karachi]

Before Abdul Hadi Khoso, J

BASHARAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-454 and M.A. No.2068 of 2010, decided on 5th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.380---Theft in dwelling house---Bail, grant of---Further inquiry---Delay in lodging the F.I.R. was without any plausible explanation and no independent witness had been cited in the F.I.R.---No incriminating recovery was shown against accused though both the complainant and accused were residing in the same Mohalla---Complainant and accused were annoyed with each other on some matters; it appeared that the case of accused was of further inquiry---Accused was granted bail, in circumstances.

Ejaz Ahmed Awan for Applicant.

Syed Meeral Shah, D.P.-G. for the State

YLR 2011 KARACHI HIGH COURT SINDH 1723 #

2011 Y L R 1723

[Karachi]

Before Nisar Muhammad Shaikh, J

GHULAM ABBAS---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-213 of 2010, decided on 30th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)---Possession of narcotics---Bail, grant of---Further inquiry---Complainant party despite receiving the alleged spy information, had failed to associate any private witness to attest the alleged recovery of charas; and no purchaser of the charas in question had been cited in the F.I.R., though accused was allegedly selling the charas---Case of accused, in circumstances, needed further inquiry---F.I.R. did not show as to how much pieces, out of recovered charas, were sent for chemical examination---Total quantity of alleged charas being 1100 grams, marginally exceeded to the borderline, falling between the offence under S.9(b) & 9(c) of Control of Narcotic Substances Act, 1997---Accused who was in jail since 19-11-2009 after his arrest, was granted bail, in circumstances.

Nisar Ahmed G. Abro, for Applicant.

Mus'ab Baleegh Dhamarh, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 1730 #

2011 Y L R 1730

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

FEROZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1239 of 2010, decided on 28th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Drugs Act (XXXI of 1976), Ss.19(b), 23, 27 & 30---Import, manufacture and sale of drugs---Bail, refusal of---Raid was conducted in presence of Magistrate, Drugs Inspector and private witnesses---Report was positive---Accused along with his brother were convicted earlier in another case and were sentenced detention till rising of the court and fine---Accused was a habitual offender of spurious drugs and was playing with the lives of the innocent people---Trial Court had taken a lenient view in the previous case against accused---Further leniency could not be taken in favour of accused---Bail application meriting no consideration, same was dismissed.

Khaleeq Ahmed for Applicant.

Muhammad Ashraf Mughal, D.A.-G. for the State along with S.-I. Liaquat Ali.

YLR 2011 KARACHI HIGH COURT SINDH 1735 #

2011 Y L R 1735

[Karachi]

Before Syed Hassan Azhar Rizvi, J

AHMED ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-339 of 2010, decided on 21st June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324/337-A(i)/337-F(i)/147/148/149/114/ 504---Attempt to commit qatl-e-amd, causing Shajjah-i-Khafifah, Damiyah and intentional insult---Interim pre-arrest bail, confirmation of---Injuries on the person of injured which had been assigned to accused, did not fall within the prohibitory clause of S.497, Cr.P.C. and were on non-vital part of his body---Accused had joined the trial---Interim pre-arrest bail, already granted to accused, was confirmed on the same terms and conditions.

Ali Anwar Saahar for Applicant.

Ali Raza Pathan, State Counsel.

2011 Y L R 1768

[Karachi]

Before Ghulam Sarwar Korai, J

Syed ABBAS ALI SHAH---Applicant.

Versus

S.H.O. POLICE STATION MADIAJI DISTRICT SHIKARPUR and 2 others---Respondents

Criminal Miscellaneous Application No.S-191 and M.A. No.1922 of 2010, decided on 21st September, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A(1), 22-B & 561-A---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-e-amd---Order of Ex-officio Justice of Peace to register case---Quashing of order---Application for---Application filed under Ss.22-A(6), 22-B, Cr.P.C. for registration of case had been allowed by Ex-officio Justice of Peace---Accused had challenged said order---Dispute related to shops---Dispute between the parties could be resolved by the civil court---Registration of F.I.R. in the such cases was not approved---Application for quashing of order was allowed and order passed by Justice of Peace was quashed.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2001 SC 691 and Muhammad Bashir v. Station House Officer, Okara Cantt., and others PLD 2007 SC 539 ref.

Zulfiqar Ali Sangi for Applicant.

Ather Abbas Solangi for Respondent No.2.

Imtiaz Ahmed Shahani, State counsel.

YLR 2011 KARACHI HIGH COURT SINDH 1769 #

2011 Y L R 1769

[Karachi]

Before Ahmed Ali Shaikh, J

YASIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-671 of 2010, decided on 19th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 147, 148 & 149---Attempt to commit qatl-e-amd and assault---Bail, grant of---Co-accused had been let off by Police and their names had been placed in column No.2 of the challan though their names transpired in the F.I.R. and they were armed with pistols and lathies---No overt act was attributed to accused---Accused was said to be armed with lathi, but it was not specifically alleged that accused caused any injury to the complainant party---F.I.R. had alleged that accused who were armed with pistols made straight firing upon the Police party with intention to commit murder, however, none among the Police party received any injury---Case of accused was at par with that of co-accused who had been let off by the Police---Accused was admitted to bail, in circumstances.

Ashique Hussain Solangi for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 1774 #

2011 Y L R 1774

[Karachi]

Before Sarmad Jalal Osmany, J

FATEH MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-680 of 2004, decided on 10th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-e-amd---Bail, refusal of---Act allegedly committed by accused, prima facie, led to his involvement in the crime and it would not be appropriate to hold at bail stage, that accused was not vicariously liable---Parties being neighbour and known to each other, any mistake in identification could not be taken into consideration---Case was not fit for grant of bail, however, as Trial Court was lying vacant after transfer of Presiding Officer, case was transferred to another court to decide the same.

1996 SCMR 1693; 1997 SCMR 251; 1999 SCMR 1320; 1972 SCMR 682; 1996 SCMR 1845; 2003 PCr.LJ 862; 2000 PCr.LJ 1167 and NLR 1997 Cr. 298 ref.

Salahuddin Panhwar for Applicant.

Anwar Ansari State Counsel.

2011 Y L R 1795

[Karachi]

Before Syed Zakir Hussain, J

AKBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-669 of 2010, decided on 3rd December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)(4)---Penal Code (XLV of 1860), Ss.392 & 395---Haraabah with murder, robbery and dacoity---Bail, grant of---Further inquiry---No crime property was recovered from accused, his case required further inquiry---Bail was granted to the accused.

Aftab Ahmed Gorar for Applicant.

Ali Raza Pathan, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 1797 #

2011 Y L R 1797

[Karachi]

Before Imam Bux Baloch, J

NADEEM AHMED KHAN and 2 others---Applicants

Versus

THE STATE---Respondent

Special Criminal Miscellaneous Application No.397 of 2010 and 44 of 2011, decided on 28th February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 265-C & 265-K---Sales Tax Act (VII of 1990), Ss.2(37), 3, 6, 7, 11, 14, 15, 22, 23, 26, 34 & 36---Inherent powers of High Court---Scope---Accused sought quashment of proceedings before Trial Court for carrying on business of manufacturing/supplying plastic bags without registration with the Sales Tax Department---Trial Court dismissed accused's application under S.265-K, Cr.P.C.---Validity---Accused was facing trial before competent court of law---Trial Court was competent to ensure compliance of S.265-C, Cr.P.C.---Inherent jurisdiction of the High Court was not an alternate or additional jurisdiction and the same was meant to redress 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---Applications were dismissed in circumstances---Trial Court was directed to conclude the trial within 6 month.

Ghulam Qadir Khan v. The State PLD 1963 (W.P) Lah. 32 distinguished.

The State v. Asif Ali Zardari and another 1994 SCMR 798 ref.

A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 fol.

Muhammad Ashraf Kazi for Applicants.

Mian Khan Malik D.A.-G.

YLR 2011 KARACHI HIGH COURT SINDH 1805 #

2011 Y L R 1805

[Karachi]

Before Syed Zakir Hussain, J

TAIMOOR---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.S-526 of 2010, decided on 6th December, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.302, 392 & 34---Qatl-e-amd, robbery, acts done by several persons in furtherance of common intention---Bail, grant of---Rule of consistency---Co-accused had been granted bail in similar circumstances by the Trial Court---Bail was also granted to the accused---Wanted accused could seek only post-arrest bail and grant of pre-arrest bail in the shape of ad interim order and then confirmation of the same was a favour and no service to justice.

2005 MLD 716; 2005 MLD 997; 2007 PCr.LJ 1902 and 2007 YLR 1598 ref.

Ali Nawaz Ghanghro for Applicant.

Ali Raza Pathan, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 1807 #

2011 Y L R 1807

[Karachi]

Before Aqeel Ahmed Abbasi, J

PEERANO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. D-6 of 2011, decided on 21st February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149/114---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Accused had been nominated in the crime with the role of instigation to other accused who allegedly fired at the complainant party---F.I.R. was silent about the fact identifying the person who fired at the deceased at the instigation of accused---None of accused persons nominated in the F.I.R. was arrested at the spot which was thickly populated area of bazaar---Complainant, his son and other relatives, who were allegedly present at the place of incident, did not receive any injury---Accused, appeared to be an aged person with feeble health, having no teeth in his mouth and was shivering in court on account of his ailing health and advanced age---Accused claimed to be of 80 years of age---Reasonable doubt was created about the truthfulness of the prosecution story, whereas the involvement of accused in the crime, looking to his advanced age and feeble health, also appeared to be doubtful---Matter required further inquiry---Case had been challaned and accused was in jail since 24-9-2010---No useful purpose would be served by keeping accused in jail---Accused was granted bail, in circumstances.

Syed Amanullah Shah v. The State and another PLD 1996 SC 241 and Muhammad Ashraf v. The State 2007 MLD 882 ref.

Shahbaz Ali Brohi for Applicant.

Naimatullah Bhurgri, State Counsel.

Complainant in person.

YLR 2011 KARACHI HIGH COURT SINDH 1811 #

2011 Y L R 1811

[Karachi]

Before Imam Bux Baloch, J

MUHAMMAD PANAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-35 of 2009, decided on 6th April, 2011.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Natural eye-witnesses of the incident had furnished a consistent ocular evidence without making any material contradiction---Medical evidence had supported the ocular testimony---Four empty cartridges secured from the places of the two murders had matched, according to the Ballistic Export report, with the gun recovered from the possession of accused--- Unimpeachable and confidence inspiring ocular evidence could not be brushed aside only on the basis of relationship of the prosecution witnesses with the deceased---Accused had committed the murders of two innocent persons and they had already been treated leniently by Trial Court and awarded the lesser punishment of imprisonment for life--- Appeal was dismissed in circumstances.

Muhammad Yaqoob v. The State 2007 MLD 100, Ghulam Akbar v. The State 2008 SCMR 1064, Muhammad Akram v. The State 2009 SCMR 230; State v. Shahbaz Khan and others 1994 MLD 1700; Mushtaq alias Shamam v. The State PLD 1995 SC 46; Ranjha v. The State 2007 SCMR 455; Amrood Khan v. The State 2002 SCMR 1568; Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1785 and Muhammad Ehsan v. The State 2006 SCMR 1857 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Burden of proof---Kind of evidence---Prosecution must produce best kind of evidence to establish accusation against the accused facing the trial---Prosecution has the prerogative to produce as many witnesses as it considers sufficient to prove the guilt of accused---Quality of evidence and not its quantity gets preference in that regard.

Amrood Khan v. The State 2002 SCMR 1568; Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1785 and Muhammad Ehsan v. The State 2006 SCMR 1857 ref.

----S.302(b)---Qatl-e-amd---Appreciation of evidence--- Corroboration--- Rule of corroboration is a rule of abundant caution and not a mandatory rule to be applied invariably in each case---If the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance.

Muhammad Ehsan v. The State 2006 SCMR 1857 ref.

Muhammad Azeem Korai for Appellants.

Ali Raza Pathan for the State.

Date of hearing: 24th March, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 1819 #

2011 Y L R 1819

[Karachi]

Before Syed Hasan Azhar Rizvi, J

ALI HYDER---Applicant

Versus

THE STATE----Respondent

Criminal Revision No.22 of 2010, decided on 10th June, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 517---Superdari, application for--- Application under S.516-A, Cr.P.C. for return of tractor trolley had been dismissed by the Trial Court---Police gave report in favour of applicant, but Trial Court without applying its mind and without carefully reading the case-law cited by the counsel for applicant, rejected the application---Applicant was ready and willing to furnish the surety for the release of tractor trolley on superdari; and further undertook to produce the tractor trolley, as and when directed by the Trial Court---Superdari of tractor trolley was allowed to the applicant on furnishing solvent surety of amount of Rs.300,000 with P.R. bond of the same amount to the satisfaction of the Trial Court with direction to the applicant to produce the same as and when directed by the Trial Court.

2004 PCr.LJ 1169; 2007 MLD 1096; PLD 2004 Pesh. 91; 1999 PCr.LJ 968 and 2000 MLD 197 ref.

Shamsuddin Abbasi for Applicant.

Ali Raza Pathan, State counsel.

YLR 2011 KARACHI HIGH COURT SINDH 1823 #

2011 Y L R 1823

[Karachi]

Before Syed Hasan Azhar Rizvi, J

ABDUL FATTAH---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-34 of 2010, decided on 5th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Petitioner who was 'nekmard', stood surety for grant of bail to four accused persons---Out of said four accused persons one having been called absent before the court on relevant date, surety bond of the petitioner/surety was forfeited and a penalty of Rs.50,000 was imposed on him---Validity---Petitioner who was nekmard, stood surety for four accused persons on humanitarian grounds, out of whom only one had misused the concession of bail--- Penalty amount of Rs.50,000 imposed against petitioner/ surety by the Trial Court was reduced to Rs.20,000.

2001 PCr.LJ 1599; PLD 1996 Lah. 600; 2002 YLR 237 and 2004 YLR 99 ref.

Shamsuddin Abbasi for Applicant.

Ali Raza Pathan, State counsel.

YLR 2011 KARACHI HIGH COURT SINDH 1825 #

2011 Y L R 1825

[Karachi]

Before Maqbool Baqar and Shahid Anwar Bajwa, JJ

KARACHI COLLEGE TEACHERS CO-OPERATIVE HOUSING SOCIETY---Petitioner

Versus

JUDICIAL MAGISTRATE XVI EAST KARACHI and another---Respondents

Constitutional Petition No.D-1306 of 2010, decided on 1st March, 2011.

Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----Ss. 2(d), 3 & 4---Penal Code (XLV of 1860), Ss.408/420---Constitution of Pakistan, Art. 199--- Constitutional petition---Criminal breach of trust and cheating---Application for transfer of case to Special Court--- Dismissal of application--- Application filed by complainant/society for return of the challan in the case and for its submission before the Special Court, had been dismissed, by Judicial Magistrate---Validity---Counsel for the petitioner corporation, had submitted that act of respondent/accused fell within the meaning of 'scheduled offence' as defined by S.2(d) of Offences in Respect of Banks (Special Courts) Ordinance, 1984, therefore, case was triable by Special Court---Accused who was serving as office incharge with the petitioner society, had by forging the signature of the authorized office-bearers of the society, on the cheques from time to time withdrew a total amount of Rs.33,19,740 from the society's account, maintained with bank---Offence committed by accused fell within the mischief of Ss.408/420, P.P.C.---Since the transaction was a banking transaction and the amount had been fraudulently withdrawn from a bank, offence, was clearly and exclusively triable by the court constituted under Offences in Respect of Banks (Special Courts) Ordinance, 1984---Impugned order whereby application of petitioner for transfer of case was dismissed was set aside, with direction to Investigating Officer to submit challan of the case before Special Court, constituted under Offences in Respect of Banks (Special Courts) Ordinance, 1984.

Muhammad Rafiq v. Manager, House Building Finance Corporation 2003 MLD 841 ref.

Khaleeq Ahmed for Petitioner.

Sardar Sher Afzal for Respondent.

Ashiq Raza, D.A.-G.

YLR 2011 KARACHI HIGH COURT SINDH 1891 #

2011 Y L R 1891

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

MUHAMMAD ISHAQUE alias SAATHI M. ISHAQUE and another---Petitioners

Versus

VICE-CHANCELLOR UNIVERSITY OF KARACHI and another---Respondents

Constitutional Petition No.D-2567 and Miscellaneous No. 10333, 10945 of 2010, decided on 15th April, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Admission---Entry test---Petitioners as well as intervener had applied for admission in Ph.D. on the basis that they possessed the degree of LLM and appeared in the entry test held by the Institution along with 101 candidates, out of which only 11 candidates were declared successful and petitioners and intervener remained unsuccessful---Petitioners and intervener, after availing the opportunity of appearance in the entry test, without objecting the test at the relevant time, had impugned the condition of entry test for the admission---Condition of said test was imposed for all other subjects as well and was not being taken for the first time---No irregularities and favourtism was proved on record---Constitutional petition was dismissed, in circumstances.

Petitioners in person.

Moin Azhar Siddiqui for Respondent No.1.

Shahid Ali Ansari for Applicant.

YLR 2011 KARACHI HIGH COURT SINDH 1899 #

2011 Y L R 1899

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

Mst. PARVEEN AKHTAR and others---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Jail Appeals Nos.4 to 6 of 2009, decided on 8th April, 2011.

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

----S. 365-A/34--- Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping or abduction for ransom---Terrorism---Appreciation of evidence---Accused had allegedly abducted the minor child, nephew of the complainant---Despite the occurrence having taken place in a populated area, no eye-witness or any other witness from the locality had been joined in investigation by the police---Accused had, according to complainant, contacted him on phone for ransom amount, when father of the child was also with him, but neither the father nor the mother of the child went to the police station with him---Prosecution witnesses had only a fleeting glimpse of the accused and that too after sunset and they had never met the accused previously, hence the possibility of erroneous identification of accused in the identification parade could not be ruled out, which even otherwise was not held in accordance with law---Statement of the abducted child did not inspire confidence, as admittedly he had been tutored by the complainant before making the same---Prosecution case was full of doubts, benefit whereof would go to accused---Accused was acquitted in circumstances.

Irshad Ali alias Ishoo and 2 others v. The State PLD 2006 Kar. 178; 2002 YLR 238(2); Muhammad Akram v. The State 2009 SCMR 230 and State v. Muhammad Akmal 2000 YLR 2063 ref.

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

----Art.3---Evidence---Child witness---Rule of caution---Evidence of a child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated as rule of prudence---Great care is to be taken that in the evidence of child element of coaching is not involved---Chidren are the most untrust worthy class of witnesses, because when in tender age they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and the desire of notoriety---Rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some evidence on the record.

2002 YLR 238(2) and Muhammad Akram v. The State 2009 SCMR 230 ref.

----Ss.365-A/34---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping or abduction for ransom, terrorism---Appreciation of evidence---Benefit of doubt---Principle---Single legal infirmity creating reasonable doubt in fulfilling the requirements of law, makes the whole case doubtful and benefit of the same is to be given to the accused.

State v. Muhammad Akmal 2000 YLR 2063 ref.

Kashif Hanif for Appellant (in Appeal No.4 of 2009).

Ashfaq Rafiq Janjua for Appellant (in Appeal No.5 of 2009).

Sohail H.K. Rana for Appellants (in Appeal No.6 of 2009).

Khadim Hussain, D.P.-G. for Respondent (in all Appeals).

Date of hearing: 21st March, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 1912 #

2011 Y L R 1912

[Karachi]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD AHMED---Plaintiff

Versus

MUHAMMAD YOUNUS LAKHANI---Defendant

Suit No.789 of 1992 and C.M.As. Nos.34/6, 3417 of 2010, decided on 7th March, 2011.

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

----O.IX, R.13---Application for setting aside ex parte decree----Counter suits filed by plaintiff and defendant against each other---Defendant's suit showing his office and residential addresses contested by plaintiff, but was dismissed for non-prosecution---Ex parte decree in plaintiff's suit wherein only office address of defendant was given---Defendant's plea that his residential address had been fraudulently concealed by plaintiff, thus, he could not be served with intimation notices issued to him after death of his counsel---Validity---Intimation notices issued to defendant at his office address given in plaint by plaintiff were returned with endorsement that defendant was not available at given address---Plaintiff and his counsel had been appearing in defendant's suit, wherein defendant had given his both office and residential addresses---Plaintiff and his counsel, when directed by court for several times to give fresh address of defendant, had denied to have any other address of defendant except one given in title of plaint---Plaintiff despite knowing about residential address of defendant had mentioned in execution petition only office address of defendant and succeeded to get attachment of property, which was in name of defendant's mother---Matters should be decided on merits rather than on technicalities---Ex parte decree was set aside in circumstances.

Muhammad Tahir v. Emirates Bank International PJSC and another 2010 CLC 1545; Muhammad Ayub Patel v. Hasham 1997 MLD 1838 and Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan PLD 1981 SC 21 ref.

Secretary Education Department of N.-W.F.P. and others v. Asfandiar Khan 2008 SCMR 287; National Bank of Pakistan v. Mian Abdul Majid and 2 others 1984 CLC 2893; Tariq Mahmood v. Mst. Zarda Begum and another 1995 CLC 1102; Munawar Ali v. Aamer Naveed 2008 CLC 543; Sher Muhammad and others v. Khawaja Mazhar and others 2009 YLR 1609 and State Life Insurance Corporation of Pakistan v. Fazal and Sons (Pvt.) Ltd. 2010 CLC 1895 distinguished.

(b) Administration of justice---

----Matters should be decided on merits rather than on technicalities.

Muhammad Ilyas Khan Tanoli for Plaintiff.

Asim Iqbal for Defendant.

YLR 2011 KARACHI HIGH COURT SINDH 1920 #

2011 Y L R 1920

[Karachi]

Before Muhammad Tasnim, J

ZAHOOR AHMED alias ABDUL KARIM and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-702 of 2010, decided on 6th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/353/34---Qatl-e-amd, attempt to commit qatl-e-amd and assault or criminal force to deter public servant from discharge of his duty---Bail, grant of---Further inquiry---Three accused were nominated in F.I.R. and one of them was shown to be armed with pistol and from his fire one Police constable sustained injuries and subsequently he died---No allegation was levelled against applicants/ accused persons---No doubt accused/ applicant were arrested and recovery was effected, but no firing, whatsoever was made from weapons recovered from them--Case being of further inquiry, applicants/ accused persons, were admitted to bail, in circumstances.

Shahid Ahmed Memon for Applicant.

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

Date of hearing: 6th September, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 1929 #

2011 Y L R 1929

[Karachi]

Before Muhammad Tasnim, J

ALI RAZA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-818 and M.A. No. 3978 of 2010, decided on 31st December, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.394---Voluntarily causing hurt in committing robbery---Bail, grant of---Further inquiry---Prosecution had failed to justify the delay of three days in lodging the F.I.R.---Delay of two days spent by the complainant in reaching the Medical Officer for medical examination had also remained unexplained---Injuries sustained by the complainant and his companion were admittedly simple in nature falling under S.337-A(i), P.P.C., which was a non-cognizable and bailable offence---Mobile phone and the clothes allegedly recovered from the accused having not been established as robbed articles, were of no consequence---Tentative assessment of the material on record had made out the case of accused of further inquiry in terms of the provisions of S.497(2), Cr.P.C.---Accused was allowed bail in circumstances.

Shabeer Hussain Memon for Applicant.

S. Meeral Shah, D.P.-G. Sindh for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1935 #

2011 Y L R 1935

[Karachi]

Before Muhammad Tasnim, J

NOOR AHMED alias TEETA---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.S-692 and M.A. No. 3242 of 2010, decided on 28th December, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/114/341/147/148/149/427/337-A(i)/ 337-H(2)/337-L(2)---Attempt to commit Qatl-e-Amd, abetment, wrongful restraint, rioting with deadly weapons, mischief causing damage, causing hurt---Bail, grant of---Further inquiry---Case was of counter version---No incriminating article had been recovered from the accused---Despite the challan having been submitted in the court, the case had not shown any progress---Injury caused by accused entailed sentence of three years' R.I.---Intention of the accused as to whether he had fired for killing any person or otherwise, was yet to be determined by Trial Court after recording evidence---Case against accused fell within the realm of S.497(2), Cr.P.C. calling for further inquiry into his guilt---Accused was released on bail in circumstances.

Muhammad Zhahzad Siddique v. State PLD 2008 SC 58 rel.

Muhammad Ishaque Khoso for Applicant.

S. Meeral Shah, D.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1944 #

2011 Y L R 1944

[Karachi]

Before Muhammad Tasnim, J

IMRAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-624 of 2010, decided on 31st December, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Haraabah---Bail, grant of---Further inquiry---Deeper appreciation of evidence was not permissible at bail stage---Gold ornaments, prize bonds and cash were stated to have been taken away by the accused persons from the house of the complainant---Names and description of accused were not mentioned in the F.I.R.---Identification parade was held after nine days of the arrest of the present accused---Such delay had not been explained by the prosecution---Recovery allegedly made from the accused was not confronted to the complainant or other residents of his house, which had created doubt about the complicity of the accused in the commission of the offence---Case of accused, thus, needed further probe into his guilt in terms of the provisions of S.497(2), Cr.P.C.---Accused was enlarged on bail in circumstances.

Ali Muhammad Dahri for Applicant.

Syed Meeral Shah, D.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1960 #

2011 Y L R 1960

[Karachi]

Before Muhammad Tasnim, J

Malik MOAZAM HYDER and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-680 of 2010, decided on 28th December, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.324/147/148/149/337-F(i)---Attempt to commit Qatl-e-amd, wrongful restraint, rioting with deadly weapons---Pre-arrest bail, grant of---Fire arm injury sustained by the victim on his left arm was shown by the medical certificate to be self-inflicted---Other victim who had received fire arm injury on his right leg and filed an affidavit before High Court stating therein that he had sustained the said injury prior to the incident---State counsel had not opposed the confirmation of ad interim pre-arrest bail granted to accused for the reason that the medical evidence available on record had clearly made the prosecution case doubtful---Pre-arrest bail was allowed to accused in circumstances.

Syed Tarique Ahmed Shah for Applicants.

Syed Meeral Shah, D.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 1974 #

2011 Y L R 1974

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD FAROOQUE and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-819 and M.A. No. 4498 of 2010, decided on 29th December, 2010.

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

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Haraabah---Bail, grant of---Further inquiry---None of the accused was nominated in the F.I.R. with any role or description---Two F.I.Rs. having been registered against the accused on the same day at different Police stations, it was yet to be determined after recording evidence as to in which case the robbed motorcycle had been recovered by the police---Complainant and another prosecution witness had filed affidavits before High Court completely exonerating the accused from the allegations made in the F.I.R.---Deeper appreciation of evidence at bail stage could not be made and only tentative assessment thereof was needed just to find out any link of the accused with the commission of the offence---Guilt of accused needed further inquiry in terms of the provisions of S.497(2), Cr.P.C. in circumstances and they were admitted to bail accordingly.

Muhammad Najeeb v. State 2009 SCMR 448 ref.

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

----S.497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Haraabah---Bail---Assessment of evidence---Principle---Deeper appreciation of evidence at bail stage cannot be gone into, but only its tentative assessment is to be made just to find out as to whether the accused persons are connected with the offence or not.

Wali Muhammad Khoso for Applicants.

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

YLR 2011 KARACHI HIGH COURT SINDH 1987 #

2011 Y L R 1987

[Karachi]

Before Muhammad Tasnim, J

ZULFIQAR ALI and 5 others---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No.S-679 of 2010, decided on 28th December, 2010.

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

----S.497/498--- Bail--- Assessment of evidence---Principle---Tentative assessment of material available on record and not the deeper appreciation thereof, can be made at bail stage in order to find out if the accused are, prima facie, linked with the commission of the alleged offence or not.

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

----S.498---Penal Code (XLV of 1860), Ss.324/114/341/147/148/149/427/337-A(i)/ 337-H(2) 337-L(2)---Attempt to commit Qatl-e-amd, abetment, wrongful restraint, rioting armed with deadly weapons, mischief, causing of hurt---Pre-arrest bail, grant of---Three accused had not been assigned any role---Despite the alleged firing by the fourth accused, nobody was injured---Case of the fifth accused was similar to that of co-accused, who had been let off by the police, and rule of constituency was applicable to him---Injury caused by the sixth accused on the back of the injured witness was simple in nature according to medical report---Deputy Prosecutor-General had conceded to the confirmation of interim pre-arrest bail granted to all the six accused in circumstances---Pre-arrest bail was granted to accused accordingly.

Meeran Bux v. State PLD 1989 SC 347, Muhammad Azam v. State 2008 SCMR 249; Umaid Ali v. State 2008 SCMR 1419 and Muhammad Murad v. State 2002 PCr.LJ 1051 ref.

Ghulamullah Chang for Applicants.

S. Meeral Shah, D.P.G.

YLR 2011 KARACHI HIGH COURT SINDH 1997 #

2011 Y L R 1997

[Karachi]

Before Muhammad Tasnim, J

GUL MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-719 of 2010, decided on 31st December, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Haraabah---Bail, grant of---Further inquiry---Eight persons had allegedly robbed the Oil Tanker of the complainant containing 1500 liters petrol on gun-point, three mobile phones and some cash---F.I.R. was lodged on next day of the incident---Present accused though arrested on the same day, was not shown to the complainant, driver or other persons available at the time of robbery---No recovery, whatsoever, had been effected from the accused---Any link of the accused with the offence was yet to be determined---Guilt of accused needed further inquiry within the ambit of S.497(2), of Cr.P.C.---Bail was allowed to accused in circumstances.

Ghulam Hyder Jalbani for Applicant.

2011 Y L R 2040

[Karachi]

Before Imam Bux Baloch, J

MIRAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.276 and M.A. No. 1294 of 2011, decided on 14th March, 2011.

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---Name of accused did not appear in the F.I.R. and no evidence was available with the prosecution to connect accused with the commission of offence---Enmity between the parties was admitted in the F.I.R.---Case of accused falling under the purview of further inquiry as contemplated under S.497(2), Cr.P.C., accused was granted bail, in circum-stances.

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

YLR 2011 KARACHI HIGH COURT SINDH 2041 #

2011 Y L R 2041

[Karachi]

Before Shahid Anwar Bajwa, J

Syed HUR RIAHI GARDEZI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.1415 to 1417 and 1429 to 1431 of 2010, decided on 17th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, cheating, forgery for purpose of cheating, using as genuine forged document, corruption---Bail, grant of---Further inquiry---One of accused persons was 67 years old and was suffering from various diseases---Medical certificate showed that said accused was likely to develop stress related aggravation of his medical condition in the form of cardiac or cerebral schaemia and it was recommended that in case of any untoward symptoms he should be given immediate appropriate hospital care---Accused who were nominee Directors of corporation concerned, had no executive position in the management hierarchy of the corporation---Accused were not employees of the Corporation; their role, if any, was to be seen in the context of their position as Directors---Allegation against accused persons was in three parts; firstly, it was alleged that without issuance of tenders, scope of the work was enhanced; secondly, the amount expended on the work was grossly disproportionate to the work done; and thirdly without signing agreement, the work was entrusted to contractor---Central Procure-ment Committee of Corporation, had recommended the case of contractor---Committee did not point out that no fresh tender had been called---Board had approved award of the contract to the contractor---Case of accused persons was that of further inquiry in circumstances, and they were admitted to bail.

Muhammad and Tahir alias Tahir Jaffar v. The State 2010 YLR 2244; Abdul Rashid Nasir and others v. The State 2009 SCMR 517; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966; Maulana Abdul Aziz v. The State 2009 SCMR 1210; Raja Shamshad Hussain v. Gulraiz Akhtar and others PLD 2007 SC 564; Zakhim Khan Masood v. The State 1998 SCMR 1065; Mian Manzoor Ahmed Watto v. The State 2000 SCMR 107; Malik Muhammad Yousafullah Khan v. The State PLD 1995 SC 58 and Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282 ref.

Ashtar Ausaf Ali for Applicant (in Criminal Bail Applications Nos. 1415 to 1417 of 2010).

Mian Khan Malik Deputy Attorney General for Respondent (in Criminal Bail Applications Nos. 1415 to 1417 of 2010).

Anwar Mansoor Khan for Applicant (in Criminal Bail Applications Nos.1429 to 1431 of 2010).

Mian Khan Malik Deputy Attorney-General for Respondent (in Criminal Bail Applications Nos.1429 to 1431 of 2010).

Dates of hearing: 4th and 5th January, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2056 #

2011 Y L R 2056

[Karachi]

Before Syed Zakir Hussain, J

ALI MURAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.648 of 2010, decided on 6th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, acts done by several persons in furtherance of common intention---Bail, grant of---Further inquiry---F.I.R. was registered by delay of two days without plausible explanation---Police carried out investigation without registering the F.I.R.---Complainant remained absent from proceedings conducted by Police before recording of his statement under S.154, Cr.P.C. without plausible excuse---Appearance of seven injuries on the person of the deceased as a result of three fire shots by three accused required further inquiry---Bail was granted.

Allahdino alias Dino alias Khanu v. The State 2001 YLR 3143; Nooruddin and another v. The State 2005 MLR 1267; Waris and 2 others v. The State 2000 PCr.LJ 642; Muhammad Shafique alias, Chhara v. The State 2007 MLD 736 and Parial v. The State 2006 PCr.LJ 1212 ref.

Muhammad Iqbal Mahar for Applicant.

Abdul Rasheed Soomro, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 2060 #

2011 Y L R 2060

[Karachi]

Before Syed Zazkir Hussain, J

SHAHNAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-589 of 2010, decided on 6th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(1)(2)---Penal Code (XLV of 1860), Ss.324, 353, 148, 149 & 427---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, armed with deadly weapon, offence committed by member of unlawful assembly committed in prosecution of common object, mischief causing damage to the amount of fifty rupees and haraaba---Bail, grant of---Police Officials sustained no injury which made the alleged police encounter doubtful---Matter needed public inquiry which had not been conducted---No F.I.R. was registered regarding killing of the deceased accused---No incriminating evidence was available to show that the passenger coach was looted by the accused---By allowing the passenger coach in question to leave the alleged crime scene, police rendered the collection of evidence impossible---Entire case seemed to be doubtful---Bail was granted to the accused.

Shahbaz Ali Brohi for Applicant.

Abdul Rasheed Soomro for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2066 #

2011 Y L R 2066

[Karachi]

Before Syed Zakir Hussain, J

MUHAMMAD NAWAZ alias TIMON---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-16 of 2010, decided on 22nd November, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Criminal Procedure Code (V of 1898), S.265-H(2)---Qatl-e-amd---Appreciation of evidence---Trial Court had acquitted two accused as their case was found to be doubtful in the light of the evidence which was almost the same on the basis of which the accused had been convicted---Evidence of prosecution witnesses was contradictory---Securing of blood-stained material from the spot and securing five empties of .12 bore therefrom under the memo prepared to such effect were not established as there was no expert report and nothing was produced as case property---People who came running to the spot after hearing gun shot had not been picked up as witnesses---Police had not interrogated the complainant party and blindly believed him and his witnesses and prosecuted the nominated persons on the basis of no positive incriminating evidence---Even the witness available had been left unexamined and un-produced in the court without legal excuse---Trial Court had taken two altogether different views culminating in conviction and acquittal on the basis of same evidence and yardstick of law, without any cogent reasons distinguishing both the said two conclusions from each other---Judgment of the Trial Court being not supported by the prosecution's representative in the court, such judgment did not deserve to be sustained---Petition was allowed.

Habibullah, G. Ghouri for Appellant.

Ameer Ahmed Narejo for Respondent.

Date of hearing: 22nd November, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 2072 #

2011 Y L R 2072

[Karachi]

Before Syed Zakir Hussain, J

SHABIR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.S-239 of 2010, decided on 10th December, 2010.

Criminal Procedure Code (V of 1898)---

----Ss.561-A & 265-F---Penal Code (XLV of 1860), Ss. 302/148/149/109---Qatl-e-amd, rioting armed with deadly weapons, abetment---Keeping the pending sessions case in abeyance and releasing the accused on account of the inability of the prosecution to produce the private witnesses including the complainant in the court at the trial---Such prayer of the accused had been dismissed by Trial Court vide impugned order---Validity---Investigating Officer and Medical officer had been examined in the case by the Trial Court, while the private witnesses including the complainant, were not being served for want of their fresh addresses despite having issued process repeatedly by Trial Court for their appearance in the Court even in the shape of non-bailable warrants---Provisions of S.265-F, Cr.P.C. would resolve the present issue---Trial Court would take evidence of the prosecution as could be made available by it to the court for such purpose---Word "may" used in the said provision shows a discretionary state and not mandatory in context and perspective thereof, yet as a matter of settled law, it was the duty of the court to use its all powers given by the Code of Criminal Procedure, 1898, to secure entire available evidence whether requested by the prosecution or not, or on its own to serve the purpose of justice in the matter, but where despite its such efforts including issuance of compulsive process for securing evidence and or ensuring attendance of prosecution witnesses, court finds no productive result owing to show of blunt negligence and recalcitrant or unmanageable conduct of the police in execution of the process of the Court, or otherwise, it would then be left with no other option but to acquit the accused for want of evidence, so as to avoid the abuse of process of law and frustration of justice, as a matter of its duty thereagainst---Consequently, impugned order was maintained to the extent that the prayer for an order to keep the case in abeyance was not covered by any law and the application of accused had rightly been rejected---Proceedings confined to the exercise referred to above being fruitless and an abuse of the process of law were not legal---Trial Court was, therefore, directed to side line the matter of proceeding the evidence of the said private prosecution witnesses and proceed further with the remaining witnesses and decide the case, after having considered the applicability of S. 265-K, Cr.P.C. in the case, if the circumstances warranted so in the interest of justice---Petition was disposed of accordingly.

Liaquat Ali Baloch for Applicant.

Altaf Hussain Surahyo, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 2121 #

2011 Y L R 2121

[Karachi]

Before Muhammad Ali Mazhar, J

DELHI MERCANTILE COOPERATIVE SOCIETY LTD. through General Secretary---Plaintiff

Versus

REGISTRAR COOPERATIVE SOCIETIES, SINDH HYDERABAD and another---Defendants

Suit No.500 and C.M.A. No.3033 of 2006, decided on 25th May, 2011.

(a) Cooperative Societies Act (VII of 1925)---

----Ss.43, 54, 54-A, 56, 64, 64-A & 70-A--Specific Relief Act (I of 1877), S. 42---General Clauses Act (X of 1897), S.24-A---Inquiry, assailing of---Bar to civil suit---Applicability---Registrar, powers of---Speaking order---Plaintiff assailed order passed by authorities in exercise of powers under section 43 (1) of Cooperative Societies Act, 1925---Plea raised by defendant was that suit was not maintainable as jurisdiction of civil courts was barred under section 70-A of Cooperative Societies Act, 1925---Validity---Challenge to legitimacy and validity of order passed under section 43 of Cooperative Societies Act, 1925, could not be remedied under Ss. 54, 54-A, 56, 64 and 64-A of Cooperative Societies Act, 1925, therefore, S. 70-A of the Cooperative Societies Act, 1925 had no germane---Bar contained in S. 70-A of Cooperative Societies Act, 1925, being not applicable there was also no bar to challenge the order passed under section 43 of Cooperative Societies Act, 1925, through a civil suit, notwithstanding the plea of mala fide was taken or not in the suit---Order of inquiry was challenged on the ground that no reasons had been assigned in the order itself for holding an inquiry and even it was also claimed that the order was in violation of principles of natural justice---Plaintiff could maintain the suit for declaration particularly in the circumstances where plaintiff was a registered Cooperative Housing Society and if any further order was passed on the basis of the order in question, then it would affect the affairs of plaintiff society---Plaintiff did not approach High Court for claiming any hypothetical or abstract right nor for satisfaction of any ego nor for mere sentiments but the suit was filed to protect and safeguard right to its legal character, therefore, suit was not barred by S.42 of Specific Relief Act, 1877---Registrar under section 43(1) of Cooperative Societies Act, 1925, though was vested with suo motu powers to hold inquiry into the affairs of constitution, working and financial condition of a society but such discretionary power did not give any unbridled right to hold an inquiry in violation of principles of natural justice or S. 24-A of General Clauses Act, 1897---Order passed by Registrar was declared by High Court to have been issued devoid of any reason and in violation of natural justice and the same was set aside---Suit was decreed accordingly.?

Abbasia Cooperative Bank v. Hakim Hafiz Muhammad Ghous and others PLD 1977 SC 3; Secretary of State v. Mask and Co. AIR 1940 P.C. 05; Islamic Republic of Pakistan v. General Traders and Ammunition Manufacturers Ltd., 2008 CLC 1462; Mst. Aqila Begum v. Pakistan Employees Cooperative Housing Societies Ltd. PLD 2004 Kar. 1; Arif Majeed Malik v. Board of Governors Karachi Grammar School 2004 CLC 1029; Muhammad Jamil Asghar v. Improvement Trust Rawalpindi PLD 1965 SC 698; Shafqatullah Qadri v. University of Karachi PLD 1954 Sindh 1d7; Global Produce Ltd. v. Habib. Credit and Exchange Bank Ltd. 1998 CLC 156; Messrs Airport Support Services v. The Airport Manager Quaid-e-Azam International Airport 1998 SCMR 2268; Muhammad Younis and 2 others v. Election Tribunal Ferozewala 2004 CLC 1090; Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092 and Tariq Aziz-ud-Din and others in Human Right Cases 2010 SCMR 1301 ref.

Pir Illahi Bukhsh Cooperative Housing Society Ltd. v. Registrar Cooperative Societies Karachi 1968 SCMR 423 and Saddar Cooperative Market Ltd. v. Province of Sindh and others 2009 CLC 143 distinguished.

Karachi Administration Employee Cooperative Housing Society Ltd. v. Government of Sindh 2004 YLR 1070 fol.

(b) Cooperative Societies Act (VII of 1925)---

----S. 43---Inquiry, holding of circum?stances---Jurisdiction of holding inquiry against cooperative society by Registrar under his discretionary powers under S. 43 of Cooperative Societies Act, 1925, is focused on circumstances and or phenomenon i.e. the "constitution" and "working and financial condition of the society---Registrar can hold inquiry under S.43 of Cooperative Societies Act, 1925 but legislature did not intend to allow Registrar an unbridled or unconstrained powers to pass order of inquiry in violation of natural justice.?

----Making of decisions---Principles---In a system governed by the rule of law, discretion, when conferred upon authorities, must be confined within defined limits---Decisions should be made by application of known principles and rules.?

Abid S. Zuberi along with Omer Lakhani, Rasheed Ashraf and Shakeel Rabani for Plaintiffs.

Nazar Akbar along with Farhan Zia Abrar for Respondents Nos. 1 and 2.

YLR 2011 KARACHI HIGH COURT SINDH 2155 #

2011 Y L R 2155

[Karachi]

Before Tufail H. Ebrahirn, J

WAHID GUL-Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.459 of 2011, decided on 12th May, 2011, Criminal Procedure Code (V of 1898)---

----Ss. 497 & 59---Penal Code (XLV of 1860), S.379/34---Theft---Bail, refusal of---Accused had allegedly taken out Rs.17000 from the pocket of the shalwar of the complainant---Accused was nominated in the F.I.R. with the specific role---Accused was caught red-handed on the spot by the complainant, part of the stolen amount was recovered from him and he was handed over to police available nearby---Said action was in consonance with the provisions of S.59, Cr. P. C. ---No apparent enmity appeared between the parties, nor the police had any mala fides against the accused---Sufficient incriminating material was available on record to connect the accused with the commission of the offence---Offence' under S.379, P.P.C. was not bailable and though the same did not fall within the prohibitory clause of S.497(1), Cr.P.C., yet on said ground bail could not be claimed as a right---Failure to mention the denominations and serial numbers of the stolen currency notes was no ground to make the case one of further inquiry---Bail was disallowed to accused in circumstances.

2008 PCr.LJ 611; 2008 PCr.LJ 923; 2008 PCr.LJ 1621; 2002 SCMR 442; PLD 1970 SC 2006; 1999 SCMR 944 and 2009 SCMR 929 distinguished.

Saadat Hussain for Applicant.

Imtiaz Ali Jalbani, A.P.-G. for the State.

Date of hearing: 26th April, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2177 #

2011 Y L R 2177

[Karachi]

Before Tufail H. Ebrahim, J

INAMULLAH KHAN---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.13 of 2011, decided on 12th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Customs Act (IV of 1969), Ss.32/32-A/37/156(1)/178---Untrue statement and fiscal fraud---Pre-arrest bail, grant of---Further inquiry---Accused was not nominated in the F.LR. and he was involved through the supplementary interim charge-sheet for removing or misplacing the files relating to the rebate claims, for which cheques had been issued to fake companies---Accused did not appear to have played any role in the processing of the rebate claims and he was not posted in accounts , section of the department at the relevant time---Accused had no concern with the safe keeping of the rebate files, as he was not incharge of the Record Room---No documentary or any other evidence had shown involvement of accused in the alleged crime---Accused had neither prepared nor filed bogus claims or processed the cheques---Accused also had no direct dealing with customs clearing and forwarding agents or the beneficiaries or the opening of any bank accounts of fake companies---None of the offences fell within the prohibitory clause of S. 497(1), Cr. P. C. ---All the documentary evidence being in possession of prosecution, accused was no longer required for further investigation and he could not tamper the evidence---Bail could not be withheld as punishment---Matter would be decided by Trial Court after recording evidence---Case against accused required further inquiry---Pre-arrest bail was allowed to accused in circumstances.

Aquil Ahmed for Applicant.

Muhammad Qasim, Standing Counsel for the State.

Date of hearing: 28th April, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2194 #

2011 Y L R 2194

[Karachi]

Before Salman Hamid, J

ALLAHWASAYO---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-74 of 2005, decided on 7th February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302, 342 & 220---Criminal Procedure Code (V of 1898), Ss. 200, 203 & 435---Qatl-e-amd, wrongful confinement and commitment for trial or confinement by person having authority who knows that he was acting contrary to law---Dismissal of direct complaint---Trial Court exercising powers under S.203, Cr.P.C. dismissed direct complaint filed by the complainant/petitioner---Evidence of witnesses and that of the complainant would show that same was consistent with the contents of the complaint; and nothing was available in the evidence to discredit the same---Postmortem report would show that deceased died because of firearm injuries---Post mortem report prima facie had revealed that both wounds on the body of deceased had been caused from the bullets which entered deceased from behind/back, which prima facie had suggested that deceased was made to ruts . by the police and was killed to show that his death was an outcome of police encounter---Ground of encounter as taken by the police appeared to be afterthought and had been raised to cover up their act of omission and commission, whereby innocent life of deceased was lost---Fact had prima facie proved that deceased was taken away from his residence forcibly and subsequently he was killed, seemingly in a false police encounter---Even if deceased was a notorious criminal and was wanted in criminal cases pending against him, it was open to no one to take his life in the manner and fashion it was seemingly taken---Deceased had been deprived of fair and unbiased trial---Every person was innocent, unless proven guilty through process of court of law---Grave injustice had been caused to the complainant by refusing to entertain his complaint and its dismissal by the Trial Court---Impugned order was set aside and court was directed to bring the complaint on regular file and proceed with the same expeditiously in accordance with law.

Ali Nawaz Ghanghro for Applicant.

Abdul Rasheed Soomro, State Counsel.

Date of hearing: 31st January, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2216 #

2011 Y L R 2216

[Karachi]

Before Salman Hamid, J

ALI JAN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.S-257 of 2010, heard on 24th January, 2011.

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17(3)---Criminal Procedure Code (V of 1898), S.561-A---Haraabah---Treating F.I.R. under cancelled 'C' class---Quashing of order, application for---Judicial Magistrate agreeing with the recommendation of the Investigating Officer, had treated the F.I.R. under cancelled "C" class---Complainant/ applicant filed application under S.561-A, Cr.P.C. for quashing of the said order---Validity---Offence under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, being exclusively triable by the "superior court "/sessions court, Magistrate was not competent to take cognizance thereof; and since the Magistrate was not vested with the jurisdiction to take cognizance of the offence, he, while cancelling the F.I.R. on Police report had acted without jurisdiction---Impugned order was in the nature of recommendation and/or report or opinion for the competent court, same was administrative determination--Impugned order passed by the Magistrate was carton non judice to the extent of cancelling the F.I.R. in "C" class which was set aside---Impugned order was directed to be sent by the Magistrate to the court, competent to try the same and/or deal with it as per law.

Soofi Abdul Qadir v. The State and others 2000 PCr.LJ 520; and Rasool Bux Shaikh v. The State and another 2010 PCr.LJ 733 ref.

Muklitiar Ahmed Khoso for Applicant.

Ali Raza Pathan, State Counsel.

Date of hearing: 24th January, 2011

YLR 2011 KARACHI HIGH COURT SINDH 2226 #

2011 Y L R 2226

[Karachi]

Before Salman Hamid, J

Mst. AZIMA KHATOON---Appellant

Versus

MUHAMMAD SALEH and another---Respondents

Criminal Acquittal Appeal No. 4 and M.As. Nos. 359 and 360 of 2011, decided on 27th April, 2011.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S.417(2-A)---Prevention of illegal possession of property---Appeal against acquittal---Respondents/accused persons, had been acquitted by the Trial Court---Appellant in her application and evidence had alleged that she and her son were forcibly and illegally dispossessed from the land at the hands of respondents in aid and assistance of four men---Neither names of said other four men were disclosed nor any allegation, specific or otherwise, was raised against them as to manner of such illegal dispossession---All the grounds those were raised in the appeal were general in nature, not touching upon the fact that the names of appellant and her son appeared in the record-of-rights on 14-9-2009, whereas illegal dispossession was allegedly shown to be on 7-5-2008---No ground, whatsoever was available to the effect that the mutation of the land in question was later in time to the date of illegal dispossession---Prima facie the application which was brought before the court lacked the offence under provisions of S.3 of Illegal Dispossession Act, 2005, at the best some civil dispute existed between the parties with regard to the ownership of the land---Appellant, in circumstances, was entitled to have recourse through civil litigation, which had not been availed of---Order accordingly.

Mir Mumtaz Ali A. Bughio for Appellant.

Date of hearing: 18th February, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2238 #

2011 Y L R 2238

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

SHAHID alias AAMIR and another---Appellants

Versus

THE STATE---Respondent

Special Criminal ATA No.28 of 2008 and Constitutional Petition No.620 of 2011, decided on 13th June, 2011.

Penal Code (XLV of 1860)---

----Ss. 363/365-A/34-Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping for ransom and act of terrorism---Appreciation of evidence---Contradictions were found in the deposition of prosecution witnesses with regard to material facts---Statements of prosecution witnesses under S.161, Cr. P. C. were recorded by the Investigating Officer after arrest of accused persons and after the recovery of allegedly kidnapped child, which had cast doubts---Case, in circumstances was not free from doubts---Private witnesses, appeared to have been arranged by the Police and whole story was prepared at the Police Station---In case of doubt, no conviction could be made and accused must be given benefit of doubt, not as a matter of grace, but as a matter of right---Anything going in favour of accused, must be taken into consideration and benefit of doubt, if any, be extended to accused---Many circumstances creating doubt were not required to give benefit of doubt to accused; a single circumstance creating reasonable doubt in .a prudent mind was enough to acquit accused---Complainant party had not paid any ransom amount to accused directly or through some of their agents---In a case of abduction, the court had to see the purpose of kidnapping; was the same made for extorting money or property or to compel a person related with abductee to gain some benefit from him---Role assigned to co-accused who was wife of the complainant, for kidnapping and demanding the ransom amount, cast heavy doubt in that regard---Prosecution had to prove its case beyond reasonable doubt; and accused was presumed to be innocent until the case was fully proved against him or her---Prosecution had failed to prove its case against accused beyond any reasonable doubt, benefit of the same had to be given to accused---Prosecution having failed to make out a prima facie case against accused persons, impugned judgment of Trial Court, was set aside and accused were directed to be released, in circumstances.?

Waqar Nazir and others v. The State 2007 SCMR 661 and Muhammad Zubair and 2 others v. The State 2010 PCr.LJ 1892 rel.

Muhammad Akram v. The State 2009 SCMR 230; State through Advocate-General, Sindh v. The State PLD 1997 SC 408; Imamuddin v. The State 2005 YLR 845; Gul Sher and 2 others v. The State 2004 YLR 1355; Abdul Adeel and others v. The State 2009 SCMR 511; Dr. Khalid Moin and others v. The State and others 2006 PCr.LJ 639; Dr. Muhammad Abrar Younus and another v. The State 2010 YLR 1674; Khalid Javed and another v. The State 2003 SCMR 1419; Irshad Ali alias Ishoo and 2 others v. The State PLD 2006 Kar. 178; Muhammad Asghar v. The State PLD 2008 SC 513; Ghulam Murtaza v. The State 2010 PCr.LJ 461; Muhammad Ramzan and others v. The State unreported and Tafiq Pervez v. The State 1995 SCMR 1345 ref.

Abdul Razzak for Appellants.

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

Date of hearing: 7th April, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2259 #

2011 Y L R 2259

[Karachi]

Before Aqeel Ahmed Abbasi, J

MUHAMMAD AKBAR---Applicant

Versus

THE STATE---Respondent

Protective Bail Application No.608 and M.As. Nos. 3904 and 3905 of 2011, decided on 18th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498-A---Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)-Possessing and trafficking of narcotics---Protective bail, grant of---Counsel for accused had contended that accused was innocent and had been falsely implicated in the crime by the prosecution; that name of father of accused was also different; that Police was causing harassment to accused; and that there was serious apprehension that accused would be arrested---Counsel had further stated that it was learnt that non-bailable warrants had been issued against accused, who himself wanted to surrender before the Trial Court and to face trial and that accused had thrown himself at the mercy of the court---Court, without touching the merits of the case, admitted accused to protective bail for seven days, in circumstances.

Mrs. Shabana Ishaque for Applicant along with Applicant.

YLR 2011 KARACHI HIGH COURT SINDH 2261 #

2011 Y L R 2261

[Karachi]

Before Syed Mehmood Alam Rizvi and Maqbool Ahmed Awan, JJ

MUHAMMAD SADDIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-129 of 2004, decided on 17th April, 2009.

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

----S. 9(c)-Criminal Procedure Code (V of 1898), S.166(1)(4)---Police Rules, 1934, Rr.25.3 & 25.4---Possessing and trafficking of narcotics---Appreciation of evidence--- Defective investigation---Complainant/S.H.O. after information about the presence of accused at the spot proceeded to the spot (which was a Bus stop), after travelling 20 Kms. to the jurisdiction of another Police Station, without informing the S.H.O. of said other Police Station---Complainant (S.H.O.) arrested accused with the contraband while he was sitting at the said Bus stop, which was indigestible---S.H.O. himself became the complainant and registered F.I.R. at the area Police Station, but said S.H.O. neither recorded statements of the prosecution witnesses nor conducted investigation; and without any legal order handed over the copies of the F.I.R. to the complainant who brought the same to his own Police Station, allegedly on the oral orders of PDSP; and himself conducted the investigation and submitted the challan---Such appeared to be mala fide and illegal, which could not be sustained in law as he had violated the procedure given in the Criminal Procedure Code, 1898 as well as in Police Rules, 1934---Complainant should avoid conducting the investigation himself---In the present case mala fide was apparent---Out of two attesting witnesses only one was produced in the court, which was also oversighted by the Trial Court---Where the complainant conducted the investigation, the court must examine both the attesting witnesses as that was the requirement of the law; and the court should also satisfy itself of the facts of the case when said cases were punishable with death or imprisonment for life---Trial Court should be cautious as capital punishment could not be awarded in such peculiar circumstances---All the proceedings conducted by the complainant/ Investigating Officer, were illegal and subsequent proceedings conducted by the Trial Court were also illegal---Impugned order was set aside in circumstances.

State through Advocate-General, Sindh v. Bashir and others PLD 1976 SC 408; Muhammad Yousuf v. The State 2004 PCr.LJ 685; Nazeer Ahmed v. The State PLD 2009 Kar. 191 ref.

Noorul Haq Qureshi for Appellant.

Anwar H. Ansari for Respondent.

Date of hearing: 15th April, 2009.

YLR 2011 KARACHI HIGH COURT SINDH 2270 #

2011 Y L R 2270

[Karachi]

Before Syed Hasan Azhar Rizvi, J

ZULFIQAR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-216 of 2011, decided on 19th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of--Name of accused transpired in the F.I.R., with the role of firing at the deceased---Accused had participated in the commission of offence---Common intention of accused could not be determined at bail stage as accused was charged with the offence of capital punishment and innocence and guilt of accused would be determined by the Trial Court---Complainant had plausibly explained the delay in lodging of F.I.R.---Accused who had failed to make out a case for further enquiry, did not deserve for concession of bail---Bail application was dismissed, in circumstances.

Nadeem Malik for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 2277 #

2011 YLR 2277

[Karachi]

Before Faisal Arab, J

SAEED AHMED KHAN alias SHEEDO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-43 and M.As. Nos. 335 and 336 of 2011, decided on 27th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd---Bail, grant of-Role of firing at deceased had been attributed to only absconding accused---Role attributed to the accused was that he took said absconding accused to the place of incident---Involvement of the accused under S.34, P.P. C. would be decided after evidence was recorded in the matter---Accused was granted bail, in circumstances.

PLD 1972 SC 277; 1999 SCMR 1360; 2003 SCMR 958; 2004 YLR 2434; 2010 MLD 1749; 2010 PCr.LJ 280; 2010 SLJ 1213 and 2011 PCr.LJ 918, 1981 SCMR 1092; 1996 SCMR 1023 and PLD 1997 SC 347 ref.

Syed Madad Ali Shah for Applicant.

Tariq Ahmed Shah for the Complainant.

Shahzado Salem Nahyoon, Assistant P.G. for the State.

2011 Y L R 2297

[Karachi]

Before Ghulam Sarwar Korai, J

AYAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.363 of 2011, in Sessions case No.30 of 2008, decided on 17th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 109 & 34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Accused and his co-accused were arrested during investigation and challan was filed after more than 1-1/2 months from registration of F.I.R.---Case had not been concluded since last six years---Fair trial was right of accused who could not be detained for indefinite period at the mercy of prosecution---Since the challan had been filed and accused was no more required for the purpose of investigation; and case had not been concluded and was pending since last six years, bail application was allowed on the ground of delay, in circumstances.

Mrs. Shabana Kausar Jatoi for Applicant.

Shahzado Saleem Nahyoon Assistant Prosecutor-General Sindh.

YLR 2011 KARACHI HIGH COURT SINDH 2300 #

2011 Y L R 2300

[Karachi]

Before Maqbool Baqar and Nisar Muhammad Shaikh, JJ

GHULAM MURTAZA JAMALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. D-31 and D-44 of 2010, decided on 17th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.384, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 6(1)(k)-Extortion and terrorism---Bail, grant of---Further inquiry---Names of Mashirs did not appear in the very F.I.R. in which the complainant was shown to have proceeded from Police Station to the place of alleged incident as per the directions of the Police---No Mashirnama was prepared at the spot in respect of the recovery of the cash allegedly received by accused and recovered from his possession---Mashirnama in question had shown that accused was first taken from the spot towards the Police Station where such Mashirnama was prepared---Complainant also admitted on a query that both Mashirs were his subordinates---Alleged demand of "Bhatta" made by accused from the complainant on Mobile Phone, also needed further inquiry---Accused being entitled to the concession of bail, was admitted to bail, in circumstances.

Miss Shabana Kausar Jatoi for Applicant (in Criminal Bail Application No. D-31 of 2010).

Ayaz Hussain Tunio for Applicant (in Criminal Bail Application No.D-44 of 2010).

Ghulam Asghar Mirbahar for the Complainant along with Complainant.

Syed Meeral Shah, D.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2305 #

2011 Y L R 2305

[Karachi]

Before Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

NADIR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-60 of 2004, decided on 12th May, 2011.

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

----S. 9(c)---Control of Narcotic Substances (Government Analyst) Rules, 2001, R.4(2)---Possessing and trafficking narcotics---Appreciation of evidence---Narcotic substances allegedly recovered from possession of accused, was received in the laboratory within less than 72 hours as provided under R.4(2) of Control of Narcotic Substances (Government Analyst) Rules, 2001---Contention that since complainant/Sub-Inspector Police was himself Investigating Officer, entire proceedings were vitiated, was repelled, because Police Officer was not prohibited under the law to be a complainant, if he was a witness of an offence and such Officer could also be an Investigating Officer, so long as it did not prejudice the accused---Accused having rightly been convicted and sentenced by the Trial Court, appeal was dismissed.

Niazuddin v. The State 2007 SCMR 206; Zafar v. The State 2008 SCMR 1245; Ali Muhammad v. State 2003 SCMR 54 and Ghulam Qadir v. The State PLD 2006 SC 61 ref.

M.B. Shakeel for Appellant.

Amjad Ali Sahito, Special Prosecutor ANF for the State.

Date of hearing: 5th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2311 #

2011 Y L R 2311

[Karachi]

Before Muhammad Tasnim, J

AMANULLAH alias MUZAMMIL KHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.412 and M.As. 3658 and 1948 of 2011, decided on 10th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395/353/324---Dacoity, assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Deeper appreciation of the record could not be gone into at bail stage, but tentative assessment was to be made just to find out as to whether accused were connected with the commission of offence or not with which they had been charged---Both the material witnesses in the case, who were alleged to be eye-witnesses, had filed their affidavits before the Trial Court stating therein that accused were neither arrested in their presence; nor any recovery was effected from them---Said eye-witnesses had stated in their affidavits that recovery had been foisted upon accused persons---Affidavits filed by both the prosecution witnesses had created doubt' in the prosecution case calling for further enquiry in terms of subsection (2) of S.497, Cr.P.C.---Accused were admitted to bail, in circumstances.

Muhammad Nawaz alias Najja v. The State 1991 SCMR 111; Ghulam Hassan v. The State 2005 MLD 1083 and Naseer Ahmed v. The .State PLD 1997 SC 347 ref.

Ajab Khan Khattak for Applicants.

Abdullah Rajput, A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2316 #

2011 YLR 2316

[Karachi]

Before Muhammad Tasnim, J

NASIR KHAN AFRIDI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.364 of 2011, decided on 4th May, 2011.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Police, despite acting on spy information while arresting the accused from a thickly populated area, had not associated any private witness with the recovery proceedings---Where despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused, the allegations against him would need further inquiry---Quantity of 1150 grams of "charas" allegedly recovered front the accused had marginally exceeded the limit of 1000 grams, which was a border line in between clause (b) and clause (c) of S.9 of the Control of Narcotic Substances Act, 1997, and this aspect also needed further probe to determine his guilt---Deeper appreciation of record could not be made at bail stage and only the prima facie connection of accused with the commission of offence had to be seen---Case of accused required further inquiry as contemplated under S.497(2), Cr.P.C. in circumstances and he was allowed bail accordingly.

Hakim Mumtaz Ahmed v. The State PLD 2002 SC 590 rel.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail---Assessment of material on record---Principle---Deeper appreciation of the record at bail stage, cannot be gone into, but only it is to be seen as to whether the accused is prima facie connected with the commission of the offence or not.

Islam Badshah for Applicant.

Rahat Ahsan, Deputy Prosecutor General, Sindh for Respondent.

Date of hearing: 4th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2324 #

2011 Y L R 2324

[Karachi]

Before Muhammad Tasnim, J

ZOHAIB YAMEEN SHAIKH---Applicant

Versus

THE STATE-Respondent

Criminal Bail Application No.535 of 2011, decided on 12th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), S.392/34-Robbery-Bail, grant of---No identification parade was held in the case---Minimum punishment for the offence charged against the accused was three years' R.I.---Nothing was recovered from the accused---Accused was allegedly found travelling with co-accused in the robbed car, whereas he had claimed to have been arrested from near his residence and this aspect of the matter required further inquiry under S. 497(2), Cr. P. C. ---Accused was admitted to bail in circumstances.

Muhammad Yousuf v. The State 2010 YLR 2129; Muhammad Shahid v. The State 2010 YLR 901; Allah Wasaya v. The State 2004 PCr.LJ 1659; Niaz Ali alias Babar v. The State 2001 YLR 2832 and Muhammad Yaseen v. The State 1996 PCr.LJ 1711 ref.

Muhammad Nacem Memon for Applicant.

Abrar Ali Khichi, A.P.-G. for the State.

Date of hearing: 12th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2327 #

2011 Y L R 2327

[Karachi]

Before Muhammad Tasnim, J

QAMAR HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.415 of 2011, decided on 5th May, 2011.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possession of narcotics---Bail---Assessment of evidence--- Principle--- Deeper appreciation of record at bail stage cannot be made and only tentative assessment thereof is permissible just to find out whether the accused is prima facie connected with the offence or not.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possession of narcotics---Bail, grant of---Further inquiry---Prosecution must have associated some private person as witness during the entire process of apprehending and recovering the heroin---No private person was associated as witness while preparing first memo of arrest at the spot---Second memo had been prepared after four days after recovery of capsules containing heroin from the stomach of accused and that too without joining a private witness---No plausible explanation had been furnished by the prosecution in this regard---Perusal of F.I.R. and Chemical Examiner's report had shown a discrepancy in the weight of the recovered heroin---Offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Case against accused required further inquiry in terms of S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 363; Waheed Raza v. The State SBLR 2011 Sindh 439; Muhammad Shahid v. The State 2009 YLR 167; Akhtar Jan v. State 2009 YLR 45; Asghar Ali v. The State 2009 PCr.LJ 660 and Ghafoor Ahmed v. The State 2009 YLR 123 ref.

Hakim Mumtaz Ahmed and others v. The State PLD 2002 SC 590 rel.

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possession of narcotics---Bail---Further inquiry---Private persons not associated in recovery proceedings=-- Effect--- Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused---Allegations against the accused needed further inquiry.

Hakim Mumtaz Ahmed and others v. The State PLD 2002 SC 590 rel.

Khalid Ahmed Khan for Applicant.

Hussain Bukhsh Baloch, Special Prosecutor for A.N.F.

YLR 2011 KARACHI HIGH COURT SINDH 2335 #

2011 Y L R 2335

[Karachi]

Before Muhammad Tasnim, J

MAQSOOD ZAMAN---Applicant

Versus

THE STATE---Respondent

Bail Application No.408 of 2011, decided on 4th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b), (c)---Possession of narcotics---Bail, grant of---Deeper evaluation of evidence at bail stage had to be avoided---Accused had been arrested from a thickly populated area, but no private person had been associated with the arrest and recovery proceedings---F.I.R. did not show that Police after recovery of "charas" from the accused had weighed the same---Recovered material had been sent to Chemical Examiner for examination after an unexplained delay of eleven days---"Charas" weighing 1050 grams had allegedly been recovered from the accused, which had marginally exceeded 1000 grams---F.I.R. had been registered against the accused under S.9(b) & (c) of the Control of Narcotic Substances Act, 1997---Case of accused being a border line case required further inquiry---Accused was admitted to bail in circumstances.

Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 and Noor Ali Khan v. The State 2003 MLD 1637 rel.

Mushtaq Ahmed Jadoon for Applicant.

Ms. Rahat Ahsan, Deputy Prosecutor General, Sindh for the State.

Date of hearing: 4th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2349 #

2011 Y L R 2349

[Karachi]

Before Syed Zakir Hussain, J

IRFAN ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-650 of 2010, decided on 2nd December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9---Recovery of norcotics---Bail, grant of:--Further inquiry---No expert report was available in the case---When Chemical Examiner's report in affirmative, was not available in the case, the case would carry a status of further inquiry; and on such score alone the benefit of bail could be extended to accused in the interest of justice---Accused was granted bail, in circumstances.

Abdul Wahid v. The State 2009 MLD 1151 ref.

Ali Nawaz Ghanghro for Applicant.

Miss Rubina Dhamrah, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 2356 #

2011 Y L R 2356

[Karachi]

Before Syed Zakir Hussain, J

NISAR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-668 of 2010 and M.As.Nos. 3218 and 3219 of 2010, decided on 26th November, 2010.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession, import or export and trafficking of narcotic---Bail, grant of---Witnesses were not taken from the public, though available, with no legal excuse-Mashirs were Police Officials taken out of the same Police party---Seizing Officer was the complainant, whereas the Mashirs were his subordinates---No expert report was available, either in the record or with the State Counsel, it could not be said, in circumstances that the sample (charas), if dispatched to the expert for test, had been found as narcotic substance---Benefit of such aspect would go to accused, specially in the case of a tentative assessment of like nature---Charge had been submitted without expert report---Evidence and the story, both revolved around the Police Officials and the guilt of accused was subject to proof---State Counsel conceded and did not oppose the request of bail of accused---Bail, was granted to accused, in circumstances.

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

----S. 167---Remand of case---In a case, of remand, a court was bound to ensure that some substantial material justifying the remand was available, else no one whether his name appeared in the F.I.R. or not, was not open to be subjected to confinement by remand.

Faiz Muhammad Larik for Applicant.

Hafiz Musab Baleegh Dhamrah, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 2361 #

2011 YLR 2361

[Karachi]

Before Imam Bux Baloch, J

GIIULAM QADIR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.S-99 of 2009, decided on 10th April, 2011.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Prosecution evidence did not suffer from any material contradiction or discrepancy---Mere relationship of the eye-witnesses with deceased was not sufficient to discard their testimony if the same otherwise inspired confidence---Medical evidence had corroborated ocular evidence--Number of crime empties recovered from the spot had matched with the number of injuries received by the deceased at the time of incident---Fire shots had been attributed to the accused by the prosecution witnesses in their evidence---Pistols had been recovered from the possession of accused---F.I.R. had been lodged promptly within half an hour of the occurrence by the complainant narrating true facts---Prosecution evidence was natural and trustworthy---Trial Court had already taken a lenient view and awarded lesser punishment to accused---Conviction and sentence of accused were upheld in circumstances.

Mehmood Rashid v. The State 2003 SCMR 581 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Corroboration---Principle---Rule of independent corroboration is not an absolute and mandatory rule to be applied in each case, rather it is a rule of abundant caution, which is applied in the cases in which direct evidence is not of the standard which alone can be considered sufficient for conviction.

Mehmood Rashid v. The State 2003 SCMR 581 ref.

Faiz Muhammad for Appellants.

Altaf Hussain Surahio for Respondent.

Date of hearing: 11th April, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2368 #

2011 Y L R 2368

[Karachi]

Before Imam Bux Baloch, J

KHURSHEED AHMED JUNEJO ---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.91 of 2011, decided on 20th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.324/448/447/148/149 & 182---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Expunction of remarks passed by Trial Court in its judgment---Trial Court while acquitting the accused had ordered for initiating proceedings under S.182, Cr.P.C. against the complainant of the case and another person---Said remarks had been impugned through the present petition---Accused were not honourably acquitted, but they had been acquitted on benefit of doubt---No. show-cause notice had been issued to the person who was not a party to the proceedings---Section 182, Cr.P.C. appeared to have been used for S.182, P.P. C.---Held,. Presiding Officer of the court being Additional Sessions Judge was unaware about the law and he knew nothing about proper application of the provisions of Pakistan Penal Code and Criminal Procedure Code---Presiding Officer of the Trial Court was seemed to have acted under some extraneous consideration and he was influenced by the accused, which had resulted in passing such remarks against the complainant and against one anonymous person, who had no nexus at any stage of the case and even was not a party to the proceedings and such remarks had been passed against him after acquitting the accused on benefit of doubt---Presiding Officer had not only misapplied the , provisions of S.182, Cr.P.C., but even he had gone beyond the scope of S.182, P.P.C.-Impugned remarks passed by the Presiding. Officer of the Trial Court were consequently expunged---Petition was accepted accordingly.

Shaikh Inyatullah v. The State 1992 PCr.LJ 2101; Rani Begum v. Murad Bibi and others 2002 MLD 459; Haji Muhammad Aslam v. I.G Police and others PLD 2001 Lah. 84; Rana Riaz Ahmed Khan v. The State and others 2008 MLD 746; Iqbal Hussain, v. District Police Officer Hafiz Abad and others 2004 PCr.LJ 256; Chaudhary Muhammad Ashraf v. The State 1975 PCr.LJ 632; Muhammad Ghani v. Khaliq Mian and another 1994 PCr.LJ 1171; PLD 1958 SC (Pak.) 333; Muhammad Murad v. The State 1983 PCr.LJ 1097 and Nasiin Akhtar Soofi v. The State 1990 PCr.LJ 336 ref.

Safdar Ali Bhutto for Applicant.

Altaf Hussain Surahio, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 2379 #

2011 Y L R 2379

[Karachi

Before Gulzar Ahmed and Imam Bux Baloch, JJ

MUHAMMAD RAMZAN and. 3 others---Appellants

Versus

THE STATE---Respondent

Spl. Criminal A.T.A. No.21 of 2009, decided on 28th January, 2011.

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7 (e)---Abduction for ransom---Appreciation of evidence---Benefit of doubt---Principle---Place of captivity was situated in a thickly-populated area where Kiryana shop as well as Public Call Office were situated---Complainant party did not pay any ransom amount to accused directly even it was not mentioned who received ransom amount at the hands of prosecution witness, who was not examined during course of trial--Illegalities were committed during identification test of accused persons and no incriminating articles were secured' or recovered from the possession of accused persons---No ownership documents of house were recovered during investigation to prove ownership of accused---Trial Court convicted and sentenced accused persons for life imprisonment---Validity---Prosecution had failed to prove case against accused persons beyond any shadow of reasonable doubt---Prosecution case was pregnant with so many doubts---Only one circumstance creating doubt in a prudent mind, the benefit of the same was to be extended in favour of accused not as a grace but as a right---Conviction and sentence awarded to accused persons by Trial Court was set aside and they were acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 ref.

Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Abdul Razzak for Appellants.

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

Date of hearing; 28th January, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2393 #

2011 YLR 2393 (1)

[Karachi]

Before Muhammad Tasnim, J

JALAL DIN---Applicant

Versus

THE STATE and another---Respondents

M.A. No.2080 of 2011 in Criminal Appeal No.163 of 2011, decided on 3rd May, 2011.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S. 320---Qatl-e-khata---Suspension of operation of impugned judgment, application for---Accused who was convicted and sentenced for five years' R.I. had filed appeal against order of conviction and sentence---Pending appeal, accused had filed application for suspension of operation of impugned judgment---Since the offence for which accused was charged was bailable, sentence awarded to him was short and there being no possibility of hearing of appeal in near future, application was allowed and operation of impugned judgment was suspended and accused was admitted to bail.

Naleymitho Q.M. Ishaque for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 2413 #

2011 Y L R 2413

[Karachi]

Before Faisal Arab, J

SHAH MUHAMMAD---Plaintiff

Versus

EXPORT PROCESSING ZONES AUTHORITY---Defendants

Suit No.1222, C.M.As. Nos. 8566, 8567 and 9897 of 2008, decided on 18th May, 2011.

(a) Export Processing Zones Authority Ordinance (IV of 1950)---

----S. 24---Arbitration Act (X of 1940), S.34---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, injunction and damages---Allotment of plot in Export Processing Zone---Issuance of notice by defendant-authority to cancel such allotment for failure of plaintiff to achieve export target---Application by Authority for stay of proceedings in suit and referral' of dispute to arbitration---Validity---Agreement or any other document between parties did not provide for cancellation of allotment on such failure of plaintiff---Controversy had not arisen from any term of arbitration agreement---Such application was dismissed in .circumstances.

1999 MLD 673, Prime Safety Limited and another v. Federation of Pakistan and another C.P. No. 1111 of 2008; 2009 CLD 814; Premier Stitching Ltd. v. Export Processing Zones Authority Suit No. 990 of 2008 PLD 2002 SC 808; 1999 SCMR 985 and PLD 1999 SC 636 ref.

PLD 1958 Lah. 208 rel.

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

----S 34---Stay of proceedings in suit---Scope---Agreement containing arbitration clause and relation of controversy with matter agreed to be referred to arbitration being essential for applicant to establish existence of dispute between the parties---Principles.

Where a person applies under section 34 of the Arbitration Act, 1940 he has to satisfy the court firstly that there is an agreement for referring the matter to arbitration, and secondly that the controversy relates to any matter agreed to be referred to arbitration. This means that there should not only be, a dispute between the parties, but it should be of such a nature, which is covered under the arbitration clause. Unless this is shown, the suit cannot be stayed and matter cannot be referred to arbitration. It is not sufficient that controversy has arisen between the parties to arbitration, but it is necessary that the controversy should be of such a nature, which is covered by a situation which provides for referral of the matter to arbitration. The applicant of section 34 of the Arbitration Act, 1940 must satisfy the court that the controversy is of the nature which has arisen out of the provisions of the arbitration clause.

PLD 1958 Lah. 208 fol.

Salahuddin Ahmed for Plaintiff.

Osman Ali Hadi for Defendants.

YLR 2011 KARACHI HIGH COURT SINDH 2420 #

2011 Y L R 2420

[Karachi]

Before Mushir Alam, C.J.

GHULAM MUSTAFA---Applicant

Versus

Mst. NAHEED and another---Respondents

Family Transfer Application No.23 and C.M.A. No. 1899 of 2011, decided on 25th April, 2011.

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

----S. 25-A---Transfer of case---Application for---Transfer of case was claimed on the grounds; firstly, that applicant was residing at place secondly, the address of respondent had wrongly been mentioned by the respondent before the court below; and thirdly, respondent had contracted marriage without dissolution---All said grounds as urged by the applicant, did not call for transfer of the case---Family Courts had jurisdiction when the girl had shown her residence and territorial jurisdiction was not governed by her residence---Nothing was on record that plaintiff/respondent had changed or adopted the residence to defeat the territorial jurisdiction of any court---No cogent reason for transfer of case was made out, in circumstances---High Court observed that applicant should approach the Trial Court, if at all he was able to convince the court as to its territorial jurisdiction, the court could pass such order as could be necessary.

Rana Sheraz Khalid v. Ambreen Sheraz 2005 UC 242 ref.

Naleymitho alias Muhammad Ishaque for Applicant.

Abid Akram for Respondent No.1.

M. Shafi Memon, Addl. Advocate General Sindh.

YLR 2011 KARACHI HIGH COURT SINDH 2426 #

2011 Y L R 2426

[Karachi]

Before Muhammad Tasnim, J

HAKIM ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-678 and Nos.2831 and 2832 of 2010, decided on 2nd September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365 & 392---Abduction and robbery---Bail, grant of---Further inquiry---In the F.I.R. two allegations, one with regard to abduction of wife of complainant and other with regard to the robbery were made, however, the F.I.R. only connected accused with robbery---F.I.R. did not specifically mention as to whether accused had broken the iron box or had taken some article therefrom---Reading of the F.I.R. did not show as to which articles were taken by accused---Since allegations against accused were general in nature and there was an inordinate delay in lodging of the F.I.R., which had not been explained, case against accused required further inquiry in terms of subsection (2) of S.497, Cr.P.C.---Accused was granted bail, in circumstances.

Ubedullah Malano for Applicant.

Sham Lal Ladhani, A.P.-G.

Date of hearing: 2nd September, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 2446 #

2011 YLR 2446

[Karachi]

Before Muhammad Tasnim, J

GHULAM HYDER and 3 others---Applicants

Versus

THE STATE-Respondent

Criminal Bail Application No.S-664 of 2010, decided on 31st August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Abduction---Bail, grant of---Further inquiry---Inordinate delay in lodging F.I.R. ---As many as 13 persons had been implicated as accused in the F.I.R., whereas alleged abductee had implicated only five persons---Even otherwise, no allegations against any individual had been made out---Allegations against accused persons were general in nature---Abductee had not been recovered from the possession of accused persons and there was no allegation of zina against accused persons---Variance existed in the story of prosecution in the F.I.R. and so was in the statement made by the abductee under S.164, Cr.P.C,---Benefit of such variance and delay in lodging of F.I.R. was to be extended to accused persons--Case of prosecution, in circumstances, had become doubtful and required further inquiry in terms of S.497(2), Cr.P. C. ---Accused were admitted to bail, in circumstances.

Kashif alias Kashi v. The State 2009 YLR 1500; Muhammad Javed Iqbal v. The State 2010 YLR 1035 and Muhammad Farooque v. The State 2008 YLR 1607 ref.

Habib-ur-Rehman Shaikh for Applicant.

Shyam Lal, A.P.-G. for the State.

Date of hearing: 31st August, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 2456 #

2011 YLR 2456

[Karachi]

Before Imam Bux Baloch, J

UMESH KUMAR alias MAHESH KUMAR---Appellant

Versus

NANIK RAM and 7 others---Respondents

Criminal Acquittal Appeal No.S-8 of 2010, decided on 17th May, 2011.

Penal Code (XLV of 1860)---

----Ss. 506, 504, 468 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Criminal intimidation, intentional insult and forgery for purpose- of cheating---Appeal against acquittal---Appreciation of evidence---Principles---Appellant had admitted that civil suit was going on between the parties and it seemed that complainant in order to pressurize respondents had filed false case against them---Appreciation of evidence in acquittal appeal and appeal of conviction was distinguishable. In appeal against acquittal respondents/accused would gain double presumption of innocence as competent court of law after recording its findings had given certificate of innocence to accused; and in appeal under conviction, the court was to appreciate the evidence with care and caution so that miscarriage of justice could not be done with accused---Once an accused had earned acquittal in his favour, he would enjoy double presumption of innocence and the courts while examining the case of such accused must be very careful and cautious in interfering with the acquittal order; and normally should not set aside the same merely for the reasons that some other view was also possible---Trial Court had rightly considered the case of respondents and acquitted them in accordance with law---Appellant having failed to establish his case, his appeal was dismissed in circumstances.

Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477; Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 ref.

Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 rel.

Safdar Ali Ghouri for Appellant.

Syed Aijaz Ali Shah for Respondent along with Respondent in person.

Ali Raza Pathan for the State.

Date of hearing: 17th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2466 #

2011 Y L R 2466

[Karachi]

Before Imam Bux Baloch, J

Mst. KIRAN---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION "B" SECTION, SUKKUR and

another---Respondents

Criminal Misc. Application No.S-230 of 2011, decided on 29th June, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Powers and jurisdiction of Justice of Peace---Scope---Justice of Peace while dealing with application under S.22-A, 22-B, Cr.P.C., was only to examine the record produced before him---Justice of Peace was not required to issue notice to Police Officer or any other person, if from the narration of applicant, the commission of a cognizable offence was made out--Justice of Peace was empowered to direct the concerned Police Station to incorporate the narration of the applicant yin S.154, Cr.P.C. book and had no jurisdiction to dilate upon merits or demerits of the case---Justice of Peace had travelled beyond his jurisdiction by issuing notice to the alleged accused, who were not accused before hint---Such order being beyond jurisdiction was set aside---Station House Officer was directed to record statement of applicant and consider the Medico-legal Certificate and if any cognizable offence was made out such statement of applicant be incorporated in S.154, Cr.P.C. Book.

Mst. Bhaitan v. State and 3 others PLD 2005 Kar. 621; Afzal Khan v. A.S.J. Sheikhupura and 7 others 2011 YLR 963 and Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 ref.

Afzal Khan v. A.S.J. Sheikhupura and 7 others 2011 YLR 963; Ahmed Yar v. Station House Officer, Shahkot, District Sahiwal and 8 others 2007 PCr.LJ 1352; Mst. Anwar Begum v. Station House Officer, Police Station, Kalri West Karachi and 12 others PLD 2005 SC 297 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

Dareshani Ali Haider "Ada" for Applicant.

Syed Sardar Ali Shah Jillani for the proposed accused.

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

YLR 2011 KARACHI HIGH COURT SINDH 2477 #

2011 Y L R 2477

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

REHMATULLAH and another---Appellants

Versus

HE STATE---Respondent

Criminal Jail Appeal No.510 of 2010, decided on 13th June, 2011.

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

----Ss. 6 & 9---Possessing and trafficking of narcotics---Appreciation of evidence---'Benefit of doubt---Co-accused was apprehended on the sole ground that he was sitting next to the driver of bus in question---Apart from that allegation no other cogent material was produced to connect said accused with the case---Statement recorded under S.342, Cr. P. C. showed that co-accused had categorically stated that he was coming from place 'Q' to place 'K' for treatment as he was above 70 years of age and could not see properly---Charas in question though was recovered from said bus, but, it was not proved that accused had any connection with the alleged crime---No objectionable item was recovered from possession of said accused and it was admitted fact that bus in question was a passenger bus and there was doubt about the accused whether he was travelling in the bus as a passenger or had any connection with the said crime---Connection of said co-accused with the case appeared to be highly doubtful in view of fact that bus was a passengers carrying bus and there were other passengers also therein---Prosecution, in circumstances, had failed to connect said accused through any convincing evidence that he had any exclusive knowledge of the concealment of narcotics in the bus to connect co-accused with the ownership of the bus---Prosecution had failed to connect co-accused with the ownership of the bus to bring home its case so far as the role of co-accused was concerned---Co-accused was acquitted from the charges and was released extending him benefit of doubt, in circumstances.

Muhammad Nawaz v. The State 2007 MLD 1846; Shakir Brohi v. The State 2011 MLD 450; Faiz-e-Mola v. The State 2009 YLR 1380; Gul Amin v. The State 2007 PCr.LJ 1483; Shabana Riasat v. The State PLD 2006 Kar. 325; Khan Bacha v. The State PLD 2006 Kar. 698; Hayat Khan v. The State 2011 YLR 890; Meraj v. The State 1994 PCr.LJ 482;Abdul Quddus v. The State 2005 YLR 2805; Shoukat Ali v. The State 2004 YLR 356; Taj Muhammad v. The State 2008 MLD 797; Ghulam Habib v. The State 2007 YLR 3285; Mir Muhammad v. The State 2008 MLD 1333; Muhammad Mushtaq v. The State 2008 SCMR 742; Waris Khan v. The State 2006 SCMR 1051; Jameel Khan v. The State PLD 2008 Kar. 374; Peer Muhammad v. Government of Balochistan 2007 SCMR 54; Balochistan Trading Co. v. The NBP 1998 SCMR 1899; Qaisarullah v. The State 2009 SCMR 579: Amanat Ali v. The State 2008 SCMR 991 and Muhammad Noor v. The State 2010 SCMR 927 ref.

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

----Ss. 6 & 9---Possessing and trafficking of narcotics---Appreciation of evidence---Sentence, reduction in---Accused who was driving the bus in question, was asked to stop the bus, but he instead of stopping the same raised the speed and tried to escape from the scene; and in order to make his escape good, he hit a motorcycle and injured the motorcyclist---No convincing material had been produced by accused denying the fact as to how it was possible that he was not having any knowledge about the charas present in the bus, which he was driving---Not believable that the driver had no idea or knowledge about the contents and articles being transported by him or present in the bus, which he was driving---Case of the prosecution against accused, was based upon the appraisal of the evidence, supported with reasons placed on record--No evidence was produced by accused to show misreading and omission from consideration of the evidence---Items recovered front the vehicle in possession of the driver' were presumed to be assenting to be in his control and in his knowledge---If the drugs were secured from the possession of accused, then it was normally believed that he had a direct relationship with the drugs; and the burden of proof that he had knowledge of the same lay heavily on him---Prosecution was able to bring home the case so far as the role of accused (driver) was concerned---In the present case, out of 260 Kg. charas, only 1200 grams was sent for chemical examination--No sample was taken from the packets except the one sent for chemical examination---Accused, in circumstances, could be hauled up only to the extent of drugs sent for chemical examination only, as no evidence was on record that balance item was also charas; as no sample was drawn from the other packets alleged to be charas---Sentence awarded to accused was reduced from life imprisonment to sentence already served by him---Jail Superintendent was directed to work out the remaining sentence of accused; and if he had already served his sentence, then, accused was to be released.

Adil Ahmed v. Deputy Collector, C& CE 1991 SCMR 1951; Rab Nawaz v. The State PLD 1984 SC 858; Nadir Khan v. State 1988 SCMR 1899; Kashif Amir v. The State PLD 2010 SC 1052; Muhammad Noor v. The State 2010 SCMR 927; Ismaeel v. The State 2010 SCMR 27; Muhammad Arshad v. The State 2007 SCMR 1378; Mst. Taj Bibi v. The State 2007 SCMR 1591; Ikram Hussain v. The State 2005 SCMR 1487 and Shakir Brohi v. The State 2011 MLD 450 ref.

Abdul Razak for Appellants.

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

Dates of hearing: 7th and 19th April, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2502 #

2011 Y L R 2502

[Karachi]

Before Salman Hamid, J

TALIB HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-31 of 2011, decided on 14th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 201/34---Qatl-e-amd, causing disappearance of evidence of offence---Bail, refusal of---Deceased was killed by two accused persons, who were brother and uncle of deceased on the allegation of 'Karap'---Delay of four months and fifteen days in lodging the F.I.R., was of no significance in view of the fact that F.I.R. was based on an inquiry and inquiry itself was based on the news report---Mother of one of accused persons, herself had categorically mentioned in the statement that she saw murder of her daughter at the hands of accused persons, including her son---Such one piece of evidence in itself was sufficient to show implication of accused person in commission of heinous crime; and that too under the banner of "Karap "---No mother, whose daughter had already been killed, would give evidence against her own son, whereby such son was found to be murderer of his own sister---Since the deadbody of deceased was never recovered, question of direct, last seen or medical evidence, would not arise---Facts of the case would show that accused did not have good case on merits---No case of bail having been made out, bail application was dismissed, in circumstances.

Ali Nawaz Ghanghro for Applicants.

Musab Baleegh Dhamraho for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2515 #

2011 YLR 2515

[Karachi]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD SALEEM and 8 others---Plaintiffs

Versus

ALLIED BANK OF PAKISTAN LTD. and 13 others---Respondents

Suit No.376 and C.M.As. Nos. 2797 to 2799 and 4065 of 2011, decided on 6th May, 2011.

Civil Procedure Code (V of 1908)---

---O. XXXIX, Rr. 1 & 2---Temporary injunction, relief of---Duty of Court---Scope---Such relief being discretionary, court would not be bound to grant same in every case without satisfying itself as to its real need---Principles.

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

1998 SCMR 1921; 1991 CLC 1591; PLD 2001 Kar. 264; 2001 MLD 1351; 1995 MLD 1714; Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd. PLD 1965 SC 221; Brothers Steel Ltd. And others v. Mian Mirajuddin and others PLD 1995 SC 320; Muhammad Abdullah Yousuf and others v. Miss Nadia Ayub and others PLD 2005 SC 252; State of Gujarat and others y. Dilipbhai Nathjibhai Patel and another AIR 1998 SC 1429; EIC Services v. Stephen Phipps 2004 EWCA Civ 1096; Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61; Jharia Coal-Field Electric Supply Co. Ltd. v. Kaluram Agarwala AIR 1951 Patna 463; Muhammad Jameel and others v. Karam Khan and others 2002 YLR 1680; Mian Nisar Elahi v. Lahore Stock Exchange 2007 CLC 376; Nestle Milkpak Ltd. v. Sindh Institute of Urology and others PLD 2007 Kar. 11; Messrs Pakistan State Oil Company Limited v. Federation of Pakistan 2010 CLC 1843; Messrs Shakil Waqas and Co. and others v. General Manager Marketing, Pakistan Railways and others PLD 2001 Kar. 185; PLD 1963 SC 486; 1996 SCMR 700; 1999 SCMR 382; 1991 CLC 694; 1987 MLD 2182; PLD 2008 Kar. 458; 1991 MLD 203; 1988 CLC 1541; 1986 CLC 2560; PLD 1997 SC 3; PLD 1966 Kar. 253; PLD 2006 Kar. 206; PLD 2005 Kar. 585; 1996 SCMR 137; 1998 SCMR 96; Excerpts from Ramiya, Part 2, Pages 1968 and 1969; PLD 1965 SC 221; 1999 CLC 1603; 2002 CLC 102, Ramiya Part I Pages 1166, 1171 and 1172; 2006 CLC 578; PLD 2007 Kar. 11; 1992 222, 1996 CLC 1657; 2006 CLC 1664; 1991 MLD 313; 1992 SCMR 1174; PLD 2002 Kar. 420; 2008 YLR 2040; 1964 (53) ITR 108 and Nisar Elahi v. Lahore Stock Exchange 2007 CLC 376 ref.

2000 SCMR 780 rel.

Dr. Muhammad Farogh Naseem for Plaintiffs.

Salman Akram Raja for Defendant No.1

YLR 2011 KARACHI HIGH COURT SINDH 2542 #

2011 Y L R 2542

[Karachi]

Before Salman Hamid, J

DUNYA BUX and another---Applicants

Versus

THE STATE-Respondent

Criminal Bail Application No.80 of 2011, decided on 27th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 452, 337-A(ii), 337-H(2), 148, 149 & 109---Qatl-e-amd, house-trespass, causing Shajjah-i-Mudihah, causing hurt by rash or negligent act---Bail, refusal of---Deceased having been declared 'Kari' by her husband, was in the first instance sent to her father; and that her father and brothers, became greedy, wanted to sell her, knowing much well that she was still under wedlock of her husband---Said persons seemed to be far from the moral values and the Islamic virtues and teachings; were slaves of their barbaric customs and rules; and the women were treated with hostility and in an inhuman manner---Trial Court had mentioned in its order that at the time of hearing of bail application, ordeal of deceased was explained by the complainant in detail which was not less than a horrifying act of some fiction---Two accused persons had played active role in commission of heinous offence and that too in aid and promotion of infamous custom of 'Karo Kari'---Not only that accused persons had trespassed, but by doing so they promoted 'Karo Kari' and deceased lost her life---Bail was refused in circumstances.

Muhammad Sadiq v. State 1996 SCMR 956 ref.

Saeed Ahmed Bijarani for Applicants.

Mus'ab Baleegh Dhamrah, State Counsel.

Date of hearing: 14th February, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2560 #

2011 YLR 2560

[Karachi]

Before Salman Hamid, J

GHULAM QADIR---Petitioner

Versus

Sharimati SADORI BAIE and 2 others---Respondents

Constitution Petition No.S-2428 and M.As. 8755, 8756 of 2010, decided on 11th February, 2011.

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

----S. 22---Civil Procedure Code (V of 1908), O.IX, R.9---Constitution of Pakistan, Art. 199---Constitutional petition---Execution of ejectment order, pendency of---Application for restoration of first constitutional petition along with stay application dismissed for non-appearance of tenant---Eviction of tenant from premises by Executing Court in absence of stay order---Filing of second constitutional petition by tenant during pendency of restoration application after his eviction from premises---Validity---Such application was still pending, thus, tenant ought to have pressed whatever reliefs he wanted in first constitutional petition and not to file second constitutional petition aimed at to abuse process of law---Sindh Rented Premises Ordinance, 1979, being a special law, was enacted for quick and expeditious disposal of cases between landlord and tenant---Tenant for last nine (9) years had kept landlord entangled into litigation for one reason or the other---Tenant would not be allowed to prolong proceedings by having decision in fragments, which would be nothing but sheer abuse of constitutional jurisdiction of High Court---Tenant by filing second constitutional petition sought to achieve a thing to which he was trot entitled directly---Such manner of achieving things in an indirect manner would always be discouraged, particularly when such approach was to detriment of other party, who was found entitled thereto through process of law-Mere filing of proceedings before a high forum to challenge decision of subordinate forum would not operate as a halting factor of such decision, unless same was specifically stayed by higher forum---Restoration application by itself would not bring life into dead proceedings, unless life was put therein by court in shape of its restoration---Nothing was pending before High Court and no stay order was operating in favour of tenant on date when he was ejected from premises by Executing Court---Executing Court could not go behind decree by enlarging or curtailing time allowed therein---Executing Court was bound to execute decree after expiry of time allowed therein---High Court dismissed second constitutional petition along with restoration application with cost of Rs. 10,000.

(b) Interpretation of statutes---

---Special laws, enactment of---Object.

Primarily the object of special law is to decide and dispose of cases expeditiously and to enable the persons litigating under such special law to have redressal of their grievances on fast track basis.

----Party not entitled to a thing directly would not be allowed to achieve same indirectly---Such manner of achieving thing in an indirect manner must be discouraged, particularly when same would be to detriment of other party already found entitled thereto through process of law.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Challenge to decision of subordinate---Effect---Mere filing of such petition would not operate as a halting factor of such decision, unless same was specifically stayed by court.

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

---O. IX, Rr. 4 & 9---Application for restoration of proceedings dismissed for non-prosecution-Validity-Such application by itself would not bring life into dead proceedings, unless life was put therein by court in shape of its restoration.

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

----S. 22---Execution of ejectment order---Powers of Executing Court---Scope---Executing Court would be required to enforce decree and could not go behind decree by enlarging or curtailing time allowed therein---Executing Court would be bound to execute decree after expiry of trine allowed therein.

Ali Bux Mashori for Petitioner.

Counsel for Respondents Nos. 1 and 2 called absent.

Ali Raza Pathan, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 2576 #

2011 YLR 2576

[Karachi]

Before Muhammad Ather Saeed and Irfan Saadat Khan, JJ

SHAFI MUHAMMAD and another---Appellants

Versus

WASEEM AHMED KHAN and 11 others----Respondents

High Court Appeal No.8 of 2008, decided on 13th June, 2011.

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

----S. 12(2) & XX, R. 13---Execution of decree in an administration suit---Auction of suit property---Deposit of auction price in court by auction purchaser and execution of sale deed in his favour---Application under S. 14(2), C.P. C., by one of legal heirs of deceased owner for setting. aside decree as plaintiffs (other legal heirs) had concealed from him Oct of filing such suit by not making him party thereto; and that he was ready to pay 10% more than auction price for auctioned property---Trial Court suspended operation of decree and directed plaintiffs to file amended title of suit including therein applicant's name as defendant and directed Nazir to return auction money to auction-purchaser-Plea of auction purchaser that at such belated stage, he was not liable to be deprived of property purchased in auction---Validity---Applicant, despite being mentioned in plaint to be a legal heir of deceased owner, had not been made party in suit by riot mentioning his name in its title, which act of plaintiffs had amounted to misrepresentation---No notice in suit had been served upon applicant---Applicant had been condemned unheard by keeping him away from suit to which he was a necessary party---Applicant had been deprived from his legal due share in auctioned property by way of nonjoinder---High Court directed Nazir to require applicant and auction purchaser to give their fresh bids and deliver property to person giving highest offer and in case of failure of auction purchaser to meet offer of applicant, amount deposited by him be returned to him within specified time.

Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Raja Muhammad Akbar v. Iftikhar Jillani PLD 1991 SC 71; Chinnamal and others v. Arumugham and another AIR 1990 SC 1828; Mumtaz-ud-Din Feroze V. Sheikh Iftikhar Adil and others PLD 2009 SC 207; Mani Lal v. Gangs Prasad and another AIR 1951 Allahabad 832 and Janak Raj v. Gurdial Singh and another AIR 1967 SC 608 ref.

Akbar Ali and 4 others v. District Judge, Faisalabad and 4 others PLD 2006 Lah. 600 and Sh. Shajar Hussain v. Hail Abdul Majeed and others 2006 SCMR 913 rel.

(b) Natural justice, principle of---

---Nobody should be condemned unheard.

Anisa Rehman v. PIA Corporation 1994 SCMR 2232 rel.

Yousaf Ali Sayeed for Appellants.

Muhammad Ramzan for Respondents Nos. 1 and 2.

Date of hearing: 17th and 22nd March, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2602 #

2011 Y L R 2602

[Karachi]

Before Faisal Arab, J

MUHAMMAD SHARIF---Petitioner

Versus

SHAHDAD ALI and 3 others---Respondents

Civil Revision Petition No.180 and C.M.As. 695, 696 and 697 of 2011, decided on 23rd June, 2011.

Contract Act (IX of 1872)---

----S. 55 ---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell immovable property---Agreement contained stipulation regarding forfeiture of earnest money in case of non-payment of balance price within thirty days---Defendant's plea that time was essence of agreement, which carne to end due to non-payment of balance price within stipulated period---Validity---In order to make time as essence of contract, stipulation to such effect should have been there in the agreement---Time, if not initially made essence of contract, could be made essence of contract subsequent to execution of agreement by serving notice upon purchaser giving hint reasonable time preferably thirty (30) days to complete transaction, otherwise contract would stand terminated---Plaintiff had not served any such notice upon defendant---Time fixed for performance of suit agreement was 5-1-2006, whereas suit was filed on 4-3-2006, thus, there was a gap of 60 days between such time and filing of, suit---Plaintiff with such short period of time could not be held to have avoided completion of transaction---Suit was decreed in circumstances.

PLD 1962 SC 1 rel.

Abdul Rashid Mughal for Applicant.

Date of hearing: 23rd June, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2614 #

2011 YLR 2614

[Karachi]

Before Faisal Arab, J

MUHAMMAD YOUNIS---Applicant

Versus

MUHAMMAD ALI and another---Respondents

Civil Revision Application No.174 and C.M.As. and 690 and 691 of 2011, decided on 22nd June, 2011.

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

----S. 12(2)---Application under S. 12(2), C.P.C.---Framing of issues and recording of evidence by court to decide such application---Scope---Law had not mandatorily required framing of issues in ever; such application---Circumstances of a case might or might not require recording of evidence---Where such application could be decided without recording of evidence, then court would not be bound to record evidence---Recording of evidence invariably in every such application would amount to convert same into a regular suit and defeat very object of enactment of S. 12(2), C.P.C.---Principles.

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

----S. 12---Civil Procedure Code (V of 1908), S. 12(2)---Decree in suit for specific performance of sale agreement passed in favour of respondent--Application under S. 12(2), C.P.C., by a person claiming to be a prior purchaser of suit property seeking setting aside of such decree---Agreement in favour of applicant alleged to be executed on 8-1-2002, while he filed such application on 31-3-2009---Maintainability---Applicant for seven long years had not initiated any legal proceedings to get transaction completed--Applicant subject to law of limitation, if so advised, could recover money paid to vendor by establishing agreement in his favour in legal proceedings---Such application was dismissed in circumstances.

Bilawal Ali Ghunio for Applicant.

YLR 2011 KARACHI HIGH COURT SINDH 2625 #

2011 YLR 2625

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

NASEEM AHMED KHAN---Petitioner

Versus

XIVTH CIVIL AND FAMILY JUDGE KARACHI CENTRAL, and another---

Respondents

Constitutional Petitions Nos.D-165 of 2010, and D-1407 and Civil Transfer Application No.36 of 2009, decided on 21st June, 2011.

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

----S. 5, Sched. & S.10(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dissolution of marriage on ground of Khula---Application by husband seeking, in consequence of grant of Khula, return of title documents of house gifted by him to plaintiff in pursuance of compromise entered between parties in previous suit for recovery of dower amount---Dismissal of such application by Family Court---Validity---Main suit was still pending adjudication before Family Court---Defendant had gifted his house to plaintiff out of natural love and affection through a registered declaration, of gift---Plaintiff had accepted such gift and taken possession of gifted house---Said house was not a part of dowry articles given by defendant to plaintiff at time of her marriage---Provision of S. 10(4) of West Pakistan Family Courts Act, 1964 did not provide for surrender of gift by wife consequent upon grant of Khula---Family Court had rightly dismissed such application---High Court dismissed constitutional petition in circumstances.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Mst. Sabia Naz and others v. Mir Rustam and others 1999 MLD 1763; Raja Muhammad Maqsood V. Mst. Kausar Nisar 2000 YLR 956; Mst. Nabila Safdar v. Muneer Anwar 200 YLR 1857 and two unreported judgment passed by this Court in C.P. No.D-1974 of 2008 and C.P. No.D-1911 of 2008 ref.

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

----S. 25-A---Transfer of suit from one District to another District, application for---Applicant's plea that Family Court while rejecting his miscellaneous application had not taken into consideration case law cited by him in support thereof---Validity---Applicant had not taken any valid and cogent ground for transfer of suit---Such plea could not be a ground for transfer of suit---High Court dismissed transfer application in circumstances.

Sami Ahsan for Petitioner.

Muhammad Sarwar Khan Addl. A.G. for Respondent No.1.

Rizwan Ali Dhodani, Standing Counsel on Court Notice.

Zayyad Khan Abbasi, for Respondent No.2.

Date of hearing; 15th April, 2611.

YLR 2011 KARACHI HIGH COURT SINDH 2641 #

2411 Y L R 2641

[Karachi]

Before Ghulam Sarwar Korai, J

Mrs. FEROZ AFAQ AHMED and others---Petitioners

Versus

HAROON SIDDIQUE and another---Respondents

C.P. No.S-67 of 2009, decided on 3rd June, 2011.

(a) Evidence---

----Cases should be decided on quality of evidence and not on the quantity of witnesses.

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

----S.15--Constitution of Pakistan, Art.199--Constitutional petition---Ejectment of tenant---Bona fide personal need of landlady---Ejectment application filed by landlady was allowed by Rent Controller but Lower Appellate Court set aside the eviction order-Validity-Landlady had established in evidence that demised premises was required by her for her personal bona fide need as she was doing business under partnership deed---Landlady also succeeded to establish that tenant was defaulter for water and conservancy charges, therefore, ejectment application was rightly allowed---Order passed by Lower Appellate Court was set aside and eviction order passed by Rent Controller was maintained---Petition was allowed in circumstances.

Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2003 SC 594; Mst. Zainab v. Majeed Ali and another 1993 SCMR 356; The Stool of Adansi v. The Stool of Brenase PLD 1958 Privy Council 161; Fida Hussain v. Noor Muhammad Rana 1985 CLC 3014; Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Kar. 16; Raisuddin v. Mashiatullah. Khan through his Legal Heirs 1986 MLD 948; Noor Ahmad and another v. Khawaja Imran Ahmed 1988 CLC 1041; Mrs..Qamar Ahsan v. Mrs. Beguma Beg NLR 1990 AC 526; Zaheeruddin v. Raiz Ahmed 1991 CLC 1512; Haji Gulab Baig v. Mst. Syeda Tayaba Ishtiaq 1991 MLD 1377; Capt. (RTD.) Allah Ditta v. Muhammad Siddique 1991 CLC 1881; Chilya Corrugated Board Mills Ltd. v. M. Ismail and others 1992 'CLC 2524; Hafiz-ul-Haq v. Haji Abdul Mastan PLD 1994 Pesh. 235; Mst. Zohra Bai and another v. Messrs Standard Industries Ltd. PLD 1994 Kar. 209; Sher Afgan v. Shaikh Anjum Iqbal 1997 MLD 98; Muhammad Akram alias Akan v. Mst. Pathani through Legal Heirs 2001 MLD 1037; Province of the Punjab through. Secretary, Irrigation and Power Department v. Ch. Mehraj Din and Co. 2003 CLC 504 ref.

Ali Mumtaz Shaikh for Petitioners.

Asim Iqbal for. Respondent No.1.

Dates of hearing: 9th March, and 9th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2671 #

2011 YLR 2671

[Karachi]

Before Syed Hasan Azhar Rizvi, J

TANZEEM AHMED KHAN---Plaintiff

Versus

PROVINCE OF SINDH through Secretary Co-operation Department, Sindh Secretariat, Karachi and 9 others---Defendants

Suit No.995 and C.M.As. 8942, 6508 and 10028 of 2010, decided on 6th July, 2011.

Specific Relief Act (I of 1877)---

---Ss. 42, 39 & S4---Civil Procedure Code (V of 1908), Ss. 94, 151 & O. XXXIX, Rr.1 & 2---Transfer of Property Act (IV of 1882), S. 41---Suit for declaration, cancellation of sale agreement and permanent injunction---Dispute over title of suit plot between parties---Plaintiff claimed to be legal heir of original allottee of suit plot as founder member of defendant-Housing Society---Interim order of court restraining defendant Society from creating any third party interest on snit plot---Application under S. 151, C.P.C., by second defendant claiming to be bona fide purchaser of suit plot for value for permitting him to complete existing civil work over suit plot---Validity---Construction being raised by second defendant over suit plot without approved building plan was stopped due to interim order---Defendant-Society and Cantonment Board had not taken action against construction so raised by second defendant without approved building plan---Defendant-Society had transferred suit plot in favour of second defendant while interim order was in filed---Second defendant had not produced any sale agreement or receipt in support of his claim to be a bona fide purchaser for value---Plaintiff had paid all dues of defendant-Society through. pay order---Controversy involved could not be resolved without recording of evidence---Plaintiff had a good prima facie case for grant of injunction---In case of refusal of injunction, plaintiff would suffer irreparable loss, thus, balance of convenience was in his favour---Interim order granted earlier was confirmed in circumstances.

Dr. Seem Malik v. Government of Punjab and 2 others 2006 YLR 2346; Amir Ali Hussain Shalwani v. Ismaili Masalwala and others 2001 YLR 2537; Haji Khuda Bux and others v. Deputy Registrar, Cooperative Societies, Punjab and 2 others PLD 2007 Lah. 341 and Nazir Ali v. Noorabad Cooperative Housing Society Ltd. and others PLD 1987 Kar. 676 ref.

Dr. Khalid Ali Z. Qazi for Plaintiff.

Azizur Rehman Akhund for Defendants Nos. 4 and 10.

Syed Shujauddin for Defendant No.7.

Ms. Naheed Naz, for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2689 #

2011 Y L R 2689

[Karachi]

Before Salman Hamid, J

ABID ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.711 and C.M.As. Nos.3370 and 3371 of 2010, decided on 21st January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365, 344 & 376---Kidnapping, wrongful confinement and rape---Bail, grant of---F.I.R. showed that upon complainant's cries, her two brothers got alert and also chased the car in which accused allegedly took the complainant away after kidnapping her---Not natural that the two brothers having seen their sister being kidnapped by some unknown persons would not react to it and give up merely because they could not chase the car---Brothers and also the husband of the complainant did not do anything about such kidnapping and remained quiet and motionless; and .not even attempted to report the matter to the police concerned---All such facts had created a reasonable doubt, which must go in favour of accused---Medical report had not been brought on record---Contents of the F.I. R. were shaky and not clear---Accused was enlarged on bail, in circumstances.

Syed Zamir Ali Naqvi for Applicant.

Naimatullah Bhurgri for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2693 #

2011 Y L R 2693

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

Messrs DIGREE WINE SHOP through Proprietor---Petitioner

Versus

DIRECTOR-GENERAL EXCISE AND TAXATION and 4 others---Respondents

Constitutional Petition No.D-2051 of 2010, decided on 24th June, 2011.

Prohibition (Enforcement of Hadd) Order (P.O. 4 of 1979)---

----Art. 18---Sindh Prohibition Rules, 1979, R. 23---Constitution of Pakistan, Art. 199---Constitutional petition---License of trade and import of liquor and its retail---Cancellation of petitioner's license on 31-12-2000 due to non-payment of vend fee---Restoration of license allowed by Chief Minister subject to payment of license fee for years 2001-2002 to 2010-2011---Petitioner's plea that his shop remained closed for last ten years on account of cancellation of his license on 31-12-2000,. thus, demand of renewal fee for years 2001-2002 to 2009-2010 was illegal; and that he was ready to pay renewal fee for year 2010-2011---Plea of Revenue that petitioner seeking renewal of his license was legally obliged to pay renewal fee for entire interregnum period--Validity---Chief Minister while making impugned demand had not given any justification therefor---Demand for payment of renewal fee for period during which petitioner's shop remained closed on account of cancellation of his license was without legal justification---High Court quashed impugned demand while directing Revenue to accept license fee from petitioner for year 2010-2011 only.

Government of Pakistan v. Zamir Ahmed Khan PLD 1975 SC 667; Muhammad Akbar Khan v. Province of West Pakistan PLD 1961 SC 17; Muhammad Ismail and Co. Ltd. v. Chief Cotton Inspector Multan PLD 1966 SC 388 and Pakcom Ltd. and others v. Federation of Pakistan and others (PLD 2011 SC 44) distinguished.

C.P. No.D-793 of 2005 rel.

Khawaja Azizullah for Petitioner.

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

Date of hearing: 4th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2731 #

2011 YLR 2731

[Karachi]

Before Salman Hamid, J

LIAQUAT ALI---Applicant

Versus

BAKHSH ALI alias BAKHSHO and another---Respondents

Criminal Miscellaneous Application No.400 of 2011, decided on 11th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)-Penal Code (XLV of 1860), S.302---Qatl-e-amd---Cancellation of bail, application for---Accused was not alleged to be a hardened desperate or dangerous criminal and/or a terrorist---Accused was not a previously convicted offender for an offence punishable with death or imprisonment for life---Case against accused could not be proceeded or progressed not because of accused, but because of the reasons which were beyond his control---Accused was behind the bars for almost three years i.e. beyond the threshold of two years---Application for cancellation of bail was dismissed.

Nisar Ahmed Bhambhro for Applicant.

Date of hearing: 11th July, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2760 #

2011 Y L R 2760

[Karachi]

Before Muhammad Tasnim, J

WAHEED RAZA PATHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-559 of 2010, decided on 29th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(a)(c)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Possession of narcotic drugs, manufacture, etc. of intoxicants, owning or possessing intoxicants---Bail, grant of---Benefit of doubt---Police must have associated some private person as witness to the alleged raid and recovery---Delay in forwarding the sample of the suspected substance to the Laboratory remained unexplained---Contradictory statement as to the arrest of the accused and place of recovery made by the Station House Officer in his Press Conference raised doubts as to the guilt of the accused---Benefit of doubt should go to the accused even at bail stage---Bail was granted.

Hakim Mumtaz Ahmed v. The State PLD 2002 SC 590 fol.

Yar Muhammad v. The State PLD 1997 Quetta 31; Hamza v. The State 2000 PCr.LJ 1360 and Hakeem Jamali v. The State 2009 PCr.LJ 695 rel.

Tariq Mahmood v. The State PLD 2009 SC 39 and 2010 YLR 975 ref.

Miss Rizwana Jabeen Siddiqui for Applicant.

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

YLR 2011 KARACHI HIGH COURT SINDH 2775 #

2011 Y L R 2775

[Karachi]

Before Muhammad Tasnim, J

JAVED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-591 of 2010, decided on 12th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Deeper appreciation of evidence could not be undertaken at Pail stage; it was to be seen as to whether accused was prima facie connected with the commission of offence or not---Prosecution had failed to point out any piece of evidence which connected accused with commission of offence---Discrepancy existed in the timing on different documents, which had created doubt and made the case of further inquiry---Accused, in circumstances, was entitled to bail.

Maqbool Ahmed Awan for Applicant.

Shyam Lal A.P.-G. for Respondent.

Date of hearing: 12th July, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 2792 #

2011 Y L R 2792

[Karachi]

Before Muhammad Tasnim, J

PATHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-541 of 2009, decided on 30th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 114, 148 & 149---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Deeper appreciation of evidence could not be gone into at bail stage, but only tentative assessment was to be made as to whether accused were connected with the commission of offence or not---In the present case prosecution story was that two persons had died and F.I.R. was lodged immediately in which accused were cited as accused---Son of deceased had also filed a private complaint---Though such complaint was filed after delay of three months, but same was examined and after recording statements of witnesses, process was issued by the Trial Judge---Since complainant in the case was also shown as an accused along with others and were also facing trial in the complaint case, it was yet to be seen whether the version taken by complainant in the F.I.R. was correct or the version taken in the private complaint, which was pending adjudication---About 2 or 2-1/2 years had elapsed, but no substantial proceedings before the Trial Court had taken place---Record did not reveal as to whom delay was to be attributed---Case had not proceeded---When material on record was not showing as to which accused caused fatal injury leaving room for consideration regarding common intention of other accused, such case called for further enquiry--Complainant had implicated accused persons in the F.I.R. whereas complainant himself had been implicated in the private complaint lodged by son of deceased---Such complaint had been registered and process had been issued to accused persons including the complainant in the case---Case requiring further enquiry in terms of provisions of subsection (2) of S.497, Cr. P. C. accused were entitled to bail---Accused were admitted to bail, in circumstances.

Jaffar and others v. The State 1980 SCMR 784; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 and Haji Gul Khan v. Gul Daraz Khan and another 1995 SCMR 1765 ref.

Ubedullah Malano for Applicants.

Sardar Ali Shah, Assistant Prosecutor-General for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2803 #

2011 Y L R 2803

[Karachi]

Before Imam Bux Baloch, J

PUNHOON JAFFERY---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.S-700 of 2010, decided on 18th May, 2011.

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

----S. 497(2)-Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with dead weapons---Bail, grant of---Further inquiry---Investigating Officer after having found the accused innocent during investigation due to insufficient evidence had kept his name in Column No.2 of the challan---Case of accused, thus, fell within the purview of further inquiry as contemplated under S.497(2), Cr.P.C. and he was entitled to the concession of bail---Accused was admitted to bail accordingly.

Muhammad Ilyas v. Ijaz Ahmed Butt and another 1992 SCMR 1857; Muhammad Mumtaz and 3 others v. The State 1988 SCMR 1452; Rehmatullah alias Rehman v. The State and another and Muhammad Fazal v. Nazir Ahmed and others 1984 SCMR 429 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail---Further inquiry---Accused was found innocent in Police investigation---Effect---Person involved in a case is not an accused so far as his name is not included in the challan in the column of accused persons, but appears in column No.2 of challan because investigating agency was short of material against him---Opinion of Investigating Officer certainly does not constitute legal evidence, but being adverse to the prosecution it puts one on an inquiry as to the veracity of the prosecution case.

Muhammad Ilyas v. Ijaz Ahmed Butt and another 1992 SCMR 1857; Muhammad Mumtaz and 3 others v. The State 1988 SCMR 1452 and Rehmatullah alias Rehman v. The State and another ref.

Rafique Ahmed Abro, for Applicant.

Altaf Hussain Surahyo for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2818 #

2011 Y L R 2818

[Karachi]

Before Imam Bux Baloch, J

TARIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-130 of 2010, decided on 6th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 452, 436, 404, 337-A(i), 147, 148, 149, 109 & 114---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Qatl-e-amd, house-trespass, mischief by fire or explosive substance, dishonest misappropriation of property, causing Shajjah Khafifa and Haraabah---Bail, cancellation of---Accused persons armed with lethal weapons had allegedly attacked upon the houses of the complainant party as the complainant had refused to sell out his agricultural land and Fish Farm to one of accused persons---Houses of the complainant party were set on fire and empties of Rocket Launcher, Kalashnikovs and cartridges of guns had been recovered from the place of incident---Where accused formed an unlawful assembly, equipped themselves with deadly weapons and attacked upon the houses of the complainant, they had committed a heinous offence--- Accused, in circumstances, were not entitled to the concession of bail, as granted by the Trial Court---Trial Court while granting bail to accused persons had not considered the true perspective of the case---Bail granted to accused was cancelled, in circumstances.

Mazhar Mahmood v. Basit and another 1997 SCMR 915 and Jaffar and others v. The State 1980 SCMR 784 distinguished.

Naseem Malik v. State 2004 SCMR 283 ref.

Azizullah M. Buriro for Respondents.

Altaf Hussain Surahio, State counsel.

YLR 2011 KARACHI HIGH COURT SINDH 2836 #

2011 YLR 2836

[Karachi]

Before Imam Bux Baloch, J

TAYYAB---Applicant

Versus

THE STATE and another---Respondent

Criminal Bail Applications Nos.S-310 and S-345 of 2011, decided on 29th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.364, 511, 324, 337-H(2), 337-F(i), 147, 148 & 149---Kidnapping, attempt to commit qatl-e-amd, hurt by rash or negligent driving, causing damiyah---Bail, grant of---Further inquiry---No specific role was attributed to accused in F.I.R. that they were armed with lethal weapons---Accused had caused no injury to any person---No recovery was effected from accused during investigation---Case of accused, fell under the purview of further enquiry as contemplated under S.497(2), Cr.P.C.---Accused were granted bail, in circumstances.

Muhammad Ashraf v. The Stateand another 2008 YLR 2890(2); Suhrab v. The State 2007 YLR 2374 and Muhammad v. The State 2007 PCr.LJ 1848 ref.

Achar Khan Gabole for Applicants (in Criminal Bail Application No.310 and 345 of 2011).

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

Noor Hassan Malik for the Complainant.

YLR 2011 KARACHI HIGH COURT SINDH 2853 #

2011 Y L R 2853

[Karachi]

Before Salman Hamid, J

ZAHID HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 400 of 2011, decided on 21st July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 109 & 34---Qatl-e-amd---Bail, grant of---Accused was behind the bars for more than three years and the trial had not concluded despite specific orders of the High Court, not because of accused, but for the reasons beyond his control---Out of 24 adjournments, in the case, only one or two could be attributed to accused---No other criminal case was pending against accused---Accused had no previous criminal record was not previous convict; and was also not hardened and desperate criminal---Accused, was enlarged on bail, in circumstances.

Imran Ameen v. The State 2002 MLD 1416; Abdul Kareem alias Karoo and others v. the State 2009 YLR 71; Muhammad Aslam v. The State 1999 SCMR 2147; Iftikhar alias Dani v. The State 2000 YLR 1223 and Abdullah v. The State and another 1985 SCMR 1509 ref.

Muhammad Iqbal Mahar for Applicant.

Nazir Ahmed Junejo for the Complainant.

Shyam Lal A.P.-G. for the State.

YLR 2011 KARACHI HIGH COURT SINDH 2861 #

2011 Y L R 2861

[Karachi]

Before Salman Hamid, J

IRSHAD ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.449 of 2010, decided on 27th July, 2010.

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

----S.497---Penal Code (XLV of 1860), Ss. 376/342/504/506/34---Rape, wrongful confinement, intentional insult with intent to provoke breach of the peace, criminal intimidation---Bail, refusal of---Delay in reporting the matter to the police had been sufficiently explained---Complainant in the F.I.R. and his victim wife in her statement under S.164, Cr.P.C. had involved the accused specifically in aiding and abetting the offence of Zina by the main accused with her---Recovery of the movie camera and the CD whereby pornographic film of the alleged Zina was prepared, was not denied on behalf of accused---While deciding bail application court had to make a tentative assessment of the evidence and not to go deep into the matter to explore what was not patently available on record---Accused was refused bail in circumstances.

1999 PCr.LJ 1109; 1988 SCMR 117; 2004 PCr.LJ 632; 1988 PCr.LJ 53 and 2003 PCr.LJ 1175 distinguished.

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

----S.497---Bail, grant, of---Assessment of evidence---Principle---Court while deciding a bail application has to make a tentative assessment of evidence and it must not go deep into the matter to explore what is not patently available on record.

Niaz Hussain Mirani for Applicant.

Amir Ahmed Narejo, State Counsel.

YLR 2011 KARACHI HIGH COURT SINDH 2869 #

2011 Y L R 2869

[Karachi]

Before Mushir Alam, C. J. and Imam Bux Baloch, JJ

Miss SUBEEN MUKHTAR---Petitioner

Versus

CHAIRMAN and 3 others---Respondents

Constitution Petition No.D-516 of 2011, and Miscellaneous No.10078 of 2011, decided on 25th August, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Issuance of degree---Petitioner had sought directions for issuance of degree, without further lapse of time as she had appeared and qualified for the same---Authorities had stated that petitioner could be directed to appear in the viva voce to qualify for award of the degree as per Rules and Regulations of the concerned University---Authorities were directed to issue fresh call letter to examine and evaluate viva voce of the petitioner without being influenced of the fact that petitioner had approached the High Court to seek some relief---High Court expected that petitioner would be meted out a proper treatment in accordance with law.

Nisar A. Mujahid for Petitioner.

Muhammad Ashraf Khan Mughal, D.A.-G.

YLR 2011 KARACHI HIGH COURT SINDH 2873 #

2011 Y L R 2873

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

ASRAR ALAM SHAIKH---Petitioner

Versus

ADMINISTRATOR DHA and others---Respondents

Constitutional Petition No.D-1398 of 2010, decided on 24th May, 2011.

Constitution of Pakistan (1973)---

----Art. 199--- Constitution petition---Allotment of apartments through balloting announced in year 2003 by Defence Housing Authority---Terms of allotment agreement were that such apartments would be completed within three years i.e. upto 2006 and in case of any delay, Housing Authority was liable to pay monthly rent @ Rs. 25,000 to allottees till delivery of possession---Payment of agreed price within stipulated period by petitioner being a successful allottee in balloting held in year 2003---Payment of such rent to petitioner due to failure of Housing Authority to complete such apartment within stipulated period---Demand of enhanced price of such apartment by Housing Authority due to hike of construction material in market---Refusal of Authority to deliver possession of such apartment to petitioner due to non-payment of its enhanced price---Validity---,Authority had handed over apartments to other allottees in year 2009---Apartment allotted to petitioner might have been available on rent of Rs. 25,000 in year 2003, but not in year 2009---Authority had unilaterally enhanced price of apartments without enhancing such rent---Inflation, if effected upon construction material, would have effect on rent of properties---According to allotment agreement, the Authority could not charge additional cost of such apartment from petitioner---Authority being a statutory body would not be expected to use delaying tactics being adopted by unscrupulous private builders/ developers in handing over flats in time to allottees---Authority could not seek enhancement in cost of construction for no fault of petitioner having paid entire agreed price within due date except 5% amount payable by him at time of delivery of possession of such apartment---High Court directed the Authority to hand over possession of such apartment to petitioner.

Muhammad Iqbal Khan for Petitioner.

Ch. Muhammad Rafique Rajourvi for Respondent No.1.

Nazar Akbar, D.A.-G. for Respondent.

Date of hearing: 25th March, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2876 #

2011 Y L R 2876

[Karachi]

Before Salman Hamid, J

Messrs CONTINENTAL CABLE (PVT.) LTD.-Plaintiff

Versus

Messrs CHINA HARBOR ENGINEERING CO. LTD. and another---Defendants

Suit No.157 C.M.A. No.1086 of 2010, decided on 13th June, 2011.

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

----S.126---Bank Guarantee---Encashment of unconditional Bank Guarantee issued to cover amount advanced by, way of mobilization advance---Grant of injunction against such encashment---Scope---No injunction should normally be granted to restrain encashment of such guarantee. [

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

----S. 126--- Performance Bond, Guarantee--- Encashment of---Scope---Where prima facie evidence of breach of contract existed, then allowing encashment of performance Bond/Guarantee would normally be not just and proper.

1989 SCMR 379; Zeenat Brothers v. Awan-e-Iqbal Authority PLD 1996 Kar. 183 and Port Qasim Authority, Karachi v. Al-Ghurrair Company and 3 others PLD 1997 Kar. 636 rel.

----S.20---Contract Act (IX of 1872), S.126---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Application for filing in court arbitration agreement and referring matter to an arbitrator--Construction contract---Application by plaintiff to restrain defendant from encashing performance Bank Guarantee till disposal of matter by arbitrator---Validity---Dispute regarding completion of work still existed between parties, which would require thrashing by way of evidence before Arbitrator---Plaintiff had completed substantial work under contract, thus, encashment of such guarantee at present stage would be detrimental to its interest---High Court retrained defendant from encashing such guarantee till disposal of suit before Arbitrator.

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

----S.20---Contract Act (IX of 1872), S.126---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Application for filing in court arbitration agreement and referring matter to an arbitrator---Construction contract---Bank Guarantee for mobilization advance---Plaintiff's application to restrain defendant from encashing such guarantee till disposal of matter by Arbitrator---Validity---Plaintiff had not denied receipt of such advance at time of commencement of work at site---Such advance being for mobilization of work would be returnable either at time of termination of contract or after completion of entire work in terms of contract---High Court dismissed such application in circumstances.

Awan-e-Iqbal's case PLD 1994 SC 311 rel.

Usman Shaikh for Plaintiff.

Yawar Faruqui for Defendant No.1.

YLR 2011 KARACHI HIGH COURT SINDH 2886 #

2011YLR 2886

[Karachi]

Before Muhammad Athar Saeed and Iffan Saadat Khan, JJ

Messrs PAKISTAN STATE OIL, COMPANY LTD. through Authorized Officer---Appellant

Versus

FEDERATION OF PAKISTAN MINISTRY OF WORKS through Secretary and 4 others---Respondents

High Court Appeal No.190 of 2010, decided on 3rd August, 2011.

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

----S.116---Possession of property handed over to landlord after expiry of lease period---Effect---Tenant could not claim statutory rights of tenancy in respect of such property.

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

----S.54---Suit for permanent injunction---Absence of valid and enforceable contract between parties---Effect---Plaintiff could neither claim any right nor be granted injunction against defendant.

Mrs. Zarina Khawaja v. Aga Mehboob Shah PLD 1998 SC 190; Suit No.1749 of 2000; Khaliq Raza Khan v. PSO 1998 SCMR 2092; MCB v. Adamjee Insurance Company Ltd. 2003 MLD 688; Muhammad Yaqoob v. Health Officer Municipal Committee, Hyderabad 1973 SCMR 184; Ch. Muhammad Akram Bhatti v. Government of Pakistan 1993 MLD 627; Haq Brothers v. The Commander Karachi 1990 CLC 489 ref.

Sadiq Hidayatullah for Appellant.

Muhammad Ashraf Khan Mughal, D.A.-G. for Respondents Nos.1 to 3.

Muhammad Saleem Thepdawala for Respondent No.4.

Khalid Ahmed Tanweri for Respondent No.5.

Date of hearing: 16th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2893 #

2011 Y L R 2893

[Karachi]

Before Salman Hamid, J

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

Versus

Messrs UNIVERSAL NAVIGATION (PTE.) LTD. through Legal Agent and 4 others---Defendants

Suit No.1083 of 2007, and C.M.A. No.9176 of 2007, decided on 7th June, 2011.

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

----S. 34---Suit for recovery of amount with cost and interest/ markup/damages/ compensation--- Purchase contract between plaintiff and one out of five defendants containing arbitration clause---Application for stay of suit by one defendant being party to purchase contract---Maintainability---Plaintiff had prayed for a judgment and decree against all defendants jointly and severally---Plaintiff showed that defendant vessel through other defendants being its agents, had brought plaintiff's consignment to Karachi Port---Losses sustained by plaintiff was due to acts of omission and commission of all defendants, who under freight contract and provisions of law were bound to take, due and proper care of consignment imported by plaintiff---Evidence regarding alleged losses was available at Karachi, where entire contract was concluded---Except one defendant, all defendants were not signatory to purchase contract---Contesting matter by all defendants at Karachi would be convenient to them---Stay of suit or splitting matter into two actions would not be in interest of justice---Such application was dismissed in circumstances.

Echardt and Company Marine GmbH, West Gemany and another v. Muhammad Hanif PLD 1986 Kar. 138; Eckhardt and Co. v. Muhammad Hanif PLD 1993 SC 42; Muhammad Amin and Muhammad Bashir Ltd. v. PAS + R and others 2002 CLD 671; Hitachi Ltd. v. Rupali Polyester 1998 SCMR 1618; State Bank of Pakistan v. Haqson and others 1970 Law Notes 425 and M.A. Nawaz and Co. (Regd.) and 5 others v. NBP through Regional Manager, Multan 1970 SCMR 234 ref.

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

----S. 34---Stay of legal proceedings, grant or refusal of---Scope---No hard and fast rule could be laid down for such purpose---Grant or refusal of such stay could be made on objective assessment of each case---Principles.

No hard and fast rule can be laid down or no line of demarcation can be drawn as to in which cases refusal be made and in what not. Each case has different factors and grounds of refusal. Particular and peculiar circumstances of each case need, to be addressed. It is the objective assessment of a case which brings to conclusion whether stay of legal proceedings can be granted or refused.

S. Naqi Mirza for Plaintiffs.

Nemo for defendants Nos. 1, 2 and 3.

Ahmed Subhani for Defendants Nos. 4 and 5.

Date of hearing: 25th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2899 #

2011 Y L R 2899

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

TARIQ MEHMOOD A. KHAN and 3 others---Petitioners

Versus

SINDH BAR COUNCIL through Secretary and others---Respondents

Constitution Petition No.D-306 of 2010, decided on 27th May, 2011.

Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warantto, writ of---Scope---Relief under quo warranto was purely discretionary as the same would not be issued as a matter of course---Court could and would enquire into conduct and motive of relator---No specific rule existed for exercise of discretion by court in granting or refusing an information in nature of quo warranto.

Mushtaq Hussain Shah v. Sindh Bar Council and others 2003 YLR 1520; Syed Jalal Mehmood Shah and another v. Federation of Pakistan and another PLD 1999 SC 395; Shawar Khilji v. Munawar Iqbal Gondal and 2 others PLD 2009 Lah. 677; Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Salahuddin 2 others v. Frontier Sugar Mills and Distillery Ltd. and 10 others PLD 1975 SC 244; Ali Irtaza Khan v. Principal, Lawrence College Ghora Gali Muree and another 1994 MLD 2452; Dr. Y. S. Rajasehara Reddy and others v. Sri Nara Chandrababu Naidu and others AIR 2000 A.P. 142 and Shawar Khilji v. Munawar Iqbal Gondal and 2 others PLD 2009 Lah. 677 ref.

Dr. Bushra Ashiq Siddiqui v. Muhammad Aslam 1989 MLD 1351 rel.

Tahmasp R. Razvi and Haq Nawaz Talpur for Petitioners.

Mustafa Lakhani for Respondent No.2.

Salahuddin Khan Gandapur for Respondent No.2.

Noor Naz Agha, on Court notice.

Raja Qasit Nawaz, for the Intervenor.

Adnan Ahmed, for Intervenor.

Muhammad Sarwar Khan, Additional Advocate General, Sindh.

Date of hearing: 4th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2907 #

2011 YLR 2907

[Karachi]

Before Salman Hamid, J

ABDUL GHAFFAR JANGDA---Plaintiff

Versus

Haji ABDULLAH HAROON MUSLIM GYMKHANA and 11 others---Respondents

Suit No.1061 of 2009, and C.M.A. No.8144 of 2009, decided on 9th June, 2011.

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

---Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 9---Suit for declaration and permanent injunction---Private Club---Termination of plaintiff's membership---Charge of violation of Club's Rules---Plaintiffs plea that he was not provided opportunity of hearing---Defendant's plea that suit was not maintainable as President of the Club had discretion to terminate membership of a member found to have violated Club's Rules---Validity---When member of a Private Club was found guilty of violation of its rules/bye-laws, then his membership would be liable to be terminated, but only after holding an impartial and unbiased inquiry and providing him opportunity of hearing---Termination of such membership would be illegal, if made without adhering to rules of justice, equity, fair play and right of hearing---Defendant's objection was overruled in circumstances---Principles.

Khawaja Muhammad Saeed v. Mr. Justice Shabir Ahmad and 12 others PLD 1965 (WP) Lah. 92 and D.M. Malik v. Jockey Club of Pakistan and others PLD 1960 (WP) Kar. 325 ref.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 9 & O. VII, R. 11---Suit for declaration and permanent injunction---Private Club---Termination of membership of plaintiff and his family members---Charge of violation of Club's Rules---Plaintiffs plea that impugned order was passed by Managing Committee of the Club without providing him opportunity of hearing---Defendant's application under O. VII, R. 11, C.P.C., seeking rejection of plaint for suit being not maintainable---Validity--- Correspondence exchanged between parties disclosed that some enquiry against plaintiff was underway for misbehaving with an un-named member--Impugned order did not show violation of any rule or bye-law of club by plaintiff---Private Club before taking any action had to follow principles of natural justice and act strictly in accordance with terms and conditions of its rules/bye-laws---Rules providing for expulsion had not been observed strictly nor plaintiff had been provided due notice of charges levelled against them---Plaintiff for not having been provided opportunity of hearing before passing impugned order had been condemned unheard---Members having jurisdiction to entertain appeal against impugned order were those, who had passed the same arbitrarily---No authority could sit in appeal against its own order---Plaintiff had refused to accept proposal of President of Club to have matter patched up between plaintiff and the other member---Impugned order was motivated and was passed at the behest of President by Managing Committee of the Club---Application seeking rejection of plaint was mala fide and had been moved to further torment plaintiff and his family members and deprive them to enjoyment of membership of Club-High Court dismissed such application with cost of Rs.35,000.

Khawaja Muhammad Saeed v. Mr. Justice Shabir Ahmad and 12 others PLD 1965 (WP) Lain 92; U.M. Malik v. Jockey Club of Pakistan and others PLD 1960 (WP) Kar. 325; Syed Nasiruddin and 3 others v. Karachi Bar Association and 70 others 1988 CLC 1724 and Al-Noor Construction Co. Contractors v. Cantonment Board Peshawar through Cantonment Executive Officer and 2 others 2004 CLC 1647 rel.

----No authority would have jurisdiction to sit in appeal against its own order.

Amanullah Khan for Plaintiff.

M.C. Dastagir for Defendant No.2.

Sh. Javed Mir for Defendant No.8.

Nemo for other Defendants.

Dates of hearing: 11th May and 2nd June, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2914 #

2011 Y L R 2914

[Karachi]

Before Aqeel Ahmed Abbasi, J

Dr. ANJUM ARA MANZAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.380 of 2011, decided on 19th May, 2011.

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

----Ss. 498/498-A---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, confirmation of---Further inquiry---Relationship of counsel and client between accused and complainant, having assumed relationship of confidence between the parties; transaction between the parties appeared to be beyond the usual relationship of a client and her counsel as governed and regulated by the Legal Practitioners and Bar Councils Act, 1973---Element of good faith and trust between the parties in view of fiduciary relationship, could not be ruled out---Inordinate delay of about two years in registration of F.I.R.---Dispute related to documentary evidence and alleged offence was required to be established through evidence before the Trial Court---Matter, in circumstances, required further inquiry, whereas the alleged offence was bailable and did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was a lady, who was a doctor by profession and had no previous criminal history---Grant of bail in bailable offence was a rule and refusal an exception---Bail could not be withheld as punishment, whereas arrest of accused under the circumstances would not serve any useful purpose, where the matter related to documentary evidence---No likelihood that accused, who was a lady doctor by profession, if enlarged on bail, would abscond---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Riaz Ahmed Coharshahi v. The State PLD 2000 Kar. 6; Abdul Rasheed v. The State PLD 2003 Kar. 682; Rais Wazir Ahmad v. The State 2004 SCMR 1167; Ghulam Kadir v. The State 2007 YLR 1495 and Ali Murtaza v. The State 2005 PCr.LJ 1773 ref.

Haji Muhammad Ali Khan and 3 others v. the State 2010 PCr.LJ Kar. 310; Abdul Zahoor Khan v. The State 2011 PCr.LJ 747; Jalal Akbar v. The State 2011 PCr.LJ Kar. 754; Muhammad Yaqub v. State and another PLJ 2009 Cr.0 (Lahore) 1114; Muhammad Iqbal Lali v. The State 2010 PCr.LJ 1881 and Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 distinguished.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Niaz Ali v. The State 2011 PCr.LJ 601 and 2011 YLR 75 rel.

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

----Ss. 498, 498-A & 499---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, confirmation of---Principles---Fixation of amount of surety---Scope---Complainant had stated that he would not oppose the grant of bail to accused, if same would be subject to deposit of surety amount at least in the sum equivalent to the amount of dishonoured cheque---Validity---Fixation of amount of surety equivalent to amount of dishonoured cheque, could not be applied as a matter of rule in all cases---Even otherwise,, amount of surety, could not be" used to penalize accused or to deprive him/her the concession of bail in appropriate cases---Grounds for consideration of bail before arrest, were different and distinguishable from the grounds of post-arrest bail---Fixation of amount of surety, was the discretion of the court admitting accused on bail, which could vary from case to case---Provisions of S.499, Cr.P.C. provided a complete mechanism for securing a person's appearance before the court or before a Police Officer, including consequences for non-appearance---Very purpose of releasing-an accused on surety bond was to ensure his attendance on each and every date of hearing till conclusion of the trial for compliance whereof the person who stood his surety would execute a surety bond in a required sum of money, and would undertake to produce accused on each date of hearing---Bail was confirmed.

Ms. Nasreen Zafar for Applicant along with Applicant in person.

Complainant in person.

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

YLR 2011 KARACHI HIGH COURT SINDH 2925 #

2011 Y L R 2925

[Karachi]

Before Mushir Alam C.J. and Syed Hasan Azhar Rizvi, J

MAHESH LAL---Petitioner

Versus

PROVINCE OF SINDH through the Secretary Ministry of Excise and Taxation

Sindh and another---Respondents

Constitution Petition No.D-2912 of 2010, decided on 24th May, 2011.

(a) Sindh Prohibition Rules, 1979---

----Rr. 10 & 23(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Grant of new licence for retail off Liquour Shop---Notification enhancing prescribed fee for such licence issued by Government after petitioner deposited fee as per challan issued by authority---Demand of differential amount by Authority---Plea of authority that due to objections raised by inhabitants of concerned area, matter was kept pending for receipt of final report from Excise and Taxation Department---Validity---Petitioner had applied for such licence and fulfilled required formalities as per directions of Authority much prior to issuance of such notification, thus, there was no occasion for him to file appeal under S. 10 of Sindh Prohibition Rules, 1979---Had the Authority issued such licence to petitioner in time and not kept matter pending for calling of reports from concerned S.H.O., petitioner would have not suffered---Rights of parties would be governed/decided as per law prevailing at the time of accrual of cause of action---Petitioner had pursued such matter before Authority diligently and there was no fault of his to suffer---Petitioner was entitled to such 'licence on basis of challan already issued, but subject to compliance of all required legal formalities---High Court accepted constitutional petition in circumstances.

City District Government, Karachi v. Muhammad Arif 2010 SCMR 1186; Messrs Mirpurkhas Sugar Mills Ltd. v. Government of Sindh 1993 SCMR 920; City District Government, Karachi v. Muhammad Arif 2010 SCMR 1186; Muhammad Akbar Khan v. Province of West Pakistan PLD 1961 SC 17; Government of Pakistan v. Zamir Ahmed Khan PLD 1975 SC 667 and D. P. Edulji and Co. v. Secretary, Excise and Taxation PLD 1982 Lah. 817 ref.

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

----O. VII, R.1(e)---Cause of action---Scope---Rights of parties would be governed/decided as per law prevalent at time of accrual of cause of action.

Azhar Faridi for Petitioner.

Muhammad Sarwar Khan Addl. A.G. for Respondents.

Date of hearing: 3rd March, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 2929 #

2011 Y L R 2929

[Karachi]

Before Muhammad Athar Saeed and Munib Akhtar, JJ

SHERAL---Applicant

Versus

SAJAN alias SAJOO and 17 others---Respondents

Criminal Transfer Application No.D-35 of 2009, decided on 1st June, 2010.

Criminal Procedure Code (V of 1898)---

----S.526---Penal Code (XLV of 1860), Ss. 302/324/337-H(2)/452/147/148/149---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 12 & 23---Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt by rash and negligent act and trespassing---Application for transfer of case from the Sessions Court to Anti-Terrorism Court---Case was sought to be transferred by the appellant/complainant on the ground that offence for which F.I.R. had been filed, was a heinous offence and fell under the definition of scheduled offence, which could only be tried-under S.12 of Anti-Terrorism Act, 1997 by the Anti-Terrorism Court---Crime allegedly committed by the respondents/accused, being heinous, was enough to. create a sense of insecurity and panic in the minds of all sections of general public and terrorize the minds of all the persons who learnt about the same---Offence- in the cases fell within the ambit of Ss.6 & 7 of the Anti-Terrorism Act, 1997 and the right forum to adjudicate the offence, was the Anti-Terrorism Court and not the Sessions Court---Transfer application was allowed and Sessions Judge was directed to immediately transfer the case to Anti-Terrorism Court which was directed to conduct the proceedings of the case expeditiously.

Muhammad Latif v. State PLD 2008 SC 503; Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; State v. Muhammad Shafiq PLD 2003 SC 224; Najam-un-Nisa v. Judge, Special Court 2003 SCMR 1323; Muhammad Musthaq v. Muhammad Ashiq PLD 2002 SC 841; Muzamil v. State 2010 PCr.LJ 98; Jawad Mir Muhamamdi v. Haroon Mirza PLD 2007 SC 472; State v. Abdul Malik PLD 2000 Lah. 449; Naeem Akhtar v. State PLD 2003 SC 396 Mr. Bashir Ahmed v. Muhammad Siddique PLD 2009 SC 11 and Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 rel.

Mohabat Ali v. 2007 SCMR 142 and Bashir v. State PLD 2009 SC. 11 distinguished.

A.R. Faruq Prizada for Applicant (in Cr.Tr.35 of 2009).

Zulfiqar Ali Sangi for Applicant (in Cr.M.A. 44 of 2009).

Qurban Ali Malano for Respondents.

Zulfiqar Ali Jatoi, Deputy Prosecutor General.

Date of hearing: 18th March, 2010.

YLR 2011 KARACHI HIGH COURT SINDH 2941 #

2011 YLR 2941

[Karachi]

Before Mushir Alam C.J. and Muhammad Athar Saeed, J

PRINTEK (PVT.) LTD. through Executive Director and 3 others---Petitioners

Versus

SHAHID NABI MALIK and 4 others---Respondents

C.P. No.2150 of 2006, decided on 24th June, 2011.

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

----Regl. 25-3---Sindh Buildings Control Ordinance (V of 1979), S.21-A---West Pakistan General Clauses Act (VI of 1956), Ss.2(41), 19-A & 22---Constitution of Pakistan, Art. 199---Constitutional petition---Notification introducing amendments in Karachi Building and Town Planning Regulations, 2002 regarding approval of building plan-Non-publication or delayed publication of such notification in Official Gazette---Validity---Neither S.19-A of West Pakistan General Clauses Act, 1956 nor S.21-A of Sindh Building Control Ordinance, 1979 provide for consequences, if any, arising from such cases---Provision of S.19-A of West Pakistan General Clauses Act, 1956 being directory, non publication of such notification would not render same to be invalid---Onus would lie on petitioner to satisfy the court as to what manner he was prejudiced/affected or his rights/liabilities were affected by mere delayed publication or non publication of such notification in Official Gazette---In absence of such proof, High Court would not strike down such notification---Delayed publication of such notification in Official Gazattee would not validate such Regulations---Such amended Regulations would apply prospectively from date of publication of its notification in Official Gazette and not from the date on the title of the notification---Said amended Regulations for being procedural, remedial and curative in nature and beneficial to builders would apply to all pending proceedings---When building was not completed before publication of such notification, but its plan was approved before .its publication, then its builder could apply for revision of plan on basis of such amended Regulations---Provisions of S.22 of West Pakistan General Clauses Act, 1956 would not apply in respect of Regulations being made under Sindh Buildings Control Ordinance, 1979, thus, there was no necessity of its previous publication for inviting objections and views of general public---Such notification could not be declared to be invalid on ground of its delayed publication in Official Gazette---Principles.

1998 CLC 641; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Government of The Punjab, Food Department v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148; Government of Balochistan v. Haji Muhammad Akbar Kansi PLD 2004 SC 261; Haji Mushtaq Ahmed Khan v. Government of N.-W.F.P. PLD 2000 Peshawar 73; Chief Commissioner Karachi v. Jamil Ahmed and another PLD 1961 SC 145; Manzur-ul-Haq v. Controlling Authority, Local Councils Montgomery and others PLD 1963 SC 652; Muhammad Siddique v. The Market Committee Tandlianwala 1983 SCMR 785; Pakistan through Secretary Ministry of Defence, and others v. Late Ch. Muhammad Ahsan 1991 SCMR 2180; Muhammad Haneef v. Ghulam Haider Shah and 2 others PLD 1982 Kar. 957; Muhammad Tufail v. Punjab Local Council Election 1990 CLC 68; Regina v. Sheer Metalcraft Ltd. and another (1954) 1 QB 586; Bangalore WC and S Mills Ltd. v. Corporation of Bangalore AIR 1962 SC 962; Babu Rao v. Union of India AIR 1988 SC 440; Standard Vacuum Oil Company v. The Trustees for The Port of Chittagong PLD 1961 Dacca 278; Muhammad Sale Chief Settlement, Commissioner Lahore and 2 others PLD 1972 SC 326; Muhammad Ismail v. The Province of East Pakistan and others PLD 1964 SC 475; Sutlej Cotton Mills Ltd., Okara v. Industrial Court West Pakistan PLD 1966 SC 472; United Industrial bank Ltd. v. Mohan. Bashi Saha PLD 1959 SC 296; Province of East Pakistan v. Nur Muhammad PLD 1964 SC 451; The Chairman Railway Board Lahore v. M. Wahabuddin and Sons PLD 1990 SC 1034; Benazir Bhutto v. Federation of Pakistan 1991 MLD 2622; Khawaja Ahmed v. Federation of Pakistan PLD 1991 Lahore 78 and Muhammad Yaseen v. Province of Punjab 1994 PLC (CS) 215 ref.

Multiline Associates v. Ardeshire Cowasjee and others 1995 SCMR 362; Mst. Ummatullah through attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236 and Commissioner of Income Tax v. Shahnawaz Ltd. and others 1993 SCMR 73 rel.

(b) Interpretation of statutes---

----Procedural amendment being beneficial and curative would apply to all pending proceedings.

----Words not to be .added in a statute to arrive at an interpretation and only actual words used to be construed to interpret a particular section.

(d) Karachi Building and Town Planning Regulations, 2002---

----Reglns. 2-12 & 25-3.2(3)---Corner building---Compulsory open space (COS) and arcade, construction over---Scope---Once a provision for condonation of compulsory open space was provided irrespective of commercial building and arcade, then construction on arcade, if not specifically prohibited, could be allowed--When arcade was a part of plot and was not to be considered for extension of road, then construction thereon could be allowed---No construction could be made on arcades provided for construction of road--Reasons stated.

Ms. Sana Minhas for Petitioners.

Farogh Naseem along with Munawar Hussain for Respondent No.1.

Anwar Ali Shah for Respondent No.2-KBCA.

Abdul Rehman for Respondent No.5-Shehri-CBE (Citizens for a better Environment).

Dates of hearing: 25th April, 16th May, 2011.

YLR 2011 KARACHI HIGH COURT SINDH 3022 #

2011 Y L R 3022

[Karachi]

Before Faisal Arab, J

WAZEER ALI and another----Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-707 of 2010, decided on 28th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), Ss. 302/324/337-H(2)/452/34---Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act and house-trespass---Bail, grant of---Incident had taken place at night time and person in such situation were unable to recognize the previously known persons, who had committed the crime---F.I.R. had narrated that at the time of incident the people of area gathered and they witnessed the incident; had the F.I.R. been lodged immediately after the incident, it was understandable that at that time it was not disclosed to the complainant as to who were the persons involved in the murder---F.I.R. was lodged after a lapse of about 18 hours and question would arise as to why it did not become known to the complainant as to who were the persons who committed murder, when the eye-witnesses present were of the same neighbourhood---Accused being police functionaries, the person who registered the F.I.R. had not favoured them by not recording the names of accused---Even after 18 hours the names of accused were not mentioned as the persons who committed the crime---Bail, with such background could not be denied for the reason that the eye-witnesses had later disclosed to the complainant that accused were the persons who committed the crime---Such situation would not mean that accused were not involved in the crime, but their involvement could be established only after the evidence of the eye-witnesses was recorded---Accused having made out a case for grant of bail, they were admitted to bail, in circumstances.

1987 SCMR 1906; PLD 1996 Kar. 397; 1998 SCMR 1528; PLJ 1999 SC 49; 2000 PCr.LJ 1204; 2000 PCr.LJ 1209; 2001 SCMR 14; 2002 PCr.LJ 791; 2003 SCMR 426; 2005 MLD 1470; 2007 SCMR 482; 2009 SCMR 1210; 2000 PCr.LJ 1253; 2002 SCMR 1886; 1999 SCMR 1794; 1996 SCMR 555; 2000 SCMR 1758 and PLD 1996 FSC 1 ref.

Riazat Ali Sahar for Applicants.

Noorul Haq Qureshi for the Complainant.

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

YLR 2011 KARACHI HIGH COURT SINDH 3041 #

2011 Y L R 3041

[Karachi]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ALI ZAHIR JAFARI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.318 of 2002, heard on 4th August, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 369 & 561-A---Review of judgment---Inherent powers of High Court---Scope---Sanctity of finality, though was attached to judgment passed by criminal court by virtue of S.369, Cr.P. C., but there were conditions whereby the courts had reviewed or recalled their judgments and orders without jurisdiction or passed without adjudication on merits--- If the judgment or order was passed in violation of any law, same could be recalled or reviewed under inherent powers of High Court---High Court, in appropriate cases, had powers, even to correct its own orders or to recall an erroneous order---Such power was inherent in the court; and one did not' have to search for specific provision in that regard.

Gul Muhammad and others v. State 1999 SCMR 2765; Allah Rakha v. State 2000 MLD 1932 and Muhammad Ayaz v. State PLD 2004 Kar. 652 rel.

Ali Bin Adam Jaferi for Applicant.

Ms. Sheeraz Iqbal, Standing Counsel.

Date of hearing: 4th August, 2011.

Lahore High Court Lahore

YLR 2011 LAHORE HIGH COURT LAHORE 1 #

2011 Y L R 1

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Ahmad Farooq, JJ

MUNIR HUSSAIN---Petitioner

Versus

SPECIAL JUDGE ATC and others---Respondents

Writ Petition No.23253 of 2010, decided on 16th November, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/324/148/149---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 23---Constitution of Pakistan, Art.199---Constitutional petition---Qatl-e-amd, attempt to commit qatl-e-amd and terrorism---"Terrorism "--- Scope--- Application for transfer of case to the court of ordinary jurisdiction---Petitioner had prayed for setting aside order whereby his application filed under S.23 of Anti-Terrorism Act, 1997 for transfer of his case to the court of ordinary jurisdiction, was dismissed by Special Judge Anti-Terrorism---Validity---Victims of alleged occurrence were ambushed on the road, where accused persons resorted to indiscriminate firing with Kalashnikovs' on the vehicle in which the complainant party was travelling---As a result of firing of the accused persons, traffic coming from the both sides of the road was blocked--Incident might be the result of previous enmity between the parties, but the place of occurrence selected by accused persons for launching a murderous attack on their opponents was not a private place---Use of kalashnikovs for hitting the vehicle of the victims on a busy public road, not only resulted in disruption of flow of traffic, but also created a serious risk to safety of the public gathered on the said road---While determining the nature of an act for the purposes of attracting the provisions of Ant-Terrorism Act, 1997, the impact of the act of accused persons on the general public, was of vital importance and not the intention of accused---In the present case, the act of accused persons, not only disturbed the normal activities of the public at large, but also made them feel helpless and frightened---Case of accused persons squarely fell within the definition ofTerrorism' as provided in S.6 of Anti-Terrorism Act, 1997; and Special Judge, Anti-Terrorism Court had rightly dismissed the application of the petitioner for sending the case to the ordinary court---No ground having been made out for setting aside the impugned order, constitutional petition was dismissed.

Ch. Abdul Ghaffar for Petitioner.

Zubair Khalid, Addl. A.-G. for Respondents.

Date of hearing: 16th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 5 #

2011 Y L R 5

[Lahore]

Before Sagheer Ahmed Qadri, J

Messrs VARAN TOURS---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

C.R. No.635 of 2010, decided on 7th September, 2010.

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

----O. XVI, R. 1---Witness not cited in list of witnesses filed within seven days of framing of issues---Summoning of such witness through court---Scope---Discretion would lie with court either to refuse or allow such request subject to facts and circumstances of each and every case.

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

----O. XVI, Rr. 1(1)(3) & 8---Witness named in list of witnesses filed within seven days of framing of issues---Application to summon such witness not filed 14 days prior to fixation of first date for recording of evidence---Validity---Even a witness not named in such list could be allowed to be summoned or examined, if his evidence considered by court necessary to decide case on merits---Basic duty of court would be to administer justice on basis of evidence led by parties according to facts and circumstances of each and every case---Technicalities would normally be avoided in administration of justice---Such application was allowed in circumstances.

Haji Muhammad Tufail v. Muhammad Iqbal 2005 MLD 688; Abdul Hakeem and another v. The Federation of Pakistan PLD 1956 Lah. 30; NBP through President, Head Office, I.I. Chundarigar Road, Karachi and 3 others v. Punjab Provincial Co-operative Bank Ltd., 2002 YLR 2476; Syed Ibne Hussain v. Federation of Pakistan through Secretary Establishment Division and others 2008 SCMR 116 and Mst. Bashir Bibi v. Aminuddin and 9 others 1972 SCMR 534 ref.

Munshi and others v. Mst. Kamran AIR 1927 Lahore 281; Kandru Haldar v. Taraprasanna Roy Chowdhuri and others AIR 1926 Calcutta 364(1); Mst. Bashir Bibi v. Aminuddin and 9 others 1972 SCMR 534; Syed Ibne Hussain v. Federation of Pakistan through Secretary, Establishment Division and others Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 rel.

--Technicalities should not be allowed to thwart ends of justice.

(d) Administration of justice---

----Technicalities should be avoided in administration of justice as basic duty of court being to administer justice on basis of evidence led by parties according to facts and circumstances of each and every case.

Syed Ibne Hussain v. Federation of Pakistan through Secretary Establishment Division and others 2008 SCMR 1159 and Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 fol.

(e) Administration of justice---

----Courts should not act as a silent spectator while conducting trials.

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

----O. XVI, R. 1---List of witnesses consisting names of 180 witnesses---Validity---Party to a lis had a right to choose how to prove his case and through evidence of which witnesses---Before allowing a party to get recorded statement of a witness or issuance of summon for attendance of a witness, court would be bound to consider that how statement of such witness was necessary to discharge onus of issues placed on such party---Principles.

Messrs Ahmad Awais and Maqsood Hussain Qureshi for Petitioner.

Khursheed Ahmad Satti, A.A.-G. Syed Iftikhar Hussain, Assistant.

YLR 2011 LAHORE HIGH COURT LAHORE 19 #

2011 Y L R 19

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

TARIQ HAKIM---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No. 16742 of 2010, heard on 16th August, 2010.

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

----Ss. 6, 7 & 8---Determination as to whether an offence falls within the ambit of S.6, Anti-Terrorism Act, 1997---Guide lines---Motive and object both make a path for guideance in order to determine whether the offence falls within the domain of Anti-Terrorism Act or not---Section 6 of the Anti-Terrorism Act, 1997 reflects two words, namely, "designed to" and "action" and from the interpretation of both these words one can draw an inference that whether the offence falls within the ambit of terrorism or not---Intention of the Legislature is very much clear from the words "designed to" and "action" and both the words have great impact on each other in order to constitute an action as act of terrorism---From the meaning of simple word "action" it is very different to deduct that the action of a person was an act of terrorism without the word "designed to" which means object behind the action---If the brutality of the act of a person is declared terrorism, then every murder case will fall within the definition of terrorism, as seen from any angle the murder is always committed in a brutal manner---Definition of terrorism, thus, is incomplete without the words, "designed to" which means the object, motive or purpose behind the act and not the consequential effect created by such act.

Bashir Ahmad v. Muhammad Siddique and others PLD 2009 SC 11 rel.

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

----S.6--- 'Terrorism'--- Words "designed to"---Connotation---Words "designed to" used in S. 6 of the Anti-Terrorism Act, 1997, means the object, motive or purpose behind the act and not the consequential effect created by such act.

----Ss. 302/324/34---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23---Constitution of Pakistan, Art. 199---Qatl-e-amd, attempt to commit qatl-e-amd and act of terrorism---Constitutional petition---Anti-Terrorism Court had dismissed the application of the accused petitioner moved under S.23 of the Anti-Terrorism Act, 1997 for transfer of the case to the court of ordinary jurisdiction---Validity---Complainant had stated in the F.I.R. that the assailants after identifying his brother had made firing on his vehicle, which showed their clear intention to do away with only his brother and not the others who could not be saved due to their accompanying with the target of assailants in the same vehicle-Although the F.I.R. did not reflect the names of the accused persons, yet the incident was the result of enmity and personal vendetta, as was apparent from the supplementary statement made by the complainant before the police, wherein he had categorically narrated all the facts clearly suggesting that the incident had taken place due to previous enmity---Occurrence in the case had neither reflected any act of terrorism, nor any sectarian matter, instead the murders had been committed owing to previous enmity between the parties---Occurrence, therefore, could not in any manner be declared falling within the ambit of S. 6 of the Anti-Terrorism Act, I997---Anti-Terrorism Court had committed an illegality while passing the impugned order assuming the jurisdiction to try the offences---Impugned order was consequently set-aside and the case was transferred to the court of ordinary jurisdiction for trial in accordance with law---Constitutional petition was allowed accordingly.

Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199; State through Advocate-General, N.-W.F.P. Peshawar v. Muhammad Shafiq PLD 2003 SC 224; Mirza Shaukat Baig and others v. Shahid Jarnil and others PLD 2005 SC 530; Muzamil and another v. The State and another 2010 PCr.LJ 98; Fawad Rasool v. Special Judge, Anti-Terrorism Court No.1, Gujranwala and 2 others 2010 PCr.LJ 23; Muhammad Imran alias Sawan v. Special Judge, Anti-Terrorism Court, Multan and another 2007 YLR 155 and Rana Shahbaz Riaz v. Special Judge, Anti-Terrorism Court, Faisalabad and 13 others 2009 PCr.LJ 346 ref.

Bashir Ahmad v. Muhammad Siddique and others PLD 2009 SC 11 rel.

Aitzaz Ahsan for Petitioner.

Ch. Amjad Ali Chattha, A.A.-G., Ch. Jamshed Hussain, D.P.-G. and Muhammad Afzaal Siddiqui for the Complainant.

Date of hearing: 16th August, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 33 #

2011 Y L R 33

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

MULAZAM HUSSAIN---Petitioner

Versus

SHAFQAT HUSSAIN alias BOLU and 2 others---Respondents

Criminal Revision No. 916 of 2010, decided on 25th August, 2010.

Penal Code (XLV of 1860)---

---S.302/34---Criminal Procedure Code (V of 1898), Ss. 200, 202 & 203---Qatl-eamd---Mother of the deceased had got the F.I.R. registered under S. 302/34, P.P.C. and partial evidence in the challan case had been recorded---Subsequently maternal uncle of the deceased had filed a private complaint changing all the facts given in the F.I.R.---Names of accused as well as the place of occurrence had also been changed in the private complaint---Trial Court after recording cursory evidence had dismissed the complaint vide impugned order---Validity---In the presence of the version given by the mother of' the deceased, version recorded by the complainant, who claimed himself to be the relative of the deceased, could not be given any weight, rather could not be believed---Complainant had changed the entire story which would hamper the case of the mother of the deceased given in the challan case---Proper administration of justice was to believe the mother and not the other relatives---Private complaint was mala fide---Prima facie case had to be determined by the Trial Court by open eyes, particularly when the trial of the challan case was already pending before it---Impugned order was not illegal, improper or incorrect---Revision petition was dismissed in limine accordingly.

Nur Ellahi v. The State PLD 1966 SC 708; Muhammad Akram v. Mir Aziz Ahmed 2000 PCr.LJ 489 and Noor Muhammad v. The State and others PLD 2007 SC 9 ref.

Muhammad Alamgir Khan for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 37 #

2011 Y L R 37

[Lahore]

Before Sh. Ahmad Farooq, J

ASGHAR ALI alias BUTT---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 12041/B of 2010, decided on 11th October, 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---Case was of cross-version and it would only be decided during the trial after recording of evidence as to which party was the aggressor---Contradictions existed in the ocular account as narrated in cross-version, statement of victim record -a under S.161, Cr.P.C. as well the medico-legal examination certificate---No weapon of offence had been recovered from accused during the investigation---Accused was behind the bars and his role in the occurrence, required further probe and inquiry---Mere fact that accused remained absconder for about one year, was no ground to decline bail, if he was otherwise entitled to the same on merits---Case against accused fell within the ambit of further inquiry entitling him to be released on bail---Bail was granted, in circumstances.

Abdul Karim v. Pak State and another 2004 MLD 1448; Muhammad Shahzad Siddiqui v. The State and another PLD 2009 SC 58; Aman Ullah v. The State 2009 PCr.LJ 1254; Nazir Ahmad v. The State 2008 PCr.LJ 1254 and Nazir Ahmad v. The State 2008 YLR 2098 ref.

Shaukat Rafiq Bajwa and Tallat Farooq Sheikh for Petitioner.

Azeem Sarwar for the Complainant.

Muhammad Naeem Sheikh, D.P.-G. with Fateh Sher, A.S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 39 #

2011 YLR39

[Lahore]

Before Mian Shahid Iqbal, J

MUHAMMAD HAFEEZ KHAN and another---Petitioners

Versus

SHATAB KHAN through L. Rs. ---Respondent

Civil Revision No.1187 of 2003, heard on 30th July, 2010.

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Non-mentioning in plaint date, time, place and names of witnesses in respect of such Talbs---Validity---Mentioning of such facts was mandatory requirement to enable pre-emptor to proceed in suit---Plaint was defective to extent of non-mentioning such facts therein---Court could not proceed in such case---Suit was dismissed in circumstances.

1999 CLC 1735; 2000 SCMR 329 and PLD 2007 SC 302 rel.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Pre-emption suit---Talb-i-Muwathibat, performance of--Proof---Statement of pre-emptor to the effect that when he came to know about suit sale, then he, in presence of two witnesses, showed his intention to pre-empt sale---One witness, of such Talb died during pendency of suit, while other witness was not produced in evidence---Effect---Burden lay upon pre-emptor to prove through cogent evidence that he had showed such intention---Pre-ernptor had failed to prove such Talb through two truthful witnesses--Suit was dismissed in circumstances.

PLD 2006 SC 309 rel.

----S. 13---Qanun-e-Shahadat (10 of 1984), Arts. 75, 76 & 129(e)---General Clauses Act (X of 1897), S. 24---Preemption suit---Talb-i-Ishhad, performance of---Plea of pre-emptor that after coming to know about sale and having shown intention to pre-empt sale, he went to Civil Court along with two witnesses and got drafted notice of such Talb from an Advocate and sent to vendee through registered post---Denial of vendee to have received such notice---Photo copy of postal receipt showing sending of such notice placed on record not through statement of person who had sent such notice, hut through statement of Counsel in suit after closing evidence by pre-emptor---Validity---One witness of such notice had died during pendency of suit, while other witness and scribe thereof being counsel in suit had not been examined by preemptor---Had original postal receipt of such notice been placed and proved on record, then presumption under S. 24 of General Clauses Act, 1897 and Art. 129 of Qanun-e-Shahadat, 1984 would tilt in favour of person of sending such notice---Nothing was available on record to show as to what happened with original postal receipt of such notice--Had such notice been sent to vendee, then pre-emptor would have received back its acknowledgement due (not placed on record) with endorsement either refused or received notice, then presumption would have been in favour of pre-emtpor---Merely placing on record such photo copy would not absolve pre-emptor from duty to prove factum of sending of such notice---Party basing his claim on a document ought to have proved same through its scribe---Such notice would not stand proved in absence of evidence of its scribe, though being a counsel in suit---Preemptor had failed to prove sending of notice of such Talb---Suit was dismissed in circumstances.

1998 MLD 1592; 2007 SCMR 1105; 2003 CLC 282; 2005 SCMR 1201; PLD 2003 Pesh. 179; 1995 CLC 829;2000 SCMR 314; 1999 SCMR 717; 2000 CLC 623; 2004 SCMR 578; PLD 2003 SC 818 and Muhammad Usman and others v. Khushi Muhammad and others 2001 YLR 2908 ref.

Abdul Malik v. Muhammad Latif 1999 SCMR 717; Manzoor Hussain and 3 others v. Muhammad Siddique 2002 CLC 623; 2008 SCMR 1366; 2005 YLR 77 and Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 rel.

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

----Ss. 5 & 13---Transfer of Property Act (IV of 1882), S. 52---Pre-emption suit---Transfer of property by vendee during pendency of suit---Scope---Applicability of principle of lis pendense to such suit would render provision of S. 13 of Punjab Pre-emption Act, 1991 as redundant and question of Talbs and its subsequent requirements would become insignificant--Principles.

PLD 2003 SC 818; 2004 SCMR 578; 2004 SCMR 1270 and PLD 2009 SC 93 rel.

Anwaar Akhtar for Appellant.

Ghulam Farid Santora for Respondent.

Date of hearing: 30th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 55 #

2011 YLR 55

[Lahore]

Before Sh. Ahmad Farooq and Muhammad Yawar Ali, JJ

Syed HABIB SHAH and 2 others---Appellants

Versus

MUHAMMAD SHAFI and another---Respondents

Criminal Appeal No. 2078 and I.C.A. No.851 in Criminal Original No.917 in Writ Petition No. 16700 of 2001, heard on 15th September, 2010.

Contempt of Court Act (LX1V of 1976)---

---S.4---Constitution of Pakistan, Art.204--Appeal against the order of single Judge---Conduct of the accused/appellants from the very beginning of the proceedings out of which the contempt petition had arisen, had remained very contumacious---Accused despite being informed by their counsel, did not appear in the Court, whereupon their presence had to be procured through their bailable warrants of arrest---Accused had failed to bring on record any credible evidence to show that they had restored the electricity connection of the complainant on the date as directed by High Court---Though in view of their contumacious conduct accused deserved to be awarded exemplary punishment, yet the Single Judge had taken a lenient view of the matter and awarded them a short sentence of only seven days imprisonment along with a fine of Rs.3000 each---No ground warranting interference in the impugned order was available---Conviction and sentence awarded to accused were maintained in circumstances---Appeal was dismissed accordingly.

Akhtar Ali Monga for Appellant.

Ch. Muhammad Sarwar Sindhu, A.P.-G.

Ch. Muhammad Shabbir Gujjar, A.A.-G.

Muhammad Ilyas Khan Legal Advisor WAPDA for Respondent.

Date of hearing: 15th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 60 #

2011 Y L R 60

[Lahore]

Before Hassan Raza Pasha, J

Malik TARIQ JAVED---Petitioner

Versus

JUDICIAL MAGISTRATE SECTION 30, ISLAMABAD---Respondent

Criminal Miscellaneous No. 534-M of 2010, decided on 21st September, 2010.

Penal Code (XLV of 1860)---

----Ss. 324/109/506/34---Criminal Procedure Code (V of 1898), S.561-A---Attempt to commit qatl-e-amd, abetment, criminal intimidation---Quashing of order---High Court in a writ petition filed by the accused had directed his name to be effaced through correction in the challah---Subsequently on the writ petition filed by the complainant High Court had ordered fresh investigation in the matter, in compliance whereof accused having been found involved in the case, challan was submitted in the Court placing his name in column No.2 of the same---Trial Magistrate thereafter had summoned the accused to face trial in the case vide impugned order---Validity---Contention was that after the exclusion of the name of accused from the challan by the order of High Court, Investigating Agency had no right to submit challan against him, which was a violation of S.403, Cr.P.C. and Article 13 of the Constitution---Accused had never challenged the impugned order earlier and the proceedings taken by the Trial Court in pursuance thereof, in which he was regularly appearing through his counsel---Even otherwise, in the aforesaid writ petition filed by the accused F.I.R. was not quashed and only challan was directed to be corrected to the extent of his name---In the absence of any order of quashment, the name of accused could not be directed to be wiped off---Petition was dismissed in limine in circumstances.

Muhammad Ilyas Siddiqui for Petitioner.

Complainant in person.

YLR 2011 LAHORE HIGH COURT LAHORE 65 #

2011 Y L R 65

[Lahore]

Before Ijaz ul Ahsan, J

MUHAMMAD YAQOOB---Appellant

Versus

MUHAMMAD IDREES---Respondent

Regular Second Appeal No. 171 of 2009, decided on 28th September, 2010.

Civil Procedure Code (V of 1908)---

----O. XIII, R.4---Specific Relief Act (I of 1877), Ss.8, 12 & 54---Suit for possession through specific performance with permanent injunction---Onus to prove a witness as interested witness---Principle---Trial Court decreed the suit while the appellate Court dismissed appeal of defendant---Defendant contended that Trial Court did not frame additional issue to decide controversy regarding his denial of receipt of earnest money and that the documents admitted in evidence by Trial Court were not signed by the Presiding Officer as required by O.XIII, R.4, C.P.C.---Validity---Subordinate courts had made factually and legally correct findings---Issue framed by Trial Court efficaciously dealt with the controversy regarding defendant's denial of receiving earnest money---Plaintiff had proved payment of earnest money to defendant---Record showed that documents admitted in evidence had been signed by the Presiding Officer; even otherwise, in the absence of any allegation of fabrication or falsification of said documents, defendant's objection was found to be hypertechnical as no prejudice was shown to have been caused to defendant's case as a result of alleged omission of Presiding Officer to sign the documents---Defendant could not show that the witnesses produced by plaintiff were interested witnesses---Where a person alleged that a witness was interested, onus to prove the interest of witness was on the person making the allegation---Sufficient oral evidence was produced by plaintiff to prove the agreement to sell---Judgments and decrees of subordinate courts did not suffer from any defect---Appeal was dismissed in circumstances.

Rao Abdul Jabbar Khan for Appellant.

Ch. Ijaz Akbar for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 72 #

2011 Y L R 72

[Lahore]

Before Shahid Hameed Dar, J

SAIMA GUL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1527-B of 2010, decided on 21st September, 2010.

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

----S.498---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Pre-arrest bail, grant of---F.I.R. did not contain any incriminating material against the accused---Accused had been nominated as a suspect in the F.I.R. along with her real brother---Story given in the F.I.R. was self discrepant---Mere abscondence of account could not impede the grant of bail to her, when her guilt needed further probe within the meaning of S.497(2), Cr.P.C.---Accused being a lady, her case was also covered by the first proviso of S.497(1), Cr.P.C.---Mention of the name of accused in the F.I.R. as an accused registered for an offence entailing capital punishment, was not sufficient to deny her bail before arrest, when otherwise her case called for further inquiry---Differences between the parties were admitted---False implication of accused in the case due to malice and ulterior motives of the complainant, could not be ruled out---Ad-interim prearrest bail allowed to accused was confirmed in circumstances.

Muhammad Azam v. The State 1996 SCMR 71 and Muhammad Arshad and another v. The State and another 1996 SCMR 74 ref.

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

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

----S.497(2)---Penal Code (XLV of 1860), 5.302/34--- Qatl-e-amd--- Bail--- Abscondence of accused---Effect---Mere absondence of accused cannot impede the grant of bail to an accused, if his case is open to further inquiry into his guilt within the scope of S.497(2), Cr.P.C.

----S.498---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Pre-arrest bail---Scope---Concession of bail before arrest is though exceptional in nature with a limited scope as compared to bail after arrest, yet it can be validity granted to an accused, regardless of the charge against him, if his case needs further inquiry within the meaning of S.497(2), C.P.C.

Miran Bux v. The State and another PLD 1989 SC ref.

Malik Tahir Mahmood for Petitioner.

Abdul Jabbar Awan, for the Complainant.

Sh. Muhammad Munir, Deputy Prosecutor-General and Muhammad Riaz, S.-I. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 78 #

2011 Y L R 78

[Lahore]

Before Mamoon Rashid Sheikh, J

Mst. AYESHA NASEER---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, PAKPATTAN SHARIF and 3 others---

Respondents

Writ Petition No. 5726 of 2010, decided on 5th May, 2010.

Constitution of Pakistan---

----Art.199---Criminal Procedure Code (V of 1898), 491---Constitutional petition---Application for issuance of writ in the nature of Habeas Corpus---Dismissal of application---Father of the minors died and they were in the custody of the petitioner being their mother---Application filed by the petitioner/mother under the Guardians and Wards Act, 1890 for appointment as guardian of the person and property of the minors, was allowed by the Guardian Judge---Petitioner filed application under S.491, Cr.P.C. alleging that respondents who were maternal grand father and maternal uncle, respectively of the minors, had abducted the minors---Said application having been dismissed by the Trial Court, petitioner had filed constitutional petition---Respondent/ alleged abductors, had stated that minors had been in their custody since the death of the father of the minors and had called into question the character of the petitioner and had levelled serious allegations against the petitioner---All minors who were intelligent, well-behaved and mature, not only mentally, but also physically, also repeated the allegations against their mother about her moral character---Minors had been living with their maternal relatives since the death of their father and had absolutely refused to reside with their mother---Petitioner/ mother could not establish with exactitude as to when the minors were removed from her custody---High Court, normally in constitutional petitions including those seeking a writ of Habeas Corpus, High Court would not go into factual controversies nor a detailed inquiry was held; in such like cases, High Court, could pass an order using its inherent jurisdiction in the largest interest and welfare of the minors---High Court could not interfere in the matter in its extraordinary constitutional jurisdiction especially when matter was sub judice before Guardian Judge.

Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others 2006 MLD 493; Mst. Rehana v. Arshad Khan and 2 others 1991 MLD 1395; Mst. Nasim Akhtar v. Qazi Muhammad Zubair 1992 MLD 70; Musarrat Waris v. Muhammad Afsar Khan and 4 others 2006 MLD 231; Ms. Louise Anne Fairley through Special Attorney v. Saijad Ahmad Rana and 2 others PLD 2007 Lah. 293; Marian Khan v. Mehryar Salim and another 2008 YLR 2647; Shaireen Abdullah v. Mehmood Akhtar PLD 1993 Lah. 466; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; 1997 PSC (Cr.) 839; PLD 1995 SC 633; 2005 SCMR 1410, PLD 1970 SJ&K 13; 2006 MLD 23; 1995 SCMR 1283; Mst. Ayisha Bibi v. Safdar Ali Shah and another 2005 CLC 894; Sughran Bibi v. Akhtar Hussain 2007 CLC 474; Ch. Nazir Ahmad v. Additional District Judge III, Sahiwal and others 1998 SCMR 1359; Muhammad Naeem Ahmad v. Asgeeri 2002 YLR 2854; Mst. Zubeda Khanum v. The District Judge, Karachi Sought and 2 others 1988 CLC 556 (Kar.) and Mst. Hamida Bibi v. Station House Officer and others 1998 PCr.LJ 140; Mst. Khalid Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Naziha Ghazali v. The State and another 2001 SCMR 1782 ref.

Kalim Ilyas, A.A.-G. and Mian Abdul Qaddus for Petitioners.

Mian Shah Abbas for Applicant (in C.M. No. 1735 of 2010).

Muhammad Alamgir Khan for Respondents Nos. 3 and 4.

Dates of hearing: 28th April and 5th May, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 96 #

2011 Y L R 96

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Ahmad Farooq, JJ

MURAD TARIQ---Applicant

Versus

TE STATE---Respondent

Criminal Appeal No. 641 of 2002 Murder Reference No. 855 of 2002 heard on 27th July, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Contradictions in the statements of eye-witnesses had negated their presence at the spot at the time of occurrence---Ocular evidence was highly improbable as against defence evidence---Presence of complainant and eye-witnesses at the scene of crime was not proved---Medical evidence had contradicted the manner of occurrence---Bullet recovered from the dead body of deceased was not got examined from the Forensic Science Laboratory---No weapon of offence was recovered from the possession of accused---Deceased was proved to be alone at the time of incident F.I.R. had been fabricated after due deliberations and consultations---Doctor had handed over the postmortem report and the bullet extracted from the dead body to the police after a delay of six days, which was not plausibly explained, apparently as a result of his collusion with the complainant party---Crime empties secured from the spot were not found by the Forensic Science Laboratory to have been fired from the pistol recovered from the car being driven by the acquitted co-accused---Motive for the occurrence could not be proved by the prosecution---Accused was acquitted in circumstances.

Riaz Ahmed v. The State 2010 SCMR 846 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.

Sultan Ahmad Khawaja, for Appellant.

Ch. Muhammad Sarwar Siddhu, Deputy Prosecutor-General for the State.

Date of hearing: 27th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 117 #

2011 Y L R 117

[Lahore]

Before Sh. Ahmad Farooq, J

Syed TANVEER HUSSAIN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 5702/B of 2010, decided on 17th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of---Dispute between accused and the complainant emanated from an agreement, whereby the complainant agreed to sell his shop to the accused---Complainant had received certain amount out of total consideration from accused---Held, no doubt the cheques in dispute were issued by accused in respect of payment of remaining consideration (amount) for the purchase of shop and same were dishonoured, but in that case the nature of transaction, the earlier admitted payment to the complainant by accused and pendency of civil litigation, had to be taken into consideration for determining the dishonest intention of accused, while issuing the cheques---Dishonest intention was sine qua non for constituting an offence falling under S.489-F, P.P.C.---Genuine business transaction, previous history of financial dealings and contractual obligation, could not per se fall within the mischief of S.489-F, P.P.C.---Dispute between the parties primarily was of a civil nature---Prima facie, the commission of offence falling within the mischief of S.489-F, P.P.C. by accused, was open to doubt and benefit of doubt was to be given to accused, even at bail stage-Pre-arrest bail already granted to accused, was confirmed, in circumstances.

Ch. Muhammad Ashraf Jalal for Petitioner.

Muhammad Iqbal Chaudhry, DPG for the State.

Shakoor Ahmad, A.S.-I., Police Station Gulshan Ravi, Lahore.

Asim Khan Sherwani for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 119 #

2011 Y L R 119

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD SARDAR and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No. 803 of 2010, decided on 29th June, 2010.

Specific Relief Act (1 of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1, 2---Suit for declaration with application for grant of temporary injunction--- Concurrent dismissal of suit by Trial Court and Appellate Court---Plaintiffs' contention was that they being allottees were in possession of the disputed land and they had converted the said land into cultivable one but despite that fact proprietary rights had not been given to the plaintiffs---Validity---Disputed land was resumed by the competent authority in the year 1970 and on account of litigation at different forums, the plaintiffs were in possession of the disputed land---Disputed land was put to auction but the plaintiffs did not take part in the auction proceedings---Record revealed that plaintiffs for obtaining injunctive order, filed a constitutional petition which failed and that fact had not been revealed by the plaintiffs in the civil suit, in appeal and before the High Court in revision---Fact that the plaintiffs were legal occupants could not be established through evidence---High Court declined to interfere in concurrent findings of courts below---Revision petition was dismissed in limine.

PLD 1982 Lah. 558; PLD 1983 Kar. 387: 1984 CLC 993; 1985 CLC 457; 1988 CLC 2313; PLD 1970 SC 180 and 1992 CLC 794(DB) ref.

Syed Athar Hassan Bukhari for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 125 #

2011 Y L R 125

[Lahore]

Before Mamoon Rashid Sheikh, J

SHUMAILA RAZA---Petitioner

Versus

DISTRICT OFFICER and others---Respondents

Writ Petition No. 4151 of 2010, decided on 11th May, 2010.

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

----S. 9(2)---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance, grant of---Review---Revision---Scope---Chairman of Arbitration Council had no power of review, only remedy of revision was provided under S.9(2) of Muslim Family Laws Ordinance, 1961---Where the Chairman of Arbitration Council had passed an illegal and undated order of review behind the back of petitioner without providing her with an opportunity of hearing, same was nullity in the eye of law---Revisional order which was a non-speaking order and violative of S.24-A, General Clauses Act, 1897 and was patently time-barred was also not sustainable.

Mst. Hajran Bibi v. Khalid Abbas and others 1991 CLC 831; M. Javed Iqbal v. Mst. Tahira Naveed 2002 CLC 1748 and Razi Ahmad v. Mst. Saima Shafi and others 2004 CLC 637 ref.

Siraj Uz Zaman Taimuri for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 131 #

2011 Y L R 131

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD YOUSAF---Petitioner

Versus

A.S.J. and others---Respondents

Writ Petition No. 3339 of 2010, decided on 3rd May, 2010.

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

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of F.I.R.---Justice of Peace had dismissed the petition of the complainant made under Ss.22-A & 22-B, Cr.P.C., for registration of a case against accused---Validity---Said application of the complainant as well as the medial reports of the injured persons had disclosed the commission of a cognizable offence by the accused---No report in writing had come on record to establish, prima facie, that police officials had raided the house of the complainant for arresting a proclaimed offender---Similarly, prima facie, no evidence existed to establish that the said' proclaimed offender was concealing himself in the house of the complainant---Officer Incharge of the Police Station was legally bound under S.154, Cr.P.C. to reduce into writing every information relating to the commission of a cognizable offence---Impugned order of Justice of Peace that the complainant would not be benefited even if a case was registered against the accused, because the police had not found his allegations as correct, was not in accordance with law---Complainant who had alleged the commission of a cognizable offence not only had a right that his allegation should be recorded under S.154, Cr.P.C., but also had a right that his allegations should be investigated and taken to their logical and legal end---Impugned order was consequently set aside being not sustainable, with the direction to District Police Officer to register an F.I.R. against the accused persons---Constitutional petition was accepted accordingly.

Ishaq Lashari, Inspector v. The State PLD 2009 Kar. 14; Sanaullah v. S.H.O., Police Station Civil Lines, Gujrat and 3 others PLD 2003 Lah. 228 and Ijaz v. Additional Sessions Judge and others 2009 PCr.LJ 724 ref.

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

----Ss. 22-A & 22-B---Powers and duties of the Justice of the Peace---After having received a complaint in respect of non-registration of a case, Ex-officio Justice of the Peace is simply required to direct the police to entertain the complaint and if a cognizable offence is made out, then to proceed in accordance with the provision of S.154, Cr.P.C.---Ex-officio Justice of Peace under no provision of law can direct or even observe with regard to the nature of the offence, the commission of the offence or addition or deletion of relevant provisions of Pakistan Penal Code, as the same conclusively falls within the jurisdiction of Investigating Officer or of the Trial Court at the time of framing of the charge.

Ishaq Lashari, Inspector v. The State PLD 2009 Kar. 14 ref.

Muhammad Arif Awan for Petitioner.

Malik Abdul Aziz Awan, A.A.-G. for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 138 #

2011 Y L R 138

[Lahore]

Before Sh. Ahmad Farooq, J

TARIQ AHMAD FAROOQI---Appellant

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and another---Respondents

S.A.O. No.112 of 2003, heard on 30th June, 2010. .

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

----S.13(6)---Tentative rent deposit order---Striking off defence of tenant and passing of ejectment order for non-compliance with rent order---Landlord's application to Rent Controller to finally determine rent due from tenant and give direction for its payment---Order of Rent Controller dismissing such application directing landlord to recover arrears of rent in accordance with law was upheld by Appellate Authority---Validity---Rent Controller would not become functus officio after striking off defence of tenant and passing an eviction order for his non-compliance with rent order---Proceedings before Rent Controller could not legally conclude till performance of his statutory duty under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 to finally determine rent due from tenant---Rent Controller in order to finally determine rent due would be bound to issue notices to parties and record his findings after providing them an opportunity of hearing or to lead evidence, if required---Impugned orders were against express provisions of second part of S.13(6) of the Ordinance---High Court set aside impugned orders and directed Rent Controller to finally determine rent due from tenant and direct its payment to landlord subject to adjustment of rent deposited by tenant.

Syed Akhlaque Hussain v. Habib Ismail Bajwa, Advocate 1974 SCMR 504; Ghulam Rasool v. Said Rasool and 2 others PLD 1990 Lah. 457; Zafaryab Ali Khan v. Mst. Afsar Begum 1982 CLC 422 and Khawaja Anwar Hassan v. Naveed Ahmad Chaudhary and 2 others PLD 2002 Lah. 355 ref.

Atir Mehmood for Appellant.

Ex parte for Respondent.

Date of hearing: 30th June, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 140 #

2011 Y L R 140

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

AKBAR KHAN---Petitioner

Versus

MUHAMMAD DIN and 2 others---Respondents

Civil Revision No.900 of 2009, decided on 2nd July, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Trial Court dismissed suit---Appellate Court upheld the judgment of Trial Court---Validity---Defendants' application to Tehsildar for marking their attendance on the stipulated date for execution of sale-deed showed that they received Rs.10000 as earnest money negating their version as to denial of receiving said amount---Defendants antedated the application in collusion with the Tehsildar and his Reader---Tehsildar made judicial order on the application but did not make any record of the same; nor did the Sub-Registrar put his signatures on the receipt of the application---Tehsildar made a mockery of law by making false statement in the lower courts which should have taken action against him because he should have acted responsibly as custodian of the public record---Plaintiff proved his case beyond shadow of doubt---Judgments of subordinate courts were set aside---Suit of the plaintiff was decreed subject to deposit of remaining amount of sale price within one month.

Rana Rashid Akram for Petitioner.

Atta Ullah Dogar for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 165 #

2011 Y L R 165

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAFAQAT ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6427/B of 2010, decided on 24th June, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Prevention of Corruption Act (II of 1947), S.5---Penal Code (XLV of 1860), S.161---Criminal misconduct, public servant taking gratification other than legal remuneration in respect of an official act---Bail, grant of---Accused allegedly had received illegal gratification for issuing the copies of the Record of Rights to the complainant---Two "Reports" had been recorded by the accused in the official record, "Roznamcha Waqiati", prior to the registration of the case or raid upon him to the effect that he had demanded and received the amount in question as "Ujrat" from the complainant for issuing to him the requisite copies of the relevant record---Such fact alone available on the record was sufficient to bring the case of accused within the purview of S. 497(2), Cr.P.C. calling for further inquiry into his guilt---Prohibition contained in S.497(1), Cr.P.C. was not attracted against the offences with which the accused was charged and in such a case grant of bail was a rule and refusal an exception---No exceptional circumstance was forthcoming to warrant refusal of bail to accused---Bail was allowed to accused in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Rana Zulfiqar Ali Khan for Petitioner.

Ch. Abdul Razzaq, Deputy Prosecutor-General for the State with Zeeshan Ali Reader with Judicial record.

Abbas Ali, A.S.-I., ACE, Gujranwala with record.

YLR 2011 LAHORE HIGH COURT LAHORE 170 #

2011 Y L R 170

[Lahore]

Before Tariq Javaid and Shaukat Umer Pirzada, JJ

TEHSIL MUNICIPAL OFFICER and another---Appellants

Versus

MAZHAR SALEEM---Respondent

I.C.As. Nos. 216 and 682 in Writ Petition No.5942 of 2009, decided on 24th May, 2010.

Punjab Land Use (Classification, Reclassification and Redevelopment) Rules, 2009---

----R.6(c)---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Single Judge of High Court while allowing the constitutional petition had directed Tehsil .Municipal Officer to issue "No Objection Certificate" to the present respondent for installation of CNG station in the residential area---Validity---Intra-Court Appeal, prima facie, was not maintainable---However, Single Judge had passed the impugned order in undue haste without offering any opportunity to the appellant to file report and comments on the contents of the constitutional petition or even to go through the same---Said petition was presented before the Judge in chamber on 20-7-2009, notice was issued for 23-7-2009 which was conveyed telephonically without copy of the petition and impugned order had been passed on 23-7-2009---Idea of allowing a CNG station in an area of more than one kanal and two Marlas in a thickly populated area of the City could not be reconciled--CNG station had its own hazards which must be taken care of---Punjab Land Use (Classification, Reclassification and Redevelopment) Rules, 2009, had even not been considered while passing the impugned order---Without having resorted to the departmental remedy provided under the said Rules respondent had jumped to the constitutional jurisdiction of High Court wherein an hasty order had been passed---Impugned order was consequently set aside with the direction to the appellant to entertain the application of the petitioner and decide the same within 15 days---If such order was not favour-able to the respondent/petitioner, he should file appeal before departmental authorities under the Rules, which should be decided within 30 days---Intra-Court appeal was disposed of accordingly.

Secretary Education (Schools), Government of Punjab, Civil Secretariat, Lahore and 2 others v. Tariq Mehmood, PTC Teacher 2005 PLC (C.S) 851 and Agha Muzamil Khan through General Attorney and 8 others v. Consolidation Officer, Lahore and 62 others PLD 2005 Lah. 422 ref.

Ch. Muhammad Rafiq for Appellants.

Muhammad Ameer Bhatti for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 179 #

2011 Y L R 179

[Lahore]

Before Ijaz Ahmed Chaudhry, J

MOHSIN RAZA alias KHAN ---Petitioner

Versus

AZMAT ULLAH and another---Respondents

Criminal Revision No. 772 of 2010, decided on 9th July, 2010.

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

---S.7---Penal Code (XLV of 1860), S. 302/109/148/149--- Qatl-e-amd, abetment, rioting armed with deadly weapon---Determination of age---Trial Court had dismissed the application of accused for declaring him minor at the time of occurrence---Validity---Two school leaving certificates had been produced before the Trial Court, one by the accused petitioner and the other by the complainant with different dates of birth of the accused---Each party had obtained the certificate mentioning the date of birth which suited him---Trial Court, therefore, had to refer the matter to Medical Board and the age of accused according to its report was calculated as 18 years two months and 18 days at the time of occurrence---Accused had failed to prove the specific plea qua his age by any specific evidence, as such Trial Court had rightly dismissed his application---

Impugned order did not suffer from any illegality, material irregularity or jurisdictional defect---Revision petition was dismissed in limine in circumstances---However, in view of the divergent assessments of the Member of the Medical Board, question of determination of the age of accused was left open for Trial Court to decide on conclusion of trial, if the specific plea was proved by him regarding his juvenility through some cogent, reliable, unrebutted and convincing evidence---Trial Court in such eventuality would be competent to award proper sentence to accused in view of his age.

Aurang Zaib Marl for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 186 #

2011 YLR 186

[Lahore]

Before Ch. Muhammad Tariq, J

ILYAS ALI----Petitioner

Versus

SECRETARY MINES AND MINERALS PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No. 3843 of 2010, decided on 1st November, 2010.

Punjab Mining Concession Rules, 2002---

----Rr. 208, 234 & 235---West Pakistan Land Revenue Act (XVII of 1967), S.49---Constitution of Pakistan, Arts.199 & 24---Constitutional petition---Maintainability---Auction of land for purpose of excavation of ordinary sand---Contention of petitioner who was a small landholder was that his property was scheduled to be auctioned for purpose of excavation of ordinary sand; whereas the authorities under R.208 of the Punjab Mining Concession Rules, 2002 were bound to give the petitioner an opportunity of negotiating the surface rent of the area to be auctioned for purposes of excavation of ordinary sand-Petitioner had alleged that the authorities had not followed the procedure; and in an arbitrary manner scheduled his property for auction of excavation, which was violative of his rights under Art.24 of the Constitution---Validity---Contention of the petitioner was repelled as it was only mines under the surface of land of the petitioner which was proposed to be auctioned for two years' lease for excavation of sand---Under S.49 of West Pakistan Land Revenue Act, 1967 all the mines and minerals would always be the property of Government wherever they could happen---Petitioner had not denied that under the surface of land owned by him was bulk of sand; however, if the petitioner had any grievance, or if he was to sought redressal of his grievance against the authorities, he could file appeal or revision as provided under Ss.234 & 235 of the Punjab Mining Concession Rules, 2002 and constitutional petition was not a substitute of an appeal or revision.

Ch. Imran Raza Chadhar for Petitioner.

Rana Shamshad Khan, Asst. A.-G., Punjab.

Muhammad Rarnzan, Deputy Director Mines and Mineral Lahore.

YLR 2011 LAHORE HIGH COURT LAHORE 193 #

2011 Y L R 193

[Lahore]

Before Sardar Muhammad Shamim Khan, J

MUHAMMAD ASAD BILAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1020/B of 2010, decided on 27th April, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/376/34/---Qatl-e-amd, rape---Bail, grant of---Case of complainant till the time of registration of F.I.R. was that his son and the cousin of the deceased woman had been searching her, but failed to trace her---Version of the said two prosecution witnesses put forward in their supplementary statement regarding having seen the accused and his co-accused committing the murder of the deceased by strangulating her a day earlier, therefore, required further inquiry---Police according to record had recorded the statements of the aforesaid witnesses after the postmortem examination, regarding identification of the dead body of the deceased by them and thereafter regarding taking of last worn clothes of the deceased by the police in their presence---Said witnesses did not depose to have seen the accused and his brother committing the murder of the deceased---Accused was juvenile and he was behind the bars for the last eleven months without any trial---Admissibility of the supplementary statements of the prosecution witnesses would be seen at the trial by Trial Court---Case regarding the guilt of accused needed further probe--Accused was admitted to bail in circumstances.

Makhdoom Zafar Iqbal Shah for Petitioner.

Nemo for the Complainant.

Rana Kashif Saleem Arfaa, Law Officer.

Noor Ahmad A.S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 206 #

2011 Y L R 206

[Lahore]

Before Ch. Muhammad Tariq, J

IBRAR MERAN---Petitioner

Versus

JUDGE FAMILY COURT, DISTRICT GUJRAT and 2 others---Respondents

Writ Petition No. 8630 of 2010, heard on 29th September, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance---Trial Court decreed the suit while Appellate Court reduced the amount of maintenance---Plaintiff filed execution petition---Executing court ordered arrest of petitioner, who had pursued defendant's cases as `general attorney'---Petitioner, the general attorney of defendant, contended that he could not be arrested for recovery of decretal amount as he was merely general attorney of defendant who was living abroad---Validity---Perusal of general power of attorney showed that petitioner was surety to the judgment-debtor as well as general attorney---Executing Court, in circumstances, had rightly adopted coercive method to recover decretal amount because a surety was presumed to be party to the suit---Petitioner failed to point out any infirmity or illegality in the impugned order---Constitutional petition was dismissed.

Malik Muhammad Jehangir Aslam for Petitioner.

Liaqat Ali Butt for Respondent.

Date of hearing: 29th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 224 #

2011 Y L R 224

[Lahore]

Before Manzoor Ahmed Malik and Hassan Raza Pasha, JJ

MUHAMMAD IDREES---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 60, 63 and Murder Reference No.433 of 2004, decided on 14th July, 2010.

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

----Ss. 302(b), 324, 337-L & 392---Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt and robbery---Appreciation of evidence---Non-mentioning name of accused in the F.I.R. had been sufficiently explained by the prosecution---Occurrence having taken place near the house of the complainant, his presence at the spot was quite natural, who had given full description of the incident in the F.I.R. and before the Court---Injured eye-witness had corroborated the complainant---Eyewitnesses though real brothers of the deceased could not be discredited on that account in the absence of any deep rooted enmity between the parties---Independent witness had deposed about the scuffle in which the accused was injured and overpowered and his statement was supported by the injury statement of the accused---Accused was apprehended at the spot and two pistols and looted cash were recovered from his possession---Crime empties were also recovered from the spot and in this regard report of Forensic Science Laboratory was positive---Recovered cash 'having not been produced before Trial Court, charge under S.392, P.P.C., had remained unsubstantiated and accused had been acquitted of the charge---However, after charges had been proved by the prosecution and convictions and sentences of accused thereunder were upheld---No mitigating circumstance was available in favour of accused and his death sentence was confirmed accordingly.

Farooq Khan v. The State 2008 SCMR 917; Nazir v. The State PLD 1962 SC 269; Shehruddin v. Allhai Rakhio 1989 SCMR 1461; Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484; Muhammad Nasir v. The State 2006 SCMR 161 and Zahid Imran and others v. The State PLD 2006 SC 109 ref.

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

----Ss. 302(b), 324, 337-L & 392---Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt, robbery---Appreciation of evidence---Interested witness---Test of credibility of witness---Principles---Relationship or enmity alone is not enough to discard the testimony of a natural witness or hold him untruthful and untrustworthy---Ultimate test of veracity of a witness is the inherent merit of his own statement.

Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484 ref.

----S.302(b)---Qatl-e-amd---Sentence---In a proved murder case, in absence of strong extenuating circumstances, normal sentence is death---Deterrent punishment in such cases are to be awarded to make an example for others to maintain peace and tranquility in society.

Zahid Imran and others v. The State PLD 2006 SC 109 ref.

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

----S.302(b)---Qalt-e-amd---Solitary fatal below---Sentence---In the case of solitary fatal blow awarding of lesser sentence is not a universal rule, as Courts have to take notice of the seat of injury, weapon and damage done together with the relevant knowledge, preparation, intention or premeditation, which are the relevant factors to be considered while awarding lesser sentence.

Muhammad Nasir v. The State 2006 SCMR 161 ref.

Muhammad Ilyas Siddiqui for Appellant.

Sh. Munir Ahmad, DPG for the State.

Sardar Muhammad Ishaque Khan for the Complainant.

Dates of hearing: 13th and 14th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 236 #

2011 Y L R 236

[Lahore]

Before Sh. Ahmad Farooq, J

HAIDER SHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9050-B of 2010, decided on 20th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395/458/412---Dacotiy, house trespass by night after preparation for hurt, assault or wrongful restraint, dishonestly receiving property stolen in commission of dacoity---Bail, refusal of---Prosecution witnesses including the complainant had identified the accused during identification parade---Pistol and some cash had been recovered from the accused as looted property, which prima facie, had connected him with the offence---Co-accused having not been identified by prosecution witnesses in identification parade, their case was not identical with the case of accused---Said co-accused had been released on bail after their incarceration for a period of one year and more than two years, whereas present accused had remained absconder for more than two years and was behind the bars for the last only about five months---Two other cases under S.380, P.P.C. and S.13 of the West Pakistan Arms Ordinance, 1965, also stood registered against the accused and in case of his release on bail, he was likely to again abscond or repeat the offence---Offences under Ss.395 and 458, P.P.C. fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Saif Ullah Khan for Petitioner.

Muhammad Iqbal Chaudhry, D.P.G. with Maqbool, S.-I. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 242 #

2011 Y L R 242

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

M. RASHID---Petitioner

Versus

SHAH MUHAMMAD---Respondent

Criminal Miscellaneous No. 309-C/B of 2009, decided on 14th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149--- Qatl-e-amd--- Cancellation of bail, petition for---Accused being of the age of more than 69 years, his case was covered under the proviso to S.497, Cr.P.C., being person of old age and an infirm person---No overt act of causing any injury to the body of the deceased was attributed to the accused---Considerations for grant of post-arrest and pre-arrest bail were entirely different---Once bail was granted after exercising discretionary power, special circumstances were required for cancellation of the same---No evidence was available to the effect that accused misused the concession of bail allowed by the Trial Court, except the affidavit of the complainant himself in support of contention that concession of bail was misused---No affidavit of any independent witness was produced---In absence of any ground for cancellation of the bail, post-arrest bail granted to accused by the Trial Court was maintained intact.

Altaf Ibrahim Qureshi for Petitioner.

Shahid Iqbal, DDPP for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 244 #

2011 Y L R 244

[Lahore]

Before Syed Akhlaq Ahmad, J

NABI BAKHSH---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary to Government of Punjab Home

Department, Lahore and 5 others--- Respondents

Writ Petition No. 7125 of 2010, decided on 14th July, 2010.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S.3---Constitution of Pakistan, Art. 199---Constitutional petition---Illegal detention---District Coordination Officer on the recommendation of District Police Officer had ordered the detention of the brother-in-law of the petitioner for a period of one month, on the grounds of cattle lifting at large scale, involvement in anti-social activities and in eleven cases of theft---Last case was registered against the detenu, according to the list, ten years back and since then till present date no case whatsoever had been registered against him---Police had not collected any material to justify the detention of the detenu---Detention order was violative of the safeguards and requirements provided in the West Pakistan Maintenance of Public Order Ordinance, 1960, and impugned upon the fundamental rights of the citizens guaranteed by the Constitution---Impugned order being illegal and without lawful authority was set aside and the detenu was ordered to be released accordingly.

Arbab Akhar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi PLD 2005 Kar. 538 ref.

Ch. Khawar Sadique Sahi for Petitioner.

Petitioner in Person.

Rana Muhammad Hussain, A.A.-G. for the State.

Nasrullah Inspector and Muhammad Ashraf S.-I. Police Station, Harrappa District Sahiwal along with record.

YLR 2011 LAHORE HIGH COURT LAHORE 253 #

2011 Y L R 253

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD HANIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6923-B of 2010, decided on 4th August, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.365-B---Kidnapping, abducting or inducing woman to compel for marriage etc. ---Pre-arrest bail, grant of---Accused had placed on record a copy of "Nikahnama" showing his marriage with the alleged abductee, complainant in the case---Secretary, Union Council concerned, had issued a certificate regarding the said marriage---Accused had obtained an ex parte decree for restitution of conjugal rights against the complainant--Complainant had also instituted a suit for jactitation of marriage against the accused---Accused and complainant were closely related to each other---Litigation between the parties, particularly regarding genuineness of the said "Nikahnama", had made the case against accused doubtful, benefit of which had to be given to him even at bail stage---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

Nasir Ahmad Awan for Petitioner.

Muhammad Iqbal Chaudhry D.P.G. for the State with Muhammad Akhtar, A.S.-I.

Ch. Arshad Iqbal Bhullar, with Mst. Zubaida Bibi for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 258 #

2011 Y L R 258

[Lahore]

Before Tariq Javaid, J

SUI NORTHERN GAS PIPELINES LTD. through Deputy Chief Law Officer---

Petitioner

Versus

MUHAMMAD SARWAR---Respondent

Civil Revision No. 122 of 2004, heard on 12th October, 2010.

Contract Act (IX of 1872)---

----Ss. 37 & 40---Rescission of contract---Contention of the petitioner was that under one of clauses of contract for the supply of natural gas, petitioners were entitled to rescind the contract as soon as the property where gas was provided was sold to a third person---Contention was repelled as supply of natural gas, electricity and telephone connection, were basic necessities; once a person had purchased a property where such essential services or utilities were provided, the purchaser would step into the shoes of the previous owners and would become privy to the contract entered between the previous landlord and supplier of utilities and essential service---Soon after the purchase of property by the respondents, it had not been shown that the petitioner had any intention to revoke his contract; in such a case supply of essential services and utilities could not be discontinued---Supplier of such services could not pick and choose between the customers---Such utilities and services were a rational resources and the suppliers of such services were under obligation to provide the facility to the citizens---Concerned authority had no lawful right to disconnect the services at their own whims and then claim that under the contract they were not bound to supply the gas to a subsequent vendee.

Umar Sharif for Petitioner.

Nemo for Respondent.

Date of hearing: 12th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 260 #

2011 Y L R 260

[Lahore]

Before Sh. Najam-ul-Hassan, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 15408-B of 2009, decided on 15th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 4S 7/380/427/337-H(ii), 148 & 149---Lurking house-trespass, theft, mischief, rash and negligent act---Bail, grant of---Further inquiry---So many persons had been involved as accused, which made the prosecution case doubtful---Nothing had been recovered from accused---Unexplained delay of three months in lodging F.I.R., which had created doubt in the prosecution case---Prosecution was supposed to establish that accused was involved in the case, but no evidence was available on the record, except that of ocular evidence against so many persons including accused---Ten co-accused were still behind the bars and a number of them were not even arrested---Accused was no more required to the Police for further investigation---Offence did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was behind the bars for the last four months---No useful purpose would be served to keep the accused in jail for indefinite period---Case of accused having become that of further inquiry, he was admitted to bail, in circumstances.

Javed Iqbal Rana for Petitioner.

Muhammad Iqbal Chaudhry, D.P.G. for the State.

Muhammad Hanif Niazi for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 266 #

2011 Y L R 266

[Lahore]

Before Syed Akhlaq Ahmad, J

Mst. TAHIRA PERVEEN---Petitioner

Versus

Syed HASNAIN RAZA GILLANI and another---Respondents

Writ Petition No. 21470 of 2010, decided on 8th October, 2010.

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

----S. 5, Sched., Ss.9(2) & 14(3)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Suit for dissolution of marriage, maintenance, recovery of dower etc.---Appeal against order of Trial Court accepting defendant's application for producing documents---Validity---No appeal or revision was competent against interlocutory order of Family Court under S.14(3) of West Pakistan Family Courts Act, 1964---Interim order of Family Court could not be challenged in High Court in constitutional jurisdiction under Art.199 of the Constitution either---Constitutional petition was, therefore, dismissed in limine.

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

----S. 14(3)---Scope and application of S.14(3) of West Pakistan Family Courts Act, 1964---No appeal or revision was competent against interlocutory order of Family Court under S.14(3) of West Pakistan Family Courts Act, 1964.

PLD 1975 Lah. 318 ref.

S. Azharul Hassan Naqvi v. Mst. Hamida Bibi and 2 others 1979 CLC 754 and Muhammad Akram v. Mst. Raheela Aslam and 2 others PLD 1999 Lah. 33 rel.

Muhammad Aslam Zar for Petitioner

2011 Y L R 296

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. NAZIRAN BIBI---Petitioner

Versus

ABDUL and 5 others---Respondents

Writ Petition No. 362 of 2010, heard on 14th May, 2010.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Illegal dispossession---Petitioner had sought setting aside of the order passed by the Trial Court whereby her complaint filed under S.3 of Illegal Dispossession Act, 2005, was dismissed---Petitioner alleged that she was lawful owner in possession of the property and that the respondents had taken possession thereof forcibly---Only oral assertion of the petitioner with regard to taking of forcible possession by the respondents was available on record and no material was available to substantiate the oral assertion, from where it could be established that petitioner was in possession of said property before filing the complaint---Contrary to that, the respondents had supplied sufficient material showing that they were in possession of the property being co-sharers---In spite of having adopting civil procedure, the petitioner had also chosen to take possession through Illegal Dispossession Act, 2005---As petitioner had no documentary evidence in her support which could establish that she was ever in possession of the property, her oral assertion could not be made basis for entertaining the application filed under S.3 of Illegal Dispossession Act, 2005---No interference was required in the order passed by the Trial Court.

Muhammad Amin Goraya for Petitioner.

Zaheer-ul-Hassan Zahoor for Respondents Nos. 1 to 4.

Date of hearing: 14th May, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 301 #

2011 Y L R 301

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD AMIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous go. 9355-B of 2010, decided on 17th September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/148/149--- Qatl-e-amd, rioting armed with deadly weapon---Bail, grant of---Despite two directions given by High Court, Trial Court had failed to decide the case within the specified period---Attested copies of the interim orders of Trial Court had, prima facie, established that complainant was not appearing before the Court to get her statement recorded as a prosecution witness in the case and as such Trial Court was constrained to declare her as a proclaimed offender---Accused was behind the bars for the last about four years and his further detention in jail would not advance the prosecution case--Post-arrest bail could not be refused to accused as a measure of advance punishment---Delay in conclusion of the trial was, prima facie, not attributable to accused---Sufficient grounds also existed for further inquiry into the guilty of accused---Bail was allowed to accused in circumstances.

Nawab Ali Meo for Petitioner.

Muhammad Iqbal Chaudhry, DPG with Muhammad Azam, A.S.-I. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 303 #

2011 Y L R 303

[Lahore]

Before Najam ul Hasan and Muhammad Anwaarul Haq, JJ

MUSHTAQ AHMAD alias MUSTAFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.445-J of 2006, Murder Reference No. 97 of 2005 and Criminal Revision No. 406 of 2007, heard on 1st July, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapon, offence committed by member of unlawful assembly in prosecution of common object---Appreciation of evidence---Benefit of doubt---Complainant's argument that he could not nominate the accused in F.I.R. due to shock and trauma was not convincing especially in view of delay of 8 hours in lodging of F.I.R. ---Had complainant and the eye-witnesses identified the real culprit at the time of occurrence they would have nominated him in the F.I.R.---Eye-witnesses were not present at the place of occurrence---Evidence of witnesses could not be believed as they made dishonest improvements by introducing availability of electric bulb which they omitted to mention in the F.I.R.---Prosecution had failed to substantiate the alleged motive--Where prosecution set up a motive but failed to prove the same, prosecution, and not the accused, would suffer the consequences---Report of the S.H.O. to Police high-ups for sniffer dogs and foot trackers to trace the real accused severely dented complainant's claim of nominating the accused in supplementary statement on the same day---Failure of prosecution to produce opinion of the doctor as to capability of the injured to record the statement and recovery of hatcket without blood stains created doubts about accused's involvement in the commission of crime---Benefit of doubt was extended to accused---Appeal was accepted and accused was acquitted of the charge---Murder Reference was answered in the negative and death sentence was not confirmed.

Khalid Javed and another v. The State 2003 SCMR 1419; Akhtar Ali and others v. The State 2008 SCMR 6; Noor Muhammad v. The State and another 2010 SCMR 97 and Muhammad Akram v. The State 2009 SCMR 230 fol.

Muhammad Anwar Khokhar Defence Counsel at State Expense for Appellant (in Criminal Appeal No.445-J of 2006).

Qazi Zafar Iqbal, Additional Prosecutor-General for the State.

Akhtar Hussain Bhatti for the Complainant (in Criminal Revision No.406 of 2007).

Date of hearing: 1st July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 327 #

2011 Y L R 327

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

Writ Petition No. 2727 of 2009, decided on 1st July, 2010.

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

----S.5, Sched. & S.8---Suit for recovery of maintenance allowance---Passing of ex parte decree on 1-11-1999---First application for setting aside such decree dismissed for non- prosecution --- Second application for setting aside such decree filed on 18-9-2000---Validity---Defendant instead of filing an application for restoration of first application had filed second application, which was neither maintainable wider law nor within time---Second application was dismissed in circumstances.

Tariq Muhammad Iqbal Chaudhry for Petitioner.

Syed Liaqat Ali Shah for Respondent No.3.

Aurangzeb Khan A.A.-G. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 337 #

2011 Y L R 337

[Lahore]

Before Sh. Ahmad Farooq, J

PAKISTAN ENGINEERING COMPANY LTD. through Managing Director and 2 others---Petitioners

Versus

DIRECTOR GENERAL, F.I.A. ISLAMABAD, and 3 others---Respondents

Writ Petition No. 16446 of 2010, heard on 29th October, 2010.

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

----S. 406---Federal Investigation Agency Act (VIII of 1974), Preamble & S.2(e)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Criminal breach of trust---Notice for inquiry---Petitioner Company had called in question the legality of a notice for enquiry issued by the Assistant Director, Federal Investigation Agency; as well as the proceedings being conducted thereon---Maintainability of constitutional petition had been challenged by respondent contending that Federal Government having complete administrative control over the affairs of the petitioner company, FIA had jurisdiction to register and investigate the case and that offence of criminal breach of trust was made out against the petitioner company and same was included in the Schedule of Federal Investigation Agency Act, 1974---Validity---Held, there being business dealings of sale and purchase between the parties, dispute between the parties was purely of civil nature and F.I.A. had got no jurisdiction to conduct an inquiry/investigation in the matter---Impugned notice and the proceedings conducted thereon, were declared to be without jurisdiction and lawful authority.

(b) Constitution of Pakistan---

----Arts. 4 & 18---Right of individual to be dealt with in accordance with law and freedom of trade, business or profession Every citizen has a right to be treated in accordance with law---Freedom of trade, business or profession has been protected under Art.18 of the Constitution subject to such qualifications as could be prescribed by law in that respect.

Adam Jee Insurance Company Ltd. and others v. Assistant Director Economic Enquiry Wing Federal Investigating Agency 1989 PCr.LJ 1921; Muhammad Irshad Khan v. Chairman, National Accountability Bureau and 2 others 2007 PCr.LJ 1957; Chairman National Accountability Bureau and another v. Muhammad Irshad Khan 2008 SCMR 1012 and Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another 2010 SCMR 624 ref.

----Preamble, S. 2(e)---Object and applicability of Federal Investigation Agency Act, 1974---Scope---Object of Federal Investigation Agency Act, 1974 was to set up an Investigation Agency for the offences committed in connection with matters concerning the Federal Government; and matters connected therewith---Complaint lodged in the case had no nexus with such object---Neither any employee of the Federal Government was involved, nor the petitioner company was under the administrative control of Federal Government; nor any loss had occurred to the Federal Government---FIA, in circumstances had no authority and jurisdiction to take cognizance of the matter.

Iftikhar Hussain and others v. Government of Pakistan and others NLR 1996 AC 193; Zafar Iqbal and 3 others v. Ghulam Abid and 2 others 1995 MLD 1285; Dr. Syed Rehmat v. Deputy Director F.I.A. 1999 PCr.LJ 1549 and Printing Corporation of Pakistan v. Province of Sindh and others PLD 990 SC 452 ref.

Muhammad Amjad Parvaiz for Petitioner.

Abdul Sami Qureshi for Respondent No.4.

Khalid Anees, Assistant Director, F. l A., Lahore/respondent No. 3 in person.

Date of hearing: 29th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 348 #

2011 Y L R 348

[Lahore]

Before Mamoon Rashid Sheikh, J

NADEEM IQBAL---Petitioner

Versus

MUHAMMAD KABIR KHAN and 2 others---Respondents

Writ Petition No. 14089 of 2010, decided on 1st July, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition seeking issuance of a writ in the nature of habeas corpus in case of custody of minor---High Court, in the exercise of its extraordinary constitutional jurisdiction, normally does not go into disputed question of facts and declines holding a detailed inquiry---High Court, in its inherent jurisdiction, can and does pass order in the welfare and best interest of the minor---Where a minor was of tender/suckling age, in the absence of her mother (who had died), the maternal grandmother had a preferential right to the minor's custody.

Section 353 of D.F. Mulla's Principles of Mohemedan Law and Mst. Khalida Parveen v. Sultan Mahmood and others PLD 2004 SC 1 ref.

Shabbir Ahmad Khan for Petitioner.

Mian Ghulam Rasool Mujahid along with Respondents Nos. 1 and 2.

Kalim Ilyas, Assistant Advocate-General Punjab.

Waheed Shahid, Inspector/S.H.O., Police Station Sadar Jhang.

YLR 2011 LAHORE HIGH COURT LAHORE 353 #

2011 Y L R 353

[Lahore]

Before Sh. Ahmad Farooq, J

NASIR AMIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.11386-B of 2010, decided on 20th October, 2010.

Criminal Procedure Code (V of 898)---

----S.497---Penal Code (XLV of 1860), Ss.371-B/294---Qanun-e-Shahadat (10 of 1984), Art. 38---Buying person for purposes of prostitution obscene acts and songs---Bail, grant of---Benefit of doubt---Confession made by accused before the complainant police officer was inadmissible in evidence according to Article 38 of the Qanun-e-Shahadat, 1984---Accused was not alleged to have provided any woman to his friend for prostitution or illicit intercourse---Said person had simply used the house of accused for prostitution and as such applicability of S. 371-B, P.P.C. in the case of accused was doubtful---Mere preparation of a CD (compact disc.) of any person indulging in sexual intercourse did not, prima facie, fall within the mischief of said section---Guilt of accused needed further probe---Benefit of doubt had to be given to accused even at bail stage and the same could not be refused to him as advance punishment---Accused ' was admitted to bail in circumstances.

Sarfraz Hussain for Petitioner.

Muhammad Naeem Sheikh, Deputy Prosecutor-General with Safdar, S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 359 #

2011 Y L R 359

[Lahore]

Before Sh. Najam ul Hasan and Muhammad Anwaarul Haq, JJ

SHAHID alias KAKA CHAND---Petitioner

Versus

THE STATE---Respondent

Criminal Appeals Nos. 792 of 2009 331 and M.R. No. 336 of 2005, heard on 22nd September, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Specific plea of sudden provocation and self defence taken by accused was not proved by him, as required under Article 121 of the Qanun-e-Shahadat, 1984, and he even did not appear as his own witness to disprove the allegation levelled against him under S.340(2), Cr. P. C. ---Accused was specifically nominated in the promptly lodged F.I.R. with a specific role---Ocular testimony was consistent, straight forward and had no material discrepancy or contradiction---Eye witnesses had no personal grudge or ill will for false implication of accused in the case and they had reasonably explained their presence at the scene of occurrence---Prosecution evidence was worth reliance and was corroborated by medical evidence---Recovery of "Chhuri" along with positive reports of Chemical Examiner and Serologist had further supported the prosecution version---Conviction of accused was maintained in circumstance-F.I.R. itself contained a valid ground for mitigation in favour of accused, as he had acted on the instigation of his mother at the time of occurrence---Accused was 23/24 years of age and his action under the influence of his co-accused parents could not be ruled out in the peculiar circumstances of the case---Death sentence of accused was altered to imprisonment for life in circumstances.

Noor Muhammad v. The State 1988 SCMR 1640; Tariq and 2 others v. The State 1995 SCMR 168; Mst. Hafeezan Bibi v. Muhammad Tufail and others 1995 SCMR 256 and Nazeer Ahmad v. The State 1999 SCMR 396 ref.

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

----S.302(b)---Qanune-e-Shahadat (10 of 1984), Art. 121---Qatl-e-amd---Defence plea---Burden of proof---When an accused takes a special plea in his defence, he has !to prove the same under Article 121 of Qanune-e-Shahadat, 1984, but the basic burden to prove. its case beyond any shadow of doubt still remains on the prosecution.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence reduction in---Mitigating circumstances---"Lalkara" of the father or the mother can be treated as a mitigating circumstance for lesser sentence, especially where accused is of young age.

Malik Saeed Hassan with Dr. Khalid Ranjha for Appellant (in Criminal Appeal No.792 of 2009).

Nazir Ahmad Ghazi for Appellant (in Criminal Appeal No.331 of 2005) for the Complainant (in Criminal Appeal No.792 of 2009).

Qazi Zafar Iqbal, Additional Prosecutor-General for the State.

Date of hearing: 22nd September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 368 #

2011 Y L R 368

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Revision No. 897 of 2010, heard on 21st September, 2010.

Penal Code (XLV of 1860)---

----Ss. 337-A(ii), 37-A(iv), 337-F(iv) & 337-L(2)---Criminal Procedure Code (V of 1898), S.364---Hurts `Shajjah' Ghayrjafiah etc. caused---Accused had been convicted and sentenced by trial Court on his confessional statement made during trial---Validity---While the trial in the case was proceeding transparently accused abruptly of his own got recorded his confessional statement admitting his guilt and signed the same---Trial Court thereafter recorded memorandum of inquiry putting four questions to accused, which he replied in affirmative categorically stating that he had made confession without any coercion---At the end of the memorandum of inquiry Trial Court had certified the factum of making confession by the accused---Trial Court having acted in accordance with the provisions of S.364, Cr.P.C. had not committed any illegality or material irregularity and had rightly convicted and sentenced the accused on the basis of his confessional statement---Accused could confess his guilt at any stage of the trial under the law and Trial Court could not refuse to record his confessional statement---Even otherwise, prosecution evidence of five witnesses recorded prior to the confession of accused had suggested his guilt---Impugned judgments, thus, warranted no interference---Revision petition was dismissed accordingly.

S.K. Chaudhry for Petitioner.

Ch Amjid Hussain, D.P.G. for the State.

Date of hearing: 21st September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 380 #

2011 Y L R 380

[Lahore]

Before Sagheer Ahmed Qadri, J

MUKHTAR BEGUM and others---Petitioners

Versus

UNIVERSITY OF THE PUNJAB and others---Respondents

Writ Petition No. 3913 of 2010, decided on 8th October, 2010.

Calendar of University of the Punjab---

----Volume-II, Chapter-I, Part-IX, Pages 473-474---Constitution of Pakistan, Arts.199, 4, 8 & 25---Constitutional petition---Petitioners, private candidates for B.Ed. examination, contended that they were required by the university to submit their original C. T certificates for appearance in the said examination whereas regular candidates were exempted from the said condition; and that the categorization of candidates in that manner amounted to discrimination and was violative of Arts.4, 8 and 25 of the Constitution---Validity---Regular candidates were not required to submit C.T certificates as they had completed one academic year of teacher training at College of Education affiliated with the university---Petitioners/private candidates were required to submit C. T certificates to ensure that they, like regular candidates, had also completed at least one year of teacher training required for passing the C.T. examination---Classification of regular and private candidates in two categories, therefore, was not discrimination but was well in line with the principles of reasonable classification based on intelligible differentia---Constitutional petition was dismissed for being devoid of any merits.

I.S. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 fol.

Aqsa Manzoor v. University of Health Sceiences, Lahore Through Vice Chancellor and 3 others PLD 2006 Lah. 482; Rashid Nawaz and 7 others v. University of the Punjab through Vice-Chancellor, Lahore and 3 others PLD 2007 Lah. 78; Muhammad Afzal v. Bahauddin Zakariya University, Multan through Vice Chancellor and 2 others 2007 CLC 1025 and Rana Saeed Ahmad v. The Controller of Examination, Bahauddin Zakariya University, Multan 1996 SCMR 792 ref.

Tariq Hassain Khan for Petitioners.

Shahzad Shaukat and M.D. Shahzad, Legal Advisors for Respondent.

Faisal Ijaz, Assistant Controller of Examinations with record.

YLR 2011 LAHORE HIGH COURT LAHORE 386 #

2011 Y L R 386

[Lahore]

Before Ijaz Ahmed, J

SOHAIL KHAN---Petitioner

Versus

TARIQ MEHMOOD KHAN and others---Respondents

Criminal Miscellaneous No. 733-CB of 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.161/409/420---Prevention of Corruption Act (II of 1947), S.5-Public Servant taking gratification, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, criminal misconduct---Cancellation of pre-arrest bail---When the vendor was too old and incapacitated both mentally and physically, sanctioning of mutations in the revenue estate would attain real importance---Vendees and the identifiers in all the mutations had been changing their positions---Vendor being of advanced age and incapacitated was not only in the care and custody of the respondents but also at their mercy and a notional fiduciary relationship had been created between them---Respondents taking the benefit of said relationship had transferred the land in their favour against the consideration of a huge amount, which the record did not show to have been paid or received---One of the respondents in such a situation when the vendor had been deprived of his property, had come into play to deprive the complainant of any money left in the treasury of the family---Complainant or the prosecution were not stated to be motivated by any mala fides in order to initiate the criminal proceedings against the accused---Pre-arrest bail was meant to safeguard the respectable citizens against harassment and humiliation and the accused respondents were not entitled to such concession---Pre-arrest bail granted to accused by trial Court was recalled in circumstances.

Hakim Khan v. Nazeer Ahmed Lughmani and 10 others 1992 SCMR 1832; Muhammad Ishaq and 2 others v. Ghafoor Khan and another 2000 SCMR 519; Abdul Basit Bajwa v. The State 2008 YLR 2953 and Mian Dad v. The State and another 1992 SCMR 1286 ref.

Syed Zulifqar Abbas Naqvi for Petitioner.

Sardar Shaukat Hayat Khan and Muhammad Tariq Khan Yousaf Zai, for Respondents Nos. 1 and 2.

Munir Ahmed Kiani for Respondent No.5.

Muhammad Siddique Awan for Respondents Nos. 3 and 4.

Respondents Nos. 1 to 7 in person. Khawaja Sohail Iqbal, learned D.P.-G.

Saukat Ali Shah Litigation Officer Anti-Corruption, Attock.

YLR 2011 LAHORE HIGH COURT LAHORE 392 #

2011 Y L R 392

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD HUSSAIN and others---Petitioners

Versus

SECRETARY and others---Respondents

Writ Petition No. 902 of 2005, decided on 5th October, 2010.

(a) Evacuee Trust Property (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 10---Constitution of Pakistan, Art. 199--Constitutional petition---Cancellation of transfer order, proceedings for---Appointment of Local Commissioner for getting measurement of suit property in the light of Excise and Taxation Register---Report of Local Commissioner showing measurement of suit property mentioned in Excise and Taxation record to be incorrect---Cancellation of transfer order by Chairman Evacuee Trust Property Board on basis of such report without inviting objections of parties thereto or providing them an opportunity to prove their case---Validity---Opportunity of hearing to a party was not just a formality, rather there must be a meaningful consideration by Court or Tribunal of the submissions made by the parties---Local Commissioner had travelled beyond scope of reference before him as Chairman had not directed him to further demarcate suit property---High Court set aside impugned order and remanded case to Chairman to proceed with case in accordance with law from stage of filing of report by Local Commissioner.

Muhammad Bakhsh v. Nazim Din PLD 1978 Lah. 31 ref.

Zahid Iqbal Raza v. The Controller of Examination, University of the Punjab Lahore PLD 1975 Lah. 1385 rel.

(b) Natural justice, principles of---

----Opportunity of hearing to a party---Scope---Such opportunity is not just a formality, but should be a meaningful consideration by Court or Tribunal of the submissions made by parties before disposing of any lis.

Zahid Iqbal Raza v. The Controller of Examination, University of the Punjab Lahore PLD 1975 Lah. 1385 rel.

Hafiz Saeed Ahmad Sheikh for Petitioners.

Farrukh Naz Mirza for Respondents Nos. 1 to 3.

Sh. Iftikhar Ahmad, for Respondents Nos. 4-A to 4-F.

M. Basharat, Assistant Legal ETPB.

YLR 2011 LAHORE HIGH COURT LAHORE 402 #

2011 Y L R 402

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

ABDUL JABBAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7980-B of 2010, decided on 2nd August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51---Possession of narcotics---Bail, grant of---700 grams of charas was allegedly recovered from the possession of accused and he was liable to be tried under S.9(b) of Control of Narcotic Substances Act, 1997, which did not fall within the prohibition contained in S.51 of Control of Norcotic Substances Act, 1997---Accused was behind the bars for the last four months and was not required by the Police for further investigation---Case being fit for grant of bail, accused was admitted to bail, in circumstances.

Saif ul Haq, Zia, for Petitioner.

Ch. Muhammad Sarwar Sindhu, D.P.G. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 404 #

2011 Y L R 404

[Lahore]

Before Mian Shahid Iqbal, J

ARSHAD ALI and another---Petitioners

Versus

MUSHTAQ AHMAD and 3 others---Respondents

Civil Revision No. 720 of 2003, heard on 20th July, 2010.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Plaintiffs filed suit for specific performance of agreement to sell on the ground that they had paid an amount of Rs.63,438 as an earnest money in respect of the disputed property--Defendants contested suit and stated that they had not received any amount regarding the agreement to sell---Trial Court dismissed suit of the plaintiffs---Appeal filed by plaintiffs was allowed by Appellate Court and judgment and decree of the Trial Court was set aside---Contention raised by the defendants was that signatures on the alleged agreement to sell were disguised on the basis of Patta to be executed and they had never signed it purporting same to be a sale agreement---Defendants further contended that the disputed document which contained fiscal matter was to be proved under Arts.17 and 79 of Qanun-e-Shahadat, 1984---Validity---Plaintiffs produced one of the attesting witnesses out of three; even the said witness in cross-examination contradicted the stance of the plaintiffs that payment of Rs.5000 was made to one of the defendants---One of the plaintiffs' witnesses stated in his cross-examination that no amount was given in his presence--In presence of only one witness produced by the plaintiffs, Appellate Court should have attended to such part of evidence before reversing the judgment on this issue---Visible contradiction was over-looked by the Appellate Court while reversing finding of the Trial Court---High Court allowed revisional petition and set aside the judgment and decree of the Appellate Court.

Muhammad Amin v. Ghulam Muhammad, PLD 1993 Lah. 569; Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others PLD 2007 Lah. 254; Muhammad Anwar Bedar and others v. Muhammad Aslam Pervez and others 1996 CLC 385 and Maqsood Ahmad and others v. Sultan Ali PLD 2003 SC 31 ref.

Muhammad Amin v. Ghulam Muhammad PLD 1993 Lah. 569; Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others PLD 2007 Lah. 254; PLD 1995 Lah. 395; 2002 SCMR 1089; 2002 CLC Lah. 88; PLD 2003 CLC Lah. 485 and PLD 2003 SC 31 rel.

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

----S. 12---Suit filed on the basis of an agreement to sell---Stamp paper was sold on 19-3-1995 and was endorsed on back of the same on 27-3-1995---Effect---Two dates were sufficient to create doubt in the mind as to how a document had to be executed prior to issuance of the same unless and until some oral or documentary evidence had been placed on record to make the deficiency which the said different dates had created.

----S. 12---Suit for specific performance of agreement to sell---Contention of the party that facts narrated in the plaint by plaintiffs was to stand on its own legs and the lower Appellate Court while reversing findings of the Trial Court on different issues, had discussed mostly the shortcoming of the defendants; the Plaintiff had to prove his case independently---Validity---Held, a person who alleges should prove the same.

Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others 2003 MLD 131 and Badar Zaman v. Sultan 1996 CLC 202 ref.

Muhammad Yaqoob Chaudhry for Petitioner.

Nemo for Respondent.

Date of hearing: 20th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 415 #

2011 Y L R 415

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Waqar Hassan Mir, J

MUHAMMAD RAFIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 37-J of 2006, and M.R. No. 250 of 2005, decided on 3rd August, 2010.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Case was of promptly lodged F.I.R.---Single injury caused to the deceased, which proved fatal, was attributed to the accused---Weapon of offence i.e. sickle was recovered from the accused---Accused had admitted his presence at the spot and he also admitted his grappling with the deceased, but had stated that sickle had fallen down and deceased fell on the sickle and was injured---Such part of version of accused was totally unbelievable---Occurrence in the case, however had taken place at the spur of the moment---Case was not that of premeditated murder and the weapon of offence was also unconventional; and further, it was a case of single injury---Case, in circumstances, was not that of capital sentence---Conviction of accused under S.302(b), P.P.C. as well as the compensation, were maintained, but the death sentence was altered to life imprisonment.

Agha I.A. Imran for Appellant.

Syed Faisal Raza Bokhari, Deputy Prosecutor-General for Respondent.

Date of hearing: 3rd August, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 418 #

2011 Y L R 418

[Lahore]

Before Mian Shahid Iqbal, J

RIAZ---Petitioner

Versus

SUPERINTENDENT, CENTRAL JAIL, LAHORE and another---Respondents

Writ Petition No. 15381 of 2010, decided on 16th July, 2010.

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

----S. 380---Foreigners Act (XXXI of 1946), S.3---Constitution of Pakistan, Art. 199-Theft in dwelling house---Constitutional petition---Accused, a foreigner, was not released by Jail Superintendent despite grant of bail by the Magistrate due to internment order by Home Department--Accused contended that he could be detained under S.3 of the Foreigners Act, 1946 if he had been involved in anti-State activities---Validity---Having entered and stayed in Pakistan on the basis of valid visa, accused was entitled to all the protections enjoyed by foreigners in Pakistan under law---Federal or Provincial Government was empowered to issue detention order under S.3 of the Foreigners Act, 1946 against a person involved in activities against the State if sufficient material was available on record against such persons--Authority issuing detention order failed to place sufficient material to invoke section 3 of the Foreigners Act, 1946 and the said internment order was based on a letter related to detention of convicts till repatriation to their countries whereas the accused was detained on the basis of alleged recovery made from him and was not convicted yet---Detention of the accused was, therefore, illegal and without lawful authority---Internment order after grant of bail was quashed in circumstances.

(b) Foreigners Act (XXXI of 1946)---

----S. 3---Scope and application of S.3, Foreigners Act, 1946---Provisions of S.3 of the Foreigners Act, 1946 could only be invoked if sufficient material was available against a foreigner accused of involvement in anti-State activities.

Sardar Muhammad Abbas Wattoo for Petitioner.

Izhar-ul-Haq Toor, Asstt: A.-G.

Syed Tanvir Ahmed Hashmi, D.A.G.

Nazir Ahmed Section Officer, Ministry of Interior, Government of Pakistan.

Zawar Hussain Section Officer Home Department Government of Punjab.

Shahid Riaz Khan, DSP, Central Jail along with petitioner in hand-cuffs.

Muhammad Arshad A.S.-I. Police Station Naulakha Lahore Ghulam Rasool A.S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 424 #

2011 Y L R 424

[Lahore]

Before Syed Akhlaq Ahmad, J

MUNIR AHMAD---Petitioner

Versus

BASHIRAN BIBI and 3 others---Respondents

Writ Petition No. 24133 of 2010, decided on 12th November, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for recovery of maintenance and dowry---Dismissal of suit---Plaintiffs who were wife and minor daughter of the defendant, filed suit for recovery of maintenance amount @ Rs.5,000 per head per month and recovery of articles of dowry Rs.78,100---Family Court and Appellate Court decreed the suit allowing maintenance amount Rs.2,000 per month to wife; Rs.1500 to the minor daughter and wife was also allowed to recover dowry amount of Rs.40,000---Defendant challenged said concurrent judgments and decrees contending that amount of maintenance was not assessed by both the courts below properly as he had no means to pay the decreed amount of maintenance---Evidence on record had revealed that defendant worked as labourer and also was running the cart---Keeping in view the price hike prevailing in the country, maintenance amount as granted was normal and was not on the excessive side---Counsel for defendant had failed to point out any misreading or non-reading of material evidence, which might have affected the concurrent judgments of the courts below---No case for interference with the impugned judgment and decree of the both courts below, in exercise of constitutional powers of High Court having been made out, constitutional petition was dismissed, in circumstances.

Rana Muhammad Saleem Akhtar for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 428 #

2011 Y L R 428

[Lahore]

Before Mazhar Iqbal Sidhu, J

AHMED DIN---Petitioner

Versus

A.S.J. and others---Respondents

Criminal Revision No. 95 of 2010, heard on 19th July, 2010.

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

----Ss. 200, 204, 248 & 403--Constitution of Pakistan, Art. 13---Private complaint dismissed as withdrawn--- Second complaint--- Maintainability--- Filing of second and third complaint is not barred wherein accused have not been acquitted after the regular trial.

Asmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687 ref.

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

----Ss. 200, 204, 248 & 403---Constitution of Pakistan, Art. 13---Penal Code (XLV of 1860), S.302/109/34---Qatl-e-amd and abetment---Complainant had instituted a private complaint under Ss. 302, 109 and 34, P.P.C. about the murder of his sister---Trial Court after preliminary proceedings had summoned all the accused, but thereafter dismissed the complaint as withdrawn on the application of the complainant---Eye-witness of the withdrawn complaint filed a fresh criminal complaint against the same accused persons under the same offences for the murder of the same deceased---After completing preliminary proceedings trial Court had summoned the accused through the impugned order---Maintainability of the second criminal complaint had been assailed---Held, there was no bar in filing of second or third complaint wherein accused had not been acquitted after a regular trial---Accused in the present case had not been acquitted after holding a regular trial---Impugned order qua summoning the accused in the second criminal complaint, therefore, did not suffer front any illegality or infirmity---Revision petition was dismissed accordingly, however, it was observed by High Court that Sessions Judge or Additional Sessions Judge had no power to permit withdrawal of the private complaints---Order of Trial Court whereby the complainant was allowed to withdraw the first complaint was, consequently, recalled and the said complaint was directed to be deemed pending before the Trial Court---High Court clarified that the trial of the present complaint would continence against the accused and the first complaint would follow the result.

Asmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687 and Nazar Ahmad v. Muhammad Aslam and 2 others 1988 PCr.LJ 1787 rel.

----S.248---Withdrawal of complaint---Scope---Sessions Judge or Additional Sessions Judge has no power to permit withdrawal of the private complaint.

Nazar Ahmad v. Muhammad Aslam and 2 others PLD 1989 Cr.C. (Lah.) 226 rel.

Hafiz Shahid Nadeem Kahloon for Petitioner.

Khalid Pervaiz, learned DDPP for the State.

Syed Jameel Anwar Shah for Respondent.

Date of hearing: 19th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 432 #

2011 Y L R 432

[Lahore]

Before Tariq Javed, J

KALEEM ABBAS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3439-B of 2009, decided on 13th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/364/109/34---Qalt-e-amd, kidnapping or abducting in order to murder, abetment---Bail, refusal of---Motorcycle used in the alleged occurrence, the weapon of offence and the dead body of the deceased had been recovered at the instance of accused---Prima facie, accused was connected with the commission of the Crime---Bail was declined to accused in circumstances.

Ch. Khalid Mehmood Arain for Petitioner.

Nadir Manzoor Duggal, D.P.G. for the State.

Qaiser Abbas S.-I. with record.

Masood Riaz for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 435 #

2011 Y L R 435

[Lahore]

Before Syed Akhlaq Ahmad, J

Malik AHMED NAWAZ AWAN---Petitioners

Versus

FARIHA MALIK and another---Respondents

Writ Petition No. 24107 of 2010, decided on 12th November, 2010.

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

----S.5, Sched. & S.14(3)--Civil Procedure Code (V of 1908), O. VII, R. 11---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Suit for enhancement of maintenance amount---Rejection of plaint---Defendant in constitutional petition had called for indulgence of High Court against an interim order passed by the Family Court whereby his application for rejection of plaint was dismissed---Contention of the defendant was that no provision of law existed to file a suit for enhancement of maintenance amount when the matter had Previously been decided by a competent court of law---No proof of previous suit between the parties was on record---Main stance of the defendant was that present suit was not maintainable because suit for maintenance of minor having already been decreed, fresh suit was barred by law---Suit for enhancement of maintenance of minor could be filed and principle of res judicata was not applicable---Stance of the defendant was not based on legal reasons--Application filed by the defendant for rejection of plaint was dismissed---Said order being interim order, no appeal or revision would lie against the order under provisions of S.14(3) of West Pakistan Family Courts Act, 1968---Constitutional petition against interlocutory order being not competent was dismissed---Defendant, however, was not remediless as if a decree would ultimately be passed against him by Family Court, he could file an appeal against said judgment and decree, wherein he could challenge interim order.

2005 CLC 1913 and Muhammad Akram v. Mst. Raheela Aslam and 2 others PLD 1999 Lah. 33 rel.

Aman Ullah Khan Niazi for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 439 #

2011 Y L R 439

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

SARMAD MEHMOOD AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1115 of 2007, heard on 15th September, 2010.

Penal Code (XLV of 1860)---

----Ss. 302 & 201---Qatl-e-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence--F.I.R. was lodged promptly---Presence of eye-witnesses at the place of occurrence appeared natural as they could not have reached the spot immediately to register the F.I.R.---Oral account was corroborated by medical evidence---Brutality displayed by the accused in commission of offence was sufficient to terrify the witnesses who did not risk their own lives to save the deceased---Witnesses had no motive or ill-will to falsely implicate the accused---Presence of accused with the deceased at the place of occurrence was established---Accused tried to destroy the evidence of the case by raising false plea of alibi through concocted and tampered entry in the register of the Hotel wherein he claimed to have stayed on the date of occurrence---Conduct of the accused remained dubious; instead of registering the F.I.R., he fled the scene and tried to create false story of alibi which suggested his involvement in the case---Motive was always harboured by accused and same could not be ascertained in each case, therefore, non proving of motive was not fatal to the prosecution case where involvement of the accused in commission of the offence was proved by other evidence produced by prosecution---Prosecution had proved its case beyond shadow of doubt through reliable and confidence inspiring evidence---Trial Court rightly convicted the accused---Barbarity perpetrated by accused did not entitle him to any leniency---Sentence and conviction of the accused was maintained and the Murder Reference was answered in the affirmative---Appeal was dismissed.

Rai Bashir Ahmad for Appellant.

Ch. M. Aslam Sandu Addl. P.-G. for the State.

Date of hearing: 15th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 447 #

2011 Y L R 447

[Lahore]

Before Rauf Ahmad Sheikh and Shahid Hameed Dar, JJ

MUHAMMAD ALTAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 233 and Murder Reference No. 496 of 2006, decided on 21st October, 2010.

Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Appreciation of evidence---Eye-witness was the most natural and independent witness who, being a close relative of both the deceased and the accused, had no malice to implicate the accused in false case---Merely giving up a witness would not adversely affect the prosecution case as quality, and not quantity, was essential to administration of criminal justice---Where accused nurtured grudge and relentless anger, single fire would not constitute mitigating circumstance---Wad would penetrate into the wound where the fire was made with stretched hand from a distance of five feet---Recovery of the repeater gun was proved---Reports of Forensic Science Laboratory and Chemical Examiner corroborated ocular account---Prosecution had proved its case beyond doubt---Accused was rightly awarded death sentence by Trial Court which correctly appraised the evidence on record---Appeal was dismissed and Murder Reference was answered in the affirmative.

2010 SCMR 846 and 2010 SCMR 641 ref.

Sadqat Ali Khan and Syeda B.H., Shah for Appellant.

Rana Kashif Saleem Arfaa, Law Officer, for the State.

Date of hearing: 21st October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 455 #

2011 Y L R 455

[Lahore]

Before Syed Akhlaq Ahmad, J

Haji ABDUL RAHEEM---Petitioner

Versus

Mst. UMMAT-UL-QAYYUM and 2 others---Respondents

Writ Petition No. 18783 of 2010, decided on 30th September, 2010.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 15 & 22---Constitution of Pakistan, Art. 199--- Constitutional petition---Landlord filed ejectment petition against tenant on the ground of expiry of tenancy, default in payment of rent and structural changes in the rented premises causing damage to the property---Tenant moved an application for leave to defend on the ground that he was occupant of the premises as a lawful mortgagee---Rent Controller dismissed application for leave to defend and ordered tenant to vacate the Premises---Appeal filed by tenant was also dismissed by appellate court---Relationship of landlord and tenant was denied by the tenant in his application for leave to defend in view of mortgage deed of the rented premises executed in his favour by the son of the landlord---Validity---Alleged mortgage deed was not registered document and it was not executed by landlord who was actual owner of the rented premises---Tenant had failed to produce any document of title of rented premises or part of the suit property in favour of son of the landlord to establish genuineness of the mortgage deed in his favour---Expired tenancy could not be brought in conformity with the provisions of the Punjab Rented Premises Ordinance, 2007 which related to tenancies which came into existence after promulgation of the said Ordinance or which were in existence---Tenant had failed to point out any misreading or non-reading of material evidence which might have affected concurrent findings of ejectment recorded by both the courts below which other-wise could not be disturbed by High Court in its constitutional jurisdiction---Constitutional petition was dismissed by High Court with costs.

Province of Punjab v. Ashiq Muhammad Khan PLD 1990 Lah. 153; Muhammad Nawaz v. Fida Hussain and another 1994 CLC 1487, Illam-ud-Din v. Syed Sarfraz Hussain 2001 SCMR 1225; Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304; Abdul Raseed Khan v. Muhammad Saeed Siddique, 1997 CLC 623; Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Gul Rehman Khan v. Shirian Khan 2004 SCMR 592; Rafiq Ahmad through General Attorney v. Rent Controller, Jacobabad and 3 others, 2006 CLC 989; Mst. Sarwar Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Arshad Jawaid Khan v. Government of Pakistan though Wafaqi Mohtasib and 2 others 1995 MLD 1393 and Faisal Naseem and another v. Government of Punjab, Local Government and Community Development Department, 2008 CLC 640 rel.

(b) Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 20) & 15---Constitution of Pakistan, Art. 199--- Constitutional petition---Landlord and tenant, relation-ship of---Admission---Effect---Tenant had admitted the existence 'of relationship of landlord and tenant in his preliminary objection of written statement as well as reply to ejectment petition on merits---Fact of ownership of the landlord was in the notice of tenant from the day one which was proved from the registered sale-deed through which the landlord had purchased the shops in question---Tenant or his counsel never moved any application stating that the admission of tenancy in the reply filed by him was due to typographical mistake---Tenant was, thus, barred from taking such objection before High Court for the first time in his constitutional petition---Constitutional petition was rejected.

Province of Punjab v. Ashiq Muhammad Khan PLD 1990 Lah. 153: Muhammad Nawaz v. Fida Hussain and another 1994 CLC 1487, Illam-ud-Din v. Syed Sarfraz Hussain 2001 SCMR 1225 and Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 rel.

Muhammad Asim for Petitioner.

Muhammad Mustafa Khalid for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 461 #

2011 Y L R 461

[Lahore]

Before Rauf Ahmed Sheikh and Shahid Hameed Dar, JJ

MUHAMMAD SHABBIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.6 and Murder Reference No. 326 of 2007, heard on 11th October, 2010.

Penal Code (XLV of 1860)---

---S. 302(b)---Qatl-e-amd---Appreciation of evidence---Ocular evidence was trustworthy and inspired confidence---Medical evidence had fully supported the ocular account of occurrence---Pistol used in the offence had been recovered at the instance of accused---Crime empties secured from the place of incident had matched with the said pistol---Accused being a grown up man of 26 years fully knew the nature and consequences of his act---Accused had brutally and mercilessly killed the deceased, who had brought him up for the sole reason that the deceased had asked him to furnish true accounts, and he deserved no leniency---Trial Court had appreciated the evidence in its true perspective and arrived at the just conclusion---Well reasoned findings recorded by Trial Court did not warrant any interference---Conviction and sentence of death of accused were affirmed in circumstances.

Raja Ghaneem Aabir Khan for Appellant.

Ch. Muhammad Waheed Khan, D.P.G. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 466 #

2011 Y L R 466

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

MUNIR HUSSAIN SHAH alias MUNNA SHAH---Petitioner

Versus

SECRETARY HOME GOVERNMENT OF PUNJAB, LAHORE and 3 others---

Respondents

Writ Petition No. 4006 of 2010, decided on 15th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 148, 149, 114 & 120---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 23---Constitution of Pakistan, Art.199---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapon, offence committed by unlawful assembly in prosecution of common object, criminal conspiracy, offence committed in the presence of the abettor and act of terrorism---Constitutional petition---Anti-Terrorism Court declined to transfer the case of the accused to a regular Court---Validity---Accused was involved in three cases of sectarian violence---Section 7 of the Anti-Terrorism Act, 1997 was added to the F.I.R. after statements of the complainant and witnesses wherein they stated that the occurrence was result of sectarian violence---Question of cognizance of the case by Trial Court had to be decided on the basis of material collected by the Investigating Officer during investigation---Case of the accused, prima facie, fell under S.7 of the Anti-Terrorism Act, 1997---Impugned order suffered no illegality---Constitutional petition was dismissed in circumstances.

Muhammad Akram Qureshi for Petitioner.

Malik Muhammad Imtiaz Mahal, Advocate.

Munawar Hussain Sindhi A.A.-G. with Nasir A.S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 470 #

2011 YLR 470

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD YAQOOB---Petitioner

Versus

A.D.J. and others---Respondents

Writ Petition 3852 of 2004, decided on 8th November, 2010.

Civil Procedure Code (V of 1908)---

----S.12(2) & O. XIII, R.2---Constitution of Pakistan Art. 199---Constitution petition---Document, production of----Permission---Technicalities---Scope---Trial Court did not allow the petitioner to produce identity card to compare the signatures of his deceased father, which order was maintained by Lower Appellate Court--Validity---Permission should have been granted to petitioner to produce the documents when respondents had a right to rebut the same through evidence---Courts should have avoided technicalities to deliver the substantial justice---High Court, in exercise of constitutional jurisdiction, set aside concurrent orders passed by two courts below and application under O. XIII, R.2, C.P.C. was granted with cost---Petition was allowed in circumstances.

2005 CLC 1698 and 2008 CLC 722 ref.

2002 YLR 2569 distinguished.

Nazir Ahmad Lar for Petitioner.

Raja Muhammad Sohail Iftikhar for Respondents.

Date of hearing: 8th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 479 #

2011 Y L R 479

[Lahore]

Before Sagheer Ahmed Qadri and Rauf Ahmed Sheikh, JJ

ASIF ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 176 of 2010, heard on 15th July, 2010.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Confessional statement of a co-accused had established beyond doubt that the accused had been arrested from the Airport as alleged by the prosecution and heroin had been recovered from his possession---Mere denial and raising an unsubstantiated plea by the accused was not sufficient to disprove the evidence brought on record by the prosecution---Heroin had been recovered from the accused from the drop lane of the Airport and provisions of S.103, Cr. P. C. having been excluded by S.25 of the Control of Narcotic Substances Act, 1997, non-association of private witnesses with the recovery proceedings had no adverse or fatal effect on the prosecution case---Appeal was dismissed in circumstances.

Fida Jan v. The State 2001 SCMR 36 ref.

Raja Shahzad Anwar for Appellants.

Mirza Waqas Rauf, Special Prosecutor for Respondent.

Date of hearing: 15th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 483 #

2011 Y L R 483

[Lahore]

Before Manzoor Ahmad Malik, J

AHMAD HASSAN---Petitioner

Versus

THE STATE---Respondent

Criminals Appeals Nos.84, 192 and Criminal Revision No. 127 of 2004, decided on 22nd April, 2010.

(a) Evidence---

----Circumstantial evidence---Established Practice: All the links of circumstances should be so interconnected with each other as to form a continuous chain, one end of which should touch the dead body and the other end should touch the neck of the accused---One single link missing in the chain would entitle the accused to benefit of doubt.

Ch Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047 and Ch. Barkat Ali v. Major Kharam Elahi Zia and another 1992 SCMR 1047; Sarfaraz Khan v. The State 1996 SCMR 188; Asadullah and another v. State 1999 SCMR 1034; Altaf Hussain v. Fakhar Hussain and another 20008 SCMR 1103 ref.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was based only on circumstantial evidence---F.I.R. had been lodged by the complainant after ten days of the disappearance of his seven years old son---Complainant while appearing in Court had made a statement different from the contents of the F.I.R.---Both the witnesses of the last seen evidence, who were closely related to the deceased child, resided thirty five kilometers away from the place of occurrence and in the F.I.R. they were not stated to have seen the accused in the company of the deceased---Besides this the said witnesses had not informed the complainant about this fact---Evidence of extra judicial confession allegedly made by accused was also not reliable as the circumstances did not suggest that they could expect any favour from the witnesses, who were not only inimical towards them but were also related to the complainant---Co-accused alleged to have killed the child by strangulation, as disclosed by accused in extra judicial confession, had already been acquitted---Even otherwise, the method of killing the child stated in the said confession was unture, improbable and not convincing---Recovery of incriminating articles belonging to deceased child from the accused could not be relied upon, as the complainant had not mentioned in the F.I.R. that the child was wearing the said articles at the time of his disappearance---Dead body of the deceased had been recovered on the joint pointation of both the accused from the place, which had not been proved to be exclusively possessed or owned by them---Dead body of the child was not identifiable by its features according to post-mortem report and prosecution witnesses had not stated as how they had identified the dead-body---Even otherwise, recovery of dead body alone was not sufficient evidence to sustain conviction---No motive was established against the accused---Accused were acquitted on benefit of doubt in circumstances.

Liaqat Ali v. The State 2007 SCMR 1307; Tahir Javed v. The State 2009 SCMR 166; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfaraz 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; Bashir Ahmad v. Fida Hussain and 3 others 2010 SCMR 495; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Ahmed v. The Crown PLD 1951 FC 103-107 ref.

Ms. Khalida Perveen for Appellant (in Criminal Appeal No.84 of 2004).

Ch. Muhammad Yaseen Zahid for Appellant (in Criminal Appeal No.192 of 2004).

M.M. Alam Chaudhary, Addl. Prosecutor-General, Punjab for the State.

Seerat Hussain Naqvi for the Complainant.

Dates of hearing: 21st and 22nd April, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 500 #

2011 Y L R 500

[Lahore]

Before Ch. Shahid Saeed, J

MUMTAZ AHMAD KHAN---Petitioner

Versus

DEPARTMENT OF HOUSING AND PHYSICAL PLANNING and others---Respondents

Civil Revision No. 15 of 1997, heard on 4th November, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8, 39 & 42---Declaration of title, recovery of possession and cancellation of document---Principal and agent, relationship---Power of attorney---Suit property was purchased by defendant from attorney of plaintiff---Validity---Attorney had put his steps in the shoes of executant through power of attorney---Plaintiff had fully authorized the attorney to alienate / dispose of property which he did as per power of attorney, wherein specifically such powers were given to him---Act of general attorney was presumed as the act of executant/plaintiff himself, therefore, plaintiff had no authority to challenge the same---Plaintiff was an educated person, he was stated to be Headmaster of a High School, therefore, High Court did not accept his plea that while executing general power of attorney he had not looked into the contents of the document--Defendant had proved herself as bona fide purchaser of the property in dispute through oral as well as documentary evidence---Concurrent findings of facts were recorded in the matter and Courts below while passing judgments and decrees took a count of every bit of evidence placed before them and were not shown to have been overlooked any part of the record from their judicious consideration---Findings of lower Courts on question of facts and law based on proper appreciation of oral as well as documentary evidence led in the suit were not susceptible to review, to be upset or substituted in revisional jurisdiction---Findings of the courts below based on material on record could not be amenable to interfere with in revisional jurisdiction---Revision was dismissed in circumstances.

Raja Muhammad Sohail Iftikhar for Petitioner.

Ch. Khalid Nawaz A.A.-G. with Sultan Ahmed Assistant Director Housing for Respondent.

Date of hearing: 4th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 503 #

2011 Y L R 503

[Lahore]

Before Sagheer Ahmed Qadri and Ijaz Ahmed, JJ

SHABBIR SHARIF KIANI---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No. 245 of 2007, heard on 14th October, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Car being driven by accused, in a door of which "charas" weighing two kilograms was conealed, was never produced in Court throughout the trial, despite having been taken into possession by the police---Prosecution had not explained as to how and in whose custody the parcel of sample of recovered "Charas" sent to Chemical Examiner, had remained for five days and which type of objection was removed by any of the officials---According to prosecution the sample parcel contained 50 grams "charas ", but the report of Chemical Examiner had revealed that "charas" weighing only 10 grams was received in his office---Sample parcels containing the substance to be sent to Chemical Examiner must be proved with certainty as to how and in which circumstances the same remained in possession of any of the officials at each and every stage of the proceedings in order to avoid the possibility of arising any doubt in that respect---Prosecution witnesses had contradicted each other regarding the description of the recovered substance---Defence version put forward by accused about his false involvement in the case seemed to be plausible---Prosecution case was replete with serious doubts, benefit of which had to be given to accused--Accused was acquitted in circumstances.

The State v. Muhammad Aslam 1993 PCr.LJ 2287; Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219; Muhammad Altaf v. The State 1096 PCr.LJ 440; Fida Hussain Ansari v. The State 1992 PCr.LJ 2002 and Mst. Jeejal and another v. The State 2005 MLD 1261 ref.

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

----S.9(c)---Possession of narcotics---Proper custody of articles to be proved---Parcels containing the substance to be sent to the office of Chemical Examiner for opinion about the contents thereof, must be proved with certainty as to how and in which circumstances the same remained in possession of any of the officials and each and every stage is to be explained with certainty, so that no doubt may arise in this respect.

Sabah Mohy-ud-Din Khan for Appellants.

Khawaja Sohail Iqbal, Deputy Prosecutor-General for Respondent.

Date of hearing: 14th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 509 #

2011 Y L R 509

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SAEED AKHTAR---Petitioner

Versus

QAISER RASHEED---Respondent

Criminal Miscellaneous No.7512-CB of 2010, decided on 15th September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss. 324/337-F(i)/336/34--- Attempt to commit gatl-e-amd, causing of hurt "ghayrjaifah" and "itlaf-i-salahiyyat-i-udw"---Bail, cancellation of---Accused had been nominated in the F.I.R. with a specific role of having caused a fire-arm injury on the left eye of the prosecution witness resulting in complete damage to his eye---Victim had specifically incriminated the accused with the commission of the offence in his statement recorded under S.161, Cr.P.C.---Trial Court had allowed bail to accused merely on the basis of police finding that he was present at the place of occurrence empty handed and he had not made any overt act---Ipse dixit of police was not binding on the courts---Neither the impugned order had disclosed any material to support the said police finding, nor any substance had been brought before High Court in that regard---Prosecution witnesses were still loyal to their statements made under S.161, Cr. P. C. ---Medical report had supported the injuries sustained by the victim as mentioned in the F.I.R. and accused, prima facie, was connected with the crone---Bail allowed to accused by Trial Court was recalled in circumstances.

Ishtiaq Ahmad Chaudhry for Petitioner.

Ch. Amjad Hussain, Deputy Prosecutor-General for the State with Arif, S.-I. with record.

Mian Muhammad Ajmal Pervaiz for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 517 #

2011 Y L R 517

[Lahore]

Before Shahid Hameed Dar, J

SAMIULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1836-B of 2010, decided on 23rd November, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.379 & 411---Theft, dishonestly receiving stolen property---Bail, grant of---Vehicle carrying the stolen electric transformer had been intercepted by the police on a barrier---Accused who was driving the vehicle was hauled up along with his co-accused there and then by the police---Complainant and other prosecution witnesses in their sworn affidavits had categorically admitted the plea of accused of his being a driver of the vehicle--Presence of two WAPDA employees, co-accused, at the time of occurrence might have given an impression to the accused that they were authorized to de-install the transformer and shift the same to some other place---Such a situation had, prima facie, constituted a need for further inquiry into the guilt of accused within the scope of S. 497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Shaukat Rauf Siddiqui for Petitioner.

Malik Riaz Ahmad Saghla, D.,P.-G. with Muhammad Hussain, S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 522 #

2011 Y L R 522

[Lahore]

Before Hassan Raza Pasha and Waqar Hassan Mir, JJ

IRFAN ALI alias GHULAM RAZA alias RAMZAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 50 and Murder Reference No.11 of 2006, heard on 26th October, 2010.

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

----Ss. 3/7---Anti-Terrorism Act (XXVII of 1997), S.7---Penal Code (XLV of 1860), Ss.302/ 324/ 436/ 427--- Causing of explosion, terrorism, qatl-e-amd, attempt to commit qatl-e-amd, mischief---Appreciation of evidence---Accused was charged under S.3 of Explosive Substances Act, 1908---Under provisions of S.7 of Explosive Substances Act, 1908, no court could proceed to the trial of any person for an offence against that Act, except with the consent of the Provincial Government---Counsel for the complainant as well as Deputy Prosecutor General, were unable to point out or provide any such sanction from the record---Maxim: "A communi observatia non est recedendum"; where a thing was provided to be done in a particular manner, it had to be done in that manner; and if not done, same would not be lawful on that score alone---Trial of the case would stand vitiated.

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

----Ss. 302/324/436/427---Anti-Terrorism Act (XXVII of 1997), S.7---Explosive Substances Act (VI of 1908), Ss. 3/7---Causing of explosion, terrorism, qatl-e-amd, attempt to commit qatl-e-amd, mischief---Appreciation of evidence---F.I.R. contained the names of all the deceased and the injured---Such fact merely showed that since it was a conference in the nature of congregation, open to every body, there was no possibility for the complainant to know the name and parentage of every deceased and the injured---Despite detail of names of the deceased and injured, there was no mention in the F.I.R. of the fact as to how the car allegedly used in the explosion, was parked and who had parked the same---Even no detail of description of features of accused was provided in the F.I.R.---As many as 40 inquest reports, were prepared, the names of the deceased and injured could not have been known to the complainant---Even otherwise, magnitude of the blast created the panic and jolted whole of the city, and in that spectrum the lodging of the F.I.R. within 1-1/2 hours, containing the names of all the deceased and the injured, had shown that same was registered after due deliberation and consultation---Car allegedly used in the blast was totally exploded and as per prosecution witness, he had identified the same by reading chassis number; but the F.I.R. lodged by said witness for the robbery of the car did not contain the chassis number---No source of information was disclosed by said witness as to how he came to know about the car used in the explosion---Prosecution did not disclose the name of the Police Officials who were guards outside the congregation---F.I. R. was silent about the fact as to who was the person driving the car and how many persons alighted from the same---F.I.R. lodged by prosecution witness was tampered and for cooking up a case, material illegality had been committed by the investigating agency---Recoveries in the case also did not connect accused with the crime, as the articles similar in nature were not recovered---Investigation in the case was not up to the mark---Case against accused being doubtful in nature, his conviction and sentences recorded by the Trial Court through impugned judgment, were set aside and he was released, in circumstances.

Ch. Pervaiz Aftab for Appellant.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

Mehmood Khan Ghouri for the Complainant.

Date of hearing: 26th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 540 #

2011 YLR 540

[Lahore]

Before Shahid Hameed Dar, J

SALIM DAD KHAN---Petitioner

Versus

GHULAM MUHAMMAD and others---Respondents

Criminal Miscellaneous No. 1682-B of 2010, decided on 14th October, 2010.

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

----S.497---Penal Code (XLV of 1860), Ss.420/ 468/ 471--- Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, refusal of---Offence under S.420, P.P.C. being cognizable, non-cognizable offences under Ss. 468 & 471, P.P.C. could be lawfully investigated by the police in the presence of S.420, P.P.C., . without seeking prior permission of the Magistrate---Accused had no respect for the decorum of the court, as he in the absence of the original registration book had presented a bogus registration book before the Sessions Courts for taking the vehicle on "superdari" fradulently---Accused, thus, did not deserve any leniency despite the offences alleged against him were not hit by the prohibitory clause of S.497(1), Cr.P.C.---Accused would not become invariably entitled to grant of bail as a matter of right in every case not falling under the said prohibition---Abscondance of accused after the occurrence had disentitled him to some of his normal rights guaranteed under the substantive as well as procedural law---Complete challan having submitted in the Court, trial of accused was likely to commence---Bail was declined to accused, in circumstances.

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

----S.497---Bail---Offence not falling within the prohibitory clause of S.497(1), Cr. P. C. ---Law does not provide that an accused shall become invariably entitled to grant of bail as a matter of right in every case not falling under the prohibitory clause of S.497(1), Cr. P. C.

----S. 497---Bail---Abscondance---Effect---Absconder would lose some of his normal rights guaranteed under the substantive as well as procedural law.

Muhammad Tahir Khan for Petitioner.

Malik Riaz Ahmad Saghla, D.P.G. Muhammad Usman S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 543 #

2011 Y L R 543

[Lahore]

Before Hassan Raza Pasha and Waqar Hassan Mir, JJ

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 672 of 2005 and Murdered Reference No.80 of 2006, heard on 25th October, 2010.

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

----Arts. 37, 38, 39 & 40---Scope of Arts. 37, 38, 39 & 40 Qanun-e-Shahadat, 1984--Confession---Article 37 of Qanun-e-Shahadat, 1984 speaks as to when the confession caused by inducement, threat or promise was irrelevant in criminal Proceedings---Article 38 related to confession to Police Officer not to be proved as against a person accused of any offence---Article 39 says that no confession of accused, while in custody of Police, would be proved as against such person---Article 40 of Qanun-e-Shandat, 1984, was the only exception to Articles 37, 38, 39, which showed as to how much of information received from accused, could be proved---Difference as found in Art.40 of Qanun-e-Shahadat, 1984, was that when any fact was deposed to by an accused before the Investigating Officer; and was discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounted to confession or not, as related distinctly to the fact thereby discovered, could be proved against accused, otherwise any information consequent upon a fact, if was discovered; that would also qualify irrelevancy and inadmissibility---Misconstruing comprehension of Article 40 of Qanun-e-Shandat, 1984, by investigating agencies was deprecated.

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

---Ss. 302(b) & 364---Qanun-e-Shahadat (10 of 1984), Arts.37, 38, 39 & 40---Qatl-e-amd and kidnapping or abduction---Appreciation of evidence---Accused along with Investigating Officer, went to place where accused made fire shots upon deceased and buried him in the ditch--Investigating Officer prepared Ford Nishan Dehi of the place of murder and that of place from where the dead body was recovered---Both said memos were attested by given-up and others witnesses---Such practice adopted by Investigating Officer, did not fall within the ambit of Art.40 of Qanun-e-Shahadat, 1984---Since accused was in custody of the Investigating Officer, that would amount to confession and self implication, which on the principle contained in Arts.37, 38, 39 of Qanun-e-Shahadat, 1984 as well as on the principle of inculpation was inadmissible in evidence---Delay of ten days in lodging F.I.R. and conduct of the complainant was highly objectionable-F.I.R. was lodged without any motive---Ill-will between the parties was proved---Prosecution though was not bound to set up the motive, but once it set up the motive, it had to prove the same---Prior to occurrence, bad taste existed between the parties, false implication of accused, could not be ruled out---Medical evidence got no corroboration from any nook and corner to advance the case of the prosecution---Blood stained earth was taken into possession by the Investigating Officer after lapse of ten days---Last seen evidence produced by the prosecution which consisted of prosecution witnesses who were closely related to the deceased, could not be believed on that account---Report of the Forensic Science Laboratory had shown that the crime empties as well as the pistol were dispatched together to the office---Evidence of recovery could not be believed---Case against accused being doubtful in nature, conviction and sentences recorded against accused by the Trial Court, were set aside and he was released, in circumstances.

Muhammad Nadeem Kanju for Appellant.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Date of hearing: 25th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 558 #

2011 Y L R 558

[Lahore]

Before Shahid Hameed Dar, J

Syed SHAFIQUE HASSAN---Petitioner

Versus

MUHAMMAD SHOAIB ABBASI and others---Respondents

Criminal Miscellaneous No. 327-BC of 2010, decided on 19th October, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, cancellation of---Accused owed Rs.4,50,000 to the complainant and he had issued two cheques of the said amount to the complainant, which had been bounced by the Bank on presentation---Pre-arrest bail had been allowed to accused by High Court on the condition that he would pay the whole amount to the complainant in 18 equal instalments of Rs.25,000 each according to the schedule agreed to by him---After having paid four instalments to the complainant hesitantly, accused defaulted thereafter and became untraceable notwithstanding the issuance of non-bailalbe warrants of arrest against' him---Accused had misused the concession of pre-arrest bail and the same was recalled in circumstances.

Ch. Riaz Ahmad Hussain for Petitioner.

Malik Riaz Ahmad Saghla, D.P.G. with M. Hayyat, S.-I. and Sikandar, A.S.-I. with record.

Nemo for respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 560 #

2011 Y L R 560

[Lahore]

Before Syed Akhlaq Ahmad, J

Syed SABIR HUSSAIN SHAH---Petitioner

Versus

A.S.J. and 4 others---Respondents

Writ Petition No. 19913 of 2010, decided on 7th October, 2010.

Constitution of Pakistan---

----Art. 199---Constitution petition---Maintainability---Registration of F.I.R.---Alternate remedy was available to petitioner in the shape of filing a private complaint before the competent court of law---Constitutional petition, therefore, was not maintainable under the law and the same was dismissed accordingly.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 ref.

Zahid Rashid Sheikh and Syeda Feroza Rubab for Petitioner.

Abdul Razzaq Raja Standing Counsel on behalf of Respondents Nos.2 to 4.

YLR 2011 LAHORE HIGH COURT LAHORE 566 #

2011YLR 566

[Lahore]

Before Muhammad Anwaar-ul-Haq, J

MUHAMMAD FAIZAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9697-13 of 2010, decided on 4th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.496-A, 511, 427, 337-F(i), 337-L(2), 337-H(2) & 324---Enticing or taking away or detaining with criminal intent the woman, mischief, damiyah to any person, hurt, by rash or negligent act and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Accused was not named in the F.LR., no specific role had been attributed to him and only an ineffective fire had been alleged against him in the supplementary statement---Attached copy of Nikahnama; copy of statement recorded by the daughter of the complainant in a private complaint, against him and pendency of her suit for jactitation of marriage against accused, were sufficient to prove that accused was not unknown to the complainant---In such background, non-mentioning of his name in the F.I.R., was sufficient to make his case one of further inquiry as contemplated under S.497(2), Cr.P.C.---Two nominated accused in the F.I.R. had been declared innocent by the Police; and in that view of the matter, application of Ss.496-A/511 and 324, P.P.C. could validly be determined by the Trial Court after recording of evidence in that case---Accused was admitted to bail, in circumstances.

Ch. Rasheed Ahmad for Petitioner.

Muhammad Ishaq, Deputy Prosecutor-General for the State with Mubarak Ahmad S.-I. with record.

2011 Y L R 576

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

NASIR alias NASRI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.36-J of 2007, and Murder Reference No.769 of 2005, decided on 1st December, 2010.

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

----Ss. 302 & 393---Qatl-e-Amd and attempt to commit robbery---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account--Complainant alleged that four assailants armed with firearms fired at his car front left and right side of car but according to post mortem report deceased sustained injuries on her front, back and left side of her body---Complainant himself did not receive even a scratch during occurrence---Doctor during post moment examination of deceased observed blackening of margins regarding one injury but there was no evidence to show that any fire was made from such a close range---Ocular testimony was not corroborated by medical evidence, which created doubt in prosecution story---Ocular account furnished by complainant and one prosecution witness that assailants resorted to firing front both the sides was further falsified by recovery memo of car which showed that firing was made only from the front side as all bullet marks were available on left side of front screen and not anywhere else on the car---Prosecution's case was doubtful in nature, did not inspire confidence and failed to bring home guilt of accused---Conviction and sentence of death awarded to accused by Trial Court was set aside by High Court and accused was acquitted of the charge---Appeal was allowed accordingly.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S.302--Qanun-e-Shahadat (10 of 1984), Art. 22---Qatal-e-amd---Appreciation of evidence---Identification parade---Non-mentioning of role---Effect---Description of assailants was not mentioned in F.I.R. and even during identification parade accused was not picked up with reference to the role allegedly played by him during occurrence and it was simply stated that witnesses had identified the accused--Evidentiary value of identification parade of accused in identification parade without attributing to his role in the crime had no evidentiary value.

Mehmood Ahmed and 3 others v. The State 1995 SCMR 127 rel.

----S.302---Qatl-e-amd---Appreciation of evidence---Recovery of weapon---Absence of report of firearms expert---Effect---Recovery of weapon at the instance of accused carries no value, if there is no report of firearms expert in that respect.

Tayyab Hussain v. Ansari Ali and others 2008 SCMR 90 rel.

M. Azfar Ali Malik and Ejaz Ahmad Bajwa for Appellants.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Nemo for the Complainant.

Date of hearing: 1st December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 584 #

2011 Y L R 584

[Lahore]

Before Kh. Imtiaz Ahmad and Syed Akhlaq Ahmad, JJ

ASAD ULLAH and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 458-M of 2010 in Criminal Appeal No.140 of 2010, decided on 25th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Suspension of sentence, petition for---Accused had been sentenced to death with fine of Rs.5,00,000---Grounds agitated by the counsel for accused for suspension of sentence and admitting accused to bail, related to deeper appreciation of evidence, which could not be made at present stage---Petition was dismissed, in circumstances.

Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18 and Allah Ditta Khan v. The State PLD 2002 SC 845 rel.

Raja Shahzad Anwar for the Petitioners.

Ch. Muhammad Waheed Khan, D.P.-G. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 586 #

2011 Y L R 586

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

KAMRAN KHAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1982-B of 2010, decided on 22nd March, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S. 365-A---Abduction for extorting property, valuable security etc.---Pre-arrest bail, refusal of---Not naming the accused in the F.I.R. had shown that complainant had no motive or ill-will against them---Abductee in his statement recorded under S.164, Cr.P.C. had specifically nominated the accused with the role of his abduction and consequent confinement---Accused had been found guilty during police investigation---Offence alleged against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Veracity of the statement of the abductee under S.164, Cr.P.C. would be determined at the trial---Two co-accused had been granted bail before arrest, as they had been found innocent during investigation on the plea of alibi---Accused were, prima facie, connected with the commission of the offence---Pre-arrest bail was meant only to save innocent persons from undue harassment, humiliation and disgrace---Accused were not entitled to the extra-ordinary concession of pre-arrest bail---Considerations for grant of bail before arrest and bail after arrest were altogether different---Pre-arrest bail was declined to accused in circumstances.

Riaz Ahmad v. The State 2009 SCMR 725; Murad Khan v. Fazal Subhan PLD 1983 SC 82; Zia-ul-Hassan v. The State PLD 1984 SC 192 and Nawazish Ali v. The State 2004 SCMR 1373 ref.

Barrister Salman Safdar for Petitioners.

M.M. Alam Chaudhry, Additional Prosecutor General Punjab for the State.

Syed Muhammad Saqlain Rizvi for the Complainant.

Muhammad Aslam, Inspector with record.

YLR 2011 LAHORE HIGH COURT LAHORE 591 #

2011 Y L R 591

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD ZAMAN---Petitioner

Versus

SHAH MUHAMMAD and others---Respondents

Civil Revision No.13-D of 1997, decided on 11th November, 2010.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for permanent injunction---Rejection of plaint---Plaintiff claimed that he was in possession of suit land, but defendants were interfering in the possession of plaintiff without any reason---Defendants in their written statement though had admitted the possession of the plaintiff on some land, but. the plaintiff could not show his exclusive possession over suit property---Plaintiff had a case which the Trial Court was to decide on merits after settling necessary issues, but both courts below rejected the plaint of the plaintiff on flimsy ground mentioned by the defendants--Impugned order concurrently passed by the courts below, was set aside with the direction to the Trial Court to decide the case on merits after framing necessary issues on the question of facts.

Ch. Manzoor Ahmad for Petitioner.

Mian Muhammad Kashif Saleem for Respondents.

Date of hearing: 11th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 595 #

2011 Y L R 595

[Lahore]

Before Ch. Iftikhar Hussain, J

SHER MUHAMMAD---Petitioner

Versus

THE STATE and another---Respondent

Criminal Miscellaneous No.9703-B of 2010, decided on 30th September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 324/148/149/109/33 7-F(vi)---Attempt to commit Qatl-e-amd, rioting armed with deadly weapon, abetment, causing hurt "ghyrjaifah"---Bail, grant of---Medicolegal report of the injured complainant was in conflict with the role of accused ascribed to him in the F.I.R.---Injury was on the non-vital part of the body of the complainant---Trial Court was yet to determine if the accused had made an attempt to commit qatl-e-amd of the complainant as well as his vicarious liability in the matter---Case of accused, thus, was open to further inquiry into his guilt within the meaning of S.497(2), Cr.P.C.---Subsequently added offence under S.337-F(vi), P.P.C. was not hit by the prohibitory clause of S.497(1), Cr.P.C.---Commencement of the trial of accused was no bar to his enlargement on bail---Accused was not a previous convict---Bail was allowed to accused in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Haq Nawaz Japal for Petitioner.

Khurram Khan, Deputy Prosecutor-General on behalf of the State with Mulazam Hussain, A.S.-I. with police record.

Aish Bahadur Rana for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 597 #

2011 Y L R 597

[Lahore]

Before Shahid Hameed Dar and Hassan Raza Pasha, JJ

GUL NAWAZ---Appellant

Versus

THE STATE---Respondent

Murdered Reference No. 693 and Criminal Appeal No.444 of 2006, heard on 23rd September, 2010.

Penal Code (XLV of 1860)---

----Ss.302(b) & 397---Qatl-e-amd, robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Prosecution case was based on circumstantial evidence---Evidence of last seeing the deceased with the accused furnished by the prosecution witness was highly doubtful, as the said witness had not apprised the complainant or the police about this fact immediately after getting the information about the murder of the deceased---Moreover, this particular witness was interested and closely related to the deceased---Complainant had seen nothing himself and he had only narrated the story allegedly told to him by the deceased, however, the deceased had not disclosed the name of the accused to him and the statement of the complainant was not substantiated by any other circumstantial evidence---Doctor had categorically stated that when he examined the deceased in injured condition, he was not a position to talk---Recovery of looted property and the weapon of offence was simply corroboratory in nature and had no conclusive importance--- Prosecution evidence was too weak to be made a basis for conviction---Accused was acquitted in circumstances.

Shafqat Munir Malik for the Complainant.

Sheikh Muhammad Munir, D.P.G. for the State.

Date of hearing: 23rd September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 604 #

2011 Y L R 604

[Lahore]

Before Tariq Javaid, J

ASIA KANWAL---Petitioner

Versus

VICE-CHANCELLOR, EAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and another---Respondents

Writ Petition No. 9604 of 2009, decided on 25th May, 2010.

Baha-ud-Din Zakariya University Act (III of 1975)---

----Statute-V---Constitution of Pakistan, Art. 199---Constitutional petition---Failure of petitioner to pass Paper-III of M.A. Islamic Studies in First Annual Examination, 2007---Re-appearance of petitioner in Paper-III in First Annual Examination, 2008 along with all papers of 2nd part of M.A., and qualifying exam---Non-issuance of Result Card and Degree by University on ground that petitioner was not entitled to appear in First Annual Examination, 2008 as he should have to appear in Second Annual Examination, 2009---Validity---Petitioner was obliged to file Examination Admission Form and appear in exam in accordance with rules---If petitioner was not entitled to sit in First Annual Examination, 2008, then University should have rejected his such Form---After having allowed petitioner to appear in examination and his having qualified the same, University could not be allowed to alter their position and raise such objection---University's failure to reject petitioner's Form would amount to waiver of such objection and operate as estoppel against them---High Court directed the University to issue Result Card and Degree to the petitioner in circumstances.

Muhammad Tufail Alvi for Petitioner.

Muhammad Tariq Rajwana, Advocate/Legal Advisor for the University.

YLR 2011 LAHORE HIGH COURT LAHORE 610 #

2011 Y L R 610

[Lahore]

Before Ch. Iftikhar Hussain, J

ALI RAZA---Petitioner

Versus

CITY POLICE OFFICER and 3 others---Respondents

Writ Petition No.17569 and C.Ms. Nos. 1 and 3 of 2010, decided on 28th September, 2010.

Penal Code (XLV of 1860)---

----S. 496-A---Constitution of Pakistan Art. 199---Enticing or taking away or detaining with criminal intent a woman---Constitutional petition---Quashing of F.I.R.-Marriage of the allegedly abducted woman was a matter of controversy between the parties which required putting them to evidence---Such an exercise could not be undertaken in the constitutional jurisdiction of High Court---Deeper appreciation of evidence at such a stage was also neither permissible nor desirable---No case for quashing of F.I.R. was made not---Constitutional petition was dismissed accordingly.

Ch. Muhammad Gul Nawaz Goraya for Petitioner.

Ahmad Rauf, Addl. A.-G. with Muhammad Zafar Ullah, S.I. with record for Respondents Nos. 1 and 2.

Liaquat Ali Malik for Respondent No.3.

Nemo for Respondent No.4.

YLR 2011 LAHORE HIGH COURT LAHORE 611 #

2011 Y L R 611

[Lahore]

Before Hassan Raza Pasha, J

EHSAN ELAHI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 1355-B of 2010, decided on 27th August, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 324/ 148/ 149/ 447/511---Attempt to commit qatl-e-amd, rioting armed with delay weapons, criminal trespass, attempting to commit offences punishable with imprisonment for life or for a shorter term---Bail, grant of---Five persons from the accused side including the present accused had sustained injuries during the occurrence and their cross version had also been recorded---No doubt accused was nominated in the F.I.R. with active role of causing injury to brother of complainant, but both the sides had claimed the opposite side to be aggressor---Was yet to be determined as to who was the aggressor and who had acted in self defence and whether self defence had been exceeded, which was possible after recording of evidence---Accused was behind the bars for the last four months and was no more required for further investigation---Accused was admitted to bail in circumstances.

2010 MLD 250; PLJ 2009 Cr.C. Lah. 1116; 2009 PCr.LJ 1376; 2005 YLR 646 and 2009 PCr.LJ 908 ref.

Malik Jawad Khalid for Petitioner.

Basharat Ullah Khan for the Complainant.

Kh. Sohail Iqbal D.P.-G. for the State.

Manzhar S.-I. and Ameen S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 628 #

2011 Y L R 628

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

Mst. AZRA TABASSUM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2057 of 2000, heard on 23rd November, 2010.

Penal Code (XLV of 1860)---

----Ss.302/452---Criminal Procedure Code (V of 1898), Ss.417(2-A), 249-A & 265-K--Qatl-e-amd and house-trespassing---Appeal against acquittal---Trial Court on date fixed on the application of accused persons filed under S.265-K, Cr.P.C., without recording any evidence had acquitted accused persons just relying on the findings of different Police Officers who in their investigation had found them innocent---Ipse dixit of the Police regarding guilt or innocence of accused was not admissible in evidence---Sufficient material was available on file. to proceed with the trial against accused persons---Twelve prosecution witnesses had joined the investigation and their statements under 5.161, Cr.P.C. had also been recorded by the Investigating Officer---Evidence so recorded prima facie contained the material which connected accused with the crime---Verdict of Trial Court regarding the acquittal of accused persons without recording of all that evidence, was premature in the circumstances of the case---Trial Court no doubt had jurisdiction to acquit an accused at any stage of the case on the relevant provision of law was very much clear on the subject, but it was also well settled that S.249-A and S.265-K, Cr.P.C. were an exception to the general rule---Said provisions being of utmost importance had to be construed very strictly---Depriving a complainant to prove his case through the evidence, collected during the investigation without strong and exceptional reasons, was not proper and fair exercise of jurisdiction---Acquittal of accused persons in the case under S.265-K, Cr.P.C., was unwarranted and not tenable, in circumstances---Judgment passed by the Trial Court was set aside and case was remanded to the Trial Court to decide the matter afresh in accordance with law.

Saleem Akram Chaudhry for Appellant.

Chaudhry Muhammad Mustafa. Deputy Prosecutor-General for the State.

Chaudhry Baleegh-uz-Zaman for the Complainant.

Date of hearing: 23rd November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 647 #

2011 Y L R 647

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Ch. MUHAMMAD ASLAM and another---Petitioners

Versus

Sirdar AHMAD NAWAZ SUKHERA and another---Respondents

Criminal Revision No.735 of 2010, decided on 20th October, 2010.

(a) Illegal Dispossession Act (XI of 2005)---

---Ss. 3 & 4---Illegal dispossession---Appreciation of evidence---Complainant had alleged that co-accused along with twenty five unknown persons had participated in the occurrence; and incident had taken place on the conspiracy aft/ permission of the accused---No place was mentioned as to at which place the conspiracy was hatched by accused; and who were the witnesses of the said conspiracy--By filing the private complaint a contradictory stance had been taken that co-accused had told the complainant that he was ordered by the accused to take the possession---No legally admissible evidence was available on record to make out a prima facie case against the accused---Statement of co-accused had no legal value---Accused, otherwise being abroad at the relevant time, was not physically present at the time of alleged occurrence narrated by the complainant in his private complaint---Provisions of S.3 of Illegal Dispossession Act, 2005 were not attracted in the case---Accusation levelled by the complainant in his complaint to the extent of conspiracy of accused was mere a bald accusation which was not substantiated by any other material available on record---No jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning had been pointed out by the counsel for the complainant so as to warrant an interference in the impugned order---Revision being devoid of any merits, was dismissed, in circumstances.

2007 SCMR 10664 2010 YLR 593; PLD 2010 SC 661; PLD 1968 Lah. 703; 1991 PCr.LJ 1063; 1996 MLD 186; 2005 YLR 3258; 1986 MLD 2719; Muhammad Aslam Shah v. The State 1993 PCr.LJ 704; Faqir Muhammad v. The State PLD 1971 Lah. 929; Riasat Ali and another v. The State PLD 1991 SC 397 and Suhail and 3 others v. The State 2001 PCr.LJ 1086 ref.

(b) Illegal Dispossession Act (XI of 2005)---

----Preamble, Ss.3 & 4---Object and purpose of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 had been inducted into criminal law for the intruders called "property grabbers" also commonly known in local style of speaking as "qabza group" or "land mafia , whose primary chore or errand was to illegally or forcibly take possession of immovable properties belonging to other persons by way of utilizing force---Contents and objectives of Illegal Dispossession Act, 2005 would be attracted only upon the said persons; and the same did not apply on the persons who had no credentials or antecedents of being property grabbers or being member of a 'qabza group' or `land mafia'---Accused. in the present case was owner of the land in dispute and he was not possessing any history so as to establish that he belonged to property grabbers or being member of a qabza group or land mafia---Petition being devoid of merits was dismissed.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Bashir Ahmad v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661 ref.

----S. 109---Abetment---Provisions of S.109, P.P.C. would be attracted in view of facts and circumstances of each case---Said provisions would not attract in the special law---Unless the special law itself indicated about the application of certain penal provisions, same could not be applied or set into motion.

Mst. Robina Ashraf and 5 others v. Mst. Shagufta Fardous and 3 others 2009 PCr.LJ 1189; Basharat Iqbal v. Dr. Nargis Rehana and another 1993 MLD 571; Syed Tofazal Hussain Shah and 2 others v. The State and others 1991 PCr.LJ 1063 and Saif Shah and 2 others v. Gulnaz Bokhari and another 1996 MLD 186 ref.

Farooq Amjad Meer for Petitioners.

Abdus Samad, Additional Prosecutor-General for the State.

Syed Zamir Hussain for Respondent No.1.

Date of hearing: 20th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 654 #

2011 YLR 654

[Lahore]

Before Ch. Iftikhar Hussain and Syed Mazahar Ali Akbar Naqvi, JJ

ADAM KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.12441-B of 2010, decided on 2nd December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possession of narcotics---Bail, grant of---Further investigation---Case against accused was slightly on the higher side of the upper limit of S.9(b) of the Control of Narcotic Substances Act, 1997---Accused was stated to be previous non-convict and was behind the 'bars since 17-8-2010, date of his arrest---Accused was no more required by the Police for the purpose of further investigation---Accused was admitted to bail, in circumstances.

Muhammad Shoaib Kokhar for Petitioner.

Ch. Karamat Ali, D.P.G. for the State.

Muhammad Ehsan, S.-I. with police record.

YLR 2011 LAHORE HIGH COURT LAHORE 686 #

2011 Y L R 686

[Lahore]

Before Muhammad Yawar Ali, J

USMAN NOOR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 11772-B of 2010, decided on 10th November, 2010.

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

----S. 498---Pre-arrest bail---Guidelines with regard to the grant of pre-arrest bail to an accused stated.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 ref.

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

----S.498---Penal Code (XLV of 1860), S.420/468/471/409---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal breach of trust---Pre-arrest bail, refusal of----F.I.R. was not shown to have been registered with mala fide intention against the accused---Accused had not stated in the petition anything as to why a false and fabricated case had been registered against hint by a multi-national Bank---F.I.R. simply contained a bald assertion of case having been registered as a result of mala fides' on the part of the complainant and the prosecution in order to achieve ulterior motives---No reason was either mentioned in the petition or argued before the court to support the said assertion---Material particulars of mala fides had to be given in the petition and proved in the court---No court has any power to grant pre-arrest bail unless the F.I.R. was shown to be tainted with mala fides---Case against accused was not shown to have been registered with mala fide intention and ulterior motives---Pre-arrest bail was refusal to accused in circumstances.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 and The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others and The Secretary, Department of Education, Government of Punjab v. M.R. Toosy, Ex-Principal, Government College, Sargodha and others PLD 1974 SC 151 ref.

----S.498---Pre-arrest bail---Mala fides--Material particulars of mala fides have to be given in the body of the petition before a person can be allowed to allege and prove the same.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others and The Secretary, Department of Education, Government of Punjab, v. M.R. Toosy, Ex-Principal, Government College, Sargodha and others PLD 1974 SC 151 ref.

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

----S.498---Pre-arrest---Scope---No court had any power to grant pre-arrest bail, unless it can be shown that the F.LR. in question is tainted with mala fides.

M. Anwar Sipra, Advocate along with petitions (in person).

Ms. Muqadus Tahira, D.P.-G.

Mian M. Sikandar Hayat for Respondent No.2.

Raja Zulfiqar Bashir Ahmad, Manager Litigation.

Anwar Cheema Inspector, Yaqoob S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 689 #

2011 Y L R 689

[Lahore]

Before Muhammad Anwaarul Haq, J

SAADI AHMAD---Petitioner

Versus

THE STATE and others-Respondents

Criminal Miscellaneous No. 12629-B of 2010, decided on 6th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.392, 395 & 412---Robbery, dacoity, dishonestly receiving property stolen in the commission of a dacoity---Bail, grant of---Further inquiry---Delay of two months in lodging the initial F.I.R. without any explanation in which accused was not nominated, but was introduced through a supplementary statement of the complainant later on without disclosing any source of information regarding culpability of accused---Prima facie, recovery of mobile phone shown against accused was doubtful because the brand of mobile phone allegedly recovered at the instance of accused was different than mentioned in the F.I.R.---Mere recovery of unspecified cash of Rs.10,000, was not enough to keep accused behind the bars for an indefinite period---Evidentiary value of those recoveries could only be determined after recording of some evidence by the Trial Court---Identification parade conducted in the case had least significance because the complainant had nominated accused with all their details, much prior to the identification parade---Accused was behind the bars since 4-12-2009 without any substantive progress in the trial and his further detention in jail would not serve any beneficial purpose---Case against accused, prima facie, was one of further inquiry in his guilt and fell within purview of subsection (2) of S.497, Cr. P. C. ---Accused was admitted to bail, in circumstances.

Shahzad Hassan Sheikh for Petitioner.

Tasawar Ali Khan Rana, Deputy Prosecutor-General for the State with Muhammad Nawaz S.-I. with record.

Khan Talib Hussain Baloch for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 697 #

2011 YLR 697

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

M. YAQOOB---Petitioner

Versus

GHULAM RASOOL---Respondent

Civil Revision No. 119-D of 1995/(BWP), decided on 7th October, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Pronouncement of disinheritance (Aaq) by father against one of his sons---Trial Court decreed the suit---Appellate Court accepted defendant's appeal---Plaintiff was son of the defendant who disinherited him---Pronouncement of disinheritance did not disentitle a person from his share in inheritance---Defendant transferred property to his other sons in order to. deprive the plaintiff of his legal right in property against public policy---Defendant in the past had handed over possession of the property in question to plaintiff (who was disinherited) making the gift transaction complete---Having transferred share and possession to plaintiff/son, father was not competent to transfer his entire land in favour of others by depriving the plaintiff (one of the sons) of his legal rights---Appellate Court committed illegality and misreading of evidence---Impugned judgment and decree of the Appellate Court was set aside while judgment and decree of Trial Court was confirmed/restored.

Masood Ahmed Bajwa for Petitioner.

Naveed Farhan for Respondent.

Date of hearing: 20th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 705 #

2011 YLR 705

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

QADIR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1281 and Murder Reference No. 635 of 2005, heard on 26th October, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Presence of prosecution witnesses at the place of occurrence had fully been established, their relations with the deceased, further suggested that their presence in the house with the deceased was quite natural---Witnesses remained consistent on all material aspects of the case, even after a lengthy cross-examination---Minor variations in minute details of the incident were insignificant; and did not affect their straightforward, coherent and natural narration of the whole incident---Medical evidence and recovery of weapon of offence coupled with positive reports of Chemical Examiner and that of Serologist, further corroborated ocular account--Prosecution, in circumstances had proved its case against accused beyond any shadow of doubt to maintain his conviction under S.302(b), P.P.C.-However, certain extenuating circumstances were in the case to take a lenient view--Case of prosecution was that accused had himself inflicted injuries on his person during the occurrence, whereas accused had attributed his injuries to other person---Accused had been medically examined on the same day through Police---Medicolegal report reflected that the injuries were fresh and were result of some fight---Record showed that deceased and said other persons were sleeping on one and the same cot, but said other person had not been produced---As to what exactly happened between the deceased and accused at the time of occurrence remained in mystery---Police, even after Medico-legal examination of accused, immediately after occurrence, mysteriously deferred his arrest for five days---All those aspects, were extenuating circumstances in favour of accused---Prosecution had to exclude all extenuating circumstances in favour of accused before praying for his death sentence---Extreme penalty of death awarded to accused being too harsh, lesser sentence of imprisonment for life would meet the ends of justice---Sentence of death of accused was converted into imprisonment for life---Benefit of S.382-B, Cr. P. C. would also be extended to accused.

Sardar Khurram Latif Khan Khosa for Appellant.

Chaudhry Muhammad Mustafa, Deputy Prosecutor-General for the State.

Date of hearing: 26th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 715 #

2011 Y L R 715

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

MANZOOR AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

Writ Petition No. 2087 of 2008, decided on 26th October, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Trial Court decreed the suit for declaration on the basis of consenting statement of the counsel who filed his Vekalatnama on behalf of defendants---Defendants filed application under S.12(2), C.P.C. which was dismissed by the Trial Court---Revision petition filed by defendant before Additional District Judge resulted in remand of the case to Trial Court which restored the suit for decision on merits---Plaintiff filed revision petition before Additional District Judge who remanded the petition to Trial Court---Plaintiff filed constitutional petition against order of remand---High Court directed the Additional District Judge to decide the objection petition himself---Additional District Judge dismissed the revision petition---Validity---Counsel who made consenting statement admitted to have made the statement without instructions from defendants---Fraud as well as misrepresentation was evident from the proceeding of the case---Restoration of the suit was just and legal eventuality circumstances---Cases could not be decided on the basis of presumptions---Plaintiff failed to point out any illegality or irregularity warranting exercise of constitutional jurisdiction by High Court in his favour---Petition was dismissed.

Malik Abdul Ghafoor Awan and Raja Muhammad Sohail Iftikhar for Petitioner.

Sardar Muhammad Hussain Khan for Respondent.

Date of hearing: 12th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 718 #

2011 Y L R 718

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

AZHAR HASSAN alias MEHDI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Appeal No.1990 of 2004, heard on 25th October, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence--Sentence, reduction in---F.I.R. had been promptly lodged---Eye-witnesses being closely related to the deceased and itnamates of the house of occurrence, their presence at the site was natural---None of the eye-witnesses had any enmity with the accused for his false involvement in the case---Ocular evidence was consistent on all material particulars regarding the role assigned to accused---Close relationship of eye-witnesses with the deceased could not depreciate their testimony, which impaired confidence---Medical evidence had supported the ocular account qua the accused--Specific plea taken by accused in his statement recorded under S.342, Cr.P.C. of having fired at. the deceased under grave and sudden provocation, was not substantiated by him as mandated under the law---Conviction of accused was maintained---Four other co-accused had also been nominated by the complainant in the F.I.R. and the private complaint, out of whom three co-accused were attributed fire-arm injuries on the deceased and the fourth co-accused had simply been attributed a "Lalkara "---Said co-accused had been acquitted by Trial Court and their acquittal had not been challenged either by the complainant or the State---Recovery of pistol at the instance of accused could not corroborate the ocular evidence as no crime empty was taken into possession from the spot---Such extenuating circumstances had suggested that the case against accused was not of capital sentence---Death sentence of accused was converted into imprisonment for life in circumstances.

Ghulam Rasool v. State 1998 MLD 1366; Waqar Ahmad v. Shaukat Ali and others 2006 SCMR 1139; Abdul Kareem v. The State 2010 SCMR 589; Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111; Sharafat Ali Khan v. The State 2010 SCMR 1205; Muhammad Riaz and another v. The State 2007 SCMR 1413 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Statement of accused recorded under S.342, Cr.P.C. when to be accepted in toto---Entire statement of accused recorded under S.342, Cr.P.C. can be accepted if prosecution evidence does not support the case, but when prosecution evidence is relied upon then the incriminating part of his statement can be taken into consideration.

Abdul Kareem v. The State 2010 SCMR 589 ref.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence---Discretion of Court--No doubt normal penalty for qatl-e-amd provided under the law is death, but since imprisonment for life is also a legal sentence for such offence the same must be kept in mind whenever the facts and circumstances of the case warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case.

Sharafat Ali Khan v. The State 2010 SCMR 1205; Muhammad Riaz and another v. The State 2007 SCMR 1413 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

Ejaz Maqbool Malik for Appellant.

Ch. Muhammad Mustafa, D.P.-G. for the State.

Shaukat Nawaz Gondal for the Complainant.

Date of hearing: 25th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 729 #

2011 Y L R 729

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

GHULAM RASOOL---Petitioner

Versus

ZAINAB and others---Respondents

Civil Revision No.154-D of 1999, decided on 7th October, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Trial Court decreed the suit---Appellate Court dismissed appeal of defendants---Validity---Ingredients of the sale effected between the sisters and brothers were complete---Vendee brothers being in possession of the land in dispute since the very inception, question of payment of any share of produce to plaintiff could not arise---Plaintiff failed to prove any misrepresentation on the part of defendants in respect of mutations in dispute---Evidence on record showed that mutations in favour of defendants were rightly sanctioned---Payment of the consideration price was proved---Courts below failed to consider facts of the case---Judgments and decrees passed by the courts below being hot sustainable in law, were set aside---Plaintiff's suit was dismissed.

Naveed Farhan for Petitioner.

Masood Ahmed Bajwa for Respondents.

Date of hearing: 20th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 734 #

2011 Y L R 734

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

KHIZAR HAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1937 and Murder Reference No.796 of '2005, heard on 10th November, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant, father of the deceased, had not seen the occurrence and had based his F.I.R. on the information received from two eye-witnesses---Motive for the occurrence had rightly been disbelieved by Trial Court for want of convincing evidence---Curiously enough eye-witnesses, though closely related to the deceased, did not identify him while being beaten by the accused and correctly identified the accused at the time of incident---Eye-witnesses did not report the matter to anybody till next morning, which fact had exhibited their highly unnatural conduct---Medical evidence had not supported the prosecution evidence-Recoveries having not been effected either from the accused or at his instance, were of no avail to prosecution---Prosecution evidence had already been disbelieved by Trial Court qua two co-accused in the case and the sane qua the present accused was not corroborated by any independent evidence---Case against accused was doubtful, benefit of which had to be given to him not as a matter of grace but as a matter of right---Accused was acquitted in circumstances.

Ghulam Mustafa and another v. State 2009 SCMR 916; Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Iftikhar Hussain v. The State 2004 SCMR 1185; Akhtar Ali and others v. The State 2008 SCMR 6; Rohtas Khan v. The State 2010 SCMR 566; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Medical evidence, corroborative value---Medical evidence may confirm the ocular evidence with regard to seat of injury, duration of injury, nature of injury and the kind of weapon used in the occurrence, but it cannot connect the accused with the commission of the crime.

Ghulam Mustafa and another v. State 2009 SCMR 916 ref.

----S. 302(6)---Qalt-e-amd---Appreciation of evidence---Interested witnesses, credibility of---Principle---Where evidence on record warrants a doubt in the credibility of interested witnesses, then their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources.

Ghulam Mustafa and another v. State 2008 SCMR 916 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extention of----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 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Bashir Abbas Khan for Appellant.

Ch. Muhammad Mustafa, D.P.-G. for the State.

Date of hearing: 10th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 744 #

2011 Y L R 744

[Lahore]

Before Sh. RauF Ahmad, J

Rana MUHAMMAD SHAFI---Petitioner

Versus

AMANULLAH and 3 others---Respondents

Civil Revision No. 3852 of 2010, decided on 1st December, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2---Limitation Act (IX of 1908), Art.52---Suit for recovery---Limitation---Trial Court decreed the suit---Appellate Court dismissed appeal of defendant---Defendant contended that the courts below erred by relying on the Khata' maintained by the plaintiff Validity---Khatas' and `Bahis' maintained in ordinary course of business were admissible in evidence---Under Art.52 of Limitation Act, 1908, suit for recovery of price of goods sold and delivered could be filed within three years of the delivery of goods---According to Khata maintained by defendant he received the last supply within three years of filing of the suit---Courts below committed no error warranting interference in exercise of revisional jurisdictional---Revision was dismissed in limine.

Syed Fazal Abbas Bukhari for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 745 #

2011 Y L R 745

[Lahore]

Before Ch. Iftikhar Hussain and Syed Mazahar Ali Akbar Naqvi, JJ

NAWAB KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 14562-B of 2010, decided on 6th January, 2011.

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---Case against accused was slightly on the higher side of upper limit of S.9(b) of Control of Narcotic Substances Act, 1997---Accused was stated to be previous non-convict and was behind the bars since 17-8-2010, the date of his arrest---Person of accused was no more required by the Police for the purpose of further investigation---Accused was admitted to bail, in circumstances.

Muhammad Shoaib Khokhar for Petitioner.

Ch. Karamat Ali, D.P.-G. for the State.

Muhammad Yaqoob, S.-I. with police record.

YLR 2011 LAHORE HIGH COURT LAHORE 758 #

2011 Y L R 758

[Lahore]

Before Kh. Imtiaz Ahmad, J

Mst. SUGHRAN AFZAL---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No. 6022 of 2010, decided on 14th December, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for maintenance and recovery of dower amount by wife---Cross-examination of one of plaintiff's witnesses was completed when counsel for the plaintiff on the basis of some urgency sought adjournment and did not produce the remaining witnesses---Adjournment was opposed by counsel of the defendant (husband) on the ground that due to adjournment for further cross-examination, his cross-examination would be disclosed and that he would complete cross-examination within 15 minutes before expiry of court's hours---Trial Court struck off affidavits filed by the plaintiff as well as evidence of rest of the witnesses and fixed case for documentary evidence of the plaintiff---Defendant asserted that order passed by Trial Court was an interlocutory order and the constitutional petition was not maintainable---Validity---Record revealed that plaintiff was positively, directed by the court to produce witnesses but he refused to do so, and no illegality was found in the order of Trial Court---Lis was pending and so far had not been decided by the Trial Court, which was not challengeable in the constitutional petition being interlocutory in nature---Constitutional petition was dismissed by High Court.

Syed Saghir Ahmad Naqvi v, Province of Sindh through Chief Secretary, S and GAD, Karachi and another 1996 SCMR 1165; Hashim Khalil Khan v. VIIIth Civil and Family Judge and Judicial Magistrate, Karachi Sought and another 2009 CLC 440; Saqib Mazhar v. Judge Family Court, Wazirabad and another 2008 CLC 607 and Munir Alam through Special Power of Attorney v. Civil Judge/Family Court, Lahore and 2 others 2009 CLC 442 ref.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S and GAD, Karachi and another 1996 SCMR 1165; Saqib Mazhar v. Judge Family Court, Wazirabad and another 2008 CLC 607; Hashim Khalil Khan v. VIIIth Civil and Family Judge and Judicial Magistrate, Karachi Sought and another 2009 CLC 440 and Munir Alam through Special Power of Attorney v. Civil Judge/ Family Court, Lahore and 2 others 2009 CLC 442 rel.

Mian Khalid Hussain Mitroo for Petitioner.

Ch. Muhammad Ahmad for Respondent No.2.

Date of hearing: 14th December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 763 #

2011 Y L R 763

[Lahore]

Before Rauf Ahmad Sheikh, J

GHULAM HUSSAIN---Petitioner

Versus

Shahzada KHURRAM NAZIR---Respondent

Civil Revision No. 3554 of 2010, decided on 24th November, 2010.

Civil Procedure Code (V of 1908)---

----O. VIII, R.10 & O.XLIII, R.1(b)---Punjab Pre-emption Act (IX of 1991), S.6---Limitation Act (IX of 1908), Ss.5 & 14---Trial Court struck off defendant's right to file written statement---Additional District Judge admitted appeal filed by defendant but later allowed the .same to be withdrawn for want of pecuniary jurisdiction---Defendant contended that penal action under O. VIII, R.10, C.P.C. could not be taken against him without providing copy of the plaint---Validity---Copy of the plaint was not delivered to the defendant---Penal action under O. VIII, R.10, C.P.C. could not be taken against defendant without supplying the copy of plaint which should have been sent along with summons for settlement of issues or at the time of his first appearance---Additional District Judge committed mistake by admitting appeal despite lacking pecuniary jurisdiction---Said appeal remained pending for six months before wrong forum though the same was not maintainable under O.XLIII, R.1(b), C.P.C.-Litigant could not be made to suffer for the mistake committed by courts---Revision was accepted with direction to Trial Court to afford opportunity to the defendant to file written statement.

1998 SCMR 2296; PLD 2006 Lah. 18; PLD 1977 SC 102; 1999 SCMR 1892; 2001 SCMR 1254; 2000 SCMR 1889; PLD 1991 SC 957; 1990 SCMR 635, 1988 SCMR 2 and 1985 SCMR 1003 ref.

2006 CLC 1473 and 2007 CLC 1257 distinguished.

Muhammad Nadeem Salim for Petitioner.

Hamid Iftikhar for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 767 #

2011 Y L R 767

[Lahore]

Before Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

MUHAMMAD ASIIRAF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1315 and M.R. No.590 of 2005, heard on 19th October, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Eye-witnesses had dishonestly improved their statements at the trial in order to bring the same in conformity with the medical evidence and to fill up the lacuna left in the prosecution case, making their veracity doubtful and unreliable---F.I.R. had been registered after preliminary inquiry by the police---Presence of eye-witnesses on the spot at the relevant time was not undoubtedly proved---Medical evidence had contradicted the ocular testimony---No source of light having been mentioned in the F.I.R. and the site plan, identification of assailants at the place of occurrence was not possible at night---Motive for the occurrence was not substantiated on record---Detaining of crime empties in the "Mal Khana" for three weeks without any explanation had indicated mala fides on the part of the prosecution---Prosecution had failed to reconcile the situation as to how both the crime empties were found to have been fired from the gun recovered at the instance of accused, when according to the F.I.R. he had fired a solitary shot on the deceased---Even otherwise after the discard of the ocular evidence the recovery by itself could not form a basis for conviction---Prosecution case was replete with doubts, benefit whereof had to go to accused as his right---Accused was acquitted in circumstances.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Amir Zaman v. Mahboob and others 1985 SCMR 685; Sher Dil alias Sher Gul and another v. The State 1973 PCr.LJ 802; Aslam Khan v. The State 1987 PCr.LJ 1677; Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others 1984 SCMR 42; Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825; Saifullah v. The State 1985 SCMR 410; Muhammad Luqman v. The State PLD 1970 SC 10 and Tariq Parvaiz v. The State 1995 SCMR 1345 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Evidence of recovery---Nature and scope---Recovery is always considered to be a corroboratory piece of evidence which is meant to test the veracity of ocular evidence---Both evidences are to be read together---Recovery evidence is not to be read in isolation.

Saifullah v. The State 1985 SCMR 410 ref.

----S. 302(b)---Qalt-e-amd---Appreciation of evidence---Improvements---Effect--Improvements made by a witness at the trial found to be deliberate and dishonest, cast serious doubt on his veracity and render his statement unreliable.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 ref.

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

----S. 302(b)---Qalt-e-amd---Appreciation of evidence---Benefit of doubt, extension of--Many circumstances creating doubt are not required for giving its benefit to accused---Single circumstance creating doubt in a prudent mind about the guilt of accused makes him entitled for its benefit, not as a matter of grace and concession but as a matter of right.

Muhammad Luqman v. The State PLD 1970 SC 10 and Tariq Parvaiz v. The State 1995 SCMR 1345 ref.

Azam Nazeer Tarrar and Mudassar Naveed for Appellants.

Ch. M. Mustafa, Dy. Prosecutor General for the State.

Date of hearing: 19th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 777 #

2011 Y L R 777

[Lahore]

Before Ijaz Ahmed, J

Sheikh UMAR FAROOQ---Petitioner

Versus

Mst. TAJ BEGUM and others--- Respondents

Writ Petition No. 4171 of 2010, decided on 13th December, 2010.

Civil Procedure Code (V of 1908)---

----O. XVIII, R.17---Qanun-e-Shahadat (10 of 1984), Art.133---Constitution of Pakistan, Art.199--Constitutional petition--Recalling/re-examining a witness---Trial Court dismissed defendant/petitioner's application for recalling and re-examining him in order to clear an ambiguity in his statement made in examination-in-chief---Additional District Judge dismissed petitioner's revision---Validity---Portion of statement which petitioner sought to make clear through his re-examination was not ambiguous---Application filed after 3 months of recording of evidence was a device to frustrate the trial---Constitutional jurisdiction of High Court could not be invoked after exhausting the statutory remedies provided by law---Petition was dismissed.

Anwar Ahmad v. Mst. Nafis Bano through L.Rs. 2005 SCMR 152 and Qamar-ud-Din v. Muhammad Din PLD 2001 SC 518 ref.

Messrs Ilyas Marine and Associates Ltd. v. Muhammad Amin Lasania and another 1997 CLC 763 rel.

Muhammad Younus Khan and 12 others v. Govt. N. W. F. P. through Secretary, Forest and Agriculture Peshawar and others 1993 SCMR 618 fol.

Mirza Viqas Rauf for Petitioner.

Muhammad Fazil Siddiqui and Ms. Farhana Qamar for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 781 #

2011 Y L R 781

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ISHAQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9901-B of 2010, decided on 30th September, 2010.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---No specific injury had been attributed to accused in the F.I.R. and he appeared to have fired only ineffective shots---Accused during investigation was found to be merely present at the spot empty handed--No incriminating recovery had been made from the accused---Guilt of accused, thus, needed further probe under S.497(2), Cr.P.C.---Alleged abscondence of accused could not be a clog in his way to grant of bail, when his case required further inquiry into his guilt---Police having mentioned the age of accused as 65 years, prosecution itself had mentioned him to be an old man---Old age itself being an infirmity, case of accused also fell within the first proviso to S.497(1), Cr.P.C.---Accused was released on bail in circumstances.

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

----S.497(2)---Penal Code (XLV of 1860), S.302/324/148/149--Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail---Abscondence of accused---Effect---Abscondence of accused cannot clog the grant of bail to accused when otherwise his case is found to be one of further inquiry within the meaning of S.497(2), Cr.P.C.

----S.497(1), first proviso---Penal Code (XLV of 1860), S.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail---Old-age itself is an infirmity---Accused aged 65 years can be said to be an old and infirm person within the meaning of the word "infirm" in the first proviso to S.497(1), Cr.P.C.

Mian Pervaz Hussain for Petitioner.

Ch. Abdul Razzaq, D.P.G. for the State with Muhammad Farooq, A.S.-I. with record.

Ch. Shahid Hanif Jutt for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 788 #

2011 Y L R 788

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD YASIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9293-B of 2010, decided on 13th October, 2010.

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

----S.497(2)---Penal Code (XLV of 1860), S.302/34/---Qatl-e-amd---Bail, grant of---Accused was not named in the F.I.R.---Complainant in his supplementary statement had disclosed only to the extent that his brothers had told him that the accused had taken away the deceased from the house---Two other prosecution witnesses in their statements, recorded under S.161, Cr.P.C. had claimed to have seen two persons decamping from the scene after firing on the eventful night---No other evidence was available on record against the accused---Evidentiary value of the aforesaid belated statements recorded after one and a half months of the incident, was yet to be determined at the trial---Case of accused was one of further inquiry into his guilt as envisaged under S.497(2), Cr.P.C.---Accused could not be unnecessarily detained in jail even for a moment after he was found entitled to bail---Bail was allowed to accused in circumstances.

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

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Case of further inquiry---Accused cannot be detained unnecessarily even for a single moment after his case is found to be one of further inquiry.

Syed Mumtaz Ali Shah Hamdani for Petitioner.

Saeed-ur-Rehman, District Public Prosecutor for the State.

Muhammad Ashraf, S.I. for police record.

Ch. Abdul Ghaffar for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 803 #

2011 Y L R 803

[Lahore]

Before Sh. Najam Ul Hasan and Sardar Tariq Masood, JJ

NADEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Appeals Nos.1585, 1408, 1218 of 2005 and M.R. No. 104 of 2006, heard on 26th November, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 394---Qatl-e-amd, voluntarily causing hurt in committing robbery---Appreciation of evidence---Matter was reported to the Police after delay of 10 hours---All the four accused could not be identified as they had muffled their faces---Only evidence available with the prosecution was the extra judicial confession made by accused persons with two prosecution witnesses after 1-1/2 years of the occurrence---Matter regarding extra Judicial confession made by accused after delay of 1-1/2 years, was not natural and certain contradictions existed in the statements of said two witnesses, which had created doubt in their statements---Prosecution could not bring on record any evidence to show that the witnesses before whom accused made extra judicial confession, were previously known to the accused; or as to how they approached them; or they were enjoying good status in the area---Such joint extra judicial confession, was not sufficient for maintaining the conviction of accused persons in the charge of capital sentence---No kind of weapon was mentioned in the F.I.R.---No medico-legal report of the deceased was available to indicate as to who took him to the hospital---No crime empty was recovered from the place of occurrence---Recovery of gun from one of accused persons did not provide any strength to the prosecution case in the absence of any empty---No role of firing was attributed to other three accused persons---Case was of no evidence at all and accused could not have been convicted and sentenced on the basis of such like evidence---Prosecution having failed to prove its case against accused persons, they were acquitted of all the charges and were set at liberty, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 ref.

Ijaz Maqbool Elahi Malik for Appellant (in Criminal Appeal No. 1585 of 2005).

Nasir-ud-Din Khan Nayyar for Appellant (in Criminal Appeal No. 1218 of 2005).

Barrister Salman Safdar for Appellant (in Criminal Appeal No. 1408 of 2005).

Shahid Bashir Chaudhry, D.P.-G. for the State.

Date of hearing: 26th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 823 #

2011 Y L R 823

[Lahore]

Before Sh. Najam-ul-Hasan and Sardar Tariq Masood, JJ

MEHBOOB and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.523, 478 of 2005; 498 of 2009 and Murder Reference No.251 of 2005 heard on 9th December, 2010.

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

----Ss. 302(b)/324/34/148---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Sentence, reduction in---F.I.R. was promptly lodged---Prosecution witness who received one firearm injury on his left thigh in the occurrence, his presence at the spot was natural---Six crime empties and firearms recovered at the instance of two accused, were sent to the firearm expert; and report of said firearm expert was that all six empties were fired from the rifle recovered from main accused---Main accused and one of his co-accused were assigned specific injuries on the person of the deceased, which later on were found to be present on the person of the deceased by the Doctor who conducted the postmortem examination---Main motive was also alleged against said accused; they were present at the place of occurrence at a very first instance and remaining accused came later on---Prosecution, in circumstances, had proved its case against said two accused persons beyond reasonable doubt---Case of the other two accused remained doubtful as the injuries assigned to them on the person of deceased were also assigned to five other persons---Question of common intention, was not proved from the facts and circumstances of the case, because during investigation four persons were found innocent, three remained unknown and two were acquitted by the Trial Court---Prosecution, in circumstances, to some extent was not telling the truth and was deliberately concealing some true facts from the court---Prosecution was duty bound to prove its case; and the benefit of every doubt ought to be extended in favour of accused---Prosecution had been able to prove its case against main accused and his co-accused, whereas no sufficient evidence was available to connect remaining two co-accused with the offence of murder---Main accused having also received injuries, it had indicated that prosecution was suppressing something---Death sentence awarded to main accused, in circumstances, was too harsh and he was entitled to leniency---Upholding his conviction under S.302(b)/34, P.P.C. his death sentence was converted to that of imprisonment for life---Conviction and sentence of co-accused of main accused under S.302(b)/34, P.P.C., were also maintained---Sentence of imprisonment of life awarded to said co-accused could not be enhanced to death sentence, in circumstances.

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

----Ss. 302(b)/324/34/148---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt---Recovery of rifle .303 bore at the instance of one of co-accused did not support the prosecution case, but it went in favour of said co-accused that the empties secured from the spot did not match with the rifle recovered from him---Case of said co-accused and other co-accused was distinguishable from main accused and the co-accused who were convicted and sentenced---Case against said two co-accused remained doubtful and no sufficient eredc6ce was available to connect them nuts the offence of murder---As no corroborative piece of evidence was available on record to establish the ocular account qua the involvement of said two co-accused, they were acquitted extending them benefit of doubt and were released, in circumstances.

Noor Muhammad and another v. The State 2008 SCMR 69 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.

Dr. Muhammad Akmal Saleemi, Sikandar Zulqarnain Saleem and Aftab Hussain Bhatti for Appellants.

Shahid Bashir Chaudhry, Deputy Prosecutor-General for Respondent.

Date of hearing: 9th December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 840 #

2011 Y L R 840

[Lahore]

Before Sh. Najam-ul-Hassan and Sardar Tariq Masood, JJ

Rana MUHAMMAD SHAHID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 406-J of 2006 and Murder Reference No. 709 of 2005 heard on 25th November, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Occurrence took place in front of the shop of the complainant and the deceased in the broad daylight---F.I.R. was promptly registered and postmortem was also conducted within five hours of the occurrence---No time was available for the complainant or the Police to manoeuvre the case---Name of the witness was duly mentioned in the inquest report---Presence of the witness at the place of occurrence when the Police came, was also proved---Said witness was neighbour of the complainant. and his presence at the place of occurrence was more than natural---Only accused had been nominated as an accused and specific role of firing with .12 bore gun on the person of the deceased was attributed to him---Time of occurrence, the kind of weapon and seat of injury mentioned in the postmortem report corroborated the ocular account furnished by the eye-witnesses---Present was a case in which the allegation was against the single accused and the F.I.R. was registered by the son of the deceased---No reason existed for the son to falsely implicate accused---Kith and kin of the deceased did not ordinarily substitute the red culprit---Substitution was a rare phenomenon, because the interested witness would not normally allow the real murderers of their relations to escape by involving innocent persons---No crime empty was recovered from the place of occurrence---Police collected blood stained earth from the spot and the cot on which the deceased was present, was also taken into possession which had provided support to the ocular account---Seat of injury was such that the intention of accused was absolutely clear and he was sure that the result of such injury would be the death and nothing else---Prosecution, in circumstances, had proved its case against accused to its hilt--Nothing was on record entitling accused to any lenient view regarding the sentence---Normal sentence in such like cases was death---No mitigating ground was for awarding lesser penalty to accused---Order accordingly.

Muhammad Khalid Khan v. Abdullah and others 2008 SCMR 158; Irshad Ahmad and others v. The State and others PLD 1996 SC 138 and Nasir Shah v. The State 2006 SCMR 1796 ref.

Rana Asad Ullah Khan for Appellant.

Shahid Bashir Ch., D.P.-G. for the State.

Date of hearing: 25th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 851 #

2011 Y L R 851

[Lahore]

Before Ch. Muhammad Tariq, J

SAKINA BIBI and others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5437-B of 2010, decided on 9th June, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.420/468/471/380---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, theft in dwelling house---Pre-arrest bail, grant of---Lady accused only was alleged to have prepared a forged and fabricated sale-deed in her favour in respect of the disputed house---Registered sale-deed with the photographs of the vendor, vendee and the witness was available on record in favour of the said lady accused---Civil suit in this respect was also pending before a competent court, in which the local commission appointed by the court had approved the possession of the accused over the house in dispute---Sub-Registrar concerned had confirmed that the lady accused had been shown as owner in the relevant record---Other accused persons in the F.I.R. were not alleged to have either executed a forged document or signed the same as marginal witnesses etc.---Aforesaid facts had made the case of accused of further inquiry---Pre-arrest bail was allowed to accused in circumstances.

Azar Lateef Khan for Petitioners.

Arif Kareem Chaudhry, D.P.-G.

Rana Faheem Afzal for the Complainant.

Muhammad Sain, S.I.

YLR 2011 LAHORE HIGH COURT LAHORE 857 #

2011 YLR 857

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD TANAZIR HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 853-B of 2010, decided on 15th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.341/324/34---Criminal trespass and attempt to commit qatl-e-amd---Complainant was examined on the same day---Medico-legal report showed that lacerated entry wound of firearms was on the right thigh of the complainant and was also blackening around the entry wound---Complainant's version was that accused fired while standing outside the car and the bullet hit the complainant after passing through the door of vehicle---If the circumstances would be such, there would have no blackening around the entry wound of the complainant---Investigating Officer had admitted that no empty was recovered from the place of occurrence---Accused was behind the bars for the last more than 8 months---Challan of the case had already been submitted in the court---Accused was no more required for further investigation; his further detention, would not serve any useful purpose---Glaring conflict between the contents of F.I.R. and medico-legal report., had made the case of accused of further inquiry---Accused was allowed bail, in circumstances.

Muhammad Asif Chaudhary for Petitioner.

Tanveer Mehmood, D.P.-G. with Allah Yar, S.-I.

Sajjad Ahmad Bhatti for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 863 #

2011 Y L R 863

[Lahore]

Before Shahid Hameed Dar, J

ABDUL SATTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1985-B of 2010, decided on 1st December, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, refusal of---Car in question was purchased by the petitioner/accused from the complainant and instead of making payment of the consideration amount, he issued the cheques in questioning the name of the complainant knowing that he did not have sufficient funds to meet with the face value of the same---If an offender dishonestly issued cheque towards repayment of loan; or fulfilment of a legal obligation knowingly; that it would be bounced on presentation, would be deemed to have committed an offence within the scope of S.489-F, P.P.C.---If accused would adopt the plea that he had sufficient funds for encashment of the cheque issued by him, the burden to prove the same would be upon accused---Cheques in question had been bounced mainly for the reason that the funds in the relevant account were not sufficient---Having dishonestly issued the cheques in regular intervals with mala fide intention; and being in knowledge that sufficient funds were not available, accused had proved himself to be a habitual offender---Contention of counsel for accused was that offence against accused being punishable with imprisonment of three years, same did not fall within the prohibitory clause of S.497, Cr.P.C.; and should be deemed as a bailable offence as in such like offences, the grant of bail was a rule and rejection thereof an exception---Said contention could not be entertained---Prosecution case against accused brimmed with incriminating connecting evidence; and he had committed a non-bailable offence falling outside the scope of further inquiry as contemplated under S. 497(2), Cr.P.C.---Bail was declined.

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

----S.497(2)---Bail, grant of---Principles---Further inquiry---Accused, notwithstanding the punishment of imprisonment not falling under the prohibitory clause, of S.497, Cr.P.C. could not be admitted to bail as a matter of right, overlooking the attending facts and circumstances of the case---For seeking bail in a non-bailable offence, it was incumbent that accused would establish, though prima facie, the fact, that his case was open to further inquiry within the meaning of S. 497(2), Cr.P.C.

Shameel Ahmad v. The State 2009 SCMR 174 ref.

Muhammad Ilyas Siddiqui for Petitioner.

Raja Rizwan Abbasi for the Complainant.

Muhammad Nazir Abbasi, Standing Counsel.

Ishtiaq Ahmad, S.-I. along with the record.

YLR 2011 LAHORE HIGH COURT LAHORE 866 #

2011 Y L R 866

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD NAWAZ---Petitioner

Versus

DISTRICT POLICE OFFICER and others---Respondents

Writ Petition No.15123-Q of 2010, decided on 13th October, 2010.

Criminal Procedure Code (V of 1898)---

----S.154---Penal Code (XLV of 1860), S. 302/34---Constitution of Pakistan, Art. 199--- Qatl-e-amd--- Constitutional petition---Registration of second F.I.R.---Petitioner complainant had never believed the version of the complainant as contained in the already registered F.I.R. about the occurrence and he had resorted to record his own version---Higher police officials including the DPO had been approached in this behalf by the petitioner, but his request for registration of second F.I.R. was not acceded to---Petitioner had been alleging the murder of his daughter against different accused persons and registration of his F.I.R. was not unnecessary---Station House Officer concerned was consequently directed to register a second F.I.R. forthwith containing the version of the petitioner and then investigate and proceed with the matter strictly in accordance with law--Constitutional petition was allowed accordingly.

PLD 2005 SC 297 and 2001 SCMR 1556 ref.

Ghulam Farid Sanotra for Petitioner.

Barrister Muhammad Ahmad Pansota for Respondent.

Rana Shamshad Khan, Assistant Advocate-General Punjab with Muhammad Zafarullah, S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 876 #

2011 Y L R 876

[Lahore]

Before Rauf Ahmad Sheikh, J

RASHEEDA BIBI---Petitioner

Versus

MUHAMMAD ILYAS REHAN and 4 others---Respondents

Writ Petition No.14059 of 2010, decided on 1st December, 2010.

Penal Code (XLV of 1860)---

----Ss. 420/468/471---Criminal Procedure Code (V of 1898), S.345---Constitution of Pakistan, Art.199---Cheating, forgery and using as genuine a forged document---Constitutional petition---Acquittal on basis of compromise---Petitioner/complainant had assailed the vires of order passed by the Magistrate, whereby respondents/ accused persons were acquitted on the ground that a compromise was effected between the complainant and accused persons at the time of hearing of bail petition---Schedule II of Cr.P.C., had provided that an offence punishable under S.420, P.P.C. was compoundable with the permission of the court, whereas the offence punishable under Ss.468/471, P. P. C. was not compoundable---Compromise at the bail stage did not constitute a valid ground for acquittal of accused---Trial Court was not vested with the powers to act upon the statement allegedly made during hearing of bail with regard to compromise and acquitting accused on the basis of alleged compromise in a non-compoundable offence---Order acquitting accused, in circumstances, was patently illegal and without lawful authority---Such orders would cause miscarriage of justice and should not be left unnoticed by the High Court while exercising constitutional jurisdiction, merely on the ground that an appeal was not preferred against the said order---Such void orders would not exist in the eyes of law; and could be directly assailed through constitutional petition---Order passed by the Magistrate acquitting accused persons, was set aside, in circumstances.

PLD 2009 SC 866 and 2004 YLR 911 ref.

Zahid Salim Sindhoo for Petitioner.

Mushtaq Ahmad Mohal for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 883 #

2011 Y L R 883

[Lahore]

Before Kh. Imtiaz Ahmad, J

IMAN ULLAH---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE RAJANPUR DISTRICT and 3 others---Respondents

Writ Petition No.12036 of 2010, decided on 8th November, 2010.

Criminal Procedure Code (V of 1898)---

---Ss.22-A & 22-B---Penal Code (XLV of 1860), Ss. 302, 311 & 109/34---Constitution of Pakistan, Art.199---Constitutional petition---Qatl-e-amd---Registration of criminal case---Earlier one Police Officer connived with accused and got the false case registered---Justice of Peace after inquiry vide impugned order, ordered for registration of case and further directed that Police Officer who got registered the case and was Investigating Officer of the case, should transfer investigation to some other Police Officer---Accused had challenged said order of Justice of Peace on the ground that when F.I.R. had already been registered, second F.I.R. could not be registered---No law existed to the effect that second F.I.R. could not be registered, if the circumstances so required---Daughter of the deceased who was the natural witness should have been the complainant, but instead a Police Officer who was also the Investigating Officer of the case was made a complainant---Second F.I.R., in circumstances was permissible under the law---Most natural witness who should have been the complainant, having been deprived to become a complainant in the F.I.R., Justice of Peace had committed no illegality by issuing the direction for the registration of the F.I.R. on the statement of daughter of the deceased.

Mst. Anwar Begum v. Station House Officer PLD 2005 SC 297 and Wajid Ali Khan Durrani and others v. Government of Sindh and others 2001 SCMR 1556 rel.

Tahir Iqbal Malik for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 890 #

2011 Y L R 890

[Lahore]

Before Sagheer Ahmed Qadri and Ijaz Ahmed, JJ

HAYAT KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.11 of 2008, decided on 14th December, 2010.

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

---S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Very important link in the chain regarding the transmission of the sample was missing---No witness had appeared to prove the sending of the sample of allegedly recovered narcotic from the State Customs Warehouse to the Chemical Examiner's Office---Samples taken could not be said to be the same and not tampered, and sent to the laboratory---Report of the Chemical Examiner showing one sample being charas' and the other beingGanja' could not be relied upon for ordinary conviction of accused---Report was the duplication of the original and it did not bear the signatures of the Chemical Examiner--Alleged narcotic substance was lying on the bus top and was recovered therefrom and could not be said to be in the possession of accused; and it could not be believed that a man of ordinary prudence sitting in a bus packed to its capacity would claim the ownership of the narcotic substance inviting the life imprisonment--Prosecution had failed to prove its case against accused beyond the shadow of doubt---Impugned judgment ordering the conviction and passing the sentence against accused was set aside---Accused was acquitted of the charge and was set at liberty.

The State v. Muhammad Aslam 1993 PCr.LJ 2287 and Mst. Miraj v. The State 1994 PCr.LJ 482 ref.

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

----Arts. 72 & 76---Proving contents of a document--- Scope--- Contents of a document could be proved through primary or a secondary evidence as provided under Art.72 of Qanun-e-Shahadat, 1984---Contents of document could only be proved through the secondary evidence, if the conditions mentioned under Art.76 of Qanun-e-Shahadat, 1984 were available.

Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Sultan and others v. The State 1987 SCMR 1177; Mst. Khurshid Begum and 6 others v. Chirag Muhammad 1995 SCMR 1237; Mukhtar Ahmad through Legal Heirs v. Muhammad Younus and 4 others 2001 CLC 1796 and Nasreen Bibi v. The State 2009 PCr.LJ 619 ref.

Amjad Iqbal Qureshi for Appellant.

Kh. Sohail Iqbal, D.P.-G. for Respondent.

Date of hearing: 2nd December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 904 #

2011 Y L R 904

[Lahore]

Before Iqbal Hameed ur Rahman, J

MUHAMMAD NAWAZ---Petitioner

Versus

SHAUKAT ALI HAYAT and 3 others---Respondents

Criminal Miscellaneous Nos.7548-CB and 11383-CB of 2010, decided on 25th November; 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 376(2)/337-A(i)/337-L(2)--- Abduction for the purpose of illicit intercourse---Bail, cancellation of---Application for---Trial Court while granting bail, had given much weight to the opinion of the Investigating Officer in granting bail to accused persons; and had completely ignored that alleged abductee had fully supported the prosecution version in tooth and nail---Medical evidence had shown that she had sustained injuries; and marks of violation were also found on her body---Sufficient material was available on record to show that abductee had not been eloped with her will and consent, but she had been subjected to torture as evident from the medical report---When the offence fell within the prohibitory clause of S.497, Cr.P.C. and sentence prescribed was of capital punishment of death, in such like cases, bail could only be granted, if the court would find reasonable grounds for believing that accused had not committed the offence---In the present case, even if the stance of accused persons and the opinion of Investigating Officer was taken into consideration, even then the commission of offence was established---Abductee had not only been tortured and injured, but she had made a statement before the Police that she had been subjected to gang rape by accused persons---Single statement of prosecutix/abductee, was enough for conviction of accused---Orders granting bail were set aside and bail allowed to accused persons, was recalled and cancelled.

Khalida Bibi v. Nadeem Baig PLD 2009 SC 440; Mudassar Altaf and another v. The State 2010 SCMR 1861 Muhammad Ahmed (Mahmood Ahmed) and another v. The State 2010 SCMR 660 and Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966 ref.

Haji Khalid Rehman for Petitioner.

Rana Ehsan ur Rehman for Respondents.

Ghulam Qadar Bari, Assistant Prosecutor-General with Shamas S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 911 #

2011 YLR 911

[Lahore]

Before Shahid Hameed Dar, J

Malik MASOOD AKHTAR---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.1717-B of 2010, decided on 30th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406 & 420---Criminal breach of trust and cheating---Pre-arrest bail, confirmation of---Matter in the case pertained to a pecuniary dispute between the parties who had decided to resolve the matter amicably; and for that purpose they had entered into an agreement whereby certain conditionalities and modalities had been settled between the parties for resolution of the dispute---Both the parties had shown their desire and intention to abide by the terms of the agreement--Complainant appeared to be fully satisfied with the current state of affairs---Accused had also expressed his intention and bona fide to stick to the pledges made by him in the agreement deed---Compromise was always considered as a redeeming feature---Once, the parties had decided to resolve their dispute amicably through negotiations, it would not be desirable that the court should assume the role of a prosecutor and compel the parties to continue with their hostilities---Accused's pledge to abide by the terms and conditions of the agreement had entitled him to grant of relief prayed for---Ad interim pre-arrest bail allowed to accused, was confirmed, in circumstances.

Malik Tahir Mehmood for Petitioner.

Pervez Khan Minhas for the Complainant.

Malik Riaz Ahmad Saghla, D.P.-G.

Ghulam Muhammad A.S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 918 #

2011 YLR 918

[Lahore]

Before Shahid Hameed Dar, J

MUJTABA-UL-HAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1880-B of 2010, decided on 8th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Cheating, forgery, using as genuine a forged document---Bail, refusal of---Rescission of power of attorney---Accused was aged 19 years and a student of M.B.A. on the day of attestation of sale-deed by the attorney in favour of his mother---Accused, in circumstances, could not agitate that he was oblivious of the rescission of the power of attorney, which had been attested in favour of his father in the year 1972---Even otherwise, ignorance of law was no excuse---Accused, after being nominated as an accused in the case became fugitive from law along with his absconding parents---Counsel for accused could not offer any explanation for such long absconsion---Absconder would lose some of his normal rights guaranteed under substantive law as well as the procedural law---Contention of the counsel for accused that investigation of the case had been hit by a bar contained in S.155(2), Cr.P.C., was devoid of any merit as S.420, P.P.C. was cognizable and in presence of a cognizable offence, the other offences regardless of being cognizable or non-cognizable could be validly investigated by the Police without fulfilment of requirement of the said provision of law---Accused had actively contributed towards the fraudulent act of his parents; and played an important role in the commission of offence, through which immovable property worth crores of rupees had been transferred to his mother, which spoke volumes about the culpability of accused in the case---Punishment provided for an offence under S.467, P.P.C. fell under prohibition of S.497, Cr.P.C.---Prima facie no reasons were available to believe that accused had not committed any non-bailable offence; or that his case was open to further probe within the meaning of S.497(2), Cr.P.C.---Bail petition was dismissed, in circumstances.

Saeed Ahmad v. The State 1996 SCMR 1132 and Dr. Zulkifal v. Pervaiz Akhtar Mughal and others 2000 PCr. LJ 284 ref.

Ch. Abdul Aziz for Petitioner.

Amjad Afsar Gakhar for the Complainant.

Rana Kashif Saleem Arfaa, Law Officer with Raja Khadim Hussain, A.S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 921 #

2011 Y L R 921

[Lahore]

Before Sardar Tariq Masood and Sardar Muhammad Shamim Khan, JJ

RIFAT HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 282 Criminal Revision No. 269 and Murder Reference No. 527 of 2005, heard on 26th May, 2010.

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

----S. 302(b)/34---Qatl-e-amd--- Appreciation of evidence---Unexplained delay of about four hours in lodging the F.I.R. and of twenty two hours in conducting the post-mortem examination of the deceased, had suggested the case having been registered after consultation and deliberation, due to the prosecution not being" certain about the real culprits of the occurrence---Motive for the incident was not proved---Complainant had changed his whole version given in the F.I.R., while deposing in the Court---Other eye-witness had also improved his statement at the trial---Eye-witnesses had not explained their presence at the scene of occurrence and thus could not be believed---Natural and independent witness available with the deceased at the time of occurrence, had been given up by the prosecution, as having been won-over by the accused and the presumption was that he was not ready to support the false prosecution version---No crime empty had been recovered from the spot on the first day of occurrence and one crime empty subsequently secured sent with the gun recovered from the possession of accused to Forensic Science Laboratory, had made its positive report doubtful and of no consequence---Occurrence was unseen and the accused had been implicated after-wards on the basis of suspicion---Accused were acquitted in circumstances.

2002 YLR 497 ref.

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

----S.161---Penal Code (XLV of 1860), S.302(b)/34---Qatl-e-amd---Appreciation of evidence--- Supplementary statement---Value---Supplementary statement made by complainant before Investigating Officer regarding the same occurrence is neither admissible in evidence, nor the same can be equated with the F.I.R. or read as its part.

2002 YLR 497 ref.

Altaf Ibrahim Qureshi and Haji Muhammad Tariq Aziz Khokhar for Appellants.

Miah Bashir Ahmad Bhatti, D.P.G. Badar Raza Gilani for the Complainant.

Date of hearing: 26th May, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 944 #

2011 Y L R 944

[Lahore]

Before Ch. Muhammad Tariq, J

IJAZ AHMED through Attorney---Petitioner

Versus

FOZIA YOUSAF and 2 others---Respondents

Writ Petition No.7809 of 2010, heard on 22nd November, 2010.

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

----S. 5 & Sched. ---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Suit for dowry articles, dower and maintenance---Trial Court decreed the suit to the extent of dower and dowry articles but dismissed the claim of recovery of maintenance---Appellate Court upheld the judgment and decree of Trial Court while rectifying errors of arithmetical nature---Validity---Defendant had not divorced the plaintiff who was still his legally wedded wife---Courts below erred in decreeing the suit of deferred dower which could only be paid to the wife in the event of death of the husband or pronouncement of divorce---Decree for recovery of dowry articles having been passed by courts below after recording evidence of the parties, could not be assailed in constitutional jurisdiction of High Court---Constitutional petition was accepted dismissing plaintiff/wife's claim of recovery of deferred dower.

Shabbir Ahmed Khan for Petitioner.

Zaheer Ahmed Chaudhry for Respondent No.1.

Date of hearing: 22nd November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 949 #

2011 Y L R 949

[Lahore]

Before Ch. Muhammad Tariq, J

IMRAN ALI KHOKHAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and another---Respondents

Writ Petition No. 15286 of 2010, heard on 16th November, 2010.

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

----S. 5 & Sched. ---Constitution of Pakistan, Art.199--Constitutional petition--- Trial Court decreed the suit for dissolution of marriage on the basis of Khula whereafter plaintiff filed suit for dowry articles and dower money---Suit for dowry articles was decreed but Trial Court dismissed suit for dower money---Appellate Court accepted appeal of plaintiff/wife---Defendant/husband contended that the plaintiff/ wife having obtained decree for dissolution of marriage on the basis of Khula was obliged to return all the benefits she had received from him---Validity---Plaintiff returned the dower money to defendant after her suit for dower money was dismissed---Defendant neither challenged the decree for dissolution of marriage nor claimed the return of agricultural land given to her on account of dower at the time of Nikah in suit for dissolution of marriage--Defendant could not claim the return of said agricultural land at belated finality, same could not be modified in another/subsequent suit for recovery of dower money---Constitutional petition, being without force, was dismissed.

Qari Nadeem Ahmad Awaisi for Petitioner.

Ch. Muhammad Masud Akhtar Khan for Respondent No.2.

Date of hearing: 16th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 953 #

2011 Y L R 953

[Lahore]

Before Sardar Muhammad Shamim Khan, J

Jam FALAK SHER---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3638-B of 2010, decided on 12th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-F(i), (v), 148 & 149---Causing damiyah and hashimah---Pre-arrest bail, confirmation of---Further inquiry---F.I.R. was lodged in the case with extraordinary delay of 17 days, for which no plausible explanation had been provided---Ocular account was in conflict with medical evidence---Possibility could not be ruled out that the complainant lodged false F.I.R. on the basis of mala fides against accused---One of prosecution witnesses, present in the court, had tendered his affidavit and had not supported the prosecution version---Offence alleged against accused did not fall within the prohibitory clause of S.497, Cr.P.C.; and it could not be ascertained that out of eight accused nominated in the F.I.R., who had caused the fracture on the forearm of the complainant---Such fact also made the case of accused that of further inquiry---Ad interim pre-arrest bail already granted in favour of accused, was confirmed in circumstances.

Muhammad Asghar Jam for Petitioner.

Hassan Mehmood Tareen, learned D.P.-G.

Muhammad Sarwar, A.S.-I. Petitioner on interim bail.

YLR 2011 LAHORE HIGH COURT LAHORE 959 #

2011 Y L R 959

[Lahore]

Before Ch. Iftikhar Hussain, J

Syed ZAHEER-UL-HASSAN BUKHARI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 11402-B of 2010, decided on.27th October, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Offence charged against accused did not attract the prohibition contained in S.497(1), Cr.P.C.---Grant of bail in such like cases is a rule and its refusal an exception---No exceptional circumstances were available against the accused to warrant refusal of bail to him---Accused was a previous non-convict and he, was behind the bars in the case for the last more than two and a half months--Removing of accused as a proclaimed offender could not be taken as an exceptional circumstance to decline the relief of bail to him in circumstances---Accused was allowed bail accordingly.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Talib Hussain v. The State 2006 YLR 1452 ref.

Messrs Iftikhar Ahmed Malik and Irfan Ahmad Khichi for Petitioners.

Rana Muhammad Iqbal, DPP for Respondent No.1.

Babar Bilal Awan for Respondent No.2.

Ghulam Murtaza Inspector and Abdul Razzaq A.S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 963 #

2011 Y L R 963

[Lahore]

Before Sh. Ahmad Farooq, J

AFZAL KHAN---Petitioner

Versus

A.S.J., SHEIKHUPURA and 7 others---Respondents

Writ Petition No.16388 of 2010, decided on 13th December, 2010.

Penal Code (XLV of 1860)---

---Ss. 302/394---Criminal Procedure Code (V of 1898), Ss. 22-A, 22-B and 154---Constitution of Pakistan, Art. 199---Constitutional petition---Qatl-e-amd and voluntarily causing hurt in committing robbery---Registration of criminal case--Direction of Justice of Peace to S.H.O. concerned to record cross version of the petitioner in a case arising out of an F.I.R. registered under S. 394, P.P.C.---Contention of the petitioner was that said F.I.R. was not in respect of the murder of his son, but was got registered by some other person in respect of dacoity, alleged to have been committed at his residence by unknown accused, who were injured during the occurrence and died on the spot---Petitioner had alleged that said complainant in connivance with the officials of the concerned Police Station had concocted a false story regarding murder of his son---Two different complainants of the occurrence with two different versions---If information was given to a Police Officer which disclosed the commission of a different cognizable offence, unless, same was mere amplification of the first version, that must be recorded by the Police---Police Officer was directed to record the statement of the petitioner, and if' same disclosed the commission of a different cognizable offence as compared to the offence, regarding the F.I.R., had already been registered, then he should proceed under S.154, Cr.P.C. and register a second F.I.R.

Ahmad Yar v. Station House Officer Shah Kot, District Sahiwal and 8 others 2007 PCr.LJ 1352 and Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297 ref.

Ch. Muhammad Ashraf Jalal for Petitioner.

Syed Sajid Ali Bukhari for Respondents Nos. 8 and 9.

Jawad Hassan, Addl. A.-G.

YLR 2011 LAHORE HIGH COURT LAHORE 972 #

2011 Y L R 972

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

Mst. NAZIR MAI---Petitioner

Versus

ADDITIONAL SECRETARY and 5 others---Respondents

Writ Petition No. 4692 of 1999, decided on 3rd December, 2010.

(a) Scheme For Lease of Evacuee Trust, Agricultural Land, 1975---

----Para. 18(a)(b)----Constitution of Pakistan, Art. 199---Constitutional petition---Extension of lease rights---Evacuee trust land was leased to the husband of petitioner for three years---Deputy Administrator, Evacuee Trust Property transferred lease holding rights in favour of the petitioner on the application of petitioner's husband, the original lessee---Assistant Administrator, Evacuee Trust Property dismissed petitioner's application for extension of lease holding rights---Revision and appeals filed by petitioner before Auqaf authorities were also dismissed---Validity---Lease was never extended in favour of petitioner by the competent Authority under Para.18(a) and Para.18(b) of the Scheme For Lease of Evacuee Trust Agricultural Land, 1975---Petitioner was not entitled to possession of the property as lessee, as neither her husband had died nor she or her husband had been in continuous cultivating possession since 1974---In the presence of original leaseholder, any order to transfer the land was illegal---Petitioner and her husband took illegal benefit of the disputed property for least 14 years---One who sought equity must have done equity---Illegal occupant was not entitled to have any discretionary relief---Constitutional petitions was dismissed.

(b) Equity---

----Equity---One who seeks equity must do equity---Illegal occupant was not entitled to any discretionary relief.

2010 SCMR 1078 and 2007 SCMR 262 ref.

Ahmad Mansoor Chisthi, Advocate along with Muhammad Aslam husband for Petitioner.

Ch. M. Sarwar for Respondents.

Date of hearing: 24th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 979 #

2011 Y L R 979

[Lahore]

Before Sayyed Mazahar Ali Akhar Naqvi, J

KHAIRAT HUSSAIN and 6 others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, SHEIKHUPURA and 3 others---

Respondents

Criminal Revision No.710 of 2010, heard on 23rd November, 2010.

(a) Illegal Dispossession Act (XI of 2005)---

----Preamble, Ss.3 & 7---Criminal Procedure Code (V of 1898), S.265-K---Illegal possession of property---Complaint against dispossession---Maintainability--- Scope--- Illegal Dispossession Act, 2005, was a special enact-ment, which had been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occu-pant, but the provisions of subsection (1) of S.3 of said Act, were in the form of preventive provisions--Under subsection (1) of S.3 of Illegal Dispossession Act, 2005, all persons had been prohibited to commit the offence detailed in that provision of law---Maintainability of the "complaint" before the Trial Court was not questionable; firstly for the reason that court had adopted all codal formalities before summoning accused persons; and secondly that prime facts and circumstances of the case fully attracted the provisions of Illegal Dispossession Act, 2005---While filing complaint under Illegal Dispossession Act, 2005 the complainant was only required to prove that he was a lawful occupier of the property when he was allegedly dispossessed---Contention that complainants were not owners of the property, had no weight at all---In the present case, prima facie sufficient material was available against the petitioners and complainants were entitled to be afforded opportunity to prove their plea through leading evidence at trial---Civil suit allegedly filed by the petitioners qua the same land, pertained to civil rights of the parties and same could not bar initiation of criminal proceedings---In absence of any illegality/legal infirmity in the impugned order inviting interference by High Court in exercise of its revisional jurisdiction, revision petition stood

dismissed.

Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066 ref.

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

----S. 265-K---Power of the court to acquit accused, exercise of-Power of court to acquit accused under S.265-K, Cr.P.C., could be exercised at any stage, however, it could be in those cases where after hearing both sides, the court satisfied; that there was no possibility of accused being convicted of any offence.

Ghulam Rasool Chaudhry for Petitioners.

Mian Muhammad Awais Mazhar, Deputy P.G. for the State.

Taqi Ahmed Khan for the Complainant.

Date of hearing: 23rd November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 989 #

2011 Y L R 989

[Lahore]

Before Syed Akhlaq Ahmad, J

MUHAMMAD USMAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 4 others---Respondents

Writ Petition No. 22722 of 2010, decided on 25th October, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for recovery of maintenance and dowry articles---Trial Court decreed the suit while appellate court dismissed the appeal of defendant---Validity---Courts below had decided the question of maintenance in accordance with law---Defendant took divergent stances as to his income and properties owned by him and could not point out any misreading or non-reading of material evidence warranting interference of High Court---Constitutional petition was dismissed.

Muhammad Asghar Nadeem for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 995 #

2011 Y L R 995

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MAZHAR IQBAL---Petitioner

Versus

MUHAMMAD IQBAL and another---Respondents

Criminal Miscellaneous No. 1481-M of 2010, heard on 2nd December, 2010.

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

----S. 227---Alteration of charge---Charge once framed would not become rigid or irrevocable---Charge could be altered or changed, if it was so warranted by the circumstances---Alteration/addition of charge was defined under S.227, Cr.P.C.---No bar on the Trial Court to reframe/amend/alter charge at any stage of trial before pronouncement of judgment.

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

----Ss. 489-F, 419 & 420---Criminal Procedure' Code (V of 1898), Ss.561-A & 227---Dishonestly issuing a cheque---Alteration of charge---Quashing of order, petition for---Trial Court amended charge by adding offence under Ss.419 & 420, P.P.C.---Additional Sessions Judge, however, set aside order of the Trial Court in revision, which order had been assailed in petition under S.561-A, Cr.P.C.---Prosecution version was that the cheque did not belong to the account of accused, however, it was signed and thumb marked by accused in the presence of the prosecution witnesses---Provisions of

Ss.419 & 420, P.P.C. would attract to the case, in circumstances---If complainant failed to lead evidence on that score, benefit of the same would be extended in favour of accused, which even otherwise was favourite child of law---Impugned judgment passed by Additional Sessions Judge in revision, in circumstances, was perverse, vicious and against the facts and circumstances, as well as contrary to law on the subject---Same was set aside and as a consequence whereof order passed by the Trial Court/Judicial Magistrate, whereby charge was reframed/altered, was restored.

Fida Hussain for Petitioner.

Mian Muhammad Awais Mazhar, Deputy P.G. for the State.

Muhammad Iqbal/Respondent No.1 in person.

Date of hearing: 2nd December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1000 #

2011 Y L R 1000

[Lahore]

Before Syed Akhlaq Ahmad, J

GUL SHER---Petitioner

Versus

Mst. MARYAM SULTANA---Respondent

Writ Petition No. 21214 of 2010, decided on 6th October, 2010.

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

----S. 5 & Sched.---Dowry and Bridal Gifts (Restriction) Act, (XLIII of 1976), Ss.3 & 5---Constitution of Pakistan, Art.199---Constitutional Jurisdiction of High Court---Scope---Suit for dissolution of marriage, recovery of maintenance and return of dowry---Trial Court decreed the suit---Appellate Court dismissed appeal of defendant---Validity---Solitary statement of defendant was not sufficient to prove that the dowry articles were purchased with the money provided by him---Woman was absolute owner of all the property given to her as dowry or bridal gift to the exclusion of her husband under S.5 of Dowry and Bridal Gifts (Restriction) Act, 1976---Notwithstanding restrictions imposed on the value of dowry and bridal gifts under S.3 of Dowry and Bridal Gifts (Restriction) Act, 1976, a bride was owner of dowry articles and she was entitled to retain and claim the return of such articles if she was deprived of the same by her husband or any one else irrespective of value or source of such articles---Constitutional jurisdiction of High. Court under Art.199 of the Constitution was completely discretionary in nature---While exercising constitutional jurisdiction, the court had to ensure that the subordinate court or tribunal had not acted without jurisdiction or in violation of law---High Court under its constitutional jurisdiction could not reappraise evidence as court of appeal---Tribunal having jurisdiction to decide a matter was competent to decide the same rightly or wrongly---Mere fact that a decision was incorrect would not render the same to have been made without lawful authority---Impugned judgments and decrees did not suffer from any jurisdictional defect warranting interference of High Court---Constitutional petition was dismissed in limine.

(b) Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976)---

----S. S---Scope---Woman was absolute owner of all the property given to het as dowry or bridal gift to the exclusion of her husband under S.5 of Dowry and Bridal Gifts (Restriction) Act, 1976.

----Ss. 3 & 5---Exclusion of application of restrictions under S.3 of Dowry and Bridal Gifts (Restriction) Act, 1976 to property given to bride as dowry or bridal gift---Notwithstanding restrictions imposed on the value of dowry and bridal gifts under S.3 of Dowry and Bridal Gifts (Restriction) Act, 1976, a bride was owner of dowry articles if she was entitled to retain and claim the return of such articles if she was deprived of the same by her husband or anyone else irrespective of source or value of such articles.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Nature and scope---High Court's constitutional jurisdiction under Art.199 of the Constitution was completely discretionary in nature and might be declined if necessary---High Court could not re appraise evidence as court of appeal under constitutional jurisdiction.

Masud Sarwar v. Mst. Farah Deeba 1988 CLC 1546 and Bakht Zada v. Mst. Joomreza and 2 others 2007 MLD 570 rel.

Zulifqar Khan Awan v. Secretary Industries and Mineral Development, Government of the Punjab Lahore and 8 others PLD 1973 SC 530 fol.

Malik Muhammad Azam Awan for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1008 #

2011 Y L R 1008

[Lahore]

Before Muhammad Anwaar-ul-Haq, J

RAZIA BIBI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 739-B of 2011, decided on 21st February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497, fourth proviso---Penal Code (XLV of 1860), Ss.302/201/34---Qatl-e-amd, causing disappearance of evidence, or giving false intention to screen offender---Bail grant of---Accused was female and statutory period of six months mentioned in fourth proviso of S.497, Cr.P.C. had expired---Effort was made, even during the pendency of bail application for conclusion of trial on the undertaking of counsel for the complainant, but the trial was pending---Delay in the trial of accused had not occasioned on account of act or omission of accused, or any person acting on her behalf---Even if few dates obtained by defence counsel, were excluded, the fact 'remained that accused was behind the bars for a period of more than eight months---Accused, in circumstances, was entitled to grant of bail, as a matter of right---Argument of counsel for the complainant that trial was almost concluded, was misconceived---Accused admitted to bail, in circumstances.

Zahid Hussain Shah v. The State PLD 1995 SC 49 and Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358 ref.

Muhammad Nadeem Sheikh for Petitioner.

Rai Salah-ud-Din Kharal for the Complainant.

Tasawar Ali Khan, D.P.-G. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 1011 #

2011 Y L R 1011

[Lahore]

Before Tariq Javaid, J

MUHAMMAD SALEEM---Petitioner

Versus

T.M.A.---Respondent

Writ Petition Nos.7012 and 6631 of 2009, decided on 9th February, 2010.

Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

----R. 24---Constitution of Pakistan, Art.199--- Constitutional petition---Petitioner was awarded contract by Town Municipal Administration to collect tax on transfer of property---Dispute arose as to the date from which authorities were entitled to recover the amount collected by the petitioner---Validity---Petitioner did not show that the contract had been rescinded making mockery of the constitutional protection---Case involved factual controversy which could not be decided by High Court in constitutional jurisdiction---Constitutional petitions were dismissed leaving the parties at their option to invoke the arbitration clause of R.24 of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003.

AIR 1988 Calcutta 143 distinguished.

1986 SCMR 1096 and PLD 1966 SC 939 ref.

Abdul Rashid Sheikh for Petitioner.

Mirza Muhammad Saleem Baig for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1021 #

2011 Y L R 1021

[Lahore]

Before Muhammad Anwaar-ul-Haq, J

Malik NAZEER HUSSAIN---Petitioner

Versus

SESSIONS JUDGE, LAHORE and others---Respondents

Writ Petition No. 2889 of 2011, decided on 25th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art.199---Constitutional petition---Habeas corpus proceedings---Custody of minor---Petitioner/father of minor girl aged 14 months had challenged order passed by Sessions Judge in proceedings under S.491, Cr.P.C., whereby respondent mother of minor girl was directed, to move S.H.O. Police Station concerned for registration of criminal case under the relevant provisions of law against the petitioner for not producing the minor in the court---Petitioner failed to produce the minor in the court despite his undertaking in that behalf---Conduct of the petitioner was highly objectionable as he did not seem to have any regard for the orders of the court---Law on the point of interference in appropriate cases under S.491, Cr.P.C., was very much clear---Mere filing of an application before the Guardian Court by the respondent /mother of the minor, was not at all a bar to pass an order under S.491, Cr.P.C., when welfare of suckling baby aged 14 months was at stake---No justifiable reason existed to interfere in the impugned order---Constitutional petition was dismissed with cost to be paid to mother of minor.

Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Mst. Ghulam Fatima v. The State and 5 others 1998 SCMR 289 ref.

Saeed Ullah Khan for Petitioner.

Ch. Muhammad Ishaq Additional Advocate-General for the State.

Mian Muhammad Ajmal Pervaiz for Respondent No.2.

YLR 2011 LAHORE HIGH COURT LAHORE 1025 #

2011 Y L R 1025

[Lahore]

Before Mian Shahid Iqbal, J

GHULAM HUSSAIN and 3 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others---Respondents

Writ Petition No. 11798 of 2010, decided on 2nd November, 2010.

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

----O. VIII, R.1---Constitution of Pakistan, Art. 199--- Constitutional petition---Written statement---Word

"ordinarily" as used in O. VIII, R.1, C.P. C.---Connotation and scope---Defendants' right to file written statement was struck off by Trial Court and the same was maintained by revisional court---Plea raised by defendants was that under O. VIII, R.1, C.P. C. period of 30 days was not mandatory for the reason that the word "ordinarily" was used which did not attract the penal clause---Validity---Use of the word "ordinarily" would dilute the effect of mandatory approach of O. VIII, R.1, C.P.C., nevertheless mere use of the word "ordinarily" would not dilute the effect of the period provided under said provisions i.e. 30 days---Legislature was conscious of the fact while determining a certain period for filing of written statement---Word ,"ordinarily" when seen in the light of days fixed in the said provision, would mean that in case of certain difficulties or eventualities if a reasonable explanation was extended by the party to whom the time was given by the court, the time could be extended---In the present case, time was extended, but even then defendants had failed to comply with the order; however, the court could allow some space to those persons who had shown circumstances beyond their control and as such could not comply with the orders---Impugned order was passed keeping in mind the conduct and the period already consumed in the proceedings---High Court declined to interfere under constitutional jurisdiction---Constitutional petition was dismissed by High Court in limine.

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

----O. VIII, R.1---Interpretation of O. VIII, R.1, C.P.C.---Word `ordinarily' as used in O. VIII, R.1, C.P. C. ---Connotation---Filing of written statement---Extension of time---Scope---Though in the proviso of O. VIII, R.1, C.P.C. the word used was "ordinarily" but before the said word the rule contained the word "if so required by the court'-'---Interpretation given to the word "ordinarily" would mean that no infinite time could be allowed on the basis of the said word rather such was for the court to see and require as to what time had to be provided after the fall of the period of 30 days---Use of the word "required" made it clear that the court in the given circumstances if felt even after expiry of 30 days that there were reasonable, justifiable and condonable circumstances which did not allow in spite of best efforts on behalf of the party to file written statement, the court might give some reasonable time---Party would not be entitled to extension of time if the delay on the part of the party was conscious---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed by High Court in limine.

Malik Javed Akhtar Wains for Petitioners.

YLR 2011 LAHORE HIGH COURT LAHORE 1031 #

2011 Y L R 1031

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

ASIF RIZWAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1793 and Murder Reference No.712 of 2005, heard on 3rd November, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Case rested only on circumstantial evidence---Guide lines.

The State v. Manzoor Ahmad PLD 1966 SC 664; Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. the State 1996 SCMR 188 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Case rested wholly on circumstantial evidence---Complainant, father of the missing child, had only expressed a suspicion in the F.I.R. against the accused and his two acquitted co-accused---Statements of the prosecution witnesses who had seen the child in the company of the accused were recorded by the police after fifteen days of the occurrence---Had the witnesses of last seen evidence passed on this important and material information to the complainant, he must have rushed to the police station with them, but he did not do so, which had adversely reflected on their credibility---Complainant and the said two witnesses had failed to plausibly explain the inordinate delay of 15 days in reporting the matter to the police---No convincing evidence was available on record to show that the bones discovered in the case were of the missing child of the complainant, as no Export in this respect had been produced by the prosecution---Even in the medical report nothing was stated regarding the age of the bones---Case appeared to have been registered after the discovery of same bones, wherefater some evidence had been created which could not be relied upon, which even otherwise was only supportive in nature---Recovery of last worn clothes of the missing child could not connect the accused with the crime, because F.I.R. had no mention of any clothes---Pointing out of the place from where the deceased was allegedly thrown into the canal by the accused and his two acquitted co-accused had no value, because it was not the case of prosecution that any body had seen the accused while throwing the dead body of the child into the canal---Witnesses of extra judicial confession even in their exanimation-in-chiefs had not named the accused in any context, therefore their evidence could not be taken into consideration---Motive mentioned by complainant in the F.I.R. had been improved by him at the trial--Prosecution case being replete with doubts, accused was entitled to the benefit thereof as a matter of right---Accused was acquitted in circumstances.

----S.302(6)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Entitlement of accused---In case of doubt the benefit of thereof must accrue in favour of accused as matter of right and not of grace.

Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Mian Muhammad Shafique Bhandara for Appellant.

Ch. Muhammad Mustafa, D.Y.-G. for the State.

Date of hearing: 3rd November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1044 #

2011 YLR 1044

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD ALI---Petitioner

Versus

YASMEEN AKHTAR and another--- Respondents

Civil Revision No. 3721 of 2010, decided on 9th December, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Plaintiff filed suit for declaration and consequential relief against defendants on the ground that the disputed mutation on the basis of alleged oral sale was illegal and that the disputed property was transferred to her through registered gift along with its possession---Defendants contested suit and also filed suit for declaration to the effect that the said disputed property was never transferred through gift deed---One of the defendants had withdrawn his suit by contending that he had not filed the same---Trial Court decreed the suit filed by plaintiff while dismissed the one filed by defendants---Appellate Court on appeal, maintained findings by Trial Court---Contention raised by defendants was that gift deed executed by one of the defendants was only in respect of the land situated at some other place and the disputed land was never transferred through the said gift deed---Validity---One of the defendants who appeared as plaintiff's witness had stated that he had transferred the disputed land along with the land at some other place to plaintiff and had put his thumb impression on the gift deed---One of the defendants' witnesses had also admitted that disputed land was managed by the plaintiff---Endorsement given by the Sub-Registrar on the back of the gift deed showed that he had read over its contents word by word to the donor who after admitting the same as correct, had put his signatures .on the same in presence of witnesses as the presumption of correctness was attached to said endorsement because the same was recorded in performance of official duties and bore signatures of the donor and the witnesses---Execution of gift deed was admitted by the donor and was proved by the plaintiff's witnesses-High Court declined to interfere in concurrent findings of both courts below in revisional jurisdiction---Revision petition was dismissed by High Court in limine.

Pirla and others v. Noora and others PLD 1976 Lah. 6 rel.

Ch. Muhammad Ashraf Jalal for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1049 #

2011 Y L R 1049

[Lahore]

Before Kh. Imtiaz Ahmed and

Ch. Muhammad 7nriq, JJ

MUHAMMAD ZAHOOR---Petitioner

Versus

THE STATE---Respondent

Criminal Appeals Nos.188 211 and Murder Reference No.333 of 2007, heard on 23rd June, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 201/34---Qatl-e-amd and causing disappearance of evidence of offence---Appreciation of evidence---According to F.I.R. the time of occurrence and the culprits were unknown---Prosecution case rested on circumstantial evidence---Complainant, son of deceased, had implicated the accused as the culprits in his supplementary statement---Female accused was the real mother of the complainant who. along with her co-accused had allegedly killed the deceased while sleeping in his room by firing in order to remove hint from their way---Prosecution evidence did not inspire confidence---Deceased statedly was present in his house at the time when allegedly the male accused was carrying hint upon his shoulders and the female accused was also with him holding his hand---Similarly, it was also unbelievable that the accused had made a confession before the prosecution witness, when admittedly he was a proclaimed offender---Last seen occurrence was not mentioned in the F. I. R.-No crime empty was recovered from the place of occurrence---Prosecution had not even produced the towel or the pillow whereupon the deceased put his head while sleeping to show the corresponding hole of firing thereon, as he had been fired on his head by the accused---Abscondence of accused was also not proved on record---Accused were acquitted in circumstances.

Ghulam Asghar Khokhar and Syeda B.H. Shah for Appellants.

Sajid Yousaf Mirza for the Complainant.

Ahmed Raza Gillani, Additional Prosecutor-General for the State.

Date of hearing: 23rd June, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1056 #

2011 Y L R 1056

[Lahore]

Before Syed Akhlaq Ahmad, J

ALLAH DITTA---Petitioner

Versus

MEMBER JUDICIAL, B.O.R. and 4 others---Respondents

Writ Petition No. 15359 of 2010, decided on 26th October, 2010.

West Pakistan Land Revenue Rules, 1968---

----R. 19---Constitution of Pakistan, Art.199---Constitutional petition---Appointment of lambardar--Petitioner's application challenging the appointment of respondent as lambardar was dismissed by the Executive District Officer, Revenue-Member (Judicial), Board of Revenue dismissed revision filed by petitioner---Petitioner. contended that rule of primogeniture had been declared violative of injunctions of Islam by the Supreme Court of Pakistan---Validity---Controversy of fact had been resolved by forum of exclusive jurisdiction and statutory authorities were not open to question in constitutional jurisdiction of High Court---Objections could not be raised to concurrent findings of fact---Appointment of lambardar was essentially an administrative matter and no one had a vested right to be appointed as lambardar---Rules of appointment of lambardar were of directory in nature to provide guidelines to statutory authorities for selection of the most suitable person as successor lambadar as such authorities had the requisite experience and knowledge for making a suitable choice---Appointment of lambardar could not be challenged in constitutional jurisdiction---Petition was dismissed.

PLD 199 SC 484 ref.

Muhammad Hussain Munir and others v. Sikandar and others 1974 SCMR 139; Sharaf Din v. Qazi Abdul Jalil and another, 1986 SCMR 1368 and Saleem Akhtar v. Member (Judi-III) of BOR Punjab and others 2003 PSC 405 fol.

Masood Ahmad v. Member (Revenue) Board of Revenue and others, 1982 CLC 357 rel.

Naseer Ahmad Sial for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1070 #

2011 Y L R 1070

[Lahore]

Before Sardar Tariq Masood and Syed Akhlaq Ahmad, JJ

NATIONAL UNIVERSITY OF SCIENCES AND TECHNOLOGY (NUST) ISLAMABAD through Registrar and 2 others---Appellants

Versus

DAYYAN ATTA TAREEN---Respondent

I.C.A. No.94 of 2010, decided on 17th August, 2010.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Infra-Court appeal against interim order---Maintainability---Single Judge of High Court had suspended order passed by the university regarding withdrawal of student/respondent from the university---Student who appeared in the examination had secured a Grade Point Average (GPA) of 1.00 and Cumulative Grade Point Average (CGPA) of 1.00 as well---University authorities withdrew the student from the university and directed him to arrange clearance---High Court vide impugned interim order suspended order of university authorities---Validity---Order passed by the Single Judge had revealed that application and main constitutional petition was pending adjudication in which notice to university had been issued---Under S.3(3) of Law Reforms Ordinance, 1972, no appeal was competent against an interim order---Order passed by Single Judge of High Court suspending the operation of impugned order could only be termed as an `interim order' or interlocutory order, which did not have the effect of disposing of the entire case put up before the High Court; and the right in dispute was yet to be determined between the parties---Infra court appeal, in circumstances, was not maintainable being strictly barred under S.3(3) of the Law Reforms Ordinance, 1972.

PLD 1990 SC 709; PLD 1992 SC 263; Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. and others PLD 1990 SC 709 and Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 ref.

(b) Words and phrases---

---"Interlocutory order"---Defined and explained.

---Interim'---Defined and explained.

Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. and others PLD 1990 SC 709 ref.

Abdur Rashid Awan for Appellants.

Barrister Raja Jibran Tariq Ali and Amjad Afsar Khokhar for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 1079 #

2011 YLR 1079

[Lahore]

Before Syed Akhlaq Ahmad, J

NOOR KHAN through legal heirs---Petitioner

Versus

SHER MUHAMMAD and 2 others ---Respondents

Civil Revision No.2214 of 2004, heard on 14th October, 2010.

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

----S. 13---Pre-emption suit Ground of superior right of pre-emption---Defendants contested suit and filed written statement--Trial Court decreed the suit whereas appellate court allowed appeal and set aside the judgment and decree passed by Trial Court---Plaintiffs asserted that superior right of pre-emption was fully established on record and the appellate court discarded the judgment and decree passed by Trial Court without any solid reason---Validity---Statements of all of plaintiffs' witnesses remained materially unshattered and unshaken during cross-examination and they remained consistent on the points of superior right of pre-emption of predecessor-in-interest of the plaintiffs about gaining knowledge of sale by pre-emptor from informer and thereafter making of Talb-e-Muwathibat, Talb-e-Ishhad by him---Bald statement of one of the defendants was not enough to discard sufficient oral as well as documentary evidence produced by the plaintiffs to prove their case---High Court set aside the judgment and decree passed by appellate court and restored the one passed by Trial Court.

2005 YLR 2388 ref.

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

----S. 13---Pre-emption suit---Non-fulfilment of requirements of Nibs would not entitle the plaintiff to decree for pre-emption.

----S. 13---Pre-emption suit---Section 13 of the Punjab Pre-emption Act, 1991 contemplated a maximum period of two weeks for making of Talb-e-Ishhad and for failure to do so, the right of pre-emption was extinguished---Pre-emptor was supposed to make reference to his first demand, the Talb-e-Muwathibat, while making the second talb, the Talb-e-Ishhad---Rationale behind was to put restriction on exercise of said right, which was based on a tradition of the Holy Prophet.

Umair Khan Niazi for Petitioner.

Muhammad Ayub Tahir Joiya for Respondent.

Date of hearing: 14th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1089 #

2011 Y L R 1089

[Lahore]

Before Tariq Javaid, J

Sardar MUHAMMAD IQBAL---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petitions Nos. 5349 12848, 16633 and 18616 of 2010, decided on 13th October, 2010.

Provincial Motor Vehicles Rules, 1969---

----R. 261---Constitution of Pakistan, Art.199---Constitutional petition---Allotment of separate bay to class B & C transporters---Petitioner challenged allotment of separate bay by the Provincial Government 'to a transporter of B & C category---Validity---Rule 261, Provincial Motor Vehicles Rules, 1969 barred plying of vehicles from separate bay by B & C class transporters providing for admittance to a class A, B or C (Bus) Stand to any driver or person incharge of vehicle on payment of proper fees subject to availability of space at the stand---Where owner of any vehicle had been granted a licence for a stand of class D, or had been given permission to make use of stand of class D, his vehicle would not have any right of admission to any General Bus Stand within distance of five kilometers of said D-class stand---Transporter could avail the option of separate bay only by obtaining a licence for class-D stand---Allocation of separate bay to the transporter was cancelled with direction to authorities to provide equal opportunity for plying buses on first come first go basis irrespective of the number of vehicles plied by a transporter--Separate bay could be allotted for a particular type of vehicle or for a particular destination permitting only one exit for each destination---Petition was disposed of.

Malik Abdul Wahad for Petitioner (in Writ Petition No. 12848 of 2010, Writ Petition No. 5349 of 2010 and Criminal Original No.1036-W of 2010).

Muhammad Aslam Zar, for Petitioner (in Writ Petition No. 16633 of 2010).

Saqib Akram Gondel for Petitioner (in Writ Petition No .18616 of 2010).

Naveed Iqbal Zahid for Respondent (in Writ Petition No. 5349 of 2010).

Salman Mehmood Khawaja, A.A.-G.

YLR 2011 LAHORE HIGH COURT LAHORE 1092 #

2011 Y L R 1092

[Lahore]

Before Tariq Javaid, J

SAJID ALI---Petitioner

Versus

TEHSILDAR and others---Respondents

Writ Petition No. 668 of 2010, decided on 13th April, 2010.

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

----S. 4(7)---Constitution of Pakistan, Art.199--- Constitutional petition---Petitioner challenged Sessions Judge's order upholding the arrest of his brother by Tehsildar for said brother stood surety to petitioner's father who allegedly defaulted on land revenue collected by him as Sarbarah lambardar---No evidence was brought on record to prove the collection of land revenue from landowners by said lambardar---High Court observed that Provincial Government could streamline the West Pakistan Land Revenue Act, 1967 by unmaking provision for recovery of `dhalpach' which could not be entrusted by Revenue Officials to persons of their choice---Petitioner's brother could not be expected to recover the land revenue which the Provincial Government itself failed to collect---Neither a private person could be directed to collect the land revenue without any lawful authority nor could such person be compelled to make good for the loss of revenue suffered by the Government---Petition was allowed---Respondents were restrained from harassing the petitioner and demanding the money/revenue allegedly recovered by petitioner's brother from landowners.

Malik Muhammad Tariq Noorani for Petitioner.

Javed Saeed Pirzada, A.A.-G

Shahid Hassan Kalyari, DDO (R), Kabirwala.

YLR 2011 LAHORE HIGH COURT LAHORE 1097 #

2011 Y L R 1097

[Lahore]

Before Kh. Imtiaz Ahmad and Shaukat Umar Pirzada, JJ

TARIQ GULZAR COTTON INDUSTRIES---Petitioner

Versus

ALI ZAIB KHAN TRADERS---Respondent

R.F.A. No. 140 of 2003, decided on 23rd December, 2010.

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

----O. VII, R.2---Suit for recovery of money---Plaintiff being a partnership firm filed a suit for recovery of disputed amount against defendant on the ground that defendant had neither paid' lease money to the plaintiff nor principal amount of loan and mark up to the bank---Defendant contested suit and filed written statement---Trial Court dismissed suit of the plaintiff---Contention raised by plaintiff was that as per agreement levies/ taxes of the Government Departments including the electricity bills etc. were to be paid by the defendant and that the defendant was also entitled to utilize bank limit available to the plaintiff with the condition) that same would be repaid along with mark up---Validity---Record revealed that factory was leased out to the defendant vide agreement in the year 1998 for the season 1998-99 and one of the terms of the alleged lease was that lessee was to clear the liabilities of the bank; however such contention of plaintiff was not controverted by defendant before the court which amounted to acceptance or admission of said term and that had attained finality---Plaintiff's witnesses had stated that agreement was read over to them before signing and the defendant had signed the said agreement in their presence---Such witnesses remained unshaken on the said stance---One of the defendant's witnesses admitted that the cheques were received by him and the amount of the said cheques were transferred in the defendant's account---Defendant's counsel had also admitted that the stocks/cotton bales of the defendant lying in the factory were pledged by him and consequently auction whereof by the bank was considered in order---Plaintiff through oral as well as documentary evidence had successfully proved the execution of lease agreement and utilization of finance facility by the defendant which they had failed to repay---High Court allowed appeal with cost throughout and decreed suit of the plaintiff with direction to the office that the conduct of the Trial Court was unfair and not reflecting independent, impartial and judicial mind, therefore, said judgment might be placed in the personal file of the Presiding Officer concerned.

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

----O. VIII, Rr.3 & 4---Evasive reply or denial of material facts by the party was not only against the provisions of O. VIII, Rr.3 & 4, C.P.C. but such conduct had also been deprecated by the courts.

Shamsul Hassan and 6 others v. Karachi Transport Corporation through Managing Director and 2 others 2001 CLC 942 and Messrs Muhammad Amin Muhammad Bashir Ltd. and another v. Pakistan through Secretary, Ministry of Communications, Rawalpindi and 5 others 2000 CLC 1559 rel.

Muhammad Alamgir Amjad for Appellant.

Malik Azhar Hussain for Respondent.

Date of hearing: 13th December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1110 #

2011 Y L R 1110

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

MUHAMMAD JAMSHED alias PERVEZ and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1285, 440 and Murder Reference No.164 of 2005, heard on 13th July, 2010.

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

----S.302(b)---Qatl-e-amd--Appreciation of evidence---Arrival and presence of eye-witnesses on the spot at the crucial time had been established---According to mode of occurrence accused alone had murdered the deceased--Medical evidence had fully corroborated the credible ocular account---Defence evidence had been directly controverted by medical evidence and the same had not even been verified by the Investigating Officer---Defence plea was an after thought and a delayed attempt to evade the consequences of the murder---Conviction of accused was, therefore maintained---Prosecution, however, had failed to prove the motive and it was not certain as to what had happened between the parties prior to the occurrence---Possibility of a chance encounter between the parties could not be ruled out---Death sentence of accused was reduced to imprisonment for life in circumstances.

Noor Muhammad v. The State and another 2010 SCMR 97 ref.

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

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Accused being the relatives and team-mates of co-accused had been roped in the case to stop and discourage them to come to his rescue during investigation and trial---Act of allegedly holding the deceased by accused showed that they were not armed and they had not caused any injuries to the deceased---Motive as narrated by the complainant before the Investigating Officer could not be proved---Prosecution had failed to prove the case against accused and they were acquitted accordingly.

Munir Ahmad Bhatti and Mansoor ur-Rehman Khan Afridi for Appellants.

Najama Parveen and Munawar Hussain Sindho, A.P.-G. for the State.

Date of hearing: 13th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1123 #

2011 Y L R 1123

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

MUSHTAQ AHMAD---Petitioner

Versus

AMJAD ALI---Respondent

R.S.A. No. 14 of 2007/BWP, decided on 1st December, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Trial Court and appellate court dismissed the suit---Validity---Plaintiff could not produce evidence of payment to defendant who was seventy years old and not accompanied by his sons at the time of the payment---Scribe and the stamp-vendor were not produced either---Plaintiff being beneficiary of the document, was obliged to produce the, hand-writing expert or petition-writer---Material discrepancies were found in the statements of witnesses produced by plaintiff---Alleged agreement to sell in favour of plaintiff was a forged and fabricated document---Appeal was dismissed by High Court, in circumstances.

Sardar Muhammad Hussain Khan for Appellant.

Ch.M. Amjad Khan for Respondent.

Date of hearing: 12th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1131 #

2011 Y L R 1131

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ASHRAF and 6 others---Petitioners

Versus

MEHMOOD AHMAD and 3 others---Respondents

Writ Petition No. 13041 of 2010, decided on 17th August, 2010.

Penal Code (XLV of 1860)---

----S. 365---Constitution of Pakistan, Art.199---Constitutional petition---Kidnapping with intent to secretly and wrongfully confine a person---Accused challenged the Additional Sessions Judge's order directing Judicial Magistrate to call for supplementary challan after addition of relevant sections of law applicable to the case---Validity---Magistrate could not dictate the Police in the process of investigation which was exclusive domain of Police---Excess committed by Police could, of course, be checked but no court or authority was empowered to require the Police to conduct investigation in a particular manner or to submit report with respect to certain persons or offences--Magistrate/Trial Court had all the necessary powers to frame, amend, correct or alter the charge keeping in view material against the accused---Additional Sessions Judge erred in law while passing the impugned order in revision---No criminal trial was pending before the Magistrate who passed the order in question on a miscellaneous application--Section 439-A, Cr. P. C. barred revisional jurisdiction against administrative order passed by Magistrate---Impugned order passed by Additional Sessions Judge was set aside and order passed by the Magistrate was restored---Constitutional petition was allowed.

Badaruddin v. Mehr Ahmad Raza, ASJ, Mang and 6 others PLD 1993 SC 399; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Brig (Retd.) Imtiaz Ahmad v. Govt. of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142 and Rana Muhammad Farooque and others v. Aftab Hussain and others PLD 2003 Kar. 309 ref.

Muhammad Nasir Cheema v. Mazhar Javaid and other PLD 2007 SC 31; Brig (Recd) Imtiaz Ahmad v. Govt. of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142 and Kh. Nazir Ahmad's case AIR 1945 Privy Council 18 fol.

Ch. Riaz Ahmad for Petitioner.

Maqbool Elahi Malik for Respondent.

Aamir Jalil Sididqui, A.A.-G

YLR 2011 LAHORE HIGH COURT LAHORE 1135 #

2011 Y L R 1135

[Lahore]

Before Tariq Javaid, J

MUHAMMAD FAROOQ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 429 of 2009, decided on 15th April, 2010.

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

----S. 5 & Sched.--- Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for maintenance, dowry articles and dower---Trial Court decreed the suit---Appellate Court dismissed defendant's suit for restitution of conjugal rights upholding Trial Court's findings as to dower and dowry articles---Validity---Dower, though prompt, had not been paid/given to wife---House admittedly given in dower was still in possession of husband/petitioner---Having been turned out of the house forcibly, wife/respondent had no chance to collect her belongings---Impugned judgment and decree did not suffer from any illegality warranting High Court's interference in constitutional jurisdiction---Petition was dismissed in limine.

Malik Muhammad Latif Khok-liar for Petitioner.

Mujtaba Aziz for Respondent No.3.

YLR 2011 LAHORE HIGH COURT LAHORE 1141 #

2011 YLR 1141

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

HUSSAIN BAKHSH---Petitioner

Versus

NASIM MAI and another---Respondents

Writ Petition No.21000 of 2009, decided on 14th May, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for recovery of dowry articles---Plaintiff filed suit for return of dowry articles or in alternative its price Rs.2,43,500---Family Court decreed the suit directing the defendant to pay Rs.50,000 as amount of dowry articles---On filing appeal by the plaintiff against judgment of the Family Court, Appellate Court decreed the suit for return of dowry articles or in alternate the price of Rs.2,43,500 as was claimed by the plaintiff in her suit---Marriage of parties was solemnized seven years ago from the date of institution of the suit and Appellate Court had failed to appreciate that the dowry articles had lost their value during said seven years---Judgment and decree passed by the Appellate Court was set aside and case was remanded to Appellate Court to consider the effect of depreciation of value of dowry articles and after hearing the parties decide the suit on merits.

Rana Muhammad Naeem Khan for Petitioner.

Raja Aamir Aziz for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1145 #

2011 YLR 1145

[Lahore]

Before Nasir Saeed Shaikh, J

ALLAH YAR through L.Rs. and others---Petitioners

Versus

NOOR MUHAMMAD and others---Respondents

Civil Revision No. 1474 of 2002, heard on 14th September, 2010.

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

----S. 13---Civil Procedure Code (V of 1908), O.XVII, R.3---Suit for possession through pre-emption---Dismissal of suit for non -prosecution of evidence---Both Trial Court and Appellate Court concurrently dismissed the suit under O.XVII, R.3, C.P.C. by closing right of plaintiff to produce evidence---Plaintiff did not mention the time, date and place for making Talb-i-Muwathibat in the plaint---Plaintiff asserted that he could move for amendment of the plaint in order to meet the requirements of law---Validity---Plaint did not fulfil the requirements of law and the said omission was fatal to the maintainability of the suit---Revision petition was dismissed by High Court.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302; Sardar Muhammad Nawaz v. Mst. Firdous Begum 2008 SCMR 404 and Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 rel.

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

----S. 13---Pre-emption suit---Where the plaintiff did not mention time, date and place of knowledge of the sale and of making of Talb-i-Muwathibat in the plaint, the suit of the plaintiff could not proceed and was liable to be dismissed.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Sardar Muhammad Nawaz v. Mst. Firdous Begum 2008 SCMR 404 and Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 rel.

Qamar Riaz Hussain Basra for Petitioners.

Nemo for Respondents.

Date of hearing: 14th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1151 #

2011 Y L R 1151

[Lahore]

Before Ch. Muhammad Tairq, J

MAQSOOD AHMAD---Appellant

Versus

Sh. MUHAMMAD IKRAM ULLAH--- Respondent

S.A.O. No.88 of 2010, decided on 28th September, 2010.

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

----S. 13---Ejectment petition on ground of default and bona fide personal need of landlord for his family-Rent Controller allowed ejectment petition and Appellate Court dismissed tenant's appeal---Tenant contended that courts below had decided the case on sole statement of the landlord---Validity---Landlord needed the rented shop for his' young educated sons who were jobless---Tenant had failed to establish that landlord was owner of any other commercial property---Tenant had also failed to pay the monthly rent to landlord at the enhanced rate which was rightly found by the courts to be wilful defaulter--Unshaken sole statement of landlord was sufficient to prove his contentions---Tenant having failed to point out any illegality, misreading or non--reading of evidence in impugned judgments/orders, appeal was dismissed.

Noman Qureshi for Appellant.

Mian Muhammad Yousaf Saqi for Respondent No.1.

YLR 2011 LAHORE HIGH COURT LAHORE 1155 #

2011 Y L R 1155

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ZOHAIB HUSSAIN BANGESH---Petitioner

Versus

JUDGE FAMILY COURT and another---Respondents

Writ Petition No. 9325 of 2010, decided on 10th June, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dissolution of marriage on the ground of Khula and maintenance allowance---Territorial jurisdiction---Question of---Scope---Judge Family Court had dismissed application challenging territorial jurisdiction of the court without recording evidence and even framing the issue---Judge Family Court had relied on a document issued by Lambardar without examining the credibility of the same---Question of jurisdiction should be decided at the first instance---Impugned order was against law and facts of the case and as such could not sustain in the eye of law---High Court set aside the impugned order and directed Judge Family Court to frame a preliminary issue' for ascertaining its territorial jurisdiction and if the court was of the opinion that the issue could not be decided without recording evidence, the court would record the same and would allow full opportunity to both the parties to explain their case with further direction to decide suit within 3 months from receipt of the present order.

Sohail Sadiq for Petitioner.

Nasir Ahmed Awan for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1161 #

2011 Y L R 1161

[Lahore]

Before Ch. Muhammad Tariq, J

AFTAB AHMED and 2 others---Petitioners

Versus

Ch. AMJAD ZAMAN---Respondent

Regular Second Appeal No.131 of 2009, heard on 20th October, 2010.

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

----Ss. 100 & 101---Second appeal maintainable only on a question of law.

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

----S.13--- Pre-emption suit---Talb-i-Ishhad, performance of--- Non-examination of Postman to prove receipt of notice of such talb by defendant---Effect---Defendant had not specifically denied receipt of such notice, rather had conceded its receipt---Such objection was repelled in circumstances.

2009 CLC 462; PLD 2007 SC 302; PLD 2003 Pesh. 53; PLD 1978 Lah. 1027 and PLD 1973 SC 160 ref.

----S.100 & O. XIII, R.4---Second appeal---Scope---Document exhibited in evidence without objection could not be objected to in second appeal.

Sh. Naveed Shaharyar for Appellants.

Muhammad Farooq Qureshi Chishti for Respondent.

Date of hearing: 20th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1169 #

2011 Y L R 1169

[Lahore]

Before Muhammad Khalid Mehmood Khan J

RASOOL BIBI and 2 others---Petitioners

Versus

MUHAMMAD BASHIR and 3 others---Respondents

Civil Revision No. 1996 of 2010, decided on 14th July, 2010.

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

----S. XXI, R.10 & S.47---Execution of decree---Objection to---Executing Court issued warrant of possession against judgment-debtors on the ground that right of decree-holders had become final upto High Court and even if it was assumed that one of the co-sharers had sold his share in the disputed property, the decree to the extent of remaining land was executable---Appellate Court dismissed appeal against the order passed by Executing Court---Legal heirs of the decree-holder asserted that they were co-sharers in the disputed property and the decree was not executable against them unless a decree for partition was passed---Validity--- Judgment-debtors were trespassers and decree against them had to be executed for surrendering possession of the disputed land---Plea of the legal heirs that unless and until a decree for partition was passed, the decree-holder was not entitled to possession from the judgment-debtors was devoid of any merit---Legal heirs could not claim that judgment-debtors were in possession of their property---Legal heirs themselves filed suit for partition, meaning thereby they had admitted that they were co-sharers in each and every inch of Khata---Executing Court had rightly passed an order for eviction of judgment-debtors front the disputed land---Petition was dismissed by High Court.

(b) Co-sharer---

----Every co-sharer in an un-partitioned Khata was owner of each and every inch of Khata.

Ch. Malik Amjad Pervaiz for Petitioners.

Sardar Muhammad Raman for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1177 #

2011 Y L R 1177

[Lahore]

Before Mian Shahid Iqbal, J

FAZAL ELAHI and others---Petitioners

Versus

KAMAL DIN and others---Respondents

Civil Revision No. 335 of 2003, heard on 5th August, 2010.

Canal and Drainage Act (VIII of 1873)---

----S. 20(a)---Specific Relief Act (I of 1877), S.42---Plaintiffs filed suit for declaration on the ground that notification issued by authorities under Canal and Drainage Act, 1873, without prior notice before enhancing quantum of water supply from existing outlet, was illegal---One of the defendants contested suit---Trial Court decreed suit of the plaintiffs---Appellate Court on appeal, allowed the same and set aside the judgment and decree of Trial Court---Contention raised by plaintiffs was that under S.20(a) of the Canal and Drainage Act, 1873, it was mandatory upon the authorities to issue notice before allowing water through existing outlet---Validity---Divisional Canal Officer was obliged to issue notice to the parties who ultimately were affected by any change whether by enhancing or by reduction of water in the canal---High Court allowed revision petition by setting aside judgment and decree of Appellate Court and remanded the matter to Divisional Canal Officer who after issuance of notice to all parties concerned should hear and decide matter after taking into consideration the contentions and record.

1994 CLC 921; 2002 SCMR 1466; 1993 SCMR 1960; 2003 YLR 1445; 2006 MLD 1349; 2007 YLR 2179; 2003 YLR 1231; 2007 YLR 1485; 1987 SCMR 769 and NLR 1983 Revenue 98 ref.

2002 SCMR 1466 and 2003 YLR 1445 rel.

Tariq Masood for Petitioners.

Ch. Muhammad Amin Javed and Izhar ul Haq Toor, Asstt. A.-G. for Respondents.

Date of hearing: 5th August, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1183 #

2011 Y L R 1183

[Lahore]

Before Ch. Muhammad Tariq, J

SAFDAR ALI---Petitioner

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No. 7005 of 2010, decided on 14th September, 2010.

West Pakistan Land Revenue Rules, 1968---

----R. 19---Constitution of Pakistan, Art.199--- Constitutional petition---Appointment of lambardar-Order' of petitioner's appointment as lambardar was set aside by Member, Board of Revenue---Validity---Hereditary claim was still an important consideration in appointment of new lantbardar despite the fact that the rule of primogeniture had lost its overriding significance/effect---Respondent, a son of deceased lambardar, owned sufficient land to guarantee the performance of functions of lambardar but he was a minor---Courts below erred by declaring a minor as lambardar-Constitutional petition was allowed in circumstances.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 fol.

Malik Ghulam Siddique Awan for Petitioner.

Ch. Muhammad Bashir for Respondent No.4.

Rana Shamshad Khan, A.A.-G.

YLR 2011 LAHORE HIGH COURT LAHORE 1189 #

2011 Y L R 1189

[Lahore]

Before Ch. Muhammad Tariq, J

QADAR DAD---Petitioner

Versus

MUHAMMAD ANSAR and another---Respondents

Civil Revision No. 1977 of 2005, heard on 4th October, 2010.

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

----Ss. 6 & 13---Pre-emption suit---Performance of talbs---Plaintiff filed suit for possession through pre-emption on the ground that he had superior right of pre-emption against the defendants and had performed "talbs" as required under the law---Defendants contested suit and filed written statement---Trial Court decreed suit of the plaintiff while appellate court reversed the judgment and decree passed by Trial Court and dismissed suit of the plaintiff---Validity---Contents of the plaint revealed that plaintiff came to know about the sale of disputed land on 21-3-1999 at 8-00 p.m. which was contradicted by one of the plaintiff witnesses who had deposed in examination-in-chief that plaintiff performed "Talb-e-Muwathibat" on the evening of 24-3-1999---Plaintiff had admitted during cross-examination that he came to know about the sale of the disputed land when it was sold and on the same day/night the defendants had raised construction over the disputed land---Counsel for the plaintiff had admitted that notice of "Talb-e-Ishhad" was not formally exhibited during evidence---Plaintiff had failed to perform "Talb-e-Muwathibat" as well as 'Talb-e-Ishhad'---Revision petition' was dismissed by High Court.

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

----S. 13---Pre-emption suit---Talb-e-Ishhad, performance of---Plea of the plaintiff was that one of the exhibits which was copy of acknowledgement, proved that defendants had received the notice of Talb-e-Ishhad'---Such plea was not sustainable in the eyes of law because it could not be imagined that the registered post envelope sent to the defendants contained notice ofTalb-e-Ishhad'; particularly when the plaintiff had refused the performance of Talb-e-Ishhad in the pleadings---Document which was not duly exhibited but placed on file could be looked into as taken plea by the plaintiff, but a non-exhibited document could not be used against the valuable rights of the parties---Alleged notice was annexed with the file but no inference could be derived against the defendants as same was not duly exhibited and remained in the custody of plaintiff.

----O.XIII, R.4-Punjab Pre-emption Act (IX of 1991), S.13---Pre-emption suit---Non-exhibited document could not be used against the valuable rights of the parties.

Sh. Naveed Shahryar for Petitioner.

Ch. Ahmad Khan Gondal for Respondent.

Date of hearing: 4th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1193 #

2011 Y L R 1193

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

NIZAM DIN---Petitioner

Versus

MUHAMMAD ALI through L.Rs. and others---Respondents

Civil Revision No. 1922 of 2010, decided on 23rd June, 2010.

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

----Ss. 5 & 13---Plaintiff filed suit for possession through pre-emption on the ground that the disputed property was sold against consideration of Rs.200,000 but to deprive plaintiff of his right to pre-empt, the said `sale' had been shown as 'exchange'---Defendants contested suit and denied averments of the plaintiff---Trial Court dismissed suit of the plaintiff---Appellate Court on appeal also dismissed the same---Validity---One property was urban property and the other one was agricultural---Record revealed that both parties had. exchanged possession of their said properties and were enjoying their respective possession from the date of attestation of mutation---Plaintiff had failed to produce any evidence showing that underlying agreement of 'exchange', mutation was to defeat right of pre-emption of the plaintiff---Plaintiff had not produced any witness from the locality where the urban property was situated showing value of the property exchanged; oral assertion was not sufficient to prove the said fact---In absence of proof that pre-empted transaction was sale, the question of Talb-i-Muwathibat had become secondary---Lower courts below had not committed any illegality or irregularity while passing two judgments---Petition was dismissed by High Court.

Mian Muhammad v. Allah Ditta PLD 1993 Lah. 84; Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; Mst. Fatima Bibi and 11 others v. Mst. Rahim Bibi and 3 others PLD 1999 Lah. 128 and Hyderabad Development Authority v. Abdul Majeed and others PLD 2002 SC 84 ref.

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

----S. 13---Talb-i-Muwathibat---Role in pre-emption suit-Scope-In a suit for pre-emption talbs under S.13 of the Punjab Pre-emption Act, 1991 had to play the main role and out of talbs, Talb-i-Muwathibat if not proved then the entire suit failed.

----O.XX, R.5---Punjab Pre-emption Act (IX of 1991), S.13---Court to give its decision on each issue---Contention of the plaintiff was that finding of the Appellate Court on one of the issues was without any reason as the said court had not discussed the evidence placed on record---Appellate Court had scanned the evidence available on record of lower court and had just agreed with that; however, if the Appellate Court was of the view that findings of the Trial Court were not based on evidence then it was the duty of the Appellate Court to give reasons but when the Appellate Court had agreed with findings of the Trial Court, it was not necessary for it to given any reasons further.

Ch. Arshad Mehmood for Petitioner.

Gohar Nawaz Sindhu for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1197 #

2011 Y L R 1197

[Lahore]

Before Ch. Muhammad Tariq, J

Syed MUHAMMAD TARIQ SHAH and others---Petitioners

Versus

GOVERNMENT' OF PUNJAB and 2 others---Respondents

Writ Petition No. 9854 of 2007, decided on 17th September, 2010.

Punjab Graveyards (Preservation and Maintenance) Act (XXV of 1958)---

----S. 13---Miani Sahib Graveyard Ordinance (XLIV of 1962), S.5--Constitution of Pakistan, Art. 199---Constitutional petition---Land sold by Colony Department to Lahore Development Authority (LDA) alleged to be belonging to Miani Sahib Graveyard---Respondent claiming to be transferee of suit-land alleged same to be situated in Chauburji Housing Scheme established by LDA, and was not part of land comprising of Miani Sahib Graveyard---Validity---Demarcation report prepared by Member, Colonies, Board of Revenue at direction of High Court did not disclose whether suit-land claimed by respondents was part of Miani Sahib Graveyard or same situate outside land reserved for such Graveyard---Dispute between parties was simply to determine boundaries of their properties and establish as to whether respondent had made encroachment upon land belonging to such Graveyard or same was independent land whereupon LDA had established Chauburji Housing Scheme---High Court with consent of parties set aside impugned sale-deed and remanded case to Senior Member Board of Revenue to depute experienced Revenue Officers to demarcate suit-land in order to identify its status.

1991 SCMR 320; PLD 1998 SC 161 and 2001 YLR 4203 ref.

Muhammad Faisal Chaudhry for Petitioner.

Muhammad Maqbul Sadiq for Respondents Nos. 1 to 3.

Iqbal Mahmood Awan, (in C.M. No. 2908 of 2009).

Saeed-uz-Zafar Khawaja, (in C.M. No.864 of 2008).

Rana Shamshad Khan, Assistant Advocate General Punjab.

YLR 2011 LAHORE HIGH COURT LAHORE 1204 #

2011 Y L R 1204

[Lahore]

Before Mian Shahid Iqbal, J

AHMED and 3 others---Petitioners

Versus

ALLAH DITTA---Respondent

Civil Revision No.1061 of 2003, heard on 6th September, 2010.

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

----S. 6---Civil Procedure Code (V of 1908), S.115---Suit for pre-emption--Defendants contended that Talb-e-Muwathibat was not proved as the person who informed the plaintiff's witness about sale was not produced in the court---Validity---Only the person informing the pre-emptor was required to be produced in the court in order to test the veracity of his statement---Plaintiff had fulfilled the requirement by producing the witness who informed him of sale---Re-examination of evidence was not permissible in revisional jurisdiction---Concurrent findings could not be replaced by different view formed by the revisional court---No legal defect could be pointed out in impugned judgment---Revision was dismissed in circumstances.

PLD 2007 SC 302; PLJ 2006 SC 2030; 2001 SCMR 798; 1996 SCMR 813 and PLD 1994 SC 291 ref.

PLD 2006 SC 230 and PLD 1994 SC 291 fol.

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

----S. 115---Revision---Scope---Con current findings could not be replaced by different view formed by revisional court.

PLD 1994 SC 291 fol.

Ch. Mulianunad Din Ansari for Petitioners.

Sh. Naveed Sheharyar for Respondent.

Date of hearing: 6th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1214 #

2011 Y L R 1214

[Lahore]

Before Mian Shahid Iqbal, J

SULTAN AHMED and another---Petitioners

Versus

MUHAMMAD AZAM through L.Rs. and others---Respondents

Civil Revision No.884 of 2003, heard on 30th August, 2010.

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

----S. 13---Suit for pre-emption---Defendants contested suit on the ground of maintainability that transaction was sale' of disputed land' and notexchange'---Trial Court, on appeal, allowed the suit and decreed the same---Contention raised by plaintiffs was that exchange in actual was a disguise transfer which was sufficiently established from immediate subsequent sale made by parties, as such non-proving of transfer of consideration would not affect the malice and mala fide being maneuvered in the shape of exchange---Validity---Nature of transfer of exchange and its subsequent sale vividly demonstrated that fact ultimately properly was to be transferred to the defendants through impugned mutation and exchange was only made as a bridge in order to save parties from claim of pre-emption--Exchange mutation and a subsequent sale by virtue of disputed mutation fairly demonstrated strong and unbelievable fact that exchange was a disguise sale just to avoid pre-emption---Judgment by Appellate Court was not based on misreading, non-reading, assumption or presumption---Revision petition was dismissed by High Court.

1995 MLD 435; PLD 1961 Pesh. 62; PLD 1983 Pesh. 13; 1972 SCMR 649; 2008 SCMR 236 and 1997 SCMR 1892 ref.

1995 MLD 435; PLD 1961 Pesh. 62 and 2008 SCMR 236 distinguished.

1997 SCMR 1892 and 1999 SCMR 1346 rel.

Ch. Mushtaq Ahmed Khan for Petitioners.

Gjaz Ahmed Chadhar for Respondents.

Date of hearing: 30th August, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1219 #

2011 Y L R 1219

[Lahore]

Before Rauf Ahmad Sheikh, J

Sardar NISAR AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.568-B of 2010, decided on 26th April, 2010.

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---Allegation against accused was that a cheque of Rs.5,50,000 given by him, was dishonoured on its presentation---Contention of accused was that the matter was referred to Traders Welfare Association with consent of the parties, which after deliberations, decided that a sum of Rs.3,10,000 was due from him to the complainant, which was paid by accused; vide receipt and nothing was due, but the cheque was not returned by the complainant with ulterior motive---Counsel for accused had referred to the proceedings conducted by the arbitrators; and the receipt issued by the complainant---Amount payable under the cheque, in circumstances, was no more due and no dishonesty was committed by accused---Contention of accused that he had been involved in the false case due to malice, was not without weight and could not be ruled out---Ad interim pre-arrest bail granted to accused was confirmed, in circumstances.

Rashad-ul-Masawar for Petitioner.

Muhammad Tanvir Chaudhry for the Complainant.

Attiq-ur-Rehman Mani, Standing Counsel.

Zafar Iqbal, A.S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1222 #

20011 Y L R 1222

[Lahore]

Before Tariq Javaid, J

MADEEHA SAGHEER---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 5567 of 2009, decided on 22nd April, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Petitioner, student of 1st year of M.B.B.S., was denied migration from one medical college to the other by authorities/universities which maintained that migration required upgradation---Petitioner was not allowed migration even after he completed first year of the M.B.B.S.---Validity---Petitioner sought migration against vacant seat---Question of upgradation could arise only where number of candidates exceeded the number of seats---In the absence of vacancy on self-finance basis, petitioner should have been adjusted against available regular seat---Refusal to allow migration was held to be detrimental to the interests of citizens and taxpayers---Authorities were directed to allow petitioner's application for migration.

Muhammad Arif Alvi for Petitioner.

Javed Saeed Pirzada, A.A.-G.

YLR 2011 LAHORE HIGH COURT LAHORE 1228 #

2011 Y L R 1228

[Lahore]

Before Tariq Javaid, J

Malik ASHIQ HUSSAIN---Petitioner

Versus

SECRETARY, PAKISTAN RAILWAY and others---Respondents

Writ Petition No.2331 of 2010, decided on 13th April, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner sought direction to Railway Department to begin construction work on manned level-crossing having been delayed despite sanctioned issuance of work order--- Interveners/respondents sought construction of the same sanctioned level-crossing at the place of their own choice---Validity---Sanctioned site of manned level-crossing had been used by large section of society---Department's contention that manned level-crossing was of no use to pedestrians could not be accepted--Manned 'level-crossing ensured safety of pedestrians and vehicular traffic and non-construction of the same in thickly populated area amounted to criminal .negligence---Constitutional petition was accepted with direction to the department to begin work in accordance with the sanctioned plan.

Shahbaz A Rizvi for Petitioner.

Kh. Noor Mustafa, D.A.-G.

Rafiq Ahmed Malik for Applicant.

Rao Muhammad Iqbal for Pakistan Railway.

YLR 2011 LAHORE HIGH COURT LAHORE 1234 #

2011 Y L R 1234

[Lahore]

Before Tariq Javaid, J

MUHAMMAD HANIF---Petitioner

Versus

A.D.J. and others---Respondents

Writ Petition No.2047 of 2008, decided on 11th November, 2010.

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

----O. XVII, Rr.2 & 3---Constitution of Pakistan, Art.199---Constitutional petition---Trial Court dismissed suit for non prosecution as well as for non-production of evidence---Re visional court maintained findings by the Trial Court---Plaintiff asserted that if the Trial Court dismissed suit for non prosecution, said court was not required to have made observation with regard to non production of evidence and further stated that such observation could only be passed .if the plaintiff was present and had failed to produce evidence---Validity---It was sufficient if case was dismissed for non-prosecution; however, order with regard to dismissal of suit for failure to produce evidence was superfluous and in fact not required as such would have completely defeated the ends of justice---Impugned order appeared to be too harsh as only three opportunities were afforded to the plaintiff to produce evidence---Law favours adjudication of the cases on merits and not on technicalities; therefore, application of technicalities should not defeat the ends of justice as same was not the intent of law---High Court allowed constitutional petition and set aside the impugned orders by granting one opportunity to the plaintiff to produce oral evidence and further one opportunity to produce documentary evidence.

PLD 2006 Lah. 121 rel.

(b) Administration of justice---

---Ends of justice should not be defeated merely on the basis of technicalities.

---S. 115---Revision---Scope---high Court was vested with the powers of revisional jurisdiction which must be exercised to ensure that the ends of justice were met.

Ahmd Waheed Khan for Petitioner.

Sh. Naveed Shahryar for Respondent No.3.

Sher Afghan Asadi for Respondents Nos.4 to 7.

YLR 2011 LAHORE HIGH COURT LAHORE 1240 #

2011 Y L R 1240

[Lahore]

Before Syed Akhlaq Ahmad, J

MUHAMMAD ALI HAIDER---Petitioner

Versus

Syed NASIR ABBAS NAQVI, JUDGE FAMILY COURT LAHORE

and another---Respondents

Writ Petition No.21555 of 2010, decided on 11th October, 2010.

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

----S.5, Sched. & S.10(4), Proviso---Constitution of Pakistan Art.199---Constitutional petition---Suit for recovery of dower amount and dissolution of marriage on ground of Khula---Plea of husband that dower amount had been paid to wife on wedding night--Failure of conciliation proceedings between parties and wife's statement before Court that she would prefer to die than to live with the husband---Passing of decree for dissolution of marriage by Family Court while framing issue regarding payment of dower and fixing case for recording evidence of parties thereon-Validity-Family Court after passing decree had not refused to restore dower to husband, but had postponed its return till decision of such issue after recording evidence of parties---Family Court had correctly put to rest controversy without committing any error of law or facts---High Court dismissed constitutional petition in circumstances.

PLD 1967 SC 97; PLD 1989 Pesh. 1; Surah Al-Baqra Ayat No.229 of the Holy Quran and compiled by Mian Masood Ahmed Bhutta, Advocate ref.

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

----S. 10---Conciliation proceedings in presence of counsel for parties---Such presence neither necessary nor required---Family Court had exclusive jurisdiction to decide as to how and in what manner such proceedings should be conducted---Principles.

----Preamble, Ss. 5 & 17---Proceedings before Family Court---Non-applicability of provisions of C.P.C. to such proceedings---Effect---Family Court could adopt procedure of its choice in order to meet situation not visualized in West Pakistan Family Courts Act, 1964---Principles.

Khalil-ur-Rehman Bhutta v. RaziaNaz 1984 CLC 890; Shahzada Jawaid v. Mst. Sadia Rauf and another 2000 MLD 1301; Mirza Shahid Baig v. Mst. Lubna Baig and 2 others 2004 CLC 1545 and Muhammad Deen v. Aalia Bibi and another PLD 2007 Lah. 425 rel.

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

----S. 10(4), Proviso [as added by West Pakistan Family Courts (Amendment) Ordinance (LV of 2002)]---Constitution of Pakistan, Arts. 199, 203-B & 203-D---Constitutional petition----Maintainability---Proviso to S. 10(4) of West Pakistan Family Courts Act, 1964 was alleged to be violative of Injunctions of Islam---Petitioner could raise such plea before Federal Shariat Court and not before the High Court---High Court dismissed constitutional petition in circumstances.

(e) Constitution of Pakistan---

----Art. 199-Constitutional jurisdiction of High Court---Scope---High Court could not substitute lawful decision within ambit of conferred jurisdiction of court below.

Junaid Ahmad Qureshi v. Miss Nadia Ikram Judge Family Court, Islamabad and another 2003 CLC 1001 and Muhammad Din v. Aalia Bibi and another PLD 2007 Lah. 425 ref.

Sahibzada Anwar Hameed for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1248 #

2011 YLR 1248

[Lahore]

Before Ch. Iftikhar Hussain, J

USMAN TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9606-B of 2010, decided on 21st September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of-Two cheques issued by the accused to complainant had been dishonoured by the Bank on presentation---Accused had brought a suit for rendition of accounts and permanent injunction against the complainant lady and the Bank, much prior to the registration of the present case, in respect of the transaction in question between the complainant and the accused's company---Said suit was pending and any verdict regarding the transaction and the cheques in question was to be given by Civil Court in due course of time---Till then, case against the accused definitely required further inquiry into his guilt, as envisaged under S.497(2), Cr. P. C. ---Offence against accused did not attract the prohibitory clause of S.497(1), Cr.P.C., where grant of bail was a rule and refusal an exception---No exceptional circumstance was available to refuse bail to accused---Accused was behind the bars for the last one month and seven days and was not a previous convict---Bail was allowed to accused in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Rai Bashir Ahmad and Aftab Rahim for Petitioner.

Ch. Abdul Razzaq, D.P.-G. for the State with Yaad Hussain, S.-I. with police record.

Ch. Sarfraz Ali Deyal for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 1268 #

2011 Y L R 1268

[Lahore]

Before Syed Akhlaq Ahmad, J

Mst. SAHIB NOOR---Petitioner

Versus

ZAFAR IQBAL and others---Respondents

Writ Petition No. 2299 of 2004, decided on 16th August, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199--Constitutional petition--Plaintiff filed suit for recovery of dowry articles or its value to the sum of Rs.317,260 and maintenance allowance from December 2000 to January 2003 with future maintenance Rs.5000 per month---Defendant did not contest suit and was proceeded ex parte---Trial Court dismissed suit of plaintiff which was maintained by Appellate Court---Defendant asserted that no receipt of purchase of dowry articles had been proved by producing any witness of the same---Defendant never tried to domicile plaintiff nor paid any maintenance---Nothing was available on record to presume that the plaintiff was a disobedient wife---Claim of recovery of dowry articles had been successfully proved by the plaintiff by examining herself as a witness and producing list of dowry articles duly signed by her and exhibited on file without any objection from any side---Observation of the courts below that the plaintiff failed to produce receipt of her dowry articles was merely procedural technicality which ought to have been ignored specially when the evidence was not rebutted and ex pane proceedings were not got set aside by the defendant till to date---Judgments and decrees of both courts below were result of non-reading and mis-reading of evidence, non-discussion of the pleadings and non-appreciation of law on the point---High Court allowed constitutional petition and set aside the judgments and decrees of both courts below by decreeing the suit for maintenance ex parte @ Rs.5000 per month from December 2000 to January 2003 till the marriage between the spouses subsists and recovery of dowry articles or its value of Rs.317,260 in lieu thereof with costs throughout.

Syed Arif Ali Sabri v. Abdul Samad through L.Rs and 2 others 2008 YLR 2309; Sadruddin v. Aslam Madad Ali and others PLD 2008 Kar. 2005; Lubna v. Mian Muhammad Azam 2001 YLR 2415; Javed Bashir v. Judge Family Court 2003 MLD 814; Muhammad Javed Iqbal v. Mst. Tahira Naheed and others 2002 CLC 1396 and Shafqat Ali v. Nighat Preveen and others 2008 CLC 806 rel.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Allegation of the plaintiff (wife) was that defendant (husband) had married two other wives---Plaintiff (wife) had a right under Islamic Law to claim separate accommodation and maintenance---Wife could not be compelled to live with the other wives of the defendant and she could refuse to live with the parents of the husband.

Muhammad Tauqeer v. ADJ and others 2001 MLD 1650 rel.

----S. 5 & Sched.---Constitution of Pakistan, Art.199--Constitutional petition--Suit by wife for recovery of dowry articles or its value and her maintenance by the husband---Defendant's contention was that no receipt of purchase of dowry articles was proved through production of any witness in the court and both Trial Court and Appellate Court had rightly dismissed the suit---Validity---List of dowry articles was annexed with the plaint right from the inception which was not only the basis of the suit but was also mentioned in the plaint and the same was exhibited by the Family Court without any objection from the defendant; such being so, no objection could subsequently be taken in respect of its admissibility---Exact and strict technical compliance was not required in such like cases---Provisions of Qanun-e-Shahadat, 1984 being not applicable to the proceedings to be conducted by the Family Court, their rigours and technicalities had to be evaluated and appreciated as a prudent man would assess and reach a conclusion.

Shafqat Ali v. Nighat Preveen and others 2008 CLC 806; Muhammad Javed Iqbal v. Mst. Tahira Naheed and others 2002 CLC 1396 and Dr. Muhammad Ali Chohan v. Mst. Fakhr-un-Nisa and others 2009 CLC 255 rel.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199--Constitutional petition--Suit-by wife for recovery of dowry articles and maintenance---Parents, whether rich or poor, as per custom of society, always gave dowry to their daughters at the time of marriage mostly over and above their status---Order accordingly.

(e) Islamic Law---

----Marriage---Multiple marriages by husband at a time---Allegation of the plaintiff (wife) was that defendant (husband) had married two other wives---Plaintiff (wife) had a right under Islamic Law to claim separate accommodation and maintenance---Wife could not be compel-led to live with the other wives of the defendant and she could refuse to live with the parents of the husband.

Muhammad Tauqeer v. ADJ and others 2001 MLD 1650 rel.

Muhammad Amir Butt for Petitioner.

Malik Shahid Iqbal for Respondent No.1.

YLR 2011 LAHORE HIGH COURT LAHORE 1276 #

2011 Y L R 1276

[Lahore]

Before Syed Akhlaq Ahmad, J

MUHAMMAD MASOOD---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No.3770 of 2010, decided on 30th August, 2010.

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

----S. 5, Sched. & S.17-A---Constitution of Pakistan, Art.199---Constitutional petition-Suit for recovery of maintenance and delivery expenses---Interim maintenance Non compliance of order---Effect---Petitioner's right of defence was struck off by the Judge Family Court on the ground of non-payment of interim maintenance---Petitioner's plea' was that the case was fixed for cross-examination but the Judge Family Court in spite .of presence of the petitioner's attorney struck off the right of defence and had committed illegality and material irregularity---Petitioner as well as his attorney was in attendance but he did not pay interim maintenance as ordered by the court---Petitioner also failed to give any satisfactory reply of not complying with the' order of the Trial Court---Interim maintenance of Rs.2000 per month was ordered to be paid to minor children of the petitioner---Attorney of the petitioner did not comply with the said order without any reason; Judge Family Court was fully justified in closing the petitioner's right of defence---Constitutional petition was dismissed by High Court in limine.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Exercise of constitutional jurisdiction under Art.199 of the Constitution against an order was justified inter alia only if the order was a non-speaking order and was violative of the basic law or it was suffering from infirmities affecting jurisdiction of court or tribunal, and it settled an issue finally to the extent of the said court.

----S. 5 & Sched.---Constitution of Pakistan, Art. 199--- Constitutional jurisdiction of High Court---Scope---Maintenance had been fixed temporarily by the Judge Family Court which could obviously be modified later on---Such was not a final order adversely affecting the petitioner---Interim order of such kind could not be interfered with in constitutional jurisdiction---Constitutional petition was dismissed in limine being not maintainable.

Kh. Jameel Ahmad v. Judge Family Court Multan and 2 others 2007 YLR 1401; Munir Alam through Special Power of Attorney v. Civil Judge/Family Court, Lahore and 2 others 2009 CLC 442 and Atta Muhammad v. Mst. Shahnaz Khatoon and 6 others 2006 YLR 1708 rel.

Shahid Latif Hashmi for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1284 #

2011 Y L R 1284

[Lahore]

Before Asad Munir, J

ZAHID IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 270-B of 2010, decided on 24th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Cheques in question had been admitted to have been issued by accused and no evidence had been shown to indicate that the said cheques were issued by way of guarantee---Petitioner would have the opportunity to prove his assertion that the cheques were issued as a guarantee at the trial---Bail was refused.

Ch. Attique-uz-Zaman for Petitioner.

Tanveer Chaudhry for the Complainant.

Babar Ali, Standing Counsel along with Abdul Sattar, S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 1285 #

2011 YLR 1285

[Lahore]

Before Syed Akhlaq Ahmad, J

AZIZ ULLAH KHAN---Petitioner

Versus

Mst. GHULAM FATIMA and 5 others---Respondents

Writ Petition No. 24032 of 2010, decided on 11th November, 2010.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O. VI, R.17---Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for permanent injunction---Amendment of plaint---Plaintiffs, pending suit, moved application under O. VI, R.17, C.P.C. for amendment of plaint, which was allowed by the Trial Court-Revision filed against said order of the Trial Court having been dismissed by the Appellate Court, defendant had filed constitutional petition against said concurrent interim order---Cause of action in the suit was not changed by said amendment---If the cause of action was not changed, the main substance of the suit and its nature would not change---Even otherwise, constitutional petition against interim order arising out of civil proceedings, was not maintainable, unless same would suffer from any jurisdictional error, which in the present case, was not pointed out before the High Court---Constitutional petition having no merits, was dismissed, in circumstances.

Khan Muhammad v. Khizar Hayat and another 2005 MLD 67 and Muhammad Bashir and others v. Riyasat Ali and others 1988 MLD 2258 ref.

Malik Saleem Iqbal Awan for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1287 #

2011 Y L R 1287

[Lahore]

Before Sh. Najam-ul-Hasan and Sardar Tariq Masood, JJ

MUHAMMAD IJAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1092 Criminal Revision No.621 and M.R. No.338 of 2005, heard on 13th December, 2010.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Injury on the left shoulder of the deceased was specifically attributed to accused---Complainant and prosecution witnesses remained consistent and assigned the same role to accused as was mentioned in the F.I.R.---To the extent of accused, ocular account was corroborated by medical evidence; and as specific injury to the deceased was assigned to accused and same was on the vital part of the body of the deceased and "the fire was made from a close range, knowing well that such fire could cause death of the deceased, his involvement in the occurrence was established beyond any doubt---Accused was armed with .12 bore gun which was recovered from him, and recovery of pallet and wad underneath the injury also corroborated the ocular account---Prosecution had proved its case to the extent of said accused from the ocular account, motive, recovery and even from medical evidence---No reason was available to differ with the findings of the Trial Court regarding conviction of accused---Only single fire on deceased was attributed to accused and he had not repeated the same---Occurrence having taken place at the spur of the moment, such a circumstance had provided some exception to accused and he had made out a case of mitigation in his sentence---Extreme penalty of death awarded to accused was not called for and lesser sentence of life imprisonment would meet the ends of justice---Conviction of accused was upheld, but his death sentence was converted to imprisonment for life with benefit of S.382-B, . Cr.P.C.

Muhammad Arshad and 2 others v. The State PLD 1996 SC 122 and Faqir Hussain v. the State 2003 SCMR 1565 ref.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Accused was assigned role of firing with .12 bore gun on the face of the deceased---Motive of the prosecution was not of such a nature which could lead to infer that accused had earlier planned to commit the offence---Injury assigned to the accused was not found by the Doctor on the body of the deceased, ocular account to the extent of the accused therefore, was contradicted by medical evidence---Complainant had implicated eight persons, whereas the deceased and the injured prosecution witness had received only one firearm injury each which had led to the inference that complainant side had widened the net to involve the maximum number of persons---Remaining five accused persons were acquitted by the Trial Court---Prosecution had failed to prove its case against the accused; and in circumstances he was entitled to acquittal---Conviction and sentence of the accused, were set aside and he was acquitted of the charge and was set at liberty.

----S. 336--- Itlaf-e-Salahiyyat-e-Udw---Appreciation of evidence---Sentence, reduction in---Accused was assigned the role of firing with .12 bore gun at injured prosecution witness on his left thigh---Medico-legal report showed that seven similar circular wounds were found on left thigh of the witness which had shown that fire was made from a distance and was the result of a gunshot---Nothing was on record to show that after receiving the injury the injured had become permanent incapacitated of revascularization of limb---In the absence of such evidence, conviction of accused under S.336, P.P.C., was not maintainable---Allegation against accused could be said to have been proved only to the extent of causing injury to prosecution witness and he could be convicted under S.337-F(vi), P.P.C.---Conviction of accused under S.336, P.P.C. was set aside and instead he was convicted for an offence under S.337-F(vi), P.P.C. and was sentenced to suffer five years' R.I. and Daman of Rs. 50,000.

Syed Ehtisham Qadir Shah for Appellant.

Muhammad Sharif Chohan for the Complainant.

Shahid Bashir Ch. D.P.-G. for the State.

Date of hearing: 13th December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1299 #

2011 Y L R 1299

[Lahore]

Before Asad Munir, J

RIAZ HUSSAIN and 40 others---Petitioners

Versus

GOVERNMENT OF PUNJAB, through Chief Secretary, and 5 others---Respondents

Writ Petition No. 935 of 2011, decided on 21st January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Failure to issue `Wattan Cards' to flood affectees---Grievance of the petitioners, resident of area, which had been declared flood affected, was that they had not been issued Wattan Cards---Pursuant to orders of High Court, a Committee had been constituted for each flood affected area to look into the grievance of flood affectees who had any grievance in respect of issuance of Wattan Cards---Assistant Advocate General, in view of said judgment of High Court had stated that it would be appropriate that the petitioners should approach the Committee for redressal of their grievance---Petition was transmitted to District Co-ordination Officer of the District concerned, who would place the grievance of the petitioners before said Committee, which, after giving personal hearing to the petitioners, would take decision in the matter preferably within a fortnight, but not exceeding one month from date of receipt of present order.

Muhammad Nawaz for Petitioner.

Kaleem Ilyas, A.A.-G. assisted by Mian Muhammad Akram Director (Operation) Relief and Crises Management Department for Respondents Nos. 1 to 3.

Qari Muhammad Younas, Naib Tehsildar, Jhang for Respondents No.5 and 6.

YLR 2011 LAHORE HIGH COURT LAHORE 1304 #

2011 Y L R 1304

[Lahore]

Before Tariq Javaid, J

SHEHNAZ AKHTAR and 4 others---Petitioners

Versus

AKBAR ALI---Respondent

Civil Revision No.2146 of 2005, decided on 23rd December, 2010.

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

----S.13---Suit for pre-emption---Making of Talbs---Suit for pre-emption had concurrently been dismissed by the Trial Court and Appellate Court---Necessary ingredients to establish right of pre-emption, were to mention time, date and place of making Talbs which were not mentioned in the plaint nor any evidence in that respect was produced---Such omission was fatal to the case of the plaintiff---Suit, in circumstances, was rightly dismissed---Concurrent judgments of courts below, could not be interfered with in revisional jurisdiction by High Court.

Saad Muhammad and others v. Faqir Muhammad PLD 2007 SC 302; Fazal-e-Subhani v. Muhammad Sabir and others PLD 2005 SC 977 and Haji Muhammad Aslam v. Fida Muhammad PLD 2003 SC 315 ref.

Baleegh uz Zaman Ch. for Petitioners.

Mian Sarfraz Ullah, and Syed Abdul Hayee Gillani for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 1308 #

2011 Y L R 1308

[Lahore]

Before Ijaz-ul-Ahsan, J

GULSTAN KHAN NASIR---Petitioner

Versus

CHAIRMAN, DEFENCE HOUSING AUTHORITY, LAHORE and 2 others---Respondents

Writ Petition No.5759 of 2007, heard on 2nd March, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Cancellation of allotment of plot---Plot in question was duly allotted to the petitioner in open balloting and petitioner/allottee had deposited first instalment of development charges---Subsequently said allotment was cancelled on the ground that petitioner was ineligible for allotment--Validity---Terns and conditions of allotment which were clear and unambiguous, showed that allotment could be cancelled, if allottee was found ineligible---Petitioner who was allottee, had paid the amount, but when it was found that he did not meet the eligibility criteria, he was immediately informed about the same and allotment in question was cancelled---Nothing was on record to indicate that the petitioner had intentionally and mala fidely given wrong information or made an attempt to defraud the authorities---Even otherwise, once the allotment had been cancelled, there was nothing to stop the authorities from refusing money to the petitioner which he had paid, but the authorities had denied to refund money paid by the petitioner---Authorities had to act fairly and reasonably and not in arbitrary manner and penalizing a person without due process of law---Specific item in the terms and conditions was in the nature of penalty and was not enforceable---Authorities were directed to refund the amount paid by the petitioner together with mark up at the rate of 10% per annum---Said amount would be refunded to the petitioner within a period of 15 days.

Raja Muhammad Munir for Appellant.

Muhammad Farooq Hussain Butt for Respondent.

Date of hearing: 2nd March, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1324 #

2011 Y L R 1324

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

GHULAM HUSSAIN and 2 others---Petitioners

Versus

RAMZAN and 2 others---Respondents

Civil Revision No.177 of 2001, heard on 22nd April, 2010.

Specific Relief Act (I of 1877)---

----S. 8---Suit for recovery of possession---Plaintiffs filed suit for possession of disputed land on the ground that they were owner of the same and had rented it out to defendants but the defendants had refused to pay rent thereof---Defendants contested suit on the ,ground that they were in possession of the disputed land from the days of their forefather and were in possession of the same for more than 50 years---Trial Court decreed suit of the plaintiffs---Appellate Court, on appeal, allowed the same and set aside the judgment and decree of the Trial Court---Validity---One of the plaintiffs admitted in his cross-examination that 3/4 rooms were constructed by the defendants---No written or oral evidence had been produced by the plaintiffs confirming such fact that defendants were tenants/lessees, rather, evidence produced by the plaintiffs showed that defendants were in possession of the disputed property since long and they had constructed their houses on the said land---One of the plaintiffs admitted in his statement that in his village there was no tenant and landlord---Such very admission of the plaintiff was sufficient to negate his claim against the defendants---Plaintiffs had also failed to rebut the assertion of defendants that they were in possession of suit land for the last 50 years and as such suit was prima facie barred by time---Appellate Court had scanned the evidence minutely and its conclusion that defendants were not the tenants of the plaintiffs was fully established on record---Revision petition was dismissed.

Shahid Mehmood Khan for Petitioners.

Malik Ijaz Hussain Gorchaha for Respondent.

Date of hearing: 22nd April, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1338 #

2011 Y L R 1338

[Lahore]

Before Sardar Tariq Masood and Syed Akhlaq Ahmed, JJ

ALLAH DITTA and others---Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.378 of 2004 and M.R. No. 60 of 2009, heard on 10th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/34/109---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Medical evidence though could not specify the name of the assailants, but it confirmed the assertion made by the eye-witnesses--Medical evidence was strong supporting evidence to the ocular account, in circumstances---Report of Forensic Science Laboratory confirmed that empties recovered from the spot were found to have been fired from the licensed rifle of accused---Recovery of rifle, empties and the report of Forensic Science Laboratory, had further corroborated the ocular account---No doubt, the witnesses were related to the deceased and also inimical to accused, but as sufficient corroboration was available, their evidence, could not be discarded only on the ground of relationship with the deceased and animosity towards accused---Prosecution, in circumstances, had proved the case against accused beyond any shadow of doubt---However, certain circumstances. had entailed mitigation in the case--Prosecution had changed the venue of occurrence and motive asserted by the prosecution was not proved---Fact that in the inquest report, it was mentioned that both father and son jointly made firing upon the deceased, whereas father of accused was acquitted by the Trial Court---Suppression of injury on the person of accused, was a circumstance which indicated that the prosecution had concealed something which occurred prior to the occurrence--Prosecution had also concealed something from the court regarding the reason for murder of the deceased---Extreme penalty of death, could not be imposed upon accused, in circumstances---Death sentence awarded to accused, was converted into imprisonment of life, in circumstances.

Malik Muhammad Latif Kokhar for Appellant.

Malik Muhammad Rafique Khokhar, D.P.-G. for the State.

Ch. Muhammad Arshad Sindhu and Muhammad Naeem Khan for the Complainant.

Date of hearing: 10th March, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1345 #

2011 YLR 1345

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

BASHIRAN BIBI and 7 others---Petitioners

Versus

MUHAMMAD SAEEEM----Respondent

Civil Revisions Nos. 2133 and 2134 of 2002, heard on 18th May, 2010.

Specific Relief Act (I of 1877)---

---S. 8---Suit for possession---Disputed property---Legal heirs---Entitlement---Effect---Plaintiff filed suit for possession, claiming to be son of 'A. H. ' who was owner of the disputed property and defendants had taken over possession of the said property from his father as lessee---Defendant contested suit on the ground that plaintiff was not son of 'A.H.' and they were living in the disputed property as owner of the same---Defendants also filed suit for declaration on the ground that plaintiff was not entitled for share in the disputed property as legal heir---Trial Court in consolidated judgment, dismissed the suit of the plaintiff and decreed the suit filed by defendants---Appellate Court, on appeal, allowed the same and modified the judgments and decrees to the effect that both parties were legal heirs of 'A.H.' and were entitled to their respective shares in the disputed property---Validity---Evidence produced by both parties showed that both were trying to prove that the deceased 'A.H.' was their predecessor-in-interest but were accusing each other---Evidence available on record showed that both parties were legal heirs of Disputed property left by 'A.H.' had to be distributed among his legal heirs---Defendants had failed to show any material irregularity and illegality in judgment of the Appellate Court---Revision petitions were dismissed by High Court.

Ch. Haider Bakhsh for Appellant.

Muhammad Yousaf Saqi for Respondent.

Date of hearing: 18th May, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1350 #

2011 Y L R 1350

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No. 10891-B of 2009, decided on 10th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A (iii) & 337-F(i)/34--- Shajjah-i-Khafifah to any person, Shajjahi-hashimah to any person and damiyah to any person---Bail, grant of---Further inquiry---F.I.R. had been lodged with a delay of eleven days and no premeditation was found on the part of accused---Sudden flare up took place between the parties without any premeditation and on the basis of that flare up the situation had deteriorated at the spot and had degenerated into violence---Place of occurrence was quite close to house belonging to accused party, whereas the house of the complainant was nowhere near the place of occurrence, so much so that it had found no mention in the site plan at all---Medico-legal certificate issued in respect of complainant had shown that the complainant had been medically examined after about nineteen hours of receipt of his injuries, but the duration of injuries opined by the Doctor was about twelve hours, which had created some dent in the stated time of occurrence claimed by the complainant---Weapon allegedly used by accused was a brick which was an unconventional weapon---Such aspect of the matter had further confirmed lack of any premeditation on the part of accused party---Two accused persons, including the accused had also sustained injuries during the same incident and injuries were on their heads and chest, but were completely suppressed; and no mention of the same had been made in the F.I.R.---Accused's party had advanced a cross-version of the same incident, but same had, not been accepted by the Investigating Agency--Investigation of the case had already been finalized and challan had been submitted---Continued custody of accused in jail was not likely to serve a beneficial purpose---Concession of bail ought not to be withheld by way of premature punishment---Case against accused calling for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

Ch. Shahid Hussain for Petitioner.

Mrs. Farzana Shahzad Khan, Deputy Prosecutor-General with Allah Ditta, S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1355 #

2011 YLR 1355

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ZAHIR TAJ---Appellant

Versus

ADDITIONAL DISTRICT JUDGE and 2 others----Respondents

S.A.O. No.135 of 2007, heard on 31st March, 2010.

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

----Ss. 13(6) & 15(2)---Ejectment of tenant---Landlord filed ejectment petition on the ground of bona fide personal need and default in payment of rent---Rent Controller, on non-compliance of the order by tenant to deposit rent amount in the Court, struck off his defence, and subject to adjustment of earlier payment, directed ejectment of the tenant within a period of one Month along with deposit of future rent at the rate of Rs.7500 per month---Appellate Court on appeal, dismissed the same in limine on the ground that order of Rent 'Controller was an order passed under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and the same was not appealable---Contention of the tenant was that order under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was passed on 22-3-2007 whereas he had assailed the order dated 26-4-2007 whereby his defence was struck off and the ejectment order was passed against him---Tenant further contended that the order of the Appellate Court was based on misreading of order of Rent Controller as the said order was a final order in terms of S.15(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Validity---Record revealed that it was a final order passed under S.15(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 which was an appealable order---Tenant had rightly assailed the order through an appeal---Appellate Court without going through the order dated 26-4-2007 dismissed the appeal holding that impugned order had been passed under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and the said order was interim in nature---Appellate, Court had wrongly found that order under appeal was passed under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Tenant's appeal was against the final order and Appellate Court was bound to decide the appeal on merits---High Court allowed Second appeal from order and set aside the appellate order and remanded the case to Appellate Court to decide the same afresh on merit.

Muhammad Sarwar Awan for Appellant.

Anwar Akhtar for Respondent.

Date of hearing: 31st March, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1366 #

2011 Y L R 1366

[Lahore]

Before Muhammad Anwaarul Haq, J

ZAFAR IQBAL---Petitioner

Versus

THE STATE and others----Respondents

Criminal Miscellaneous No. 3260-B of 2011, decided on 31st March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.365-B & 376---Kidnapping, abduction or inducing woman to compel for marriage and rape---Pre-arrest bail, confirmation of----Accused was no more required for the purpose of investigation in the matter--Main accused had already been allowed bail after arrest---Case of accused who was witness of Nikah, was at better footing than the case of main accused who had been allowed bail---Considerations for grant of bail before arrest and bail after arrest, were entirely different--Humiliation and unjustified harassment was a sine qua non for pre-arrest bail, besides the mala fide of the complainant or the Police---Where arrest of accused was not necessary requirement of the Investigating Agency, sending accused behind the bars only for the reason that he could be released on bail after his arrest was altogether unjustified---Court while deciding such like cases, must avoid to be a party to please/satisfy the ego of the complainant party---Ad intern pre-arrest bail already allowed to accused was confirmed, in circumstances.

Muhammad Fazal Ilyas Bodi v. The State 1979 SCMR 9; Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 and Muhammad Aslam v. The State 2004 YLR 1341 ref.

Saeed Ahmad Seikh for Petitioner.

Tasawar Ali Khan Rana, Deputy Prosecutor-General for the State with Wajid Ali S.-I. with record.

Zafar Iqbal Mahar for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 1376 #

2011 Y L R 1376

[Lahore]

Before Muhammad Anwaarul Haq, J

KHALID ALI---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4184-B of 2010, decided on 14th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry--- F.I.R. showed that accused along with his brother, who was declared innocent during the investigation, was alleged to have inflicted fist blows to the deceased---Post-mortem report reflected that all injuries were caused by sharp-edged weapon, except two simple injuries by blunt weapon; and those two as per contents of the F.I.R. were collectively attributed to accused and his brother, who had already been granted bail by the Trial Court---Possibility of false involvement of accused being real brother of principal accused, in circumstances, could not be ruled out; and question of his sharing common intention; and vicarious liability required further probe---Accused was behind the bars without any progress in trial and even charge had not been framed in the case---Accused, in circumstances was admitted to bail.

Ch. Shahid Hussain for Petitioner.

Mrs. Farzana Shahzad Khan, D.P.-G. with Qadeer Virk, A.S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 1377 #

2011 Y L R 1377

[Lahore]

Before Mian Shahid Iqbal, J

ABDUL GHAFOOR and others---Petitioners

Versus

MUHAMMAD RAFIQ through legal heirs and 2 others----Respondents

Civil Revision No.771 of 2003, heard on 21st July, 2010.

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

----S. 42---Contract Act (IX of 1872), S.16---Suit for declaration on the ground that plaintiffs being legal heirs of their real cousin (lady) were co-owners in possession of the disputed property which had been transferred to defendants illegally---Defendants contested the suit on the ground that disputed property was transferred to then by virtue of sale transaction---Trial Court dismissed suit of the plaintiffs---Appellate Court, on appeal, allowed the same and reversed findings of the Trial Court---Plaintiffs asserted that no sale was conducted between the parties and all the transactions were based on fraud and forgery---Plaintiffs further contended that since their real cousin was a Pardanasheen lady, the mutation sanctioned by the revenue officer was not a title document and did not confer any right to the defendants unless and until they so proved the same---Validity---Neither the attesting officer nor Pattidar appeared before the court to testify the sale which factor was sufficient to hold that mutation was not proper---Defendants had failed to prove the consideration paid to the Pardanasheen lady, they also failed to prove that at the time of sanction of mutation she was accompanied with the advice of her near and close ones who could fully explain to her the result of what she was doing---Beneficiary was bound 'to prove that the property sold through mutation was with consideration which defendants had failed to prove---Petition was dismissed by High Court.

Allah Bakhsh and another v. Ghulam Jannat and 6 others PLD 1993 Lah. 254; 1993 CLC 1327; 1995 SCMR 971; 1990 MLD 89; 2001 SCMR 1591 and 1994 SCMR 1194 ref.

Allah Bakhsh and another v. Ghulam Jannat and 6 others PLD 1993 Lah. 254; Mirsab Khan and another y. Parizad Khan and another PLD 1994 Pesh. 148 and Mst. Raj Bibi and another v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591 rel.

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

----S. 16---Transfer of property---Undue influence---When a Pardanasheen or illiterate woman was made to transfer a property then it was very necessary and important that at the time of transfer of said property she must be assisted by some of her near and close one who could have given her advice as to what she was going to do.

Abdul Hameed v. Shamsuddin PLD 2008 SC 140 rel.

----S. 16---Transfer of property---Undue influence---When an illiterate lady was made to sign or relieve of her property the beneficiary who was to receive the property, onus was upon him to show and prove that transaction made by him was fully proved and clear.

1995 SCMR 971 and PLD 2005 SC 658 rel.

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

----S.42---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Mutation---Scope---Mutation was only a fact which evidenced a transaction which took place before Revenue Officer regarding appearance and signing of documents before hint---Other proceedings also took place before the happening of mutation and those factors were the evidence regarding sale and purchase and payment in respect of that transaction.

Mirsab Khan and another v. Parizad Khan and another PLD 1994 Pesh. 148 and Mst. Raj Bibi and another v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591 rel.

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

---Arts. 17 & 79---Where fiscal matters were involved the person so alleging their claim in their favour on the basis of the document which had created title, had to be proved through two witnesses.

Syed Ibne Hassan for Petitioner.

Muhammad Farooq Qureshi Chishti for Respondent.

Date of hearing: 21st July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1388 #

2011 Y L R 1388

[Lahore]

Before Nasir Saeed Sheikh, J

PROVINCE OF PUNJAB through Collector Bhakkar ---Petitioner

Versus

MUHAMMAD IKRAM and others----Respondents

Civil Revision No.2488 of 2003, heard on 6th September, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration on the ground that plaintiffs' predecessor-in-interest was allotted 120-Kanals of land under Settlement Scheme but at the time of making transfer of the land after receiving entire price only 113-Kanals and 14 marlas of total land was transferred to him--Department contested suit on the ground that disputed land was not allotted to the plaintiffs as it was Ghair Mumkin Parao---Trial Court dismissed suit of the plaintiffs---Appellate Court on appeal, reversed findings of the Trial Court and decreed the suit---Validity---One of the department's witnesses admitted that 120 Kanals of land was allotted to predecessor-in-interest the plaintiffs and the disputed land was not allotted as same was a Ghair Mumkin Parao; however no document in support of said contention had been produced by the department---Appellate Court had found that plea taken by department that disputed land was not allotted to the predecessor-in-interest of the plaintiffs on the ground that it was Ghair Mumkin Parao, was not taken in the written statement; therefore, no evidence could be led in support of said contention and finding by the Appellate Court was in accordance with law---High Court did not find any illegality in the impugned judgment and decree passed by Appellate Court---Revision petition was dismissed.

Shakeel-ur-Rehman Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 6th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1392 #

2011 Y L R 1392

[Lahore]

Before Muhammad Qasim Khan and Mazhar Iqbal Sidhu, JJ

ABDUR RASHEED---Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.9 & 14-J. and Murder Reference No.10 of 2009, heard on 8th March, 2011.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Prompt F.I.R.---Value---Sentence, reduction in---F.I.R. which was lodged by the complainant without any loss of time, was a valued document in the prosecution case---Motive in the case appeared not to be so strong and was weak in the light of prosecution evidence---Despite. the fact that prosecution witnesses did not try to apprehend accused, it would not mean that they did not see the occurrence---Complainant party had no enmity in the vicinity where occurrence had taken place---Version of accused during trial and in his statement recorded under S.342, Cr.P.C. that at the time of occurrence, deceased was found in an objectionable position with a man whereupon father of the deceased had committed her murder, could not be believed and same was annulled---Toka with which deceased was killed was recovered on pointation of accused which was sent in sealed parcel to the office of Chemical Examiner---Report of chemical Examiner and Serologist showed that human blood was found to be present on it---Said piece of evidence corroborated the prosecution version---As to what happened immediately before the occurrence and before causing the injuries in between the deceased as well accused, or what were the factors upon which accused started causing injuries to the deceased, remained shrouded in mystery---Whether inception of the occurrence was made by accused or the deceased was not clear---On such factor alone, capital punishment of accused could not be sustained---Prosecution had fully proved its case against accused---Appeal against conviction, in circumstances, was dismissed, but death sentence of accused was commuted to imprisonment for life---With such modifications, Murder Reference was replied in the negative.

Nazir Ahmad Chaudhry for Appellant.

Sardar Israr Ahmad Dahir Counsel on Court's call.

M. Muhammad Ali Shahab, D.P.-G. for the State.

Date of hearing: 8th March, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1401 #

2011 Y L R 1401

[Lahore]

Before Shahid Hameed Dar, J

ALLAH DITTA---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SATTO KATLA, LAHORE and 6 others----Respondents

Writ Petition No.5659 of 2010, decided on 29th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 420, 468 & 471---Constitution of Pakistan, Art. 199---Constitutional petition---Cheating, forgery, using as genuine a forged document---Quashing of F.I.R.---F.I.R. had alleged that accused and his co-accused forged the agreement to sell and for that purpose not only committed the offence of forgery, but also used the forged document as genuine---Mode of the occurrence detailed in the F.I.R., required investigation into the allegations, which was the exclusive domain of the Police---Proceedings of a civil suit and that of the criminal case could continue in parallel to each other under the law---Constitutional petition was dismissed.

Zafar Iqbal Bhatti for Petitioner.

Aftab Rahim Butt and Shahid Hussain for Respondent No.3.

M.A. Amin Mian, Additional P.G. with Ghulam Murtaza, S.-I. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 1402 #

2011 YLR 1402

[Lahore]

Before Nasir Saeed Sheikh, J

Dr. M.A. AMIN---Petitioner

Versus

FAISALABAD DEVELOPMENT AUTHORITY through Director General and another----Respondents

Civil Revision No.1626 of 2003, heard on 20th August, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration with permanent injunction in respect of disputed property with the prayer that defendants had executed an agreement to sell in his favour and on the basis of said agreement the plaintiff be declared as an owner of the .same---Defendants contested the suit---Trial Court dismissed the suit---Appellate Court, on appeal, also dismissed the same as well as disallowed request made by plaintiff to be allowed to him to withdraw appeal with the permission to file fresh one as there were some technical defects in the same---Plaintiff asserted that without discussing the merits of the case and the question of legality or otherwise of the impugned judgment and decree passed by Trial Court, Appellate Court had dismissed the appeal which was a material irregularity committed by the Appellate Court---Validity---Appellate Court had itself pointed out in the impugned judgment that it had heard arguments of the parties on the sole point as to whether appeal and suit requested to be withdrawn be allowed to be withdrawn with the permission to file afresh one or not---Appellate Court, at the time of declining such request, could not dismiss the appeal without hearing arguments of parties on merits of the case---Dismissal of appeal had thus resulted into miscarriage of justice and was material irregularity committed by Appellate Court which needed to be corrected by the High Court---High Court allowed the revision petition and set aside the judgment and decree of Appellate Court and remanded the case for hearing the arguments of parties on merits and to decide the same within a period of one month positively---Parties should produce no further evidence and to appear without notice before the Appellate Court on the date fixed by High Court---Revision petition was allowed by High Court.

Makhdoom Ghulam Shabbir for Petitioner.

Respondent No.1 proceeded ex parte vide order dated 19-11-2003 for

Rana Rashid Akram Khan for Respondent No.2.

Date of hearing: 20th August, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1405 #

2011 Y L R 1405

[Lahore]

Before Syed Akhlaq Ahmad, J

GHULAM QASIM and 2 others---Petitioners

Versus

KHAN MUHAMMAD and another----Respondents

Civil Revision No.2075 of 2004, heard on 22nd December, 2010.

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

----S. 13---Suit for pre-emption---Talbs---Essentials---Talb-e-Muwathibat was not a mere technicality---right of pre-emption could not be claimed without performance of 'Talb-e-Muwathibat which was essentially a sine qua non for such right---Details of time and place of Talb-e-Muwathibat were important for calculating limitation for Talb-e-Ishhad---All three Talbs involved question of limitation---Under Explanation to S.13 of the Punjab Pre-emption Act, 1991, Talb-e-Muwathibat meant immediate demand by a pre-emptor in the same sitting/meeting (Majlis) in which he had come to know of the sale declaring his intention to exercise the right of pre-emption---Words `immediate demand' put a limitation on the prospective pre-emptor to express his intention immediately---Talb-e-Muwathibat was also called the jumping demand---"If a person claims his shuffa in the presence of the company amongst whom he may be sitting when he receives the intelligence, he is the "Shafee" his right not to be invalidated unless he delays asserting it till after the company have broken up "---Prospective pre-emptor was bound to make Talb-e-Muwathibat between receiving the information of the sale in the Majlis and dispersal of such Majlis whereafter the exercise of Talb-e-Muwathibat would be invalid---Talb-e-Ishhad was the second step which had to be completed two weeks after Talb-e-Muwathibat--- Pre-emptor could well be non-suited for non-performance of Talb-e-Ishhad which was linked to Talb-e-Muwathibat---Third step was Talb-e-Khusumat or filing of suit of pre-emption within 120 days---In cases involving question of limitation, plaintiff had to specify the date and time of the commencement of limitation or his knowledge for determining period of limitation---Plaintiff who did not disclose the time of his knowledge of accrual of cause of action, could not be subsequently accommodated in evidence in this regard--In order to prove the immediate exercise of Talb-e-Muwathibat, date and time of performance of Talb-e-Muwathibat had to be mentioned in plaint---Mention of time and place in pleadings was necessary for performance of Talb-e-Ishhad within two weeks---Knowledge of time and place was required to be mentioned specifically to ensure that nothing was invented in evidence as an afterthought---Day and time of performance of Talb-e-Muwathibat was simultaneous with the accrual of knowledge of transaction of sale was necessary to. prove immediacy of Talb-e-Muwathibat and calculate limitation for Talb-e-Ishhad---Where the plaintiff and witnesses did not refer to point of time but stated the length of time from their knowledge of the sale, in view of such contradictory statements of plaintiff, performance of Talb-e-Muwathibat was not proved in accordance with law---Notice of Talb-e-Ishhad was not proved either---Plaintiff having failed to prove the Talbs, revision petition of defendant was accepted and suit was dismissed.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 fol.

Hedaya Chaper 11, Page 550 quoted.

Khizar Abbas Khan for Petitioners.

M.A. Hamid Awan for Respondents.

Date of hearing: 22nd December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1417 #

2011 Y L R 1417

[Lahore]

Before Muhammad Yawar Ali, J

MUHAMMAD FAYYAZ JAVAID--- Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.5043-B of 2010, decided on 31st May, 2010.

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 six months and complainant had filed a civil suit against accused---Accused had been charged with an offence which carried a maximum punishment of three years' imprisonment--Grant of bail in offences punishable with imprisonment for less than ten years, was a rule and refusal an exception---Accused was admitted to bail, in circumstances.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Allah Jawaya v. The State 2006 YLR 1105; Shameel Ahmed v. The State 2009 SCMR 174; Muhammad Ghufran and 6 others v. The State 2010 PCr.LJ 351 and Muhammad Naeem v. The State 2010 PCr.LJ 504 rel.

Shahid Hussain Chaudry for Petitioner.

Aamir Asif Ranjha, Deputy Prosecutor General.

Fazal-ur-Rehman Butt for Respondent No.2/Complainant.

Muhammad Akbar, A.S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 1425 #

2011 Y L R 1425

[Lahore]

Before Ch. Muhammad Tariq, J

ABDUL WAHEED BUTT---Petitioner

Versus

MEMBER (JUDICIAL-V), BOARD OF REVENUE PUNJAB and others----Respondents

Writ Petition No.11674 of 2009, decided on 20th October, 2010.

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

----S. 54---West Pakistan Land Revenue Act (XVII of 1967) S. 42---Transfer of ownership through registered sale deed---Non-incorporation of such transfer in Revenue Record---Effect---Entries in Revenue Record were for fiscal purposes only---Non-incorporation of such transfer would not make ownership of transferee doubtful as mutation was not proof of title, rather registered sale-deed was stronger proof of his title unless declared illegal or cancelled by competent Court---Subsequent attestation of mutation on basis of registered sale deed was a mere formality to incorporate same in Revenue Record.

2004 SCMR 1701 and 1995 CLC 1843 rel.

Pir Syed Shahid Ali Shah and Ch. Imtiaz Ullah Warraich for Petitioners.

Ch. Iqbal Ahtnad Khan for Respondents.

Rana Shamshad Khan, A.A.-G.

YLR 2011 LAHORE HIGH COURT LAHORE 1432 #

2011 Y L R 1432

[Lahore]

Before Ch. Muhammad Tariq, J

IQBAL BIBI (BARKAT BIBI) and others---Petitioners

Versus

RAMZAN BIBI and 8 others----Respondent

Civil Revision No.203 of 2002, heard on 5th October, 2010.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.IX, R.2---Title, determination of---Limitation---Contention of plaintiff was that he was absolute owner of suit property on the basis of sale deed executed in his favour---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiff-Plea raised by defendant was that sale deed in question was a result of fraud and was liable to be set aside as the same was executed after the death of the owner of suit-land---Validity---Owner of suit-land died on 5-1-1981 and sale deed in question was executed on 7-1-1981, therefore, the same .was a forged and fabricated document and Trial Court had rightly dismissed the suit of plaintiff---Earlier, plaintiff filed a suit on 19-2-1984, which was dismissed on 19-3-1984 under O.IX, R.2 C.P.C. thereafter plaintiff waited till 23-12-1986 and then again filed a suit after elapse of more than 2 years and 9 months which was nothing but an afterthought---Lower Appellate Court erred while accepting appeal as the Court had ignored unrebutted documentary evidence which was not warranted under the law---Judgment and decree passed by Lower Appellate Court was set aside and that passed by Trial Court was restored---Revision was allowed accordingly.

Shahzad Shaukat for Petitioners.

M. Iqbal for Respondents Nos. 1 to 8.

Date of hearing: 5th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1444 #

2011 Y L R 1444

[Lahore]

Before, Ch. Muhammad Tariq, J

SHAH MUHAMMAD and 26 others---Petitioners

Versus

DISTRICT COUNCIL, SARGODHA through Administrate and 3 others----Respondents

Writ Petition No. 10730 of 2010, decided on 27th October, 2010.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1---Constitution of Pakistan, Art.199---Specific Relief Act (I of 1877), S. 42---Constitutional petition---Suit for declaration---Withdrawal of suit with permission to file a fresh suit---During pendency of suit one of the plaintiffs having died, the Trial Court summoned his legal heirs---Before the appearance of the legal heirs of deceased, counsel for the plaintiffs recorded his statement that he wanted to withdraw the suit with permission to file a fresh suit---Trial Court, however, on the same day dismissed the suit as withdrawn, but did not accord permission to file fresh suit---Order of the Trial Court was upheld in revision---Validity---Counsel for the plaintiffs having categorically stated that permission be accorded to him to withdraw the suit with permission to file a fresh suit, it was obligatory upon the Trial Court not only to grant the plaintiffs permission to withdraw the suit, but at the same time to allow them to file a fresh suit as prayed for---Court could not at the same time allow to withdraw the suit and refuse permission to institute fresh suit---Such was a legal question of fact which was ignored by both the courts below---Circumstances revealed that both the courts below had not applied their judicial minds while refusing the plaintiff to grant permission to institute a fresh suit---Impugned orders/judgments passed by the courts below, were set aside and permission to file a fresh suit was accorded to the plaintiffs.

1970 SCMR 141 and PLD 1990 SC 596 rel.

Ch. Muhammad Masood Jahangir for Petitioners.

Muhammad Farooq Qureshi Chishti for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1451 #

2011 Y L R 1451

[Lahore]

Before Tariq Javaid, J

ZULFIQAR and 11 others---Petitioners

Versus

ASHIQ HUSSAIN and others---Respondents

Civil Revision No.339-D of 1996 decided on 15th September, 2010, (a) Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration---Plaintiffs filed suit on the ground that the deceased was allotted disputed land by the Provincial Government under Co-operative Farming Scheme in the year 1958 and execution of disputed power of attorney in favour of defendants and subsequent alienation of said property by the attorney was with mala fide intention and without instructions of the deceased and prayed for cancellation of the sale-deed and alleged mutation---Defendants contested suit and also filed suit for permanent injunction in respect of disputed property against plaintiffs---Both suits were consolidated by Trial Court---Contention raised by plaintiffs was that power of attorney in question was executed by deceased only for transfer of disputed property in his name whereas the alleged sale was not covered by the said power of attorney---Trial Court decreed suit of the plaintiffs and appellate court allowed appeal and reversed findings of the Trial Court---Validity---Sale-deed was executed with consent of deceased and the plaintiffs could not rebut such evidence also because deceased, at the time of sale, was neither residing with the plaintiffs nor it was established through evidence that deceased had any intention to assail the said transaction---Wife of the deceased had filed consenting written statement before the Trial Court---Testimony and the documentary evidence produced on record revealed that the appellate court had rightly decided the suit---High Court declined to interfere in revisional jurisdiction---Petition was dismissed by High Court.

Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341; Mst. Ghulam Fatima v. Muhammad Din 2004 SCMR 618;, Hanif and 2 others v. Mst. Muradan and 2 others 1986 MLD 256; Dost Muhammad v. Member Board of Revenue 2001 MLD 2019 and Firdos Shah v. Mst. Memoona Bibi 2007 CLC 500 ref.

Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341; Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618; Hanif and 2 others v. Mst. Muradan and 2 others 1986 MLD 256; Dost Muhammad v. Member, Board of Revenue and others 2001 MLD 2019 and Firdos Shah v. Mst. Memoona Bibi 2007 CLC 500 distinguished.

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

----S. 42---Suit for declaration---Con?tention of the plaintiffs was that disputed land was transferred to the deceased on 26-1-1976 and the power of attorney was executed on 7-2-1976 and the said land was sold the same day and the sale-deed was registered on 9-2-1976; ordinarily the transactions could have not been effected with such an efficiency which had given rise to doubts---Validity---Record did not reveal cross-examination of any of the defence witnesses on such lines---Only presumption that emanated from the swiftness of three transactions might be that the deceased was admittedly an ailing person---Defendants were looking after the deceased and had paid the outstanding instalments for the price of the disputed property---Certain amount had also been spent on the treatment of the deceased and possibility of expected death of the deceased could not have been overlooked by the defendants, therefore, in order to secure their own interest they must have acted with unprecedented swiftness; however the deceased remained alive for almost two months from the date of impugned alienation and did not assail the transaction, rather cancelled the power of attorney, was sufficient to support the contention of the defendants that the impugned sale was executed with consent of the deceased.?

Malik Muhammad Ramzan Khalid and Syed Shafqat Ali Naqvi for Petitioners.

Tahir Mehmood for Respondents.

Date of hearing: 25th June, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1467 #

2011 Y L R 1467

[Lahore]

Before Nasir Saeed Sheikh, J

SHERA and 6 others---Petitioners

Versus

NAZIR AHMAD----Respondent

Civil Revision No. 1342 of 2003, heard on 1st September, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Plaintiff filed suit for declaration along with permanent injunction on the ground that he was owner in possession of the disputed land' and the alleged mutation in respect of the same in favour of defendants was based on fraud and misrepresentation---Defendants contested suit on the plea that an agreement to sell was executed by plaintiff in their favour and in consequence thereof the mutation in question was got incorporated by plaintiff in favour of the defendants---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---Disputed mutation did not bear the thumb 'impression of the plaintiff---One of the defendants had made contradictory statement with respect to payment of earnest money, which fact was in clear contradiction to the entries of mutation---Revenue officers who appeared as defendants' witnesses did not corroborate the statements of the defendants as well as of other two witnesses of the transaction---Judgment and decree passed by Appellate Court were in accordance with the evidence---Petition was dismissed by High Court.

Muhammad Siddiq and 6 others v. Zafar Iqbal and 9 others 2005 CLC '33; Abdur Razzaq and others v. Zahoor Ahmad and others 2005 CLC 556; Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Abdul Ghafoor and 2 others v. Muhammad Rafique and 13 others 2006 CLC 1796; Ghulam Muhammad alias Gama and another v. Waryam 2004 CLC 1 and Sardaran Bibi and others v. Muhammad Ameen and others 1987 CLC 1653 ref.

Syed Kazim Bukhari for Petitioners.

Chaudhary Muhammad Yousaf for Respondent.

Date of hearing: 1st September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1471 #

2011 Y L R 1471

[Lahore]

Before Ijaz-ul-Ahsan, J

GULZAR AHMED---Petitioner

Versus

ADDITIONAL INSPECTOR GENERAL OF POLICE and 6 others----Respondents

Writ Petition No.19124 of 2009, decided on 5th October, 2009.

Police Order (22 of 2002)---

----Art. 18(6)---Penal Code (XLV of 1860), Ss.302/148/149---Constitution of Pakistan, Art.199---Constitutional petition---Qatl-e-amd---Transfer of investigation---Petitioner had assailed order by virtue of which, respondent, on the recommendation of the Board constituted under Art.18(6) of Police Order, 2002 had transferred the investigation of case registered with Police. Station in District D' to range crimeF'---Contention of counsel for the petitioner was that under Art.18(6) of Police Order, 2002, first investigation had to be changed within the same range; whereas respondent had transferred the first investigation of the petitioner's case from one region to range crime which was in violation of the rules and regulations---Validity---Provision of Art.18(6) of Police Order, 2002 was not mandatory and did not require that the first investigation must in all circumstances be changed within the same range---Investigation in the case was transferred after due deliberation and recommendation by a Board headed by a senior officer who recorded reasons for change of the investigation---Required procedure had been followed and the transfer of investigation was not mala fide---Counsel for the petitioner had not been able to satisfy as to how the petitioner, who was accused of offence under Ss.302, 148 & 149, P.P.C., was aggrieved of the order for transfer of investigation---Constitutional petition was dismissed.

Ch. Shahid Hussain for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1477 #

2011 Y L R 1477

[Lahore]

Before Ch. Muhammad Tariq, J

ABDUL QAYYUM---Petitioner

Versus

MUHAMMAD ASLAM and 62 others----Respondents

Civil Revision No.1012 and C.M. No.363/C of 2010, decided on 3rd May, 2010.

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

----S. 115---Civil Revision---Limitation---Order for removing objection within 3-days---Non-compliance of said order---Effect---Impugned order was passed on 14-9-2009 and the petitioner applied for certified copy on 15-9-2009 which was prepared on 19-9-2009---On 3-11-2009, the office of the Deputy Registrar returned the revision petition with eight objections advising petitioner to remove the same within 3-days--Petitioner refiled the case on 26-12-2009 which was fixed for 19-1-2010---Office of the Deputy Registrar again returned the revision petition with objections and also directed to file application for condonation of delay but the petitioner did not remove objections till 15-3-2010---Petitioner refiled the case without complying with the order of the office of Deputy Registrar and without submitting application for condonation of delay---Validity---Petitioner had not moved an application under S.5 of the Limitation Act, 1908 to prove his bona fide that as to what were the circumstances that he did not remove the office objections within the stipulated period and that what was the explanation for delay in re filing of revision petition after stipulated period---Revision petition was barred by time.

2000 SCMR 847 ref.

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

----S. 5---Civil Procedure Code (V of 1908), S.115---Civil revision--Limitation-Section 5 of Limitation Act, 1908 was not applicable in matters of revision petition.

2006 SCMR 676; 2008 MLD 89 and 2001 SCMR 288 rel.

Muhammad Farooq Qureshi for Petitioner.

Malik Ghulam Rasool for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 1482 #

2011 Y L R 1482

[Lahore]

Before Ch. Muhammad Tariq, J

DOST MUHAMMAD---Petitioner

Versus

E.D.O. (R)----Respondent

Writ Petition No.1188 of 2005 and C.M.A No. 2794 of 2006, decided on 10th June, 2010.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 9-A, 11 & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Consolidation of holdings---Petitioner had challenged the order passed by the Executive District Officer (Revenue) and had prayed that possession of suit-land be restored to him---Impugned order was passed by Executive District Officer (Revenue) which was further appealable before the Member Board of Revenue, but the petitioner had not adopted the remedy provided to him under the law; and instead approached High Court in its constitutional jurisdiction---Number of disputed questions were involved between the parties including the question of restoration of possession which could not be agitated in the constitutional jurisdiction of High Court; nor the matter of possession could be decided particularly when the petitioner had given up the available alternate remedy---Constitutional petition was dismissed.

2000 MLD 732 and 2001 CLC 1673 ref.

Malik Muhammad Imtiaz Mahl for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1486 #

2011 Y L R 1486

[Lahore]

Before Ch. Muhammad Tariq, J

SUGRAN BIBI---Petitioner

Versus

THE STATE and another----Respondent

Criminal Miscellaneous No.5509-B of 2010, decided on 2nd June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/452/337-L(2)/148/149---Qatl-e-amd, house-trespassing and causing hurt---Bail, grant of---Accused, a female, forcibly entered in the house, of her daughter-in-law and raised lalkara and in pursuance of said lalkara other co-accused fired on the inhabitants of the house and as a result of which her daughter-in-law died and other people were injured---Accused was arrested, but no recovery could be effected from her---Accused was shown empty-handed in the F.I.R. and no overt act had been attributed to accused except that she had made a lalkara and entered the house of her daughter-in-law/deceased---Investigating Officer had also submitted that no other incriminating evidence was available against accused---Challan of the case had already been submitted in the court---Involvement of accused in the case could be a consequence of wider net---Accused being a female was admitted to bail, in circumstances.

Ch. Shahid Hussain for Petitioner.

Shahid Muzaffar Khan for the Complainant.

Arif Karim Chaudhry, D.P.-G.

Muhammad Ayub, S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1491 #

2011 Y L R 1491

[Lahore]

Before Ch. Muhammad Tariq, J

Messrs MIAN CNG FILLING STATION through Managing Partner---Petitioner

Versus

SNGPL and others-Respondents

Writ Petition No.9191 of 2010, decided on 11th October, 2010.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Discrimination---Policy matter---Supply of natural gas---Grievance of petitioner was that respondent company could not stop supply of natural gas to his gas station and they had discriminated him--Validity---At the time of execution of agreement, petitioner consented that respondent company would have a right to close or interrupt natural gas supply---Severe power shortage in country existed and it was the Federal Government which had decided to curtail supply of gas to Compressed Natural Gas stations, keeping in view the difficulty of domestic consumers and industries---Sanction on supply of natural gas was implemented throughout the country without any discrimination---Respondent company had rightly pointed out that letter intimating about weakly stoppage of gas was mere communicating letter of policy of Federal Government which was issued in conformity with Federal Government policy---Petitioner did not challenge the Federal Government policy whereby Federal Government had imposed weekly sanction on the supply of gas to Compressed Natural Gas Stations---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

Kh. Saeed-uz-Zafar for Petitioner.

Umar Sharif for Respondents Nos.1 and 2.

YLR 2011 LAHORE HIGH COURT LAHORE 1495 #

2011 YLR 1495

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

Mst. NUSRAT PARVEEN---Petitioner

Versus

ABDUL GHAFOOR and 4 others----Respondents

Criminal Miscellaneous No.332-H of 2010, decided on 25th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Petitioner who was mother of minor children, had sought recovery of her children who were in the alleged improper custody of respondent---Nothing was to deprive the petitioner/mother of the minors of her preferable right of hizanat---If mother had neither remarried nor there was anything to establish that she was leading an immoral life, was entitled for the custody of the minors, who were of very tender age---Petitioner having the preferential right of Hizanat being real mother of the minors, was handed over the custody of the minors.

Musarat Waris v. Muhammad Afsar Khan and 4 others 2006 MLD 231; Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Mst Razia Rahman v. Station House Officer and others PLD 2006 SC 533 ref.

Sardar Mohabbat Ali Dogar for Petitioner.

Shahid Hussain Chaudhry for Respondent No.1.

Khariat Hussain A.S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 1497 #

2011 Y L R 1497

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD BOOTA---Appellant

Versus

MUHAMMAD SADIQ through L.Rs. and others----Respondents

R.S.A. No.14 of 2003, decided on 18th May, 2010.

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

----S. 6---Suit for pre-emption---Trial Court decreed the suit while Appellate Court set aside the judgment and decree of Trial Court---Pre-emptor contended that he had got superior right of pre-emption on the ground of being collateral and co-sharer of vendor and produced the certified copy of pedigree-table as evidence but the same was missing from the court record---Vendor controverted the averment of pre-emptor maintaining that production of pedigree table alone was not sufficient unless the same was proved---Validity---Order of Trial Court showed that pedigree-table was produced in evidence by pre-emptor but the same was missing from the court record, therefore, unless the document was brought before the court, no inference could be drawn from the same---In view of presumption of removal of pedigree-table with ulterior motive from court record, revision was accepted and case was remanded to Appellate Court with directions to conduct inquiry, reconstruct the pedigree-table with assistance of both the parties and decide the case on merits within a period of four months.

1999 SCMR 1800; 1994 SCMR 559 and 1989 SCMR 1026 ref.

Taqi Ahmad Khan for Appellant.

Jarri Ullah Khan for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 1506 #

2011 Y L R 1506

[Lahore]

Before Ch. Iftikhar Hussain and Syed Mazhar Ali Akbar Naqvi, JJ

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.6406-B of 2010, decided on 24th June, 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---Quantity of charas allegedly recovered from accused was slightly on the higher side of upper limit of S.9(b) of Control of Narcotic Substances Act, 1997---Accused was stated to be previous non-convict and he was behind the bars for the last about six months---Accused was admitted to bail, in circumstances.

Shahid Hussain for Petitioner.

Malik Abdul Salam, D.P.-G. for the State.

Sheikh Khairat, Assistant Sub-Inspector with police record.

YLR 2011 LAHORE HIGH COURT LAHORE 1507 #

2011 Y L R 1507

[Lahore]

Before Syed Akhlaq Ahmad, J

KHAN GUL---Petitioner

Versus

SECRETARY RTA, RAWALPINDI and 5 others----Respondents

Civil Revision No.1188 of 2010, decided on 24th November, 2Q10.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Plaintiff filed suit for declaration, permanent and mandatory injunction against defendants on the ground that his son was running a D-class Bus Stand, under the licence issued by the authorities, for the last 5 years and spent a huge amount on construction of the same but the authorities had declined the request of the plaintiff for the transfer of said stand in his name---Along with the suit plaintiff also moved` an application for the grant of temporary injunction---Trial Court dismissed application of the plaintiff for the grant of temporary injunction and appellate court also maintained findings of the Trial Court---Validity---Licence for running a D-class Bus Stand was granted to the son of the plaintiff which expired in the year 2005, however; the affairs of the said stand were being managed by the plaintiff as the son of the plaintiff was involved in different murder cases and was an absconder---Operation of the bus stand was rare and the said stand was also in a deplorable condition---Show-cause notice was served upon the son of the plaintiff but no response was received by the authorities---Authorities had unanimously decided to withdraw permission granted to the son of the plaintiff regarding operation of bus stand---Unauthorized act of the plaintiff, running the bus stand without licence, could not be given legal cover by the court---High Court declined to interfere with the concurrent findings of both the courts below---Revision petition was dismissed by High Court in limine.

Shahid Ali Shahzad Bhatti for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1512 #

2011 Y L R 1512

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Ahmad Farooq, JJ

MUHAMMAD NAWAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1685, 1803 and 1692 of 2006, heard on 16th November, 2010.

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

----Ss. 337-J, 457, 380, 353, 109 & 411---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21---Criminal Procedure Code (V of 1898), S.35---Causing hurt by means of poison, lurking house-trespass or house-breaking by night, theft in dwelling house, assault or criminal force, dishonestly receiving stolen property and terrorism---Appreciation of evidence---Main accused was proved to be master mind of the occurrence---Major portion of the looted amount had been recovered from accused--All prosecution witnesses, who were, served intoxicating food, had categorically deposed against the accused---Guilt of said accused having been proved beyond any shadow of doubt, his counsel had not advanced any argument suggesting his innocence in the incident but had only argued with regard to the quantum of sentence and converting sentences awarded to accused from consecutive to concurrent---Accused had rightly been awarded maximum sentence provided for the offences; and he did not deserve any leniency to be shown qua the magnitude of the punishment--Argument of the counsel for accused that accused could not be awarded sentence beyond 14 years and it would be in violation of proviso (a) to subsection (2) of S.35, Cr.P. C. had force--Said legal infirmity arisen in the case, could be rectified, if the sentences awarded to accused on 6 counts, under various offences in one and the same trial were ordered to run concurrently, instead of consecutively---Court had committed illegality by not providing any sentence in case of default in payment of fine imposed upon accused---Trial Court had also failed to provide any sentence in lieu of non-payment of compensation under S.544-A, Cr.P.C.---High Court ordered that, accused would suffer further simple imprisonment for 6 months in such default---Accused was entitled to benefit of S.382-B, Cr. P. C.

Javed Shaikh v. The State 1985 SCMR 153; Juma Khan and another v. The State 1986 SCMR 1573; Muhammad Ittefaq v. The State 1986 SCMR 1627; Khan Zairian and another v. The State 1987 SCMR 1382; Faridullah Shah and another v. The State 1990 PCr.LJ 1945, Mst. Zubaida v. Falak Sher and another 2007 SCMR 548; Shah Hussain v. The State PLD 2009 SC 460 and Javed Shaikh's case 1985 SCMR 153 ref.

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

----Ss. 337-J, 457, 380, 353, 109 & 411---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21---Causing hurt by means of poison, lurking house-trespass or house-breaking by night, theft in dwelling house, assault or criminal force, dishonestly receiving stolen property and terrorism---Appreciation of evidence---Presence of two accused persons at the time of incident was proved by cogent and reliable evidence---One of said accused was a Police Constable and at the relevant time was posted at the place of occurrence---Other accused who was private person, belonged to the village of main accused---Both said accused having not taken intoxicated meal served by accused, their connivance and knowledge of plan of main accused, was established---During the investigation recovery of a part of looted amount had been effected from both said accused---Such fact had ruled out their false implication in the case---Said accused were connected with the commission of the offence during investigation---No direct evidence being available to prove the offences charged against the accused persons, it would serve the interest of justice, if their sentences were modified and reduced to that of already undergone by them---Order accordingly.

----Ss. 337-J, 457, 380, 353, 109 & 411---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21---Causing hurt by means of poison, lurking house-trespass, or house-breaking by night, theft in dwelling house, assault or criminal force, dishonestly receiving stolen property and terrorism---Appreciation of evidence---Only role attributed to two accused persons was that of facilitating the transaction of the looted money---Prosecution had failed to prove their involvement in the commission of the offence---Only a meagre amount had been recovered from said accused persons, which instead of proving the prosecution case, had advanced the defence version of accused persons---Both accused were driver by profession and element of mens rea, in their act of transporting main accused towards different places, was not proved by any cogent and convincing evidence---Involvement of accused persons in any of the offences charged against them being highly doubtful, their conviction by the Trial Court, was not justified---Conviction and sentence were set aside and accused were released.

Ch. Inayatullah Cheema, Ch. Saifullah Warraich and Allah Rakha for Appellants.

Mst. Erum Sajjad Gull for the Complainant.

Tariq Javed, DDPP for the State.

Date of hearing: 16th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1522 #

2011 Y L R 1522

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SADIQ and 4 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7870-B of 2010, decided on 27th July, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.379---Theft---Pre-arrest bail, refusal of---Co-accused had recently purchased the share of suit land and instead of filing suit for partition of his share, he had tried to illegally dispossess the complainant party and in pursuance of his illegal design the accused had cut the standing crops of the complainant and removed the same from the fields by force of lethal weapons---Accused were nominated in the F.I.R. with specific role and they had been found guilty during investigation by the police---Wheat crop and the lethal weapons were yet to be recovered from the accused---Bail before arrest being an extraordinary relief could not be extended to such like accused persons---Accused after dismissal of their application for bail before arrest by superior court had not surrendered themselves before the law and had fled away---Pre-arrest bail was declined to accused in circumstances.

Muhammad Javed Kasuri for Petitioner.

Ch. Abdul Razzaq, D.P.-G. for the State.

Ch. Abdul Rashid for the Complainant.

Adalat Ali, S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1531 #

2011 YLR 1531

[Lahore]

Before Nasir Saeed Sheikh and Hafiz Abdul Rehman Ansari, JJ

BINYAMIN KHALIL and another---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 2 others---Respondents

Writ Petition No.26735 of 2010, decided on 23rd December, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(r), 9(a), 18 & 31-D---Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Wilful default, corruption and corrupt practices---Reference to Accountability Court---Petitioners/accused moved an application under S.265-K, Cr. P. C. for their acquittal---Pending said application, the petitioners instituted constitutional petition seeking their acquittal from the reference--No compelling circumstances were available for the petitioners to institute constitutional petition seeking their acquittal when application under S.265-K, Cr.P. C., was pending before Account-ability Court---High Court under Art.199 of the Constitution could pass appropriate orders for the enforcement of the rights of the citizens, but availability of such powers, would not necessarily create an occasion for the exercise of such power in all cases---Petitioners who were facing the criminal charges under Ss.9(a), 5(r) & 10(a) of National Accountability Ordinance, 1999 had filed application under S.265-K, Cr.P.C. which was pending adjudication---High Court, in exercise of its constitutional jurisdiction, would not entertain constitutional petition for passing a judgment on the point on which court was still in cognizance of---Petitioners had an adequate and efficacious remedy, which they had availed of through moving application by invoking the provisions of S.265-K, Cr.P.C.---Constitutional petition was dismissed.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 and Muhammad Khalid Mukthar v. The State through Depute/Director, (C.B.A.), Lahore PLD 1997 SC 275 ref.

A.K. Dogar for Petitioners.

YLR 2011 LAHORE HIGH COURT LAHORE 1543 #

2011 Y L R 1543

[Lahore]

Before Sagheer Ahmad Qadri and Jjaz Ahmad, JJ

Mst. SABIRA SULTANA---Appellant

Versus

ASIF FIRDOUS---Respondent

I.C.As. Nos.31 and 32 of 2010, decided on 23rd December, 2010.

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

----S. 5, Sched. & S.17-B---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan, Art.199---Intra Court appeal---Maintainability---Suit for jactitation of marriage, maintenance, dower and dowry articles---Trial Court dismissed defendant's application for recording his statement through commission---Defendant challenged order of Trial Court through constitutional petition---Single Judge, High Court upheld the order of the Trial Court holding that recording of statement through commission would leave the relevant questions unanswered as the plaintiff had challenged defendant's physical capacity to pronounce `talaq'---Single Judge, High Court, however, observed that the defendant could record his statement by appointing attorney---Validity---Embargo placed by S.3(2) of the Law Reforms Ordinance, 1972 would operate where application/petition filed under Art.199 of the Constitution arose out of the proceedings wherein law provided for at least one appeal, one revision or one review to any court, Tribunal or authority against the original order---Section 14(3) of the West Pakistan Family Courts Act, 1964 barred appeal against an interim order passed by Family Court---Impugned order which was passed under S.17-B of the West Pakistan Family Courts Act, 1964 was an interim order which was neither appealable nor revisable under S.14(3) of the West Pakistan Family Courts Act, 1964---Embargo of S.3(2) of the Law Reforms Ordinance, 1972 was not applicable to the case----Purpose of embargo placed under S.3(2) of the Law Reforms Ordinance, 1972 was to curtail the number of legal remedies available to a litigant so that the cases may reach termination point---Where original order was appealable or revisable and the same had been challenged in constitutional petition, intra court appeal was not maintainable against such order---Order in question was neither appealable, nor revisable, nor reviewable---Exemption from appearing in person for recording one's statement was meant to avoid ,delay in adjudication which might occur in procuring personal attendance---Personal attendance of the defendant was essential and indispensable to determine his mental and physical capability to pronounce talaq---Single Judge's observation as to defendant's right to alternate mode of recording his statement through attorney was contradictory to his observation as to indispensability of personal appearance of the defendant---Orders of Family Court were maintained while Single Judge's observation as to availability of alter?nate mode of recording his statement by appointing attorney was expunged. ?

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Intra Court appeal---Object and scope-Embargo placed by S.3(2) of the Law Reforms Ordinance, 1972 would operate where application/petition filed under Art.199 of the Constitution arose out of the proceedings wherein law provided for at least one appeal, one revision or one review to any court, tribunal or authority against the original order--Purpose of the embargo on appeal under S.3(2) of the Law Reforms Ordinance, 1972 was to curtail the number of legal remedies available to a litigant so that the case may reach the termination point---Where the original order was appealable or revisable and the same had been challenged through constitutional petition, intra court appeal was not maintainable against such order.?

----S. 14(3)---Bar on appeal against interim order--- Applicability--- Scope---Section 14(3) of the West Pakistan Family Courts Act, 1964 barred appeal against an interim order passed by a Family Court.?

Ahmad Din v. Abdullah and others 1995 CLC 1557; Ashfaq Ijaz v. Pakistan Atomic Energy Commission 1994 CLC 2007; Muhammad Javed Iqbal v. Mst. Tahira Naheed and others 2002 CLC 1396 and M. Javed Iqbal v. Mst. Tahira Naveed 2002 CLC 1748 distinguished.

Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I Lahore PLD 1985 SC 107 and Mst. Saeeda v. Lal Badshah 1981 SCMR 395 ref.

Ghulam Habib Rana for Appellant.

Ch. Muhammad Naeem for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 1547 #

2011 YLR 1547

[Lahore]

Before Muhammad Anwaarul Haq, J

ZAFAR IQBAL alias MALANGA--- Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.2376 of 2010, and Criminal Miscellaneous No.1 of 2011, decided on 7th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.319--- Qatl-e-Khata--- Suspension of sentence, petition for---Offence under S.319, P.P.C., under which the conviction and sentence of the petitioner had been recorded by the Trial Court, was a bailable offence---Accused, in such like cases, after admission of appeal for regular hearing, was entitled to bail as a matter of right---Question as to whether case of the petitioner fell within the purview of S.302, P.P.C., or it did fall under S.319, P.P.C., needed reappraisal of evidence, which was only possible at the time of final hearing of the appeal---No chance existing for early fixation of appeal in near future, petition was allowed and sentence of petitioner was suspended till the final disposal of his criminal appeal.

Hata and others v. The State, PLD 1967 Lah. 1302; Safdar Ali Shah v. The State 1997 MLD 961; Ghulam Sarwar v. The State 2003 PCr.LJ 1714; Masood Khan v. The State PLD 2004 Kar. 386 and Muhammad Qasim v. The State 2005 YLR 1048 ref.

Zafar Iqbal Chohan for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General for the State.

Syed Zahid Hussain Bokhari for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 1549 #

2011 Y L R 1549

[Lahore]

Before Sh. Ahmad Farooq, J

Mst. SANA DAUD---Petitioner

Versus

S.H.O. and 3 others---Respondents

Writ Petition No.25062 of 2010, decided on 1st February, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199--- Constitutional petition---Registration of criminal case---S.H.O. concerned in parawise comments had submitted that the occurrence as alleged by the petitioner, had never taken place---Application filed by the petitioner under Ss.22-A, 22-B, Cr.P.C. was dismissed due to non-appearance of the petitioner---Police could not embark upon an inquiry in order to verify the truthfulness or otherwise of the allegations levelled in a complaint, which was submitted to the S.H.O. for taking necessary proceedings under S.154, Cr.P.C.---Information laid before the S.H.O. was only in respect of commission of a cognizable offence and not the actual commission of the cognizable offence---Station House Officer seemed to have had started the investigation prior to the registration of the F.I.R. as provided under S.154, Cr.P.C., which was not permitted---S.H.O. was directed to record the statement of the petitioner and if the same disclosed commission of a cognizable offence, necessary legal proceedings under S.154, Cr.P.C. should be initiated---Order accordingly.

Ch. Fazal Haq Gujjar for Petitioner.

Jawad Hassan, Additional Advocate-General, with Muhammad Ashiq, S.-I., Police Station Mughalpura, Lahore.

YLR 2011 LAHORE HIGH COURT LAHORE 1550 #

2011 Y L R 1550

[Lahore]

Before Muhammad Yawar Ali, J

MUHAMMAD SHAKEEL TUFAIL---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No. 3455-B of 2010, decided on 19th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, grant of---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C. and carried a maximum punishment of three years---Investigation of the case was complete and accused was no more required by the Police authorities for the purpose of investigation---Trial Court while refusing to grant bail had observed that accused was an ailing person who needed medical treatment---Medical report revealed that accused "needed management from Gastroenterologist"---Grant of bail in offences punishable with imprisonment for less than ten years was a rule and refusal an exception---Accused was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 2005 SC 34 ref.

Ch. Shahid Hussain for Petitioner.

M. Shahzad Khan for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 1551 #

2011 Y L R 1551

[Lahore]

Before Sh. Najam ul Hasan and Muhammad Anwaarul Haq, JJ

MUMRAIZ---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.162-J Criminal Revision No.494 and Murder Reference No.454 of 2005, decided on 12th October, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Incident was a case of single accused and in promptly lodged F.I.R., all the details regarding the occurrence had been mentioned---Both the witnesses, though related to the deceased, but counsel for accused remained unable to point out any personal enmity or grudge of the witnesses against accused---Mere relationship of the witnesses with the deceased, was not enough to discard their testimony, unless they had some personal grudge of their own against accused---Close relationship of the witnesses with the deceased, rather had excluded any possibility of substitution in the case that was otherwise a rare phenomenon in the case of single accused; as it was not possible that the eye-witnesses could leave the actual culprit responsible for two murders of their very close relatives and would falsely implicate accused in the case---Plea of accused that both the deceased had killed each other was just a flimsy and unfounded plea taken on his behalf---Both the deceased were father and son and accused remained totally failed to substantiate his said plea during the trial---Ocular account was consistent, trustworthy and reliable on all material aspects of the occurrence and it was further corroborated by medical evidence---Minor discrepancies regarding the seat of certain injuries also did not affect the prosecution case at all---Ocular account was further corroborated by very strong motive set up in F.I.R.---Another circumstance against accused was his abscondence of 25 days and he failed to explain the same during the trial---Non-sending of recovered bullet from the dead body of the deceased to the Forensic Science Laboratory for its comparison with the recovered pistol was necessarily a negligence on the part of Investigating Officer, but such negligence could not be made basis for extension of any doubt to accused, if case against him was otherwise proved beyond any shadow of doubt---Finding of conviction and sentence of accused by the Trial Court, in circumstances was quite in accordance with law; and was based upon well recognized principles of appreciation of evidence in a criminal case.

Talib Hussain and others v. State and others 2009 SCMR 825 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.367(5)---Qatl-e-amd---Sentence---Reasons to be given by court---Normal sentence in murder case---Reason for non-awarding sentence of death---Counsel for accused remained unable to point out extenuating circumstances in the case calling for any mitigation in favour of accused, who was awarded punishment of death---Act of accused and in the manner he had committed cold-blooded murder over a small dispute, was shocking---Accused was aged about 51 years at the time of occurrence; and was not of immature mind and he fully knew the consequence of his successive fires with a pistol at both the deceased---Normal sentence in murder cases was death and court was required to give reason under S.367(5), Cr.P.C. for not awarding the same---Question of sentence in a murder case was a question of very vital importance; and all the care and caution was required in that regard, but it was equally important aspect of the matter that sentence of death could not be altered on the basis of flimsy grounds; and principle of proportionality could not be lost sight---No extenuating circumstance was available in favour of accused for extending him any benefit regarding death---Sentence---Conviction and sentence of accused under S.302(b), P.P.C., were maintained, in circumstances.

Malik Israr Elahi with Miss Bushra Qamar for Appellant.

Kashif Ali Chaudhry for the Complainant.

Shahid Bashir, Deputy Prosecutor-General for the State.

Dates of hearing: 11th and 12th October, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1558 #

2011 Y L R 1558

[Lahore]

Before Ch. Iftikhar Hussain, J

MASHHOOD-UL-HAQ---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3623-B of 2010, decided on 22nd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.377---Unnatural offence---Bail, refusal of---Accused was named in the F.I.R. with alleged unnatural offence against him---Said act of accused ex facie fell within the ambit of S.367-A, P.P.C.---Complainant, his son, the victim girl and prosecution witnesses in their statements had implicated accused with such an offence, which was covered by the prohibitory clause of S.497(1), Cr.P.C.---Accused was not entitled to grant of bail, in circumstances.

Ch. Imtiaz Elahi for Petitioner.

Ch. Abdur Razzaq, D.P.-G. on behalf of the State with Safdar Ali, S.-I. with police record.

Shahid Hussain Chaudhry for Respondent No.2.

YLR 2011 LAHORE HIGH COURT LAHORE 1562 #

2011 Y L R 1562

[Lahore]

Before Sh. Ahmad Farooq, J

GHULAM MUHAMMAD, S.I.---Petitioner

Versus

S.P., KALLURKOT and others----Respondents

Writ Petition No.24575 of 2010, decided on 21st January, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/147/149---Constitution of Pakistan, Art. 199---Constitutional peti-tion---Qatl-e-Amd---Quashing of F.I.R.---Impugned F.I.R. was got registered on the verbal orders of Chief Minister---Petitioner had been found innocent in two successive investigations---Further proceedings in the impugned F.I.R. would tantamount to abusing the process of law, particularly, when the prosecution story was totally denied by the complainant and eye-witnesses of the F.I.R.---Impugned F.I.R. registered against the petitioner was ordered to be quashed, in circumstances.

Muhammad Zafar Chaudhry for Petitioner.

Jawad Hassan, Addl. A.-G. Muhammad Nawaz, S.-I. Police Station Kallurkot, District Bhakkar.

Imtiaz Hussain Khan Baloch for Respondent No.3.

YLR 2011 LAHORE HIGH COURT LAHORE 1564 #

2011 Y L R 1564

[Lahore]

Before Sardar Muhammad Shamim Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.921-B of 2010, decided on 12th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.371-A & 371-B---Selling person for purposes of prostitution etc. and buying person for purposes of prostitution etc.---Bail, grant of---Police raided the house after obtaining search warrants, but search warrants were not issued in a prescribed form after fulfilling the necessary conditions---Short order of the Magistrate, did not show that what material of any sort was before him to make him believe that he must issue the warrants---No evidence was available to the effect that accused was committing zina with female/co-accused---No evidence was on record showing that accused paid Rs.500 to the woman accused for the purpose of zina---No independent witness from the locality was associated in the raid as well during the recovery of Rs.500 from the possession of woman/co-accused---Statement of woman/co-accused could not be used against the accused---Police after investigation had submitted challan before competent court; and the trial had not started---Accused was admitted to bail, in circumstances.

2010 PCr.LJ 231 (FSC) ref.

Muhammad Rehman Khokhar for Petitioner.

Muhammad Suleman, DDPP for State.

YLR 2011 LAHORE HIGH COURT LAHORE 1565 #

2011 Y L R 1565

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD SAEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.827-B of 2011, decided on 9th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/449/34--- Qatl-e-amd, house-trespass in order to commit offence punishable with death---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R., but during the course of investigation, he had been found innocent---Co-accused had been acquitted---Bail to the accused could not be withheld merely on the ground that he remained absconder---Trial had not been concluded---Case against accused calling for further inquiry, he was admitted to bail, in circumstances.

Syed Moazzam Ali Shah for Petitioner.

Nisar Ahmad, Deputy District Public Prosecutor.

Muhammad Arshad A.S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1567 #

2011 Y L R 1567

[Lahore]

Before Sh. Ahmad Farooq, J

Mian AMER SAEED---Petitioner

Versus

STATION HOUSE OFFICER---Respondent

Writ Petition No.24156 of 2010, decided on 15th March, 2011.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), Ss.22-A, 22-B & 154---Constitution of Pakistan, Art.199---Constitutional petition--- Dishonestly issuing a cheque---Order of registration of case---Petitioner had prayed for setting aside the order passed by Ex-officio Justice of Peace whereby S.H.O. was directed to record statement of the respondent and proceed further as provided under S.154, Cr.P.C.---Maintainability of application by respondent under Ss.22-A & 22-B, Cr.P.C. was objected to on two grounds; firstly that same was filed through special attorney and secondly that dispute between the parties was of civil nature as cheque in dispute was issued by the petitioner as a result of an arbitration agreement---Validity---Application under Ss.22-A & 22-B, Cr.P.C. could be filed through special attorney; it was not the requirement of law that complaint must be filed by the person, who was victim of the offence---Information regarding commission of offence could be laid before the Police by any person, before whom such offence had been committed by any person---Petitioner had not denied issuance of the cheque, which had been dishonoured by the Bank---Act of the petitioner, prima facie, constituted an offence falling under S.489-F, P.P.C.---Filing of a suit for recovery of amount of the dishonoured cheque, was no bar against initiation of criminal proceedings against the petitioner under S.489-F, P.P.C., as civil and criminal proceedings could be initiated side by side---Report submitted by the S.H.O. Police Station concerned had stated that the petitioner had committed fraud with respondent---No illegality or irregularity was found in the impugned order---Constitutional petition was dismissed in circumstances.

Javed Iqbal Raja for Petitioner.

Jawad Hassan, Additional Advocate General, Punjab.

Abdul Wahid Chaudhry for Respondent No.2.

YLR 2011 LAHORE HIGH COURT LAHORE 1569 #

2011 Y L R 1569

[Lahore]

Before Sardar Muhammad Shamim Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.721-B of 2010, decided on 19th April, 2010.

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. and specific allegation was levelled against him that he and co-accused committed zina-bil-jabr with the complainant---Such allegation was prima facie supported by Medico-legal Report of the complainant, which had shown that two marks of violence were present on the body of the complainant---Delay of 7/8 days in lodging of F.I.R., was no ground to enlarge accused on bail, as bail application could be decided only on the basis of tentative assessment of evidence of the prosecution---Perusal of the judicial record, revealed that charge against accused was framed by the Trial Court, but trial was being delayed on account of the act of accused as witnesses were not being cross-examined by his counsel---Offence against accused was heinous which fell within the purview of prohibitory clause of S.497, Cr.P.C.---Counsel for accused, had not pointed out any reason for false involvement of accused in the case---Bail was declined.

Sikandar Javed for Petitioner.

Raja Sultan Khurram-uz-Zaman for the Complainant.

Muhammad Suleman, learned DDPP for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 1572 #

2011 Y L R 1572

[Lahore]

Before Ijaz Ahmad, J

ABDUL KARIM and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.2788 of 2009, decided on 2nd March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 382-B---Pakistan Army Act (XXXIX of 1952), S. 59---Official Secrets Act (VIII of 1923), S.3---Constitution of Pakistan, Art. 199---Constitutional petition---Petitioner was convicted by the Trial Court---Appellate Court dismissed his appeal---Petitioner/convict contended that period of his detention in custody had to be considered while computing the period of sentence served by him irrespective of the fact that he was convicted by a military court---Validity---Section 382-B, Cr.P.C. provided that the court passing a sentence of imprisonment had to take into consideration the period during which an accused was detained in custody for an offence---Petitioner had not been extended the benefit of S.382-B, Cr.P.C. by the court while convicting and sentencing him---Benefit of S.382-B, Cr.P.C. had to be extended irrespective of the fact as to which court had passed the sentence---Petition was accepted.

Muhammad Ramzan v. The State in Criminal Miscellaneous No.324-M of 2008 and Tallat Mehmood v. The State in Writ Petition No. 1239 of 2010 rel.

Shah Hussain v. The State PLD 2009 SC 406 and Syed Hashim Ali Shah v. Present Summary Military Court Karachi NLR 1983 Cr.L.J 483 ref.

Muhammad Aslam Khaki v. The State PLD 2010 SC 1 fol.

Anwar Afridi for Petitioners.

Attique-ur-Rehman Kiyani, Standing Counsel.

YLR 2011 LAHORE HIGH COURT LAHORE 1574 #

2011 Y L R 1574

[Lahore]

Before Sh. Ahmad Farooq, J

SAIMA BIBI---Petitioner

Versus

CAPITAL CITY POLICE OFFICER, LAHORE, and 2 others---Respondents

Writ Petition No. 18408 of 2010, decided on 27th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan, Art. 199--- Constitutional petition---Registration of criminal case---Petitioner had prayed for a direction to S.H.O. concerned for recording his statement as well as of the eye-witnesses of the occurrence, which disclosed the commission of a cognizable offence; and thereafter registration of a criminal case against accused persons---S.H.O. had submitted a report wherein it was mentioned that on an earlier application of the petitioner, an inquiry was conducted and the allegations of the petitioner were found to be false---Officer Incharge of Police Station, no doubt could not embark upon an inquiry or investigation in order to find out the truthfulness or otherwise of the contents of an application or information, which disclosed the commission of a cognizable offence prior to the registration of a criminal case as envisaged in S.154, Cr.P.C.; however each case was to be decided on its own peculiar facts and circumstances---Petitioner could not produce any proof regarding alleged commission of cognizable offence against her---Information provided by the petitioner through her earlier application did not disclose the commission of a cognizable offence---No direction, could be issued to S.H.O. for registration of a criminal case against alleged accused persons, in constitutional jurisdiction of High Court in circumstances---Even otherwise petitioner had an alternate remedy of filing a private complaint before the court of competent jurisdiction---Constitutional petition was dismissed.

Hafiz Mussab Rasul for Petitioner.

Jawad Hassan, Additional Advocate-General, with Ghulam Abbas, S.-I.

Nisar Akbar Bhatti for Respondent No.1.

YLR 2011 LAHORE HIGH COURT LAHORE 1576 #

2011 Y L R 1576

[Lahore]

Before Tariq Javaid, J

SAIF-UR-REHMAN---Petitioner

Versus

Mst. GULNAZ and others----Respondents

Civil Revision No.60-D of 2010, decided on 4th March, 2010.

Limitation Act (IX of 1908)---

----S. 5---Civil Procedure Code (V of 1908), S.115---Dismissal of appeal being time-barred---Revision petition---Revision had been directed against the judgment and decree passed by Appellate Court whereby petitioner's appeal was dismissed---Application for condonation of delay under S.5 of Limitation Act, 1908 was filed along with the memorandum of appeal, but no order had been passed on that application---Before deciding main appeal, Appellate Court ought to have decided the application for condonation of delay---Impugned judgment and decree passed by Appellate Court, was set aside and case was remanded with direction to decide application for condonation of delay before passing judgment and decree in appeal within a period of two months.

Messrs A. Chaudhry and 3 others v. National Bank of Pakistan, Fiasalabad through General Attorney 2005 CLD 875; Said Shah and 12 others v. Mst. Khurshid Bibi 1987 MLD 2490; Yawar Hussain v. Ansar Ali Khan 2010 CLC 46; Pak Carpet Industries Ltd. v. Government of Sindh and 2 others 1993 CLC 334; Muhammad Yaqoob 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 ref.

Mukhdoom Syed Muhammad Mumtaz Hussain Shah for Petitioner.

Muhammad Tariq Naunari, along with Muhammad Aslam Bajwa, Manager, Habib Bank Limited for Respondent No.3.

YLR 2011 LAHORE HIGH COURT LAHORE 1578 #

2011 Y L R 1578

[Lahore]

Before Tariq Javaid, J

MUHAMMAD ASHRAF---Petitioner

Versus

CHAIRMAN, PEMRA and others----Respondents

Writ Petition No.5881 of 2009, decided on 26th April, 2010.

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----S. 23---Constitution of Pakistan, Art. 199---Constitutional petition---Business of Cable T.V.---Fair competition---Distinction between licensees of rural and urban areas---Petitioner was granted licence on payment of usual fee to operate in a rural area, whereas respondent was a licensee to operate in an urban area---Areas defined as rural areas should not be included in urban areas---Licensee who had been granted licence to operate in an urban area must compete with the licensee in urban areas---Similarly a licensee having licence in rural area must compete with the licensee in rural area, otherwise distinction in category of licence on the basis of areas would become meaningless.

Syed Sajjad Haider Naqvi for Petitioner.

Muhammad Zergham Ullah for Respondent No.3.

Khizar Hayat Tarrer for Respondent No.4.

YLR 2011 LAHORE HIGH COURT LAHORE 1580 #

2011 Y L R 1580

[Lahore]

Before Sardar Tariq Masood, J

ABDUL RAZZAQ and another---Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.171 of 2007/BWP, decided on 24th December, 2009.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Deceased usually visited the house of accused and resided there---Statement of the complainant that accused had taken deceased and his son from the house, did not remain last seen evidence because thereafter prosecution witnesses saw him alive in the house of accused---Even otherwise, the last seen evidence was considered to be weak type of evidence and unless and until substantive evidence was on the record, no conviction could be based upon such evidence---Both prosecution witnesses who were close relatives of the complainant and the deceased, were chance witnesses---Evidence of said related and chance witnesses, was not looked favourably---Explanation offered by said witnesses for their arrival at the house of accused, was fizzled out---After hearing the threatening of murder of deceased by accused, they did not inform the complainant and got up from slumber only after the occurrence---No reliance could be placed upon their testimony---Medical evidence did not furnish corroboration to the version of the prosecution---During successive investigations, incident was found to be a case of suicide---Many circumstances were available in the case which had created doubt upon the prosecution case---Prosecution was unable to prove its case beyond shadow of doubt and had failed to prove the charge against any of the accused---Conviction and sentence of accused persons were set aside and they were acquitted of the charge and were released, in circum-stances.

Muhammad Shafi and another v. The State 1978 PCr.LJ Note 10 at Page 7; Mukhtar Ahmad and others v. The State 1975 PCr.LJ 698 and Zafar Hayat v. The State 1995 SCMR 896-B ref.

(b) Criminal trial---

----Circumstantial evidence--- Cases depending upon circumstantial evidence in order to justify inference of guilt, incriminating evidence must be incompatible with the innocence of accused; and incapable of explanation of any other reasonable hypothesis than that of his guilt.

---Appreciation of evidence---Accused was blue eye child of law and he could take any plea whatsoever, it could be contradictory and even false---Court had to base conviction upon a firm and straightforward convincing prosecution evidence and initial onus never shifted upon accused.

Shamoon alias Shamma v. The State 1995 SCMR 1377 ref.

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

----S.302(b)---Qatl-e-amd---Duty of court--Court had to keep in view its moral duty towards the aggrieved family while deciding the case, but conversely, it was the equal duty of the court that for convicting person for the murder charge, the confidence inspiring evidence, satisfying the mind of the court should be on the file and it should not be swayed with sentiments.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---For giving benefit of doubt to any accused, it was not necessary that there should be many circumstances creating doubt---If there was a circumstance which created reason-able doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of doubt, not as a matter of grace and concession, but as a matter of right---Where evidence would create doubt about the truthfulness of the prosecution story, its benefit had to be given to accused without any reservation; and in such a situation, a strong corroboration would become necessary.

Muhammad Luqman v. The State PLD 1970 SC 10; Tariq Parvaiz v. The State 1995 SCMR 1345 and Muhammad Ilyas v. The State 1997 SCMR 25 ref.

M. Abdur Rasheed Rashid for Appellant.

Haq Nawaz, D.D.P.G. for the State.

Jamshaid Iqbal Khakwani for the Complainant.

Date of hearing: 24th December, 2009.

YLR 2011 LAHORE HIGH COURT LAHORE 1589 #

2011 Y L R 1589

[Lahore]

Before Mian Saqib Nisar, J

LIAQAT ALI---Petitioner

Versus

NAAZIR ALI----Respondent

Civil Revision No.2354 of 2009, decided on 13th November, 2009.

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

----Ss. 6 & 13---Suit for pre-emption---Making of talbs---Suit was concurrently dismissed by the courts below on the ground that plaintiff had failed to make talbs in accordance with law---Contradiction existed between the statement of the plaintiff and his witness with regard to time of making Talb-e-Muwathibat---Witness who was stated to have informed the plaintiff about the sale, in his examination-in-chief had not given the exact date, time and venue where information was passed on to the plaintiff---On account of such quality of evidence, the plaintiff had failed to prove Talb-e-Muwathibat---Notice of Talb-e-Ishhad was also not sent within 15 days as required under the law---Second talb was not validly made, in circumstances---No error was found in the concurrent findings of facts recorded by the two courts below calling for interference in the revisional jurisdiction--- Petition was dismissed.

Malik Muhammad Awais Khalid, Advocate.

YLR 2011 LAHORE HIGH COURT LAHORE 1590 #

2011 Y L R 1590

[Lahore]

Before Tariq Javaid, J

MANSOOR ALI QURESHI---Petitioner

Versus

S.H.O. and others----Respondents

Writ Petition No.6639 of 2010, decided on 28th June, 2010.

Penal Code (XLV of 1860)---

----Ss. 419 & 420---Criminal Procedure Code (V of 1898), Ss.22-A & 195(1)(c)---Constitution of Pakistan, Art. 199---Cheating--- Constitutional petition---Application for registration of criminal case---Rejection of application---Petition had been filed against order passed by Justice of Peace, whereby application filed by the petitioner under S.22-A, Cr.P.C. was rejected on the ground; that a civil litigation was pending between the parties; and that under S.195(1)(c), Cr.P.C. only the court before whom a forged document was presented, was vested with the power to register a case against accused---Applicant/complainant had not only made grievance of offences as enumerated in S.195(1)(c), Cr.P.C., but he had also alleged an offence of cheating and prayed for registration of case under Ss.419 & 420, P.P.C.---Offences under Ss.419 & 420, P.P.C. were distinct from the offence of forgery---Said offences did not fall within the purview of S.195(1)(c), Cr.P.C.---Order passed by the Justice of Peace, was not sustainable to that extent---Offence complained of under Ss.419 & 420, P.P.C. was distinct offence from the offence of forgery, Justice of Peace, was not justified in passing the impugned order---S.H.O. was directed to receive the complaint of the petitioner; and if a cognizable offence was made out, he would register a case against the delinquents.

Muhammad Shafi v. Deputy Superintendent of Police (PLD 1992 Lah. 178; Abdul Wahab Khan v. Muhammad Nawaz and others 2000 SCMR 1904 and Amir Ahmad Khan v. The State 1987 MLD 1494 ref.

Muhammad Ramzan Khalid Joiya for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1595 #

2011 Y L R 1595

[Lahore]

Before Syed Akhlaq Ahmad, J

Raja MUHAMMAD AZRAM---Petitioner

Versus

Mst. JAMILA BANARAS and another---Respondents

Criminal Revision No.304 of 2010, decided on 25th November, 2010.

(a) Criminal trial---

----Prosecution, responsibility of---Scope---Prosecution has to prove its case beyond any shadow of doubt---For awarding sentence/penalty to any person, his guilt is to be proved through reliable evidence.

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

----S. 6 (5)---Polygamy---Appreciation of evidence---Admission of guilt---Effect---Accused admitted during trial that he contracted second marriage without getting its permission from Arbitration Council---Conviction and sentence awarded to accused by Trial Court was maintained by Lower Appellate Court---Validity---In view of the admission made by accused, offence under S.6(5) Muslim Family Laws Ordinance, 1961, stood proved beyond any shadow of doubt---Both the courts below had discussed each piece of evidence and considered every aspect of the case and rightly come to the conclusion that accused was guilty of the charge---Both the courts below had already taken very lenient view in the matter, therefore, High Court in revisional jurisdiction declined to interfere in concurrent judgments passed by two courts below---Revision was dismissed in circumstances.

Malik Adnan Khalid for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1599 #

2011 Y L R 1599

[Lahore]

Before Tariq Javaid, J

MUHAMMAD NAEEM PARACHA---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No. 3477-B of 2009, decided on 20th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420/ 467/ 468/ 471---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating, forgery, using as genuine a forged document and illegal gratification--Bail, grant of---Further inquiry---No specific allegation had been made against accused, who was a petition writer---Forgery on the deed in question did not resemble with handwriting of accused; nor it had been shown the benefit he was likely to get out of the alleged forgery---Case appeared to be that of further inquiry---Accused was admitted to bail, in circumstances.

Rana Muhammad Asif Saeed for Petitioner.

Tanveer Haider Buzdar, DDPP for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 1602 #

2011 Y L R 1602

[Lahore]

Before Sh. Ahmad Farooq, J

Mst. NUSRAT BIBI---Petitioner

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Writ Petition No. 25529 and C.M. No.3716 of 2010, decided on 1st February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154 & 157(2)---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner had assailed the order of Justice of Peace directing the S.H.O. to register a case---Petitioner had already lodged F.I.R. against respondent, wherein serious allegation of zina-bil-jabr had been levelled and even report of Chemical Examiner had also been obtained by the Investigating Officer during the investigation---Police, having found that no cognizable offence had been committed by the petitioner, was justified in refusing to register case on the application of respondent---In view of the report of S.H.O. and his mala fide intention for registration of a case against the petitioner, when respondent had allegedly committed zina-bil-jabr, there was no justification for taking proceedings under S.154, Cr.P.C. on the application of said respondent---Impugned order being not legally tenable, same was set aside, in circumstances.

Mian M. Hussain Chotya for Petitioner.

Jawad Hassan, Addl.A.-G. with Asghar Ali, S.-I., Police Station, Manawan, Lahore.

YLR 2011 LAHORE HIGH COURT LAHORE 1614 #

2011 Y L R 1614

[Lahore]

Before Sh. Najam ul Hassan and Sardar Tariq Masood, JJ

EHSAN ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.88-J and Murder Reference No.404 of 2005, decided on 23rd February, 2011.

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

----S.302 (b)---Qatl-e-amd---Appreciation of evidence---Motive---Benefit of doubt---Inquest report and rough site plan---Reliance---Prosecution witnesses alleged that accused was armed with .12 bore gun and had fired one shot hitting the deceased---Accused was convicted under S. 302(b), P.P.C. and sentenced to death by Trial Court---Validity---During spot inspection Investigating Officer collected from the place of occurrence a crime empty of .12 bore gun along with 11 empties of .222 rifle but it was not the case of prosecution that accused reloaded the gun---Availability of crime empty of .12 bore gun at the place of occurrence appeared to be a strange circumstance---In inquest report and rough site plan there was no mention of presence of any empty of .12 bore gun at place of occurrence which was purportedly sent to fire-arm expert---During investigation the .12 bore gun recovered from possession of accused and sent to fire-arm expert was reported by Forensic Science Laboratory that crime empty was not fired from that gun---Motive culminating into the occurrence was specifically mentioned in F.I.R. but at trial no witness was produced to establish the incident of motive---Though mens rea was always in the mind of accused and it was not necessary that there must be some known motive for occurrence but once motive was alleged, prosecution was obliged to establish the same and if failed it should suffer the consequences---Prosecution was not able to prove the case against accused beyond reasonable doubt, therefore, while extending benefit of doubt, he was entitled to clean acquittal---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6; Noor Muhammad v. The State and another 2010 SCMR 97 and Hakim Ali v. The State 1971 SCMR 432 rel.

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

----S.302(b)---Qatl-e-amd---Pleas, changing of---Effect---Accused is a favourite child of law and he can take different stands at different stages---Onus to prove the case remains on prosecution and version of accused can be considered if prosecution case is found false or case of accused is brought under general exceptions.

----Men may tell lie but circumstances cannot.

(d) Maxim---

---Falsus in uno falsus in omnibus---Applicability---Murder trial---Abscondence of accused---Effect---Trend in society is that maximum number of family members are involved by spreading net so wide---Maxim falsus in uno falsus in omnibus is not attracted---Courts have always applied the principle of sifting grain from the chaff.

Azam Nazeer Tarar for Appellant.

Muhammad Aslam Khan Buttar for the Complainant.

Shahid Bashir, D.P.-G. for the State.

Date of hearing: 23rd February, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1625 #

2011 Y L R 1625

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ALI and others---Petitioners

Versus

GHULAM RASOOL and others---Respondents

Civil Revision No.1551 of 2000, decided on 17th May, 2010.

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.172---West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S.26---Suit for declaration---Plaintiffs filed suit for declaration on the basis of decree of civil court passed in 1906 which determined and declared the shares of parties but consolidation authorities changed the shares of parties through mutations---Plaintiffs contended that consolidation authorities were not competent to change the shares declared/ determined by civil court---Trial Court decreed the suit---Defendant filed appeal which was dismissed by the Appellate Court---Defendant contended that section 172 of West Pakistan Land Revenue Act, 1967 and section 26 of West Pakistan Consolidation of Holdings Ordinance, 1960 expressly barred jurisdiction of civil court in the present case and that the suit was barred by limitation; moreover, Revenue authorities were not impleaded despite being necessary parties---Validity---Revenue authorities had no power to act against the decree of civil court because plaintiffs' claim pertained to their share in the suit property declared by civil court in 1906---Dispute between the parties pertained to their share claimed on the basis of decree passed by civil court, therefore, invocation of section 26 of West Pakistan Consolidation of Holdings Ordinance, 1960 by defendant was misconceived---Defendant's contention that suit was time barred could not be sustained because entries in the Revenue Record had been made in violation of decree of civil court which alone had exclusive jurisdiction to entertain such intricate matter---Longstanding entries in Revenue Record could only be challenged in the civil court which had the exclusive jurisdiction to entertain such matters while revenue authorities had no jurisdiction under West Pakistan Land Revenue Act, 1967 to entertain complicated question (s) of law or fact(s)---Plaintiffs and defen-dants were co-sharers of large tracts of land; each co-sharer in those lands would be presumed as owner of each and every inch of the joint holding till the partition took place---Defendants and plaintiffs being co-sharers, period of limitation would not run against a co-sharer---Concurrent judgments and decrees of courts below were passed after careful perusal of evidence---Impugned judgments and decrees did not suffer from any illegality or jurisdictional error calling for interference---Revision was dismissed in circumstances.

2009 SCMR 753; 1970 SCMR 292; 2000 CLC 1752 and 2004 SCMR 1833 distinguished.

Sh. Naveed Shehryar for Petitioners.

YLR 2011 LAHORE HIGH COURT LAHORE 1632 #

2011 Y L R 1632

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

RASHID AHMED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 4 others---Respondents

Writ Petition No. 819 of 2010, heard on 11th March, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional peti-tion---Suit for maintenance by daughters against father--- Plaintiffs/daughters alleged that their father/defendants intended to deprive them of their share in the property left by their late mother---Defendant contended that all the plaintiffs/daughters had attained majority, left the home and were living in 'Dastak', a charitable institution---Father contended that the daughters being disobedient and major female children were not entitled to maintenance---Trial Court decreed maintenance at Rs.2500 for each daughter---Father's appeal was also dismissed---Validity---If the children had attained majority, the father stood absolved from his obligation to provide necessities of life to the major children---Where the daughter refused to take the assistance of her father in her personal matter like marriage, then the father could not be burdened with the liability to pay the expenses of the marriage of his rude and disobedient daughter---Maintenance allowance was payable to the child who was minor and was unable to earn his/her bread and butter and other expenses of life---Father would not be under any legal or moral obligation to maintain his child who left his house and opted to live away from him especially when the child was major---Major child could earn his/her livelihood himself/herself and such major child male or female would not fall in the definition of "dependant"---Where the father was alleged to be usurping share of children in property of their mother, no such dispute could become the cause to recover the maintenance from father---Children in case of such grievance, could knock the door of the court---Courts below had not considered the case properly---Constitutional petition was accepted.

Syed Riazul Hassan Gillani for Petitioner.

Mian Liaqat Ali for Respondent.

Date of hearing: 11th March, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1641 #

2011 Y L R 1641

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mst. KHURSHEED BEGUM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Writ Petition No. 12585 of 2009, decided on 19th May, 2010.

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

----S. 47---Specific Relief Act (I of 1877), S.8---Constitution of Pakistan, Art.199---Constitutional petition---Suit for possession---Execution of decree---Judgment-debtor filed an objection petition before Executing Court on the ground that she had no objection to the execution of the decree but the decree holder under the garb of the decree was trying to dispossess her from her property which fell in different Khasra number than that of the decreed one---Executing Court allowed application and framed issues accord-ingly---Revision petition filed by decree holder was allowed by Revisional Court and the order of Executing Court was set aside---Validity---Subject-matter of the decree was different from the property claimed by the judgment-debtor---Revisional Court had failed to appreciate that there was no decree against the property claimed by the judgment-debtor and the said property was a constructed house whereas the property in the decree was an open land falling in different Khasra numbers---High Court allowed the constitutional petition and set aside the order of Revisional Court and remanded the case to Executing Court to decide objection within a period of 3 months from the date of order.

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

----S. 47---Executing Court---Jurisdiction of---Scope---Executing Court could not go behind the decree, but under S.47, C.P.C. the Executing Court alone has the jurisdiction to resolve the controversy in connection with the execution of a decree.

Muhammad Khalid Chaudhary for Petitioner.

Dr. Hameed Ahmed Ayaz for the Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1643 #

2011 Y L R 1643

[Lahore]

Before Nasir Saeed Sheikh, J

NAZIR AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4431-B of 2010, decided on 27th December, 2010.

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

-----S.497(2)---Penal Code (XLV of 1860), Ss. 302/ 324/ 353/ 186/ 34---Qatl-e-Amd, attempt to commit Qatl-e-Amd, assault to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R.---Complainant had involved the accused in his supplementary statement as a notorious person of the area likely to have committed the present crime---During the identification parade no specific role in the occurrence had been assigned to accused---Accused person allegedly armed with a "sota" had not caused any injury to the deceased, nor he was attributed any overt act in the occurrence---"Sota" recovered from accused was not blood-stained---Submission of challan in the court and commencement of trial in the case was not a legal bar for refusing bail to accused in a murder case on account of a prevalent practice not to grant bail to accused in such circumstances---Accused having become entitled to bail as of right under S.497(I), Cr.P.C., the same could not be withheld on the ground of the said practice---Accused was not a previous convict---No reasonable grounds existed to belive him involved in the case and there was a scope of further inquiry into his guilt---Accused was admitted to bail in circumstances.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S.497(2)---Penal Code (XLV of 1860), S.302---Qalt-e-Amd---Bail---Case of further inquiry---Commencement of trial---Effect---Commencement of trial in the case does not prohibit the court from releasing the accused on bail, if he becomes entitled to the same as of right under S.497(2), Cr.P.C.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Mian Muhammad Mushahid Asgher for Petitioner.

Munir Ahmad Sial, D.P.-G., for the State.

Khursheed, S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1649 #

2011 Y L R 1649

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD AWAIS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 13879-B of 2010, decided on 13th January, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 337-F(v)/427/34---Causing hurt "ghayr-jaifah" and damage---Bail, grant of---Further inquiry---Accused was named in the F.I.R., but he was not attributed any injury to the complainant---Question of his sharing common intention with the other accused persons would be determined at the trial---Case against accused needed further inquiry into his guilt as envisaged by S.497(2), Cr.P.C.---Relief of bail could not be denied to accused on the basis of his alleged abscondence, if he was found entitled to bail---Accused was a previous non-convict and he was behind the bars for the last about three months---Bail was allowed to accused in circumstances.

Muhammad Riaz v. The State and another 2010 MLD 1063; Saeed v. State and another 2008 PCr.LJ 726; Asghar Ali alias Kaloo v. The State PLD 2008 Lah. 191 and Muzaffar Ali v. The State 2007 YLR 2579 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-F(v)/427/34---Causing hurt "ghayr-jaifah" and damage---Bail---Abscondence--- Effect--- Alleged abscon-dence of accused cannot deprive him of his right of bail, if he is otherwise found entitled to the same.

Haji Khalid Rehman for Petitioner.

Ch. Karamat Ali, D.P.-G. for Respondent No.1./State with Muhammad Ishaq, S.-I. with police record.

YLR 2011 LAHORE HIGH COURT LAHORE 1656 #

2011 Y L R 1656

[Lahore]

Before Tariq Javaid, J

RABIAL RIAZ---Petitioner

Versus

BOARD OF INTERMEDIATE and others----Respondents

Writ Petition No.4633 of 2010, decided on 6th September, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Examination---Petitioners had challenged marking of question papers by external examiner on the ground that one of the questions having 15 marks consisted of two parts with an option to attempt either of those parts; petitioners had attempted the first part---Petitioners asserted that right answers attempted by them were crossed and no marks were awarded to them---Rechecking Committee clothed with the powers to re-check, though not authorized to grant marks itself could point out the failures and perversities of the examiners; however, if it was found that the answers were correct and the examiner had wrongly refused to mark the same, the Re-checking Committee could proceed against such a recalcitrant examiner under the rules---Counsel for the Board of Intermediate and Secondary Education asserted that he had no objection if case was remanded to the Chairman Board of Intermediate and Secondary Education for expeditious disposal of grievance of the petitioners---High Court remanded the case to Chairman Board of Intermediate and Secondary Education with direction to decide the same within two days from the receipt of the order---High Court further directed that the Chairman while determining whether the answer to the disputed question as attempted by the petitioners were correct or not should be at liberty to have assistance from subject specialist or any other examiner in the relevant subject; however, if it was found that the conduct of the examiner was perverse, then the Chairman should take action against the examiner under the rules.

Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 and Board of Intermediate and Secondary Education, Lahore v. Saima Azad 1996 SCMR 676 ref.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 rel.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 fol.

Muhammad Farooq Qureshi Chishti for Petitioner.

Sh. Shahid Waheed for BISE.

YLR 2011 LAHORE HIGH COURT LAHORE 1660 #

2011 Y L R 1660

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD ZAFARULLAH---Appellant

Versus

MATLOOB HUSSAIN and others---Respondents

Criminal Appeal No.857 of 2010, decided on 10th December, 2010.

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

----S.506---Criminal Procedure Code (V of 1898), S.417(2)---Criminal intimidation---Special leave to appeal against acquittal, refusal of---Parties were already at daggers drawn---Despite the occurrence having taken place in a market, where also the workshop of the complainant was situated, not a single witness from the locality had been produced to support his version---Eye-witnesses admittedly were chance witnesses, who had failed to justify their presence at the place of occurrence at the relevant time---Again the eye-witnesses had contradicted the day of incident, which was not a minor contradiction---Showing the day as "Sunday" i.e. a holiday, the witnesses had tried to establish their presence at the spot---According to the complainant himself the accused were armed with sophisticated weapons, but neither any aerial firing was made nor any injury was caused to the complainant---Case of complainant was doubtful, benefit of which had to be given to accused---Conviction could not be recorded on mere hypothesis---Accused after their acquittal had earned a double presumption of innocence, which could only be rebutted if the order of acquittal on the face of it appeared to be perverse, arbitrary and illegal---Impugned order did not suffer from any illegality, irregularity, perversity, misreading or non-reading of evidence---Petition was dismissed in limine in circumstances.

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

----S.417---Appeal against acquittal---Appreciation of evidence---Interference by appellate court---Principles stated.

Ch. Jamil Ahmad Sindhu for Appellant.

YLR 2011 LAHORE HIGH COURT LAHORE 1674 #

2011 Y L R 1674

[Lahore]

Before Nasir Saeed Sheikh, J

RIAZ MEHMOOD and another---Petitioners

Versus

ALTAF HUSSAIN and others---Respondents

Civil Revisions Nos. 743 and 1225 of 2005 and Criminal Original No.15 of 2009, decided on 2nd November, 2010.

(a) Evidence---

----Production of evidence---Principles---None of the parties to a suit can produce evidence contrary to facts stated in pleadings.

(b) Islamic law---

----Gift---Proof of---When a fact renders physical and mental capacity of donor to make gift highly doubtful, it is for the beneficiaries to prove that donor was in mentally fit condition, he had an independent advice available to him and that he had made a valid offer of gift which has been accepted by the donee---Qanun-e-Shahadat (X of 1984), Arts. 117 & 120.

----Gift---Essential requirements---Making of a valid gift is dependent upon three essential requirements: a declaration of gift by donor; the acceptance of gift by donee and delivery of possession of subject property of gift by donor to donee

(d) Islamic Law---

---Gift deed---Proof---Health of donor---Absence of independent advice---Transfer of possession---Plaintiffs assailed mutation of gift sanctioned in their favour on the plea that father of parties was paralyzed before making of alleged gift in favour of defendants, and the same was a result of fraud---Validity---Father of parties was suffering from serious sickness and was paralyzed and his thumb impression was obtained through appointment of Local Commission who appeared as witness and admitted that gift deed was not signed by two witnesses in his presence nor did they appear before him when he went to get thumb impression of donor on the deed---No independent person identified the donor at the time of alleged obtaining of his thumb impression by Local Commission upon gift deed---Only one marginal witness appeared as witness before court but his presence at the time of obtaining thumb impression was excluded by Local Commission---Making of gift by father of parties in favour of defendants was doubtful and not proved in confidence inspiring manner---Delivery of possession by donor of subject property exclusively to defendant was not established as well---All legal heirs of deceased were in joint possession of suit land and donees had not even claimed to be in possession over any portion of the property nor had accepted alleged gift in their favour---Judgments and decrees passed by two courts below in favour of defendants were set aside and suit was decreed in favour of plaintiffs.

Mst.Rehmat Bibi and 6 others v. Bahadar Khan 2006 CLC 659; Faqir Sain alias Muhammad Sain and another v. Ahmad Din and others 2008 SCMR 1062; Chief Land Commissioner and another v. Maula Dad and others 1978 SCMR 264; Taus Khan v. Muhammad Shoaib 2002 MLD 651 Rasheed Hussain Malik and another v. Mst. Hanifa Bai and others 2000 MLD 1729 and Muhammadam Law by D.F. Mulla ref.

Ch. Sadaqat Ali and Ch. Abdul Ghaffar for Petitioners.

Sardar Mohabat Ali Dogar, Syed Iftikhar Hussain Shah and Mian Shahbaz Ali for Respondents.

Date of hearing: 2nd November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1683 #

2011 Y L R 1683

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

MUHAMMAD AFZAL SHAH and 4 others---Petitioners

Versus

MUHAMMAD HUSSAIN---Respondent

Civil Revision No.798 of 2004, decided on 24th August, 2010.

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

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.11---Plaintiff filed suit for declaration along with consequential relief on the ground that he had purchased the disputed property from predecessor-in-interest of the defendants and constructed a house on the same but had been refused transfer in his favour---Defendants contested the suit and along with written statement filed application under O.VII, R.11, C.P.C. for rejection of plaint---Trial Court accepted application and rejected the plaint---Appeal filed by plaintiff was allowed by Appellate Court and the case was remanded to be decided on merits---Defendants asserted that the plaintiff was their "Moeen" and he was allowed to reside in the disputed property by their predecessor-in-interest temporarily and now he had come forward with a suit just on the instigation of the opponent of defendants---Effect---Held, there was factual controversy between the parties and mere technical knock-out would not serve the purpose---Case required thorough and full-fledged inquiry so that rights of the parties were adjudged effectively---Technical provisions/rules of procedure were not meant to knock-out parties from claiming their rights---Petition was dismissed by High Court.

1981 SCMR 878; 1992 MLD 225; 2000 SCMR 1305; PLD 2001 SC 499; 2001 MLD 401; 2002 SCMR 361; PLD 1991 SC 905; 2001 CLC 899 and 2003 CLC 335 ref.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 rel.

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

----O. VII, R.11---Rejection of plaint---Scope---Technical provisions/rules of procedure were not meant to knock-out parties from claiming their rights.

1981 SCMR 878; 1992 MLD 225; 2000 SCMR 1305; PLD 2001 SC 499; 2001 MLD 401; 2002 SCMR 361; PLD 1991 SC 905; 2001 CLC 899 and 2003 CLC 335 ref.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 rel.

Ch. Muhammad Rafique Warraich for Petitioner.

Ashfaque Qayyum Cheema for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1692 #

2011 Y L R 1692

[Lahore]

Before Sagheer Ahmad Qadri and Ijaz Ahmed, JJ

ZAFAR IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.19 of 2009, heard on 18th January, 2011.

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

----Ss.9(c) & 2(s), (t), (v) & (w)---Possessing narcotics---Appreciation of evidence---Counsel for the accused after having argued the case for his acquittal had confined himself for reduction in sentence of accused in view of the report of the Chemical Examiner---Twenty K.G. Poppy Heads had been recovered from the possession of accused---Sample of ten grams of the substance sent to the Chemical Examiner was found to be "Crushed poppy heads" which could be used to cause intoxication, as the same had traces of Morphine and Codeine---Under S.2(s) of the Control of Narcotic Substances Act, 1997, 'narcotic drug' meant Coca Leaf, Cannabis, heroin, opium, poppy straw and all manufactured drugs---Poppy straws were also included in the definition of 'opium' as provided under S.2(t)(i) of the said Act---Under S.2(w) 'poppy straw' were shown all parts except seeds of opium poppy after mowing---Poppy heads or poppy straw thus were narcotic drug and offences relating to them were punishable under the Act---However, poppy heads having traces of Morphine and Codeine, recovered from the accused, could not be equated with the actual substance popularly known as "Opium" or "heroin" etc. which contained much higher quantity of Morphine---Conviction and sentence of imprisonment for life awarded to accused were consequently maintained, but his sentence of fine was reduced from Rupees 2,00,000 to Rs. 50,000 only in circumstances.

Khair-ul-Rehman and others v. The State and others PLD 2005 Lah. 440 ref.

Muhammad Ilyas Siddiqui for Appellant.

Khawaja Sohail Iqbal, Deputy Prosecutor General for the State.

Date of hearing: 18th January, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1701 #

2011 Y L R 1701

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

WAPDA through Chairman WAPDA and 2 others---Petitioner

Versus

ABDUR RAZZAQ and 4 others---Respondents

C.R. No.2365 of 2003, decided on 19th August, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration to challenge multiplying factor detection bill of electricity in the year 1980---Authorities contested the suit---Trial Court dismissed suit on the ground that there was no cogent evidence to disprove the detection bill---Appeal filed by plaintiffs was allowed by Appellate Court---Disputed meter of the plaintiffs was checked by the authorities/officials in the absence of the plaintiffs---Plaintiffs were not issued any notice to show cause before issuing the detection bill or assessment to the loss of the Authority---Meters of high consumption were fitted with C.T. (current transfer) device and also with M.D.I. (maximum demand indicator) meter; the disputed connection was fitted with such apparatus---In presence of regular and constant checking by authorities, alleged misdeed was not possible by the consumer--High Court declined to interfere in revisional jurisdiction---Revisional petition was dismissed.

Aurang Zaib Mirza for Petitioners.

Syed Aftab Shirazi for Respondents.

Abdur Razaq Attorney for the Respondents in person.

YLR 2011 LAHORE HIGH COURT LAHORE 1706 #

2011 Y L R 1706

[Lahore]

Before Sagheer Ahmad Qadri, J

SARDAR MUHAMAMD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, RAWALPINDI and others---Respondents

Criminal Revision No.307 of 2010, decided on 20th January, 2011.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.452/427/342/337-A(i)---House trespass, causing damage, wrongful confinement, causing hurt---Criminal Revision---Sessions Court while disposing of pre-arrest bail application of accused had made certain observations in respect of improper and illegal investigation made by the Investigating Officer, present petitioner, in the case and directed the CPO for taking action against him in accordance with law---Validity---Court while disposing of any Criminal matter was primarily duty bound to see if the investigation in the case had been conducted properly and in accordance with law, and to point out any illegality if found therein---Such powers are always inherently provided to the court under the Statutes in which the proceedings were being conducted---No illegality had been committed by the Sessions Court in making the adverse observations against the petitioner Investigating Officer and directing initiation of action against him according to law---Revision petition was dismissed accordingly.

Khizar Hayyat and others v. I.G. Punjab Police and others PLD 2005 Lah. 740 and Bashiran Bibi v. Nisar Ahmad PLD 1990 SC 83 ref.

Syed Masood ul Hassan Bukhari for Petitioner.

Syed Ali Shah Bukhari for Respondent No.3.

YLR 2011 LAHORE HIGH COURT LAHORE 1710 #

2011 Y L R 1710

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD AFZAL and 27 others---Petitioners

Versus

PAKISTAN, through Secretary Defence, Islamabad and 4 others----Respondents

Writ Petition No.10262 of 2000, decided on 22nd December, 2010.

Land Acquisition Act (I of 1894)---

----Ss.4, 5, 5-A & 17---Constitution of Pakistan, Arts.25 & 199---Constitutional petition--- Acquisition of land---Compensation--- Determination--- Land owners contended that authorities had discriminated them while determining value of their land---Validity---Land adjacent to petitioners' land was owned by Government and the same was acquired at the rate of Rs.400,000 per acre but their land was assessed at the rate of Rs.175,000 per acre, such determination of compensation was discriminatory---Authorities failed to give any reason for decreasing compensation of petitioners from Rs.400,000 to Rs.175,000 specially when both lands were in same village and adjacent to each other---Such act of authorities amounted to discrimination as authorities did not have any authority to acquire land of private person less than the price assessed for government land---Government as well as private persons were equal in the eye of law and such act of authorities for payment of less compensation to petitioners against government land was without lawful authority---Petitioners themselves had demanded compensation of their land as Rs.366,436 per acre at the relevant time and as such they could claim that amount and not Rs.400,000 per acre---Acquisition proceedings were according to law and land was rightly acquired by authorities but while assessing price of petitioners' land they were discriminated---Petitioners had already received the amount of compensation at the rate of Rs.175,000 and as such they were entitled for balance amount only as it was proved that fixation of price of petitioners' land was mala fide and was against the facts available on record at the relevant time---Authorities were liable to pay Rs.366,436 per acre to petitioners and High Court directed the authorities to pay balance amount to petitioners---Petition was allowed accordingly.

Muhammad Yousaf v. Chief Settlement Commissioner 1989 CLC 1020; Province of Punjab and 2 others v. Muhammad Haziq and 3 others 1986 CLC 530; Cantonment Executive Officer, M.E. Section, Cantonment Board, Bahawalpur v. Syed Iqbal Mustafa and 2 others 1993 CLC 1489; Government of Pakistan, Secretaries, Works, Communications and Physical Planning v. Tauqir Ahmad Khan and others 1996 SCMR 968 and Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806 ref.

Ch. Muhammad Iqbal Abid for Petitioner.

Rana Javed Akhter, Standing Counsel for Respondent.

Date of hearing: 30th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1719 #

2011 Y L R 1719

[Lahore]

Before Ch. Muhammad Tariq, J

TANVIR---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 202-B of 2011, decided on 4th March, 2011.

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

----S.497---Penal Code (XLV of 1860), S.302/148/149---Qatl-e-amd, rioting armed with deadly weapons---Bail, refusal of---Incident was a broad day occurrence---F.I.R. was promptly lodged---Specific role was assigned to accused in the occur-rence---Police opinion declaring the accused innocent in such circumstances could not be considered, as ipse dixit of police was binding on the Court---Innocence of accused declared by police during investigation was not relevant at bail stage and mentioning his name in Column No.2 of the challan would not debar the court from evaluating the material on record, as each and every criminal case had to be decided on its own peculiar facts and circumstances---Plea of alibi could not be considered at bail stage--Accused according to F.I.R. had actively participated in the commission of the offence and caused fire arm injuries to two deceased persons---Veracity of the affidavit sworn by the father of one deceased declaring the accused innocent would be determined at the trial---Case was of triple murder---Deeper appreciation of material was not warranted at such stage---Bail was disallowed to accused in circumstances.

2010 SCMR 1861 and 2004 SCMR 161 ref.

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

----S.497---Penal Code (XLV of 1860), S.302/148/149--- Qatl-e-Amd, rioting armed with deadly weapons---Bail---Police opinion--- Relevancy--- Declaration of accused as innocent by police during investigation is not relevant at bail stage, because mentioning of the name of accused in Column No. 2 of the challan by the police does not debar the court to evaluate the material no record.

2010 SCMR 1861 and 2004 SCMR 161 ref.

----S.497---Penal Code (XLV of 1860), S.302/148/149--- Qatl-e-Amd--- Rioting armed with deadly weapons---Bail---Plea of alibi, consideration of---Plea of alibi taken by accused in the case cannot be considered at bail stage.

2010 SCMR 1861 and 2004 SCMR 161 ref.

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

----S.497---Penal Code (XLV of 1860), S.302/148/149--- Qatl-e-Amd, rioting armed with deadly weapons---Bail---Assessment of material---Principle---Court while deciding a bail matter has to make tentative assessment of the material available on record, deeper appreciation whereof is not warranted at such stage.

2010 SCMR 1861 and 2004 SCMR 161 ref.

Sardar Muhammad Ishaq Khan for Petitioners.

Malik Muhammad Usman, Deputy Prosecutor General for the State.

Syed Farrukh Raza for the Complainant.

Dost Ali, S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1724 #

2011 Y L R 1724

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MAKHDUM RAJU SHAH---Petitioner

Versus

MEMBER BOAD OF REVENUE, PUNJAB and 17 others---Respondents

Writ Petition No. 8444 of 2009, heard on 21st December, 2010.

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

----S.3---Punjab Tenancy Act (XVI of 1887), S. 4(1)---Land Reforms Regu-lations, 1972, Regln. 2(4)--- Punjab Alienation of Lands Act (XIII of 1900), S.2(3)---Term "land"---Connotation---Definition of "agricultural land" is its agricultural or pasture character.

(b) Void order---

----Limitation---Principle---Order passed by court not competent to pass is void order---Bar of limitation is not applicable against void order.

----S.24---Service of summons---Object and scope---Object of service of summons is that defendant should have notice of case against him and of the court in which he has to appear---If defendant is given requisite information at a time when he is able to appear and defend the suit, such service would be sufficient---For due service, all that is required is that there should be substantial compliance with the provisions relating to service of summons---Due service of summons is a matter of such importance that courts before deciding the service to be sufficient must be satisfied that all requirements of law have been strictly complied with---Such is all the more necessary in case where service is not personal but substituted.

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

----S.24---West Pakistan Board of Revenue Act (XI of 1957), S.8---Constitution of Pakistan, Art. 199--- Constitutional petition---Board of Revenue, revisional jurisdiction of---Setting aside ex parte order---Service of summons---Proof---Petitioner filed application for partition of land and ex parte order was passed in his favour---Respondent assailed ex parte order on the ground that summons was not served upon him---Board of Revenue allowed the application filed by respondent and remanded the matter to Tehsildar for decision afresh---Validity---Property in dispute was situated within urban limits and as such the original order passed by Tehsildar was without jurisdiction and was void ab initio---Board of Revenue after examining the file had rightly found that requirement of section 24 of West Pakistan Land Revenue Act, 1967, was not complied with and case was rightly remanded to Tehsildar for re-deciding the same after hearing the parties---Order passed by Board of Revenue was perfectly in accordance with law and by remanding the case to Tehsildar, no prejudice had been caused to petitioner---If as per claim of petitioner, the land in dispute was agriculture land, Tehsildar would again pass the order on merits---High Court declined to interfere in the order passed by Board of Revenue---Petition was dismissed in circumstances.

Saifullah and 2 others v. Mst. Kausar Parveen 2006 YLR 526; Pervaiz Ahmed Khan Burki and 3 others v. Assistant Commissioner Lahore Cantt., and 2 others PLD 1999 Lah. 31; Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue) Kharian, District Gujrat and 6 others 2005 MLD 814; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818; Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab Lahore and 5 others PLD 1973 Lah. 495; Akbar Ali and 18 others v. Mukhtar Ahmed and 14 others 2007 CLC 708 and Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251 ref.

Mian Ahmad Mahmood for Appellant.

Ch. Muhammad Hussain Jahangir for Respondent.

Date of hearing: 21st December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1734 #

2011 Y L R 1734

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 2415-B of 2010, decided on 8th February, 2011.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/34/109---Qatl-e-Amd, abetment---Bail, grant of---Accused was not nominated in the F.I.R.---Complainant and other prosecution witnesses in their supplementary statements recorded after the registration of the case on different dates during investigation, had not assigned any active role to the accused in the commission of the crime---Nothing had been recovered from the accused during investigation---Case of accused fell within the ambit of further inquiry as envisaged under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Ghulam Murtaza v. The State 2004 PCr.LJ 296 and Maqbool Ahmad v. The State and another 2007 MLD 436 rel.

Malik Sadiq Mahmood Khurram for Petitioner.

Muhammad Naeem Bhatti for the Complainant.

Asghar Ali Gill, D.P.-G. along with Safdar Goraya, S.-I., with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1738 #

2011 Y L R 1738

[Lahore]

Before Tariq Javaid, J

ABDUL WAHEED and 10 others---Petitioners

Versus

R.M.S. JANJUA and 4 others---Respondents

Civil Revision No.1269 of 2010, decided on 14th January, 2011.

Civil Procedure Code (V of1908)---

----O.XVII, Rr. 2, 5 & O.IX, R.9---Limitation Act (IX of 1908), Arts. 168 & 181---Application for restoration of suit dismissed for non-prosecution---Dismissal of such application by Trial Court and appellate court for having been filed beyond 30 days prescribed under Art. 168 of Limitation Act, 1908---Plea that in absence of Presiding Officer of court, reader had fixed adjourned date of hearing without issuing signed slip specifying same, thus, order of dismissal of suit on such date not fixed by court itself was void and Art. 181 of Limitation Act, 1908 was applicable thereto---Validity---Word "adjourned" as used in O.XVII, R.2, C.P.C., would mean "adjourned" by Court---Reader had adjourned case in absence of Presiding Officer of court without handing over to plaintiff such signed slip in terms of O.XVII, R.5, C.P.C.---Such adjourned date was not a date of hearing within meanings of O.XVII, R.2, C.P.C.---Trial Court on adjourned date fixed by its Reader could fix another date for hearing---Order of dismissal of suit had been passed in utter disregard to mandatory provision of O.XVII, R.5, C.P.C., thus, same was a nullity and Art. 181 of Limitation Act, 1908 would apply thereto---High Court set aside impugned order and restored suit in circumstances.

Muhammad Asif v. Fahad and another 2009 SCMR 1030 ref.

Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092; Muhammad Qasim v. Moujuddin and others 1995 SCMR 218 and Aabdul Rashid v. Director General Post Offices Islamabad and others 2009 SCMR 1435 rel.

Ghulam Subhani for Petitioners.

Zahid Saleem for Respondents.

Salman Mansoor, Additional Legal Advisor for Respondent No.4.

YLR 2011 LAHORE HIGH COURT LAHORE 1744 #

2011 Y L R 1744

[Lahore]

Before Ch. Muhammad Tariq, J

SHAFQAT ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 13764-B of 2010, decided on 10th December, 2010.

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

----S.497---Penal Code (XLV of 1860), S.376---Rape---Bail, refusal of---Accused was specifically blamed in the F.I.R. of having committed Zina-bil-Jabr with the victim girl after forcibly taking her from her house---Victim had fully implicated the accused in her statements made under Ss.161 and 164, Cr.P.C. confirming the contents of the F.I.R.---Negative report of Chemical Examiner was of no help to accused which itself had explained that after a lapse of four days there were less chances of detection of semen---Statement of the victim in a rape case alone was sufficient to connect the accused with the offence, if the same inspired confidence--No animosity between the parties was unveiled---Complainant or his victim daughter could not dishonour themselves or their family for petty matters---Heinous offence allegedly committed by accused was hit by the prohibitory clause of S.497, Cr.P.C.---Challan had already been received by Trial Court---Bail was declined to accused in circumstances.

2009 MLD 19; 2000 YLR 222; 2007 PCr.LJ 1292; 2001 YLR 540 and Mushtaq Ahmed and another v. The State 2007 SCMR 473 ref.

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

----S.376--- Rape--- Appreciation of evidence---Statement of victim---Value---Statement of the victim girl in a rape case alone is sufficient to connect the accused with the commission of the offence, if the same inspires confidence.

Mushtaq Ahmed and another v. The State 2007 SCMR 473 ref.

Ch. Rab Nawaz for Petitioner.

Noor Ahmed Bhatti, District Public Prosecutor and Ikhlaq Hussian, S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1759 #

2011 Y L R 1759

[Lahore]

Before Tariq Javaid, J

ABDUL AZIZ---Petitioner

Versus

DEPUTY DISTRICT OFFICER (REVENUE), FAISALABAD and another---Respondents

Writ Petition No.24269 of 2010, decided on 15th November, 2010.

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

----S. 12---West Pakistan Land Revenue Act (XVII of 1967), S.42---Constitution of Pakistan, Art. 199--- Constitutional petition--- Maintainability--- Suit for specific performance---Trial Court decreed the suit---Revenue Officials refused to enter mutation on the ground that the decree for specific performance could not be executed---Petitioner contended that the High Court could make direction under Art.199 of the Constitution to Revenue authorities to give effect to a decree by sanctioning mutation--- Validity---Constitutional petition to enforce the decree of a civil court was not maintainable as the High Court was not an executing court for the declaratory decrees passed by the civil courts---Revenue courts/authorities were bound to implement declaratory judgments and decrees of civil courts without requiring institution of execution proceedings---Under S.42 of West Pakistan Land Revenue Act, 1967, Revenue authorities being bound to enter mutations in pursuance of decrees of civil court, could not refuse to enter mutation as the refusal would be ipse dixit of such officials/authorities---Petition was disposed of accordingly.

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

----S. 42---Mutation in pursuance of declaratory decrees---Scope---Under S.42 of West Pakistan Land Revenue Act, 1967, Revenue authorities were bound to enter mutation in pursuance of decrees of civil court; refusal to enter mutation would be ipse dixit of such authorities/officials.

PLD 1973 Lah. 614 ref.

Shara v. Member, Board of Revenue 2004 SCMR 117; Abdul Hameed and others v. Member, Board of Revenue 2005 SCMR 1617 and Allah Ditta v. Ghulam Muhammad and others 2008 SCMR 1021 fol.

Malik Amjad Pervaiz for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1765 #

2011 Y L R 1765

[Lahore]

Before Ijaz Ahmed, J

KHALID MEHMOOD---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.231 of 2011, decided on 4th March, 2011.

Penal Code (XLV of 1860)---

----Ss.409, 420, 468, 471, 64 & 65---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan, Art.199---Criminal breach of trust, cheating, forgery for cheating, using as genuine a forged document, criminal misconduct---Constitutional petition---Contention was that the accused had undergone substantial sentence of five years' R.I. and if the imprisonment in default of payment of fine under all the offences was directed to run concurrently, he would be entitled to be released---Total imprisonment in default of payment of fine in all the offences, as calculated, was 30 months which did not exceed 1/4th of the term of maximum imprisonment fixed by law under Ss.64 and 65, P.P.C., as the same in the present case was imprisonment for life or imprisonment for ten years---Besides, the sentence of fine was passed for each offence separately---Payment of fine as sentence in one offence would not absolve the accused from payment of fine in other offences---Imprisonment on account of failure to pay the fine was an alternative sentence---Since the original sentence of fine had to be paid separately and consecutively, the substitutive sentence of imprisonment could not be allowed to run concurrently---Total added term of imprisonment in case of default in payment of fine did not exceed the limit provided under Ss. 64 and 65, P.P.C. and the same, therefore, could not be allowed to run concurrently---Constitutional petition was dismissed accordingly.

Ahmad Daud-ul-Hassaini v. The State 2008 SCMR 111 distinguished.

Mian Khan v. Government of the Punjab through Secretary Home Department, Civil Secretariat, Lahore and others 2005 PCr.LJ 627 and Syed Hidayat Shah v. Shabbir Shah alias Shabbir Hussain Shah and another 1991 PCr.LJ 255 ref.

G.M. Shah for Petitioner.

Rashid Hafeez, learned A.A.-G.

Hasan Mujtaba, Assistant Superintendent Jail.

YLR 2011 LAHORE HIGH COURT LAHORE 1771 #

2011 Y L R 1771

[Lahore]

Before Ijaz Ahmed, J

SIRAJ DIN and others---Petitioners

Versus

Dr. ASIF ZAMAN, and others---Respondents

Civil Revision No.169-D of 2002, heard on 25th January, 2011.

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42(7)---Suit for declaration---Islamic law---Gift---Proof of validity of gift---Onus---Trial Court decreed the suit---Appellate Court accepted defendant's appeal---Plaintiff contended that once the factum of gift had been denied, onus shifted to donee to prove the validity of the gift---Validity---Valid gift required an offer, an acceptance and the change of possession---Donee could not establish the acceptance of gift or delivery of possession to him---Revenue Officer who sanctioned the mutation was not produced as witness; his absence cast doubt on the alleged transaction---Circumstances did not suggest strained relations between donor and his other legal heirs or his extraordinary love and affection for the donee prompting him to exclude other legal heirs--- Donee could not prove the change of possession even symbolically---Donee failed to discharge the onus of proving the validity of the gift---Judgment of Appellate Court was set aside while judgment of Trial Court was restored---Petition was accepted.

Abdul Aziz v. Mst. Jantay Bibi 1999 CLC 1505; Nasrullah Khan v. Rasul Bibi 2001 SCMR 1156; Monawar Jehan v. Muhammad Sarfraz PLD 1979 Lah. 32; Abdul Wahab v. Aurangzeb and 2 others 1997 SCMR 1087; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144 and Azim Khan v. Malik Mobeen Khan and others 2001 SCMR 34 ref.

Abdul Rahim and another v. Mst. Jannatay Bibi and 13 others 2000 SCMR 346 and Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs 2002 SCMR 1938 fol.

Malik Muhammad Kabir for Petitioner.

Muhammad Jahanzeb Tamman for Respondents.

Date of hearing: 25th January, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1777 #

2011 Y L R 1777

[Lahore]

Before Shahid Hameed Dar, J

Malik KHIZAR HAYAT---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 240-B of 2011, decided on 16th March, 2011.

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

----S.497---Penal Code (XLV of 1860), S.489-F--- Dishonestly issuing a cheque---Bail, grant of---Admittedly, complainant had joined the business of accused as a partner on profit and loss sharing basis and the accused in order to satisfy the complainant had delivered the cheque in question to him not with a criminal intent that it would be bounced on presentation for encashment by the Bank due to insufficient funds---Registration of another case by complainant against the accused on the same day when the present F.I.R. was got registered by him, could not be said to be a repetition of the offence by the accused---Pendency of a civil suit for rendition of accounts with permanent injunction filed by the accused against the complainant, was a strong circumstance going in favour of accused at this stage---Offence alleged against accused did not fall within the mischief of the prohibition of S.497, Cr.P.C.---Challan had been submitted in the Court---Accused was not required for any further investigation---Bail in such cases was rule and rejection thereof an exception, which must not be withheld if the accused had otherwise made out a case for bail---Accused was released on bail in circumstances.

Muhammad Yahya v. State and others PLJ 2011 SC 175 rel.

Rashid Farooq v. The State and others Criminal Miscellaneous No. 1668-B of 2010 decided by this Court on 12-10-2010 ref.

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

----S. 489-F--- Dishonestly issuing a cheque--- Scope--- Essentials--- Offence under S.489-F, P.P.C. shall be deemed to have been committed when a cheque is issued with dishonest intention by the offender towards payment of loan or fulfilment of a legal obligation, knowingly that it would be bounced by the bank on presentation for encashment.

Sh. Ashan ud Din for Petitioner.

Malik Riaz Ahmad Saghla, D.P.G.

Hazar Khan S.-I. with record.

Complainant in person.

YLR 2011 LAHORE HIGH COURT LAHORE 1789 #

2011 Y L R 1789

[Lahore]

Before Sagheer Ahmad Qadri, J

Mst. ZEENAT BIBI---Petitioner

Versus

MUHAMMAD YOUNAS and others---Respondents

Civil Revision No.394-D of 2001, heard on 11th January, 2011.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Mutation of gift---Proof---Onus to prove---Plea of fraud and misrepresentation---Presumption of correctness---Effect---Plaintiff alleged that mutations of gift attested in favour of her brothers were result of fraud and misrepresentation---Suit and appeal filed by plaintiff were dismissed by Trial Court and Lower Appellate Court respectively---Contention of defendants was that presumption of truth was attached to mutation in question--- Validity--- Whenever any mutation was challenged on the basis of fraud or misrepresentation, burden always shifted to the person claiming himself beneficiary of any such transaction---No presumption of truth was attached to a mutation and specially when it was alleged by one side that it was the result of fraud and misrepresentation---Heavy burden lay on the defendants/beneficiaries to prove such mutation by examining attesting witnesses as well as the revenue officials for the purpose---Though defendants alleged that gift mutations were attested by revenue officials in accordance with law but presumption of truth attached to mutations was rebuttable---No evidence was available on record about offer and acceptance of gift as well as delivery of possession of land in dispute to defendants---Mere attestation of mutations and subsequently preparation of any record on the basis of such mutations itself did not prove delivery of possession---High Court in exercise of revisional jurisdiction set aside concurrent findings of two Courts below and suit was decreed in favour of plaintiff.

Miraj Din v. Mst.Sarwar Bibi and 5 others 2010 MLD 843 and Khaliq Dad and others v. Mst.Zeenat Khatoon and others 2010 SCMR 1370 rel.

Muhammad Boota v. Mst.Rashida Bibi and others 2008 SCMR 343; Hakim Ali and 3 others v. Sheikh Muhammad Mazhar Ali 1997 CLC 1645; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs 2002 SCMR 1938; Imran Khan and others v. Aftab Khan 2008 CLC 1043; Khurshid Bibi and others v. Ramzan and others 2005 CLC 1714; Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866; General Manager, HBFC and others v. Ali Rehman and others 1995 CLC 531; Muhammad Ishaq and 13 others v. Muhammad Iqbal and 3 others PLD 1975 Lah. 1314; Mst.Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1997 SC 28; Bakht Zamin v. Said Majid 1996 CLC 1805; Mian Maqbool-ur-Rehman through Legal heirs and another v. Mst.Munawar-un-Nisa and 8 others 2001 CLC 1804 and Mst.Rasul Bibi v. Nasrullah Khan 1994 CLC 1774 ref.

(b) Islamic law---

----Gift---Proof---In order to prove execution of gift, its three ingredients i.e. offer, acceptance and delivery of possession are to be proved.

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts by two Courts below---Effect---Concurrent findings of facts arrived at by the Courts below, if are the result of misreading and non-reading of material piece of evidence, which resulted in miscarriage of justice or while ignoring the law on the subject reached at a wrong conclusion, such findings can be set aside while exercising revisional jurisdiction.

Muhammad Bakhsh v. Elahi Bakhsh and others 2003 SCMR 286 rel.

Muhammad Ali Athar Ali Qazi for Petitioner.

Khan Baig Janjua for Respondent.

Date of hearing: 11th January, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1800 #

2011 Y L R 1800

[Lahore]

Before Sagheer Ahmed Qadri and Rauf Ahmed Sheikh, JJ

MUHAMMAD SIDDIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.343 and Murder Reference No.40/RWP of 2008, heard on 17th February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 336, 337-A(i) & 337-R(i)---Qatl-e-amd, attempt to commit Qatl-e-amd, causing hurt---Fair chance to defend himself not provided to accused at the trial---Most of the adjournments in the case had been allowed due to non-availability of the defence counsel or non-service of the processes---Trial Court in such circumstances could not have justifiably asked or allowed the accused to cross-examine the witnesses himself in the murder case entailing capital punishment---Ordinary person could not be expected to effectively cross-examine the witnesses in order to bring the truth on the file---Many witnesses had been left uncross-examined in addition to the cross-examination put by the accused himself on some of them---Accused, thus, had not been provided a fair chance to defend himself, which had led to an apprehension of miscarriage of justice---Convictions and sentences of accused were, consequently, set aside and the case was remanded to Trial Court for decision afresh with the direction to give an opportunity to accused to engage a counsel of his own choice and on his failure to do so to appoint a counsel at State expenses from the panel of three local advocates after obtaining his preference, who would be given fair chance to cross-examine the re-summoned prosecution witnesses---Appeal was disposed of accordingly.

2011 SCMR 23 ref.

Muhammad Asad Rajput for Appellant.

Rana Kashif Saleem Arfaa, Law Officer, for the State.

Muhammad Aslam Qureshi for the Complainant.

Date of hearing: 17th February, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1809 #

2011 Y L R 1809

[Lahore]

Before Ch. Muhammad Tariq, J

SAFDAR ALI and 5 others---Petitioners

Versus

DEFENCE HOUSING AUTHORITY Through Secretary and others---Respondents

Civil Revision No.3166 of 2010, decided on 22nd September, 2010.

Civil Procedure Code (V of 1908)---

----S.115---Limitation Act (IX of 1908), Ss.5 & 28(2)---Revision filed in High Court within period of limitation received back by petitioner for removing office objection within three days, but re-filed the same after four months---Application under S.5 of Limitation Act, 1908 for condonation of delay caused in re-filing of revision---Validity---Petitioner's counsel himself had collected file of revision from office, who was obliged to remove objection within three days in compliance of direction of office, but he failed to do so---Benefit of S.5 of Limitation Act, 1908 could not be extended to petitioner due to its non-application to revision as period of limitation for its filing was provided under S.115, C.P.C.---Petitioner had not offered any plausible reason for condonation of delay---High Court dismissed revision for being barred by limitation.

2000 SCMR 847; 2005 CLC 1083; PLD 2003 Lah. 398; 2001 YLR 327 and 2001 MLD 1964 ref.

Asif Ali Shah v. Superintending Engineering Quetta Circle, Quetta and others PLD 1963 SC 263 rel.

Ch. Masood Ahmed Zafar for Petitioners.

YLR 2011 LAHORE HIGH COURT LAHORE 1822 #

2011 Y L R 1822

[Lahore]

Before Ch. Muhammad Tariq, J

GHULAM HASSAN---Petitioner

Versus

MST. RASHIDAN BEGUM and 15 others---Respondents

Writ Petition No.12135 of 2010, decided on 30th September, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.I, R.10--- Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for declaration---Petitioner's application for impleading him as party was dismissed for non-prosecution by the Trial Court---Petitioner's application for restoration of said application was also dismissed whereafter he filed revision which met the same fate---Petitioner contended that his application was dismissed as a result of incorrect noting of date---Validity---Petitioner took divergent pleas to support his stance---Petitioner was present in the court when the case was adjourned; after dismissal of application, petitioner filed revision instead of filing appeal which was the proper remedy available to him---Appeal was a statutory right which could not be substituted with revision petition---Revisional court decided revision petition without adverting to question of its maintainability giving rise to jurisdictional defect which was not curable in constitutional petition---Petition was dismissed in circumstances.

Sardar Abdul Majeed Dogar for Petitioner.

Ch. Muhammad Rafiq Warriach for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1827 #

2011 Y L R 1827

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD SHAFI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Appeals Nos.1792 and 1991 of 2002, heard on 16th July, 2010.

Penal Code (XLV of 1860)---

----Ss.308, 311/34 & 449---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd not liable to Qisas, tazir after waiver or compounding of right of qisas in qatl-e-amd, house-trespass in order to commit offence punishable with death---Compounding of offences---Parties after ending their differences through compromise wanted to bring back peace, harmony and revival of relationship in the family, which was a good omen and should be encouraged---Offences under Ss.308, P.P.C. and 311/34, P.P.C. were compoundable with the consent of the Court and compromise of the parties thereunder was consequently accepted and the accused were acquitted of the said charges---Offence under S. 449, P.P.C. was not compoundable, but the accused being the close relatives of the deceased could not be deemed to have committed the offence of trespass in his house within the scope of S.449, P.P.C.---Trial Court had not dealt with lawfully the said proposition and conviction of accused thereunder was not lawful and the same, therefore, was set aside---Appeal filed by accused was accepted in the circumstances and they were directed to be released forthwith accordingly.

Muhammas Asif v. The State 1999 YLR 1576 ref.

Munir Ahmad Bhatti for Appellants.

Muhammad Inayat Ullah Cheema for Respondent.

Date of hearing: 16th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1836 #

2011 Y L R 1836

[Lahore]

Before Mazhar Iqbal Sidhu, J

GEHNEY KHAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 206-B of 2011/BWP, decided on 17th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149/109--- Qatl-e-amd--- Bail, grant of---Further inquiry---Prosecution's own case was that both (male and female) deceased had indulged in illicit intimacy---Female deceased was real daughter of accused who allegedly caused injury with iron rod hitting on right calf of male deceased---Said injury had not been substantiated by post mortem report---Medical contradiction with ocular version had brought the case of accused within the purview of further inquiry---Co-accused did not cause any injury to deceased, whereas joint role of causing injuries on the person of female deceased had been assigned to him but it could not be adjudged that injury allegedly caused by co-accused was the cause of death or not---Both accused did not cause any injury to either of the deceased persons, they however, remained present during occurrence along with their co-accused---Report of the vaginal swabs of female deceased was found positive---Said facts and circumstances of the case, prima facie had made the case of accused persons that of further inquiry as envisaged under S.497(2), Cr.P.C.---Accused were admitted to bail, in circumstances.

S.M. Asif Bokhari for Petitioners.

Asghar Ali Gill, D.P.-G. with Saleem S.-I. for the State.

Aslam Javaid Minhas for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 1838 #

2011 Y L R 1838

[Lahore]

Before Kh. Imtiaz Ahmad and Ch. Muhammad Tariq, JJ

NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY ---Petitioner

Versus

UTBA SAFWAN KHAN and others---Respondents

Intra Court Appeal No. 177 of 2010, heard on 17th August, 2010.

(a) Constitution of Pakistan---

----Art. 199 (3)---Constitutional petition---Maintainability---Petitioner, a student in Army Medical College---Plea raised by Authorities was that petitioner was member of Armed Forces, therefore, Constitutional petition was not maintainable---Validity---Petitioner was a mere student in Army Medical College and not a commissioned officer or governed under Military law, so bar of Art. 199 (3) of the Constitution was not attracted---Petition was maintainable in circumstances.

(b) National University of Sciences and Technology (Enforcement of Academic Services and Financial Matters) Statutes, 2005---

----Preamble---Constitution of Pakistan, Art. 24---Law Reforms Ordinance (XII of 1972), S.3--- Intra-Court Appeal---M.B.B.S. second professional examination---Chances for passing---Respondent was student in Army Medical College and despite four chances failed to pass M.B.B.S. second professional examination, resultantly he was withdrawn from medical college---Single Judge of High Court allowed Constitutional petition of the respondent and set aside the order passed against respondent---Plea raised by authorities was that the respondent could not be allowed to pass second professional examination in unlimited chances as allowed by Pakistan Medical and Dental Council--- Validity--- Contention of respondent that there was no restriction and he could pass his examination in countless efforts was not warranted under law---Profession of medical was very sensitive one in which a weak person could only play havoc with the health and life of human beings---Respondent made four attempts but failed, therefore, no more latitude could be extended to him---Contention of respondent was without logic that he and other students studying in Army Medical College were at liberty to pass M.B.B.S. examination according to their own wishes without restriction of limitation---Condition of unlimited chances was not only discriminatory but also against the concept of Art. 24 of the Constitution---Division Bench of High Court set aside the judgment passed by the Single Judge and Constitutional petition of respondent was dismissed---Intra-Court Appeal was allowed accordingly.

PLD 2007 SC 323 ref.

Malik Abdul Rashid Awan for Appellant.

Agha Muhammad Ali Khan and Malik Qamar Afzal for Respondents.

Date of hearing: 17th August, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1844 #

2011 Y L R 1844

[Lahore]

Before Manzoor Ahmad Malik, J

TARIQ AZIZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1330 and Criminal Revision No.680 of 2004, heard on 22nd March, 2011.

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

----Ss.302(b) & 449---Qatl-e-amd, house trespass in order to commit offence punishable with death---Appreciation of evidence---Benefit of doubt---Delay of thirty four days in registration of the F.I.R. in the absence of a plausible explanation was fatal to prosecution case---Eye-witnesses though closely related to the complainant, had made no attempt to report the matter to the police till the submission of an application for exhumation of the dead body of the deceased by the complainant before the Sessions Court---F.I.R. had been registered in the case after the post-mortem examination of the deceased---Even in his application submitted to Sessions Court complainant did not say that the eye-witnesses had seen the incident---Occurrence had allegedly taken place in the house situated in a populated area of the city, which was at a distance of one and a half kilometers from the Police Station---Deceased had been buried on the same day---Occurrence, therefore, had not taken place in the manner being alleged by the prosecution---Motive for the occurrence had not been established by the prosecution---Lead (crime bullet) produced by the complainant to Investigating Officer was not sent to Forensic Science Laboratory---Report of the said Laboratory that the pistol recovered from the accused was in working order, was of no avail to prosecution---Accused was acquitted on benefit of doubt in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Prosecution is under an obligation to prove its case against the accused beyond any reasonable doubt and in its failure to do so the accused becomes entitled to the benefit of doubt as of right---Benefit of any element of doubt as to the guilt of accused must be extended to him---Such doubt must be reasonable and not artificial or imaginary---Golden rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law---Said rule is based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" which means that utomost care should be taken by the Court in convicting the accused.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Rule of benefit of doubt occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

N.A. Butt for Appellant.

Arshad Mehmood, Deputy Prosecutor-General for the State.

Manzoor Qadir for the Complainant.

Date of hearing: 22nd March, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1859 #

2011 Y L R 1859

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

NASIR AHMAD and others---Appellants

Versus

THE STATE and 2 others---Respondents

Criminal Appeals Nos.616, 2077, Criminal Revision No. 560 of 2005 and Murdered Reference No.56 of 2008, decided on 8th March, 2011.

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

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Benefit of doubt--- Police opinion regarding innocence of accused could not be given any weight in the absence of the evidence of those witnesses who had appeared during the investigation, on the basis of which police had formed its opinion---No importance could be attached to the findings of the police officers appearing as court witnesses in the case to the extent of innocence of the accused, especially when the complainant had already opted to file a private complaint being dissatisfied with the police investigation---Prosecution story as narrated in the F.I.R. and then in the private complaint did not appeal to reason to the extent of the alleged presence of both the eye-witnesses at the time of occurrence---Eye-witnesses were closely related to the deceased and their presence at the place of occurrence was per chance---Enmity between both the parties was admitted---Strong and independent corroboration of ocular account needed in such circumstances was lacking---No weapon of offence could be recovered from the accused and even no report of Forensic Science Laboratory was available on record regarding the 18 crime empties allegedly recovered from the spot---Medical evidence could not corroborate the ocular testimony qua the accused, because corroboration was always with regard to the story of prosecution and to the identity of each accused---Medical evidence might confirm the ocular evidence with regard to the receipt of the injury, kind of weapon used for causing the injury, duration between the injury and the death, but it could not connect the accused with the commission of the crime---Significant contradictions appeared in the ocular account and medical evidence---Prosecution story was doubtful and the accused were entitled to benefit of doubt---Accused were acquitted in circumstances.

Muhammad Iqbal v. State and others 1996 SCMR 908; Muhammad Ahmad (Mahmood Ahmed) v. The State 2010 SCMR 660; Mst. Shamim and 2 others v. The State and another 2003 SCMR 1466; Israr Ali v. The State 2007 SCMR 525; Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345 and Haji Amanullah v. Munir Ahmad and others 2010 SCMR 222 ref.

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

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Police opinion---Opinion of police about the guilt or innocence of accused based on statements of witnesses not produced before the court, is inadmissible in evidence.

Muhammad Iqbal v. State and others 1996 SCMR 908 ref.

----S.302(b)/34---Criminal Procedure Code (V of 1898), S.173---Qatl-e-amd---Police opinion---Guidelines---Determination of guilt or innocence of accused lies exclusively within the domain of the courts of law and this sovereign power of the courts can never be allowed to be exercised by the police employees or by anyone else---Tendency of allowing such like impressions of the Investigating Officer to creep into the evidence, if not curbed, would lead to disastrous consequences---If an accused can be let off or acquitted only on the basis of the opinion of Investigating Officer regarding his innocence, then why cannot on the same principle another accused be hanged to death only because the Investigating Officer has opined about his guilt.

Muhammad Ahmad (Mahmood Ahmed) v. The State 2010 SCMR 660 ref.

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

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Prosecution story---Importance---Prosecution story being the foundation on which the edifice of the prosecution case is raised occupies a pivotal position in a criminal case; it should, therefore, stand to reason and must be natural, convincing and free from any interest improbability---Not safe to believe a prosecution story which does not meet these requirements, nor prosecution case based on an improbable prosecution story can sustain conviction.

Mst. Shamim and 2 others v. The State and another 2003 SCMR 1466 ref.

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

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Medical evidence---Corroborative value---Corroboration is always with regard to the story of the prosecution and to the identity of each accused---Medical evidence may confirm the ocular evidence with regard to the receipt of the inquiry, kind of weapon used for causing the injury, duration between the injury and the death, but it cannot connect the accused with the commission of the crime.

Israr Ali v. The State 2007 SCMR 525 ref.

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

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Benefit of doubt, extension of---Principle---In case of doubt, the benefit thereof must accrue in favour of accused as a matter of right and not of grace---For giving benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused would make him entitled to the benefit of doubt not as a matter of grace and concession, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S.417---Penal Code (XLV of 1860), S.302(b)/34---Qatl-e-amd---Appeal against acquittal---Scope---Accused after his acquittal by Trial Court enjoys double presumption of innocence and very strong and convincing reasons are required to dislodge this presumption.

Haji Amanullah v. Munir Ahmad and others 2010 SCMR 222 ref.

Iftikhar Ahmad Mian for Appellant (in Criminal Appeal No.616 of 2005).

Ch. Muhammad Mustafa, Deputy Prosecutor-General for State.

Ch. Farooq Haider for the Complainant/Appellant (in Criminal Appeal No.2077 of 2005 and for the petitioner in Criminal Revision No.560 of 2005).

Date of hearing: 8th March, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1871 #

2011 Y L R 1871

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

MUHAMMAD SIDDIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1734 of 2000, heard on 8th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 346---Qatl-e-amd, attempt to commit qatl-e-amd, wrongful confinement in secret---Appreciation of evidence---Accused persons allegedly committed qatl-e-amd of the deceased complainant and her husband by locking in and torching the room they were asleep by digging a hole into the roof top of the room and throwing down kerosene oil and burning pieces of cloth through that hole---Deceased complainant had nominated the accused and his acquitted co-accused in her statement recorded in hospital and incorporated into F.I.R., but doubt remained as to the ability of the deceased to see the accused persons through hole in ceiling after they had been set on fire---Digging carried out by the accused could produce noise alarming the eye-witnesses asleep on a nearby roof---Question remained as to why eye-witness produced by the prosecution did not act promptly to break open the lock before fire burnt the deceased alive---Prosecution alleged that the accused harboured grudge against the deceased, his real brother, for a gift of land made by their father in favour of the deceased but no documentary evidence was produced regarding said gift to establish the allegation---Statement of the solitary prosecution witness was not corroborated by testimony of two other eye-witnesses which were withheld and given up by prosecution---Medical officer was not produced as witness to establish that the deceased complainant was fit for recording statement, neither the statement of the Investigating Officer revealed that he obtained the opinion of Medical Officer in this regard---Trial Court did not appreciate the evidence properly---Statements of the complainant and the eye-witness were highly dubious and contradictory---Motive attributed to the commission of offence could not be believed---Recovery of the rifle was inconsequential for the case of prosecution as no fire-arm injuries were found on the bodies of the deceased---Trial Court acquitted two co-accused charged with the same offences without distinguishing their case from that of the accused/appellant---Impugned judgment suffered from non-reading and misreading of evidence---Conviction and sentence awarded to the accused was set aside and he was acquitted of the charges---Death sentence was not confirmed, murder reference was answered in the negative.

Rao Abdul Jabbar Khan for Appellant.

Ahsan Rasool Chattah, D.P.-G. for the State.

Date of hearing: 8th April, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1879 #

2011 Y L R 1879

[Lahore]

Before Ch. Muhammad Tariq, J

BARKAT ALI and 4 others---Petitioners

Versus

MEMBER (JUDICIAL-VIII) BOARD OF REVENUE, PUNJAB and 11 others---Respondents

Writ Petition No.6700 of 2010, heard on 20th September, 2010.

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

----Ss. 10 & 24---Constitution of Pakistan, Art. 199---Constitutional petition---Allotment under Grow More Food Scheme---Petitioner's plea that after allotment in year 1959, they developed State land by spending huge amount and was continuously paying its lagan, but Board of Revenue in his absence reviewed the case and allotted land to respondent---Validity---Record showed that petitioner's allotment was terminated in year 1961 and after resumption of possession of land was leased out to University for period of ten years in year 1988---Petitioner's suit was pending adjudication and order of Civil Court dismissing his stay application had been upheld by Appellate Court---Petitioner's appeal before Collector had already been dismissed for being time-barred---Order of resumption had attained finality for not challenged by petitioner---Nothing was available on record to support petitioner's alleged continuous possession over land since year 1959---After transfer of land in favour of respondent, conveyance deed had been executed and mutation in his favour had been attested---Against petitioner, there were concurrent findings of fact of two courts below---Number of controversial questions of facts were involved in the case---High Court dismissed constitutional petition in circumstances.

Agha Abul Hassan Arif for Petitioner.

Rana Shamshad Khan, Asst.A-G. for Respondent.

Date of hearing: 20th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1881 #

2011 Y L R 1881

[Lahore]

Before Sh. Najam ul Hasan, J

AMIR HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.14387/B of 2010, decided on 18th January, 2011.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 345---Penal Code (XLV of 1860), Ss.302/148/149--- Qatl-e-amd--- Pre-arrest bail, grant of---No direct allegation was levelled against accused persons of firing at the deceased---As to who was responsible for firing which hit the deceased was not clear---Two accused persons had been declared innocent during investigation---Parties had entered into compromise---Complainant who was wife of the deceased, present in the court, had affirmed the factum of compromise between the parties---Parties having entered into compromise, accused had made out a case for pre-arrest bail---Ad interim pre-arrest bail already granted to accused stood confirmed, in circum-stances.

M. Tanvir Chaudhry for Petitioner.

Muhammad Ishaq, Deputy Prosecutor General with Muhammad Amin, Sub-Inspector for State.

Complaint in person.

YLR 2011 LAHORE HIGH COURT LAHORE 1883 #

2011 Y L R 1883

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

YARA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.42/J of 2005 and M.R. No. 711 of 2005, heard on 20th December, 2010.

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

----S.302(b)---Qalt-e-amd---Appreciation of evidence---Sentence, reduction in---No reason for false implication of accused having come on record, the delay, if any, in reporting the matter to the police was not fatal to the prosecution---One eye-witness on account of having made improvements in his statement at the trial had lost his credibility---Complainant, real brother of the deceased who had no animosity with the accused and had mentioned in the F.I.R. all the material aspects of the incident, was a natural witness of the occurrence---Complainant had also remained consistent on all material particulars of the case---Quality of evidence and not its quantity always weighed with the court and conviction could be maintained on the testimony of a single witness, if the same inspired confidence---Ocular account was supported by medical evidence and also by the proved five months' abscondence of the accused---Conviction of accused, thus, was maintained---However, accused had fired only one shot on the thigh of the deceased which was a non-vital part of his body---Two co-accused had been acquitted on the basis of same evidence, and their acquittal had not been challenged either by the State or the complainant---Motive alleged by the prosecution had remained unsubstantiated---No pre-meditation was suggested by the circumstances on the part of the accused to kill the deceased---In view of the cumulative mitigating effect of the said circumstances death sentence of the accused was converted into imprisonment for life---Appeal was disposed of accordingly.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Farooq Khan v. The State 2008 SCMR 917; Khalid Saifullah v. The State 2008 SCMR 688; Muhammad Arshad and 2 others v. The State PLD 1996 SC 122; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111 and Sharafat Ali Khan v. The State 2010 SCMR 1205 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Conviction on the testimony of a single witness---Principle---Conviction can be based on the testimony of a single witness even in a murder case if he is found reliable by the court---Emphasis lies on the quality of evidence and not on its quantity.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Farooq Khan v. The State 2008 SCMR 917 ref.

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Substitution of accused---Even the interested witnesses would not normally allow real culprits of the murder of their relatives let off by involving innocent persons---Substitution, therefore, is a phenomenon of a rare occurrence.

Khalid Saifullah v. The State 2008 SCMR 688 ref.

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

----S. 302(b)---Qatl-e-amd---Sentence---Normal penalty for commission of Qalt-e-amd provided under law, no doubt, is death, but imprisonment for life is also a legal sentence for such offence, which also must be considered wherever the facts and circumstances warrant mitigation of sentence, as no hard and fast rule can the applied in each and every case.

Sharafat Ali Khan v. The State 2010 SCMR 1205 ref.

Mirza Abdullah Baig Defence Counsel at State expense for Appellant.

Ch. Muhammad Mustafa, D.P.-G. for the State.

Date of hearing: 20th December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1896 #

2011 Y L R 1896

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD AKBAR---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 10 others---Respondents

Writ Petitions Nos. 3979 to 3986 of 2010, decided on 26th October, 2010.

Penal Code (XLV of 1860)---

----Ss.468, 471, 218 & 420---Prevention of Corruption Act (II of 1947), S. 5(2)---Constitution of Pakistan, Art.199---Constitutional petition---Criminal misconduct, forgery for purpose of cheating, using as genuine a forged document, public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture, cheating and dishonestly inducting delivery of property---Accused sought quashment of F.I.Rs. through constitutional petition contending that during pendency of inquiry before Executive District Officer, Revenue, the Anti-Corruption Establishment could not proceed with the investigation and that cases were initiated on political pressure---Validity---Mere fact that the cases were initiated from the Chief Minister and the Prime Minister Secretariat did not show that the cases were result of political pressure or mala fide---High powered committee, after thorough probe had recommended action against the accused---Anti-Corruption Establishment had the jurisdiction to take cognizance of the matter---Pendency of revision petition before the Executive District Officer, Revenue did not warrant stay of proceedings before the Anti-Corruption Establishment which was competent to investigate such cases---Constitutional petition was dismissed for being without merit.

1969 PCr.LJ 411; PLD 1972 SC 353 and 2009 MLD 25 distinguished.

2010 PCr.LJ Kar. 351; 2010 PCr.LJ 558; 2006 SCMR 276 and 1996 SCMR 186 ref.

2006 SCMR 276 and 1996 SCMR 186 fol.

2010 PCr.LJ 558 rel.

Ashtar Ausaf Ali and Ch. Faisal Hussain for Petitioner.

Mirza Shahzad Abid Baig for Respondents.

Malik Faisal Rafique, A.A.-G.

Tahir Abbas, Inspector, ACE, Jhelum.

YLR 2011 LAHORE HIGH COURT LAHORE 1909 #

2011 Y L R 1909

[Lahore]

Before Shahid Hameed Dar, J

GHULAM RASOOL---Petitioner

Versus

THE STATE and another---Respondent

Criminal Miscellaneous No.4704-B of 2010, decided on 3rd June, 2010.

Criminal Procedure (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.420/406---Cheating and dishonestly inducing delivery of property, criminal breach of trust---Pre-arrest bail, grant of---Offence of criminal breach of trust would be deemed to have been committed when some property given on trust was required to be returned to the person creating the said trust---Complainant had not alleged that he had given any documents of the motorcycle or the motorcycle itself to the accused to be kept by him by way of trust and the same were bound to be returned to him by accused---Unless such condition was fulfilled S.406, P.P.C. could not be attracted---Complainant had not produced any evidence with regard to transfer of ownership of the motorcycle by the accused to the co-accused during investigation---Complainant appeared to be aggrieved by the alleged misappropriation of his wages of Rs.55,000 by the accused, as mentioned in the later part of the F.I.R.---Implication of accused in the case due to malice or ulterior motives of the complainant could not be ruled out---Accused, prima facie, could not be said to have committed any non-bailable offence--Pre-arrest bail was granted to accused in circumstances.

2006 PCr.LJ Lah. 1900 and 2008 MLD (Lahore) 331 ref.

Ch. Abdul Rasheed for Petitioner.

Sahibzada M.A. Amin Mian, Addl. P.G. for Respondent.

Zahoor Ali, A.S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 1917 #

2011 Y L R 1917

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SIDDIQUE and 3 others---Petitioners

Versus

AHMAD ALI KHAN and 14 others---Respondents

Civil Revision No.289 of 2005, heard on 30th September, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Evidence produced by defendant could not be rebutted by the plaintiffs---Appellate Court rightly dismissed petitioners'/plaintiffs' application for additional evidence which was filed by delay of 23 years---Plaintiffs failed to point out any illegality in the impugned judgments---No interference in concurrent findings of courts below was called for---Revision was dismissed in circumstances.

Muhammad Javed Iqbal Qureshi for Appellant.

Mian Asrarul Haq for Respondent No.10.

Date of hearing: 30th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1924 #

2011 Y L R 1924

[Lahore]

Before Shahid Hameed Dar, J

SABIR HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.7042/B of 2010, decided on 8th July, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/34/109---Qatl-e-amd, abetment---Bail, grant of---No direct or indirect evidence to connect the accused with the commission of the offence had been collected during investigation---Wife of the deceased had disowned her statement made before the Investigating Officer under S.161, Cr.P.C. which even otherwise did not incriminate the accused for having hatched up a conspiracy for the murder of both the deceased, as no date, time and place of the same had been mentioned by her---Even the names of the persons allegedly marshalled by the accused to do away with the deceased had not been disclosed in the said statement---Wife of the deceased while appearing in person in High Court had also submitted her sworn affidavit to the effect that she had neither joined the investigation nor had made any statement before the Investigating Officer against the accused---Further probe into the guilt of accused as required under S.497(2), Cr.P.C. was indispensable---Bail was allowed to accused in circumstances.

Ch. Muhammad Din Ansari for Petitioner.

Khurram Khan, D.P.-G. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 1926 #

2011 Y L R 1926

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ISHAQUE---Petitioner

Versus

RASHID AHMAD and others---Respondents

Civil Revision No.2889 of 2000, heard on 21st July, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff contended that defendants were occupying portion of his house illegally---Validity---Properties in question were two different properties owned by different evacuee owners---Settlement department failed to produce site plan or any document showing that the properties in possession of parties were different from each other by measurement and boundaries---Courts below failed to appreciate that the Settlement Department was necessary party to the suit for resolving the controversy as to identification of two properties---Case was remanded to Trial Court with direction to implead the Settlement Department as party to the suit---Judgments of both the courts below were set aside.

Amir Muhammad Joya Malik for Appellant.

Ex parte for Respondents.

Date of hearing: 21st July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1933 #

2011 Y L R 1933

[Lahore]

Before Shahid Hameed Dar, J

ARSHAD ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 8386/B of 2010, decided on 18th August, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.334/337-V---Itlaf-i-Udw, Arsh for hair---Bail, grant of---Occurrence had taken place on a dispute of turn of water---Medico-legal report had not supported the version of the complainant---Trial court was yet to determine if uprooting of the tooth of the complainant had been caused because of violence of accused on him or by poor hygienic condition---Uprooting of a tooth could not be considered as "Itlaf-I-Udw", as a single tooth did not form a complete organ of the human anatomy---Prosecution itself seemed to be perplexed about the application of S.337-U, P.P.C. or S.336, P.P.C. in the case---Charge with which the accused was confronted did not fall within the prohibition contained in S.497(1), Cr.P.C.---Accused was enlarged on bail in circumstances.

Zahoor Ahmad and another v. The State 2005 YLR 1664 ref.

Azmat Ali Chohan for Petitioner.

M.A. Ghaffar-ul-Haq for Respondent No.2.

Khurram Khan, D.P.-G. and Abdul Hameed A.S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 1938 #

2011 Y L R 1938

[Lahore]

Before Nasir Saeed Sheikh, J

MUHAMMAD SALEEM---Petitioner

Versus

MUHAMMAD NASIR and another---Respondents

Civil Revision No.1890 of 2003, heard on 2nd September, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff contended that sale deed in favour of defendants was fake and fraudulent---Validity---Once the execution of sale deed was established by the defendants, plaintiff's contention that the sale deed was without consideration was not sustainable especially when defendant's averment regarding payment of consideration was not questioned by the plaintiff in cross-examination---Courts below had recorded concurrent findings of facts against the plaintiff---Marginal witnesses, scribe and the Tehsildar had appeared to prove the execution of registered sale deed---Plaintiff could not shake the evidence of witnesses and could not point out misreading of evidence by courts below---Revision was dismissed accordingly.

Muhammad Rasheed Khan v. Mst. Mehr-un-Nisa 2009 SCMR 740 ref.

Naushad Khan v. Punjab Cooperatives Board for Liquidation 2009 YLR 2154 distinguished.

Kh. Saeed-uz-Zafar for Petitioner.

Kamil Hussain Naqvi for Respondents.

Date of hearing: 2nd September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1941 #

2011 Y L R 1941

[Lahore]

Before Muhammad Anwaarul Haq, J

GHULAM RASOOL---Petitioner

Versus

FAISAL and another---Respondents

Criminal Miscellaneous Nos.13664-BC and 13666-BC of 2010, decided on 11th March, 2011.

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

----S.497(5)---Penal Code (XLV of 1860), Ss. 324/337-F(iii)/ 337-L(2)/ 337-A(i)/ 337-H(2)/34---Attempt to commit Qatl-e-amd etc.---Cancellation of bail, refusal of---Injury allegedly caused by the accused with the butt of his rifle on the head of the witness was not substantiated by medical evidence---All the accused were alleged to have fired at the other victim on his right leg and it was yet to be determined as to whose fire had hit him---Four accused were not found to have made firing in police investigation---Application of S.324, P.P.C. in the peculiar circumstances of the case could only be determined after recording same evidence---Case against accused, thus, needed further inquiry---Very strong and exceptional grounds were required for cancellation of bail granted to accused by a competent court, which were not available in the case---Bail could not be cancelled when the case was at trial stage, except in extraordinary circum-stances in order to avoid causing prejudice to any party---Accused had not misused the concession of bail---Petitions for cancellation of bail were dismissed in circumstances.

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

----S. 497(5)---Cancellation of bail---Principles--- Considerations for cancellation of bail are different from considerations for grant of bail---Bail can be cancelled if the order granting bail is perverse on the face of it and has been passed in violation of the principles for grant of bail or the same is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; The State/Anti-Narcotic through Director General v. Rafiq Ahmad Channa 2010 SCMR 580; State v. Khalid Sharif 2006 SCMR 1265 and Ehsan Akbar v. State 2007 SCMR 482 ref.

----S.497(5)---Penal Code (XLV of 1860), S.324---Attempt to commit Qatl-e-amd---Cancellation of bail---Principle---When the case is at trial stage, bail cannot be cancelled except in extra-ordinary circumstances, so that it may not cause any prejudice to any party.

1998 SCMR 1691; 1988 SCMR 1129 and PLD 1989 SC 585 ref.

Ch. Shahid Tabassum for Petitioner.

Tasawar Ali Khan, D.P.-G. for the State with Adnan Shahzad S.-I.

Mrs. Khalida Parveen for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1946 #

2011 Y L R 1946

[Lahore]

Before Muhammad Qasim Khan and Mazhar Iqbal Sidhu, JJ

UMMER MUSHTAQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.33, 40-J and 57 of 2009/BWP and M.R. No.33 of 2009, heard on 8th March, 2011.

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

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Occurrence had taken place at the night time and F.I.R. was lodged against unknown persons---Motive introduced in the case, did not appeal to reason, because record was silent about the same---According to prosecution's own case, it was a blind occurrence and prosecution witnesses did not help the prosecution---Evidence of last seen was also disbelieved---Evidence of extra judicial confession lacked its intrinsic value and its essential ingredients for constituting confession---Prosecution witnesses in their statements had not described as to how, when and by which means, both deceased were done to death by accused persons---Statements of prosecution witnesses were worthless in the case being joint one and even if it could be said that one after the other accused made their respective statements during same sitting in presence of co-accused as to the commission of murder of deceased persons, those were also inadmissible in evidence---No spent crime empty was taken into possession from the spot---Crime weapons and crime empties, were sent to office of the Forensic Science laboratory for analysis, but parcels in those respect were dispatched at a belated stage in the office of Laboratory---Report of Forensic Science Laboratory in circumstances was not liable to be believed---Recovery of gold chain was also inconsequential---Prosecution, in circumstances, had failed to prove case against accused persons---Conviction and sentence were set aside and accused were set at liberty, in circumstances.

The State v. Kamal Khan alias Maloo and another 1993 SCMR 1378; Muhammad Amjad and 2 others v. The State 2001 PCr.LJ 1877; Shirimati Seetab v. The State 1988 PCr.LJ 939 and Muhammad Shafique alias Chheela and another v. The State 1998 MLD 299 ref.

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

----S. 302/34---Qatl-e-amd--- Appreciation of evidence---Last seen evidence---Pre-requisites for believing last seen evidence were proximity of time and nearness of the place of occurrence; it was required that deceased should be seen in the company of accused by the prosecution witnesses some short time before happening of the incident; and the place of murder could not be far away from the place of lastly seen by the prosecution witnesses to the deceased in the company of accused.

----Art. 30---Criminal Procedure Code (V of 1898), S.164---Confession---Meaning---Confession would mean volunteer admission by a culprit before a reasonable person by detailing happening of incident including its motive---Same statement would constitute application of penal section and same could coincide with the facts and circumstances of the prosecution case.

Ch. Abdul Ghaffar Bhuttoo for Appellants.

Aslam Javaid Minhas for the Complainant.

Muhammad Ali Shahab, D.P.-G. for the State.

Fayyaz Hameed Rafi for Appellant (in Criminal Appeal No. 57 of 2009).

Date of hearing: 8th March, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1956 #

2011 Y L R 1956

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD SAEED---Petitioner

Versus

Mst. FAUZIA SHAUKAT and 4 others---Respondents

Writ Petition No.18535 of 2010, heard on 1st December, 2010.

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

----S. 5, Sched. & S.17-A---Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for maintenance of minors--Trial Court struck off defence of defendant on failure to pay the interim maintenance to minors---Appellate Court dismissed defendant's appeal holding that the order awarding interim maintenance was an 'interim order'---Validity---Impugned order was final judgment with regard to grant of maintenance to minors--Appellate Court misconstrued that the said order was an 'interim order'---Constitutional petition was accepted and case was remanded to Appellate Court for decision on merits.

Zafar Hussain v. Begum Farzana Nazli and others PLD 2004 Lah. 349 ref.

Rana Zia Abdul Rahman for Petitioner.

Ch. Muhammad Ishaque Khokhar for Respondents.

Date of hearing: 1st December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1958 #

2011 Y L R 1958

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD AFZAL---Petitioner

Versus

GULAB DEVI CHEST HOSPITAL, LAHORE through Medical Superintendent---Respondent

Writ Petition No.16400 of 2010, decided on 26th July, 2010.

Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 19 & 22---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment application---Application for leave to contest---Tenant appeared and case was adjourned for permission to contest application, but since no copy of ejectment application was served upon the tenant to enable him to file application to contest the suit he could not file the application---Neither tenant nor his counsel appeared on the adjourned date despite his attendance was marked by the Reader of the court---Action was taken against the tenant under S. 22(2) of Punjab Rented Premises Ordinance, 2007---Contention of counsel for the tenant was that tenant had not been provided copy of eviction petition, along with summons, so that tenant could have filed application for leave to contest, was not warranted under the law, as such ground was never agitated before the Appellate Court---Tenant could not be allowed to raise a new ground---Judgments passed by both the courts below were in accordance with law and no illegality was in that---Constitutional petition was dismissed.

Muhammad Arfan Afzal for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 1962 #

2011 Y L R 1962

[Lahore]

Before Mazhar Iqbal Sidhu, J

MOSHEER AHMAD and others---Applicants

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.302-B of 2011/BWP, decided on 8th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii)/148/149---Causing Shajjab-i-Hashimah---Pre-arrest bail, confirmation of---F.I.R. in the case was lodged with a delay of more than 1-1/2 months and no explanation had been given by the prosecution for such delay---Accused persons had not been attributed any specific injury in the F.I.R.---Re-medical examination of the victim was ordered and Medical Board time and again summoned him, but he did not appear---Co-accused whom injury on the head with sota had been attributed, had been found innocent---Accused persons had not used any weapon during the occurrence; and nothing was required to be recovered from them---Element of mala fide smacked from the facts and circumstances of the case on part of the complainant to involve accused persons---Investigation in the case was complete---Pre-arrest bail already granted to accused, was confirmed, in circumstances.

2000 YLR 1341 ref.

Muhammad Aslam Khan Dhukkar for Petitioners.

Khalid Pervaiz Uppal, D.P.-G. with Munawwar Hussain S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 1963 #

2011 Y L R 1963

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD AMIN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 5 others---Respondents

Writ Petition No.3470 of 2011, decided on 20th April, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199--- Constitutional petition---Jurisdiction of Ex-officio Justice of Peace---Scope and extent---Ex-officio Justice of Peace, after calling comments from S.H.O. Police Station concerned, dismissed application for registration of criminal case under Ss.22-A, 22-B, Cr.P.C.---Validity---Under S.22-A(6), Cr.P.C., the only jurisdiction which could be exercised by the Ex-officio Justice of Peace was to examine whether the information disclosed by applicant did or did not constitute a cognizable offence; and if did, then to direct concerned S.H.O. to record the F.I.R. without going into the veracity of the information in question---Construction of the petitioner in the present case, had been demolished by the Railway Officials---Stand of Railway was that they had done so in discharge of their official duties and that the petitioner was in illegal possession of land owned by Pakistan Railways, he was issued repeated notices and the possession was taken over by Railway Officials with the help of Police and a criminal case was also registered against the petitioner in Railway Police Station---Ex-officio Justice of Peace, in circumstances, had rightly dismissed the application of the petitioner and impugned order did not suffer from any illegality or jurisdictional defect, warranting interference by High Court in constitutional petition---No case having been made out for setting aside the impugned order, petition was dismissed.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 ref.

Muhammad Iqbal Ghani for Petitioner.

Umar Sharif for Respondents.

Jawad Hassan, Additional Advocate-General, Punjab.

YLR 2011 LAHORE HIGH COURT LAHORE 1972 #

2011 Y L R 1972

[Lahore]

Before Nasir Saeed Sheikh, J

MUHAMMAD YOUSAF---Petitioner

Versus

RAZA MUHAMMAD and another---Respondents

Civil Revision No.1926 of 2003, decided on 23rd November, 2010.

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

----S. 13---Suit for pre-emption---Talb---Proof---Where defendant denied receiving notice of Talb-e-Ishhad, plaintiff had to prove its service by producing the postman---Plaintiff failed to produce the postman to prove service of notice---Suit was dismissed.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 fol.

Zahid Hussain Khan for Petitioner.

Malik Mukhtar Ahmad for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 1977 #

2011 Y L R 1977

[Lahore]

Before Manzoor Ahmad Malik and Rauf Ahmad Sheikh, JJ

MUHAMMAD FAROOQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1891 of 2005, and Murder Reference No.75 of 2006, heard on 1st March, 2011.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Accused was alleged to have murdered the deceased with "Bugda" (Chopper)---Trial Court convicted the accused under section 302(b) P.P.C. and sentenced him to death---Validity---Evidence of two prosecution witnesses who had no enmity with accused and no reason for false implication of accused had come on record---Ocular account was fully supported by medical evidence but there were strong mitigating circumstances in favour of accused---Specific motive was set up in F.I.R. i.e. a quarrel but while appearing in court, the same was changed to the effect that they had dispute over pigeons---Though accused was armed with "Bugda" which was recovered but it was not stained with blood and there was no report of chemical examiner and serologist on record---Specific suggestions were given to prosecution witnesses regarding character of deceased for his involvement in certain criminal cases which were registered against him---Copies of F.I.R.s were on the file to prove involvement of deceased in criminal cases but there was no proof of his being convicted in any case---Capital punishment to accused was not attracted in circumstances and High Court while maintaining the conviction awarded to accused, converted the sentence from death to imprisonment for life---Appeal was allowed accordingly.

Ch. Waqar Ahmad Kamboh for Appellant.

Ch. Muhammad Mustafa, D.P.-G. for the State.

Rana Muhammad Umar Hussain for the Complainant.

Date of hearing: 1st March, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 1982 #

2011 Y L R 1982

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD WAQAS RAFI BHATTI---Petitioner

Versus

Mst. NASEEM RAHAT and another---Respondents

Civil Revision No.1596 of 2009, decided on 9th July, 2010.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.1(3) O.II, R.2, C.P.C. & S.11---Specific Relief Act (I of 1877), S.12---Contract Act (IX of 1872), S.55---Suit for specific performance of agreement to sell---Time whether essence of the contract---Remaining amount of consideration was to be paid within the stipulated date, so time was essence of the contract---Both the courts below recorded concurrent findings in favour of defendant---Concurrent findings of courts below could be set at naught by the High Court in its revisional jurisdiction where such findings were result of misreading or non-reading of evidence and any other material available on the record or erroneous assumption of facts, patent errors of law, excess or abuse of jurisdiction, arbitrary exercise of power or where unreasonable view had been taken---Plaintiff could not arrange the remaining consideration and perform his part of the contract---Both the courts below properly appraised the evidence---Plaintiff had withdrawn earlier suit for permanent injunction after filing present suit for specific performance which was not barred by O.XXIII, R.1(3), C.P.C. or O.II, R.2, C.P.C.---Principle of res judicata was not applicable in circumstances---Revision was dismissed.

Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Shaukat Ali and 3 others v. Javeed Qureshi and 5 others 2007 CLC 1578; Basheer Ahmad v. Fazal Din 2006 CLC 694; Shaukat Ali alias Shaukat Hayat and another v. Muhammad Hanif and others 2004 MLD 1868; Muhammad Sharif Dhariwal and another v. Mst. Sofia Begum and 9 others 1993 MLD 1118; Sarfraz Haider and another v. Mst. Khatija Bai and 4 others 1990 CLC 1649; Ali Muhammad v. Shah Muhammad and others PLD 1987 Lah. 607; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Ahmad Bakhsh v. Mst. Zeb Ilahi PLD 1981 B.J. 60 and Younus Billoo v. Mst. Piyari Begum 2007 YLR 992 ref.

Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 and Asmatullah v. Amanat Ullah through Legal Representatives PLD 2008 SC 155 fol.

2002 CLC 694 rel.

Ms. Saadia Malik for Petitioner.

Kh. Abdul Sattar Kashir for Respondent No.1.

Muhammad Sharif Chohan for Respondent No.2.

Date of hearing: 25th June, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 1990 #

2011 Y L R 1990

[Lahore]

Before Mamoon Rashid Sheikh and Rauf Ahmad Sheikh, JJ

ARSHAD MEHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.254 of 2007, Murder Reference No.683 of 2006 and Criminal Revision No.26 of 2009, heard on 10th January, 2011.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-Amd---Appreciation of evidence---Complainant neither in the F.I.R. nor in the witness box had stated that the accused had entered the room of occurrence---Other eye-witness by making dishonest improvement in this regard had made his statement doubtful---Possibility of misidentification of accused in the darkness of the night outside the room where no source of light was stated or proved, could not be ruled out---Both the site plans were at variance regarding the place of firing made by the accused---Prosecution version that the deceased was killed inside the room was doubtful---Prosecution witnesses appeared to have reached the hospital after receiving the information in the village about the murder of the deceased, whereafter the whole proceedings had been recorded---None of the eye-witnesses had identified the dead body at the time of postmortem examination---Recovery of pistol at the instance of accused was also doubtful---Submission of application by the complainant, one of the heirs of the deceased, to compound the offence did not prove the guilt of accused, as he had not moved any such application and the prosecution evidence did not inspire confidence---Trial Court had failed to appraise evidence on record in its true perspective---Accused was acquitted in circumstances.

Umar Hayat and 3 others v. The State 1997 SCMR 1076; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Muhammad Riaz v. The State 2009 PCr.LJ 1022; Muhammad Hussain v. The State 2008 SCMR 345; Faisal Mehmood and another v. The State and another 2010 SCMR 1025; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676; Muhammad Akbar and another v. The State PLD 2004 SC 44 and Munir Ahmed v. The State 2001 SCMR 241 ref.

Muhammad Siddique v. The State PLD 2002 Lah. 444 distinguished.

Muhammad Nadeem Kiyani for Appellant.

Muhammad Waheed Khan, D.P.-G. for the State.

Muhammad Asif Chaudhry for the Complainant.

Date of hearing: 10th January, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2003 #

2011 Y L R 2003

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD RIAZ and 12 others---Petitioners

Versus

MUHAMMAD SHARIF---Respondent

Civil Revision No.47 of 2009, heard on 24th December, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Witnesses of agreements remained consistent and unshaken during their cross-examination---Appellate Court rightly found that the agreements to sell were validly executed and proved in evidence---Property, at the time of execution of the agreement, stood in the name of the predecessor-in-interest of the defendants who admittedly had passed away--Property, upon the death of the said predecessor-in-interest, automatically stood devolved on to the legal heirs/defendants who had become owners and were entitled in law to enter into an agreement to sell in favour of plaintiffs---Mutation of inheritance merely recorded a pre-existing fact and absence of the same did not denude the agree-ments of their validity---Inadequacy of consideration did not affect the validity of agreement to sell which stood proved in evidence---Findings of Appellate Court were based on proper appraisal of evidence and did not call for interference--Revision was dismissed accordingly.

Mobeen Ahmad for petitioner.

Respondent in person.

Date of hearing: 24th December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2005 #

2011 Y L R 2005

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Mst. SHARIFAN BIBI---Petitioner

Versus

STATION HOUSE OFFICER, JHANG and others---Respondents

Writ Petition No.12400/Q of 2010, decided on 9th June, 2010.

Penal Code (XLV of 1860)---

----S. 327---Constitution of Pakistan, Art.199---Punishment for being a "thug"--Constitutional petition---Quashing of F.I.R.---Parameters for quashing a criminal case in exercise of constitutional jurisdiction are: When the case is of no evidence; when the very registration of the case is proved to be mala fide on the face of record; when the case is of purely civil nature, criminal proceedings are not warranted in law, especially to harass the accused; when there is serious jurisdictional defect; and when there is exceptional delay in the disposal of the case causing deplorable mental, physical and financial torture to the person proceeded against---No ground falling within the realm of the aforesaid parameters had been substantiated on behalf of the accused petitioner---Offence as narrated in the F.I.R. could not be said to have not been made out---Prosecution of a case could not be quashed at the initial stage---Trial Court had to decide the guilt or innocence of the accused after sifting and evaluating the prosecution evidence---Contentions raised on behalf of accused had no force---Constitutional petition was dismissed in limine in circumstances.

Ch. Pervez Ellahi v. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 1995 MLD 615 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Shahid Nawaz Langrial for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2008 #

2011 Y L R 2008

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Kh. RIAZ alias KAKA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.425 of 2004, heard on 10th June, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337(i) & 34---Qatl-e-amd, attempt to commit qatl-e-amd, Shajjah, acts done by several persons in furtherance of common intention---Appreciation of evidence---Unexplained delay of 3-1/2 hours in lodging the F.I.R. was fatal to the prosecution case---Complainant's assertion that he took the deceased to hospital was belied by the doctor who testified that the deceased was shifted to hospital by his friends---Medico-legal Report revealed that the injured witness sustained injuries on 17-7-2002 at 2.30 p.m. while the occurrence as alleged in the F.I.R. had taken place on 18-7-2002 at 9.00 p.m.; therefore, the statement of the injured witness was liable to be discarded---Story of the prosecution was falsified by medical evidence---Both prosecution witnesses having failed to establish their presence at the relevant time with reasonable explanation, their statements were discarded---Recovery of blood-stained dagger after fourteen days could not be believed---Occurrence allegedly took place at night yet no source of light was mentioned either in the F.I.R. or in the rough site plan especially when the prosecution witnesses were at a fair distance from the scene---Trial Court did not believe the motive attributed to the accused in the F.I.R.---Prosecution having failed to prove its case, sentence awarded by the Trial Court was set aside and appeal was accepted in toto.

Mehmood Ahmed and 2 others v. State 1995 SCMR 127 fol.

Shahid Qayyum Ch. for Appellant.

Ishaq Masih Naz Addl. Prosecutor General for the State.

Date of hearing: 10th June, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2014 #

2011 Y L R 2014

[Lahore]

Before Ch. Muhammad Tariq, J

GHULAM HAIDER and 2 others---Petitioners

Versus

KHADIM HUSSAIN and 30 others---Respondents

Writ Petitions Nos. 15446 of 2004, and 9173 of 1995 heard on 16th July, 2010.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 3---Constitution of Pakistan (1973), Art.199--- Constitutional petition-Petitioners had raised the question of entitlement of various Killa numbers of their land---Such question could not be considered in constitutional jurisdiction of High Court---Exclusive jurisdiction in that behalf vested in the revenue authority---Constitutional petition was dismissed.

1970 SCMR 229; PLD 1974 SC 139 and 1997 SCMR 1611 rel.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 3---West Pakistan Land Revenue Act (XVII of 1967), S.4(17)(23)---Report of patwari unless verified by a revenue officer had no sanctity in the eye of law because the Patwari was a mere village officer who was custodian of Revenue Record and whose duty was to keep the Revenue Record up-to-date subject to affirmation of revenue officer---Simple report of Patwari which even did not show that it was prepared on whose direction, could not be considered.

Syed Kalim Ahmad Khurshid for Appellant.

Ch. Aamar Rehman for Respondent.

Date of hearing: 16th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2020 #

2011 Y L R 2020

[Lahore]

Before Ch. Muhammad Tariq, J

RASHEED MASIH and 2 others---Petitioners

Versus

PROVINCE OF PUNJAB through Deputy Commissioner/Collector Sialkot and 14 others---Respondents

Civil Revision No.2622 of 2010, decided on 20th July, 2010.

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

----S. 42---Plaintiffs filed suit for declaration along with permanent injunction on the ground that they were in possession of disputed property since three generations---Defendants contested suit and asserted that the disputed property belonged to the christian community but the plaintiffs wanted to usurp the same under the garb of present suit---Trial Court dismissed suit of the plaintiffs---Appellate Court upheld the judgment and decree of the Trial Court---Validity---Contention of the plaintiffs that disputed land was situated in Abadi Deh and no record was maintained in respect of Abadi Deh was misconceived because the relevant record viz., Aks Abadi and Shajra Abadi remained available with the circle Patwari as well as in the office of Sadar Qanungo---Both courts below had confirmed that the plaintiffs were out of possession and the disputed land belonged to the christian community---Plaintiffs had failed to point out any illegality, infirmity or jurisdictional error in the impugned judgments and decrees---Revision petition was dismissed by High Court in limine.

(b) Conferment of Proprietary Rights to the Non-Proprietors in Abadi Deh Act (I of 1995)---

----S. 3---Specific Relief Act (I of 1877), S.42---Suit for declaration---Contention of the plaintiffs that they be declared as owners in possession of the disputed property under the provisions of S.3 of Conferment of Proprietary Rights to the Non-Proprietors in Abadi Deh Act, 1995 was not applicable to their case because such plea was not raised by them in their plaint and no evidence was available on record that the plaintiffs were landless tenants who had been occupying the disputed land before 1995---Record showed that both the courts below had examined the grievance of the plaintiffs in the light of oral as well as documentary evidence adduced by the parties and had decided against the plaintiffs---No illegality, infirmity or jurisdictional error in the impugned judgment and decree having been pointed out, interference was declined by High Court.

Ch. Muhammad Ayub for Petitioners.

YLR 2011 LAHORE HIGH COURT LAHORE 2023 #

2011 Y L R 2023

[Lahore]

Before Ch. Iftikhar Hussain and Sayyed Mazahar Ali Akbar Naqvi, JJ

SHER ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Appeal No.11 of 2011, decided on 12th January, 2011.

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

----Ss. 9(c), 33, 39 & 48---Criminal Procedure Code (V of 1898), S.369---Possessing and trafficking narcotics---Confiscation of motorcycle---Application for seeking superdari of motorcycle---Dismissal of application holding that judgment qua confiscation could not be reviewed due to bar under S.369, Cr.P.C.---Validity---Section 369, Cr.P.C. had precluded court of criminal jurisdiction to alter its judgment after it had been written, signed and pronounced, except to correct a clerical error and even it also would apply to the judgments rendered by High Court in exercise of criminal original jurisdiction---In absence of any infirmity in the impugned order passed by the Trial Court, appeal against said order was devoid of legal justification and was dismissed.

Abdul Salam v. The State 2003 SCMR 246; Askari Leasing Limited through Branch Manager v. The State 2007 PCr.LJ 755; Khayal Muhammad v. The State 2010 PCr.LJ 1145; Khan Muhammad Khan v. The State 2004 PCr.LJ 746; Aamir Khalil v. Government of Pakistan through Director General A.N.F., Rawalpindi and 5 others PLD 2004 Pesh. 251; Shermast Khan, Advocate and another v. The State 1990 PCr.LJ 1959; Moulvi Sher Muhammad v. The State 1992 MLD 307 and Juan Sullivan v. The State 1971 SCMR 618 ref.

Ghulam Hussain Malik for Appellant.

YLR 2011 LAHORE HIGH COURT LAHORE 2033 #

2011 Y L R 2033

[Lahore]

Before Ch. Muhammad Tariq, J

JAVED AKHTAR and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.486 and Criminal Revision No.326 of 2006, decided on 22nd December, 2010.

Penal Code (XLV of 1860)---

----Ss.302(b), 324, 337-F(iii), 337-F(i) & 337-L(2)---Qatl-e-amd, attempt to commit Qatl-e-amd---Appreciation of evidence---Occurrence had taken place in broad day-light---Accused were nominated in the F.I.R. with a specific role---Son of the complainant had been killed and grandson of the complainant had been injured by firing of the accused---Ocular testimony furnished by the complainant and the injured witness had remained unshattered despite lengthy cross-examination and prosecution story was not damaged---Specific plea of substitution taken by accused had not been substantiated by them on record, which itself had negated the defence version---Failure to prove motive was not fatal to prosecution---F.I.R. had been recorded without any delay---Despite the admission by accused to have fired at the place of occurrence, Investigating Officer had neither recovered the crime empties from the spot, nor sent the recovered weapon of offence to Forensic Science Laboratory for report, which clearly showed his dishonesty---In view of such conduct and mode of investigation, declaration of accused as innocent by the police was not surprising---Site plan being not a substantive piece of evidence and the Draftsman being not an eye-witness, difference between the distance as contained in the F.I.R. and the plan was not fatal to prosecution case---Impugned judgment was well reasoned and was in accordance with law and facts of the case---Conviction and sentences of accused were maintained in circumstances.

Musa v. The State 2008 SCMR 997; Nazir Ahmed v. The State 2009 SCMR 523; Abdul Hameed v. The State 2007 SCMR 830; 2008 SCMR 1228 and Yara v. The State 2005 SCMR 829 ref.

Ch. Mumtaz Ahmad Balwana for Appellants.

Raja Akhtar Nawaz for the Complainant.

Noor Ahmed Bhatti, District Public Prosecutor for the State.

Date of hearing: 22nd December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2050 #

2011 Y L R 2050

[Lahore]

Before Tariq Javaid, J

Mst. ZARINA MAI---Petitioner

Versus

JUSTICE OF PEACE KABIRWALA, DISTRICT KHANEWAL and 5 others---Respondents

Writ Petition No. 8452 of 2009 and C.M. No. 1982 of 2010, decided on 18th June, 2010.

Criminal Procedure Code (V of 1898)---

----S.195(1)(c)---Civil and criminal proceedings, could continue simultaneously; however, an exception to that general rule had been created by S.195(1)(c), Cr.P.C.

Abdul Wahab Khan v. Muhammad Nawab and 7 others 2000 SCMR 1904; PLD 1976 Pesh. 64; AIR 1940 Lah. 242 (DB); AIR 1928 Lah. 759; Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others PLD 1992 Lahore 178; Riaz ul Haq v. Muhammad Ashiq Jorah 2000 SCMR 991; Rafique Bibi v. Muhammad Sharif 2006 SCMR 512; Haji Sardar Khalid Saleem v. Muhammad Ashraf 2006 SCMR 1192; Amin Ahmad Khan v. The State 1987 MLD 1494 and Bashir Ahmad v. State 1999 YLR 2386 ref.

Ch. Saghir Ahmad for Applicant.

Khawaja Qaiser Butt for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2058 #

2011 Y L R 2058

[Lahore]

Before Sh. Najam-ul-Hasan, J

MUHAMMAD AYUB---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, HAFIZABAD and 5 others---Respondents

Criminal Revision No.108 of 2011, heard on 4th March, 2011.

Criminal Procedure Code (V of 1898)---

----Ss.540, 265-A, 493 & 439---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Accused had been primarily acquitted by Trial Court under S.265-K, Cr.P.C.---On appeal by the complainant High Court had remanded the case to the Trial Court with the direction to proceed from the next witness who were yet to be examined including the Investigating Officer---On the application of complainant filed under S.540, Cr.P.C. Trial Court had summoned even those witnesses as prosecution witnesses, who had been given up by the prosecution---Validity---Trial Court had passed contradictory orders and did not appear to have even read the record properly while passing the impugned order---Even otherwise, the application under S.540, Cr.P.C. was not duly forwarded by the prosecutor---Under S.265-A, Cr.P.C. prosecution had to be conducted by the Public Prosecutor in every trial before the Sessions Court initiated on a police report---Under S.493, Cr.P.C. Public Prosecutor would conduct prosecution and any pleader so instructed would act under his directions---Application on which the witnesses had been summoned by the Trial Court, had not been filed by a proper person---Impugned order was consequently set aside with the direction that if any application under S.540, Cr.P.C. would be filed by a proper person, the same would be decided by Trial Court strictly on merits keeping in view the whole record---Revision petition was accepted accordingly.

Rai Zameer-ul-Hassan for Petitioner.

Muhammad Akhlaq, Deputy Prosecutor-General.

Malik Muhammad Tahir Phularwan, for the Complainant.

Date of hearing: 4th March, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2062 #

2011 Y L R 2062

[Lahore]

Before Tariq Javaid, J

SALMAN ILYAS---Petitioner

Versus

VICE-CHANCELLOR, BZU and others---Respondents

Writ Petition No.2480 of 2008, decided on 20th April, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner challenged cancellation of his admission to M.B.A. on account of his being overage---Validity---Petitioner had already passed his first semester before his admission was cancelled---Denial of re-admission to petitioner could put his future prospects at stake---Vacancy resulting from cancellation of petitioner's admission would cause loss of public money---No fraud or misrepresentation had been alleged against the petitioner who mentioned his correct date of birth on the application Form---If petitioner had been found ineligible, his application should have been rejected at initial stage allowing him opportunity to apply for admission to some other course or degree---Negligence was committed by the University Staff in scrutinizing the application of petitioner---Constitutional petition was allowed with direction to the University to allow the petitioner to rejoin his studies in M.B.A. programme.

Chairman, Selection Committee/ Principal, Kind Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 fol.

Muhammad Rafiq and and another v. Director In-service Agriculture Training Institute and another 2007 CLC 1492 rel.

Mian Muhammad Afzal v. Province of the Punjab and others 2004 SCMR 1570 ref.

Muhammad Arshad v. Bahauddin Zakariya University, Multan through Vice Chancellor and 3 others 1999 YLR 968 and and Syeda Saba Batool v. Bahauddin Zakaria University through Vice Chairman and 2 others 2009 YLR 1406 distinguished.

Nemo for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2069 #

2011 Y L R 2069

[Lahore]

Before Sardar Tariq Masood, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.109 of 2011, decided on 18th February, 2011.

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

----Ss.540---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Examination of material witness---Medical Officer while conducting post mortem examination of the deceased had stated the wrong date as 25-5-2010 instead of 26-5-2010 on the report---Said Doctor was examined as a prosecution witness at the trial and he was cross-examined by the Defence Counsel---Thereafter counsel for complainant submitted an application under S.540, Cr.P.C. for re-examination of the Doctor as according to the hospital record the post-mortem examination was conducted on 26-5-2010---Said application had been allowed by the Trial Court, vide impugned order---Section 540, Cr.P.C. had not only authorized the court but had made its bounden duty to call or re-examine as a witness a person whose evidence appeared to it to be essential for just decision of the case---Trial Court could not be expected to hold criminal trials like dummies---Action of Judicial Officers with regard to the trial should be actuated by no other motive but a desire to do just decision between the parties and while doing so, the justice should not only be done but it should be seen to be done---Trial Court while going through the whole record had rightly allowed the complainant to re-examine the Doctor---Accused would avail full opportunity to cross-examine the said witness and no prejudice would be caused to him, because the Doctor would be re-examined according to the record of the hospital---Impugned order did not suffer from any illegality or infirmity---Revision petition was dismissed in limine accordingly.

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

----S.540---Power to summon material witness or examine persons present---Scope and extent---Section 540, Cr.P.C. has two parts; First part is discretionary whereas the second part is mandatory in nature---First part provides discretionary power to the court to summon any person as a witness suo motu or on an application of any party, but according to second part the power to summon, examine or re-examine any person as a witness ought to be exercised, if his evidence is essential for just decision of the case---Solitary purpose of the judicial proceedings in Criminal cases is to find out truth for arrival at a correct conclusion---Second part of S.540, Cr.P.C. makes it obligatory for the Court to examine or re-examine any witness ignoring the technical and formal objections---Trial Court has been vested with the jurisdiction to re-examine any witness and the only requirement for re-examining the witness is that his examination should be essential for the just decision of the case.

Ch. Humayun Rashid for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2099 #

2011 Y L R 2099

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ALLAH YAR---Petitioner

Versus

Mst. ZAHOOR ELAHI and 5 others---Respondents

Civil Revision No.73-D of 1996, heard on 23rd November, 2010.

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

----S.19---Contract Act (IX of 1872), Ss.188 & 114--- Specific Relief Act (I of 1877), S.42---Suit for declaration---Principal and agent---Trial Court dismissed the suit---Appellate Court accepted the appeal---Validity---Deceased predecessor-in-interest of the parties which were siblings inter se had Dakheel Kari rights in the land and was required to obtain permission from the Provincial Government for alienating the disputed property---Attorney of the said deceased predecessor-in-interest obtained permission from the Collector for pronouncement of gift of occupancy rights in favour of the defendant who was real son of the deceased predecessor-in-interest---Land in question was property of the Provincial Government and the deceased predecessor-in-interest was holding only the Dakheel Kari rights in the property transferred by his attorney---Sale-deeds were subsequent to the issuance of permission under S.19 of the Colonization of the Government Lands (Punjab) Act, 1912---Son of the deceased predecessor-in-interest was already a donee of the disputed property which was transferred by the attorney through sale-deeds in order to exclude other legal heirs of the deceased/ principal---Attorney was bound to take special permission from the deceased/ principal before transferring the property in his own name or in the name of close fiduciary relations---Attorney was bound to satisfy the court qua absence of his principal at the time of transaction of sale as such transaction would not hold good unless knowledge and consent of the principal had been established---Attorney of the deceased and the defendant colluded to transfer the disputed property through gift transaction followed by sale-deeds in order to exclude other legal heirs of the deceased who was an ailing old man---Sale-deeds executed by the attorney were hit by Ss.188 and 214 of the Contract Act, 1872---Permission given by the Collector to the attorney pertained to gift transaction and not the sale---Suit was not time-barred as limitation was not applicable to inheritance---Earlier suit filed by the deceased predecessor was no bar to subsequent suit filed by the plaintiff to seek her share in the deceased's/father's property---Sale in question having been proved fraudulent, was not binding on the rights of the plaintiffs---Revision petition was dismissed in circumstances.

Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28; Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCMR 85; Muhammad Bashir and others v. Mst. Walayat Begum and others PLD 1967 Lah. 391; Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others PLD 1994 SC 650; Ghulam Haider v. (Hafiz) Allah Bakhsh 1985 SCMR 1218; Fida Muhammad v. Pir Muhammad Khan through legal heirs and others PLD 1985 SC 341; Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others 1991 SCMR 515; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Muhammad Amin and others v. Akhtar Munir through attorney 2005 YLR 1700; Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12 and Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114 ref.

(b) Islamic law---

----Inheritance---Limitation---No limitation in matter of inheritance.

Syed Kabeer Ahmad and Sahibzada Mehboob Ali for Appellants.

Ch. Abdul Ghani for Respondent.

Date of hearing: 23rd November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2106 #

2011 Y L R 2106

[Lahore]

Before Tariq Javaid, J

ALLAH LOKE---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.6875 of 2009, decided on 8th June, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XVII, R.3 & O.VII, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance---Plaintiff predecessor-in-interest of respondents withdrew the suit and thereafter filed application for making an award rule of court---Trial Court closed plaintiff's right to produce evidence under O.XVII, R.11, C.P.C.---Appeal, revision and constitutional petition filed by plaintiff also failed---Plaintiff once again instituted suit for specific performance of agreement relating to the same property---Defendant filed application under O.VII, R.11, C.P.C. which was dismissed by Trial Court---Revision filed by defendant was also dismissed---Validity---Plaintiff having failed to prove the factum of arbitration proceedings, question of handing over possession of suit property in terms of arbitration award also stood negated as the award had not been proved---Controversy stood resolved by the first round of litigation wherein the suit had been withdrawn---No fresh ground was available to plaintiff for instituting the suit---No permission was sought by plaintiff in his application for withdrawal of earlier suit---Orders passed by courts below were set aside---Constitutional petition was accepted and plaint was rejected under O.VII, R.11, C.P.C.

Ghulam Rasool v. National Bank of Pakistan 1983 CLC 1556; Siraj-ud-Din v. Allah Rakha PLD 1960 (W.P) Lah. 261; Feroze Khan v. Zaman Ali 1993 CLC 1478; Resham Jan v. Muhammad Fazil PLD 1981 Azad J&K 16 and Irshad Ali v. Islamic Republic of Pakistan 1981 CLC 111 distinguished.

Muhammad Hayat v. Muhammad Mateen (1981) ALD 48 rel.

Mukhtar Ahmed Chaudhary for Petitioner.

Tahir Mehmood for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2109 #

2011 Y L R 2109

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD NAZIR---Petitioner

Versus

MEHR MUHAMMAD through Legal Representative and others---Respondents

Writ Petition No.7459 of 2002, heard on 1st February, 2011.

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

----S. 12 (2) & O.XXI, Rr. 100, 101 & 103---Constitution of Pakistan, Art.199---Constitutional petition---Judgment and decree setting aside of---Plea of fraud and misrepresentation---Administration of justice---Wrong provision of law---Judgment and decree in question passed in favour of petitioner was assailed by respondent on the plea of fraud and misrepresentation in application under O.XXI, Rr.100, 101 and 103 C.P.C.---Lower Appellate Court set aside the judgment and decree passed in favour of petitioner---Validity---Lady who was claimed to be in possession of suit property was daughter-in-law of petitioner but he failed to disclose that fact in the plaint filed by him---Husband of the lady was the witness of warrant of possession, and they all were living together but to usurp the property in dispute they all planned to get a decree for specific performance of the property in possession of respondent---Such fraud had been proved on record that husband and wife were pretending themselves to be alien, defrauded the court and succeeded to get possession of property in possession of some other person---Wrong quoting of provisions of law was not harmful or fatal---Court was bound to grant relief or to decide lis as per pleadings, prayer of the plaint or application and even the court had the powers to grant relief which was not claimed, if the court after examining the record had come to the conclusion that litigant was entitled to the relief in administration of justice---Application of respondent having been based on the ground of fraud executing court was bound to treat the application of respondent under S. 12(2), C.P.C.---Fraud had been proved from pleadings, evidence and record produced by the parties, therefore, High Court treated the application under O.XXI, Rr.100, 101 and 103, C.P.C. as application under S.12(2), C.P.C. and set aside the decree passed in favour of petitioner and remanded the matter to Trial Court for decision afresh after hearing the parties---Petition was allowed in circumstances.

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

----S. 12 (2) & O.XXI, R. 103---Setting aside of decree---Applicant under O.XXI, R.103 C.P.C. has to admit genuineness of decree---In application under S. 12(2), C.P.C., the main ground of attack was fraud.

M. Farooq Qureshi for Petitioner.

Mansoor Ali Bukhari for Respondents.

Date of hearing: 1st February, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2114 #

2011 Y L R 2114

[Lahore]

Before Nasir Saeed Sheikh and Ch. Muhammad Tariq, JJ

LIAQAT HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.234-B of 2011, decided on 30th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing, import, export and trafficking of narcotics---Bail, grant of---Further inquiry---Accused was not present on the spot and he was not arrested when the alleged shopper in question containing charas was recovered by the Police from a public road; fact that it belonged to accused establishing his involvement, was a case of further inquiry which would be determined at the trial---Accused had been sent up to judicial lock-up and he was no more required in the case---Case being fit for extending the concession of bail to accused, he was directed to be released on bail, in circumstances.

Ghufran Khurshid Imtiazi for Petitioner.

Malik Riaz Ahmad Saghla, D.P.-G. for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 2115 #

2011 Y L R 2115

[Lahore]

Before Altaf Ibrahim Qureshi, J

MUHAMMAD MANSHA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.5963-B of 2011, decided on 30th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i),(ii), 337-F(ii), 452, 148 & 149---Causing Shajjah-i-Khafifah and Shajjah-i-Mudihah and house-trespass---Pre-arrest bail, grant of---Both sides had alleged that they had caused injuries to each other as a result of which five persons from accused's side and two persons from complainant's side had been shown injured---Injuries alleged to have been caused by accused side, fell under S.337-A(ii), P.P.C., while that of sustained by mother-in-law of accused was a fracture of radius ulna of left hand which fact had been suppressed by the complainant side---So far as alleged involvement of accused in other criminal cases was concerned, counsel for the complainant had failed to substantiate that contention as accused had not been convicted in any of the said cases---Wider net had been thrown by the complainant to involve as many as persons he could, in that case; which had shown the mala fide on his part, especially when he suppressed the injuries of accused's side---Complainant did not come to the court with clean hands---Nothing incriminating could be recovered from accused when he had joined the investigation---No coercive measures, in circumstances, should be adopted for effecting the recovery; and the Police could not be allowed to adopt third degree methods for creating evidence---Case of accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Shahid Pervaiz for Petitioner.

Ch. Muhammad Sharif for the Complainant.

Ch. Karamat Ali, Deputy Prosecutor General along with Muhammad Bashir, S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 2117 #

2011 Y L R 2117

[Lahore]

Before Sardar Muhammad Shamim Khan, J

ANWER MAHMOOD---Petitioner

Versus

S.H.O. POLICE STATION SHAKOOKA, DISTRICT VEHARI and 7 others---Respondents

Writ Petition No.10523-Q of 2010, decided on 24th November, 2010.

Penal Code (XLV of 1860)---

----Ss. 420, 447, 468 & 471---West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), S.3---Punjab Anti-Corruption Establishment Rules, 1985, Rr.6.7, 8 & 15---Constitution of Pakistan, Art.199---Cheating, criminal trespass, forgery using as genuine a forged document--- Constitutional petition---Quashing of F.I.R.---Petitioner/accused who was Revenue Patwari, was a public servant and provisions of Penal Code under which impugned F.I.R. was got registered, were Scheduled offences---Said offences committed by the petitioner, were to be tried and investigated in accordance with provisions of West Pakistan Anti-Corruption Establishment Ordinance, 1961 and the rules made thereunder---Case against public servant in BPS-1 to 16, according to R.8 of Punjab Anti-Corruption Establishment Rules, 1985, could be registered under written orders of an officer not below the rank of a Deputy Director, Anti-Corruption Establishment---Registration of case through F.I.R. for the offence under Ss.420, 447, 468 & 471, P.P.C. at Police Station was illegal and the S.H.O. was not authorized under the law to register said case and to investigate the same---F.I.R. so registered was declared to be without authority and of no legal effect and was quashed, in circumstances.

Mehboob v. The State and 3 others PLD 1996 Lah. 454 and Muhammad Sharif v. Station House Officer, Police Station, City Hafizabad and another PLD 1997 Lah. 692 ref.

Altaf Ibrahim Qureshi for Petitioner.

Qazi Khalid Pervaiz for Respondent/Complainant.

Mazhar Jamil Qureshi, A.A.-G. and Hassan Mehmood Khan Tareen, along with Khadim Hussain, A.S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 2120 #

2011 Y L R 2120

[Lahore]

Before Hassan Raza Pasha, J

KHADIM HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4652/B of 2010, decided on 2nd December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Matter was reported to the Police after about 5 months from the date the disputed cheque was dishonoured---Complainant also got registered another case F.I.R. against accused in which another cheque was dishonoured---Accused, the said other F.I.R. had been shown to be a property dealer while in the present case he was alleged to be dealing in computer accessories; it was not believable that after lending an amount to accused, which was not returned, the complainant lent more amount to him---No proof was placed on record, which could suggest that the complainant or his partner was purchasing computer accessories from the accused---Accused had been behind the bars for the last two months, and his further detention was not required for further investigation---Mere pendency of other cases of identical nature was no ground to refuse the bail, unless accused was found convicted in any of them---Maximum punishment provided in S.489-F, P.P.C. was three years, which did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Malik Ghulam Hussain for Petitioner.

Tanveer Haider Buzadar, ADPP for the State.

Tariq Muhammad Iqbal for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2141 #

2011 Y L R 2141

[Lahore]

Before Shahid Hameed Dar, J

AMJAD RIAZ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE

and 10 others---Respondents

Writ Petition No.5745 of 2010, decided on 9th June, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Police Order (22 of 2002), Art.18(6)---Penal Code (XLV of 1860), S.364-A---Constitution of Pakistan (1973), Art.199---Constitutional, petition---Kidnapping or abducting a person under the age of fourteen---Powers of ex-officio Justice of Peace---Scope---Petitioner challenged the proceedings undertaken by ex-officio Justice of Peace who, being dissatisfied with investigation, directed the Police authorities to conduct further investigation---Petitioner contended that ex-officio Justice of Peace was not empowered to suggest a particular procedure or result of investigation---Petitioner further contended that the ex-officio Justice of Peace could not interfere with statutory power of Police to conduct investigation---Validity---Ex-officio Justice of Peace should not have indulged in inquiries/investigations; instead he should have directed the Investigating Officer to conduct investigation in accordance with law---Courts could not interfere in the process of collection of evidence under Ss.156 & 157, Cr.P.C. by Police---Powers conferred on ex-officio Justice of Peace under Ss.22-A and 22-B, Cr.P.C, dealt with issues relating to non-registration of F.I.R., transfer of investigation under Art.18(6) of the Police Order, 2002 and neglect, failure or excess committed by a police authority---Justice of Peace could not suggest the procedure or give direction to do a certain act as any such direction to suggest a particular procedure of investigation was departure from provision of law---Proceedings conducted by ex-officio Justice of Peace amounted to deciding the case without considering the result of investigation---Proceedings pending before the ex-officio Justice of Peace were held to be illegal and void ab initio and were quashed accordingly. ?

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 and Muhammad Habib v. Addl: Sessions Judge/Justice of Peace, Jampur, District Rajanpur and 2 others PLD 2009 Lah. 235 rel.

Ch. Muhammad Lehrasib Khan Gondal for Petitioner.

Iftikhar Hassan, Advocate.

Aamir Jalil Siddiqui, A.A.-G. Ashiq Hussain S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 2152 #

2011 Y L R 2152

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

PAKISTAN TELECOMMUNICATION COMPANY LTD. through Chairman and 4 others---Petitioners

Versus

Rai MUHAMMAD ASLAM KHAN KHARAL---Respondent

Civil Revision No.2331 of 2002, heard on 15th September, 2010.

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

----S. 42---Court Fees Act (VII of 1870), S.7 & First Schedule---Plaintiff filed suit for declaration on the ground that disputed telephone connection was not installed on his application nor did he use the same, as such he was not liable to pay the amount of Rs.115,192 for use of the same---Department contested the suit and claimed that disputed telephone was installed on the written application of the plaintiff---Trial Court decreed suit of the plaintiff while Appellate Court dismissed the appeal against order of Trial Court---Department asserted that they had filed an application, for additional evidence as well as for an additional issue to be framed, which was dismissed by Appellate Court without any cogent reason---Department further contented that the plaintiff had not affixed the court-fee ad valorem---Validity---After passing the decree, when department filed application for additional evidence before Appellate Court, the said application did not find mention as to which document the department wanted to place on record---Documents required to be produced in rebuttal of claim of plaintiff had not been relied upon---Appellate Court had rightly dismissed application for additional evidence in circumstances---Suit filed by plaintiff was for setting aside amount of Rs.115,192; ad valorem court-fee was payable---Both courts below had rightly passed the decree against department on the basis of available record---High Court partially allowed the petition with direction to plaintiff to pay court fee ad valorem within one month- from the date of receipt of certified copy of order and in case the plaintiff failed to pay the court fee, the suit would be deemed to be dismissed with further direction to send a certified copy of the order to the plaintiff as the counsel of the plaintiff was not present-in the court when counsel for the department argued the case.

(b) Court Fees Act (VII of 1870)---

----S. 7 & First Schedule---Suit for declaration for setting aside the claim of Rs.115,192 by telephone Corporation---Ad valorem court fee was payable.

Yousaf Hussain Dilawari for Petitioners.

Nemo for Respondent.

Date of hearing: 15th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2157 #

2011 Y L R 2157

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

MUHAMMAD ARIF and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1746 and Murder Reference No.773 of 2005, heard on 24th November, 2010.

(a) 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---Matter was reported to the Police with a delay of about two and a half hours and postmortem examination on the dead body of the deceased was conducted on the next day of occurrence---No time of conducting of postmortem was mentioned in report in that respect---Preliminary inquires, deliberations and consultations on the part of complainant could not be ruled out, prior to the registration of F.I.R., in circumstances---Both eye-witnesses were residents of a `Mauza' which was far away from the area where occurrence took place---Complainant who admitted that it took about 7/8 hours from their place of residence to reach the place of occurrence---No plausible and convincing explanation for presence at the place of occurrence was given by the complainant---Presence of both eye-witnesses at the place of occurrence, at relevant time having become doubtful, their testimony, did not inspire confidence---Driver of the deceased who allegedly received fire-arm injury at the hands of accused persons; and was got medically examined, was given up being unnecessary---Driver being most important witness of the occurrence, his evidence having been withheld by the prosecution, an adverse inference could safely be drawn against the prosecution in view of Art.129(g) of Qanun-e-Shahadat, 1984---Ocular account was not exactly in line with the medical evidence---Case of the prosecution was that accused persons made firing at the deceased with .30 bore pistol, but no crime empty was taken into possession from the spot---Recovery of said weapon of offence, was of no avail to the prosecution, which was not even sent to the Forensic Science Laboratory for expert opinion---Motive of occurrence was not proved by the prosecution by producing convincing evidence---Deceased was found involved in murder/dacoity case earlier---Prosecution case against accused persons being doubtful in nature, it was unsafe to maintain conviction of accused person on basis of such type of evidence---Prosecution having failed to prove its case against accused persons beyond any shadow of doubt, impugned judgment was set aside and accused were acquitted of the charge extending them the benefit of doubt and were ordered to be released, in circumstances.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Muhammad Khan and another v. The State 1999 SCMR 1220, Muhammad Akram v. The State 2009 SCMR 230, Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Khalid Javed and another v. The State 2003 SCMR 1419; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Muhammad Ibrahim v. Ahmed Ali and others 2010 SCMR 637; Nadeem alias Nanha alias Billa Slier v. The State 2010 SCMR 949; Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592; Saeed Muhammad Shah v. State 1993 SCMR 550; Khalid Javed v. State 2003 SCMR 1419; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432 and Ameenullah v. State PLD 1976 SC 629 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution was bound to prove its case against accused beyond any shadow of doubt and had to stand on its own legs---Conviction must be based on unimpeachable evidence; and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of accused---Benefit of doubt must go to accused, not as a matter of grace, but of right.

Muhammad Khan and another v. The State 1999 SCMR 1220; Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

Ch. Ghulam Mustafa Bandesha and Ch. Naveed Mustafa Bandesha for Appellants.

Ch. Muhammad Mustafa, D.P.-G. for the State.

Date of hearing: 24th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2174 #

2011 YLR 2174

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ANWAR and 4 others---Petitioners

Versus

GHULAM ABBAS---Respondent

Civil Revision Nos.1159 and 1160 of 2007, decided on 18th May, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Plaintiffs filed suit for specific performance of agreement to sell in respect of disputed property on the ground that they had paid entire consideration of Rs.250,000 in cash in presence of the witnesses---Defendant contested suit and also filed suit for declaration and cancellation of document---Trial Court dismissed suit of the plaintiffs while decreed the suit filed by defendant through a consolidated judgment and decree---Appellate Court on appeals, dismissed the same---Contention of the plaintiffs was that both lower courts had ignored the report of local commission which had fully established that the plaintiffs were in possession of the disputed land---Validity---Record revealed that plaintiffs deposited money in the Bank on 22-2-1992 while the agreement to sell was executed on 19-1-1993, the amount deposited on 22-2-1992 in the bank had no nexus with the agreement to sell---Neither the report of local commission was tendered in evidence nor the local commission was summoned as a witness---Plaintiffs had failed to point out any question of law, irregularity, illegality or jurisdictional error in the impugned consolidated judgments and decrees---Revision petition was dismissed.

Khalid Pervaiz Warraich for Petitioners.

Ejaz Ahmad Chadhar for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 2181 #

2011 Y L R 2181

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD TANVIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.155-J and Criminal Revision No.489 of 2007, heard on 22nd September, 2010.

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

----Ss. 302 (b)/149, 324/149, 449/149, 337-L(2)/149, 337-F(i)/149, 337-F(ii)/149 & 148---Qatl-e-amd, attempt to commit Qatl-e-amd, house trespass in order to commit offence punishable with death, causing of hurt "ghayr jaifah" and other hurt, rioting armed with deadly weapon---Appreciation of evidence---Benefit of doubt---Occurrence had taken place at odd hours of night---Name of accused did not figure in F.I.R. and complainant had arrayed him as an accused in the case through his supplementary statement recorded after seven days of the occurrence---Supplementary statement of complainant recorded during investigation could not be equated with F.I.R., nor read as a part of the same---Complainant had made dishonest improvement in his statement at the trial---Motive was not attributed to accused---Ocular testimony furnished by interested witnesses, closely related to complainant was not believable--Abscondence of accused had lost its weight due to the prosecution case against him being unsuccessful---Prosecution case was full of contradictious and discrepancies and was not supported by medical evidence---Accused was given benefit of doubt and acquitted in circumstances.

Noor Muhammad v. The State 2008 SCMR 1556; Falak Slier alias Sheru v. The State 1995 SCMR 1350; Khalid Javed and another v. The State 2003 SCMR 1419 and Mitho Pitafi v.. The State 2009 SCMR 299 ref.

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

----S.156---Investigation into cognizable case--- Supplementary statement of complainant---Value---Any statement or further statement of the first informant recorded by police during investigation can neither be equated with F.I.R., nor read as a part of the same.

Noor Muhammad v. The State 2008 SCMR 1556; Falak Sher alias Sheru v. The State 1995 SCMR 1350 and Khalid Javed and another v. The State 2003 SCMR 1419 rel.

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Abscondence of accused---Effect---When accused is found entitled to any leniency in the case, his abscondence does not bar the grant of such relief to him.

Mitho Pitafi v. The State 2009 SCMR 299 rel.

Ch. Zulifqar Ali for Appellant.

Ch. Mumtaz Ahmad Balwana for the Complainant.

Mian Muhammad Awais Mazhar, Deputy P.G. for the State.

Date of hearing: 22nd September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2192 #

2011 Y L R 2192

[Lahore]

Before Sh. Azmat Saeed and Muhammad Ameer Bhatti, JJ

JAVID IQBAL---Appellant

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and another-Respondents

Execution First Appeal No.67 of 2011, decided on 24th May, 2011.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 1 & 24---Recovery of insurance policy---Execution of decree--Misappropriating decretal amount--Insurance Tribunal directed insurance company to pay insurance policy to husband of insurer---Insurance company assailed the order of Insurance Tribunal and deposited decretal amount with Executing Court as a condition for stay of execution proceedings---Appellate Court dismissed the appeal filed by insurance company, resultantly execution proceedings commenced---During execution proceedings amount deposited by insurance company for stay of execution proceedings could not be accounted for as the same had been misappropriated--Executing Court dismissed execution petition on the ground that decree had been satisfied---Validity---Whether in fact the amount was deposited by insurance company or not was still to be determined--Decree-holder had no connection or responsibility with regard to deposit and receipt of the amount, therefore, he could not be deprived of the fruits of decree in his favour, merely because the amount was not accounted for---No legal basis was available for saddling decree-holder with responsibility for the amount in question, therefore, no ground existed for dismissal of execution petition---High Court directed that decree passed in favour of decree-holder should be executed in accordance with law till its satisfaction and when disputed amount was accounted for, insurance company might be permitted to withdraw the same---Appeal was allowed accordingly.

Liaquat Ali Butt for Appellant.

Muhammad Ali Lashari for Respondents.

Date of hearing: 24th May, 3011.

YLR 2011 LAHORE HIGH COURT LAHORE 2198 #

2011 YLR 2198

[Lahore]

Before Ch. Muhammad Tariq and Shahid Hameed Dar, JJ

GHALIB HUSSAIN SHAH---Appellant

Versus

THE STATE-Respondent

Criminal Appeals Nos.255, 246 of 2007 and C.S.R. No.5/RWP/2009, heard on 7th April, 2011.

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

----S. 9(c)---Possession of narcotics--Appreciation of evidence---Huge quantity of narcotics was recovered from the vehicle of the accused---Accused had admitted their presence at the place of occurrence as well as the recovery of narcotics---Accused who was driving the vehicle was fully responsible for the narcotics being transported and smuggled through the vehicle---By virtue of S.25 of the, Control of Narcotic Substances Act, 1997, non-citing of a public witness in recovery proceedings was not fatal to prosecution case---Case was not against an individual, but it was against the society---Prosecution evidence had no material discrepancy and the impugned judgment did not suffer from any illegality---Conviction of both the accused was consequently maintained along with the sentence of imprisonment for life awarded to one accused---Death sentence awarded to other accused was reduced to imprisonment for life, as he was a first offender---Appeals were disposed of accordingly.

Ghulam Qadir v. The State PLD 2006 SC 61; Muhammad Khan v. The State 2008 SCMR 1616 and Muhammad Tariq v. The State 2009 SCMR 1220 rel.

Raja Gliameem Aabir Khan for Appellant (in Criminal Appeal No.255 of 2007).

Raja Altaf Hussain Satti for Appellant (in Criminal Appeal No.246 of 2007)

Waqas A. Rahman, Special Prosecutor-ANF for Respondent.

Date of hearing: 7th April, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2205 #

2011 Y L R 2205

[Lahore]

Before Nasir Saeed Sheikh, J

AFTAB AHMAD RAJA---Petitioner

Versus

Malik FAIZULLAH KHAN AFRIDI and others---Respondents

Writ Petitions Nos. 110 111, 137, 138 and 382 of 2010, decided on 1st April, 2011.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss.5, 6, 8, 15 & 22---Constitution of Pakistan, Art. 199--- Constitutional petition--- Ejectment of tenant---Registration of tenancy agreement---Grace period---Scope---Tenancy agreement, expiry of---Reconstruction of premises---Landlord purchased premises in question and sought ejectment of tenants on the ground that tenancy agreement of tenants with previous landlord had expired and the building was in dilapidated condition---Rent Tribunal and Lower Appellate Court concurrently passed ejectment orders against tenants--- Validity--- Provisions incorporated in section 8 of Punjab Rented Premises Act, 2009, were meant to be utilized for the benefit of both landlord as well as tenant---Grace period of two years was provided under section 8 of Punjab Rented Premises Act, 2009, for both parties for bringing tenancy in conformity with provisions of law---If parties were governed by a written agreement of tenancy and it had expired or if there was un written tenancy between the parties and was to be considered on month to month basis, then period of two years had to play a vital role in both cases from the date of enforcement of the law---Obligations thus created for both the parties under. the law could be enforced by machinery provided therein except' that an ejectment petition solely on the ground of expiry of period of tenancy could not be allowed to succeed unless period of two years provided in section 8 of Punjab Rented Premises Act, 2009 would expire---As section 4 of Punjab Rented Premises Act, 2009, had given an overriding effect to the provisions of the Act, therefore, parties of an existing tenancy were obliged to care for newly-created statutory provisions---Ejectment orders although passed during the grace period of two years would not be set aside by High Court on account of the conduct of tenants, as they did not make any effort for bringing tenancy in conformity with the provisions of new rent law calling upon landlord to enter into written agreement of tenancy complying with the provisions of section 5 of Punjab Rented Premises Act, 2009, and allowed grace period to expire---High Court declined to interfere in eviction orders passed against tenants---Petition was dismissed in circum?stances.?

PLD 2009 Lah. 429; C.P. No.157 of 2001; Writ Petition No.996 of 2009 dated 25-6-2009 and C.P. No.1578 of 2010 ref.

(b) Interpretation of statutes---

----Law is to be interpreted in such a manner as to create a harmonious situation for both the parties governed by it---Interpretation of law, which renders any provisions of law redundant or nugatory has never been favoured with.?

Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 rel.

Mujeebur Rehman Kiani for Petitioner.

Muhammad Ilyas Sheikh for Respondent No.1.

Date of hearing: 24th March, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2218 #

2011 YLR 2218

[Lahore]

Before Rauf Ahmad Sheikh, J

HAQ NAWAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4245-B of 2011, decided on 25th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Pre-arrest bail, grant of---Further inquiry---Record did not show that the complainant had in fact given the gold ornaments to accused due to mutual trust---Civil court had already rejected the claim of complainant against the accused qua the said ornaments---Allegation against the accused, thus, was highly doubtful and his case needed further probe within the meaning of S.497(2), Cr.P.C.---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

PLD 2002 SC 529 and 2006 YLR 61 ref.

Rana Muhammad Saeed Akhtar, for Petitioner with petitioner in person.

Ch. Anees-ur-Rehman, for the Complainant.

Mian Muhammad Awais Mazhar, D.P.-G. along with Noor Ali S.-I. with record for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 2224 #

2011 Y L R 2224

[Lahore]

Before Nasir Saeed Sheikh, J

ZAFFAR HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, TEHSIL ALIPUR DISTRICT MUZAFFARGARH and 2 others-Respondents

Writ Petitions No.1672 of 2011, decided on 14th February, 2011.

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

----S. 5---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance, recovery of---Execution of decree---Right of minors---Wife was allowed maintenance allowance from the date of suit till subsistence of marriage, whereas, minor children were allowed maintenance from the date of suit till they would attain age of majority---Husband failed to provide decretal amount for which execution application was filed by wife---Husband objected to execution proceeding that compromise had been effected between the parties---Validity---Judgment and decree passed by Family Court was a continuing relief granted to wife and her children and could not become time-barred on any ground---Merely because parties were living together on the basis of some compromise, the same did not absolve the husband from paying maintenance to wife and children, who had not been impleaded in petition---Husband was bound to pay maintenance to wife and minor children as per terms and conditions of judgment and decree---On the basis of compromise between the parties, judgment and decree was not set aside and no such compromise was recorded before any Court of law---Family Court was right in allowing execution proceedings for recovery of maintenance allowance to continue and objection petition moved by husband was rightly dismissed by two Courts below---Orders passed by two Courts below were illegal and without lawful authority---Petition was dismissed in circumstances.

Kanwar Farhan Ahmad Khan for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2228 #

2011 Y L R 2228

[Lahore]

Before Sardar Muhammad Shamim Khan, J

ALTAF HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Bail Petition No.494-B of 2011, decided on 17th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420/468/471/407---Cheating, forgery for purpose of cheating, using as genuine forged documents, criminal breach of trust by carrier etc.---Bail, grant of---Medical grounds---Previous bail application of accused had been dismissed by High Court, but his medical ground had not been discussed in the order---Medical report of the Jail Medical Officer disclosed that accused was a Diabetes Insuline dependent patient with liver function disease i.e. Cirrhosis of Liver and Hepatitis-B---Presently accused was suffering from acute abdominal distension---Despite being treated by Medical Specialist of a Hospital, his condition was not stable, where he had been shifted on emergency basis to save his life under strict security measures---Accused in view of his medical report and ailment seemed to be seriously ill and his life was in danger---Accused was admitted to bail in circumstances.

Farooq Amjad Mir for Petitioner.

Muhammad Wasim Shahab for the Complainant.

Hassan Mahmood Khan Tareen, learned D.P.-G.

Zulfiqar, S.-I. and Amjad Hanif, S.-I. with record.

YLR 2011 LAHORE HIGH COURT LAHORE 2232 #

2011 Y L R 2232

[Lahore]

Before Nasir Saeed Sheikh, J

MANZOOR AHMAD and others---Appellants

Versus

MUHAMMAD ANWAR KHAN and another---Respondents

Regular Second Appeal No.70 of 2004, heard on 14th January, 2011.

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

----Ss.27, 41 & 52---Specific Relief Act (I of 1877), S.12---Suit for specific performance of first sale agreement---Lis pendens, principle of---Applicability---Sale of suit-land by vendor through mutation during pendency of suit in favour of subsequent vendee---Plea of vendor that first agreement had lost its legal efficacy due to expiry of period fixed therein for performance of obligations by plaintiff thereunder; and that he was in need of money, therefore, he sold away suit-land--Suit decreed by Trial Court challenged in appeal by subsequent vendee, but not by vendor---Dismissal of appeal by Appellate Court---Plea of subsequent vendee to have purchased suit land in good faith for valuable consideration without having notice of first sale agreement in favour of plaintiff---Validity---Vendor had not denied execution of sale agreement in favour of plaintiff---Subsequent vendee had neither raised such plea in written statement nor alleged so in examination-in-chief except that he had enquired from office of Sub-Registrar about registration of sale-deed in favour of plaintiff by vendor---Subsequent vendee had not deposed to the effect that before entering into subsequent sale agreement; he had tried to contact plaintiff---Subsequent vendee for being hit by principle of lis pendens could not object to maintainability of suit particularly when vendor had not challenged decree of Trial Court---High Court dismissed second appeal in circumstances.

Muhammad Sharif v. Mst. Fateh Bano and others 2004 SCMR 813 rel.

Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd. Sialkot and another PLD 1993 SC 292; Muhammad Yousaf and others v. Allah Yar and others 1993 CLC 2337; Mehmood Ali and 4 others v. Mst. Naziran Bibi and 10 others PLJ 2004 Lah. 771; Atta Hussain Khan v. Muhammad Siddique Khan and others 1979 SCMR 630; Hashwani Hotels Limited v. Government of Pakistan through Secretary Ministry of Finance and others 2007 SCMR 1131; Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Abdul Qayum through Legal heirs v. Mushk-e-Alam and another 2001 SCMR 798 distinguished.

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

----S.12---Transfer of Property Act (IV of 1882), S.52---Suit for specific performance of first sale agreement---Subsequent sale of suit-land by vendor being hit by principle of lis pendens---Effect---Subsequent vendee could not object to maintainability of such suit.

Muhammad Sharif v. Mst. Fateh Bano and others 2004 SCMR 813 rel.

----S.42---Mutation incorporated in revenue record---Effectiveness of mutation would commence from date of its attestation.

Zulfiqar and others v. Shandat Khan PLD 2007 SC 582 rel.

S.M.A Tayyab for Appellants.

Sh. Naveed Shahryar for Respondents Nos.1 and 2.

Yasir Islam Sheikh for Respondent No.4.

Date of hearing: 14th January, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2250 #

2011 Y L R 2250

[Lahore]

Before Iljaz Ahmad Chaudhry, C.J.

Mst. BASHIRAN BIBI---Petitioner

Versus

AZMAT ALI---Respondent

T.A. No.491 of 2010, decided on 20th January, 2011.

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

----S.25-A---Transfer of case, application for---Plaintiff had filed suit for dissolution of marriage and recovery of dowry articles which was pending in the court at place "L "---Defendant had also filed suit for recovery of amount against the plaintiff which was pending in the court at place "G "---Plaintiff had sought transfer of suit for recovery of amount filed by the defendant which was pending in the court at place "G" to the court at place "L" where her suit was pending---Contention of the plaintiff was that she was living at place "L" with her mother, who was an old lady and could not pursue the case filed by defendant at place "G "---Defendant had opposed transfer application stating that . same had been filed just to harass him, which fact was apparent from the order passed by Family Court at place "L" that plaintiff's side was very influential and that filing of transfer application was just to refrain him from pursuing his case; and that instead of-transferring the case of defendant from place "G", the case pending at place "L" could be transferred to place "G"---Record of the case had revealed that plaintiff's side along with some lawyers of the local bar had attacked defendant in the court and had caused serious injuries to hint as well as his brother---Criminal case in that regard had already been registered against plaintiff's side---Submissions made on behalf of the defendant had full support from the order of the Family Court and F.I.R. lodged by the defendant---Case was already ripe for pronouncement of judgment in the near future---Transfer of the case at that stage would not be proper, in circumstances which was declined.

Miss Sabahat Riaz for Petitioner.

Sardar Muhammad Khalil for Respondent.

Waqas Qadeer Dar, Assistant Advocate-General.

YLR 2011 LAHORE HIGH COURT LAHORE 2254 #

2011 Y L R 2254

[Lahore]

Before Kh. Imtiaz Ahmad, J

Mst. SATTARAN BEGUM and 3 others---Petitioners

Versus

DISTRICT JUDGE, KHANEWAL and 2 others---Respondents

Writ Petition No.522 of 2007, decided on 17th February, 2011.

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

----S. 5---Constitution of Pakistan, Art. 199--- Constitutional petition---Maintenance of minors---Compromise by mother---Effect---Suit for recovery of maintenance of minors and dowry articles---Matter was referred to Referees and the same was decided on the basis of statements of the Referees, whereby maintenance of minors was relinquished---Validity---Maintenance was a vested right of minors which must be paid by father and merely on the statement of mother, such right could not be snatched---Even if in other had relinquished the right of minors for maintenance even then minors were not barred to claim maintenance merely on the ground that their mother had waived such right on their behalf --Rights of minors could not be relinquished on the statement of their in other or father as the case might be---Both the Courts below had committed illegality by merely deciding matter of maintenance of minors on the basis of statements of Referees---Minors had been deprived of their legal and vested right, therefore, High Court set aside the same, remanded the matter to Family Court for decision afresh---Petition was allowed accordingly.

Muhammad Riaz v. Mst. Asia Parveen 1997 MLD 142; Nazir Ahmad and others v. Muhammad Qasim and others 2004 SCMR 1292 and Mst. Nasim Khatoon and others v. Syed Irshad Hussain and others 1999 MLD 1321 rel.

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

----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 114---Constitution of Pakistan, Art.199---Constitutional petition---Dowry articles, recovery of---Principle of estoppel--- Applicability--- Settlement through Referees---Effect---Suit for recovery of maintenance of minors and dowry articles was filed by wife---Matter was referred to Referees and the same was decided on the basis of statements of the Referees---Validity---In the claim of dowry articles, minors were not included and it was wife who herself agreed to appoint Referees and made statement that majority decision would prevail, therefore, later on she herself could not go beyond the same---High Court declined to interfere in judgments and decrees passed by two Courts below---Petition was dismissed in circumstances.

Rao Khalid Anwar Khan and 3 others v. Mst. Zaib-ud-Nisa and 13 others 1997 CLC 97; Mushtaq Ahmad v. Muhammad Ismail PLD 2002 Lah. 190 and Muhammad Arif and others v. Farukh Hafeez KLR 2000 Civil Case's 387 (Lahore). ref.

Malik Arab Hussain for Petitioners.

Rao Shafique Alam for Respondents.

2011 Y L R 2276

[Lahore]

Before Muhammad Qasim Khan, J

ABDUL JALIL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2927/B of 2010, decided on 25th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.255, 258, .259, 260, 467, 468, 471, 472, 473, 474, 475 & 109---Counterfeiting and recovery of government stamps---Bail, grant of---Further inquiry---Accused was not nominated in the F.LR. and he was involved in the case on the statement of his co-accused, evidentiary value of which would be seen during trial---Nothing had been recovered from the person of accused, and alleged recovery of forged stamps, were found lying in the files kept in the window in the office of accused---Such piece of evidence required further inquiry about the guilt of accused---Alleged recovered stamps had been sent to the concerned department for verification, whether those were forged or not and so far there was no report to that effect---No allegation was there to the effect that accused had prepared those forged stamps---Accused was behind the bars, but there was no substantial progress in the trial---Accused was admitted to bail, in circumstances.

Fazal Ellahi and another v. The State 2004 SCMR 235 ref.

Ch. Shehzad Aslam for Petitioner.

Abdul Wadood, Deputy Prosecutor-General.

YLR 2011 LAHORE HIGH COURT LAHORE 2279 #

2011 Y L R 2279

[Lahore]

Before Rauf Ahmed Sheikh and Shahid Hameed Dar, JJ

AKRAM MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.311 of 2007, Murder Reference 58 of 2008, heard on 27th September, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 310---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd---'Compromise between accused and legal heirs of deceased---Accused submitted application contending therein that compromise had been effected between him and legal heirs of deceased, whereby legal heirs of deceased had waived off their right of Qisas and Diyat and that they had no objection on his acquittal---Sessions Judge after verification had reported that deceased was unmarried and left behind him his mother and brothers and sisters who had stated on oath that they had entered into compromise with accused with their free consent and they had no objection on acquittal of accused---Mutual compromise would bring peace in the society and eradicate possibility of future bloodshed---Divine wisdom was present behind the notion of forgiveness in the Islamic Jurisprudence---On the basis of the statements submitted by the Sessions Judge, offence had validly been compounded---Accused was acquitted of the charge and was released.

Rana Abid Nazir for Appellant.

Sh. Muhammad Munir, D.P.-G. for the State.

Date of hearing: 27th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2284 #

2011 Y L R 2284

[Lahore]

Before Sh. Ahmad Farooq, J

KHALID MAHMOOD---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADDAR JARANWALA, -DISTRICT FAISALABAD and 4 others---Respondents

Writ Petition No.6184 of 2010, heard on 28th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199--- Constitutional petition---Powers of Ex-officio Justice of Peace---Scope---Registration of criminal case---Powers of Ex-officio Justice of Peace under Ss.22-A & 22-B, Cr.P.C. were very limited and Ex-officio Justice of Peace was not supposed to enter into deeper controversy or to embark upon an inquiry for determination of the truthfulness or otherwise of the contents of the application made to him---Recording of the statement, collection of evidence and all other material, like recovery of weapon of offence or medical examination relating to the investigation of case, could only be done by the Police after registration of a case---In the present case, Justice of Peace was not justified in law by holding that the allegations levelled by the petitioner in his application under Ss.22-A & 22-B, Cr.P.C. were false---Application of the petitioner which he submitted to the Police as well before Ex-officio Justice of Peace under Ss.22-A & 22-B, Cr.P. C. prima facie disclosed the commission of a cognizable offence---Order of Justice of Peace was not sustainable which was set aside---Direction was issued to S.H.O. concerned to record the statement of the petitioner and take further proceedings strictly in accordance with S.154, Cr.P.C.

Rai Salah-ud-Din Kharrl for Petitioner.

Rustam Khan Padhiar for Respondent No.4.

Jawad Hassan, Add. A.G. along with Faiz Ahmad, S.I. for Respondent.

Date of hearing: 28th May, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2288 #

2011 Y L R 2288

[Lahore]

Before Umar Ata Bandial, J

NAZIR-Petitioner

Versus

MUHAMMAD NAWAZ and 2 others---Respondents

Civil Revision No.2225 of 2009, decided on 29th December, 2010.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Both the courts below had decreed the suit on the ground that the plaintiffs according to the revenue record had duly recorded title to the land in question---Number of points were self evident on the record; firstly, that the Trial Court did not frame an issue on the objection regarding non-affixation of court fee according to the relief claimed in the suit and for purpose of jurisdiction, matter involving public revenue ought to have been reflected upon before launching into adjudication of main controversy secondly, that on the point of ownership of suit-land, it was clear that the defendants brought oral evidence in support of their plea in the written statement making a counter claim to ownership of the land, whether such evidence was sufficient to displace the claim by the plaintiffs, need not presently be opined, however, such evidence on the question of ownership of the suit-land, ought to have been discussed by the courts below, which had not been done, in the case; thirdly, that in oral evidence, it was claimed that the defendants were in possession of the suit-land since the time of partition of the suit-land and ,fourthly that the mutation of exchange by the owner of the disputed land was recorded one and half months before her death in very advanced years of age---Effect of those facts on the question of mala fide and fraud, which formed part of issue regarding the integrity of the plaintiff's transaction, had not been considered by the courts below---Courts below had omitted to consider and analyze evidence on record for giving its findings---Trial Court was duty bound to frame issues on the questions of fact and law requiring determination for adjudication of the controversy between the parties to the suit---Said omission had led to the non-determination of a material plea and failure to decide the real controversy resulting in serious irregularity inviting interference---Judgments given by courts below were cursory---Facts of the case deserved closer scrutiny through a proper delineating of the issues and opportunity of recording of evidence thereon followed by its assessment in accordance with law---Case was remanded for deciding -afresh after framing issues and allowing parties to produce evidence.

Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Ch: Muhammad Boota v. Mst. Bano Begum 2003 CLC 485; Muhammad Sarwar and 3 others v. Jahangir Ahmad and 3 others 2002 CLC 1865; Naja and 2 others v. Shamand and 4 others PLD 1985 Lah. 607.; Fateh Muhammad and 3 others v. Abdul Majeed and another PLD 1985 Lah. 650; Abdul Rehman Wahla v. Dr. Slier Din Batra PLD 1986 SC. 234; Shah Gul and others v. Mst. Shamim Akhtar and others 1990 SCMR 110; Roazi Khan and others v. Nasir and others 1997 SCMR 1849 and Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772 ref.

Ch. Farooq Mehmood Kahlon for Petitioner.

Ch. Muhammad Anwar Bhindar for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2295 #

2011 Y L R 2295

[Lahore]

Before Umar Ata Bandial and Muhammad Khalid Mehmood Khan, JJ

GOVERNMENT OF PUNJAB through Executive Engineer, Lahore---Appellant

Versus

AFTAB AHMED and 7 others---Respondents

I.C.A. No.198 of 2010, decided on 5th July, 2010.

Specific Relief Act (I of 1877)---

----S. 54---Law Reforms Ordinance (XII of 1972), S.3---Suit for permanent injunction---Intra-Court appeal---Portion of Commercial Plaza, erected by the plaintiffs in the disputed land was demolished by the authorities in order to widen the road and to complete the civil works of a drain project---Single Judge of High Court had concluded that the matter regarding alleged encroachment involved a factual controversy; which ought to be determined by a court of plenary jurisdiction---Controversy as to entitlement of land in dispute could be resolved only by reference to evidence---Such an inquiry could be conducted by the civil court in the pending proceedings between the parties and was not to be decided by the High Court, nor to authorize the demolition of a constructed building, until a finding on the question, whether the land claimed by the authorities to be public property and to be illegally possessed by the plaintiffs, was determined by the competent court---Since valuable interests on both sides were involved, it was important that said question was decided expeditiously---Court below, hearing the suit for permanent injunction filed by the plaintiffs, claiming entitlement to the disputed land, would, if the said question was germane to the dispute pending before it, determine the said question on or before target date in accordance with law.

Imran Raza Chadhar for Appellant.

Azhar Siddique and Rana Arshad for Respondent No. 1.

Ahmad Rauf, Addl. A.G.

Anees Sarfraz, DCO Sheikhupura in person.

Respondent No.9 in person.

YLR 2011 LAHORE HIGH COURT LAHORE 2298 #

2011 Y L R 2298

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD AKHTAR---Petitioner

Versus

MUHAMMAD ASIF and another---Respondents

Criminal Miscellaneous No.602-BC of 2011, decided on 4th April, 2011.

Criminal Procedure Code (V of 1898)---

---Ss. 497(5) & 498---Penal Code (XLV of 1860), S.496-A---Enticing or taking away or detaining with criminal intent a woman-Cancellation of bail, petition for---Accused and alleged abductee, were husband and wife---Alleged "Talaq Nama" was owned by accused and alleged abductee who had denied even the receipt of notice---Administrator of the Union Council had cancelled the notice and it could not be said that both of them were involved in fornication---Allegation of abduction and commission of zina, was fully refuted by the alleged abductee---Order whereunder accused was granted pre-arrest bail was neither whimsical nor fanciful, but was based on proper appraisal of the facts involved in the matter---No ground for cancellation of bail, being available, petition for cancellation of bail, was dismissed, in circumstances.

1995 SCMR 522 and 1990 MLD 204 ref.

M. Tanvir Ahmad for Petitioner.

Mian Muhammad Awais Mazhar, D.P.-G. for the State and Muhammad Yaqub, A.S.-I. along with record.

Muhammad Aslam Sheikh for Respondent No.1.

Respondent No.1 in person.

YLR 2011 LAHORE HIGH COURT LAHORE 2302 #

2011 Y L R 2302

[Lahore]

Before Amin-ud-Din Khan, J

AHMAD NASRULLAH and others---Petitioners

Versus

SHAHDAT ALI and others---Respondents

Civil Revisions Nos.196 and 195 of 2011, decided on 25th May, 2011.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Specific performance of agreement to sell---Interim injunction, grant of---Disputed agreement---Payment of consideration amount---Proof---Plaintiffs filed suit against defendants for specific performance of agreement to sell to which they were not signatory---Trial Court restrained defendants from further alienating suit property---Order passed by Trial Court was maintained by Lower Appellate Court---Validity---Both the Courts below while exercising jurisdiction in granting stay order and dismissal of appeal filed by defendants, committed illegality and material irregularity as agreement was disputed and there was even no receipt for a considerable amount of Rs. 75,00,000, even there was no cheque or bank draft in order to show the payment---Agreement to sell did not create or confer a right, it had just given a right to file a suit for specific performance---Transfer of suit property would depend upon fate of the suit and till decision of the suit any embargo on property owned by defendants was not justified under the law---Orders passed by two Courts below were set aside and application for grant of interim injunction filed by plaintiffs was dismissed---Revision was allowed in circumstances.

Atta Muhammad v. Muhammad Aslam and others 1994 MLD 464 and Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 rel.

Messrs Al-Shams (Pvt.) Ltd. v. Haji Muhammad Afzal and 3 others 1997 MLD 573 and Muhammad Afzal and others v. Wali Muhammad 2004 CLC 658 distinguished.

Sh. Karim-ud-Diq for Petitioners.

Murad Ali Malik for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2307 #

2011 Y L R 2307

[Lahore]

Before Sh. Ahmad Farooq and Muhammad Qasim Khan, JJ

ADIL SALEEM---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU---Respondent

Writ Petition No.9505 of 2011, heard on 31st May, 2011.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 10, 18, 23 & 25---Constitution of Pakistan, Art. 199--- Constitutional petition---Corruption and corrupt practices---Voluntary return and plea bargain---Order sending accused to judicial lock up after expiry of physical remand---Accused was alleged to have committed offence of misappropriation of huge amount Rs. 29.4 million by receipt of 21 plots against illegal transfer of property---Accused was alleged to be owner and in possession of 21 plots as "Benamidar" of his brother-in-law---During the course of enquiry, accused submitted an application for voluntary return under S.25 of National Accountability Ordinance, 1999, but same had not been decided as office of the Chairman NAB was vacant---Accused was arrested and after expiry of physical remand for a total period of 42 days was ordered to be sent to judicial lock up; accused had filed constitutional petition against said order and prayed for grant of bail---Accused who was behind the bars since 15-3-2011, could not be made to suffer due to inaction on the part of NAB authorities on his offer of voluntary return, which was not processed and decided by the competent Authority due to the vacant office of Chairman NAB---Accused could be released on bail on the analogy of the parameters laid down in the Policy of NAB dated 12-8-2009 in respect of the cases of voluntary return---Even otherwise post-arrest bail could not be refused to an accused as a measure of advance punishment---Petition of accused to the extent of post arrest bail was accepted and he was ordered to be released on bail---Prayer of accused for declaring order of Accountability Court, whereby accused was remanded to judicial lock up, as illegal being devoid of any merits, petition to that extent was dismissed in circumstances.

Suleman Aslam Butt and Munawarul-Salam for Petitioners.

Haroon Rasheed Cheema Spl. Prosecutor NAB along with S.M. Hussain Director NAB and Ziaullah Khan JD for Respondents.

Date of hearing: 31st May, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2314 #

2011 Y L R 2314

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD MUNIR---Petitioner

Versus

BAHADAR KHAN and others---Respondents

Writ Petition No.21253 of 2010, heard on 15th June, 2011.

Civil Procedure Code (V of 1908)---

----O. XIII, R.2---Production of document as additional evidence---Party, to a civil suit, could be permitted to produce additional evidence, when important evidence having a material bearing on the merits of the suit, was subsequently discovered; the document sought to be produced in additional evidence was not in its knowledge; the document was not available with it and that such document was beyond its control---Power to allow evidence was discretionary, circumscribed by the limitation; and it should not be allowed where a party had been grossly negligent--Inadvertence, mistaken legal advice, ignorance of law or negligence of a party, were not grounds for allowing additional evidence---Production of additional evidence was not a matter of right; particularly in a suit for possession through pre-emption which was a feeble right---When the documents, intended to be produced in additional evidence, were available with the plaintiff and he failed to produce the same during recording of examination-in-chief of the witnesses, he could not be permitted to produce the same through additional evidence to make up the weaknesses of - his case or to fill up the lacunae or gaps.

Mian Muhammad Aslam for Petitioner.

Mukhtar Abbas for Respondents.

Date of hearing: 15th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2318 #

2011 Y L R 2318

[Lahore]

Before Ch. Iftikhar Hussain and Sh. Ahmad Farooq, JJ

MUNAWAR BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.779 of 2005, heard on 17th February, 2011.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Presence of accused persons at the place of occurrence and recovery of a huge quantity of narcotic substance "poast" was not denied---Said substance was found lying on a road side near the Bus Stop and accused persons were waiting for transporting the same, such could not be considered as a joint recovery to circumstances---Such was a case of joint possession and joint ownership---SPY information had indicated the female accused; and there being no ill-will or motive on the part of the Police to falsely implicate accused person in the case, there was no weight in the argument of counsel for accused that Police had substituted accused persons with the real culprit, had been let off by the Police--All the prosecution evidence, no doubt consisted of Police witnesses, but their testimony was considered as good as public witnesses; and non-application of S.103, Cr.P.C. in the case had got no implication; as S.25 of Control of Narcotic Substances Act, 1997, had excluded its application---All prosecution witnesses remained. consistent in their depositions and the defence was unable to shake their testimony during the cross-examination---No allegation of personal grudge or animosity was found against the prosecution witnesses to falsely implicate accused in the case---Head Constable, in his examination-in-chief deposed about delivery of samples of recovered narcotic substance to the office of the Chemical Examiner---Said prosecution witness was not cross-examined despite an opportunity was provided---Question of delay of 9 days in sending the samples of narcotic substance or substitution of the recovered material with some other material containing intoxicant, had become irrelevant---Huge quantity of 180 Kg. of "poast" having been recovered from accused persons by the Police, did not seem to be plausible---Though during the investigation, 8 persons appeared before the Investigating Officers in support of the defence version of accused, but none of said persons appeared before the court during the trial---None of said 8 persons being present at the place of occurrence, their statements were irrelevant for the purpose of determination of guilt or innocence of accused---Accused was found present at the place of occurrence in the company of co-accused at the time of raid, she was unable to prove that she was not associated with the co-accused---Prosecution had proved that said accused was associated with the co-accused---Co-accused was found in joint possession of the narcotic substance and was guilty of commission of offence falling under S.9(c) of Control of Narcotic Substances Act, 1997, in circumstances---Accused ladies had failed to make out a case of their acquittal---Trial Court, in circumstances, had rightly convicted and sentenced accused persons and impugned judgment of the Trial Court did not call for interference by High Court.

Sarwar Jan v. The State 2005 PCr.LJ 1224 ref.

Syed Shakir Ali Rizvi for Appellant.

Khurram Khan D.P.-G. for the State.

Date of hearing: 17th February, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2326 #

2011 Y L R 2326

[Lahore]

Before Altaf Ibrahim Qureshi, J

MUHAMMAD SARWAR and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision No.574 of 2011, decided on 1st June, 2011.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 345---Qatl-e-amd---Compromise---Requisites. Widow and son of deceased who appeared in the court had recorded their statements that they had entered into compromise with accused and had received amount of compensation---According to list of legal heirs, mother of the deceased was also alive, but was not produced in the court---Effect---Mother of the deceased who was alive and was also the legal heir of the deceased was not produced---No compromise was permissible without the consent of the mother---Provisions of S.345, Cr.P.C., were to be kept in view while accepting or rejecting the compromise---Incomplete compromise would not carry any weight---Trial Court had rightly held that requisites for compromise in a compoundable case, were not fulfilled.

Tanveer Chaudhry for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2330 #

2011 Y L R 2330

[Lahore]

Before Sh. Najamul Hassan and Abdus Sattar Asghar, JJ

JAHANGIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2-J of 2011/BWP, heard on 2nd June, 2011.

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

----S. 376---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---Rape and terrorism---Appreciation of evidence---Sentence, reduction in---Examination-in-chief of both eye-witnesses had made it clear that their statements on the vital dimensions of prosecution case i.e. time and place of occurrence, nomination of accused, particular attribution of commission of rape with minor victim, were in line and corroborative to each other---Both the witnesses had furnished probable and plausible reasons of their presence at the time and place of occurrence---Testimony of both the witnesses bore intrinsic value and inherent worth of truthfulness and were safely reliable---Despite searching cross-examination upon both the witnesses, nothing material elicited in favour of the offence---Medical evidence produced by the prosecution, had furnished sufficient corroboration to the ocular account---Accumulating appraisal of the confidence inspiring ocular account having corroboration of the medical evidence, had led to conclusion that prosecution had sufficiently established the charge of commission of rape with minor victim against accused---Subsequent conduct of accused in fleeing away from the place of occurrence along with his shalwar having sight of the witnesses, also indicated his guilt---Charge under S.7(1) of Anti-Terrorism Act, 1997, both the witnesses had not uttered even a single word in their examination-in-chief with regard to striking off any panic, terror, fear or insecurity in the public or locality in result of the alleged occurrence---Single statement of one witness that after the incident of molestation there was panic all around the area, was neither reliable nor confidence inspiring---Said solitary statement of the witness lacking inherent worth without any further corroboration was totally insufficient to prove the charge that alleged occurrence resulted into striking terror, fear or sense of insecurity among the public in the relevant vicinity attracting S.7(1) of the Anti-Terrorism Act, 1997---Provisions of Ss.6/7 of Anti-Terrorism Act, 1997, being not attracted at all in the peculiar circumstances of the case, to that extent appeal of accused was accepted and accused was acquitted in the charge under S.7(1) of Anti-Terrorism Act, 1997---Arraignment of accused in the charge under S.376, P.P.C. had been established to the hilt---Defence side had failed to create any dent or doubt in the prosecution evidence with any speck of material---No reason existed to take exception to the conviction of accused under S.376, P.P.C. as judged by the Trial Court---Accused was unmarried young person aged about 24 years, having no criminal history of involvement in any case of like nature---Since accused was not a habitual offender, chances of his rehabilitation, could not be ruled out---Keeping in view the tender age of accused with genuine hope that he could come up as a useful member of the society, taking lenient view, maintaining his conviction under S.376, P.P.C. his sentences were modified and reduced to 20 years R.I., accordingly.

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

----Ss. 6 & 7---'Terrorism'---Ordinary criminal assault and physical violence to a victim would not fall within the purview of 'terrorism' as defined in S.6 of Anti-Terrorism Act, 1997---To take cognizance under the Act, it would remain incumbent upon the court to examine impact of alleged violence and also to see as to whether alleged criminal act was designed to create a sense of terror, fear and insecurity in the mind of general public creating panic in the society---Existence of said parameters, was vital to bring the offender within the purview of the offences under Anti-Terrorism Act, 1997.

Syed Munawar Hussain Bukhari for Appellant.

Muhammad Ali Shahab, D.P.-G. for Respondent.

Date of hearing: 2nd June, 2011.

JUDMGENT

ABDUS SATTAR ASGHAR, J.--This jail appeal is directed against the judgment dated 11-12-2010 passed by learned Judge Anti-Terrorism Court, Bahawalpur, Division Bahawalpur, in case F.I.R. No.22 of 2010, dated 23-1-2010, in the offences under section 376, P.P.C. and 6/7 Anti-Terrorism Act, 1997, Police Station City C-Division, Rahimyar Khan, whereby the appellant Jahangir was convicted under section 376, P.P.C. and sentenced to 25 years rigorous imprisonment with fine of Rs.1,00,000 and in default of payment of fine to further undergo two years simple imprisonment. He was further convicted under section 7(1) Anti-Terrorism Act, 1997 and sentenced to suffer 10 years rigorous imprisonment with fine of Rs.50,000 and in default of payment of fine to further undergo one year simple imprisonment. The benefit of section 382-B, Cr.P.C. was also extended to him.

Epitome of the prosecution case is that on 23-1-2010, at about 7-00 p.m. in the bushes near the railway line Habib Colony, Rahimyar Khan accused Jahangir committed sexual intercourse with Mst.Rabia Bibi a minor girl aged about 5/6 years and commission of said act created fear, panic and insecurity amongst the public in general.
After having completed legal formalities including the medical examination of the victim, the challan was submitted against the accused before the learned trial court, where he was charge-sheeted under section 376, P.P.C. and 7(1) of Anti-Terrorism Act, 1997. The accused pleaded not guilty and claimed to be tried.

4.? To prove the charge, the prosecution produced as many as 13 witnesses including Dr. Muhammad Siddique Hamid (P.W.1), who medically examined the accused, Dr.Khizra Akram (P.W.3) who conducted the medical examination of the victim, Hafiz-ur-Rehman (P.W.8.) complainant/eye-witness and father of the victim Jalil-ur-Rehman (P. W.9) eye-witness/brother of the complainant, Tariq Mehmood (P. W.10) resident of locality i.e. Habib Colony Rahimyar Khan and Ghulam Mohy-ud-Din A.S.-I. (P.W.13) the Investigating Officer of this case. The prosecution also brought on record application. (Exh.PE) on the basis whereof formal F.I.R. (Exh.PE/1) was recorded, injury statement of the victim (Exh.PF), site plan (Exh.PG), Medico-legal Report of Jahangir accused (Exh.PA), Medico-legal Report of Mst. Rabia Bibi victim (Exh.PC) and report of Chemical Examiner (Exh.PH).

In. statement under section 342, Cr.P.C. the accused pleading his innocence denied the allegations and stated his version as below:

"I have falsely been involved in this case. My uncle Ghulam Mustafa alias Nannah was murdered by Fazal Ellahi, Karam Elahi, Manzoor Eahi and Mst. Mansooran Bibi and in this regard case F.1.R.No. 61 of 2.002 was registered at Police Station City C-D. Rahimyar Khan on 9-3-2002 and in said case Ghulam Dastgir complainant was my real father and in that murdered case Fazal Elahi has been sentenced to death whereas remaining accused are undergoing imprisonment while appeal' is still pending in the August Supreme Court of Pakistan. Fazal Elahi etc., are the friends and relatives of Hafeez-ur-Rehman and only in order to save them in the murder case of Ghulam Mustafa alias Nannah, this false case has been registered against me.

No independent person has been produced in the witness box and the witnesses have deposed against mews they are related inter se."

However, he neither opted to make statement on oath under section 340(2), Cr.P.C. nor produced any defence.

We have heard Syed Munawar Hussain Bukhari, Advocate learned defence counsel for the appellant on state expenses and Mr. Muhammad Ali Shahab, D.P.-G. Record is carefully perused.
Hafeez-ur-Rehman (P.W.8), the complainant and father of Mst.Rabia Bibi reiterating his version as set forth in the F.I.R. deposed that on 23-1-2010, at about 7-00 p.m., his daughter Mst. Rabia Bibi aged 5/6 years went out to get sweets from a shop in the street of his house but did not turn up for 10/15 minutes, therefore, he set out in her search; that in the street his brother Jalil-ur-Rehman informed him that he had seen Mst. Rabia Bibi in the company of accused Jahangir present in the court proceeding towards Railway line; that he along with his brother Jalil-ur-Rehman and Khalid Mehmood went towards the railway line where they heard shrieks and noise of weeping of his daughter Mst. Rabia Bibi from the bushes near the railway line; that when they reached the spot accused Jahangir having sight of them fled away by lifting his shalwar; that Mst. Rabia Bibi was found subjected to forcible zina by the accused; that she was in fainted condition and her shalwar was stained with blood; that they took her to Police Station where application Exh.PE was made for registration of case and then she was carried to Hospital for medical treatment.
1. Jalil-ur-Rehman (P.W.9) the other eye-witness stated that on 23-1-2010, at about 7-00 p.m. he was coming home from work when he saw his brother Hafiz-ur-Rehman standing in the street out of his house in perturbed condition; that on his asking Hafiz-ur-Rehman told that Mst. Rabia Bibi had gone to get sweet but has not turned up; that he informed him that he had seen the accused Jahangir present in the court taking away Mst. Rabia Bibi towards railway line; that after five minutes his brother Khalid Mehmood also reached in the street and they all went towards railway line in search of Mst. Rabia Bibi; that when .they crossed the railway line they heard the noise of weeping and shrieks of Mst. Rabia Bibi from bushes; that when they reached near Mst. Rabia Bibi the accused Jahangir while lifting his shalwar fled away; that they attended Mst. Rabia Bibi stained with blood due to forcible zina; that they went to Police Station and reported the matter and then carried Mst. Rabia Bibi to the hospital for treatment.
Bare reading of examination-in-?chief of both the eye-witnesses mentioned above makes it clear that their statements on the vital dimensions of the prosecution case i.e. time, and place of occurrence, nomination of the accused, particular attribution of commission of rape with the minor victim are in line and corroborative to each other. Both the eye-witnesses have also furnished probable and plausible reasons of their presence at the time and place of occurrence. The testimonies of both the witnesses bear intrinsic value and inherent worth of truthness and are safely reliable. Despite searching cross-examination upon both the witnesses nothing material elicited in favour of the defence.
Dr. Khizra Akram (P.W.3) examined the minor victim on 23-1-2010`at about 10-24 p.m. In her report the victim was found fully conscious, oriented with time place and person (in accordance with her age) but frightened and in psychological stress however vitally stable. On external examination she observed that inspection of vulva and vagina was not possible as the child victim was agitated and frightened, therefore, 'examination was conducted under general anesthesia whereby she found blood-stains in both inguinal area and vulva. Fresh blood oozing from vagina. Hymen freshly torned with irregular ragged margins and absent at 6' O clock position, permitting tip of little finger. External and internal swabs were taken and sent for chemical examination. After obtaining the reports of ultrasound and report of Chemical Examiner she recorded her final report that sexual assault has been done to victim. Her medical reports are Exh.PC and Exh.PC/1. Dr. Muhammad Siddique Hamid (P.W.1) examined the accused Jahangir aged about 24 years and found him physically capable of performing sexual act in his medico legal report (Exh.PA). The above referred medical evidence produced by the prosecution, therefore, furnishes sufficient corroboration to the ocular account.
Accumulating appraisal of the confidence inspiring ocular account having reliable corroboration of the medical evidence, therefore, leads us to the conclusion that the prosecution has sufficiently established the charge of commission of rape with minor Rabia Bibi against the accused Jahangir. Subsequent conduct of the accused in fleeing away from the place of occurrence along with his shalwar having sight of the witnesses also indicates his guilt.
It is pertinent to mention that ordinary criminal assault and physical violence to a victim do not fall within the purview of 'terrorism' as defined under section 6 of Anti-Terrorism Act, 1997. To take cognizance under the Act (ibid) it remains incumbent upon the court to examine impact of alleged violence and also to see as to whether alleged criminal act was designed to create a sense of terror, fear and insecurity in the mind of general public creating panic in the society. Existence of above parameters is vital to bring the offender within the purview of the offences under the Anti-Terrorism Act, 1997.
As regards the charge under section 7(1) of Anti-Terrorism Act, 1997 in this case both the eye-witnesses i.e. Hafeez?-ur-Rehman (P.W.8) and Jalil-ur-Rehman (P.W.9) have not uttered even a single word in their examination-in-chief with regard to striking of any panic, terror, fear or insecurity in the public or locality in result of the alleged occurrence. Singular statement of one Tariq Mehmood (P. W.10) that after the incident of molestation there was panic all around the area of Habib Colony is neither reliable nor confidence inspiring for the simple reason that while facing the cross-examination he stated that the occurrence came to his knowledge on 23/24-1-2010. Admittedly, he is a motor mechanic and leaves the house for work at 8-00 a.m. and remain at his place of work till night. The above noted solitary statement of Tariq Mehmood (P.W.10) lacking inherent worth without any further corroboration is totally insufficient to prove the charge that the alleged occurrence resulted into striking terror, fear or sense of insecurity among the public in the relevant vicinity, therefore, we are of the considered opinion that the provisions of sections 6 and 7 of the Anti-Terrorism Act, 1997 are not attracted it all in the peculiar circumstances of this case and thus the charge under section 7(1) of Anti-Terrorism Act, 1997 is not proved against the accused. Therefore, to this extent appeal is accepted and the appellant is acquitted in the charge under section 7(1) of the Anti-Terrorism Act, 1997.

YLR 2011 LAHORE HIGH COURT LAHORE 2338 #

2011 Y L R 2338

[Lahore]

Before Sheikh Najam-ul-Hasan and Sardar Tariq Masood, JJ

MUHAMMAD MUSHTAQ and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.528 of 2005, Murder Reference No.693 of 2005 and Criminal Revision No.401 of 2005, heard on 18th January, 2011.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Conjectures and probabilities---Value---Principle---Finding of guilt against an accused should be based surely and firmly on the evidence produced in the case---High probabilities and conjectures inferred from such evidence cannot be made a basis for conviction, as the same cannot take the place of proof---Case decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of accused would deprive him of the golden rule of "benefit of doubt", which has been a dominant feature of the administration of criminal justice, as the same would be reduced to a naught.

Muhammad Luqman v. The State PLD 1970 SC 10 ref.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of-Concept of benefit of doubt being deep-rooted in administration of criminal justice, many circumstances creating doubts are not required to give their benefit to an accused---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused would make him entitled to the benefit, not as a matter of grace and concession but as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Occurrence had taken place in a dark night in the absence of any source of light, where identification of the assailants was not possible---Eye-witnesses in order to prove the identity of accused had improved their statements at the trial by introducing a lantern at the place of incident---Prosecution witnesses had also made improvements in their statements in court in order to connect the accused with the motive behind the occurrence---In the F.I.R. no weapon was specified and only a firearm weapon was mentioned, but during trial in order to bring the ocular account in line with medical evidence a .12 bore gun had been shown in the hand of accused and co-accused---Said improvements had been made with a view to strengthen the prosecution case. and to fill up the lacunae left while recording the F.I.R.---Conduct of prosecution witnesses in making the said improvements had made them absolutely unreliable--Improvements once found deliberate and dishonest would cast serious doubt on the veracity of such witnesses-Only inference would be that complainant and other witnesses had not seen the occurrence---Accused was acquitted on benefit of doubt in circumstances.

Muhammad Luqman v. The State PLD 1970 SC 10; Tariq Parvaiz v. State 1995 SCMR 1345; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Amir Zaman v. Mahboob and others 1985 SCMR 685; Sher Dil alias Gul and another v. The State 1973 PCr.LJ 802; Aslam Khan v. The State. 1987 PCr.LJ 1677; Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others 1984 SCMR 42 and Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 ref.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Improvements made by witnesses in their statements---Effect---When a witness improves his version to strengthen the prosecution case, his statement cannot be relied upon, as he had improved his statement dishonestly---Credibility of such witness becomes doubtful on the principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 ref.

Naseer Ahmad Bhutta for Appellant.

Shahid Bashir Chaudhry, D.P.-G. for the State.

Qadeer Ahmed Rana for the Complainant.

Date of hearing: 18th January, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2350 #

2011 YLR 2350

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD SAGHIR---Petitioner

Versus

THE STATE and 16 others---Respondents

Criminal Miscellaneous No. 1095/Q of 2011/BWP, decided on 7th July, 2011.

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

----Ss. 200, 202 & 561-A---Private complaint---Holding second inquiry after conducting preliminary inquiry---Quashing of order, petition for---Judicial Magistrate after recording the cursory statement of the complainant and her witnesses, while making the observation that the complainant's contentions, prima facie appeared to be strong, directed the DSP to hold inquiry under S.202, Cr.P. C.---Validity-Provisions of S.202(1), Cr. P. C., had manifested only one preliminary inquiry to be conducted, either by the Magistrate or direct the inquiry or investigation to be made by Justice of Peace or by a Police Officer---In the present case, after examining the complaint and recording the cursory evidence of the prosecution witnesses and reaching to the conclusion that contentions raised by the complainant prima facie, seemed to be strong, there was no occasion at all for the Magistrate to direct the DSP to hold further inquiry into the matter---Since the Magistrate had exercised the first option to inquire into the matter himself, there was no justification, in circumstances, to adopt the other alternative as well---Order passed by the Magistrate, in circumstances, was unjustified, illegal and not sustainable in the eye of law---Appellate court had rightly set aside said order---Provisions of S.561-A, Cr. P. C. contemplated inherent powers of the High Court to make such orders as deemed appropriate to give effect to any order passed under the Criminal Procedure Code, 1898, or to prevent abuse of the process of any court or otherwise, to secure the ends of justice---In the present case, no legal infirmity or impropriety was found in the impugned order passed by the Appellate Court, which did not call for any interference in exercise of jurisdiction under S.561, Cr.P. C.

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

----S.561-A---Inherent powers of High Court under S.561-A, Cr.P.C.---Scope.

Tariq Mehmood Khan for Petitioner.

Muhammad Ali Shahab, D.P.-G. for the State.

Ch. Nisar Ahmed Gill for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2352 #

2011 Y L R 2352

[Lahore]

Before Muhammad Qasim Khan and Mazhar Iqbal Sidhu, JJ

GHULAM RASOOL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.191, 192-J and

Murder Reference No. 31 of 2009, heard on 17th February, 2010.

Penal Code (XLV of 1860)---

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Conviction of accused was not challenged---No previous enmity existed between the accused and the deceased---Occurrence had taken place at the spur of the moment---Accused had caused the injury to the deceased with the "Soti" which was not a conventional weapon---Said injury had not been declared by medical evidence to be the cause of death of the deceased, but the other injury on the neck of the deceased attributed to accused had been declared to be sufficient to cause his death in ordinary course of nature---Conviction of accused was maintained, but his sentence of death was reduced to, imprisonment for life in circumstances with benefit of S.382-B, Cr.P. C.

M. Umair Mohsin for Appellant.

Mian Muhammad Tayyib Wattoo and M. Akhtar Chishti for the Complainant.

M. Muhammad Ali Shahab, D.P.-G. for the State.

Date of hearing: 17th February, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2358 #

2011 Y L R 2358

[Lahore]

Before Nasir Saeed Sheikh, J

ALLAH WASAYA and others---Petitioners

Versus

SIKANDAR HAYAT and others---Respondents

Criminal Miscellaneous No.1391-M of 2010, decided on 23rd February, 2011.

Criminal Procedure Code (V of d 898)---

----Ss. 200 & 561-A---Penal Code (XLV of 1860), Ss.324/336/148/149---Attempt to commit qatl-e-amd, causing hurt, rioting armed with deadly weapons---Quashing of order---Sessions Court vide impugned order while accepting the revision petition filed against the order of Magistrate, had remanded the private complaint instituted against the accused petitioners to Trial Magistrate for recording the statement of the complainant first and then to proceed further in accordance with law---Validity---Complaint simply could not be dismissed on the ground that it was instituted with some delay, though it might be considered at the time of final decision, but not at the preliminary stage---Accused had not raised this point at that relevant time and had accepted the first revisional order---Non-compliance of the provisions of S.200, Cr.P.C. would not give any cause of grievance to the accused for dismissal of private complaint as such---All the offences except punishable with death could be tried by a Magistrate of first class empowered under S.30, Cr.P.C.-Judicial Magistrate taking cognizance of the matter being a Section 30 Magistrate, was fully competent to take cognizance of the case and try the same---Petition was dismissed in circumstances.

Muhammad Iqbal and others v. The State 2008 YLR 174; Zafar and others v. Umer Hayat and others 2010 SCMR 1816; Mushtaq Ahmad v. Akhtar Hussain and 3-others 2006 YLR 1959 and Rasool Bux Shaikh v. The State and another 2010 PCr.LJ 733 ref.

M.R. Fakkar Balcoh for Petitioners.

Muhammad Amjad Rafique, Deputy Prosecutor General for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 2367 #

2011 Y L R 2367

[Lahore]

Before Syed Kazim Raza Shamsi, J

MUHAMMAD ASHRAF KHAN and another---Petitioners

Versus

RUBINA KAUSAR and another---Respondents

Writ Petition No.5160 of 2007, heard on 27th June, 2011.

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

----S. 5 & Sched.---Criminal Procedure Code (V of 1898), S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dowry articles---Plaintiff's plea was that defendant had maltreated and confined her in his house, wherefrom she was recovered through Bailiff of Court after filing petition under S. 491, Cr.P.C.---Suit decreed by Family Court upheld by Appellate Court---Validity---Plaintiff through evidence had proved that she was given claimed dowry articles at time of her marriage---Factum of plaintiff's recovery through Bailiff for not being denied by defendant had proved that she had not taken away claimed or any other articles along with her--Plaintiff having been treated by defendant with cruelty and taken legal recourse for her recovery could never dare to take away her dowry articles to her parents house---High Court dismissed constitutional petition in circumstances.

Mian Maqsood Ahmed for Petitioner.

Waqar Anjum for Respondents.

Date of hearing: 27th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2373 #

2011 Y L R 2373

[Lahore]

Before Abdus Sattar Asghar, J

ASMAT ULLAH and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 166 and Criminal Revision No. 85 of 2005/BWP, decided on 17th May, 2011.

Penal Code (XLV of 1860)--

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused had never alleged his minority during course of investigation or trial under the Juvenile Justice System Ordinance, 2000---Contentions raised by counsel for accused alleging adolescence of accused, were devoid of any force, in circumstances---Both the deceased and accused being residents of the same area, case was not of mistaken identification--One of the prosecution witnesses was real brother of the deceased and other one was resident of the same vicinity---Both said prosecution witnesses had corroborated the prosecution version as set forth in the complaint---Being resident of the same village probable reason of their presence at the time and place of occurrence, could not be ruled out---Prosecution witness had narrated the occurrence in line with the prosecution version, which could not be shattered despite lengthy cross-examination upon him-Mere factum ,of his relationship with the deceased as his real brother, could not render the statement doubtful---No previous enmity or personal grudge was attributed to prosecution witnesses---Nothing adverse to the prosecution case could be fetched by the defence side despite lengthy cross-examination-Ocular account produced by the prosecution in shape of the statements of prosecution witnesses bearing inherent worth and intrinsic value, was wholly reliable---Weapon of offence (chhuri), recovered at the instance of accused, was verified as stained with human blood in the reports of Chemical Examiner; and report of Serologist, had sufficiently connected accused with the commission of offence by the prosecution---Medical evidence, also had furnished sufficient corroboration to the prosecution version---Motive as alleged by the complainant was not established and it remained shrouded in mystery, but non-establishing the motive particularly alleged by the complainant, was not fatal to the prosecution case, if otherwise proved with the help of truthful and reliable ocular account---In absence of any previous animosity between the parties, accused had not been able to advance any good reason for his false implication---Defence side had failed to create any dent or doubt in the reliable and truthful ocular account---Case was not of "Qisas" as the eye-witnesses were not subjected to the test of Tazkia-tul-Shahood to award capital punishment---Accused, in circumstances had rightly been convicted and sentenced under S.302(b), P.P.C.---Enhancement of sentence was declined in circumstances.

Ch. Muhammad Afzal Pansota for Appellant.

Malik Muhammad Lateef, Deputy Prosecutor General for the State.

Nadeem Iqbal Choudhary for the Complainant.

2011 Y L R 2399

[Lahore]

Before Ijaz Ahmed, J

Mst. ABIDA RASHID---Petitioner

Versus

ASHIQ HUSSAIN and others---Respondents

Civil Revision No.662-D of 2001, heard on 7th June, 2011.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S. 10---Composite building allotted to several persons---Extent of ownership of each allottee, determination of---Essential factors stated.

The various factors necessary to determine the extent of ownership in case of a composite building would be: (i) the language of transfer-deed and if it is not clear or it is ambiguous, then (ii) the propriety of extension in vertical or horizontal direction; (iii) the principle of indispensability; (iv) the principle of contiguity and continuity; and (v) lastly, the possession of the parties.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S. 10---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 3---Civil Procedure Code (V of 1908), S. 9 & O. VII, R. 7---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for declaration and permanent injunction---Shop in composite building allotted by Settlement Department to plaintiff---Plaintiff claiming to be exclusively entitled to use of roof-top of such shop---Plaintiff filed such suit, while defendant filed subsequent suit for permanent injunction---Judgment of Trial Court decreeing plaintiff's suit and dismissing defendant's suit upheld by Appellate Court---Defendant's plea that Civil Court had no jurisdiction to entertain plaintiffs suit; and that plaintiffs suit in absence of relief of possession was not maintainable under S. 42 of Specific Relief Act, 1877---Validity---Plaintiff in suit had not challenged any order of Settlement authorities---Plaintiff had sought declaration of his exclusive right of ownership of roof-top of his shop---Civil Court was not debarred by law to decide such matter---Defendant had acquiesced to jurisdiction of Civil Court by filing written statement and subsequent suit for permanent injunction---Defendant after having failed in suit and appeal could not be allowed to challenge jurisdiction of Civil Court---Court under O. VII, R. 7, C.P.C., could grant such relief as circumstances of case might require---Plaintiff could not be said to be out of possession of roof-top---Mode of possession in all circumstances could not be same as in some cases daily use of a place would express its possession, while in other cases, mere possession of underneath property would suffice to signify possession of other side---Defendant making use of roof-top could not claim ownership or right to use same for raising construction thereon---Division of property and extension of property in general circumstances would be in vertical directions downwards and upwards till infinite---Roof-top was neither indispensable for proper use of defendant's house nor was subservient thereto---Right of ownership of a shop underneath roof-top could continue above roof to an infinity---Plaintiff had an exclusive right to ownership of roof-top of his shop to a vertical infinity---Defendant had no right to make use of roof-top of plaintiff on principle of contiguity---High Court dismissed revision filed by defendant and upheld impugned judgments/ decrees in circumstances.

Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441; Lt. Col. (R) Hamid Tarique Hanif and others v. Muhammad Shahid and others 2010 SCMR 687; Mirza Inayat Baig represented by Muhammad Aslam Baig and others v. Muhammad Younus 2008 SCMR 491; Abdul Faheem and 5 others v. Pir Muhammad 2001 CLC 795; Muhammad Raman and 2 others v. Abdul Ghani and 4 others PLD 1980 Kar. 99; Habibullah v. Settlement Commissioner and others 1982 SCMR 4; Muhammad Yaqub v. Settlement and Rehabilitation Commissioner. Lahore and 5 others PLD 1973 SC 439; Wajid Ali v. Muhammad Hussain and others 1986 MLD 2915; Fazal-ur-Rehman v. Muhammad Ilyas and 2 others 1991 MLD 2178 (AJ&K) and Haji Ibrahim v. S. Rehmatullah 1985 SCMR 241 ref.

Mst. Asia Begum v. Nehmat Ali and 6 others 1993 MLD 338; Nazir and others v. Syed Israr Ahmad and others 1981 SCMR 829; Saeed Ahmad and others v. Mst. Khatoon Begum and others 1998 MLD 53 and Fazal Muhammad and 6 others v. Member, Board of Revenue and 10 others 1980 CLC 1370 rel.

Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441; Lt.-Col. (R) Hamid Tarique Hanif and others v. Muhammad Shahid and others 2010 SCMR 687; Mirza Inayat Baig represented by Muhammad Aslam Baig and others v. Muhammad Younus 2008 SCMR 491 and Mst. Zinab v. Mst. Muni, and others 2004 SCMR 1786 distinguished.

Sheikh Iftikhar Ahmed for Appellant.

Muhammad Ikram Chaudhry for Respondents.

Date of hearing: 7th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2410 #

2011 Y L R 2410

[Lahore]

Before Abdul Waheed Khan, J

HASSAN KHALID---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary to Government of the Punjab and 2 others---Respondents

Writ Petition No. 11608 of 2011, decided on 30th May, 2011.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S.3---Constitution of Pakistan, Art. 199---Constitutional petition---Preventive detention---Alternate remedy of filing representation before Secretary to Provincial Government, non-availing of---Effect---Constitutional jurisdiction was not meant to supersede and render alternate statutory remedy redundant---High Court declined to entertain constitutional petition directly without availing such statutory remedy---Constitutional petition was dismissed in circumstances.

Wealth Tax Officer v. Shaukat Afzal and others 1993 SCMR 1810 and Sheikh Rashid Ahmad v. D.M Rawalpindi and others PLJ 2004 Lah. 1221 (FB) rel.

Muhammad Shahzad Shaukat for Petitioner.

Wali Muhammad Khan, A.A.-G.

YLR 2011 LAHORE HIGH COURT LAHORE 2416 #

2011 YLR 2416

[Lahore]

Before Umar Ata Bundial, J

BASHIR AHMAD---Petitioner

Versus

ABDUL RASHEED and others---Respondents

Civil Revision No.1629 of 2009, decided on 12th July, 2010.

Civil Procedure Code (V of 1908)---

----S. 115 & O. XLI, R.10---Appellate proceedings---Grievance of petitioner was that he was prejudiced by the late production of documents by respondents and they should not be allowed to produce documents without award of costs---Order of Appellate Court, revealed that appellate proceedings were ordered to continue and conclude subject to deposit by the respondents amount of Rs.5,000 as costs---Respondents deposited said amount of costs accordingly---Grievance of the petitioner, held, stood redressed in terms of said order of the Appellate Court.

Nemo for Petitioner.

Noor-ul-Hassan for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2425 #

2011 YLR 2425

[Lahore]

Before Ch. Iftikhar Hussain, J

SIKANDAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 10591-B of 2010, decided on 13th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148, 149 & 109---Qatl-e-amd---Bail, grant of---Further inquiry---Only role ascribed to accused was that he, along with another, made straight fires on the complainant party, but same did not prove effective---Besides, no other role was ascribed to accused---During the investigation, accused was not found present at the spot at the relevant time and the incident had taken place on abetment of accused---Accused had been challaned to the court merely on the reason that the motive was attributed to him-No recovery was effected from the accused---Was yet to be seen at trial that whether accused could be held liable for the alleged offence---Case of accused, in circumstances, was open to further inquiry into his guilt covered under subsection(2) of S.497, Cr.P.C.---Accused was behind the bars for the last about seven months---Commencement of trial could not come as a clog in, the way of relief of bail to accused---Accused was enlarged on bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Zulfiqar Ali Noon for Petitioner.

Saeed-ur-Rthman, DPP on behalf of State with Muhammad Yaqoob, S.-I. with Police Record.

Khawar Mehmood for the Complainant with Complainant in person.

YLR 2011 LAHORE HIGH COURT LAHORE 2429 #

2011 Y L R 2429

[Lahore]

Before Jjaz Ahmad Chaudhry C.J., Sh. Azmat Saeed and Umer Ata Bandial, JJ

Messrs MEERUB TRAVEL (PVT.) LTD.---Petitioner

Versus

MINISTRY OF RELIGIOUS AFFAIRS through Secretary and 2'others---

Respondents

Writ Petition No. 8617 and C.M.As. Nos.1826, 1877, 1879 of 2011, heard on 6th June, 2011.

(a) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Policy decision--Interference with---If a public functionary had acted in an unjust and oppressive manner, High Court could exercise its constitutional jurisdiction to grant relief to an aggrieved person keeping in view circumstances of each case---Principles.

(b) Haj Policy (2011)---

----Part-III, Cl.19(1)---Constitution of Pakistan, Ans. 4, 18, 25 & 199---Constitutional petition---New enrolment of Private Haj Group Organizers (HGOs) under Haj Policy, 2011---Petitioners' enrollment as HGO denied by Authority due to agreement between Government of Pakistan and Kingdom of Sauid Arabia prohibiting enrolment of new HGOs---Petitioners' plea that Kingdom of Saudi Arabia had not imposed alleged ban; that their non-enrolment was aimed to establish monopoly of already enrolled blue eyed persons having made sub-standard arrangements during previous year---Validity---Authority produced copy of such Agreement, but could not show any restriction on enrolment of new HGOs in minutes thereof---Authority could not explain as to when new HGOs were not to be enrolled and why criteria for new enrolment was laid down in Haj Policy (2011)---Authority had malafidely imposed alleged ban to prevent open contest/competition---No policy or enactment could be made, if same being discriminatory and violative of the Constitution--- Every citizen had inalienable right to adopt trade, business or profession of his choice---Authority by alleged ban had accommodated particular HGOs by creating their monopoly and deprived other eligible citizens of their constitutional right to adopt business of HGO---Private sector had been involved in Haj process with a view to provide solution for problems being faced by pilgrims---Process of enrolment adopted by Authority for being discriminatory and against selection of HGOs through open contest had deprived eligible persons intended to get themselves registered as HGO---Such process had encouraged delinquent HGOs to further humiliate and blackmail pilgrims in year 2011, under private scheme---Old HGOs having maltreated pilgrims in previous years should have been ousted and in their place eligible persons should have been given a chance to prove their skill and expertise in relevant field-Continuation of old HGOs without examining their past conduct and output was unfair---Old HGOs had been awarded seats more than those who get themselves enrolled on basis of order of Supreme Court---Authority was blowing hot and cold in same breath i.e. on one hand they alleged that there was total ban on enrolment of new HGOs, while on the other hand, they had rejected petitioners' applications for not fulfilling prescribed criteria---According to Haj Policy (2011), more than 50% pilgrims had to perform Haj under HGOs, whose conduct, work and integrity was found to be below standard in previous Haj---Haj Policy (2011) was violative of provisions of Arts.4, 18 and 25 of the Constitution---High Court directed Authority to receive applications of petitioners and all other persons intending to get themselves registered as HGOs and if they fulfilled prescribed criteria, their names be enlisted as HGOs---High Court further directed Authority to apply Haj Policy uniformly while allocating seats to HGOs out of quota reserved for private sector.

Messrs Al-Khair Services for Hajj and Umarh Pvt. Ltd. v. Federation of Pakistan PLD 2009 Kar. 1 and Pakcom Ltd. and others v. The Federation of Pakistan and others PLD 2011 SC 44 rel.

---Art. 25---Equal protection of law or equality before law---Scope.

According to the mandate given under Article 25 of the Constitution, all the citizens are equal before law and are entitled to equal protection of law i.e. all persons subjected to a law should be treated alike under all circumstances and conditions both in privileges conferred and in the liabilities imposed. The equality must not be in terms of mathematical calculation and exactness. It must be amongst the equal. The equality has to be between persons, who are placed in the sane set of circumstances. The guarantee contained in this right is only that no person or class of persons shall be denied the same protection of law, which is being enjoyed by other persons or other classes in like circumstances.

Messrs Ahmad Awais, Azhar Siddique, Ishtiaq Ahmad Khan, Ijaz Ahmad Janjua, Syed Yousaf Ali Shah-I, Rana Shakeel Ahmad Khan, Ch. Shaukat Hayat Gondal, Muhammad Arif Awan, Ch. Sarfraz Ali Diyal, Waseem Majid Malik, Abdul Wahid Chaudhary, Riaz Ahmad Siddiqui, Umer Rasheed Sheikh, Ch. Khalid Mahmood, Mian. Muhammad Waheed Akhtar, Ch. Akbar Ali Shad, Mian Khalid Habib Elahi, Athar Ali Sheikh, Nasir Khan Bannusai, Rao Fazal-ul-Rehman, Jabbar Qadeer, Afzal Ahmed Qureshi, Majid Karim Khokhar, Malik Safdar Hussain; M. A. Ghaffar-ul-Haq, Muhammad Amin Goraya, Tahir Butt Saleh, Amin Rehmat, Jamal Mahmood Butt and Muhammad Imran Idrees for Petitioners.

Muhammad Naseem Kashmiri, Muhammad Ilyas Khan and Zia-ul-Qamar, Deputy Attorney-Generals with Muhammad Arshad Bhatti, Additional Secretary, Religious Affairs, Islamabad and Ali Shahbaz Kirmani, Section Officer (Litigation) Ministry of Religious Affairs with record.

Qamar Zaman Qureshi, Advocate for Respondents No. 1 and 2.

Ahmer Bilal Sufi, (in C.M. Nos. 1826, 1877 and 1879 of 2011) for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2445 #

2011 Y L R 2445

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD IRSHAD---Petitioner

Versus

THE STATE and another---Respondents

C.M. No.1 of 2011 in Criminal Appeal No.479 of 2010, decided on 19th May, 2011.

Criminal Procedure Code (V of 1898)---

-----S. 426---Penal Code (XLV of 1860), Ss.376/511--- Rape--- Suspension of sentence, application for---Complainant/ victim, had submitted an affidavit and also stated before the court that she had no objection, if accused was released on bail--Accused was in the judicial lock-up for the last more than one year and nothing was on record to establish that accused was a previous convict or record holder---Application was allowed and accused was ordered to be released on bail during the pendency of appeal.

PCr.LJ 1606; 2002 SCMR 184; 1998 SCMR 466; 2004 PCr.LJ 923; 2009 PCr.LJ 71 and 199 PCr.LJ 1107 ref.

Shoaib Khan for Petitioner.

Ms Shabana Rehman for Respondent No. 2 along with Respondent No.2 in person.

Anwar Ali, DPP for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 2449 #

2011 Y L R 2449

[Lahore]

Before Mamoon Rashid Sheikh, J

FARRUKH AHMAD---Petitioner

Versus

Dr. FAZAL-UR-REHMAN and others---Respondents

Writ Petition No.2101 of 2006, decided on 24th December, 2010.

Civil Procedure Code (V of 1908)---

----O. IX, R.2 & O.XLVII, R.1---Specific Relief Act (I of 1877), Ss.39 & 42---Constitution of Pakistan, Art.199---Constitutional petition--- Suit for declaration and cancellation of documents was dismissed for non-deposit of process fee, was restored concurrently by the courts below on application of the plaintiff---Trial Court at no stage fixed the time period for depositing the process fee, which was mandatory requirement of law-Trial Court being not justified in of fixing time for deposit of process fee, plaintiff could not have been non-suited---Law favoured adjudication of cases on merits and technicalities should not be allowed to stand in the way of substantial justice---Suit having rightly been restored constitutional petition was dismissed, in circumstances.

Ayodyaprasad v. Secretary of State AIR 1924 Nagpur 298 and Pandu and another v. Rajeshwar and others AIR 1924 Nagpur 271 rel.

Sana Ullah Zahid for Petitioner.

Sh. Zameer Hussain for Respondent No.1.

Date of hearing: 2nd November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2454 #

2011 YLR 2454

[Lahore]

Before Ch. Muhammad Tariq, J

MUBASHIR MEHMOOD KHAN alias GORI KHAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.555-B of 2011, decided on 9th June, 2011.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd attempt to commit qatl-e-amd---Bail, refusal of---Accused armed with a pistol had allegedly fired a shot at the left thigh of deceased---F.I.R. was lodged without any loss of time nominating the accused with his specific role in the occurrence---Medical report had supported the contents of the F.I.R.---Deceased in his statement made in injured condition during investigation had fully implicated the accused in the crime---Cross version lodged by the accused side had been found false after investigation---Deceased according to medico-legal report had died due to firearm injury---Discrepancies in medical report and chemical examiner's report could not be looked into at that stage, as the bail application had to be decided on tentative assessment of the material---Case against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused had moved eleven petitions for bail before arrest or protective bail before various courts of the Province and his attitude had disentitled him for any discretionary relief---Trial in the case had commenced---Bail petition was dismissed in circumstances.

Ch. Mehmood Akhtar Khan, Syed Azmat Ali Bukhari and Sardar Zaheer Ahmad Khan for Petitioner.

Muhammad Usman, D.P.-G. with Mehrban S.-I. for the State.

Muhammad Bashir Paracha for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2460 #

2011 Y L R 2460

[Lahore]

Before Ch. Muhammad Tariq, J

Messrs ROHTAS (PVT.) LTD.---Appellant

Versus

Mrs. ASIYA FAYYAZ---Respondent

F.A.O No.153 of 2006, decided on 25th March, 2011.

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

----S. 17--- Ejectment of tenant--- Bona fide personal need--- Default in payment of monthly rent--- Additional evidence---Ejectment application filed by landlady was allowed by Rent Controller and eviction order was passed against tenant---Plea raised by tenant was that Rent Controller did not allow him to tender additional evidence--- Validity---Neither Civil Procedure Code, 1908, nor Qanun-e-Shahadat was applicable in the matters proceeded by Rent Controller, who had merely to hold an inquiry into matter but mode of inquiry was left to him--- Parties had no right to produce such evidence before Rent Controller as they desire---Rent Controller could rightly ignore frivolous application meant for causing delay in disposal of such proceedings---Proceedings before Rent Controller were such as were conducted by an Executive Officer, so Rent Controller before passing final order was not required to dispose of tenant's application for producing additional evidence---High Court declined to interfere in eviction order passed by Rent Controller against tenant---Appeal was dismissed in circumstances.

Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232; Mst. Imtiaz Begum v. Sultan Jan and others 2008 SCMR 1259 and Pak Carpet Industries, Limited v. Government of Sindh and 2 others 1993 CLC 334 distinguished.

Mujeeb-ur-Rehmani Klani for Appellant.

Sh. Zameer Hussain for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2463 #

2011 YLR 2463

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD MAZHAR---Petitioner

Versus

ADDITIONAL I.G. POLICE INVESTIGATION BRANCH PUNJAB LAHORE and 3 others---Respondents

Writ Petition No.3607-Q of 2011/BWP, decided on 4th July, 2011.

Penal Code (XLV of 1860)---

----S. 295-B---Police Order (22 of 2002), Art.18(6)---Constitution of Pakistan, Art.199---Defiling etc., of copy of Holy Quran---Constitutional petition---Change of investigation---Offence being exclusively triable by Sessions Judge, was entrusted to the court of Additional Sessions Judge; who charge-sheeted the accused and directed the prosecution to produce evidence-Additional Inspector-General Police, in the meanwhile, in exercise of powers conferred upon him under Art.18(6) of Police Order, 2002 allowed first change of investigation---Accused being aggrieved of impugned order, called the same in question by invoking constitutional jurisdiction of High Court---Contention of accused was that since the Trial Court had taken cognizance of the offence on report under S.173, Cr.P.C., Additional Inspector-General Police had no power to change the investigation---Validity---Object of investigation was to collect evidence to ascertain the truth and falsehood of the information or complaint for determination of probable innocence or probable guilt of the person suspected of the crime---Some changes in the procedure for transfer of investigation had been introduced with the promulgation of Police Order, 2002---Article 18 of Police Order, 2002 deals with the procedure of investigation and reinvestigation, and object behind introducing the procedure under said Art.18 was to keep process of the investigation away from the Control of Administrative/Executive Authority---Door of the investigation, was not completely closed after submission of report under S.173, Cr.P.C., but it was kept open, perhaps to serve the ends of justice in appropriate cases in order to furnish relevant piece of evidence regarding probable innocence or guilt of an accused, especially at the early stage of the trial---Prosecution in the present case, had not yet opened its evidence as no prosecution witness was recorded---Impugned order passed by Additional Inspector General in exercise of powers in terms of Art.18(6) of Police Order, 2002, did not suffer from any illegality or misuse of any authority---Said order could not be interfered with, in circumstances---Constitutional petition was dismissed.

Aftab Ahmed v. Hassan Arshad PLD 1987 SC 13; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 and Khizar Hayyat v. Inspector-General of Police, Punjab, Lahore PLD 2005 Lah. 470 rel.

Shah Muhammad Khokhar for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2471 #

2011 Y L R 2471

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD MISKIN and others---Petitioners

Versus

CHIEF LAND COMMISSIONER, PUNJAB and others---Respondents

Writ Petition No.350 of 2011, decided on 14th March, 2011.

West Pakistan Land Reforms Regulation (MLR No.64 of 1959)---

----Paras. 16 & 19---Constitution of Pakistan, Art. 199--- Constitutional petition---Void order---Limitation---Scope---Petitioners were tenants of the land which was resumed front its owner and vested in the Government under West Pakistan Land Reforms Regulation, 1959--Senior Member, Board of Revenue dismissed petitioners' revision---Petitioners sought cancellation of the auction of land and all subsequent mutations contending that they had vested legal right in the resumed land--- Validity--- Petitioners challenged the proceedings regarding the suit land after 56 years---Land in question was resumed and auctioned later and entries were made in revenue record in favour of highest bidders---Petitioners' contention that all orders regarding land were void and no limitation ran against a void order was misconceived---Void order was an illegal order but where such order had created consequences, an aggrieved party had to challenge the same---Constitutional petition was dismissed on ground of limitation without touching the merits of the case.

2007 SCMR 914 and 2001 SCMR 1062 fol.

Ch. Afrasaib Khan for Petitioners.

YLR 2011 LAHORE HIGH COURT LAHORE 2474 #

2011 Y L R 2474

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Nasir Saeed Sheikh, J

MUHAMMAD SHAHID ASLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal-No.739 and M.R. N6.219 of 2010, heard on 2nd December, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 309 & 310---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd---Compounding of offence---Application under S.345, Cr.P.C. seeking permission to compound the offence was filed during pendency of appeal---Sessions Judge to whom application was sent for submission of the report with regard to genuineness of the compromise, reported that compromise entered between the parties was genuine---Deputy Prosecutor-General was also satisfied with the genuineness of the compromise, and had no objection, if accused was acquitted of the charge---Compromise had been arrived at between the parties without any duress and coercion---Compromise would advance public policy by shortening litigation and would promote harmony and peace among the warring parties---Permission to grant compromise, was accepted---Appeal filed by accused was accepted, conviction and sentence recorded against accused by the Trial Court, were set aside and he was acquitted and released, in circumstances.

Ahmad Nawaz alias Gogi v. The State PLD 2007 Lah. 121 distinguished.

Muhammad Rashid Bhatty for Appellant.

Abdul Khaliq Safrani for the Complainant.

Khurram Khan, Deputy Prosecutor-General for the State.

Date of hearing: 2nd December, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2489 #

2011 Y L R 2489

[Lahore]

Before Nasir Saeed Sheikh, J

Mst. NAZEER BEGUM through L.Rs. and 4 others---Petitioners

Versus

SHAHID EHSAN ELAHI ---Respondent

Civil Revision No.1904 of 2011, decided' on 8th June, 2011.

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

----O. VII, R. 11(a)---Rejection of plaint for non-disclosing cause of action---Scope---After reading contents of plaint only and accepting same as correct, if no cause of action was made out, then plaint could be lawfully rejected.

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

----Ss. 12 & 22---Civil Procedure Code (V of 1908), O. VII, R. 11(a)---Suit for specific performance of sale agreement---Application under O. VII, R. 11 C.P.C., for rejection of plaint on ground that agreement was not executed by General Attorney of defendant, but by his brother/simple attorney, thus, such unilateral agreement not signed by defendant was not enforceable under law---Validity---Defendant in written statement had admitted execution of agreement through his real brother/attorney---Earnest money partly paid through cheque was admitted by defendant, while partly paid in cash was denied by him---Defendant's plea in written statement was that agreement had lost its efficacy due to efflux of time as time fixed therein for payment of balance amount was essence of the contract---No allegation of forgery had been levelled by any party in respect of agreement---Issues had been framed and evidence of plaintiff had been recorded---Defendant had filed such application after five years of filing of suit---Had defendant filed suit on basis of such agreement, same could not have been dismissed on ground of non-signing of such agreement by him---Plaint did disclose cause of action---Such application was dismissed in circumstances.

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334; Burmah Eastern Ltd. v. Burmah Eastern Employees, Union and others PLD 1967 Dacca 190; S.M. Sluff Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moira) through Legal Heirs 2002 SCMR 338; Khalid Mahmood and 3 others v. Muhammad Yaseen 1988 MLD 1850; Dost Muhammad v. Khair Muhammad and 2 others PLD 2006 Lah. 727; Abdul Rehman v. Sher Zaman and another 2004 CLC 1340 and Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others 2006 MLD 12 ref.

Ch. Mushtaq Ahmad Khan for Petitioners.

YLR 2011 LAHORE HIGH COURT LAHORE 2497 #

2011 Y L R 2497

[Lahore]

Before Nasir Saeed Sheikh and Muhammad Khalid Mehmood Khan, JJ

AKBAR ALI---Appellant

Versus

ADDITIONAL I.G. POLICE and others---Respondents

I.C.A. No.2 of 2011, decided on 2nd February, 2011.

Police Order (22 of 2002)---

----Arts. 2(xiii), 18(6) & 181---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal, maintainability of---Board constituted under Art.18(6) of the Police Order, 2002, having declined request of appellant for change of investigation, appellant filed constitutional petition---Constitutional petition having been dismissed by the Single Judge of High Court, appellant had assailed the order of dismissal in Intra-Court Appeal---Counsel for the appellant had contended that provision of Art.181 of Police Order, 2002 was available only to the Government; and the complainant had no right to file appeal or revision in terms of said Article against the order passed by the Board under Art.18(6) of Police Order, 2002---Definition of 'person' under Art.2(xiii) of Police Order, also includes community, a company or corporation---Company and corporation despite being juristic person, had been included in the definition of 'person'---Contention of counsel for the appellant that it was the Government only who could exercise its power under Art.181 of Police Order, 2002, had no force---Words "annul, reverse or alter", mentioned in Art.181 of Police Order, 2002, had shown that aggrieved person/interested person had the right to pray for annulment, reversal or even in alteration of the order---Original order having been passed by the Board, constituted under Art.18(6) of Police Order, 2002, right of appeal, review and revision was available to the appellant--Intro-Court appeal was not maintainable, in circumstances.

Abdul Khaliq Safrani for Appellant.

Firdous Butt, Assistant Advocate-General.

YLR 2011 LAHORE HIGH COURT LAHORE 2500 #

2011 YLR 2500

[Lahore]

Before Ch. Muhammad Tariq, J

SUBAH SADIQ and others-Petitioners

Versus

SECRETARY and others---Respondents

Writ Petition No.1148 of 2006, decided on 15th March, 2011.

Land Acquisition Act (I of 1894)---

---Ss. 4, 17(4) & 18---Constitution of Pakistan, Art. 199--- Constitutional petition---Petitioner sought enhanced compensation of his land acquired by the provincial Government---Record showed that the Collector, Land Acquisition made a suggestion for enhancement of compensation to the District Price Assessment Committee and the suggestion was withdrawn later---Petitioner having not availed the proper remedy of reference under S.18 of the Land Acquisition Act, 1894, the award had attained finality and the same could not be reconsidered or amended by invoking constitutional jurisdiction---Constitutional petition was dismissed.

1995 CLC 1561 rel.

Mujeeb-ur-Rehman Kayani and Ch. Nisar Ahmad for Petitioners.

Rashid Hafeez, A.A.-G. with Ch. Muhammad Taufiq, DDO(R) and Asghar Hussain G.M. (Legal), CAA.

Anis-ud-Din for Respondent CAA.

YLR 2011 LAHORE HIGH COURT LAHORE 2504 #

2011 Y L R 2504

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

SHAHADAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.955 and Murder Reference No.503 of 2005, heard on 17th August, 2010.

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

----Ss. 302(b), 364 & 201---Qatl-e-amd, abduction in order to murder, causing disappearance of evidence of offence---Appreciation of evidence---Motive set up by complainant was vague and could not be proved---Non-mention of the event of - "last seen" in the F.I.R. by 'the complainant had clearly reflected adversely on the veracity of its evidence---Silence for eleven days by the witnesses of last seen evidence was fatal not only for their statements but also for the prosecution case as a whole---Despite the relationship of the said witnesses with the deceased, they had taken no steps whatsoever to save his life, so much so that admittedly they had not shown the place of last seen to the police during investigation---Belated statements of the witnesses of last seen evidence were nothing but an afterthought and a result of deliberations and concoctions---Medical evidence could only tell the number and nature of injuries, weapon used for causing such injuries and other allied details, but it could not identify the author of the said injuries and the same was not of much significance and relevance in the case---No crime empty having been collected from the place of occurrence, recovery of pistol at the instance of accused and the report of Forensic Science Laboratory thereon, were of no help to the prosecution case---Prosecution had failed to build up a continuous chain of circumstantial evidence with one end making a noose around the neck of the accused and the other end touching the dead body, excluding all hypotheses of his innocence---Prosecution evidence had already been disbelieved by trial Court while acquitting the co-accused and the case of accused was not in any way distinguishable from that of his co?-accused---Impugned judgment was based merely on conjectures and surmises which was set aside in circumstances---Accused was acquitted accordingly.

2000 SCMR 1784; PLD 1991 SC 718; 1980 PCr.LJ 164 and 1988 PCr.LJ 722 ref.

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

----Ss.302(b), 364 & 201---Qatl-e-amd, abduction in order to murder, causing disappearance of evidence of offence---Appreciation of evidence---Circumstantial evidence of last seen together---Nature and essentials---Last seen together is a weak type of circumstantial evidence, which cannot be readily believed unless corroborated by unimpeachable source, and it should be close to the time and place of murder to exclude possibility of innocence---Strong motive and proximity of time of last seen coupled with evidence of incriminating recoveries are the essential ingredients for believing such evidence.

2000 SCMR 1784; PLD 1991 SC 718; 1980 PCr.LJ 164 and 1988 PCr.LJ 722 ref.

Ms. Khalida Parveen for Appellant.

M. Sarwar Sandhu, A.P.-G. for Respondent.

Date of hearing: 17th August, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2533 #

2011 YLR 2533

[Lahore]

Before Ijaz Ahmad Chaudhary and Shahid Hameed Dar, JJ

ASGHAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1349 and Murder Reference No.493 of 2005, heard on 3rd August, 2010.

(a) Penal Code (XLV of 1880)---

----S.302(b)---Qalt-e-amd---Appreciation of evidence---Case against accused being of circumstantial evidence mainly hinged at wajtakkar evidence furnished by the complainant and another prosecution witness, who had seen the accused leaving the place of occurrence while holding a gun in his hand---None of the said witnesses had seen the accused firing at the deceased-Explanation offered by the aforesaid two witnesses for being pressed at the mentioned spot at the relevant time was not believable, as their testimonies were not only full of contradictions and discrepancies, but were also incredible, inconsistent and unnatural---Prosecution had failed to prove the motive as narrated by the complainant before the Investigating Officer-Medical evidence might establish the number and kind of injuries, the weapon used in the offence and other ancillary details, but it could not identify the author of such injuries---Crime empty secured from the place of occurrence having not been sent to the Forensic Science Laboratory for matching with the gun recovered from the accused, the said gun had not been proved to have been used in the offence---Report of the Forensic Science Laboratory showing the workability of the said gun and its bore, was unable to advance the prosecution case against the accused in any manner---Accused was acquitted in circumstances.

Noor Muhammad v. The State and another 2010 SCMR 97 ref.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Motive---Prosecution though not called upon to prove motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequences and not the defence---Prosecution is not absolved of its primary duty to stand on its own legs even in respect of motive.

Noor Muhammad v. The State assisted by another 2010 SCMR 97 ref.

Zubair Afzal Rana assisted by Ch. Nawab Ali Mayo for Appellants.

Sahibzada M.A. Amin Mian, A.P.-G. for Respondent.

Date of hearing: 3rd August, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2545 #

2011 Y L R 2545

[Lahore]

Before Ch. Muhammad Tariq, J

NADAR KHAN---Petitioner

Versus

MUHAMMAD KHAN and 2 others---Respondents

Civil Revision No.2234 of 2002, heard on 15th July, 2010.

Specific Relief Act (d of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration of title---Fraudulent transaction---Proof---Plaintiff claimed that suit land was got transferred by defendant fraudulently---Validity---Record and statements of parties established that plaintiff with his free will appointed general attorney who further alienated the land to another person and the same was in knowledge of plaintiff; which was further exchanged with defendant---Plaintiff delegated powers of alienation of land to general attorney, who was leis relative and both had cordial relations with each other---Contention of plaintiff that power of attorney was executed as a result of fraud, misrepresentation and concealment of fact was misconceived and without any foundation---Suit filed by plaintiff was collusive and judgment and decree passed by Lower Appellate Court was based on surmises and conjectures which was result of misreading and non-reading of evidence as the Court failed to appreciate evidence produced on file---High Court, in exercise of revisional jurisdiction, set aside the judgment and decree passed by Lower Appellate Court and that of Trial Court was restored---Revision was allowed in circumstances.

PLD 2008 SC 389 ref.

Sh. Naveed Shehryar for Petitioner.

Ch. Mushtaq Ahmed Khan and Ashfaq Qayyurn Cheema for Respondents.

Date of hearing: 15th July, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2558 #

2011 YLR 2558

[Lahore]

Before Ch. Muhammad Tariq, J

AHMAD SAEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others---Respondents

Writ Petition No.995 of 2011, decided on 27th January, 2011.

Punjab Rented Premises Act (VII of 2009)---

----S. 15--Constitution of Pakistan, Art.199---Constitutional petition---Default in payment of rent---Denial of relationship of, landlord and tenant---Special Judge (Rent) accepted the petition-Additional District Judge dismissed the appeal---Tenant denied relationship of landlord and tenant on the basis of agreement to sell---Validity---Petitioner having occupied the suit property as tenant could not be allowed to deny the relationship of landlord and tenant in view of landlord's denial of execution of the agreement to sell---Tenant could not retain his possession merely on the basis of the agreement to sell especially when landlord denied such agreement---Execution of agreement to sell by a landlord without termination of relationship of landlord and tenant did not absolve the tenant from paying the rent as once tenant admits title of his landlord could not subsequently deny the same---Tenant failed to point out any illegality or jurisdictional error in the impugned judgments--Constitutional petition was dismissed in limine.

Qazi Mansoor Ahmad for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2564 #

2011 Y L R 2564

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

MUHAMMAD REHMAN KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1287 and Criminal Revision No.616 of 2005, decided on 29th November, 2010.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Promptly lodged F.I.R. had ruled out the possibility of preliminary inquiries, deliberations and consultations at the hands of complainant/prosecution--Complainant was real brother of deceased and other prosecution witness was real maternal nephew of deceased, but merely on the ground of their close relationship with the deceased, their testimony could not be discarded as same inspired confidence; and they had proved their presence at the spot at the time of occurrence, coupled with the fact that in such like cases substitution was a rare phenomenon---Ocular account furnished by prosecution witnesses, found support from the post mortem examination of the deceased and also by medical evidence---Ocular account was further supported from the recovery of blood-stained churri, which was taken into possession and positive reports of the Chemical Examiner and Serologist---Plea of alibi taken by accused was of no avail to accused for the reason; firstly that said plea was not specifically put to the eye-witnesses; secondly; that non-bailable warrants of arrest were issued against accused as he was absent, notice was also issued to the surety, but the interim order was silent as to how the accused, for whose production non-bailable warrants of arrest were ordered to be issued, appeared before the court; thirdly that in the second order a specific time had been given, but it appeared to be with different hand-writing; and lastly that no witness was produced in support of said plea of alibi---Accused, in circumstances, had failed to substantiate said plea---Prosecution had proved its case against accused beyond any shadow of doubt to maintain his conviction under S.302(b), P.P. C.

Muhammad Iqbal v. The State 2002 SCMR 374; Muhammad Yasin and 2 others v. The State 2002 SCMR 391; Mehr Khan v. The State 2003 SCMR 673; Hashmatullah and another v. The State 2003 SCMR 1230; Muhammad Tahir Khan v. State and another 2004 SCMR 1703; Qalb-e-Abbas alias Nahola v. The State 1997 SCMR 290; Mehrban Khan and another v. Javaid Khan and 2 others 2001 SCMR 195; Hameed Klian alias Hameedai v. Ashraf Shah and another 2002 SCMR 1155; Khan alias Khani and another v. The State 2006 SCMR 1744; Liaqat Ali v. The State 2008 SCMR 95; Rohtas Khan v. The State 2010 SCMR 566; Amjad Iqbal v. The State 2010 PCr.LJ 1065; Haji v. The State2010 SCMR 650; Khalid Saifullah v. The State 2008 SCMR 688 and Irshad Ahmad and others v. The State and others PLD 1996 SC 138 ref.

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

----S. 302(b)---Qatl-e-amd---Petition for--Enhancement of sentence---Accused was convicted under S.302(h), P.P.C. and was sentenced to imprisonment for life---Complainant, being dissatisfied with the quantum of sentence, ,filed petition for enhancement of sentence of accused from imprisonment for life to death--Prosecution had not been able to prove the motive set up in the F.I.R., coupled with the fact that the deceased was involved in other criminal cases---As to what exactly happened between accused and the deceased, immediately prior to the occurrence was not known---Trial .Court, in circumstances, was justified in awarding imprisonment for life to accused---Along with the amount of compensation, accused was also directed by the Trial Court to pay fine of Rs.2,00,000 which was not permissible under the law---Said amount of fine, was set aside---Accused was extended the benefit of S.382-B, Cr.P.C., because no convincing reason was given by the Trial Court qua the withholding of said benefit to the accused---Petition was dismissed, in circumstances.

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; Abdus Salam v. State 2000 SCMR 338; Sharafat Ali Khan v. 1'lie State 2010 SCMR 1205 and Muhammad Riaz and another v. The State 2007 SCMR 1413 ref.

Muhammad Akram Qureshi for Appellant.

Ch. Muhammad Mustafa, D.P.-G. for the State.

Muhammad Tariq Mehmood Ahmad for the Complainant.

Dates of hearing: 25th and 29th November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2587 #

2011 YLR 2587

[Lahore]

Before Abdus Sattar Asghar, J

BAKHAT BAIDAR ALI SHAH-Petitioner

Versus

THE STATE and 5 others---Respondents

Writ Petition No.3595 of 2011/BWP, decided on 4th July, 2011.

Penal Code (XLV of 1860)---

----S. 336---Criminal Procedure Code (V of 1898), Ss.173 & 190---Constitution of Pakistan, Art.199---Constitutional petition---Itlaf-i-Salahiyyat-i-Udw---Report of Police Officer---Cognizance of offences by Magistrate---S.H.O. concerned after investigation, submitted report under S.173, Cr. P. C. to the court of Illaqa Magistrate with the recommendation to cancel the case on the grounds that; alleged occurrence had never taken place; that F.I.R. was got registered on the basis of false and baseless, concocted story and that accused were innocent in the case---Magistrate disagreed with the cancellation report of Investigating Officer and ordered to summon accused for trial---Revision petition filed against order of Magistrate had been dismissed by Additional Sessions Judge---Validity---Order passed by a Judicial Magistrate was to be considered a judicial act and revisable under Ss.435 & 439, Cr.P.C.---Legality and propriety of such an order could also be looked into by the High Court under Art.199 of the Constitution---Cancellation report fell within the ambit of S.173, Cr.P.C., Magistrate had power to agree or disagree with that report in exercise of his lawful authority---Report under S.173, Cr.P.C. as to the guilt or innocence of an accused was a mere opinion of Investigating Officer, not binding upon the court---Both impugned orders passed by the Magistrate and Additional Sessions Judge, had made it clear that both the courts had passed the orders after due application of judicial mind while taking into consideration the statements of the complainant and the prosecution witnesses under S.161, Cr.P.C., as well as medical certificate of the complainant wherein alleged injury was declared as Itlaf-i-Salahiyyat-i-Udw attracting offence under S.336, P.P.C.---Innocence or guilt of accused could only be determined after recording evidence of the parties---No illegality or misuse of authority was noticed in both the orders--Constitutional petition was dismissed.

Bahadar and another v. The State and another PLD 1985 SC 62 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

Mian Mansoor Ahmad Sheikh for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2590 #

2011 YLR 2590

[Lahore]

Before Ch. Muhammad Tariq, J

KHURSHID---Appellant

Versus

USMAN NABI---Respondent

S.A.O. No.14 of 2010, decided on 11th March, 2011.

West Pakistan Rented Premises Ordinance (VI of 1959)---

----Ss. 13(2)(i),(3)(ii) & 15---Ejectment of tenant on ground of default in payment of rent and personal bona fide need--Ejectment application had concurrently been accepted by the Rent Controller and Appellate Court---Validity---Wilful default of tenant in respect of payment of rent of premises had fully been proved---Tenant had not denied relationship of landlord and tenant between the parties and tenancy agreement between the parties had also been proved as genuine one---Tenant, denied personal bona fide need of landlord in respect of shop in question contending that landlord was owner of a number of other shops---Contention of tenant was repelled as choice of shop was the prerogative of landlord---Landlord had categorically stated that he required the shop in question for his bona fide personal need---Landlord was not cross-examine by the tenant, which amounted to admission on his part---Concurrent findings of two courts below with regard to wilful default of tenant and bona fide personal need of landlord in respect of shop in question, could not be interfered with when counsel for tenant had failed to point out any illegality or jurisdictional error in impugned orders.

Ch. Afrasiab Khan for Appellant.

Muhammad Akhtar for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 2593 #

2011 Y L R 2593

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

MUZAFFAR alias BILLOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.755 and Murder Reference No.496 of 2005, heard on 1st November, 2010.

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

----S. 302 (b)--- Qatl-e-amd---Appreciation of evidence---Plausibly explained presence of the complainant and other eye-witness at the scene of occurrence was supported by the timely lodged F.I.R. and the inquest report---Eye-witnesses, though closely related to the deceased, had no previous enmity with the accused and had no reason to falsely involve hint in the case---Kith and kin of deceased in a case of single 'accused: would not probably substitute the real culprit with smite innocent person---Medical evidence had fully corroborated the ocular testimony--Conviction of accused was consequently upheld---According to prosecution itself; no previous enmity existed between the deceased and the accused and the occurrence trod taken place suddenly on a petty matter---What had exactly happened between the accused and the deceased prior to the occurrence was not clear---Report of Forensic Science Laboratory was of no help to prosecution--Accused had not repeated the fire shot--Sentence of death awarded to accused was altered to imprisonment for life in circumstances.

Haji v. The State 2010 SCMR 650; Khalid Saif Ullah v. The State 2008 SCMR 688; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Mushtaq and 3 others v. The State PLD 2008 SC 1; Muhammad Arshad and 2 others v. The State PLD 1996 SC 122; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; 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; Abdus Salam v. State 2000 SCMR 338; Sharafat Ali Khan v. The State 2010, SCMR 1205; Muhammad Riaz and another v. The State 2007 SCMR 1413 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Substitution---Substitution is a phenomenon of a rare occurrence, because even the interested witness would not normally allow real culprits of the murder of their relatives let off by involving innocent persons.

Khalid Saif Ullah v. The State 2008 SCMR 688 and Irshad Ahmad and others v. The State and others PLD 1996 SC 138 ref.

----S. 302(b)---Qatl-e-amd--- Sentence, quantum of-Question of quantum of sentence in criminal cases requires utmost care and caution by the courts, as such decisions restrict the life and liberties of the people---Accused persons indeed are also entitled to extenuating benefit to the extent of quantum of sentence.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 ref.

Sher Afghan Asadi for Appellant.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Date of hearing: 1st November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2603 #

2011 Y L R 2603

[Lahore]

Before Rauf Ahmad Sheikh and Mamoon Rashid Sheikh, JJ

ZEESHAN alias SHANI---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.218-T, Criminal Revision No.98 and Capital Sentence Reference No.60-T of 2007, heard on 25th January, 2011.

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

----Ss. 7(a) & 32---Criminal Procedure Code (V of 1898), S.544-A---Act of terrorism---Appreciation of evidence---F.I.R. was promptly lodged---Presence of eye-witnesses at the scene of occurrence was categorically mentioned in the F.I.R., who had proved that the accused after having called the deceased to the place of occurrence along with the bag containing the ransom money, had snatched the bag and fired at the deceased which resulted in his death---Criminal empties secured from the spot had matched with the pistol got recovered by the accused, which had proved the use of the pistol during the occurrence---Recovery of Rs.2,20,000 along with other documents kept in the bag of the deceased, had also been made from the accused and proved on record---Medical evidence was in line with ocular account furnished by trustworthy witnesses---Accused had committed the murder of the deceased in a gruesome manner---Conviction of accused and his sentence of death with fine were affirmed in circumstances---Complainant had filed a Revision petition for awarding compensation to the heirs of the. deceased---Section 544-A(1), Cr.P.C. was not inconsistent with the provisions of Anti-Terrorism Act, 1997, and by virtue of S.32 of the said Act was applicable to the proceedings before Anti-Terrorism Court---Gruesome manner in which the deceased was murdered was a sufficient cause to award compensation to his heirs under S.544-A, Cr.P.C.---Consequently, accused was directed to pay a sum of Rs.300,000 as compensation to the heirs of the deceased or in default thereof to undergo two years' , S.I.

Malik Shahid Munir, Defence Counsel for Appellant.

Sardar Muhammad Ishaq Khan for the Complainant.

Muhammad Usman Deputy, Prosecutor General for the State.

Date of hearing: 25th January, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2610 #

2011 YLR 2610

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD NAEEM---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No.459 of 2010, decided on 8th March, 2011.

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

----S. 7---Penal Code (XLV of 1860), Ss. 302/379/411/34--- Qatl-e-amd, theft, dishonestly receiving stolen property---Determination of age of accused---Recording of two names in the relevant entry of the Birth Register had made the birth entry of accused doubtful---Record of School Leaving Certificate as well as extract of admission and withdrawal register, were not conclusive proof of the age of the accused petitioner---Court, therefore, could only rely on the two reports of different medical boards present on record---According to one medical board accused was 16 to 17 years of age on the date of commission of offence, whereas other medical board was of the opinion that he was 18 to 19 years old on the said date---Age of accused at the relevant time, thus, could safely be calculated as less than 18 years---Court under S.7 of the Juvenile Justice System Ordinance, 2000, was ordained to consider medical evidence, also while determining the age of accused, which, in the present case, could safely be relied upon, when other documentary evidence was of doubtful nature---Impugned order of Trial Court was consequently set aside and the accused was declared as "child" as defined under S.2(b) of the said Ordinance--Revision petition was allowed accordingly.

Muhammad Zakir v. The State and another 2004 SCMR 121; Muhammad Anwar v. Muhammad Suffyian and another 2009 SCMR 1073 rel.

Hassan Zafar v. The State 2001 PCr.LJ 1939; Tauseef alias Captain v. The State and another PLD 2009 Lah. 535; Azmat Hussain Shah v. The State 2008 YLR 499; Mst. Shabana Kausar v. Farhan Ahmad and others 2003 PCr.LJ 1507, Subedar Sabir Ali v. The State and another 2005 YLR 821; Sanaullah v. The State 2006 PCr.LJ 430; Muhammad Nasir v. The State 2007 MLD 148; Zafar Iqbal v. Ehsan Ali and another PLD 2008 Lah. 26 and Allah Ditta v. The State (2010 PCr.LJ-909) ref.

Masood Riaz for Petitioner.

Malik Muhammad Amjad Rafique, D.P.-G.

YLR 2011 LAHORE HIGH COURT LAHORE 2616 #

2011 Y L R 2616

[Lahore]

Before Rauf Ahmad Shaikh, J

GHULAM JAFFAR and another---Petitioners

Versus

THE STATE and 3 others---Respondents

Writ Petition No.7471 of 2011, decided on 8th April, 2011.

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

----S.176 (2)---Constitution of Pakistan, Art.199---Constitutional petition---Cause of death, determination of-Lin-natural death---Wife of petitioner did not die natural death and according to respondent she was murdered, whereas petitioner contended that she lost her life due to electric shock---Lower Appellate Court allowed the application filed by respondent for disinterment of the body of wife of petitioner---Plea raised by petitioner was that when husband and father of deceased had opposed disinterment of the body then the same could not have be allowed---Validity---Determination of cause of death was necessary to arrive at just conclusion---Magistrate was empowered under section 176 (2) Cr.P.C. regarding disinterment of dead body of a person whose death had occurred in a suspicious circumstances, in order to determine actual cause of death---Magistrate in view of specific allegation failed to exercise powers vesting in him under the law so Lower Appellate Court while exercising revisional jurisdiction had rightly rectified the irregularity committed---Order passed by Lower Appellate Court did not suffer from any irregularity---Petition was dismissed in circumstances.

2005 PCr.LJ 736 distinguished.

Mst. Ghazala Begum and others v. The District Magistrate, Khanewal and others 1996 PCr.LJ 389 and Ghulam Hussain v. District Magistrate, Muzaffargarh and 3 others 1992 PCr.LJ 1870 ref..

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope----Order passed by court of competent jurisdiction, which is otherwise in accordance with law, cannot be called in question in exercise of Constitutional jurisdiction under Art.199 of the Constitution.

Mazhar Ali Ghallu for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2623 #

2011 YLR 2623

[Lahore]

Before Sagheer Ahmed Qadri, J

Ch. WASIB HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision Nos.180 to 182 of 2010, decided on 10th May, 2011.

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

----Ss. 514 & 439---Penal Code (XLV of 1860), Ss.302/324/34--Qatl-e-amd, attempt to commit qatl-e-amd---Forfeiture of bail bonds---Petitioners had stood sureties for three accused in the sum of Rs.500,000 each---Accused involved in a murder case had absented from the court at the last stage of the trial likely to conclude soon and hindered the administration of justice---Trial Court then forfeited the entire surety amount---Petitioners, according to their bail bonds were bound to fulfil their commitment of producing the accused in court, but despite the time given to them in that regard they had failed to do so---Plea of the petitioners simply was that they in becoming sureties of the accused had not gained any monetary benefit---Forfeiture of whole of the surety amount mentioned in the bail bonds was a rule and any leniency demanded therein had to be specifically agitated and the grounds in support thereof had to be proved before the court---No undue leniency should be shown by the court while forfeiting the amount of bail bond---Approach of the court in this respect should be dynamic and progressive oriented with the desire to discourage the accused persons to jump bail bonds---No ground for showing any leniency in favour of petitioners sureties was made out---Petitions were dismissed accordingly.

Gul Muhammad v, The State 2005 YLR 1602; Nazar Muhammad v. The State PCr.LJ 2063; Saeed Akhtar v. The State 2009 SCMR 834 and Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

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

----S. 514---Forfeiture of bond---General rule---Forfeiture of whole of the surety amount mentioned in the bail bond is a rule---Any leniency, if demanded, should be specifically agitated and the grounds therefor have to be proved before the court---Courts while forfeiting amount of bail bond should not show any undue leniency and take a dynamic and progressive oriented approach in order to discourage the accused persons to jump bail bonds---Entire surety amount becomes liable to be forfeited after an accused jumps bail bond in the absence of any mitigating circumstances.

Saeed Akhtar v. The State 2009 SCMR 834 ref.

Haider Mahmood Mirza for Petitioner.

Malik Riaz Ahmad Saghla, D.P.-G. for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 2632 #

2011 Y L R 2632

[Lahore]

Before Sardar Tariq Masood and Muhammad Shamim Khan, JJ

JAVED alias SHAHID and another---Petitioners

Versus

THE STATE---Respondent

Criminal Appeals Nos.100, 228 and Murder Reference No.95 of 2005, heard on 4th May, 2010.

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

----Ss. 302(b)/34 & 392/34--Qatl-e-amd, robbery---Appreciation of evidence---Benefit of doubt---No direct evidence was available in the case, which rested mainly on last seen evidence and extra judicial confession of accused---Accused were not previously known to the prosecution witness of last seen evidence and no identification parade was held in the presence of Magistrate to ascertain whether he could identify the accused with whom deceased was going---Sanctity of identification of accused through parade in the presence of Magistrate according to law, could not be attached to their identification in the court, because of availability of many chances to the witnesses of having seen the accused during investigation and the trial-.-Prosecution witness had identified the accused in the court after store than eight and a half months of their arrest having many chances to see them---Evidence of last seen, therefore, did not inspire confidence in the absence of any legal identification parade---Robbed Taxi Car was neither produced in the court, nor the same was got identified by the witnesses---No documents regarding the ownership of the said car were produced during investigation or trial---Recovery of car, thus, did not connect the accused with the crime---None of the crime empties having been matched with the pistol recovered from the accused, this recovery too did not help the prosecution---Making of extra-judicial confession by the accused after two months of the occurrence in the absence of any direct evidence against them, was not believable---Prosecution witnesses did not inform the Police immediately about the said extra judicial confession---Police had recorded the statement of the witness in this regard after nine days---Delayed statements were not confidence inspiring-Extra-judicial confession was not corroborated by any cogent or legal evidence---Prosecution evidence was full of doubts and the accused were entitled to the same as a right---Accused were acquitted in circumstances.

Muhammad Luqman v. The State PLD 1970 SC 10 and Tariq Parvaiz v. The State 1995 SCMR 1345 ref.

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

----Ss. 302(b)/34 & 392/34---Qatl-a-amd, robbery---Appreciation of evidence---Benefit of doubt---Conjectures and probabilities are not a substitute of' proof-Finding of guilt against an accused cannot be based merely on the high probabilities inferable from the evidence and the same should be rested surely and firmly on the evidence produced in the case and the plain inference of guilt that may irresistibly be drawn front that evidence---Conjectures and probabilities alone cannot take the place of proof--Case decided on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, would reduce to a naught the golden rule of' benefit of doubt, which was a dominant feature of the administration of criminal justice with the consistent approval of the Superior Courts.

Muhammad Luqman v. The State PLD 1970 SC 10 ref.

----Ss. 302(b)/34 & 392/34---Qatl-e-amd, robbery---Appreciation of evidence---Benefit of' doubt, extension of--Principles-Concept of benefit of doubt to an accused person is deep-rooted---Many circumstances creating doubts are not necessarily required for giving benefit of' doubt to an accused---Single circumstance creating reasonable doubt in a prudent mind about the guilt of' accused would make him entitled to the benefit not as a matter of grace and concession, but as a matter of' right.

Tariq Parvaiz v. The State 1995 SCMR 1345 ref.

Ch. Prvaiz Aftab for Appellant.

Syed Mukhtar Masood Bukhari, DDPP for the State.

Nemo for the Complainant.

Date of hearing: 4th May, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2647 #

2011 Y L R 2647

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD AJMAL---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No. 4203-Q of 2010, decided on 18th June, 2010.

West Pakistan Pure Food Ordinance (VII of 1960)---

---Ss. 21/23(c)---Penal Code (XLV of 1860), Ss.272/273/420---Constitution of Pakistan, Art.199---Adulteration of food or drink intended for sale, sale of noxious food or drink, cheating---Constitutional petition---Quashing of F.I.R.-Food items purchased by the complainant (Headmaster) from the Bakery of accused petitioner had made the students of the school seriously ill---West Pakistan Pure Food Ordinance, 1960, being a special law prevailed on the general law---Complaint in the case was not lodged by the authorized person as provided under S.32 of the said Ordinance---Registration of F.I.R. and subsequent proceedings thereon, therefore, were illegal and unlawful---Offences under Ss.272 and 273, P.P.C. were non-cognizable and in such cases F.I. R. under S. 154, Cr. P. C. could not be registered directly---For such purpose procedure provided by S.155, Cr.P.C. had not been followed by the Police---Registration of F.I.R. in non-cognizable offences was also illegal---Impugned F.I.R. and the proceedings pending before Trial Court consequent thereupon were quashed in circumstances.

Mubarik Ali v. The State 1969 PCr.LJ 404; Izzat Khan v. Muhammad Iqbal and another 2010 PCr.LJ 558; Sharafat Ali v. S.H.O. and others PLD 2009 Lah. 8 and Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 ref.

Syed Zia Haider for Petitioner.

Syed Jawad Shahid Naqvi for Respondent No.4.

Mirza Muhammad Saleem Baig, Addl. A.G. Haji Muhammad, A.S.-I. with record.

Date of hearing: 26th May, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2650 #

2011 Y L R 2650

[Lahore]

Before Kh. Imtiaz Ahmed and Ch. Muhammad Tariq, JJ

MUHAMMAD SHAKEEL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.442 of 2006, Criminal Revision No.54 and Murder Reference No.12 of 2007, heard on 17th June, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qalt-e-amd---Appreciation of evidence---Deceased lady, wife of accused, was found lying dead in the bed and the accused was found lying semi-conscious on the sofa, in the room of a Hotel, where they were staying---Body of the deceased was smeared with blood with a cut on her right wrist, whereas accused had a cut injury on his left wrist---One blood-stained "Chhuri" was recovered from near the hand of the accused lying on the carpet---Circumstances showed that the couple had planned to finish their lives by cutting their veins---Investigating Officer had completed the inquest report according to his own choice after the autopsy of the deceased---Prosecution had failed to take finger prints on the "chhuri "---Deceased had neither made any struggle nor did she raise arty hue and cry, and so nobody was attracted from the adjoining rooms of the Hotel to the roost of the occurrence---Case was of suicide, where both the spouses had decided to kill themselves for the reasons best known to them, wherein the accused husband luckily survived and his wife met with death---Accused was acquitted of the charge of Qatl-e-amd in circumstances and the appeal was accepted accordingly.

Aftab Farukh and Tariq Nadeem for Appellant.

Basharat Ullah Khan for the Complainant.

Ahmad Raza Gilani Additional Prosecutor-General for the State.

Date of hearing 17th June, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2660 #

2011 Y L R 2660

[Lahore]

Before Sardar Tariq Masood and Sardar Muhammad Shamim Khan, JJ

IMTIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.799, Murder Reference No.849, and Criminal Revision No.431 of 2003, heard on 1st June, 2010.

Penal Code (XLV of 1860)---

---Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Prosecution had proved the motive of occurrence given in the F.I.R. against the accused---Complainant, father of deceased, was a chance witness who had created a false reason for having become an eye-witness in the occurrence---Extraordinary delay of four days in lodging the F.I.R. had revealed that complainant was not present at the scene of incident and his evidence was not reliable---Other eye-witness was a natural and independent witness of the occurrence, who had categorically involved the accused specifying his role in causing injuries to the deceased and remained consistent on each and every material point during cross-examination---Evidence of said eye-witness was supported by medical evidence and inspired confidence---Deceased had suffered all the fire arm injuries on his legs and crone of the these injuries had been declared to be dangerous to life by the Doctor in his medico-legal report prepared in his injured condition---Deceased had died after four months of the occurrence, and remained conscious during this period, but Investigating Officer did not record his dying declaration--- Post-mortem examination of the deceased could not be conducted on account of the efforts of the complainant himself-Cause of death of deceased could not therefore, be ascertained with certainty, so no offence under S.302, P.P.C. was made out against the accused---Extraordinary abscondence of accused for five years was also a corroborative piece of evidence against him---Conviction of accused under S.302(b), P.P.C. was consequently set aside and instead he was convicted under S.324, P.P.C. and sentenced to 10 years' R.I., with fine and benefit of S.382-B, Cr. P. C. in circumstances.

Sheikh Muhammad Raheem, Sahibzada Farooq Ali Khan and Rana Nadeem Ahmad Kanjoo for Appellant.

Rana Kashif Saleem Arfaa, Law Officer for the State;

Abdul Aziz Khan Niazi for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2669 #

2011 Y L R 2669

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD NAVEES---Petitioner

Versus

THE STATE and another--- Respondents

Criminal Miscellaneous No.4451/B of 2011, decided on 3rd May, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Accused along with three others was alleged to have made only ineffective firing on the complainant---No injury or fire shot was ascribed to the accused either on the deceased or the injured witness---Question of vicarious liability of accused in occurrence would be determined at the trial---Accused after having been found innocent in investigation had been placed in Column No.2 of the challan---No incriminating recovery had been effected from the accused despite his physical remand with police for 14 days-Guilt of accused needed further probe within the ambit of S.497(2), Cr. P. C. ---Alleged abscondence of accused for about two years could not come in his way for grant of bail, if he otherwise was found entitled to such relief on merits---Accused was admitted to bail in circumstances.

Niamat Ali v. The State 2009 YLR Kar. 367 ref.

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

----S. 497(2)-Penal Code (XLV of 1860), Ss.302/324/34---Bail--- Abscondence of accused---Effect---When accused is found entitled to bail on merits on the basis of his case being one of further inquiry under S.497(2), Cr.P.C., his abscondence alone would not come in his way for getting such relief.

Niamat Ali v. The State 2009 YLR Kar. 367 ref.

Muhammad Riaz Chaudhry for Petitioner.

Ch. Karamat Ali, Deputy Prosecutor-General for Respondent No.1/State with Shahadat Ali S.-I. with Police Record.

Muhammad Imran Bhatti for Respondent No.2/Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2676 #

2011 Y L R 2676

[Lahore]

Before Shahid Hameed Dar and Sardar Muhammad Shamim Khan, JJ

MUHAMMAD RAFIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.626 and Murder Reference No. 719 of 2006, heard on 23rd February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Qatl-e-amd, causing disappearance of evidence of offence--Appreciation of evidence---Case was of circumstantial evidence based on last seen evidence, evidence of recoveries and medical evidence---Prosecution witness had not only seen the deceased in the company of the accused, but he also had a dialogue with them---Medical evidence had corroborated the last seen evidence---Dead body of the deceased had been recovered from a house situated at a distance of 200/300 yards from the place where the deceased was lastly seen with the accused---Evidence of the said prosecution witness could not be discarded simply due to his relationship with the deceased, as he' had no enmity with the accused and intrinsic worth of his evidence had led to his truthfulness---Recovery of the dead body of the deceased from the house of accused on his pointation, was a' strong evidence connecting hint with the commission of the offence---Accused had not explained that how the said dead body was buried in his house---Even it was not suggested to the prosecution witnesses that the dead body of the deceased was not recovered on pointation of accused from his house---Conviction and sentences of accused were upheld in circumstances.

Prince Rehan Iftikhar Sheikh for Appellant.

Munir Ahmad Sial, D.P.-G. for the State.

Ch. Daood Ahmad Wains for the Complainant.

Date of hearing: 23rd February, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2684 #

2011 Y L R 2684

[Lahore]

Before Ch. Iftikhar Hussain, J

ZULQARNAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3344/B of 2011, decided on 18th April, 2011.

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 not named in the F.I.R. and he had been involved in the case by the complainant for the first time through his supplementary statement made one year and ten months after the incident---Evidence of two prosecution witnesses recorded under S.161, Cr.P.C. about the extra judicial confession made by accused, did not bear any date---Complainant in his complaint had mentioned the date of said extra judicial confession, which showed the same having been made after more than two years of the occurrence---Belated supplementary statement of the complainant and delayed - evidence in respect of the extra judicial' confession of accused had made the case against accused of further inquiry into his guilt under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Nasir Ayub Awan for Petitioner.

Khurram Khan, Deputy Prosecutor General for Respondent No.1/State with Rukhan-e-Alam, A.S.-I. with Police Record.

YLR 2011 LAHORE HIGH COURT LAHORE 2685 #

2011 Y L R 2685

[Lahore]

Before Ch. Muhammad Tariq and Sayyed Mazahar Ali Akbar Naqvi, JJ

SALMA BIBI---Petitioner

Versus

RPO and others---Respondents

Writ Petition No.452 of 2011, decided on 19th May, 2011.

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

----S. 154---Constitution of Pakistan, Art. 199--- Constitutional petition---Registration of F.I.R.---Petitioner had sought for direction to Police Officers to register a criminal case against the accused persons for abduction of her brother and his friend---Said persons had been allegedly abducted by the Police Officials on the asking of the S.H. O.-Ex-officio Justice of Peace on two separate applications of the petitioner filed under Ss.22-A and 22-B, Cr.P.C. had directed RPO, to proceed on the said applications after holding an enquiry through a Gazetted Officer and if the averments therein were found correct, then to proceed further in the matter under S.154, Cr.P.C.---Held, no Officer Incharge of a Police Station or any one else was vested with any authority to ref use to record F.I.R. where the information conveyed had disclosed the commission of a cognizable offence---Incharge of a Police Station or any one else was not vested with authority to hold any inquiry into the correctness or otherwise of the information conveyed to S.H.O., for the purpose of recording F.I.R.---Respondent S.H.O. was consequently directed to' entertain the application of the petitioner pending before him and proceed strictly in accordance with law keeping in view the provision of S.154, Cr.P.C.---Constitutional petition was allowed accordingly.

Muhammad Bashir v. S.H.O. Okara Cantt. and others PLD 2007 SC 539 rel.

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

----S. 154---Information in cognizable cases---Registration of F.I.R.---No authority vests with an Officer Incharge of a Police Station or with any one else to refuse to record F.I.R. where the information conveyed discloses the commission of a cognizable offence---1ncharge of a Police Station or any one else had no authority to hold any inquiry into the correctness or otherwise of the information conveyed to S.H.O., for the purpose of recording F.LR.

Muhammad Bashir v. S.H.O. Okara Cantt. and others PLD 2007 SC 539 ref.

Sh. Muhammad Yaqoob for Petitioner.

Khursheed Ahmed Satti, Assistant Advocate-General Punjab.

Basharat Ullah Khan Vice-Counsel for Respondent.

Muhammad Tufail, SSP, RIB for Respondent No.1.

Muhammad Javed DSP. Muhammad Sharif, DSP.

YLR 2011 LAHORE HIGH COURT LAHORE 2690 #

2011 Y L R 2690

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SABIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1178-B of 2011, decided on 5th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/ 201/ 148/ 149/ 109--- Qatl-e-amd, causing disappearance of evidence of offence, rioting armed with deadly weapons, abetment---Bail, grant of---Further inquiry---F.I.R. was registered after sixteen days about an un-witnessed incident---Supplementary statement of complainant had a different version than the one given in the F.I.R.---Joint extra-judicial confession of accused and his co-accused had been made after two months of the occurrence during investigation in the presence of Police---Evidentiary value of such extra-judicial confession was yet to be determined by Trial Court---Sister of the deceased in her private complaint regarding the alleged incident had given a different version than the one contained in the F.I.R.---Guilt of accused, thus, required further inquiry---Co-accused having an identical role in the occurrence had already been released on bail by Trial Court and accused was also entitled to the same relief on the rule of consistency---Accused was not a previous convict and he was behind the bars for the last many months---Bail was allowed to accused in circumstances.

Ameer Ali v. The State 2004 PCr.LJ 1649 and Rafique alias Rafique Ahmed v. The State PLD 2002 Kar. 317 rel.

Syed Hassam Qadir Shah for Petitioner.

Ch. Karamat Ali, D.P.-G. for Respondent No.1/State with Ansar Khan, A.S.-I. with record.

Khan Imtiaz Ali Khan for Respondent No.2/Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2697 #

2011 YLR 2697

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SAFEER HUSSAIN SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.425-J of 2009, heard on 1st November, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Accused was stated to have killed his wife---There was no eye-witness of the occurrence---Prosecution case rested on the statements of witnesses of the extra judicial confession allegedly made by the accused---Said statements were at variance on salient features---Both the witnesses being closely related to complainant were interested witnesses and they did not disclose the time and place when and where the accused had confessed his guilt before them---Accused though was stated to have committed the murder of the deceased for contracting second marriage yet none of the prosecution witnesses could disclose the name of the woman with whom he wanted to get married---Motive for the occurrences such had not been proved---Main prosecution witnesses having failed to substantiate the prosecution version, medical evidence being of corroboratory nature, could not advance the prosecution case---Prosecution evidence was full of material contradictions and discrepancies---Extrajudicial confession was always considered a very weak type of evidence, which in the present case had damaged the case of prosecution due to the above reasons---Accused was acquitted on benefit of doubt in circumstances.

Syed Shabahat Hussain Tirmazi for Appellant.

Mian Muhammad Awais Mazhar, Deputy P.G. for the State.

Date of hearing: 1st November, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2702 #

2011 Y L R 2702

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD SALEEM---Petitioner

Versus

KHADIM HUSSAIN and another---Respondents

Writ Petition No.9377 of 2010, decided on 16th March, 2011.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.1---Withdrawal of suit---Court was empowered under O.XXIII, R.1, C.P.C. to grant permission to re-file fresh suit after withdrawal of earlier one, but to get concession, the plaintiff must show some technical/formal defects as sufficient ground which necessitated the filing of another suit---Plaintiff if wanted to withdraw a suit with the permission to re-file fresh suit, sufficient grounds must have been made out before the trial court and after taking into consideration the same court could pass an appropriate order in that respect.

Pehlwan and others v. Haji Muhammad Murad and others 2005 SCMR 1405 ref.

Tariq Murtaza Khan Malezai for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 2705 #

2011 Y L R 2705

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ILYAS KHAN LODHI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 4 others---Respondents

Writ Petitions Nos.8350 to 8353 of 2010, decided on 26th May, 2011.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 21 & Sched. ---Constitution of Pakistan, Art. 199---Constitutional petition---Application for setting aside of ex parte ejectment order---Tenant's pleas were that no relationship of landlord and tenant existed between parties; that no notice in prescribed form had been issued to him; that refusal report of Process Server was false; and that he came to know about ex parte order during its execution---Order of Rent Tribunal dismissing such application was upheld by Appellate Court---Validity---Notices issued to tenant under O. V, C.P.C., did not provide for filing of leave application within 10 days nor copies of ejectment petition and documents were annexed therewith---Notices issued to tenant through process server and newspapers were neither in prescribed form nor accompanied with copies of ejectment petition and other documents---Demised premises was shop, but notices had been issued to tenant at residential address---Report of Process Server did-not show that he approached tenant at his shop---Notices issued and proclamation published showed that tenant was not called upon to file leave application within 10 days---No notice in prescribed form in terms of S.21(1) of Punjab Rented Premises Act, 2009 had been served upon tenant, thus, he could not be proceeded against ex parte nor ejectment order could be passed against him---Tenant, in application for setting aside ex parte order had taken ground for leave to contest ejectment petition---Prayers for setting aside ex parte order and grant of leave to contest ejectment petition could be made in one application and no separate application therefor would be required---High Court set aside impugned orders and accepted application for setting aside ex parte ejectment order while directing Rent Tribunal to provide copies of ejectment petition and other documents to tenant, who would be bound to file leave 'application within 10 days.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 21---Prayers for setting aside of ex parte ejectment order and grant of leave to contest ejectment petition---Scope---Both such prayers could be made in one application, and no separate application therefor would be required.

----Art. 10-A---Right of parties to be heard and to have a fair trial---Scope---Law never intended that dispute between parties should be decided on technicalities but was meant for advancement of justice and justice could be done only after hearing both parties and deciding case on merits.

Malik Muhammad Latif Khokhar for Petitioner.

Sh. Tanveer Ahmed for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2718 #

2011 YLR 2718

[Lahore]

Before Ijaz Ahmad, J

ABDUL GHAFOOR and another---Petitioners

Versus

ZAHOOR AHMAD through legal heirs and 10 others---Respondents

Civil Revision No.712 of 2004, heard on 2nd May, 2011.

Civil Procedure Code (V of 1908)---

----S. 115---Revision petition---Competency---Revision petition when filed carried the name of respondent who had already died---Effect---No cause could be initiated against a dead person---All the parties to a lis had to be impleaded in the appeal or revision---Legal heirs of deceased respondent being necessary party having not been impleaded, revision petition was incompetent on account of non-impleading of necessary parties.

Abid Kamal v. Muddassar Mustafa and others 2000 SCMR 900; Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1966 SCMR 1516; Muhammad Yousaf through L.Rs. and others v. Noor Din and others PLD 2002 SC 391; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363; Sakhi Muhammad and 10 others v. Noor Muhammad and 28 others PLD 1988 SC (AJ&K) 156; Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387; Faquir Muhammad and 48 others v. Province of Punjab through Collector Deputy Commissioner and 4 others PLD 1993 Lah. 439; Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46; Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560 and Subeh Sadiq v. Mst. Rajan through Legal heirs PLD 2006 Lah. 585 ref.

Ch. Abdul Ghani for Petitioners.

Ch. Muhammad Anwar-ul-Haq for Respondents.

Date of hearing: 2nd May, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2722 #

2011 Y L R 2722

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1686-B of 2010, decided on 20th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Further inquiry---Case was fit for grant of bail to the accused on the basis of data collected by the Investigating Officer---Case was that of further inquiry into guilt of accused under S.497(2), Cr.P.C.---Circumstances hovering over the murder, required a high degree of professional expertise and only an Investigating Officer of the highest calibre, well equipped with the modern techniques of the investigation of such like cases, could resolve the controversy of the murder---Investigating Officer seized with the matter, was directed by High Court to show more mental agility and capability, besides professionalism to unearth the real culprits/killers of the deceased---Prosecution being deficient of connecting evidence against accused, his bail application was allowed.

Mirza Umar Asadullah for Petitioner.

Raja Farrukh Arif Bhatti for the Complainant.

Malik Riaz Ahmad Saghla, D.P.-G. Adrees S.-I. with record for the State.

YLR 2011 LAHORE HIGH COURT LAHORE 2725 #

2011 Y L R 2725

[Lahore]

Before Muhammad Ameer Bhatti, J

ZULFIQAR and 11 others---Petitioners

Versus

FATEH SHER and 4 others---Respondents

Civil Revision No.398 of 2003, decided on 6th June, 2011.

(a) Islamic Law---

----Inheritance, opening of---Effect---Legal heirs(s) alive at time of death of deceased would get inheritance---Principle.

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

----Art. 117---Beneficiary of a document or fact would be bound to prove the same.

----Limitation would not run against co-owner(s) in land---Rationale.

Limitation does not run against the co-owners. The rational behind is that the revenue record is prepared periodically and after preparation of every periodical record, fresh .cause of action arises to the aggrieved party and the share of all the co-sharers remains intact in each and every inch of the land unless the property is partitioned and the point of limitation is rendered ineffectual.

PLD 1969 SC 617; PLD 2005 AJ&K 15; 1985 MLD 101; 2003 MLD 399; 2000 SCMR 1574; PLD 1993 Pesh. 127 and 2003 MLD 399 ref.

Ch. Khurshid Ahmad for Petitioner.

Farooq Qureshi Chisthi for Respondent.

Date of hearing: 6th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2733 #

2011 Y L R 2733

[Lahore]

Before Amin-ud-Din Khan, J

Mst. AMIR BANO and others---Appellants

Versus

GOVERNMENT OF PUNJAB, and others---Respondents

Regular Second Appeal No.15 of 2005, decided on 7th June, 2011.

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

----Ss.30 & 36---Specific Relief Act (I of 1877), S. 42---Sale of Government land through auction---Cancellation of confirmation of auction---Predecessor of the plaintiffs was the highest bidder for the purchase of suit land---Board of Revenue confirmed the sale of land and the predecessor of the plaintiff after depositing entire sale price of suit land had become owner thereof-Auction-purchaser spent a huge amount for levelling, development of suit land, but suit land was declared as uncommanded by the Canal authorities and water was not available as declared by Irrigation Department---Predecessor of the plaintiffs, had prayed that as land could not be cultivated, he be adjusted with the alternate land or his money be refunded to him along with the expenses he incurred on the said land---Commissioner suo motu, without consulting the predecessor of the plaintiffs, cancelled the ownership of suit land---Authorities, were not entitled to unilaterally cancel the land from the name of the predecessor of the plaintiffs---Once the property rights of the land had been transferred under the scheme of the Colonization of Government Lands (Punjab) Act, 1912, same could be cancelled only under the powers given under S.30(2) of the said Act---In the present case, there was no allegation that auction was procured through fraud or misrepresentation---Authorities had no powers to cancel the proprietary rights of the land which were once given to predecessor of the plaintiffs---When an order was passed without jurisdiction, same was coram non judice and limitation would not come in the way of a person against whom such order had been passed---When the order passed by any authority or Tribunal was within its jurisdiction or within his competence then the bar contained in S.36, Colonization of Government Lands (Punjab). Act, 1912 was available---If the order passed was not within its competence or within its jurisdiction, then such bar had absolutely no weight and civil court/the court of alternate jurisdiction had the jurisdiction to entertain the suit against the orders passed without jurisdiction---About fifty years had passed when a person/ predecessor of the plaintiffs, validly got the land in open auction, which was confirmed by Board of Revenue such land could not be taken from him, when there had been no fault on part of that person---Jurisdiction vested in both the courts below having not been exercised in accordance with law, judgment and decrees passed by courts below, were set aside, in circumstances.

Ch. Ahmed Hassan for Appellants.

Naveed Khalil, Asstt. A.G. for Respondents.

Date of hearing: 7th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2738 #

2011 Y L R 2738

[Lahore]

Before Ch. Muhammad Tariq, J

Raja AMIR-UR-REHMAN and others---Petitioners

Versus

Raja KAMRAN AFZAL and others---Respondents

C.R. No.2538 of 2006, decided on 9th April, 2010.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Ad interim injunction, application for---Plaintiff filed suit for declaration along with permanent injunction before the Trial Court---Plaintiff also filed application for the grant of interim injunction---Trial court allowed application on the basis of report of local commission and directed the parties to maintain status quo---Appellate Court on appeal, accepted the same and vacated the interim stay order---Contention of the plaintiff was that at appellate stage, the appellate court was not required to appoint local commission---Validity---Ad interim injunction was granted in the year 2006 and the same was vacated in the same year---Period of more than three years had elapsed; it would not be appropriate at such a time to interfere in the complicated matter of possession in the absence of solid evidence---High Court disposed of revision petition with direction to Trial Court to decide the main suit between the parties expeditiously within the period of six months from the date of receipt of copy of the order and status quo be maintained by all parties in respect of the possession.

Sh. Naveed Shaheryar for Petitioners.

Malik Noor Muhammad Awan for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2740 #

2011 Y L R 2740

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD EHSAN-UL-HAQ---Petitioner

Versus

MUHAMMAD TARIQ AYYUB and another---Respondents

Civil Revision No.113 of 2009, heard on 1st April, 2010.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XXI, Rr. 100(2) & 101 & S.151--Suit for specific performance of agreement to sell property---Defendant contested suit and filed written statement---Trial Court decreed suit of the plaintiff---Plaintiff obtained possession of the disputed property---Another person (who had the possession of property) filed an application under O.XXI, Rr.100 & 101 read with S.151, C. P. C. in the executing court on the ground that he was dispossessed illegally and the decree passed in favour of the plaintiff was only for specific performance of agreement to sell and the same was not for possession of the disputed property---Executing court allowed the application of said other person and ordered for restoration of possession to him---Plaintiff filed appeal against the order by executing court which was dismissed---Plaintiff asserted that word `investigation' has been used in O.XXI, R.100(2), C.P.C. and as such it was obligatory on the executing court to frame issue and record evidence--- Validity---Executing court had to investigate the claim only if sufficient material was not available on record and if the material was available, the executing court was not bound to record the evidence---Order XXI, R.101, C.P.C. provided that possession of the bona fide' occupant would be restored to them by the court and it was not necessary that occupant should be the owner of property--Construction of decree showed that no decree of possession was passed in favour of the plaintiff---Plaintiff had not assailed the decree or applied for its correction---Warrant of possession could not be issued by the executing court in execution of the decree as the same was not for possession---Revision petition was dismissed by High Court.

Taki Ahmad Khan for Appellant.

Muhammad Adil Khokhar for Respondents.

Date of hearing: 1st April, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2747 #

2011 Y L R 2747

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

IFTIKHAR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1967, 1968 and M.R. No.785 of 2004 and Criminal Revision No.51 of 2005, decided on 28th April, 2004.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Parties not disclosing the true facts---Duty of court---When both the parties do not approach the Court with clean hands try to suppress their own role and highlight the role of other side, then incompleteness of the tale cannot deter the court from drawing the inference flowing properly from the evidence and circumstances of the case.

Syed Ali Beopari v. Nibaran Mollah and others PLD 1962 SC 502 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Liability of accused, determination of---Principles---When parties are hostile to each other and it is not possible to say that accused party were acting in the defence or in exercise of right of private defence of person or property, then no question of right of private defence would arise and each participant in the free fight would be liable in his individual act.

Manzoor Masih v. The State PLD 1995 SC 307 and Farooq Khan v. The State 2008 SCMR 917 ref.

----S. 302(b)/34--- Qatl-e-amd--- Appreciation of evidence---Benefit of doubt---Accused were attributed only the role of aerial firing---No crime empty was recovered from the place of occurrence---No charge was even framed against one accused qua the injury on the person of his own father, though for the injuries sustained by the said person, complainant party. of the case had been convicted and sentenced---False implication of both the accused in the case, being the real brothers of the main co-accused, therefore, could not be ruled out---Accused were extended benefit of doubt and acquitted in circumstances.

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

----S.302(b)---Qalt-e-amd---Appreciation of evidence---Sentence, reduction in---Ocular account furnished by eye-witnesses inspired confidence, who had corroborated each other on material aspects of the case---Close relationship of eye-witnesses with the deceased could not term them as untruthful witnesses of the occurrence---Quality of evidence and not its quantity weighs with the court and conviction could be based on the testimony of an interested witness, if the same inspired confidence---Medical evidence had supported ocular testimony---Conviction of accused was consequently maintained under S. 302(b), P.P.C.---Trial Court had not mentioned the exact provision of law while convicting the accused---Accused had not repeated the fire---Injuries sustained by the accused side had been suppressed---Occurrence had taken place in front of the shop of accused and nobody knew as to what exactly had happened between the parties at the spot---Motive set up by the prosecution had not been proved, which showed that the attack was not a premeditated one---Cumulative consideration of all the said points had made out a case of mitigation in favour of accused---Sentence of death of accused was reduced to imprisonment for life in circumstances.

Ahmad Khan v. Nazir and 3 others 1999 SCMR 803; Syed "Ali Beopari v. Nibaran Mollah and others PLD 1962 SC 502; Manzoor Masih v. The State PLD 1995 SC 307; Farooq Khan v. The State 2008 SCMR 917; Nazir v. The State PLD 1962 SC 269; Shehruddin v. Allhaji Rakhio 1989 SCMR 1461; Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111; Muhammad Ayaz Khan v. Murtaza and others 2008 SCMR 984; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Ibrar v. The State 2006 SCMR 1175 and Mirza Zaheer Ahmad and another v. State and others 2003 SCMR 1164 ref.

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

----S. 302(b)---Qalt-e-amd---Appreciation of evidence---Interested witness---Quality of evidence and not the quantity which weighs with the court--Conviction can be maintained on the basis of testimony of an interested witness, if the same inspires confidence.

Farooq Khan v. The State 2008 SCMR 917 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Improvement made by witness in Court---Effect---Statement of a witness improved in court would not advance the cause of the prosecution case, rather it can create doubt in favour of defence.

Mirza Zaheer Ahmad and another v. State and others 2003 SCMR 1164 ref.

Kh. Sultan Ahmad and Sher Afghan Asadi for Appellants.

M.M. Alam Chaudhry, Additional Prosecutor-General of Punjab for the State.

Ch. Majid Hussain for the Complainant.

Dates of hearing: 23rd and 28th April, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2764 #

2011 Y L R 2764

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD HANIF and others---Petitioners

Versus

IRSHAD ALI and others---Respondents

C.R. No.397-D of 2002, decided on 7th June, 2011.

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

----Arts.17(a), 79 & 118---Denial of execution of document---Burden of proof---Onus would shift to beneficiary to prove such document by producing marginal witnesses.

Malik Qamar Afzal for Petitioners.

Arshad Hayat for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2767 #

2011 Y L R 2767

[Lahore]

Before Abdul Waheed Khan, J

BILAL AHMAD---Appellant

Versus

ABDUL RAZAQ and another---Respondents

F.A.O. No.307 of 2011, decided on 30th June, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R. 1---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell property---Interim injunction under Order XXXIX Rr.1 & 2, C.P.C., for restraining further alienation of suit property by defendant-vendor---Scope---Grant of such injunction must be subject to deposit of balance amount of sale consideration in court in order to satisfy defendant that plaintiff was litigating bonafidely---Order of Court imposing such condition while granting such injunction would be legal.

Shama Enterprises (Pvt.) Ltd. v. Malik Ghulam Sarwar and others 1989 MLD 21- rel.

Shabbir Hussain Dhilloon for Appellant.

YLR 2011 LAHORE HIGH COURT LAHORE 2771 #

2011 YLR 2771

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD AZAM---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.7138-B of 2011, decided on 27th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/334/109/148/149---Attempt to commit qatl-e-amd---Bail, refusal of---Accused had fired a gun shot on the right thigh of the victim causing an entry wound and an exit wound---Due to said injuries, supported by the medico-legal report, right leg of the victim had been amputated---Resultantly S.334, P.P.C. was also added in the F.I.R.---Contention that the injury attributed to accused had not resulted in amputation of the leg of the victim was misconceived---Accused had remained fugitive from law for about one year--Prima facie, accused was connected with the commission of the offence, as opined during investigation---Bail was refused to accused in circumstances.

C.M. Sarwar for Petitioner.

Noor Ahmad Bhatti, DPP for the State.

Muhammad Hafeez A.S.-I. with record.

Muhammad Shahid Tabassam for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2773 #

2011 Y L R 2773

[Lahore]

Before Ch. Muhammad Tariq, J

ALI SHAN and others---Petitioners

Versus

FAZAL DIN and others---Respondents

C.R. No.219-D of 2001, decided on 7th June, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (1908), S. 28---Suit by mortgagee for declaration of his ownership rights in mortgaged land---Attestation of mutation of mortgage in year 1925---Non-redemption of suit land by mortgagor till expiry of sixty (60) years on 5-5-1985---Suit decreed by Trial Court on 6-2-1995 set aside by Appellate Court---Validity---Suit for prescription of title could be fruitful, if plaintiff-mortgagee was fortunate to obtain decree before 31-8-1991, whereafter right or title of mortgagor-defendant would not be deemed to be extinguished---Trial Court had passed decree in favour of plaintiff-mortgagee on 6-2-1995---Provision of S.28 of Limitation Act, 1908 for not being part of statute would not attract to the present case---High Court dismissed revision petition filed by mortgagee-plaintiff in circumstances.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Durani and 35 others v. Hamidullah Khan and 15 others 2007 SCMR 480 and Ahmad Khan and others v. Abdul-ur-Rehman and others 2009 SCMR 191 rel.

Hafiz Saeed Ahmad Sh. for Petitioners.

M. Younis Bhatti for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2778 #

2011 Y L R 2778

[Lahore]

Before Ch. Muhammad Tariq, J

Syed GHAUS MUHAMMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and 5 others---Respondents

Writ Petition No.208 of 2009, decided on 9th February, 2011.

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

----S. 25---Constitution of Pakistan, Art.199--- Constitutional petition---Guardian Court, jurisdiction of---Title of property---During the proceedings before Guardian Judge, to decide custody of minors, a compromise was effected between the parties which included settlement regarding agriculture land given as dower to wife---Guardian Judge decided the custody of minors and also decided title over land in question---Plea raised by husband was that no such agreement was executed---Validity---Alleged compromise deed was prepared on a blank paper which was neither marked by Court nor exhibited as part of judicial file nor it bore signatures or stamp of Judicial officer---Such agreement did not fall within the definition of "concluded agreement," particularly when husband had denied its execution---Guardian Judge had no jurisdiction to declare title of parties and only remedy available to wife was to approach civil Court for -declaration--Guardian Judge could have decided the matter of custody of minor between the parties but he travelled beyond his jurisdiction to decide other controversial disputes between the parties---High Court in exercise of Constitutional jurisdiction set aside judgment and decree to the extent of transfer of agriculture land and recovery of money---Petition was allowed accordingly.

Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186; Mrs. Marina Jatoi v. Nuruddin Khan Jatoi PLD 1967 SC 580 and Mst. Amira Bokhari v. Faqir Syed Jamil-ud-Din Bokhari PLD 1994 Lah. 236 rel.

Syed Muhammad Hussain Shah Qadri for Petitioner.

Sardar Abdul Qayyum Khan for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2780 #

2011 Y L R 2780

[Lahore]

Before Sagheer Ahmad Qadri, J

Sayyed HANAN KHALID GILANI---Petitioner

Versus

DISTRICT JUDGE/PRESIDING OFFICER DISTRICT CONSUMER COURT MULTAN and 2 others---Respondents

Writ Petition No.12194 of 2010, decided on 4th April, 2011.

(a) Interpretation of statutes---

----Word used in a statute---Scope---Dictionary meanings of such word could be taken into consideration only in absence of its meaning in definition clause or any other part of statute---Principles.

The golden principle of interpretation of statute is that firstly if any word occurring in a statute is to be interpreted, its meaning should be searched, and if it is defined in the definition clause or any other part of that statute with reference to that statute and with reference to that subject. If no such definition is provided in that statute/enactment, then its literal/dictionary meanings are to be taken into consideration.

(b) Words and phrases---

----"Animal"--- Definition.

Chambers 21st Century Dictionary; Concise Oxford Thesaurus, Third Edition and Halsbury's laws of England, Fourth Editoin, Vol.2 in para 201 ref.

----Ss. 2(j), 25, 28 & 31(e)(f)---Claim against supplier of chicks---Jurisdiction of Consumer Court---Scope---Dictionary meanings of a word used in a statute could be taken into consideration only in absence of its meaning in definition clause or any other part of same statute---Word "animals" finding mention in S. 2(j) of Punjab Consumer Protection Act, 2005 had been used in general sense and was not confined to quadruped or birds having two legs and feathers---Word "animal" had not been defined in the Act---According to dictionary meanings, word "animal" would include birds---Contract for supply of chicks between parties would not fall within meaning of supply of any product---Such claim was dismissed for not being maintainable before Consumer Court.

Fakhar Raza Malana for Petitioner.

Mian Babar Saleem for Respondent No.2.

Sardar Farooq Ahmad Khan for Respondent No.3.

YLR 2011 LAHORE HIGH COURT LAHORE 2788 #

2011 Y L R 2788

[Lahore]

Before Sardar Muhammad Shamim Khan, J

FURQAN ALI and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.3951-B of 2010, decided on 9th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 201, 148 & 149---Qatl-e-amd, causing disappearance of evidence of offence---Bail, grant of---Further inquiry---Accused were not nominated in the F.I.R. and nobody had witnessed the occurrence---Father of deceased identified the dead body of his deceased son but he got his supplementary statement recorded two days after identification regarding last-seen evidence against accused person for which no explanation was given by him---Last seen evidence produced against accused persons, required further inquiry--All recoveries were effected jointly from the possession of accused persons---No direct evidence was available against accused persons connecting them with the commission of offence---Even otherwise recoveries were only a corroborative piece of evidence---Accused were behind the bars for more than one year--Commencement of trial was not a valid ground to refuse the grant of bail to accused persons, if prima facie the case of accused appeared to be one of further inquiry---Case of accused persons having come within the ambit of further inquiry, accused were admitted to bail, in circumstances.

Abid Ali alias Ali v. The State 2011 SCMR 161 rel.

Mudussar Altaf Qureshi for Petitioners.

Ch. Faqir Muhammad for the Complainant.

Hassan Mahmood Khan Tareen, learned D.P.-G.

Muhammad Ilyas, Sub-Inspector with record.

YLR 2011 LAHORE HIGH COURT LAHORE 2791 #

2011 Y L R 2791

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ASLAM---Petitioner

Versus

LAEEQ FAHEEM---Respondent

C.R. No.796-D of 2010, decided on 20th April, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Recovery of money---Striking of defence---Failure to furnish surety bond---Trial Court allowed application for leave to defend the suit subject to deposit of surety bond before filing of written statement---Defendant did not comply with the order of Trial Court, resultantly his right of defence was struck off---Validity---Failure of defendant was rightly considered by Trial Court who had rightly struck off the right of defence of defendant---High Court declined to interfere in the order passed by Trial Court---Revision was dismissed in circumstances.

Abdullah v. Shaukat 2001 SCMR 60 fol.

Mubaras Khan Alizai for Petitioner.

Khalid Mehmood Shahzeb for Respondent.

YLR 2011 LAHORE HIGH COURT LAHORE 2796 #

2011 Y L R 2796

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. RUKHSANA BEGUM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others---Respondents

Writ Petition No.3817 of 2010, decided on 18th May, 2011.

(a) Islamic law---

----Custody of minor---Second marriage by mother---Effect---On contracting second marriage, mother of minor loses right of custody of minor or when minor son attains the age of seven years---While deciding custody of minor, paramount consideration is welfare of minor.

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

----S.25---Custody of minor---Determining factors---Court is to look into welfare of minor while considering essential factors relating to his welfare including upbringing, education, health care, congenial domestic atmosphere and should not base its judgment on the factor as to whether father or mother has more love or minor is associated with mother or father.

----S.25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor--- Welfare of minor---Determination---Minor son was living with his mother, who after divorce contracted second marriage with a person already having seven children---Father of the minor claimed custody of minor on the ground that welfare of minor was with hint and step fatter of the minor was involved in criminal cases---Both the courts below concurrently decided the matter in favour of father of the minor---Validity---Welfare of minor was with his father as in presence of real father, minor could not be left at, the mercy of step father who had already seven children and also had a criminal record---Minor had attained the age of ten years and his mother was unable to get him admitted in any school, whereas, on the other hand, father of minor was imparting proper education to his other son, who had been residing with hint since the separation of the couple---Both the courts below had concurrently held against the mother and lawful decisions taken by the Courts below within the ambit of their jurisdiction conferred by law and based on sound reasons could neither be interfered nor could be substituted in Constitutional jurisdiction of High Court---Courts below did not commit any illegality in determining the question of welfare of minor---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Petition was dismissed in circumstances.

2002 MLD 1973 and PLD 2000 Pesh. 23 distinguished.

1986 SCMR 1944; 1981 SCMR 200 and 2011 SCMR 148 rel.

Raja Muhammad Haneef for Petitioner.

Mirza Muhammad Kamal Khan Ghauri for Respondent No.3.

YLR 2011 LAHORE HIGH COURT LAHORE 2800 #

2011 Y L R 2800

[Lahore]

Before Ijaz Ahmad, J

MUHAMMAD KHALIL and 12 others---Petitioners

Versus

INSPECTOR-GENERAL PUNJAB and 3 others---Respondents

Writ Petitions Nos. 3417, 4048, 3491 and 3487 of 2011, heard on 22nd April, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Transfer on deputation---Petitioners had challenged orders whereby constables were selected and transferred to the Punjab Constabulary on deputation for a period of three years---Contention of the petitioners was that said orders had been passed on the basis of the Police Rules carried in Standing Orders and were also based on the direction contained in I.G.'s letter, wherein it had been provided that the order in seniority would be strictly followed; but while passing the impugned order, the order of seniority had been ignored altogether and that some of the constables who ranked in the lowest order of the seniority had been deputed for serving the Punjab Constabulary, while many of the constables who were senior had been ignored---Pleas of the Authority were that the petitioners were being transferred on deputation and that transfer on deputation could not be termed as recruitment; that some newly appointed constables had also been sent to serve the Punjab Constabulary on deputation; that sending constables on deputation to the Punjab Constabulary, was neither a punishment nor a privilege, but was a special training that every constable had to undergo and that such deputation would help the constables to do away with their shortcomings and to improve their capabilities---Held, age of 37 years of a constable, had been fixed keeping in view the maturity required for action and conception that a constable would have attained by that time and the natural process of aging would have not by then set in and suckling constable lacked the maturity and capability---Constable close to superannuation would have already started refusing to understand and grasp the new ideas---Since there was no escape from that training, it should be endured like a gentleman and enjoyed like sportsman---Authorities would shun the. style of pick and choose and remote desire to persecute the un favoured should be fare-welled---Instead of deleting the names of some specific youngsters and picking the names of the substitutes from the list of seniority, matter would be referred to the concerned D.P.Os.; who would delete the names of saplings from the list of proposed deputes.

Malik Shahzad Hassan Awan for Petitioner (in Writ Petition No.3417 of 2011).

Saif Ullah Khan for Petitioner (in Writ Petition No.4048 of 2011).

Muhammad Jahangir Khan for Petitioners (in Writ Petition No.3491 of 2011).

Muhammad Ameer Bhatti for Petitioner (in Writ Petition No.3487 of 2011).

Muhammad Aurangzaib Khan, A.A.-G.

Abdul Rehman and Muhammad Tariq Inspector for Respondent No.1.

Date of hearing: 22nd April, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2805 #

2011 Y L R 2805

[Lahore]

Before Rauf Ahmed Sheikh, J

MUHAMMAD ANEES---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.78-B of 2011, decided on 4th February, 2011.

Criminal Procedure Code (XLV of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Case was of cross-version---Occurrence had taken place in the house of accused--Improbable reasons had been advanced for the presence of the deceased and the prosecution witnesses in the house of the accused at the time of occurrence---Accused had given a single spear blow to the deceased and did not repeat the same-Where cross-versions of the occurrence were put forth and the version of the accused appeared to be plausible, then the accused should be allowed the concession of bail---Case against accused clearly needed further inquiry within the meaning of S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

2009 SCMR 324 and 2010 PCr.LJ 512 ref.

Qasir Mahmood Raja for Petitioner.

Raja Amjad Iqbal for the Complainant.

Muhammad Usman, D.P.-G. with Liaquat Ali S.-I.

YLR 2011 LAHORE HIGH COURT LAHORE 2810 #

2011 Y L R 2810

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ANWAR ANSARI---Petitioner

Versus

CHIEF ELECTION COMMISSIONER, ISLAMABAD through Secretary Election Commission of Pakistan and 5 others---Respondents

Writ Petitions Nos.4923 and 6191 of 2010, decided on 28th April, 2011.

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

---S.99-CC---Conduct of General Elections Order (Chief' Executive's Order 7 of 2002), Art.8(a)---Constitution of Pakistan, Art. 199---Constitutional petition---Qualification of Member of Provincial Assembly to contest election---Petitioner being a voter in concerned constituency alleged that respondent-Member was not holding required qualification, thus, not eligible to hold such office---Validity---Nobody including petitioner had objected to respondent's nomination papers before Returning Officer, who accepted his documents and finally he was elected as Provincial Legislator---Higher Education Commission had informed Al-Khair University, Mirpur 'Azad Kashmir that Commission would not recognize any degree issued to students after 30-4-2009---Respondent was holding degree of Bachelor of Computer Sciences issued in year 2000 by Al-Khair University---Higher Education Commission had duly verified respondent's degree and found same to be genuine---Representation of the People Act, 1976 had provided complete procedure and mechanism for resolution of all disputes---Petitioner was not an aggrieved person and his case was not that he cast vote in favour of respondent, who cheated-him by misrepresenting himself to be graduate---High Court, in constitutional jurisdiction could not enter into factual controversy by recording evidence to ascertain real facts or determine petitioner's allegation---High Court dismissed constitutional petition for being not maintainable.

Mian M. Azam 'Chaila v. Wajid Ali Khan and others PLD 2009 Lah. 449; Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 and Commissioner of Sales Tax (West) Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180 ref.

Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066; Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others PLD 2010 SC 817 and Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 rel.

Ch. Sarfraz Ahmad Zia and Kanwar Muhammad Imtiaz for Appellants.

Nafees Ahmad Ansari and Ch. Abdul Sattar Gorya for Respondents.

Date of hearing: 19th April, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2815 #

2011 Y L R 2815

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SAKKO and others---Petitioners

Versus

Mst. SHARIFAN---Respondent

Writ Petition No.3601 of 1998, decided on 13th June, 2011.

Civil Procedure Code (V of 1908)---

----S.152---Constitution of Pakistan, Art.199---Constitutional petition---Application for correction of judgment and decree---Suit filed by the plaintiff was concurrently decreed in her favour---When plaintiff / decree-holder went for incorporation of said decree in the Revenue Record, she noticed some ambiguity or mistake therein and she filed application under S.152, C.P.C. before the Trial Court for its clarification---Trial Court allowed said application and clarified the decree accordingly---Appeal filed by the judgment debtors against order of the Trial Court was dismissed---Validity---Suit filed by the plaintiff was fully decreed and no part of claim was refused, but, in the findings recorded in one of the issues some omissions existed which were fought to be corrected by the decree-holder under S.152, C. P. C. ---Said omissions were to be corrected in accordance with law as same were a clerical mistake---Application under S.152, C.P.C. could be filed before the Trial Court for correction of the decree, even if the decree had not been changed by any higher court---Application, in circumstances, was rightly filed before the Trial Court---Trial Court while deciding application under S.152, C.P.C. had not re-interpreted the judgment recorded by the Trial Court while decreeing the suit, but had just completed the missing portion and rectified arithmetical mistake.

1976 SCMR 420 and Noora v. Muhammada 1978 SCMR 133 ref.

1977 SCMR 133 rel.

Naseer Ahmed for Petitioners.

S. M. Hussain Khan for Respondent No.1.

Shahid Fareed Awasi for Respondents Nos. 10 to 17.

Date of hearing: 13th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2821 #

2011 Y L R 2821

[Lahore]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

JAWAN SAAL---Petitioner

Versus

DPO, DERA GHAZI KHAN and 2 others---Respondents

Writ Petition No.6688-H of 2011, heard on 15th June, 2011.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss.46 & 491---Police Rules, 1934 Cls. 26.25---Constitutional/habeas corpus petition for recovery of detenu---Record had revealed that detenu was apprehended in an injured condition and thereafter was sent to the Hospital, where he was kept under surveillance---If an accused was apprehended and kept in the jail under the guard, it could not be said that his arrest had not been made---Section 46 of the Code of Criminal Procedure, 1898, had provided that, if the Police Officer would touch or confine the body of accused; or accused would submit to the custody by word or action, he would be deemed to have been arrested---In the present case, Police had apprehended the detenu and then kept him in the Hospital under surveillance---Police, in circumstances, could not say that the arrest of detenu was not made and was deferred---Claim of the Police was that detenu was involved in the commission of heinous offence, so neither the investigation could have been postponed under proviso (b) of 'S.157, Cr.P.C., nor his arrest could have been deferred under Chapter 26.2 of Police Rules, 1934---Even if accused was in injured condition, he should have been formally arrested and dealt with under Chapter 26.25 of the Police Rules, 1934---Contention of the Police Officers that they had postponed the arrest, was totally devoid of force and patently illegal--Detenu could not be deemed to be under lawful or proper custody---Detention of detenu was declared illegal and he was ordered to be set at liberty, in circumstances.

Malik Muhammad Saleem for Petitioner.

Malik Muhammad Bashir Lakhir A.A.-G., along with Ijaz, Inspector/ S.H.O., P.S. Kala, District Dera Ghazi Khan for Respondents.

Date of hearing: 25th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2825 #

2011 Y L R 2825

[Lahore]

Before Muhammad Khalid Mehmood Khan and Syed Kazim Raza Shamsi, JJ

TREAT CORPORATION LTD.-Appellant

Versus

ELMAC LTD. through Liquidator and another---Respondents

Regular First Appeal No.161 of 1990, decided on 21st June, 2011.

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

----Art. 129 (g)---Evidence, withholding of-Presumption-Non-production of material witness is sufficient to infer that the party concerned tried to hide real facts from the Court.

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

----Ss. 7 & 10---Specific Relief Act (I of 1877), S. 21---Agreement not enforceable---Unconcluded contract---Memorandum of understanding---Plaintiff sought specific performance of agreement to sell of suit property---Defendant claimed that the agreement was not a concluded contract as performance of the same was subject to grant of certain permissions from the authorities---Validity---Specific performance of a document could not be granted where parties had intended that it was not to be considered as concluded contract until it had been confirmed by third party---Agreement in question was not a concluded agreement and was an understanding only, which was not enforceable in law, as both the parties had failed to obtain requisite permissions enabling them to enter into a concluded agreement---Plaintiff failed to establish that concluded agreement capable of enforcement in law was entered into between the parties---Trial Court rightly dismissed the suit filed by plaintiff---Appeal was dismissed in circumstances.

Major (Retd) Ahmad Khan Bhatti v. Mst. Masooda Fatimi PLD 1981 Kar. 398; Khani Zaman and another v. Custodian of Evacuee Property, Azad Jammu and Kashmir Government, Muzaffarabad and another 1997 CLC 707; Muhammad Bakhsh through Representatives and 5 others v. Muhammad Jameel and 8 others 2005 YLR 2464 and Rudra Das Chakravarti v. Kamakhya Narayan Singh AIR 1925 Patna 259 ref.

----S.10---Transfer of Property Act (IV of 1882), S.54---Contract---Sale of immovable property---Essential terms---Contract for sale of immovable property should take place on the terms settled between the parties---Essential terms of sale of immovable property are payment of sale price of property or promise to pay the same by purchaser to seller, delivery of possession of property sold by seller to purchaser and sale agreement does not attach any condition which has to be fulfilled or complied by some third party.

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

----S.7---Conversion of proposal into a contract must be absolute and unqualified in terms of S. 7 of Contract Act, 1882.

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

----S.10---Concluded contract---Proof---Question whether a contract between parties is an absolute and a concluded agreement is a question of fact which can be proved from oral and documentary evidence.

Asad Ahmad Ghani for Appellant.

Aftab Ahmad Khan and Nasim Kashmiri, D.A.-G. for Respondents.

Date of hearing: 21st June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2834 #

2011 Y L R 2834

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD KHURRAM SHEHZAD---Petitioner

Versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 4 others---Respondents

Writ Petition No.5208 of 2011, decided on 17th May, 2011.

Bahu-ad-Din Zakariya University Act (III of 1975)---

----First Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Educational institution---Viva voce examination---Advanced Studies and Research Board, quorum of---Absence of Vice-Chancellor---Petitioner was a scholar of M. Phil (Pharmaceutics) and had completed his research work / thesis which was approved by his supervisor but viva voce examination was not conducted---Contention of the University was that meeting of Advanced Studies and Research Board did not convene as quorum of the Board was not complete due to absence of Vice-Chancellor---Validity---Quorum of the meeting of the Board was to be one half of the total number of its members and there was no mention that the Board would not be formed or function in absence of Vice-Chancellor---Meeting of Advanced Studies and Research Board could be held even if the Vice-Chancellor was not available---High Court directed the Registrar of the University to convene the meeting of Advanced Studies and Research Board and to decide the matter relating to the petitioner in accordance with rules and regulations keeping in view the parental jurisdiction of the University---Petition was disposed of accordingly.

Shakeel Javed Chaudhary for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2837 #

2011 Y L R 2837

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD ANWAR---Petitioner

Versus

THE STATE---Respondent

Criminal Appeals Nos.1252 and 1253 of 2005, heard on 28th September, 2010.

Penal Code (XLV of 1860)---

----S.302(b)/34---Qatl-e-amd-- Appreciation of evidence---Nobody had seen the occurrence---Matter was reported to police after two days of the occurrence---Explanation rendered by prosecution for the said delay was neither trustworthy nor inspired confidence-Extra-judicial confession made by accused in a Panchayat in open proceedings before so many persons and their letting off without any arrest, did not appeal to reason---Such confession, even otherwise, was always considered to be a very weak type of evidence---Incriminating articles recovered from the accused appeared to have been planted on then to strengthen the prosecution case---No specific role had been attributed to accused---Medical evidence did not help the prosecution version---Accused had been involved in the case only on the basis of suspicion, for which they could not be convicted and sentenced---Whole prosecution case hinged upon conjectures and surmises---No legal evidence had come on record to connect the accused with the crime---Accused were acquitted in circumstances.

Muhammad Abbas Shah for Appellants.

Mian Muhammad Awais Mazhar, Deputy P.-G. for the State.

Date of hearing: 28th September, 2010.

YLR 2011 LAHORE HIGH COURT LAHORE 2848 #

2011 Y L R 2848

[Lahore]

Before Abdul Waheed Khan, J

JEHAN KHAN and another---Petitioners

Versus

JEHAN KHAN---Respondent

Civil Revision No.354 of 2003, heard on 13th June, 2011.

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

----S. 13---Suit for pre-emption---Talb-e-Muwathibat, performance of---Essentials---Omission to mention time, date and place of making Talb-e-Muwathibat---Plaintiff though had mentioned the date of making Talb-e-Muwathibat in the plaint, but he could not specifically mention the time and place where 'the Talb-e-Muwathibat was made---Effect---Omission to mention any of the three particulars i.e. time, date and place in the plaint was fatal to the suit for pre-emption.

Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Khyber Khan and another v. Haji Malik Aman Ullah Khan 2007 SCMR 1036 and Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 rel.

Sheikh Naveed Sheharyar for Petitioners.

Ch. Muhammad Anwar Bhindar for Respondent.

Date of hearing: 13th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2850 #

2011 Y L R 2850

[Lahore]

Before Ch. Muhammad Tariq, J

Sh. TARIQ MEHMOOD and others---Petitioners

Versus

E.T.P.C., and others---Respondents

Writ Petition No.1412 of 2011, decided on 8th July, 2011.

(a) West Pakistan Land Revenue Rules, 1968---

----R. 67-A---Constitution of Pakistan, Art. 199---Constitutional petition---Lease of state land---Cancellation of lease by authority for breach of its terms and conditions on basis of report of demarcation conducted by Patwari without notice to petitioner---Validity---Only Revenue Officer had exclusive jurisdiction to cause demarcation with clear notice to concerned parties---Patwari was only custodian of revenue record and bound to maintain record of a revenue estate---Patwari had no authority to conduct demarcation---Mandatory provision of R. 67-A of West Pakistan Land Revenue Rules, 1968 regarding service of notice to petitioner had been violated---Period of lease could not be reduced in absence of evidence of breach of its terms and conditions---Impugned order was void ab initio for having been passed on basis of report of Patwari having no authority to conduct demarcation---Period of limitation or laches would not come in way of justice against impugned order---High Court set aside impugned order in circumstances.

Ch. Farman Ali v. Ch. Amin Afzal and others 2005 CLC 1282; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 and Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262 rel.

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

----S. 110---Period of lease could not be reduced in absence of evidence of breach of its terms and conditions.

----Art. 199---Constitutional petition---Impugned order void ab initio---Laches in filing constitutional petition---Effect---Period of limitation or laches would not come in way of justice in such case---Principles.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---Alternate remedy, availability of---Effect---Such remedy would not bar jurisdiction of High Court to entertain such petition, when impugned order was void ab initio.

Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135 rel.

Sh. Muhammad Yaqoob for Petitioners.

Sh. Iftikhar Ahmad for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2857 #

2011 Y L R 2857

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD RAMZAN---Petitioner

Versus

MUHAMMAD HUSSAIN and 2 others---Respondents

Writ Petition No.8635 of 2008, decided on 15th June, 2011.

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

----Ss. 6 & 24---Civil Procedure Code (V of 1908), Ss.151 & 152---Constitution of Pakistan, Art.199--- Constitutional petition--- Suit for pre-emption--Determination and deposit of decretal amount---Trial Court decreed the suit but did not mention anything about the deposit of decretal amount---On filing application by the plaintiff/decree-holder under Ss.151/152, C.P.C. for the correction of the judgment and decree, Trial Court corrected same directing the decree-holder to deposit the amount which was deposited by the decree-holder accordingly--Defendant/ judgment-debtor's petition against the order of the Trial Court, court directed the decree-holder for further deposit of amount which was deposited accordingly---Defendant/judgment-debtor filed constitutional petition contending that after passing the judgment and decree, the Trial Court had no jurisdiction to extend the time---Validity---Trial Court had cured the omission in accordance with law---Trial Court was to mention a specific amount with a specific date to be deposited, but since it was lacking in the relief granting para, plaintiff/decree-holder could not be penalized; as act of the court would prejudice no one---In absence of any illegality, irregularity or jurisdictional defect in the orders of the courts below, same could not be interfered with by High Court in constitutional petition.

PLD 1991 SC 360 rel.

Muhammad Farooq Qureshi Chishti for Petitioner.

Muhammad Yousaf Inayat for Respondents.

YLR 2011 LAHORE HIGH COURT LAHORE 2859 #

2011 Y L R 2859

[Lahore]

Before Amin-ud-Din Khan, J

GHULAM QASIM KHAN---Petitioner

Versus

ABDUL SALEEM and others---Respondents

Civil Revision No.866 of 1994, heard on 20t June, 2011.

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

----S.11---Res judicata, application of---Duty of Court---Bar of res judicata not necessary to be pleaded by defendant--Duty of court to apply and implement correct law in proceedings.

PLD 1972 Pesh. 115 rel.

(b) Adverse possession---

----Claim of adverse possession am ownership of property for being self contradictory could not be raise simultaneously---Principles.

----S.53-A---Weapon of part performance could be used in defence only.

Raja Muhammad Sohail Iftikhar for Petitioner.

S.M. Hussain Khan for Respondents.

Date of hearing: 20th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2863 #

2011 Y L R 2863

[Lahore]

Before Abdul Waheed Khan, J

MAZHAR IQBAL and 8 others---Petitioners

Versus

KHAIR DIN and 2 others---Respondents

Writ Petition No.24651 of 2010, heard on 14th June, 2011.

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

----S. 42---Civil Procedure Code (V of 1908), S. 10; O. VI, R. 17 & O. XXIII, R.1---Constitution of Pakistan, Art. 199---Constitutional petition---Three suits for declaration---Statement of plaintiff to withdraw two suits for having filed application for amendment of plaint in third suit for redressal of his grievance while reserving himself right to restore/revive such two suits in case of reversal of amendment order by any court---Order of Trial Court dismissing such two suits as withdrawn---Amendment application accepted by Trial Court, but dismissed by Revisional Court and High Court---Plaintiff's application seeking restoration of such two suits accepted by Trial Court and Re visional Court---Validity---Suit could be revived or restored if same was dismissed for non prosecution or its proceedings were stayed under S. 10, C.P.C.---Withdrawal of suit or abandoning part of claim by plaintiff without obtaining permission to file a fresh suit would disentitle him to institute fresh suit in respect of same subject matter or part of claim---Plaintiff while withdrawing such two suits had neither requested court for granting him permission to file fresh suit nor same was granted---Plaintiff's statement reserving himself right to get revival of such two suits would not mean that he was entitled therefor---Trial Court after having dismissed such suits as withdrawn became functus officio and had no jurisdiction to permit revival thereof---High Court set aside impugned orders for being illegal and without lawful authority.

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

----S. 10 & O. XXIII, R. 1---Suit dismissed as withdrawn, revival or restoration of---Scope---Suit could be revived or restored if same was dismissed for non prosecution or its proceedings were stayed under S. 10, C.P. C. ---Withdrawal of suit or abandoning part of claim by plaintiff without obtaining permission to file a fresh suit would debar him from instituting fresh suit in respect of same subject matter or part of claim---Court after dismissing suit as withdrawn would become functus officio and would have no jurisdiction to permit its revival or restoration.

Ch. Ihsan ul Haq Bhalli for Petitioners.

Ch. Atta Ullah for Respondent.

Date of hearing: 14th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2867 #

2011 Y L R 2867

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Syeda SADIA and 2 others---Petitioners

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 3 others---Respondents

Writ Petition No.4314 of 2011, decided on 16th May, 2011.

Constitution of Pakistan---

----Arts.2, 25 & 199---Constitutional petition--- Educational institution---Discrimination---Women and children, treatment against---Grievance of petitioners was that University allowed eight months extension to respondent for submission of his M.Phil thesis and they were denied any such extension---Contention of the University was that cases of petitioners were rejected by Advanced Studies Research Board whereas the Board had extended time to respondent---Validity---Different yardsticks were applied by the University and its Vice-Chancellor in dealing with similarly placed people---Petitioners and respondent were equally placed and the University had no justification in meeting out a treatment to petitioners which was different to that of the respondent---All petitioners were female and there could be an inference that discrimination had been caused against female students which was also against the spirit of the Constitution---Provisions of Article 25(3) of the Constitution had provided that due to peculiar circumstances in which women and children of the Country were, the State should make special provisions to protect and uplift their status---State institutions should give special provisions to protect and uplift their status---State institutions should give special consideration to women and children while dealing with their issues---High Court directed the University to consult the Advanced Studies Research Board on the submission of the thesis of petitioners and pass appropriate orders---Petition was allowed accordingly.

Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 and Muhammad Ramzan and 3 others v. Government of Pakistan and 3 others 2004 YLR 1856 rel.

Khurshid Ahmad Khan for Petitioners.

Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 16th May, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2870 #

2011 Y L R 2870

[Lahore]

Before Abdus Sattar Asghar, J

TAHIR MAHMOOD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.9424-B of 2011, decided on 12th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss.17/22---Extorting amount for providing foreign employment---Bail, grant of---Further inquiry---Record had revealed that complainant had alleged making payment of certain amount to co-accused, who allegedly arranged a visa for him, whereupon the complainant went abroad and remained there---Alleged involvement of accused in arrangement of visa to the complainant was a matter of further probe---No prima facie incriminating material in that regard was placed on the record to connect accused with the alleged offence---Receipt of money from any person on the pretext of sending' or providing employment to any person beyond Pakistan; was sine qua non to attract the offence under S.22(b) of the Emigration Ordinance, 1979---Complainant having not made any payment to accused, attraction of offences under Ss.17/22 of the Emigration Ordinance, 1979 to extent of accused, was matter of further probe---Accused was behind the bars for the last two months---Investigation was complete and he was no more required by the Police for further investigation---Accused was admitted to bail, in circumstances.

Muhammad Shakeel v. The State PLD 2006 Kar. 165 ref.

Muhammad Shakeel Bhatti for Petitioner.

Badar Munir Malik, Standing Counsel with Muhammad Noman Raza, S.-I. FIA.

Rana Muhammad Amin Azeemi for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2882 #

2011 Y L R 2882

[Lahore]

Before Muhammad Qasim Khan, J

ARSHAD IQBAL and another---Petitioners

Versus

S.H.O. and 6 others---Respondents

Writ Petition No.6558 of 2011, decided on 2nd June, 2011.

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

----Ss. 406, 3 & 4---Criminal Procedure Code (V of 1898), Ss.188, 154, 22-A & 22-B---Constitution of Pakistan, Art.199---Criminal breach of trust---Constitutional petition--- Offence committed outside Pakistan---Registration of F. I. R. ---Additional Sessions Judge as Justice of Peace had directed the S.H.O. to discharge his obligation vide impugned order---Validity---Allegation of criminal breach of trust and dishonest misappropriation of 55,000 Saudi Riyals had been levelled against the accused---Complainant had specifically alleged that he had handed over the said money to the accused in Saudi Arabia with an undertaking that the same would have to be delivered to him in Pakistan, which was ultimately refused by the accused---Allegations made against the accused definitely required investigation before reaching some definite conclusion---Prima facie, the application moved by the complainant against the accused for registration of the case even on a cursory glance had disclosed commission of a cognizable offence under S.406, P.P.C.---Pakistani citizen was liable to punishment under the Penal Code, for every act contrary to its provisions, done or omitted to be done on the high seas or elsewhere out of Pakistan---Rules enunciated under S.3 and S.4 P.P.C. and S.188, Cr.P.C. were based on the principle that qua citizens the jurisdiction of courts was not lost by reason of the venue of the offence beyond their territory---Certificate required by S.188, Cr.P.C. could be produced when the matter was placed before the. court or even after indictment---Section 188, Cr.P.C. did not create any bar on registration of case under S.154, Cr.P.C. and Police was competent to register a criminal case when any information with regard to the commission of a cognizable offence was received by them and then to conduct investigation into the offence notwithstanding the place of occurrence beyond the territorial jurisdiction of Pakistan, because the accused was said to be a citizen of Pakistan---Word "found" used in S.188, Cr.P.C. meant "found by the court" at the time when the matter would come up for trial---Any competent court could take seizin, the moment the accused would appear before it--Impugned order did not suffer from any illegality or irregularity---Constitutional petition was dismissed accordingly.

Shujah Tariq v. Messrs Chaudhry and Company and 2 others 2002 PCr.LJ 351; Shahbaz ud Din Chaudhry v. S.H.O. Police Station Garden Town, Lahore 1999 SD 217; Abu Bakar v. The State 1989 PCr.LJ 369 and Jaffar Ali Alvi v. Sessions Judge, Islamabad PLD 2006 Lah. 434 ref.

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

----Ss. 188 & 154---Penal Code (XLV of 1860), Ss.406, 3 & 4--- Criminal breach of trust---Liability for offences committed outside Pakistan by citizen of Pakistan---Scope and applicability of S.188, Cr. P. C.--Registration of F.I.R.---Sanction in terms of S.188, Cr.P.C. can be produced even after submission of challan in the court---Section 188, Cr.P.C. does not create any bar on registration of the case under S.154, Cr.P.C.-Police is competent to register a criminal case on receipt of information with regard to the commission of a cognizable offence and to conduct investigation into the offence, notwithstanding the place of occurrence beyond the territorial jurisdiction of Pakistan, because the accused is said to be a citizen of Pakistan.

----S. 188---Liability for offences committed outside Pakistan---Word 'found" used in S.188, Cr.P.C.---Connotation-Word "found" used in S.188, Cr.P.C. means `found by the court at the time when the matter came up for trial," i.e., any court competent to try the offence can take seizin, the moment the accused appears before it.

Muhammad Arif Gondal for Petitioners .

Muhammad Azeem for Respondents.

Miss Salma Malik, A.A.-G. with Sikandar Sub-Inspector.

YLR 2011 LAHORE HIGH COURT LAHORE 2904 #

2011 Y L R 2904

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD FAROOQ---Appellant

Versus

MUHAMMAD SHAHBAZ and 6 others---Respondents

Criminal Appeal No.291 of 2009/BWP, heard on 6th July, 2011.

Penal Code (XLV of 1860)---

----Ss. 452/447/429/506-B/511/148/149--Criminal Procedure Code (V of 1898), Ss.345, 249-A & 417(2A)---House trespass, mischief, criminal intimidation and attempt to commit offences punishable with imprisonment for life or a shorter term---Appeal against acquittal---Complainant, at bail stage, had an affidavit in favour of accused stating thatthey had entered into compromise---Contents of said affidavit, transpired that said compromise was merely for grant of concession of bail to the accused and it did not bear any reference with regard to compounding of offence with accused---Keeping in view the provisions of S.345, Cr.P.C., it was incumbent upon the Trial Court to procure the attendance of the complainant for recording of his compounding statement with regard to compoundable offences charged against accused---Affidavit made by the complainant at bail stage, could not be made basis for acquittal of accused under S.249-A, Cr.P.C.---Impugned order of acquittal under S.249-A, Cr.P.C., was illegal and unjustified, which could not sustain in the eye of law---Order of acquittal was set aside and case was remanded to the Trial Court for fresh trial in accordance with law.

Muhammad Akram v. Abdul Waheed and 3 others 2005 SCMR 1342 rel.

Rehari Zafar for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor-General for respondents/ assisted by Mirza Muhammad Azam for the Complainant.

Date of hearing: 6th July, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2922 #

2011 Y L R 2922

[Lahore]

Before Abdus Sattar Asghar, J

ADNAN SHARIF---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.9392-B of 2011, decided on 19th August, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.376/496-A---Rape, enticing or taking away or detaining with criminal intent, a woman---Bail, refusal of---Accused's first wile and alleged abductee and victim of the case, were real. sisters---Accused's marriage with the victim, was void and not irregular---Maintenance of nuptial relations in result of a void marriage, could not be termed as lawful or valid---Attraction of the offence under S.376, P.P.C., in circumstances, did not call for any further inquiry---Offence under S.376, P.P. C. fell within the prohibitory clause of S.497, Cr.P.C.---Accused was not entitled to the concession of bail, in circumstances.

Muhammad Nawaz v. The State PLD 2004 Lah. 365 and Talib Hussain 'v. Mst. Yasmin Ara and another 2009 PCr.LJ 982 ref.

Verse No.23 of Sorah Al-Nisa rel.

Section 263 of Mohammadan Law distinguished.

(b) Islamic Law---

----Marriage---Unlawful conjunction--Half-sister of wife---Muslim is prohibited to have two sisters in wedlock at one and the same time.

Verse No.23 of Sorah Al-Nisa ref.

Section 263 of Mohammadan Law distinguished.

Ch. Fayyaz Ahmad for Petitioner.

Nisar Ahmad Virk, D.P.-G. for the State along with Faiz, A.S.-I.

Salman Faisal Khan and Ms. Farah Malik for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2938 #

2011 Y L R 2938

[Lahore]

Before Abdus Sattar Asghar, J

GHULAM NABI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.8430-B of 2011, decided on 2nd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.397/412---Robbery or dacoity, with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of a dacoity---Bail, grant of---Further inquiry---F.I.R. in the case was lodged after delay of four days from the date of occurrence---Accused was not nominated in the F.I.R., but was nominated in the supplementary statement of the complainant; he was joined with investigation, when he was found detained in District Jail in another case---No identification parade of accused was conducted by the Police---Accused was neither known to the complainant nor was identified by him as an accused at the time of occurrence---In the absence of identification parade, allegation regarding complicity of accused as one of the accused persons in the alleged occurrence, matter necessarily remained that of further probe---Alleged recovery of amount effected through brother-in-law of accused, was also inconsequential---No evidence was available on record to establish that recovered amount, was a part of sale proceeds of the looted maize---Co-accused had already been allowed bail on the basis of affidavit of the complainant, exonerating them by accepting their innocence---Contentions of counsel for the complainant that was nominated in some other cases of like nature, was devoid of force as the complainant had failed to produce any order of conviction against accused in such like offences---Accused was behind the bars for the last about six months, without any progress in the trial and was no more required by the Police for further investigation---Accused could not be detained in jail for an indefinite period and was admitted to .bail, in circumstances.

Ch. Muhammad Yaqoob Sidhoo for Petitioner.

Muhammad Naeem Sheikh, D.P.-G. for the State with Muhammad Bilal A.S.-I.

Mian Muhammad Tanveer Chotya for the Complainant.

YLR 2011 LAHORE HIGH COURT LAHORE 2977 #

2011 Y L R 2977

[Lahore]

Before Syed Kazim Raza Shamsi, J

WAHEED UZ ZAMAN KHAN---Petitioner

Versus

Syed HASSAN RAZA BUKHARI and others---Respondents

Writ Petition No.12080 of 2009, heard 23rd June, 2011.

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

----S.13---Specific Relief Act (I of 1877), S.12---Ejectment---Agreement to sell---Effect---Tenant remains a tenant even if he succeeds in procuring an agreement to sell with his landlord till the time that agreement is resulted into a final document of title---Mere agreement to sell does not create any right or title---After execution of agreement to sell by landlord, tenant does not become owner of the property.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101 fol.

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

---S.13---Constitution of Pakistan, Art.199--Constitutional petition---Ejectment of tenant---Agreement to sell---Rent Controller allowed ejectment application filed by landlord but Lower Appellate Court relying on agreement to sell in favour of tenant held that no relationship of landlord and tenant existed between the parties, resultantly ejectment application filed by landlord was dismissed---Validity---Lower Appellate Court while taking a converse view than the view of Rent Controller did not appreciate legal position and had just relied upon the term 'possession' mentioned in the agreement to sell, to dismiss ejectment petition---Lower Appellate Court also could not make distinction between possession as tenant and possession of a person as owner over property in dispute---Lower Appellate Court should have been mindful of the fact that tenant might become an owner of property in dispute if he could have succeeded in getting title of document executed in his favour, which could be a sale-deed---Till the time of execution of sale-deed, status of tenant was of a tenant in possession of rented premises---Findings of Lower Appellate Court on the issue of possession was based upon misappreciation of law and non-reading of material facts borne out of the record, as such were liable to be set aside---High Court declared the order passed by Lower Appellate Court as illegal and of no legal consequence and set aside the same and restored eviction order passed by Rent Controller---Petition was allowed in circumstances.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101 and Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 fol.

Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781; Mian Abdul Rashid v. Province of Punjab through District Controller, Okara and another PLD 2003 Lah. 389; Ch. Noor Hussain v. Ch. Allah Bakhsh and others 1984 SCMR 446 and Muhammad Islam Khan v. Cantonment Board, Kohat 1982 SCMR 1056 distinguished.

Shafqat Mehmood for Petitioners.

Rafique Javed Butt for Respondents.

"Date of hearing: 23rd June. 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 2984 #

2011 Y L R 2984

[Lahore]

Before Muhammad Ameer Bhatti, J

RUKAN ALAM SHAH and others---Petitioners

Versus

Mst. HUSSAIN BIBI and 7 others---Respondents

Civil Revision No.815 of 2004, decided on 8th July, 2011.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Gift, revocation of---Onus to prove---Concurrent findings of fact by two courts below---Plaintiff claimed that her husband gifted the suit land in her favour through a deed registered in year, 1947 but the husband who was defendant in the suit stated that he had orally revoked the gift---Trial Court decreed the suit in favour of plaintiff and Lower Appellate Court dismissed the appeal---Validity---After the statement of husband, there was no need for plaintiff to make any effort to prove factum of gift---Onus had shifted to the shoulders of husband to prove his case of revocation but there was no evidence available on record---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of fact recorded by two Courts below---Revision was dismissed in circumstances.

1987 SCMR 624; 2000 MLD 1729; 1972 SCMR 50; 1993 SCMR 246; PLD 1994 SC 291; 2001 SCMR 798; PLD 2006 SC 50; 1979 SCMR 630; 2007 SCMR 1131; PLD 2006 SC 318; 2008 SCMR 546; 1987 MLD 1779 and KLR 1984 Revenue 38 ref.

2003 CLC 1006; 1995 CLC 1532; Mst. Nusrat Zohra v. Mst. Azra Bibi and others PLD 2006 SC 15; Waheed v. Mst. Saida Jan 1998 MLD 3 rel.

(b) Islamic law---

----Gift---Possession---Transaction of gift between husband and wife---Principles---When land is gifted by husband to wife, for that purpose, there is no need to deliver physical possession---Mere acceptance by donee and mentioning of delivery of possession in gift deed is sufficient.

2006 SCMR 50 rel.

----S.16---Specific Relief Act (I of 1877), S.42---Consolidation of land---Effect---Consolidation operation does not affect the rights which have been accrued through valid documents.

PLD 1973 Lah. 637; PLD 1966 Lab. 1171; 1970 Law Notes 873 and NLR 1981 Civil 68 (sic) rel.

(d) Islamic law---

----Sect---Presumption---Unless any person does not plead and prove himself otherwise, he is presumed to be Sunni.

AIR 1933 Lah. 38; 1989 CLC 1591; PLD 1961 Lah. 431; PLD 1956 SC 134 and PLD 1975 Lah. 46 rel.

Ch. Muhammad Rafique Warriach for Petitioners.

Sh. Naveed Shehryar for Respondents.

Date of hearing: 1st July, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 3007 #

2011 Y L R 3007

[Lahore]

Before Mazhar Iqbal Sidhu, J

Mst. SHAMIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1009, 'Criminal Revision No.746 and P.S.L.A. No.110 of 2009, heard on 24th June, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b)/506/148/149---Qatl-e-amd, criminal intimidation---Appreciation of evidence---Accused was mother of co-convict, who had owned causing injuries to deceased resulting in his death, but had explained the circumstances allegedly faced by her for his flat lining---Court could differ from the prosecution story as well as from the defence version and could construe its own independent outcome from the material available---Prosecution witnesses were not present and they had made false statements related to the deceased; and if they knew that the house wherein the deceased was allegedly invited by accused was run for suspicious activities, then why deceased accepted the invitation and why the prosecution witnesses did not forbid him; and accused did not cause any injury to the deceased---Prosecution had failed to prove its case against accused beyond any shadow of doubt---Conviction and sentence of accused was set aside, she was acquitted of the charge and was set at liberty, in circumstances.

Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 rel.

Rana Muhammad Arif for Appellant.

Ch. Saeed Akhtar Kamboh for the Complainant.

Noor Muhammad Bhatti, D.P:P. for the State.

Date of hearing: 24th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 3020 #

2011 Y L R 3020

[Lahore]

Before Syed Kazim Raza Shamsi, J

NISAR AHMAD and others---Petitioners

Versus

MANZOOR HUSSAIN and others---Respondents

Writ Petitions Nos.5810 to 5814 of 2010, heard on 7th July, 2011.

Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 8 & 9---Constitution of Pakistan, Art. 199---Constitutional petition--Ejectment of tenant---Unregistered tenancy agreement---Effect---Ejectment applications filed by landlords were allowed by Rent Tribunal as no leave was granted to tenants---Lower Appellate Court remanded the cases to Rent Tribunal for taking proceedings under sections 8 and 9 of Punjab Rented Premises Ordinance, 2007, as landlords did not get tenancy agreements registered with Registrar of Rent Tribunal---Plea raised by landlords was that at the time of institution of ejectment petitions, the tenancies had expired, as such the provision of section 8 of Punjab Rented Premises Ordinance, 2007, was not applicable---Validity---At the time of promulgation of Punjab Rented Premises Ordinance, 2007, the tenancies were in existence---Was mandatory for landlord to bring the existing tenancies in conformity with the requirement of section 8 of Punjab Rented Premises Ordinance, 2007---Court was not to see as to 'when ejectment petitions were filed rather it was to be examined that whether at the time of promulgation of law any tenancy was in existence---Lower Appellate Court should not have remanded cases to Rent Tribunal only for compliance of section 9 of Punjab Rented Premises Ordinance, 2007, rather the Court had jurisdiction to itself direct landlord to deposit fine of 10% as provided in law---In case of non-compliance of such direction, the Lower Appellate Court could proceed against the landlords---Remand orders passed by Lower Appellate Court were unjustified, as the act directed to be performed by Rent Tribunal could also be done by Lower Appellate Court itself---High Court in exercise of Constitutional jurisdiction remanded the cases to Lower Appellate Court for deciding appeals on merits---Petition was allowed accordingly.

Syed Salman Gillani v. Additional District Judge and others Writ Petition No.3678 of 2009; Muhammad Usman and others v. A.D.J. Lahore and others Writ Petition No.19643 of 2009; Majid Khan through Special Attorney and 2 others v. Mst. Naseem Bibi and 9 others PLD 2010 Lahore 389 and Muhammad Zaman v. Akram Hussain and others 2011 CLC 755 ref.

Anwaar Akhtar for Petitioners.

Malik Mushtaq Ahmad for Respondent No.1.

Date of hearing: 7th July, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 3025 #

2011 YLR 3025

[Lahore]

Before Ch. Muhammad Younis, J

QADIR BAKHSH and 4 others---Petitioners

Versus

MEMBER, (CONSOLIDATION) PUNJAB BOARD OF REVENUE, LAHORE and 9 others---Respondents

Writ Petition No.1866 of 2007, heard on 23rd June, 2011.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 10, 13 & 14---Constitution of Pakistan, Art.199---Constitutional petition---Confirmed consolidation scheme---Review - of---Consolidation Scheme of Mauza concerned was confirmed in 1981 by the Board of Revenue which was upheld upto the Supreme Court---Confirmation of the scheme which had attained finality, had been implemented and "acted upon---Possession had been transferred according to the scheme and new transferees had developed their respective lands and more than 500 persons had purchased lands and made development on their respective property---When the matter had attained finality, Additional Commissioner (Consolidation) after 15 years of said confirmation, reviewed consolidation scheme and ordered for fresh consolidation, despite the fact that there was no provision of review in the West Pakistan Consolidation of Holdings Ordinance, 1960---Validity---Powers of review could be conferred only by the statute, and when West Pakistan Consolidation of Holdings Ordinance, 1960 had not empowered the Additional Commissioner (Consolidation) to review the consolidation operation, order passed by him was without jurisdiction and was not sustainable in the eye of law---Law would lean in favour of finality of legal proceedings, otherwise a 'Pandora's box' would be opened and unending round of litigation could commence causing great hardship and endless misery to the litigants/Khatadars---Matters, which had attained finality in consequence of judicial proceedings, could not be re-opened through executive authority---Review of the scheme would definitely re-open a past and closed chapter giving rise to the multiplicity of proceedings causing endless misery to the landowners---Impugned order having been passed without jurisdiction and without hearing the petitioners, delay in challenging the same would not be fatal and constitutional petition by the petitioners, was not hit by laches keeping in view the peculiar facts and circumstances of the case---There was no limitation for a constitutional petition and High Court was competent to grant discretionary relief to petitioners---Impugned order of Additional Commissioner (Consolidation) was declared to be unlawful and without jurisdiction---Neither any consolidation scheme could be prepared nor de novo consolidation proceedings could take place.

Muhammad Khan and others v. Addl. Commissioner (Consolidation) and others 1999 MLD 1048; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC)) 1999 SCMR 2883; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muhammad Saleem v. Muhammad Din and others PLD 1981 Rev. 8 and Abdul Sattar v. Secretary Colonies, Board of Revenue, Punjab Lahore and 2 others 2000 CLC 1030 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Limitation---Strictly speaking there is no limitation for a constitutional petition and in exercise of constitutional jurisdiction, High Court is competent to grant discretionary relief to the petitioners.

Syed Asif Raza Gillani and Malik Sharif Ahmad for Petitioners.

Saghir Ahmad Bhatti for Respondent No.6-B.

Atta-ul-Manan, for Respondents Nos.7 to 10.

Rana Muhammad Hussain, A.A.-G. Javed Sadiq Than, Tehsildar.

Date of hearing: 23rd June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 3034 #

2011 YLR 3034

[Lahore]

Before Malik Shahzad Ahmed Khan, J

AWAIS KHALID---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No.1991 of 2011, decided on 5th August, 2011.

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

----S. 5, Sched., Ss.10(3) & 18---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dissolution of marriage---Defendant's application for summoning of plaintiff in person---Defendant's plea was that plaintiff had not filed suit with her free consent; that she was not a pardahnashin lady and that her personal attendance in court was essential for reconciliation and to resolve question of authenticity of her signatures on plaint---Dismissal of such application by Family Court---Validity---Plaintiff living abroad had been pursuing suit through her attorney/father---Plaintiff had appeared before Family Court and made statement after putting her signatures on its order-sheet that she had to go to America and could not live with the defendant---Plaintiff was identified before Family Court by her counsel---Order of Additional Sessions Judge disposing of habeas corpus petition on plaintiffs statement was still holding field for not having been challenged any further by the defendant---Plaintiff was duly represented by her attorney, thus, there was no need of her personal appearance before Family Court---Plaintiff having appeared before Family Court, once or twice, would not be disentitled her to avail legal right provided under S. 18 of West Pakistan Family Courts Act, 1964 for all times to come---Personal appearance of plaintiff in conciliation proceedings was not mandatory---Question as to whether plaintiff was a pardahnashin lady or not, being factual one could not be decided in constitutional jurisdiction of High Court---Defendant could raise such question before Family Court during trial or at time of final decision of case---Impugned interim order was neither illegal nor mala fide or without jurisdiction, thus, could not be challenged in constitutional jurisdiction---High Court dismissed constitutional petition in circumstances.

Muhammad Javed Iqbal v. Mst. Tahira Naheed and others 2002 CLC 1396 and Shahida Perveen and another v. Sher Afzal and 2 others 2006 MLD 1752 ref.

Khalid Mehmood Syed v. Razi Abbas Bokhari, Judge, Family Court, Lahore PLD 1979 Lah. 217; Mst. Saeeda v. Lal Badshah 1981 SCMR 395 and Saad Amanullah Khan v. Ayesha Tahir Shafique and another 1999 CLC 1544 rel.

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

----S. 10(3) & 18---Pre-trial conciliation proceedings---Personal appearance of wife in such proceedings---Scope---Provision of S.10(3) of West Pakistan Family Courts Act, 1964 for being directory neither required personal appearance of wife nor such appearance was mandatory---Court under S. 18 of the Act could dispense with legal requirement of personal appearance of Pardahnashin lady and allow her to be represented in such proceedings through her authorized agent---Wife having appeared before Family Court, once or twice, would not be disentitled to avail legal right provided under S. 18 of West Pakistan Family Courts Act, 1964 for all times to come---Principles.

Khalid Menunood Syed v. Razi Abbas Bokhari, Judge, Family Court, Lahore PLD 1979 Lah. 217 and Mst. Saeeda v. Lal Badshah 1981 SCMR 395 rel.

----Ss. 5 & 14---Constitution of Pakistan, Art.199--- Constitutional jurisdiction of High Court---Scope---Interim order of Family Court---Such order, if neither illegal nor mala fide nor without jurisdiction, could not be challenged in such jurisdiction.

Saad Amanullah Khan v. Ayesha Tahir Shafique and another 1999 CLC 1544 rel.

Umer Ali Khan for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 3053 #

2011 YLR 3053

[Lahore]

Before Altaf Ibrahim Qureshi and Abdus Sattar Asghar, JJ

ESA BIN MOEEN---Appellant

Versus

DIRECTOR ANTI-CORRUPTION and 7 others---Respondents

I.C.A. No.180 of 2011/BWP of 2011, and Writ Petition No.3143, decided on 14th September, 2011.

Penal Code (XLV of 1860)---

----S. 409---Prevention of Corruption Act (II of 1947), S.5(2)---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan, Art. 199---Criminal breach of trust by public servant---Constitutional petition---Quashing of F.I.R.---Scope---Accused persons sought quashing of F.I.R. registered against them in their constitutional petition---Said petition had been dismissed by Single Judge of High Court, appellant/co-accused who was not a Party in said constitutional petition, being dissatisfied with the dismissal of constitutional petition, through impugned order, had assailed the same through intra court appeal, almost on the same grounds raised in the constitutional petition by the accused persons---Grounds and arguments agitated by counsel for the appellant for quashing of F.I.R., were based on pure question of fact-Quashing of F.I.R. by appreciating the documents produced by the parties would amount to bypassing the normal proceedings of law prescribed by the Criminal Procedure Code, 1898---Accused could not be allowed to avoid ordinary course of trial before the court of competent jurisdiction by resorting to constitutional jurisdiction of High Court if prima facie, the offence was made out against him-Quashing of F.I.R. during the investigation would amount to throttling the investigation process, which was not permissible in law---Single Judge of High Court, in circumstances, had rightly dismissed constitutional petition with a direction to the Investigating Officer to record the version of accused persons and also to receive their oral and documentary evidence which they could offer before him in their defence while joining the investigation---Appellant in the case had neither locus standi nor he could make out any case for appeal against the impugned order---Impugned order not suffering from any illegality, intra-court appeal was dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Umair Mohsin, Muhammad Adnan Saeed, and Asad Mahmood Warriach for Appellants.

YLR 2011 LAHORE HIGH COURT LAHORE 3060 #

2011 Y L R 3060

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

LAHORE DEVELOPMENT AUTHORITY through Director General, LDA and another---Petitioners

Versus

Messrs SHAUKAT AND RAZA (PVT.) LTD. and others---Respondents

Civil Revisions No.2579 of 2005, and 1144 and 32 of 2006, heard on 16th June, 2011.

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

----Ss. 4, 6 & 17(4)---Lahore Development Authority Act (XXX of 1975), S. 13---Acquisition of land---Subsequent purchaser---Land in question was acquired by Lahore Development Authority for establishing a housing scheme---Plaintiffs purchased land in question from original owners after the notification of acquisition had been issued by the authorities-Plaintiffs---Plaintiffs assailed the notification o acquisition and asserted that original owners had no right to claim the exemption plots from the Development Authority---Suit filed by plaintiff was decreed in his favour by Trial Court which was maintained by Lower Appellate Court---Validity---If plaintiff had suffered any loss due to acquisition of land" by Lahore Development Authority, that was not due to the Authority but it was a matter between plaintiff and original owners---Acquiring of land or establishing a housing scheme by Lahore Development Authority could not be challenged by plaintiffs as they were non-existent at the time of initiation of acquisition proceedings---After acquisition of land, interest of original owners in acquired property remained intact, they remained entitled to compensation and other benefits under acquisition proceedings, which interest was purchased by plaintiffs---High Court declined to interfere in findings of two Courts below---Revision was dismissed accordingly.

Collector Land Acquisition, Skardu and 2 others v. Mst. Khatija Begum 2006 CLC 1552; Government of Pakistan through Ministry of Defence Islamabad and another v. Collector Land Acquisition/ Settlement Officer, Gilgit and another 2006 CLC 1641; W.Z. Studios Ltd., Lahore through Managing Director v. The Deputy Commissioner, Lahore District Courts, Lahore and 4 others PLD 1996 Lah. 349; Multan Development Authority v. Ashiq Muhammad Khan and another 2005 SCMR 1289; Habibullah and others v. Taj Din alias Taj and others 2007 YLR 1692; Lahore Development Authority v. W.Z Studios and others 1999 SCMR 1576; Mir Fazal v. Land Acquisition Collector/ Assistant Commissioner (Saddar) Islamabad Capital Territory (ICT) Islamabad and 3-others 2005 MLD 168; Government of Sind and 2 others v. Muhammad Usman and 2 others 1984 CLC 3406; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Yar v. Mst. Karam Jan and others 2010 MLD 444 ref.

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

----S. 42---Suits Valuation Act (VII of 1887), S. 3---Court Fees Act (VII of 1870), S. 7---Valuation of suit-Court-fee, affixation of---Plaintiff claimed that he purchased suit land against consideration of Rs. 800, 000/- but for the purposes of court fee and jurisdiction, valued the suit at Rs.100, 000 and accordingly fixed the court fee of Rs. 7500/---Validity---Value for the purpose of court fee and jurisdiction was Rs. 800,000 and plaintiff was bound to pay the court fee ad-valorem---High Court directed the plaintiff to make good the deficiency of court fee of Rs. 7,500 within one month.

Muhammad Rashid and Mian Mazaffar for Appellants.

Jawad Hassan A.A.-G. for Respondent No.7.

Date of hearing: 16th June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 3070 #

2011 Y L R 3070

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD ASLAM---Petitioner

Versus

KAURU KHAN and others---Respondents

C.R. No.2668 of 2011, decided on 13th September, 2011.

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

----S. 13---Talb-e-Muwathibet, making of--Time, date and place of making of said talb, though was mentioned by the plaintiff, but that could not be proved by the plaintiff by the witnesses while recording their statements---Party was expected and was bound to prove the case as alleged and covered, by the issues framed---Such was in accordance with the principle of "Secundun: allegata et Probata", i.e., a party could only succeed according to what it had alleged and proved---Facts mentioned in the plaint about Talb-e-Muwathibat having not been proved, same was fatal to the suit---Courts below in circumstances had rightly dismissed the suit.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 rel.

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

----O. VI, R.1 & S.115---Pleadings---Pleadings were not deemed to be the evidence; and had to be proved by producing evidence---Pleadings of the parties were not substantive piece of evidence, unless and until averments made in pleadings were proved from evidence in court or admitted by the other party.

Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 rel.

Faiz Muhammad Balal for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 3073 #

2011 Y L R 3073

[Lahore]

Before Amin-ud-Din Khan, J

Mst. JANNAT and others---Petitioners

Versus

Mst. MAQSOOD and others---Respondents

C.R. No.458 of 1995, heard on 21st June, 2011.

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

----Arts. 17(2), 79 & 117---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Transaction of exchange of agricultural land of plaintiff with defendant's land as contained in exchange deed alleged by plaintiff to be fictitious---Proof---Plaintiff on oath stated that he did not appear before Sub-Registrar for registration of exchange deed---Onus to prove execution and registration of exchange deed shifted to defendant possessing original deed and being beneficiary thereof Defendant in order to prove such transaction and deed had neither produced its original in court nor examined its attesting witnesses, scribe or party thereto---Khasragirdawri showed that plaintiff was in possession of the suit land---Defendant had not produced documentary evidence to prove delivery of possession of his land allegedly given in exchange to plaintiff---Defendant had not cross-examined plaintiffs statement regarding his possession over suit land, thus, such statement of plaintiff would be presumed to have been admitted by defendant---Suit was decreed in circumstances.

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

----O. XX, R. 5---Issue in civil proceedings---Method of recording findings on issues.

Any issue in the civil proceedings has to be decided on the preponderance of evidence. It is not legal way to record findings on any issue on the whim of a judge or on the basis of findings of other issues.

----Art.l33---Statement of a party not cross-examined by other party---Effect---Such statement would presumed to be admitted by other party.

Raja Muhammad Sohail Iftikhar for Appellant.

Nemo for Respondent.

Date of hearing: 21st June, 2011.

YLR 2011 LAHORE HIGH COURT LAHORE 3077 #

2011 Y L R 3077

[Lahore]

Before Rauf Ahmad Sheikh, J

KAUSAR PARVEEN---Petitioner

Versus

RASHEED AHMED and 45 others---Respondents

Civil Revision No.557-D of 2011, decided on 23rd May, 2011.

Partition Act (IV of 1893)---

----Ss. 2 & 3---Suit for partition of property---House jointly owned by the parties, being not divisible, was ordered to be put on auction---Petitioner, who was one of the owners of the house, filed application that she be given some time to purchase the said house, but despite availing opportunities she could not---Finally her general attorney made statement that the petitioner was not in a position to purchase the entire property as she did not have sufficient means---Trial Court, in circumstances, passed order for sale of the property through auction---Under S.3, Partition Act, 1893, in order to avoid the transfer of such transfer of such house to a third person, one or more co-sharers had the right to purchase the entire house, but the petitioner, being one of the sharers did not avail that offer---Impugned order passed by the Trial Court and judgment of the Appellate Court, whereby house was put to auction, did not suffer from any illegality or infirmity---In absence of any irregularity, revision against impugned order, was dismissed.

Malik Asif Iqbal for Petitioner.

YLR 2011 LAHORE HIGH COURT LAHORE 3079 #

2011 Y L R 3079

[Lahore]

Before Syed Iftikhar Hussain Shah, J

QAMAR-UZ-ZAMAN-Petitioner

Versus

MEMBER BOARD OF REVENUE, PUNJAB (JUDICIAL-IV) and 3 others---

Respondents

Writ Petition No.6074 of 2011, decided on 6th July, 2011.

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

----S.10---Horse Breeding Scheme---Allotment of land---Principles---In allotment of such tenancy, the District Remount Officer, being legal representative of the Army Remount Department be consulted and due recommendations should be given weight before allotment of tenancy.

Muhammad Shafique v. Rashid Sultan 2002 YLR 2426 rel.

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

----S. 10---Horse Breeding Scheme, Condition No. 24---Constitution of Pakistan, Art. 199---Constitutional petition---Remount breeding tenant---Allotment of tenancy---Minor grandson of tenant, rights of---After the death of 'tenant, land in "question was allotted to respondent who was his grandson---Petitioner was step brother of deceased tenant and his grievance was that the land could not be allotted to a minor---Validity---Provincial Government had recommended that in case of tenancy falling vacant on death of a lessee with a good horse / mule breeding record, it should continue to be allotted to the heirs of the deceased in preference to any other applicant---Petitioner was a step-brother of original allottee, who did not fall within the definition of legal heirs of the deceased allottee and District Revenue Officer did not look into such aspect of the matter--- No legal bar existed in granting tenancy to minor but District Revenue Officer did such fact and illegally deprived the respondent from his legal right---Provincial Government retained absolute discretion in selection of tenants for State land---No person was entitled to become tenant of State land as of right---Petitioner was not legal heir of deceased allottee and was not connected with tenancy in question and there was nothing on record !hat case of petitioner was ever considered by District Remount Officer, for allotment of tenancy in question-Respondent was direct descendent of being his grandson---According to recommendations made by District Remount Officer, track record of deceased allottee was satisfactory---Board of Revenue had rightly held respondent, eligible for grant of tenancy in question---Orders passed by Board of Revenue were in accordance with law and the same were maintained---Petition was dismissed in circumstances.

Abdul Baqi v. S. Abad Hussain PLD 1960 WP (Rev.13); Muhammad Shafique v. Rashid Sultan 2002 YLR 2426 and Ghulam Muhammad v. Member (Judicial) Board of Revenue 2006 YLR 45 ref.

Sub-Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 rel.

Rafique Ahmed Qureshi for Petitioner.

Mian Muhammad Siddique Kamyana for Respondent No.3.

Muhammad Mubashir Latif Gill, A.A.-G.

YLR 2011 LAHORE HIGH COURT LAHORE 3087 #

2011 Y L R 3087

[Lahore]

Before Ch. Muhammad Tariq and Ijaz Ahmad, JJ

GOVERNMENT OF THE PUNJAB through Secretary Food, Punjab Secretariat, Lahore and 4 others--- Appellants

Versus

NAEEM SARWAR---Respondent

I.C.A. No.116 of 2011 in W.P. No.2040 o1 2011, decided on 5th May, 2011.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition--Term "aggrieved person"---Applicability---Pro bono publico litigation---Very strict interpretation of term "aggrieved person" is not appreciated in case of litigation, pro bono publico---Any person interested in performance of the functions by concerned authorities in a lawful manner, may move the court.

(b) Public Health and Safety---

----Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Toxic edibles---Sale in market---Damaged wheat was auctioned by authorities, which wheat turned out to be toxic and dangerous for human and animal consumption. Single Judge of High Court, in exercise of constitutional jurisdiction and with the concurrence of authorities, directed to auction the wheat to brick-kiln owners for disposal by burning in kiln---Plea raised by authorities was that direction to sale only to brick-kiln owners would cause loss to government-Validity-Once the damaged and rotten wheat was in the hands of greedy millers who were already mixing various dangerous and toxic items in edibles, there was every chance that they would be grinding and mixing rotten and poisonous wheat with flour sold for human consumption---In case, the Provincial Government in order to save its poor subjects from health hazards, wanted to nip the evil, it had to be done at the source and at the terminal, simultaneously---Once the dangerous toxicant material would be allowed to reach the hands of the profiteers, they could not be expected to sell it for animal consumption only or for any less dangerous and less profitable purpose---Single Judge of High Court had already taken a lenient view and authorities were allowed to auction the same by restricting the bids to brick-kiln owners only---Authorities were perhaps not aware of the fact that human beings were occupying a special place in the food chain, the grains were at the lowest tier, the birds and animals at the next higher and the man, the last consumer was at the apex---Toxic particles travel upward and end up in human body to bring a catastrophe to its metabolism---Authorities were insisting to sell toxic wheat through an open auction and were dying for higher sale proceeds and their subjects would become prey to their greed---Division Bench of High Court condemned such attitude of government functionaries and declined to interfere in the judgment passed by Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Rana Muhammad Hussain, Assistant Advocate-General Punjab for Appellants.

YLR 2011 LAHORE HIGH COURT LAHORE 3089 #

2011 YLR 3089

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MAZHAR SAEED and another---Petitioners

Versus

A.D.J. and 11 others---Respondents

Writ Petition No.15972 of 1999, decided on 24th August, 2011.

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

----S. 2(c) & (i)---Right of legal heirs of landlord to receive rent---Scope---Legal` heirs on opening of succession of deceased landlord would automatically fall within definition of landlord and become entitled to receive rent---Legal heirs would not be required to establish their such right, rather mere assertion by them to be legal heirs of deceased landlord would be sufficient.

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

----S. 13---Ejectment proceedings---Denial of relationship of landlord and tenant between parties---Burden of proof---Initial onus would lie upon landlord to prove existence of such relationship through convincing and cogent' evidence---Person in occupation of an immovable property would be bound to establish his capacity in which he was occupying same.

----S. 13---Transfer of Property Act (IV of 1882), S. 53-A---Ejectment petition by legal heirs of deceased landlords---Default in payment of rent, ground of---Denial of relationship of landlord and tenant between parties as tenant claimed to be in possession of premises in part performance of sale agreement executed by deceased landlords admitting them to be joint owners thereof---Validity---Tenant had not denied payment of rent to deceased landlords---Right to receive rent had devolved automatically upon legal heirs on opening of succession of deceased landlords---Tenant had not denied that ejectment petitioners were not legal heirs of deceased landlords---Legal heirs after death of original landlords had sent legal notice to tenant demanding from him rent of demised premises---Such notice was not received back undelivered, thus, presumption would be that same had been delivered to tenant---Tenant had an opportunity to reply said notice by taking plea in respect of alleged sale agreement, but his failure to do so would amount to admission of facts stated therein, thus, he was stopped by his conduct to deny title of landlords---Person in occupation of an immovable property had to establish his capacity in which he was occupying the same---Tenant's plea specifically taken in written statement was to the effect that he was occupying property in his own rights and in part performance of sale agreement without stating therein and establishing as to with whom 'he had agreed to purchase demised premises, when and in whose presence its price was paid---Non-?mentioning of all such details in written statement would be sufficient to repel such plea of tenant---Tenant had failed to prove tentatively ingredients of alleged sale agreement---Courts below had rightly appreciated evidence on record and found tenant to have defaulted in payment of rent---High Court dismissed constitutional petition in circumstances.

Mst. Wakeelan Begum v. Addl. District Judge, Gujranwala and 2 others 2006 CLC 1886; Muhammad Yousaf v. Rana Muhammad Shafi and others 2005 YLR 1627; Haji Faqir Muhammad v. Hazra Tulah 1989 CLC 252; Shahzadi Begum v. Suleman Khan. and 3 others 1993 CLC 1753; Mrs. Kaneez Raza v. Ansar Ali and another 1987 MLD 191; Beejal Mal v. Punaji 1987 CLC 1134; Muhammad Naeem v. Abdul Wahid and others 1999 MLD 1342; Suleman Mashkoor v. Abdul Ghafoor and others 2002 CLC 143; Mst. Roshan Bi and 6 others v. Munawar Hussain Gil 1987 MLD 3263; Afzal Ali V. Azhar Iqbal 1997 MLD 2262; Haji Suleman v. Haji Amin Sakoor Tumbi and another 1982 CLC 1453; Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884; Lal Khan v. The State 2006 SCMR 1846; Nazim Ali v. Rashid Qamar and 2 others 2006 CLC 289; Gul Begum v. Muhammad Riaz and another 2006 MLD 480; Ibadullah and others v. Sher Afzal 2006 CLC 666; Mst. Fatima Bibi v. Mst. Kaneez Fatima Bibi 2005 YLR 3089; Munir Ahmad and 6 others v. Muhammad Saddique 2005 MLD 364; Ziauddin Siddiqui v. Mrs. Rana Sultana and another 1990 CLC 645; Sardar M. Iqbal v. The State and another 2003 YLR 147; Mudassar Ahmad v. The State 2000 PSC 905(sic); Abdul Ghani and others v. Border Area Committee and others 1988 MLD 1538; Messrs Eastern Express Co., Ltd. v. Messrs Western India Skin Exporters PLD 1958 (W.P) Karachi 355; Muhammad Hayat v. Wazirzada and others PLD 1990 Pesh. 45; Abdul Rasheed v: Maqbool Ahmed and others 2011 SCMR 320; Syed Chan Peer Shah v. Muhammad Shafi and 2 others 2010 MLD 302; Abbas Ali Khan v. Mst. Farhat Iqbal and 2 others 2009 SCMR 1077; Miss Shaista Shams v. Mst. Seema Begum through constituted Attorney and 2 others PLD 2008 Kar. 424; Mst. Ishrat Khan v. Rauf Ahmad Sheikh and. others 2000 MLD 181 and Wazeeruddin v. Khalid Masood 1989 CLC 106 ref.

Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

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

----S. 27---West Pakistan General Clauses Act (VI of 1956), S. 26---Notice/Letter sent through registered post---Proof---Presumption of truth would attach to postal receipt that notice/letter sent thereby had been delivered to its addressee---Such presumption could be rebutted, if envelope was received back undelivered.

(e) Legal Notice---

----Failure of addressee to reply to legal notice---Effect---Such failure would amount to admission of facts stated in such notice---Principles.

(f) Possession---

----Person in occupation of immovable property would be bound to establish his capacity in which he was occupying the same.

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

----Art. 119---Specific plea or fact asserted by a party in pleadings---Burden of proof---Pleadings---Such party would be bound to prove positively such plea or fact by producing convincing and cogent evidence, whereafter opposite party could be required to disprove same---Opposite party could never be directed to prove negative fact as same would amount to putting horse before cart---Principles.

Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

(h) West Pakistan Urban Rent Restriction Ordinance (IV of 1959)---

----Ss.13 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Ejectment of tenant---Denial of relationship of landlord and tenant between parites---Ejectment order passed by Rent Controller upheld by Appellate Authority---High Court could not sit as a court of appeal to decide such question on merits afresh by reappraising evidence---Constitutional petition was not maintainable, in circumstances.

Muhammad Amin Sheikh for Petitioners.

Ghulam Haider Al-Ghazali for Respondents.

Date of hearing: 16th August, 2011.

Peshawar High Court

YLR 2011 PESHAWAR HIGH COURT 27 #

2011 Y L R 27

[Peshawar]

Before Attaullah Khan, J

AKHTAR ALI KHAN, S.I.O.---Petitioner

Versus

AFSAR ALI KHAN and another---Respondents

Criminal Miscellaneous Quashment No.96 of 2010, decided on 11th October, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A(6), 154 & 561-A--Order passed by Justice of Peace for registration of criminal case---Application filed by the respondent for registration of case against the petitioner who was S.H.O. of Police Station, having been accepted by the Justice of Peace, the petitioner had filed petition for quashing of order of Justice of Peace---Paramount question to be decided in proceeding under S.22-A, Cr.P.C. was as to whether a cognizable offence was committed---Compliance of S.154, Cr.P.C. was mandatory---Non-registration of F.I.R. on the part of the Police would amount to misuse of powers and neglect of his duty---Under S.22-A, Cr.P.C., if Justice of Peace would find that an incident had taken place, then he was required under the law to issue directions for registration of case---Application submitted by the respondent against the petitioner to the Justice of Peace under S.22-A, Cr.P.C. revealed that there were allegations of some facts which constituted a cognizable offence---When such facts were available disclosing existence of cognizable offence, then Police was bound to register the case under the provisions of S.154, Cr.P.C.---Impugned order passed by the Justice of Peace was well founded, well reasoned, based on facts needed no interference by the High Court in exercise of its inherent powers under S.561-A, Cr.P.C.---Impugned order was maintained and petition for quashing of said order was dismissed.

Salahuddin Khan S.H.O. v. Noor Jaan and others PLD 2008 Pesh. 53 ref.

Sultan Shahryar Khan Marwat for Petitioner.

Muhammad Yousaf Khan and Sanaullah Shamim, D.A.G for the State.

Date of hearing: 11th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 58 #

2011 YLR 58

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. AMTARI and others---Petitioners

Versus

Mst. HAKIM JAN and others---Respondents

Civil Revision No. 684 of 2005, decided on 20th September, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration-cum-injunction---Both Trial Court and Appellate Court had concurrently dismissed suit filed by the plaintiff---Validity---Plaintiffs who claimed to be owners in possession of suit property measuring 158 Kanals and 16 Marlas, had alleged that only 21 Kanals and 16 Marlas of land had been shown in their names in Revenue Record and remaining 137 Kanals had been incorrectly incorporated in the Revenue record in the name of defendants---Property in dispute was the common village property/Shamlat Deh though in possession of some of the plaintiffs and entire evidence on record was silent to the fact as to what was the actual ownership of the plaintiffs in the village and what was the share to be claimed by them in the village common property measuring 1764 Kanals 7 Marlas in total---Mere assertions of the plaintiffs would not entitle them to claim the village common property to be their exclusive ownership---Plaintiffs had also failed to prove the factum of ownership of the entire property as claimed by them---While challenging the entries in the Revenue record and that too of the Settlement record they were required under the law to have brought specific and direct evidence in support of their claim---Nothing was on record which could suggest that it was actually the property owned by the plaintiffs and that defendants had no concern whatsoever with the same---Plaintiffs had failed to make out a case for interference in exercise of revisional jurisdiction of High Court---Concurrent finding arrived by the courts below, needed no interference.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 ref.

Altaf Ahmad for Petitioners.

Asghar Khan Kundi for Respondents.

Date of hearing: 20th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 82 #

2011 Y L R 82

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Haji MUHAMMAD JAN---Petitioner

Versus

Mst. BIBI NOSHA and others---Respondents

Civil Revision No. 1432 of 2005, decided on 14th June, 2010.

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

----Ss. 122 & 123---Islamic law---Gift---Ingredients of valid gift---Three ingredients of gift were: Offer, acceptance and delivery of possession and it was essential to the validity of gift that there should be a declaration of gift by the donor; that there was an acceptance of the gift, express or implied, by or on behalf of donee and that there was delivery of possession of the subject of the gift by the donor to the donee---If any of said conditions was found missing then it could not be termed as a valid gift---Beneficiary/donee was bound to prove the factum of gift as per requirements of law through evidence.

1979 SCMR 65; 2008 SCMR 1425; PLD 1977 SC 20; 2006 SCMR 1144; PLD 1998 SC 1512; 2003 SCMR 41; PLD 2003 SC 688; PLD 1998 Lahore 183; 1999 SCMR 378 and Rasheed Ahmed and others v. Sardar Bibi and others 1994 MLD 467 ref.

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

----Ss. 122 & 123---Specific Relief Act (I of 1877), Ss.42 & 54---Islamic law---Gift, validity of---Suit for declaration and perpetual injunction---Controversy between the parties, revolved around the impugned gift-deed, made by father of the parties in favour of his sole son/defendant---Donor/ father who was aged about more than 80 years, was ailing, sick and feeble person was residing under the roof of his son/defendant---Parties were son and daughters of deceased (owner of property) in dispute---Defendant son of deceased claimed that suit property had been gifted away by the deceased to him during his life time through gift-deed duly executed by the deceased in his favour---Alleged gift-deeds in favour of the defendant had been challenged by the plaintiffs in their suit alleging that donor was incapable of making gift as he was ailing and feeble person aged about more than 85/90 years---Plaintiffs had alleged that disputed gift-deeds were not attested by the donor himself, but was the result of fraud and collusion between the defendant and officials of Sub-Registrar---Suit filed by the plaintiffs was dismissed by the Trial Court, but Appellate Court setting aside judgment and decree passed by the Trial Court, decreed the suit---Validity---Witnesses examined by the defendant could not give the detail and full particulars of transaction of gift with reference' to date, time, witnesses before whom offer and acceptance were made and possession of property was delivered---No witness was testified to prove that donor had made offer and acceptance by the defendant in their presence; and that in pursuance thereof, the possession was delivered to the donee by the donor---Three ingredients of valid gift, which were offer, acceptance and delivery of possession had not been proved by the defendant/donee---No sufficient evidence was brought on record in order to substantiate the attestation of disputed mutation of gift and registered deed, the required proof of gift, which was sine qua non for the declaration of a genuine gift---No proof had been furnished that possession was delivered to the defendant under the gift transaction---Gift transaction on that Court, was liable to be declared as invalid and unlawful---Suit of plaintiff, which was filed within limitation period was rightly decreed by the Appellate Court---In absence of any illegality or jurisdictional error, well reasoned judgment of Appellate Court, could not be interfered with.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Abdul Ghafoor and others v. Mukhtar Ahmed Khan and other 2006 SCMR 1144; 2007 SCMR 245; Muhammad Yaqoob through Legal Representatives v. Feroz Khan and others 2003 SCMR 41; Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others 2008 SCMR 1384; Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1; Chaudhry Muhammad Hussain v. Mst. Waziran, Mai alias Mst. Wazir Mai PLD 2005 SC 658; Barkat Ali through Legal heirs and others v. Muhammad Ismail through Legal heirs 2002 SCMR 1938; Muhammad Akram and another v. Altaf Ahmed PLD 2003 SC 688; Mst. Hameeda Bibi and 3 others v. Chaudhry Attaullah Advocate PLD 1998 Lahore 183 and Arshad Khan v. Mst. Resham Jan 2005 SCMR 1859 ref.

----S. 39---Transfer of Property Act (IV of 1882), Ss.122 & .Z23---Gift---Mutation---Value---Mutation was used for the fiscal purposes and just for recovery of land revenue and it could not be used as a title deed---Mutation, whereby alleged donee had got transferred the land in his name, was bound to prove its validity, propriety and authenticity, when same was challenged on the basis of fraud, collusion etc. as the fraud would vitiate most solemn proceedings.

Muhammad Younus Khan and 12 other v. Government of N.-W.F.P. 1993 SCMR 618 and Hakim Khan v. Nazir Ahmed Lughmani and 10 others 1992 SCMR 1832 ref.

Abdul Sattar Khan for Petitioner.

Altaf Ahmed for Respondents.

Date of hearing: 14th lime, 2010.

YLR 2011 PESHAWAR HIGH COURT 121 #

2011 Y L R 121

[Peshawar]

Before Syed Sajjad Hassan Shah, J

NAZEER AHMAD and 9 others---Petitioners

Versus

NASEER AHMAD---Respondent

Civil Revision No.1266 of and C.M.A. No.2258 of 2010, decided on 4th August, 2010.

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

---S. 12---Civil Procedure Code (V of 1908), O. II, R. 2 & O. VII, R. 11---Delivery of possession of property to plaintiff in execution of decree passed in earlier suit for specific performance of sale agreement---Subsequent suit for recovery of rent by decree-holder/plaintiff against defendant in earlier suit---Defendant's application seeking rejection of plaint for being barred by O. II, R. 2, C.P.C.---Trial Court accepted such application, but Appellate Court dismissed same---Validity---Plaintiff in earlier suit could not claim recovery of rent on basis of unregistered sale deed for not being a title document--Right of ownership had accrued to plaintiff after passing of such decree, wherein unregistered sale deed had merged--Plaintiff after passing of such decree could claim all vested rights and benefits in property being a lawful owner--Plaintiff's right to seek recovery of rent would take effect from date of passing of such decree in his favour---Provisions of O. II, R. 2, C.P.C., would not apply to a relief asked in subsequent suit, which plaintiff could not legally claim in earlier suit---Cause of action in earlier and subsequent suits was not same---Subsequent suit was not barred by O.II, R. 2, C.P.C.---High Court remanded case to Trial Court to determine whether plaintiff could claim rent from date of sale agreement or decree or within limitation prescribed under law.

Mst. Nazima Begum and another v. Mst. Hasina Begum and others 1991 SCMR 177 ref.

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

----O. II, R. 2---Relief not legally claimable in earlier suit could be claimed in subsequent suit---Principles.

Provisions of Order II, Rule 2, C.P.C., clearly specify that the plaintiff shall include those claims in his suit, which he is entitled regarding the same cause of action. There is no embargo contained in provisions of Order II, Rule 2, C.P.C., that the plaintiff, who if legally was not entitled to seek reliefs in the earlier proceedings, he cannot ask for those reliefs in subsequently filed suit.

----O. II, R. 2 & O. VII, R. 11(c)---Words "cause of action"---Connotation---'Cause of action 'would connote not a single fact, but a bundle of facts pleaded, which on furnishing proof would mature---Principles.

The cause of action connotes the bundle of facts pleaded by the plaintiff and if traversed by the defendant, the plaintiff is bound to prove those facts in order to obtain the decree in his favour, and if he fails, then defendant has the right to ask for the decree from the court. It is not a single fact which constitutes the cause of action, there are more than one facts pleaded and on furnishing proof, the cause of action matures, and the decree can be passed.

Muhammad Azam v. P.E.C.H.S. Ltd. PLD 1985 Kar. 481 ref.

Shah Faisal Naseer for Petitioners.

Naseer Ahmad for Respondent.

Date of hearing: 4th August, 2010.

YLR 2011 PESHAWAR HIGH COURT 134 #

2011 Y L R 134

[Peshawar]

Before Attullah Khan and Sher Muhammad Khan, JJ

BAKHTI JAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 148 of 2006, decided on 17th June, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contents of murasila and statements of prosecution witnesses were not in line with each other---Accused was resident of the area and owned agricultural land near the alleged place of occurrence and also owned residential house as well as a market consisting of 35 shops in close proximity of the spot---Star witness of prosecution who received alleged spy information and also supervised the raid proceedings, failed to appear before the court for recording his evidence against accused---Except spy information, no other evidence had been brought on the record to connect or link accused with the alleged recovered narcotics---Prosecution witness who posed himself to be eye-witness of the occurrence, in spite of being present at the spot did not see any proceedings of recovery or arrest of accused with alleged narcotics---Said witness who was a Foot Constable (Narcotics), and was present with the complainant from the beginning till drafting of the murasila strangely did not notice any arrest proceedings conducted by the complainant--Investigation, in circumstances, had not been conducted in the manner as shown by the complainant---Recovery of contraband was also doubtful for the reason that same was not made in presence of public witnesses---In such like cases a single infirmity, which would create reasonable doubt, in the prudent mind was sufficient for acquittal of accused---Prosecution story being full of doubts lacked the quality for maintaining conviction of accused and could not be believed---Extending benefit of doubt to accused, judgment of the Trial Court was set aside and accused was released.

Imtiaz v. The State PLD 2008 Pesh. 19 and Shair Khan v. The State 2009 PCr.LJ 523 ref.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Possession of narcotics---Recovery proceedings---Prior information---Recovery of contraband was doubtful for the reason that recovery was not made in the presence of public witnesses---Though the applicability of S.103, Cr.P.C. had been excluded through S.25 of Control of Narcotic Substances Act, 1997, but association of public witnesses was necessary when the proceedings were conducted on prior information.

PLD 2001 Pesh. 152 ref.

Noor Alam Khan for Appellant.

Shakeel Ahmad, Special Prosecutor for the State.

Date of hearing: 21st April, 2010.

YLR 2011 PESHAWAR HIGH COURT 161 #

2011 Y L R 161

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

JUMA KHAN and others---Petitioners

Versus

ABDUL RASHEED and others---Respondents

Civil Revision No. 301 of 2001, decided on 6th September, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), S.60---Suit for declaration and redemption of mortgage---Predecessor of the plaintiffs who was owner of suit property mortgaged said property vide registered deed to a non-Muslim---As legal heirs of deceased mortgagor failed to pay back the mortgage money, mortgagee filed suit against legal heirs of the mortgagor, which finally was decreed in favour of the mortgagee--- Mortgagee / non-Muslim having migrated to India, mortgagee rights of suit property were transferred in the name of Central Government, which rights were transferred by the Central Government in the name of evacuee, while ownership of the property in question remained in the name of predecessor of the plaintiffs---Finally defendant redeemed the property in their name---Plaintiffs being legal heirs of their predecessor mortgagor who mortgaged property in 1907 in the name of non-Muslim and after independence said mortgagee rights were transferred in the name of Central Government---Ownership rights of the plaintiffs, could in no way be transferred to any body, unless they themselves would do away with their property---Transfer of ownership rights in the names of defendants, could not be understood---Sale of mortgagee rights could be accepted, but ownership of the plaintiffs .could not be transferred in the name of the defendants, which appeared to be fraudulent---When ownership of the vendors of the defendants was not established, then how defendants would get benefit of the entries in the Revenue record in their names---In the case of an evacuee as mortgagee, the Central Government stepped into the shoes of evacuee mortgagee and only assumed mortgagee rights available to evacuee, under the law Central Government was only able to transfer what it received i.e. mortgagee rights alone---Transfer of ownership rights of mortgagor of the property, by the Central Government was nothing, but false and fraudulent transfer having no adverse effects of the same against the plaintiffs---Concurrent findings of two courts below whereby suit for declaration and redemption of mortgage was decreed in favour of the plaintiff, not suffering from any misreading or non-reading of any material .evidence, could not be interfered with by High Court in exercise of its revisional jurisdiction.?

Maqbool Ahmed's case 1991 SCMR 2063; Durranai and 35 others v. Hamidullah Khan and 15 others 2007 SCMR 480; Munawar Shah v. Bahadur Shah and 7 others 2007 SCMR 597; Muhammad Hussain and others v. Wahid Bakhsh through Legal Heirs 2004 SCMR 1137 ref.

Haji Muhammad Zahir Shah for Petitioners.

Jehangir Khan Mehmood for Respondents.

Date of hearing: 6th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 176 #

2011 Y L R 176

[Peshawar]

Before Attaullah Khan, J

Syed TABARAK HUSSAIN SHAH--- Appellant

Versus

ZIL-E-HASNAIN SHAH and 4 others---Respondents

Criminal Appeal No. 12 of 2010, decided on 11th October, 2010.

Penal Code (XLV of 1860)---

----Ss.419, 420, 466 & 468---Criminal Procedure Code (V of 1898), S.417(2-A)---Cheating by personation, forgery of record for purpose of cheating---Appeal against acquittal---Allegations against the respondents/accused persons were that they, in furtherance of their common object, had committed overwriting in the relevant registers in respect of the age of one of accused in a criminal case in order to benefit the said accused on the ground of minority---Trial Court after evaluating the material brought on record, concluded that prosecution had failed to prove its case against accused persons and acquitted them through impugned judgment---Relevant Register in which alleged overwriting was committed was not a Public Document and had no value and before taking said register by accused, same remained with the complainant for about fifteen days; it was not thus clear as to which of them had altered the entries in said register---Statement of the complainant himself, which he made as prosecution witness, had shown that no ocular evidence was available against accused persons in respect of the charge levelled against them---No benefit had been drawn by accused from alleged altered date as according to both dates, the accused concerned was underage---None of accused persons, in circumstances, was beneficiary of the alleged alteration in the register---Prosecution, in circumstances, had failed to prove its case against accused/respondents beyond any shadow of reasonable doubt---Trial Court had correctly appreciated the evidence brought on record and had rightly acquitted accused persons, in circumstances.

Burhan Latif Khaisari for Appellant.

S. Abid Hussain Bokhari for Respondents.

Sanaullah Shamim D.A.-G. for the State.

Date of hearing: 11th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 191 #

2011 Y L R 191

[Peshawar]

Before Liaqat Ali Shah, J

AURANGZEB ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous B.A. No. 1328 of 2010, decided on 24th September, 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 off --Submission of counsel for accused that complainant and the eye-witness contradicted each other on the number of accused charged for firing, was of no significance as at least to the extent of accused, the complainant as well as the eye-witness were unanimous---Counsel for accused had also submitted that injury was on the non-vital part of the body of injured and that the intention to attempt at the life, prima facie was not established--Murasila showed that when the Investigating Officer reached the hospital, the injured was in unconscious condition, that fact 'alone was sufficient to meet the submission of counsel for accused---Complainant and eye-witness were unanimous on the point that the firing was made by accused; it would not advance the case of accused, if the doctor had not given any opinion about the nature of the injury---Non-recovery of weapon of offence from accused was also of no significance, more particularly, when the occurrence had taken place about three months prior to filing application for pre-arrest bail-Reasonable grounds existed to believe that accused was guilty of the offence charged with---Bail application stood dismissed, in circumstances.

Adil Ahmad for Petitioner.

Ms. Shabana Tajak for the State.

Complainant in person.

Date of hearing: 24th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 195 #

2011 YLR 195

[Peshawar]

Before Liaqat Ali Shah and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD HAKEEM---Appellant

Versus

Mst. SALIHA and another---Respondents

Criminal Appeal No.171 of 2009, decided on 27th July, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Both the witnesses had materially contradicted each other and the fact that the matter was reported on the spot was also open to serious doubt---When the two witnesses had categorically stated that the dead body was taken from the Police Station, that would create serious doubt about the report made on the spot---No blood was found on the spot though there was inlet as well as exit wounds and heart was damaged along with both lungs and injuries to either of the two, would cause excessive bleeding---When no blood was found on the spot or on the point assigned, the venue of the occurrence, as was claimed by the complainant, was also not free from doubt---Submission of counsel for the complainant as well as State Counsel that in case of single accused substitution was rare phenomenon, was not a rule of universal application as each case had its own facts and was to be decided on those facts---No witness had been produced to establish that the crime pistol was in fact recovered from accused by prosecution witness in his presence---Acquitted accused as well as accused, all three were arrested on the day of occurrence, that too from their houses---Normally when someone commits an offence, involving capital punishment, he would try to avoid his arrest, but in the present case accused was found present in his home, that too along with crime weapon, which also cast serious doubt about the charge as well as the recovery of pistol---Case against accused being not free from doubt, while extending him the benefit of doubt, his conviction and sentence was set aside and he was acquitted of the charge and was set free.

2010 SCMR 97 ref.

Khawaja Muhammad Khan Gara for Appellant.

Ishtiaq Ibrahim, A.A.-G. for the State.

Arbab Shabbir Ahmad for the Complainant.

Date of hearing: 27th July, 2010.

YLR 2011 PESHAWAR HIGH COURT 208 #

2011 Y L R 208

[Peshawar]

Before Zia-ur-Rehman Khan, J

TOWN MUNICIPAL ADMINISTRATION and others---Petitioners

Versus

FRONTIER SUBMERSIBLE ENGINEERING AND ELECTRIC WORKS---Respondent

Civil Revision No. 1156, of 2010, decided on 30th August, 2010.

Civil Procedure Code (V of 1908)---

----S. 96(2), O. VIII, R. 10 & O. IX, R. 7---Ex parte decree against Government---Striking off defence of defendant for non-filing of written statement---Order of ex parte proceedings against defendant for his non-appearance and recording of plaintiff's evidence ex parte---Dismissal of defendant's application for setting aside order of ex parte proceeding on ground of non-prosecution---Passing of ex parte decree by Trial Court after hearing ex parte arguments of plaintiff---Dismissal of defendant's appeal by Appellate Court---Validity---Courts below in view of such conduct of defendant had rightly refused to exercise jurisdiction in his favour---Record showed that defendant-Official from the very beginning had never been interested in offering any reasonable and serious opposition to plaintiff's claim---Defendant-Official and his counsel on many occasions had been found absent by Trial Court without any lawful excuse---Defendant and his counsel had not availed opportunity to cross-examine plaintiff's witnesses, but had let their depositions to go unchallenged---Such attitude of defendant-Official was indicative of collusive delinquency on his part---Obvious reason of such disinterested attitude and delinquency was that defendant-official knew that in case suit decreed, then decretal amount would not be recovered from his personal pocket, rather same would be recovered from national exchequer---Agreeing of defendant during execution proceedings to make payment of decretal amount made clear that defendant had no doubt about genuineness of plaintiffs claim---Defendant-official had facilitated grant of impugned decree for huge amount--Defendant was not prevented from attending court proceedings by any sufficient cause beyond his control---Courts below were not bereft of jurisdiction to pass the impugned decree--High Court dismissed revision petition with direction to send copy of its judgment to concerned Provincial Secretary and Minister to prevent such events from occurring in future.

Farzand Raza Naqvi and 5 others v. Muhammad Din through legal heirs and others 2004 SCMR 400 distinguished.

Sabahuddin Khatak for Petitioners.

Barkatullah for Respondent.

Date of hearing: 30th August, 2010.

YLR 2011 PESHAWAR HIGH COURT 238 #

2011 Y L R 238

[Peshawar]

Before Mian Faheem-ul-Malik and Abdul Samad Khan, JJ

ABRAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 147 of 2010, decided on 26th October, 2010.

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

----Ss. 9(c), 20 & 21---Possession of narcotics---Power to issue warrant---Search warrant in the case was obtained from the court of Judicial Magistrate, whereby S.H.O. was authorized to conduct raid upon the house of accused---Raid was conducted after lapse of 15 days of issuance of search warrant---Validity---Under provisions of S.20 of Control of Narcotic Substances Act, 1997, special court, alone could issue warrant for the search of any building, place, premises or conveyance in which it had reason to believe that contraband was kept or concealed---Magistrate, muchless Judicial Magistrate had not been invested with such powers---Said jurisdictional error could not be ignored---Before such an action was justified, the existence or otherwise of the power was to be ascertained so as to perform it within permissible limits failing which the very action together with super-structures built thereon would crumble---Police Officer though could have recourse to S.21 of Control of Narcotic Substances Act, 1997, but that was subject to the condition that after forming a definite opinion that obtaining of search warrant would consume much time enabling accused to destroy or conceal evidence, then of course, the same could be resorted to, but in that eventuality, burden would lay upon the Police Officer to give plausible explanation in respect thereto---In normal circumstances, obtaining of search warrant could not be dispensed with nor Police Officer was given licence to transgress the authority of law as per his own desire tantamounting to clear cut departure from procedure prescribed under the law---Search warrant issued by Judicial Magistrate did not clothe the S.H.O. with an authority to enter and search the house of accused.

2003 SCMR 881; 2005 PCr.LJ 76; Nasrullah v. The State PLD 2001 Pesh. 152 and PLD 2008 SC 376 ref.

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

----Ss. 9(c) & 20---Constitution of Pakistan, Art. 14---Possession of narcotics---Appreciation of evidence---Entry into and search of house of accused was in sheer violation of fundament rights envisaged under Art.14 of the Constitution----Search warrant issued by Judicial Magistrate, was immaterial, in circumstances---Version put forth by the prosecution that as per pointation of accused, search and recovery was made, was a frivolous pretext particularly when raid was conducted in pursuance to search warrant without fulfilling command of Constitution together with deviating from legal obligations---House in question was not in exclusive possession of accused, but other inmates of the house, too resided over there; it could not be presumed that the contraband was in exclusive possession of accused, especially when he had been acquitted of the charge qua recovery of Kalashnikov from the house in consequence of same raid---Samples of contraband were sent for chemical analysis after lapse of 19 days---Prosecution apart from other infirmities, could not prove its case against accused beyond any shadow of doubt---Conviction and sentence awarded to accused vide impugned judgment and order of Special Court was set aside and accused was acquitted of the charge and was set at liberty; in circumstances.

Shad Muhammad Khan for Appellant.

Abdul Wahid Jadoon for Respondent.

Date of hearing: 26th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 261 #

2011 YLR 261

[Peshawar]

Before Mian Fasih-ul-Mulk, J

MUHAMMAD TAJ---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 103 of 2010, decided on 22nd October, 2010.

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

----Ss. 324, 336 & 337-F(iii)---Attempt to commit qatl-e-amd--Appreciation of evidence---Benefit of doubt---Accused had been charged for inflicting single shot, which resulted into causing of simple injury on non-vital parts of the body of the complainant---Accused having not repeated the shot, his intention to kill was not apparent on the face of record---Eyewitnesses in the case were complainant and his wife who had a land dispute and the parties were hostile towards each other---Charge under S.324, P.P.C. having not been proved against accused beyond reasonable doubt, accused was acquitted of the charge under S.324, P.P.C. granting him benefit of doubt---However, as the occurrence took place in a broad daylight and accused had extended fire shot on the upper muscle of the arm of complainant, offence would be covered under S.337-F(iii), P.P.C.; punishment prescribed therefor was that accused would be liable to `Daman' and could also be punished with imprisonment of either description of a term which could extend to three years as Tazir---Appeal was partly allowed and conviction and sentence recorded under Ss.324/336, P.P.C. were set aside and accused was acquitted of the charges---Accused, however was convicted and sentenced under S.337-F(iii), P.P.C. to the imprisonment already undergone and he was directed to pay Rs.50,000 as Daman to the complainant.

PLD 1977 Kar. 726; PLD 1964 (W.P.) Kar. 264; 1993 PCr.LJ 1760; 2010 SCMR 1009; 2002 YLR 908; PLJ 2008 Cr.C. Lahore 279(sic); 1998 MLD 1400 and 1999 SCMR 2783 ref.

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

----S. 337-F(iii)---Madihah to any person---Punishment of Daman---Value of Daman, determination of---Value of Daman could be determined by the court keeping in view the expenses incurred on the treatment of victim; loss or disability caused in the functioning or power of any organ; and compensation for anguish suffered by the victim---Prosecution, in the case had neither brought on record any certificate of expenses incurred on the treatment of victim nor any certificate showing loss or disability caused in the functioning or power of any organ to enable the court for determining the value of Daman; but in view of the alternate prayer and offer of counsel for accused, it would be just and proper to direct accused to pay Rs.50,000 as Daman.

Ghulam Mustafa Khan Swati for Appellant.

Syed Hammad Hussain Shah and Wajih-ur-Rehrnan for Respondents.

Date of hearing: 18th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 284 #

2011 Y L R 284

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

AMIR HAIDER---Petitioner

Versus

Mst. TAHA and others---Respondents

Civil Revision No.271 of 2003, decided on 19th July, 2010.

West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962)---

----S.3---Specific Relief Act (I of 1877), Ss. 42 & 54---Inheritance---Suit for declaration and perpetual injunction---Predecessor-in-interest of plaintiff who was his widow and plaintiffs who were his daughters died in 1943 during the time of Ruler of Swat and plaintiffs were the only legal heirs of deceased---Plaintiffs in their suit had challenged the inheritance mutation of their predecessor-in-interest attested in favour of the defendants who were brother and nephews of deceased---Allegation was that defendants had stopped payment of produce from land left by the deceased and that the defendants had got mutated said property collusively in their names---Trial Court granted decree in favour of the plaintiffs to the extent of their Shari Shares in the legacy of deceased---Trial Court determined shares of the plaintiffs and other defendant who was uncle of the deceased---Appellate Court partially allowed appeal against the judgment and decree of the Trial Court to the effect that decree for Shari Shares in legacy of their predecessor was kept intact, however, the sale mutations which were also challenged were kept intact as the shares of the plaintiffs, which could be realized from the lands of the vendors who were granted possession of legacy of deceased---Defendants recorded their joint statement committing themselves for payment of 10 maunds maize, five maunds barley and five maunds wheat to the plaintiffs---Plaintiffs were regularly paid said maintenance and on' its stoppage, within a month, suit was filed by the plaintiffs---Defendants who stated that they were paying said maintenance on account of sympathy, had conceded the payment of maintenance to the plaintiffs in lieu of the legacy of their predecessor which was taken over by the defendants as distant relation---Only one defendant/ uncle of deceased expressed his dissatisfaction over the judgment and decree of Appellate Court while 'rest of the defendants had not agitated any grievance over partial decree of Appellate Court, which was impugned in revision---Petition which being without substance, was dismissed, in circumstances.?

Mst. Sahib Jan Bibi and others v. Walidad and others" PLD 1961 (W.P.) Pesh. 9 and Mst. Rehmania and others v. Mst. Maqbula and others PLD 1956 (W.P.) Pesh. 115 ref.

Abdul Sattar Khan for Appellant.

Abid Ali Khan for Respondent.

Date of hearing: 13th April, 2010.

YLR 2011 PESHAWAR HIGH COURT 311 #

2011 Y L R 311

[Peshawar]

Before Muhammad Safdar Khan Sikandari and Sher Muhammad Khan, JJ

IMRAN SHAH---Appellant

Versus

Mrs. DIL PART JANA and another---Respondents

Criminal Appeal No.8 of 2009, decided on 8th June, 2010.

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

----Ss. 302(b) & 449---Qatl-e-amd and house-trespassing--- Appreciation of evidence---Double version---Case was based against accused on the evidence of solitary witness who being mother of deceased was closely related to the deceased---Said witness was inimical towards accused because of previous blood feud as reported in the F.I.R.; her statement was full of contradictions with the medical evidence as well as the Forensic Science Laboratory, regarding the contents of stomach and number of weapons used in the offence and her statement was also contradictory with the F.I.R. regarding taking of food---Evidence was also available in the shape of defence witness who was also closely related to the deceased being his wife, who had totally denied involvement of accused by saying that accused was done to death by an unknown person and not by the accused---Presence of the said eye-witness was doubtful on the spot and truthfulness of the witness was missing in the case---Contradiction existed in the medical evidence and ocular evidence, which had created doubt---Co-accused had been acquitted in the earlier trial by the Trial Court---No appeal having been filed against said acquittal, same had attained finality---Accused was not liable to be convicted on the same evidence and on the same role attributed to both accused---Case against accused was full of contradictions, number of doubts had arisen and it was double version case---Trial Court was not justified in convicting and sentencing accused---Conviction and sentence awarded to accused was set aside and he was acquitted of the charge levelled against him and he was set at liberty.

Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; 2003 PCr.LJ 2003 and 2004 PCr.LJ 352 ref.

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

----Ss. 302(b) & 449---Qatl-e-amd and house-trespassing--- Appreciation of evidence---Evidence of solitary interested witness---When a witness in an offence of capital punishment was closely related and that too, a solitary witness, it must be corroborated by independent evidence, like circumstantial and medical evidence---solitary witness who was closely related to the deceased, his statement must be scrutinized---Conviction could not be based on the evidence of a solitary witness who was closely related and had motive to implicate accused falsely.

Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 ref.

----Ss. 302(b) & 449---Qatl-e-amd and house-trespassing--- Appreciation of evidence---Doubts in a case---Effect on prosecution case---Only a single doubt was sufficient to discard the prosecution case---Version favourable to accused, must go in his favour.

1998 PCr.LJ 1568 ref.

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

----Ss. 302(b) & 449---Qatl-e-amd and house-trespassing---Abscondence---Abscondence of accused was material when other evidence would favour the prosecution case---When evidence was deficient against accused, the abscondence alone would not be taken into consideration and could not be made the basis of conviction---Merely on the basis of abscondence, neither conviction could be recorded nor maintained, unless other sufficient material was on record to connect accused with the commission of offence.

2004 PCr.LJ 352; 1998 SCMR 198 and 2006 PCr.LJ 387 ref.

Sanaullah Khan Gandapur for Appellant.

Sananullah Khan Sahmim DAG for the State.

Anwar-ul-Haq for the Complainant.

Date of hearing: 8th June, 2010.

YLR 2011 PESHAWAR HIGH COURT 323 #

2011 YLR 323

[Peshawar]

Before Zia-ur-Rehman Khan, J

MUHAMMAD RABI---Petitioner

Versus

ISMAIL KHAN and others---Respondents

Civil Revision No. 316 of 2009, decided on 17th September, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption--Making of Talbs---Both Trial Court and Appellate Court had concurrently decreed suit filed by the plaintiff---Validity---Informer in the present case was son of the plaintiff who was stated to be the sole witness of Talb-e-Muwathibat---Plaintiff in his statement in the court while appearing as his own witness had stated, date and time of information as given by his son about the sale, but deposition of his son in that regard was totally silent---If son of the plaintiff/informer was the sole witness of the factum of Talb-e-Muwathibat, he ought to have supported the stance of the plaintiff/his father---Plaintiff, not only was required to give the requisite details in the notice of Talb-e-Ishhad and in his plaint but he was also required to substantiate the said details through his evidence---In the present case the plaintiff had disclosed details in his notice of Talbe-Ishhad and the plaint, but had failed to prove said facts through any corroborated evidence---In the absence of said details in the evidence, mere mention of the same in notice, Talb-e-Ishhad and plaint were highly insufficient, in circumstances---Since details were totally missing in the evidence, first formality of Talb-e-Muwathibat stood unfulfilled and the suit of the plaintiff could not be legally decreed---Such material aspect of the case had totally escaped the notice of both the courts below while recording concurrent findings and had totally travelled on different premises in that regard---In absence of non-observance of the first Talb/Talb-e-Muwathibat, the factum and performance of Talb-e-Ishhad was inconsequential---Right of pre-eruption was feeble and piratical right, for the proof whereof, evidence of predominant nature was required to be led by the plaintiff, but the plaintiff had failed to do that--Impugned judgments and decrees recorded by the forums below being perverse in nature and based on surmises and conjectures, were set aside and suit filed by the plaintiff was dismissed, in circumstances.

2007 SCMR 962; 2009 SCMR 488 and 2008 SCMR 934 ref.

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

----S. 115---Revisional jurisdiction---Scope---Once High Court in exercise of its supervisory jurisdiction under S.115, C.P.C. arrived at the conclusion that the findings recorded by the courts below were result of misreading, non-reading and misapplication of relevant law, same would not stand in the way while declaring them illegal and unlawful.

Haji Muhammad Zahir Shah for Petitioner.

Murad Ali Khan for Respondents.

Date of hearing: 17th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 341 #

2011 Y L R 341

[Peshawar]

Before Sardar Shaukat Hayat and Yahya Afridi, JJ

MUHAMMAD ALAMGIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.431, 482 and 462 of 2010, decided on 29th September, 2010.

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

----S. 9(c)---Juvenile Justice System Ordinance (XXII of 2000), S.11---Smuggling of narcotics---Appreciation of evidence---Release of child accused on probation---Presence of accused persons in the Bus at the time of arrest, the recovery of the contraband from the secret cavities of the bus and positive report of Forensic Science Laboratory, had clearly established the offence having been committed by accused persons---Prosecution, in circumstances, had been able to prove the case against accused persons---Accused persons, in circumstances had no legal ground to disturb the conviction and sentence awarded to them by the Trial Court, however, it was admitted by all parties that both accused persons were `Juvenile' at the time of commission of offence---Juvenile Court had discretion to decide the issue of release of a juvenile on probation---Legislature had bestowed the final authority upon the Juvenile Court to decide the same, but by not exercising said discretion or in-action of the Juvenile Court would be offending the dictates of law---In the present case Trial Court had not exercised said discretion vested in it under S.11 of Juvenile Justice System Ordinance, 2000---By not doing so, Court had surely prejudiced accused persons and had committed an illegality, which required judicial correction---Maintaining conviction and sentence awarded to accused persons, case was remanded to the Trial Court to decide afresh after providing opportunity of hearing to accused and rendering reasons, regarding the non-exercise of its discretion as provided under S.11 of Juvenile Justice System Ordinance, 2000 to release accused on probation and the terms thereof.

Ismaeel v. The State 2001 SCMR 27 and Mst. Rahat Bibi v. The State 2006 PCr. LJ 1562 ref.

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

----Ss. 9(c), 32 & 33---Smuggling of narcotics---Confiscation of Bus allegedly used in offence---Vehicle used to transport the contrabands was liable to confiscation to the State under S.32 of Control of Narcotic Substances Act, 1997, but such power of confiscation was subject to proviso provided in subsection (2) of S.32 of the Ordinance---Under said Proviso no vehicle could be confiscated unless it was proved that the owner thereof knew that the offence was being or was to be committed---In the present case, the Trial Court had confiscated the Bus carrying the contrabands, without any proof of said condition precedent---No evidence was produced by the prosecution to prove, firstly as to who was the owner; and secondly, that the said owner knew that the offence was being or was to be committed---Order of confiscating the Bus, without considering the claim of ownership of appellant in respect thereof, in circumstances was illegal having violated provisions of Control of Narcotic Substances Act, 1997---Order confiscating Bus was set aside and case was remanded to the Trial Court to inquire the claim of ownership made by the appellant by providing appellant the opportunity to produce evidence regarding his ownership of said Bus.

Noor Alam Khan for Appellant.

Shakil Ahmad for the State.

Date of hearing: 26th August, 2010.

YLR 2011 PESHAWAR HIGH COURT 377 #

2011 Y L R 377

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

LAL ZADA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 236 of 2010, decided on 3rd December, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 523, 550 & 561-A---Seizure of vehicle suspected to be stolen---Petition for return/custody of the vehicle---Police took the vehicle in question in custody under Ss. 523/550, Cr.P.C., entered a report and arrested petitioner who at the relevant time was driving the same---Police after inquiry registered criminal case against the person who had sold the vehicle in question to the petitioner---Record had established that the vehicle in question had no criminal history; as nothing was on the record to reflect that same was either a stolen property or was ever used in the commission of any offence-No rival claimant of the vehicle had come forward---Vehicle of the value of more than a million, in circumstances, could not be left in the custody of the Police---Only on allegation of having a bogus registration or a tampered chassis number, custody of the vehicle to a person claiming himself to be the bona fide purchaser, which prima facie on the record was also established, could not be refused---Petition was allowed and it was ordered that custody/superdari of vehicle be given to the petitioner till decision of the case on his furnishing surety bonds with two sureties---Vehicle in question should be handed over to the petitioner according to the inventory made by the local Police at the time of taking its custody.

Sahibzada Asadullah for Petitioner.

Matiullah Baloch for the State.

Date of hearing: 3rd December, 2010.

YLR 2011 PESHAWAR HIGH COURT 397 #

2011 Y L R 397

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

AKHTAR MUNIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Appeal No.325 of 2010, decided on 6th September, 2010.

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

----Ss. 324/337-F(v)---Attempt to commit qatl-e-amd and hashimah---Appreciation of evidence---On the strength of same evidence two co-accused were acquitted of the charges, whereas accused was convicted and sentenced---According to the complainant occurrence was witnessed by his father who was present at the spot at relevant time, but that very important witness was abandoned, which was the first blow to prosecution case---Complainant in his first report made to the Police, had attributed a general role of firing to all the three accused persons, whereas he in his statement as prosecution witness made improvement and attributed the effective role to accused---Place of occurrence as given by the complainant in his report and narrated in his statement as prosecution witness again differed---Complainant in his report had stated that he was present along with his father in his fields when accused attacked him, but the site plan prepared by the Investigating Officer at the instance of father of the complainant, was a thoroughfare situated at some distance from their fields---Working in the fields was also not proved on the record---Prosecution had failed to prove specific motive as alleged by him in his report---Prosecution, in circumstances, -had failed to prove case against accused through confidence inspiring evidence---Conviction and sentence recorded by the Trial Court against accused, were set aside and he was set free.

(b) Criminal trial---

----Motive---Under the law, presence of motive for a crime was not necessary, but once a motive was alleged, then it could become the duty of the prosecution to prove the same.

Shakeel Ahmad for Petitioner.

Maqsood Anwar Aziz for Respondent.

Miss Surryya Jabeen for the State.

Date of hearing: 6th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 411 #

2011 Y L R 411

[Peshawar]

Before Mazhar Alam Khan Miankhel and Zia-ur-Rehman Khan, JJ

GULMEER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.341 of 2009, decided on 26th August, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Huge quantity of incriminating articles was recovered from the secret cavities of the truck intercepted by Anti-Narcotic Force Staff---Nexus of both accused persons with the truck had also been established on the record---No doubt, said truck was registered in the name of someone else, but ownership of truck in the name of one of accused was established on the record---Parcel/packets separated for Chemical Analysis were tested positive by the Forensic Science Laboratory---Both accused persons had recorded their confessional statements before the Judicial Magistrate which statements proved to be voluntarily recorded and without any duress and compulsion, and no reason was available to disbelieve them---Presence of said witnesses had also been admitted by one of the accused---Prosecution, in circumstances, had established without any reasonable doubt the presence of huge quantity of incriminating substance recovered from the secret cavities of the truck which was well within the conscious knowledge of both accused; and mens rea of both accused persons, in circumstances, was also established on record---Prosecution witnesses were consistent in their version with no material contradictions in their statements---When it was established on record that the recovered material was narcotics, then it became the turn of the person who was booked for the offence to rebut the material brought against him by the prosecution---Defence version given by accused persons, was also not helpful as they had failed to rebut the evidence against them---Appeal filed by said two accused persons was dismissed and conviction and sentence awarded to them by the Trial Court were maintained.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Accused proved to be unaware of the conscious knowledge of the presence of the narcotics in the truck in question---Prosecution in its case had also failed to establish as to whether said accused had knowledge of the presence of narcotics in the secret cavities of the truck or not---Accused, no doubt was on the driving seat at the time of recovery and he too, had admitted that very fact, but his mere presence in the truck would not ipso facto be a proof of concealment of narcotics in the secret cavities; and having conscious knowledge of the same---Mere fact that accused was driving the truck at the relevant time which he admitted, in circumstances, would not be sufficient to connect hint with the recovery of narcotics---Mere recovery of narcotics from vehicle driven by accused at the relevant time, would not be sufficient to connect accused with the commission of offence unless there was something material available on the record which could justify the involvement of accused---Evidence led by the prosecution was deficient in that regard while the evidence of the accused was confidence inspiring---Prosecution had failed to establish case under S.9(c) of Control of Narcotic Substances Act, 1997 against said accused---Involvement of accused in the case having become doubtful, benefit of which under the law could not be refused to him---Conviction and sentence awarded to the accused by the Trial Court, were set aside and he was released.

Noor Alam Khan for Appellant.

Shakeel Ahmad for Respondents.

Date of hearing: 11th August, 2010.

YLR 2011 PESHAWAR HIGH COURT 425 #

2011 Y L R 425

[Peshawar]

Before Sardar Shaukat Hayat, J

Syed ASGHAR ALI SHAH and 5 others---Petitioners

Versus

Syed WAHEED ABDULLAH SHAH and 2 others---Respondents

Criminal M.Q. No.26 of 2010, decided on 6th September, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 22-A---Penal Code (XLV of 1860), Ss.348, 440, 455, 506, 379, 148 & 149---Wrongful confinement, mischief, lurking house-trespass, criminal intimidation and theft---Petitioners had sought quashing of order passed by Justice of Peace on application filed by the respondent under S. 22-A, Cr.P.C.---Powers of High Court under S.561-A, Cr.P.C.---Scope---Delay caused by the Police to register a case, compelled the respondent/complainant to approach the Justice of Peace for directing the Police to register the case against the petitioners---Justice of Peace directed the Police to register a case against the petitioners under the relevant law---During the entire proceedings before the Justice of Peace, it was not disclosed by any of the parties that Police had already registered the case against petitioners---There existed an F.I.R. against petitioners and Justice of Peace had also ordered the Police to register case against petitioners under the relevant law---Police was under statutory duty under S.154, Cr.P.C. and had statutory right under S.156, Cr.P.C. to investigate a cognizable offence, whenever a report was made to it disclosing the commission of offence---High Court under S.561-A, Cr.P.C. would be reluctant to interfere with the investigation of the case; as it being the sole prerogative of the investigating agency---Normally the court under S.561-A, Cr.P.C. could not scrutinize the conduct and manner of investigation, as the same could not be substituted by court---High Court also could not interfere in the administrative order of the Justice of Peace regarding registration of case under S.561-A, Cr.P.C.---Investigation in the case was not complete and no challan had been submitted in the court when the petition for quashing of the impugned order under S.22-A, Cr.P.C. was filed---High Court, under its inherent powers, could quash judicial proceedings, if it was of the view that the proceedings would amount to an abuse of the process of court---No proceedings being pending in the court at the time of filing the quashing proceedings, there existed no abuse of process of the court---High Court, in circumstances, had no power to quash the F.I.R. under S. 561-A, Cr.P.C.

2008 YLR 2017 ref.

Sahibzada Riazatul Haq for Petitioner.

Muhammad Tariq Afridi for Respondent.

Date of hearing: 27th August, 2010.

YLR 2011 PESHAWAR HIGH COURT 437 #

2011 Y L R 437

[Peshawar]

Before Sardar Shaukat Hayat, J

IKRAM-ULLAH KHAN and another---Petitioners

Versus

THE STATE and 5 others---Respondents

Criminal Miscellaneous No. 91 of 2009, decided on 11th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Quashing of order---Petition for---Postponing criminal proceedings pending disposal of civil litigation with same subject matter---Trial Court vide impugned order stayed criminal complaint till final decision of civil dispute---Aggrieved therefrom, the petitioners filed revision petition, which was also dismissed---Validity---Normally criminal proceedings should not be postponed pending the disposal of civil litigation with the same subject matter---Where however, it was clear that the criminal liability depended upon the result of the civil litigation; and was so intimately connected with it, that danger of grave injustice existed in case there was a conflict of decisions between the civil court and the criminal court, in such event it was clear that the criminal court not only had the right to, but should also stay its hands until the civil litigation was disposed of; for, it was not desirable that when the title to the property was itself in dispute, the criminal courts should give a finding in respect of the same question---No illegality in the orders of both the courts below by adjourning sine die the private complaint till the disposal of the civil litigation regarding the suit property pending between the parties---Petition was dismissed.

Abdul Ahad v. Amjad Ali PLD 2006 SC 771 and Muhammad Akbar v. The State PLD 1968 SC 281 ref.

Nazir Ahmad for Petitioners.

Umar Hayat for the State.

Khaliq-uz-Zaman for Respondents.

Date of hearing: 28th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 459 #

2011 Y L R 459

[Peshawar]

Before Mazhar Alam Khan Miankhel and Syed Sajjad Hussain Shah, JJ

ABDUL HAMID and another---Petitioners

Versus

Mst. ZUBAIDA and another---Respondents

Writ Petition No. 928 of 2010, decided on 28th September, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition-Witnesses-Non-production of---Striking off defence---Partial compliance of order---Scope---Judge Family Court directed the defendants to produce their entire evidence on the next date of hearing and put the defendants on notice of striking off defence in case of their failure to do the same---Defendants complied with the orders of Family Court by producing two witnesses and again requested for some time that their other witnesses were not available at the relevant time---Family Court on such failure to produce entire evidence struck off defence of the defendants---Validity---Defendants were required to produce their entire evidence but they had failed to produce the same and partial compliance of orders of the court was made by producing two witnesses which on the face of it reflected that defendants had no intention to flout the orders of the court and non-availability of rest of the witnesses night be due to some unavoidable circumstances---Order of striking off defence appeared to be harsh one and the Family Court instead of striking off the defence of the defendants should have provided yet another last and final opportunity as the orders of the Family Court were partially complied with---High Court allowed constitutional petition and set aside the impugned order of Family Court subject to payment of cost of Rs.3000---High Court further directed that last and final chance was granted to defendants to produce their evidence on the date fixed failing which they had to face the consequences and would have no further chance to produce any witness.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Applicability of Provisions of C.P.C.---,Scope---Provisions of C.P.C. were not applicable in proceedings under the West Pakistan Family Courts Act, 1964 and the latter excluded the application of general provisions of Civil Procedure Code, 1908---Family Court, for progress of the cases, had to regulate its own proceedings as West Pakistan Family Courts Act, 1964 was deficient to cover each and every conceivable eventuality---Family Court in such a situation could adopt the procedure provided in the Civil Procedure Code, 1908 and as such the procedure adopted by the Family Court itself could not be questioned.

Gul Rehman Muhammad Ali for Petitioner.

Saadullah Khan for Respondent.

Date of hearing: 28th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 472 #

2011 YLR 472

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Haji MUHAMMAD ANWAR---Appellant

Versus

MUHAMMAD RASOOL KHAN and another---Respondents

C.M.A. No. 15 and F.A.O. No.7 of 2009, decided on 22nd October, 2010.

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

----S. 15(7) [as amended by North-West Frontier Province Urban Rent Restriction (Amendment) Ordinance (IX of 1979)]---Constitution of Pakistan, Art.247---Second appeal--- Maintainability--- Both Rent Controller and Appellate Court having accepted ejectment application filed by landlord against the tenant, second appeal had been filed against concurrent findings of the courts below---Maintainability of second appeal had been objected by the landlord contending that same was not maintainable because West Pakistan Urban Rent Restriction Ordinance, 1959 (as amended) barred second appeal; that in spite of absence of specific inbuilt provisions of extension of the Ordinance to Provincially Administered Tribal Areas, same was to be extended to entire of the Province of North-West Frontier Province including Provincially Administered Tribal Areas and, that when the provisions of amended Ordinance stood extended to the areas also including Provincially Administered Tribal Areas, second appeal of the tenant in view of bar contained in amended S.15 of the Ordinance, would not be maintainable---Validity---Under Art.247 of Constitution any laws would be extended to Federally Administered Tribal Areas and Provincially Administered Tribal Areas by the President of Pakistan and Governor respectively through special notification or regulation which was the only way for the extention of laws to such areas---When Constitution was not in force and held in abeyance in pursuance of the promulgation of Chief Martial Law Administrator's Order 1 of 1977 on 5-7-1977 country and the Provinces were run by the Chief Martial Law Administrator and the Governors---Governors promulgated the laws in accordance with the situation at the relevant time---At the time of promulgation of Amending Ordinance, 1979 Constitution had been held in abeyance and the provisions of Art.247 of the Constitution were not available---Administration of the Provinces including the Tribal areas was run by the Governor---Any Ordinance or notification issued by the Governor, in circumstances, would be extended to the entire Province including the Provincially Administered Tribal Areas---Compulsion of special notification/direction or regulation as provided in Art.247 of the Constitution would only be there when provisions of said Article were available---When there was no such compulsion, it would become the discretion of the Governor to act in the manner he liked---Second appeal of the tenant in view of bar contained in amended S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959 would not be maintainable.

Muhammad Faqir v. Director-General, NAB PLD 2006 Pesh. 79 and Muhammad Faqir v. Director-General, National Accountability Bureau (N.-W.F.P.) Peshawar and 8 others PLD 2006 Pesh. 79 ref.

(b) Laws (Continuance in Force) Order, 1977 [C. M. L. A's 1 of 1977]---

----Arts. 1(2) & 3(2)---Constitution of Pakistan, Arts.1 & 246(b)---Territories of Pakistan---Territories of Pakistan would also include such States and territories as were or could be included in Pakistan---Article 246(b) of the Constitution had defined the areas forming the Provincially Administered Tribal Areas---Under Art.3(2) of Chief Martial Law Administrator's Order, 1977, in absence of the Constitution, Governors of the Provinces were empowered to act on behalf of the Chief Martial Law Administrator in the entire Province which would mean that N.-W.F.P. included the Provincially Administered Tribal Areas---Ordinance promulgated by the Governor would be applicable to the whole of Province, which included the Provincially Administered Tribal Areas (PATA).

Wali Khan Afridi for Petitioner.

Abdul Haleem Sari for Respondents.

Date of hearing: 6th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 496 #

2011 Y L R 496

[Peshawar]

Before Syed Sajjad Hassan Shah, J

AKBAR KHAN and 6 others---Petitioners

Versus

ALLIED BANK OF PAKISTAN through President and 2 others---Respondents

Criminal Revision No. 453 of 2002, decided on 18th October, 2010.

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

----O. XVIII, Rr.4, 5, 6, O. VI, R.2 & S.115---Qanun-e-Shahadat (10 of 1984), Art.129---Money suit---Manipulation of deposition of witness in the court--Estoppel by conduct---Applicability---Plaintiff sought recovery of money sent to his brother abroad through defendant, claiming that money was not delivered to his brother as his said brother died before receiving the money---Plaintiff in cross-examination had admitted that his deceased brother had received the money sent by defendant through a draft to his brother and his brother had put his signatures on the original bank draft, but later renounced to have made such admission and contended that his said admission did not amount to estoppel---Validity---Plaintiff though could agitate any grievance as to addition to or manipulation of his statement in arguments before appellate court but he omitted to raise the said ground---Said admission, therefore, amounted to estoppel by conduct---Admission having been made during judicial proceedings could not be ground that such proceedings were presumed to have been conducted in accordance with the law relating to recording of evidence---Order XVIII, Rr.4, 5 & 6, C.P.C. provided effective safeguard against manipulation of deposition of witnesses in the court, therefore, any addition to plaintiff's statement could not be believed---Plaintiff could not be allowed to agitate the alleged manipulation of his statement at revision stage as the same should have been called into question in trial or appeal---Plaintiff could not substantiate his claim---Suit was dismissed being without substance.

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

----O. XVIII, Rr. 4, 5 & 6--- Scope---Order XVIII, Rr.4, 5 & 6, C.P.C. provided effective safeguard against manipulation of deposition of witnesses in the court.

----Art. 129(e)---Presumption of regularity attached to judicial acts---Judicial proceedings were presumed to have been conducted in accordance with law.

Shaukat Hussain for Petitioners.

Nazeemullah Qazi for Respondent.

Date of hearing: 18th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 511 #

2011 YLR 511

[Peshawar]

Before Zia-ur-Rehman Khan, J

SULAIM GUL---Petitioner

Versus

ABDUR REHMAN and others---Respondents

Civil Revision No. 603 of 2010, decided on 18th October, 2010.

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

----Ss. 47 & 115---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Objection petition filed by petitioner was dismissed by the executing court while District Judge dismissed his appeal against the order rejecting said petition---Petitioner contended that pendency of execution proceeding was not a pre-condition to maintainability of objection petition under S.47, C.P.C.---Validity---Objection filed under S.47, C.P.C. was equivalent to a suit and executing court was saddled with the responsibility of framing the issues and recording evidence, if necessary---Delivery of possession of disputed property to decree-holder after dismissal of objection petition would not preclude petitioner from seeking redressal of his grievance from a higher forum, especially when order of the court executing the decree was appealable---Appellate Court declined to entertain appeal due to erroneous and misconceived notion of relevant procedural law---Pendency of execution proceedings was not a condition precedent to maintainability of objection petition before the executing court which court was required by law to decide the objection petition by calling the record of the case if execution proceedings had been concluded---Appellate Court's judgment resulted in gross miscarriage of justice warranting interference of High Court under S.115, C. P. P.C. ---Impugned judgment was set aside and case was remanded to Appellate Court to decide the appeal afresh.

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

----S. 47---Scope of S. 47, C. P. C. ---Objection filed under S.47, C.P.C. was equivalent to a suit and the court executing the decree was saddled with the responsibility of framing the issues and recording evidence if required.

Mst. Arshad Bibi v. Ali Muhammad and others 2003 CLC 10 rel.

Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181 fol.

Zia-ur-Rehman Tajik for Petitioner.

Muhammad Aman Khan for Respondents.

Date of hearing: 18th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 534 #

2011 Y L R 534

[Peshawar]

Before Zia-ur-Rehman Khan, J

GHULAM MUHAMMAD---Petitioner

Versus

ARSALA KHAN and another---Respondents

Civil Revisions Nos. 131, 132 and 133 of 2010, decided on 18th October, 2010.

(a) Malicious prosecution---

----Suit for damages---Plaintiffs contended that they were falsely implicated in malicious prosecution through private complaint before Magistrate which culminated in their acquittal under S. 249-A, Cr. P. C. ---Validity---Plaintiffs' allegations as to loss of their reputation and humiliation at the hands of defendants were falsified by record---Plaintiffs having been held to be tenants of defendants by High Court, complaint regarding misappropriation of trees grown' at the rented property was not without reasonable and probable cause---Defendants' intention to prosecute plaintiffs could not be termed malicious in circumstances---Having been acquitted by lower courts not on merits, but on technical ground, plaintiffs were not entitled to claim damages---Plaintiffs were not acquitted, rather were discharged under S.249-A, Cr. P.C.---Discharge was not equivalent to acquittal-'Acquittal' meant declaring an accused person innocent whiledischarge' connoted release from custody---Plaintiffs had failed to produce evidence to substantiate their claim regarding loss of reputation---Plaintiffs were rightly non-suited by lower courts which did not commit any illegality warranting interference of High Court in its revisional jurisdiction---Petitions were dismissed in circumstances.

(b) Words and phrases---

---"Acquittal"--- Meaning--- Acquittal means "to declare a person accused of a crime to be innocent".

---- "Discharge "---Meaning---Discharge means "to release someone from custody".

1999 SCMR 700 and Abdur Raiff v. Abdur Razzaq and another PLD 1994 SC 476 fol.

Khurshid Iqbal v. Allied Bank of Pakistan PLD 2003 (AJ&K) and Ghulam Ali v. Ranjho Khan 2007 MLD 1657 rel.

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

----S. 249-A---Discharge under S.249-A, Cr.P.C. was not equivalent to acquittal.

Muhammad Fahim Khan for Petitioner.

Akhtar Ali Khan for the State.

Date of hearing: 18th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 593 #

2011 Y L R 593

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

Mst. ANILA---Petitioner

Versus

Mst. RAFIA and 2 others---Respondents

Writ Petition No. 391 of 2010, decided on 20th October, 2010.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Minor girl, custody of---Contest between real mother and paternal-grand-mother after death of father of minor---Second marriage by mother with a person not having blood relation with minor---Order of Guardian Judge giving custody of minor to her paternal-grand-mother upheld by Appellate Court---Application by maternal-grandmother of minor for arraying as respondent in constitutional petition pending before High Court claiming to have a legal and preferential right of custody of minor---Validity---High Court impleaded maternal-grand-mother just for interest of justice while mother of minor (petitioner) did not object her impleadment---Such impleadment order had no adverse effect against paternal-grand-mother of minor---Maternal-grandmother of minor had a preferential right of custody above all in absence of real mother and father---Nothing on record to show as to whether welfare of minor would lie with her maternal-grand-mother or paternal-grand-mother----Maternal-grandmother was not party before Courts below---Order regarding custody of minor could not be passed without providing a chance of hearing and rebuttal to all three parties---High Court set aside orders of courts below and remanded case to Guardian Judge for its decision afresh while keeping in view welfare of minor after hearing all three parties, who would be at liberty to produce any further evidence in such regard.

Mst. Gulnaz Bibi v. Refaqat Ali Shah 2001 SD 29 and Mst. Barkat Bibi v. Mst. Rubina Kausar 2009 YLR 1106 ref.

Syed Mushtaq Ali Shah for Petitioner.

Shahid Qayyum Khattak and Muhammad Ajmal Khan for Respondentss.

Date of hearing: 20th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 606 #

2011 Y L R 606

[Peshawar]

Before Syed Sajjad Hassan Shah and Yahya Afridi, JJ

MUHAMMAD NAVEED SULTAN---Petitioner

Versus

NIAZ AHMAD and another---Respondents

Writ Petitions Nos. 2894 to 2898 of 2010, decided on 9th August, 2010.

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

----Ss. 2(b), 13 & 16---Qanun-e-Shahadat (10 of 1984), Art. 161---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Ejectment proceedings--Witness under examination---Question put to witness by Rent Controller to clarify ambiguity crept in his statement objected to by opposite party---Rent Controller had not passed any order on such question and had not done any act either illegal or without jurisdiction or without lawful authority---Such question could not be agitated in writ jurisdiction---High Court dismissed constitutional petition for being non-maintainable.

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

----Ss. 2(b) & 16---Qanun-e-Shahadat (10 of 1984), Art. 161--Civil Procedure Code (V of 1908), S. 141---Powers of Rent Controller to put question to a witness under examination--- Scope--- Rent Controller being a Judicial Officer would not be supposed to sit as silent spectator while supervising proceedings, rather vested with all powers exercisable as a Judicial Officer---Rent Controller like a Judicial Officer of a court of civil jurisdiction in exercise of powers under provisions relating to production of evidence could put questions to a witness in order to satisfy its conscience, find out truth and clarify ambiguity crept in proceedings on account of his statement---Principles.

Anwar Ahmad v. Mst. Nafis Bano through L.Rs. 2005 SCMR 152 and Hanif v. Ahmed Shah 2001 SCMR 581 rel.

Zaheer Ahmed for Petitioner.

Niaz Ahmed for Respondents.

Date of hearing: 9th August, 2010.

YLR 2011 PESHAWAR HIGH COURT 615 #

2011 Y L R 615

[Peshawar]

Before Syed Sajjad Hassan Shah, J

TAHIR MEHMOOD AFRIDI---Petitioner

Versus

MUHAMMAD DAYAR---Respondent

Civil Revision No. 659 with C.M. No. 704 of 2010, decided on 27th September, 2010.

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

----O. V, Rr.9, 10, 10A, & 20---Service of Summons---Defendant filed application for setting aside ex parte decree on second day of his arrival from abroad on the ground that for the last three years, he was out of country and on his return, he came to know by his son about the ex parte decree---Application of defendant was concurrently dismissed by both courts below---Record revealed that application was made by the plaintiff, wherein, he had stated that the defendant was residing within the jurisdiction of the court and wilfully avoiding the process of service directed by the court, so the publication be made in the "Daily Mashriq"---After using due and reasonable diligence, if the serving official could not find the defendant and when there was no agent to accept service of summons on his behalf the serving official then should affix copy of summons on the outer door and some other conspicuous part of the house in which the defendant ordinarily resided or carried on business---Plaintiff was in the knowledge of address of the defendant, however, wilfully avoided to furnish the same, which was an obvious violation of O. V, Rr.9, 10 & 10A, C.P.C. because the plaintiff was bound to furnish the correct address along with AD Card for service by post to the defendant---Plaintiff had failed to comply with the direction of the court and the court had also under misconception and without adhering to the said provisions of law passed the direction for publication in press under O. V, R. 20, C.P.C.---No due service of defendant was produced---High Court set aside the judgment and decree passed by Trial Court maintained by Appellate Court, being unlawful, without jurisdiction and remanded the case to Trial Court with direction to proceed in the matter in accordance with law, providing opportunity of hearing to both parties, and then to decide suit within a period not later than six months positively, after receipt of the record.

1985 SCMR 1228; 1992 CLC 1553; 1986 CLC 6 and 2005 SCMR 609 ref.

Syed Muhammad Anwar v. Sheikh Abdul Haq 1985 SCMR 1228; Dharam Chand Gain v. Kanak Sarkar AIR 1921 Calcutta 63; NBP v. Bawani Industries and another 1992 CLC 1553; Haji Kiramat Hussain v. Naik Khan Muhammad 1986 CLC 6 and Javed Raza v. Razi Ahmed and others 1991 MLD 2602 rel.

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

----O. V, Rr.9, 10, 10A, 12, 16, 17, 18 & 20---Service of summons---Requirements---Before setting in service the process of proclamation in Newspaper, the requirement of law was that the first mode of service was the personal service of the defendant as required under O. V, Rr.9, 10, 10A, 12, 16 & 18, C.P.C. to be procured---If, however, such service was not adhered to on account of being impossible, then the court should invoke the provisions of Rr.17 & 20 of O. V, C.P.C.

----O. V, Rr.20 & 25---Service of summons---Even, if the son of the defendant had been informed about the pendency of the suit it did not amount `due service' in the eye of law, because no efforts were made to locate and find out the defendant in person, in absence thereof; service on the member of the family was not a proper and valid service, as required under the law.

Dharam Chand Gain v. Kanak Sarkar AIR 1921 Calcutta 63; NBP v. Bawani Industries and another 1992 CLC 1553; Haji Kiramat Hussain v. Naik Khan Muhammad 1986 CLC 6 and Javed Raza v. Razi Ahmed and others 1991 MLD 2602 rel.

Hassan Afridi for Petitioner.

Khalil Ullah for Respondent.

Date of hearing: 10th August, 2010.

YLR 2011 PESHAWAR HIGH COURT 670 #

2011 Y L R 670

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SHABAN ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1382 of 2010, decided on 15th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Kidnapping, abducting or inducing woman to compel for marriage, etc.---Bail, grant of---Further inquiry---Alleged abductee not only denied her abduction by the accused but also claimed to have contracted Nikah with him of her free-will---Categorical statement of the alleged abductee called for further inquiry into the guilt of the accused---Bail was granted.

Aamir v. The State and another 2010 PCr. LJ 961; Muhammad Akhtar v. The State and another 2010 PCr.LJ 373; Muhammad Zahoor Ahmad v. The State 2010 PCr.LJ 113 and Muhammad Munawar v. The State 2009 PCr.LJ 195 ref.

Rabnawaz v. Gul Adam Khan 2010 PCr.LJ 905 rel.

Ashab Ali Bangesh for Petitioner.

Naveed Akhtar, A.A.-G. for the State.

Shahid Qayyum Khattak for the Complainant.

Date of hearing: 12th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 700 #

2011 Y L R 700

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

ABID ALI and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.39 and 40 of 2010, decided on 18th January, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.364 & 164---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Recording of confession by Magistrate---Mandatory requirements---Incident was an unseen occurrence and no direct or circumstantial confidence inspiring evidence was available, which could reasonably connect accused persons with the commission of offence, except confessional statement of one of accused persons---Trial Court. had recorded conviction of all three accused persons on the basis of confessional statements recorded under S.364, Cr.P.C.---Questionaire was not available wherefrom it could be gathered as to whether such questions or answers were recorded by the Magistrate or not; and if any questions were put to the accused making confession, what were his answers to such questions---In absence of said questionaire and its answers, which were part of confessional statement; and mandatory in nature would make the confessional statement incomplete and weak evidence; which could not be safely made a basis for awarding capital punishment to accused persons---Narrative part of confessional statement, did not bear any time or date which was not only exculpatory in nature, but also contradictory to statement of prosecution witness---Prosecution had suppressed material facts and the occurrence was shrouded in mystery; it could be safely concluded, in circumstances, that either it was a case of no evidence or the occurrence did not take place in the manner as shown---Prosecution had failed to prove its case against accused persons beyond any shadow of doubt---Accused was acquitted of the charge by extending them benefit of doubt---Conviction and sentence recorded by the Trial Court, were set aside and they were - acquitted and were set free, in circumstances.

PLD 1979 Pesh. 215; 2003 PCr.LJ 1264; PLD 1990 Pesh. 92; "Naseem Akhtar v. State 1999 SCMR 1744; Bagh Ali v. Muhammad Anwar and others 1983 SCMR 1292; Murtaza and 2 others v. State 1996 PCr.LJ 358 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.

Fazal-e-Haq Abbasi for Appellants.

Qazi Shamsuldin for the State.

Malik Sajawal for Respondents.

Date of hearing: 18th January, 2011.

YLR 2011 PESHAWAR HIGH COURT 732 #

2011 Y L R 732

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

MUHAMMAD JAVED---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.42 of 2008, decided on 19th January, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/34/337-F(i)---Qatl-e-amd, attempt to commit qatl-e-amd and causing damiyah---Appreciation of evidence---Common intention---Scope-.. Absconding co-accused had been assigned the role of firing at deceased, whereas present accused was charged for effectively firing at complainant---Prosecution had failed to prove its case by leading any confidence inspiring evidence against accused for sharing common intention in commission of murder of the deceased--. Common intention for committing murder, was a question of fact which could be ascertained on the basis of acts and conduct of accused, ferocity of attack, weapon used, number of blows or fire shots coupled with element of pre-concert of mind---Accused, in the facts and circumstances of the case, did not commit murder of deceased, but was wrongly and illegally convicted and sentenced therefor---Prosecution had been able to prove its case against accused qua firing at the complainant and seriously injuring him---Trial Court in circumstances had rightly convicted and sentenced accused under Ss.324 & 337-F(i), P.P.C., which findings of fact were maintained---Conviction and sentence of accused recorded under S.302, P.P.C., was set aside, while remaining conviction and sentence recorded under Ss.324/337-F(i), P.P.C., was maintained.

Saeed Akhtar Khan for Appellant.

Arshid and Mukhtiar Alam for the State.

Date of hearing: 19th January, 2011.

2011 Y L R 816

[Peshawar]

Before Sher Muhammad Khan, J

Mir QASIM KHAN---Petitioner

Versus

Syed ZAFAR ALI SHAH and 6 others---Respondents

Criminal Miscellaneous Quashment Petition No. 97 of 2009, decided on 14th October, 2010.

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

----Ss. 561-A, 200, 195(1)(C), 249-A, 265-K, 439-A, 417(2) & 476---Penal Code (XLV of 1860), Ss.467 & 476---Forgery of valuable security, will, etc., counterfeiting device or mark used for authenticating documents other than those described in S.467, or possessing counterfeit marked material---Quashing of proceeding---

Inherent powers of High Court under S.561-A, Cr. P. C. ---Scope---Alleged offence being exclusively triable by the Court of Session, area Magistrate sent complaint file of petitioner to Sessions Judge---After deleting Ss.467 and 476, P.P.C., Additional Sessions Judge sent back the complaint to Judicial Magistrate for trial of remaining offences---Judicial Magistrate dismissed petition for quashment for being pre-mature---Additional Sessions Judge accepted revision filed by respondents and dismissed the complaint of the petitioner holding that the cognizance of the alleged offence could not be taken under S.195(1)(C), Cr.P.C.-Respondent contended that petitioner should have filed appeal under S.417, Cr. P. C. ---Validity---Section 417, Cr. P. C. dealt with appeal against acquittal of accused on merits or other grounds such as exercising the powers under S.249-A or 265-K, Cr.P.C. but the same had nothing to do with maintainability, applicability oft certain sections of law and jurisdictional questions which could only be decided under Ss.435, 439, 439-A or S. 561-A Cr.P.C.-Acquittal meant judgment give by a judge or jury that someone was not guilty---Additional Sessions Judge exercised powers under S.439-A, Cr.P.C. by accepting revision petition of respondents, the same powers could not be invoked by petitioner, before High Court---Section 561-A empowered the High Court to prevent abuse of process of court or otherwise secure ends of justice---Where High Court arrived at conclusion that order passed by a subordinate court amounted to abuse of the process of court, High Court could remedy the injustice by exercising inherent powers---High Court under S.561-A, Cr.P.C. had inherent powers to make such orders as might be necessary to give effect to any order or prevent abuse of process of any court or otherwise to secure ends of justice--Inherent jurisdiction was the residual, automatic and ex-officio authority of the court of law to regularize proceedings and function with justice and good reason--`Inherent' jurisdiction enabled the court to fulfil its functions properly and effectively---Inherent jurisdiction was part of procedural and not of substantial law and the same could be exercised in relation to matters not raised in pending litigation and in respect of persons not party to such litigation---High Court could exercise inherent power without any application from any side and upon any information brought to its notice---Alleged offence having been committed before institution of suit and alleged forged document having been used in civil court, criminal proceedings could only be instituted by the said court or the person who had been deprived as a result of the commission of offence before institution of the suit and production of the document in the court---Bar on criminal prosecution in respect of' matters pending in civil court would tantamount to providing complete immunity to persons committing fraud and forgery in judicial proceedings thus rendering Ss.195 and 476, Cr.P.C. redundant practically--After receiving the complaint referred by the Magistrate, Additional Sessions Judge should have deemed the same to have been lodged by the Magistrate himself and should have decided the complaint on merits---Cognizance of offence under S.467, P.P.C. was not barred by S.195(1)(C), Cr.P.C.---Impugned order was set aside and case was remanded to Additional Sessions Judge for decision strictly on merit.?

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

----S. 417--Scope and application of S.417, Cr. P. C. ---Section 417, Cr. P. C. dealt with appeal against acquittal of accused on merits or other grounds such as exercising the powers under S.249-A, Cr.P.C. or 265-K, Cr.P.C. but the same had nothing to do with maintainability, applicability of certain sections of law and jurisdictional questions which could only be decided by Ss.435, 439-A or S. 561-A, Cr. P. C.?

----S. 561-A---Inherent powers of High Court---Nature and scope---High Court was empowered to remedy the injustice resulting from the order of a subordinate court by exercising inherent powers under S.561-A, Cr.P.C. and make such order as might be necessary to give effect to any order or prevent abuse of process of court or otherwise to secure the ends of justice---Inherent jurisdiction was the residual, automatic and ex-officio authority of the court of law to regularize proceedings, function with justice and good reason and enable the court to fulfil its functions properly and effectively---High Court could exercise inherent powers upon any information brought to its notice irrespec?tive of the fact whether any application was moved.?

Syed Ghulam Murtaza v. The State 1996 PCr.LJ 433 distinguished.

Hidayatullah and others v. The State through Advocate General N.-W.F.P. 2006 SCMR 1920 fol.

Mahabat Khan and 5 others versus Senior Superintendent of Police and 5 others 1999 MLD 2243 and Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others PLD 1992 Lah. 178 rel.

Iftikhar-ul-Haq for Petitioner.

Asghar Ali Khan for Respondent.

Muhammad Farooq Khan for the State.

Date of hearing: 14th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 837 #

2011 Y L R 837

[Peshawar]

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

ISRAFEEL---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.58 and Murder Reference No. 4 of 2008, decided on 16th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Qatl-e-amd and causing disappearance of evidence of offence---Appreciation of evidence---Report regarding occurrence was lodged one day after disappearance of deceased and after recovery of the dead body--Neither the complainant nor prosecution furnished any explanation as to why the report was not lodged after disappearance of deceased---Statement of prosecution witness and conduct of the complainant showed that report was lodged after preliminary investigation, recovery, consultation and deliberation between the Police and complainant party on the spot---Occurrence had taken place at night time and there was no eye-witness of the occurrence---Only incriminating evidence available against accused was that on his pointation, the alleged weapon of offence, `Pickaxe', was recovered from the cattle shed of accused in presence of prosecution witness-Pickaxe' was not found stained with human blood which could not be termed, in circumstances to be a weapon of offence---No one had seen the Pickaxe in the hands of accused---Nothing existed on record to show that cattle shed from where said Pickaxe was found was exclusively owned by accused---Said recovery front a cattle shed, not proved to be owned and possessed by accused, was of no help to the prosecution---No other incriminating circumstantial evidence was available on record to connect accused with the commission of offence---No one had seen the deceased in the company of accused from the time of disappearance of deceased till recovery of his dead body---Motive by itself would not prove the charge against accused---In the absence of ocular account and strong circumstantial evidence, mere abscondance, could not be considered as corroborative or supportive piece of evidence---Co-accused had been acquitted in the case under S.265, Cr.P.C. on the basis of the same charge and motive for the offence---Prosecution having failed to produce any confidence inspiring evidence to prove various interlinked chains of circumstantial evidence of such a strong character that the same could not be explained on any other reasonable hypothesis than taking presumption of guilt against accused, the Trial Court was not justified to record order of conviction in the offence carrying capital punishment---Trial Court was not justified to convict accused in an unseen and un-witnessed occurrence, which had taken place at unknown time, based on weak and unbelievable circumstantial evidence---Impugned order of conviction of accused, was set aside and accused was acquitted and released, in circumstances.

2008 SCMR 1297; 2009 SCMR 230; 1992 SCMR 2088; PLD 2002 (Criminal) 154; PLD 2001 SC 540; 2003 MLD 595; 1968 PCr.LJ 53; 2002 SCMR 1602 and PLD 2004 SC 342 ref.

Sajjad Afzal Khan for Appellant.

Abbas Khan Sangeen, D.A.G. and Muhammad Javed Khan Swati for the Complainant.

Date of hearing: 16th March, 2010.

YLR 2011 PESHAWAR HIGH COURT 848 #

2011 YLR 848

[Peshawar]

Before Syed Sajjad Hassan Shah, J

AMIR-UR-REHMAN and 2 others---Petitioners

Versus

SHER ALI and 12 others-Respondents

Civil Revision No. 220 of 2006, decided on 11th November, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Trial Court partly decreed the suit---Appellate Court set aside the judgment and decree of the Trial Court and remanded the case with direction to frame five additional issues and provide opportunity to both parties to lead the evidence---Validity---Trial Court did not frame issues in accordance/in line with pleadings of the parties---Appellate Court framed the issues which the Trial Court had omitted/failed to frame---Remand of the case at the instance of the parties in order to record evidence for finally deciding the controversy was permissible in law---Trial Court was legally bound to decide the defendants' application for producing additional evidence before proceeding further---Omission to decide the said application prejudiced the case of defendants---Appellate Court remanded the case in accordance with law---Petition was dismissed in circumstances.

Muhammad Azam v. Muhammad Abdullah through L.Rs. 2009 SCMR 326 fol.

Sultanat Khan v. Fatrani and 17 others 2008 CLC 500 rel.

M. Aman Khan for Petitioner.

Mian Fazal Amin for Respondent.

Date of hearing: 11th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 855 #

2011 Y L R 855

[Peshawar]

Before Syed Sajjad Hassan Shah, J

SAEED AHMAD---Petitioner

Versus

MUHAMMAD FAROOQ through L.Rs. ---Respondent

Civil Revision No. 831 of 2006, decided on 1st November, 2010.

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

----O. XXXVII, R.2, O. XXI, R.30 & O.XX, R.11---Money suit---Trial Court decreed the suit---Executing court allowed objection petition filed by judgment-debtor to recover decretal amount through sale of share of the judgment-debtor in a house owned jointly by both the parties---Appellate Court set aside order of the executing court---Validity---Under O. XXI, R.30, C.P.C., every decree for payment of money could be executed by detention in prison of judgment-debtor or attachment and sale of his property or both---Trial Court accepted judgment-debtor's application for recovery of decretal amount from sale of his share in the house holding that no purpose would be served by detention of judgment-debtor in prison but share of judgment-debtor in said house had already been mortgaged to the bank as security against financial assistance---Decree could not be satisfied by subjecting the said house to sale and auction due to the encumbrance---Decretal amount not being hefty and little progress made towards payment of decretal amount despite protracted litigation, High Court declined to allow payment of decretal amount in instalments---Judgment and order of the Appellate Court was maintained and petition was dismissed.

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

----O. XXI, R.30---Power to detain judgment-debtor in execution of money suit---Under O.XXI, R.30, C.P.C., every decree for payment of money could be executed by detention in prison of the judgment-debtor or attachment and sale of his property or both.

Sultan Hussain for Petitioner.

Subhanullah for Respondent.

Date of hearing: 1st November, 2010.

YLR 2011 PESHAWAR HIGH COURT 861 #

2011 Y L R 861

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

MUHAMMAD ISMAIL KHAN---Petitioner

Versus

Mst. HAJRA BIBI and 5 others---Respondents

Writ Petition No. 465 of 2009, decided on 30th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Police Order (22 of 2002), Art.156---Illegal Dispossession Act (XI of 2005), S.3---Penal Code (XLV of 1860), S.447---Constitution of Pakistan, Art.199---Illegal dispossession, criminal trespass---Constitutional petition---Petitioner challenged the order of Sessions budge/Justice of Peace directing restoration of possession of the house and registration of F.I.R. against petitioner on the application filed by respondents---Validity---Respondents were required to have filed two separate applications under Illegal Dispossession Act, 2005 and the Police Order, 2002---Restoration of possession and registration of criminal case. could not be sought in one and the same application---Application filed by respondents did not mention the law under which reliefs were sought---Court below did not fulfil the formalities required under S.22-A, Cr.P.C. and under the Illegal Dispossession Act, 2005 and passed order without framing the charge or holding inquiry---Prima facie, no case for registration of F.I. R. was made out against the petitioner---Application filed by respondents before Sessions Judge/Justice of Peace was held to have not been filed either under Illegal Dispossession Act, 2005 or under S.22-A, Cr.P.C.---Impugned order was set aside for being illegal---Petition was accepted.

Saleemullah Khan Ranazai for Appellant.

Respondent No.2 for self and Attorney for Respondent No.1.

Date of hearing: 30th September, 2010.

YLR 2011 PESHAWAR HIGH COURT 872 #

2011 Y L R 872

[Peshawar]

Before Attaullah Khan, J

DILAWAR KHAN and 2 others---Petitioners

Versus

Mst. MEHRUN NISSA and 8 others---Respondents

Civil Revision No.274 of 2005, decided on 18th October, 2010.

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

----Ss. 3(1) & 117---West Pakistan Land Revenue Rules, 1968, R. 67-A---Urban property, boundaries of---Demarcation---Revenue Officer, powers of---Scope---Provision of S. 117 of West Pakistan Land Revenue Act, 1967 empowered Revenue Officer to demarcate land even located within City---Provision of R. 67-A as added in West Pakistan Land Revenue Rules, 1968 by Punjab Government for not having been adopted by Government of Khyber Pakhtoonkhwa would not apply thereto---Revenue Officer on application of an interested person could conduct demarcation proceedings either himself or through Girdawar Circle.

1994 PCr.LJ 2458 and 1982 CLC 1732 rel.

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

----S. 115---Revision---Concurrent findings of fact by courts below---Interference by High Court in such findings--Scope---High Court could not set aside such" findings without establishing that same were perverse, erroneous or result of misreading or non-reading of material evidence on record.

Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 340; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

Abdul Rashid Khan Marwat for Appellant.

Muhammad Waheed Anjum for Respondent.

Date of hearing: 18th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 880 #

2011 Y L R 880

[Peshawar]

Before Abdul Samad Khan, J

Mst. MARYAM BIBI and 3 others---Petitioners

Versus

FAQIR KHAN and 4 others---Respondents

Writ Petition No.1 of 2007, decided on 2nd June, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Suit for recovery of produce was decreed by Trial Court/Tehsildar---Objection petition filed by petitioners was dismissed---Application by respondents for attestation of mutation in lieu of decrees pertaining to produce was allowed by the Deputy District Officer, Revenue---Appeals and revision filed by petitioners to Revenue authorities upto Member, Board of Revenue were dismissed---Validity---Instead of submitting application for restoration of execution proceedings, respondents filed application for attestation of mutation before Deputy District Officer, Revenue who exercised powers beyond his jurisdiction by allowing the application---Revenue courts did not exercise powers in accordance with law and passed orders in partial, unjust and oppressive manner on extraneous and irrelevant considerations warranting interference of High Court---Application for attestation of mutation should have been rejected outrightly---Impugned acts and orders of public functionaries were in excess of jurisdiction---High Court was a court of law as well as court of equity---Whenever excess committed by any authority was noticed, a bounden duty was cast upon the High Court to redress the grievance of the aggrieved party---Orders passed by Revenue authorities were illegal, without jurisdiction and lawful authority---Constitutional petition was accepted.

Abdul Latif Khan for Petitioner.

Nisar Hussain Khan and Mehboob Ali Advocate and D.A.-G. for officials Respondents.

Date of hearing: 2nd June, 2010.

YLR 2011 PESHAWAR HIGH COURT 888 #

2011 Y L R 888

[Peshawar]

Before Mian Fasih-ul-Mulk, J

GOHAR REHMAN---Petitioner

Versus

RIAZ MUHAMMAD---Respondent

Criminal Revision No.165 of 2010, decided on 6th December, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. VII, R.11---Registration Act (XVI of 1908), S.49---Suit for declaration---Rejection of plaint---Plaintiff who filed suit for declaration based his claim upon Iqrar Nama and in alternate suit for specific performance of agreement to sell regarding suit property was prayed--Deed of Iqrar Nama, was admittedly an unregistered document which would neither create any title nor any right or interest in the suit property as envisaged under S.49 of Registration Act, 1908---Declaratory suit under S.42 of Specific Relief Act, 1877 on the basis of Iqrar Nama was not permissible; and suit for declaration would not be maintainable---Even if said Iqrar Nama was considered as an agreement to sell; and suit was considered to be that of specific performance, same would not be maintainable being barred by limitation as said Iqrar Nama was scribed on 18-7-1996 and the suit was brought on 2-4-2008---Impugned judgment and decree passed by the Appellate Court were set aside and the judgment and decree passed by the Trial Court was restored, in circumstances.

PLD 2006 CLC (sic) and Muhammad Saeed v. Mst. Naheed Shagufta and others PLD 1990 Lah. 467 ref.

Abdur Rehman Qadir for Appellant.

M. Ismail Tanoli for Respondent.

Date of hearing: 6th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 956 #

2011 YLR 956

[Peshawar]

Before Attaullah Khan, J

Hafiz SHAMROZ alias HAFIZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Bail Application No.497 of 2010, decided on 10th December, 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---Four accused persons were charged to have opened fire with which son of the complainant had died, but in the recovery memo only one empty had been recovered from the place of occurrence---Medical report also spoke something else against the contents of the F.I.R.---Postmortem report disclosed one entry wound, which was again contradictory to the stand of the complainant taken in the F.I.R. that four shots were fired which hit the deceased---Case against accused in circumstances was of further inquiry---No other evidence, except the absconsion of accused was available against accused---Abscondence, could not be a ground for refusing bail, if case of an accused, otherwise fell within the ambit of further inquiry; and he was entitled to bail on merits---Involvement of accused in the case had become doubtful and that doubt could be taken into consideration at bail stage---Accused was admitted to bail, in circumstances.

1997 SCMR 251; 2010 MLD 1114; 2010 PCr.LJ 83; 2010 PCr.LJ 537 and 2005 PCr.LJ 698 rel.

PLD 2008 Quetta 72; 2008 PCR.LJ 1312; PLD 2009 Kar. 265 and 2009 MLD 1106 ref.

Muhammad Rashid Khan Wazir for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Muhammad Ilyas Khan Marwat for the Complainant.

Date of hearing: 10th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 975 #

2011 Y L R 975

[Peshawar]

Before Syed Sajjad Hassan Shah, J

HABIB GUL---Appellant

Versus

MUHAMMAD JAVID and others---Respondents

R.F.A. No. 235 of 2009, decided on 2nd November, 2010.

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

----O. V, Rr.17, 20, O. VII, R.2 & O.IX, Rr.6, 13---Suit for recovery of amount---Substituted service---Ex parte decree--Application for setting aside ex parte decree---After receipt of publication as was directed by the Trial Court, defendant who failed to appear, was proceeded ex parte and ex parte decree was passed against him and application for setting aside ex pane decree was dismissed by the Trial Court---Record s/towed that Trial Court had failed to observe the provisions contained in O. V, C.P.C.---Command of law was that all the provisions of O. V, C.P.C. must be adhered to in their letter and spirit and all efforts be made to procure the personal attendance of the defendant---Spirit of O. V, C.P.C. was that before resorting to the provisions of R.17, O. V, C.P. C. the court would observe the requirements regarding the personal service of the defendant---Without taking step to procure the personal service, the rest of the exercise in that respect would not be considered as lawful---In the present case the Trial Court directed to issue the publication in the press without awaiting the receipt of the process sent for the' service of the defendant to the civil court---Nothing was available on the record to show that the serving officer was examined by the court to the effect that he failed to procure the service of defendant and the report submitted was correct, whereupon, farther process directed to initiate the substituted service---Nothing was on record to show that the defendant was in the knowledge of date of hearing when he was proceeded ex pane; in such circumstances it could not be held that the defendant was duly served.

Syed Muhammad Anwar, v. Sheikh Abdul Haq, 1985 SCMR 1228 ref.

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

----O. IX, Rr.6 & 13---Ex parte decree, setting aside of---Plaintiff appeared and the defendant failed to appear when the suit was called on for hearing---Ex parte decree was passed against the defendant under O. IX, R.6, C.P.C.---Validity---If it was proved that the summons was duly served, the court could proceed ex parte and could pass a decree without recording evidence; but when summons was not duly served, then the court would direct second summons be issued and served on the defendant---Scheme of the law was that, if all efforts for personal service had failed, then the substituted service should. be made; and after having fulfilled the requirements of law relating to the service of summons, the court could pass ex parte order---However, where due service could not be made, no order of ex parte decree could be passed against the defendant---If the court was satisfied. that the summons was not duly served and defendant was prevented by any sufficient cause for appearing when suit was called on for hearing, the order would be made for setting aside the ex parse decree---Nothing was available on record in order to substantiate the assertion of plaintiff that defendant was duly served---Whatever the material was brought on record, was not sufficient to hold, that defendant was duly served; and ex parte decree was passed in consonance with the prescribed provisions of law---Defendant had pointed out certain circumstances, whereby it appeared that he had not been duly served---Ex parte decree passed against the defendant in violation of mandatory provisions of law, was liable to be set aside, in circumstances and same was set aside, accordingly.

Mazullah Barkandi for Petitioner.

Mian Hikanuullah Jan for Respondents.

Date of hearing: 2nd November, 2010.

YLR 2011 PESHAWAR HIGH COURT 991 #

2011 YLR 991

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

KHAN AFSAR and 2 others---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.82 and Criminal Revision 32 of 2009, decided on 1st December, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/34---Qatl-e-amd, acts done by several persons in furtherance of common intention---Appreciation of evidence---Benefit of doubt---Testimonies of witnesses were inconsistent, full of improvements and infirmities on material points such as time and place of occurrence, presence of witnesses at the time of occurrence and the ocular account---Ocular account was not consistent with medical evidence---Prosecution version that the wife of the deceased did not follow him as he left the house on hearing the gunshots could not be believed---Prosecution withheld best available evidence by not producing the wife of the deceased as witness---Material facts were suppressed by prosecution and occurrence remained shrouded in mystery leading to the conclusion that the case was one of no evidence---Prosecution failed to prove its case beyond shadow of doubt---Benefit of doubt was extended to the accused who were acquitted of the charge.

Saeed Akhtar Khan for Appellants.

S. Yasir Shabbir for Respondents.

Date of hearing: 1st December, 2010.

YLR 2011 PESHAWAR HIGH COURT 1003 #

2011 Y L R 1003

[Peshawar]

Before Syed Sajjad Hassan Shah, J

ABDUL SATTAR and others---Petitioners

Versus

CHAIRMAN, PAKISTAN RAILWAYS and others---Respondents

Civil Revision No. 1159 of 2010, decided on 17th January, 2011.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Closing of evidence---Trial Court and Appellate Court concurrently dismissed suit in terms of O.XVII, R.3, C.P.C.---Validity---Trial Court granted eight adjournments to record the oral evidence of the plaintiffs, but they had failed to produce their evidence---Lack of interest of the plaintiff caused delay in deciding the suit as it was discernible from the record that it took one year for producing oral evidence, but without any further progress in the proceedings of the suit as neither the plaintiffs nor their counsel appeared before the court---Trial Court, in circumstances, was constrained to pass the order in terms of O.XVII, R.3, C.P.C.---Within a period of four years the plaintiff could not arrange the production of their entire evidence, whatever the material produced by the plaintiffs through their witnesses supported the stance of the defendant---On merits, record of rights pertaining to relevant period also lent support to the stance of the defendants; as they had been shown as owners in possession of the suit property; and also about the construction raised over the same---Grounds on which the plaintiffs had sought the decree in their favour manifestly falsified their contention---Plaintiffs besides having no cause of action indulged in unlawful litigation, the conduct of plaintiffs, made it clear that they were not interested in litigation, but they were bent upon to procure, the illegal benefit of protracted proceedings---Suit.. was time-barred, the plaintiffs were estopped 10 file the suit as they had no cause of action to file the suit---Judgment and decree passed by Appellate Court and that of the Trial Court, in circumstances, being in accordance with law and not suffering from any illegality, irregularity or jurisdictional error, were Maintained.

Hakim Khan v. Aurangzeb and another 1979 SCMR 625; Sardar Anwar Ali Khan and 10 others v. Sardar Bakat Ali through legal heirs and 4 others 1992 SCMR 2435 and Ghulam Haider and others v. Wali Ahmed and others 2008 SCMR 1425 rel.

Gul Sadban Khan for Petitioner.

Shah Faisal Nasapi and Shakeel Khan Gillani for Respondents.

Date of hearing: 17th January, 2011.

YLR 2011 PESHAWAR HIGH COURT 1014 #

2011 Y L R 1014

[Peshawar]

Before Dost Muhammad Khan and Syed Sajjad Hassan Shah, JJ

SHER AKBAR---Appellant

Versus

Mst. SAJIDA and another---Respondents

Criminal Appeal No. 274 of 2009, decided on 21st December, 2010.

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

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Plea of the defence, that preliminary investigation was conducted before lodging the F.I.R., got support from the fact that Investigating .Officer had admitted that except the F.I.R., all the rest of the documents were in his handwriting---Investigating Officer could not offer any plausible explanation for not writing the F.I.R. with his own hand, when he was not suffering from any infirmity or disability---Ocular account had come in conflict with the medical evidence---Occurrence had neither taken place at the time, shown in the F.I.R., nor in the manner set up by the prosecution---Plea of counsel for the complainant and the State that because' co-accused had been convicted earlier, appeal of accused would be dismissed, was not sustainable in law---Law had provided a right of fresh trial to each accused, surrendering subsequently and the court of law was bound to apply its independent judicial mind while staking appraisal of evidence against him, uninfluenced by the previous conviction acquittal of co-accused---If such plea was allowed to prevail, fresh trial of a subsequently arrested accused would become just a fancy trial defeating the object of law and principles of justice---Two real brothers had been charged, besides an absconder who too belonged to the same family---Tragedy appeared to be a job of a single person---Besides an unseen crime, a net had been thrown much wider due to consultation and deliberation made before the registration of the case---Prosecution witness who was remotely related to accused was abandoned being won over---Said witness had appeared as defence witness; his testimony would have been discarded, suspecting him favouring accused for ulterior consideration, however, his testimony got very strong support from that of the testimony of two important witnesses---Such evidence, in circumstances could not be lightly ignored---Lonely eye-witness, whose presence on the spot was not established had also made deliberate improvement---Investigating Officer had also concealed established facts on record, their testimony could not be relied upon without strong corroboration, coming from unimpeachable source--No such evidence was available in the case---Prosecution having failed to prove the guilt of accused beyond any shadow of doubt, his conviction and sentence recorded by the Trial Court were set aside extending him benefit of doubt---Accused was acquitted of all the charges and was ordered to be set free.

Farman and others v. The State PLD 1980 SC 201; Zaley Mir alias Zaley v. The State 1997 PCr.LJ Pesh. 510; Kamal Din v. Muhammad Sharif 1987 SCMR 1264; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Youuus Warind v. Nazir Ahmad Siddiqui PCR.LJ 1997 Pesh. 549 ref.

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

----S.302/34---Qatl-e-amd---Appreciation of evidence---Once a witness was found telling lie on one material aspect of the case, then, ordinarily he/she would not be believed with regard to the other aspects of the case, unless the testimony given was fully corroborated by strong independent corroboration.

----S. 302/34---Qatl-e-amd---Abscondence--When crime was held to be an unseen one then, abscondence by itself would carry no importance nor a person could be convicted on a capital charge on that account.

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

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Prosecution was supposed to prove the individual participation of each accused in the crime.

Muhammad Saleem Khan for Appellant.

Malik Muhammad Rehan and Syed Akbar Ali Shah for Respondents.

Date of hearing: 21st December, 2010.

YLR 2011 PESHAWAR HIGH COURT 1028 #

2011 Y L R 1028

[Peshawar]

Before Attaullah Khan, J

NASREEN BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Appeal No.537 of 2010, decided on 14th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 120-B---Qatl-e-amd, criminal conspiracy---flail, grant of --Accused (woman) was nominated in the statement of deceased's brother under S.164, Cr.P.C. which was recorded after delay of seven clays---Said brother of deceased remained silent despite /laving knowledge of the alleged illicit relations of the accused with her paramour---Accused did not make confession---Being a female and having a suckling baby in her lap, prima facie, her case fell within the ambit of further inquiry entitling her to the concession of bail---Complainant having not disclosed any source of his knowledge of the alleged offence, the charge still remained a presumption without solid reason---No ocular evidence was available on record---No incriminating material had been recovered from the accused---Bail was granted.

Mst. Nusrat v. State 1996 SCMR 973 fol.

1997 MLD 1866 rel.

Sh. Iftikhar-ul-Haq for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Hameedullah Khan Khattak for the Complainant.

Date of hearing: 14th January, 2011.

YLR 2011 PESHAWAR HIGH COURT 1047 #

2011 Y L R 1047

[Peshawar]

Before Attaullah Khan, J

AMIR ULLAH SHAH---Petitioner

Versus

IHSAN ULLAH and another---Respondents

Criminal M.B. No. 1 of 2011, decided on 31st January, 2011.

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 was directly charged for effectively firing after about thirty minutes of the occurrence---No proof was available on record that the complainant was having weak vision-Charge against accused was duly supported by eye-witnesses--Accused remained absconder for about six years and proceedings under S.512, Cr.P. C. had been initiated and completed against him--Court while dealing with matter of bail was only required to see whether accused was connected with the commission of offence or not and deeper appreciation was not called for---Injury on non-sensitive part of body, would not bring the case out of the purview of prohibitory clause of S.497, Cr.P.C. and abscondence of accused though was not an absolute proof of guilt but was an important factor to be considered, when other circumstances were available against accused---Supplementary challan against accused had been prepared by the prosecution---No question of misidentify was there as both the parties were related to each other-- Bail application was dismissed, in circumstances.

2008 SCMR 678 and 2010 PCr.LJ 1780 ref.

Pir Liaquat Ali Shah for Petitioner.

Sanaullah Shamim, D.A.-G. for Respondent.

Shah Nawaz Khan Sikandari for the Complainant.

Date of hearing: 31st January, 2011.

YLR 2011 PESHAWAR HIGH COURT 1066 #

2011 Y L R 1066

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

UMER ZEB---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.68 of 2007, decided on 4th November, 2010.

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

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Incident was a daylight occurrence and accused had been directly charged in the promptly lodged F.I.R. by assigning specific role of firing; and causing brutal murder of deceased with lethal weapon---Both co-accused had been charged for their mere presence and no overt act had been attributed to them---Ocular account furnished by prosecution witnesses was found consistent, trustworthy and confidence-inspiring as they had fully supported each other on material points---Medical evidence furnished by Doctor was fully consistent with ocular account---No major contradiction and discrepancy appeared in evidence of prosecution---Prosecution witnesses stood firm and their testimony could not be shattered, though they were subjected to lengthy cross-examination--Accused went into hiding and remained fugitive from law for sufficient long time---Unlicensed crime weapon .222 bore rifle recovered from accused was sent to Arms Expert for analysis along with the empties recovered from the spot and in that respect was positive---Sufficient ocular as well as circumstantial evidence existed which had reasonably connected accused with the commission of offence---Prosecution had proved its case against accused beyond any shadow of doubt---Case against both co-accused having stood on different footings, Trial Court had acquitted them---Trial Court had considered each and every aspect of the case and rendered a well-reasoned judgment warranting no interference by High Court---Impugned conviction and sentence against accused was maintained.

2007 SCMR 1427; PLD 2008 SC 1; 2001 SCMR 566; 2004 SCMR 477; 2008 SCMR 222, 1992 SCMR 1036; 2004 PCr.LJ 1684 and Mst. Mumtaz Begum v. Ghulam Farid and another 2003 SCMR 647 ref.

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

----S. 302/34---Qatl-e-amd---Enhancement of sentence---Complainant had filed criminal revision for enhancement of sentence of accused---Trial Court on the question of appropriate punishment had advanced the reason that since three accused had been charged in the case, out of whom the case of two accused persons was not free front doubt, besides long standing previous enmity exited between the parties; and number of criminal cases were registered against them; in such circumstances the penalty of death, was not appropriate and awarded the sentence of imprisonment for life---Validity---Held, punishment awarded by Trial Court was justified, in circumstances of the case.

Khawaja Muhammad Khan Garrah and Qazi Shamsuddin for Appellants.

Ghulam Mustafa Swati for the Complainant.

Miss Mahrin Nasar for the State.

Date of hearing: 4th April, 2010.

YLR 2011 PESHAWAR HIGH COURT 1083 #

2011 Y L R 1083

[Peshawar]

Before Syed Sajjad Hassan Shah, J

JAMIL and 5 others---Petitioners

Versus

SHEERIN and 3 others---Respondents

Civil Revision No. 297 of 2007, heard on 1st November, 2010.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), Ss.4(9) & 42---Land Settlement Manual, para. 123---Suit for declaration---Trial Court dismissed suit---Appellate Court dismissed appeal---Validity---Appellate Court dismissed appeal without taking into account documentary or oral evidence and framing any issue at all by the Trial Court---Appellate Court dismissed appeal on the. ground that the mutation was not attested in the same revenue estate in the absence of any evidence showing that the two villages were shown to be two different revenue estates in the revenue record---Order made in appeal was based on flawed/erroneous view of the definition of the word estate' which referred to an area for which separate record of rights was maintained---Two villages were held to be two different revenue estates without any evidence from the revenue record---Definition of wordestate' in S.4(9) of the West Pakistan Land Revenue Act, 1967 did not imply that an `estate' necessarily comprised a village, or Mauza, or Goan or Pind---Generally, an estate or Mahal was identical to the village or Mauza but an estate might include more than one village, and one village might consist of two estates---Noncompliance of the provisions of S.42 of West Pakistan Land Revenue Act, 1967 would not invalidate the transactions which form subject matters of mutation---Appellate Court did not appraise evidence and advert to the findings of Trial Court in accordance with law---Case was remanded to appellate court for decision afresh.

Hakeem Khan v. Nazir Ahmed Lughmani and 10 others 1992 SCMR 1832 fol.

Muhammad Ishaq v. Ghafoor Khan 1999 YLR 1956 rel.

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

----S. 4(9)--'Estate'--Definition meaning and connotation-'Estate' as defined in S.4(9) of West Pakistan Land Revenue Act, 1967 did not imply or connote that an estate necessarily comprised a village or Mauza, or Goan or Find---Generally, an estate or Mahal was identical to village or Mauza but an estate might include more than one village and one village might include two estates.

----S. 42---Non-compliance of the provisions of S.42 of West Pakistan Land Revenue Act, 1967 would not invalidate the transactions which form the subject-matter of the mutations.

Hakeem Khan v. Nazir Ahmed Lughmani and 10 others 1992 SCMR 1832 fol.

Muhammad Ishaq v. Ghafoor Khan 1999 YLR 1956 rel.

S.M. Attique Shah for Petitioners.

Ahmed Ali Khan for Respondent.

Date of hearing: 1st November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1094 #

2011 Y L R 1094

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

UMER ZEB-Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 76 of 2007, decided on 4th November, 2010.

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

----S.13---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd and possession of unlicensed arms--- Appreciation of evidence--During investigation of murder case, one rifle of .222 bore as crime weapon in the case was recovered from the bushes in the vicinity on pointation of accused---On conclusion of trial accused was convicted and was awarded one year's R.I. under S.13 of the West Pakistan Arms Ordinance, 1965---Accused had filed appeal against his such conviction and sentence---Accused could not shatter veracity of testimony of prosecution witnesses in cross-examination in respect of recovery of weapon, which testimony otherwise was trustworthy and confidence inspiring---Accused, was also convicted and sentenced to life imprisonment in murder case against him and appeal against said conviction and sentence had been dismissed---Empties recovered from the spot were sent along with said rifle for analysis to Firearms Expert, whose report was in positive---Accused had failed to produce any licence or permit for keeping said rifle in his custody---Trial Court had rightly convicted and sentenced the accused in circumstances.

Khawaja Muhammad Khan Garrah and Qazi Shamsuddin for Appellant.

Ghulam Mustafa Khan Swati for the Complainant.

Miss Mehrin Nasar for the State.

Date of hearing: 4th April, 2010.

YLR 2011 PESHAWAR HIGH COURT 1108 #

2011 Y L R 1108

[Peshawar]

Before Attaullah Khan, J

YOUSAF KHAN---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Bail Petition No.3 of 2011, decided on 17th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/404/427/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, offence committed by member of unlawful assembly in prosecution of common object---Bail, refusal of---Co-accused released on bail was not named in the F.I.R. whereas present accused was charged with effective firing which resulted in murder of a police constable and injury to another, therefore, rule of consistency was not attracted to the case of the accused/petitioner---Occurrence was witnessed by number of witnesses---F.I.R. was lodged within 30 minutes of occurrence---Abscondence of the accused was not satisfactorily explained---Accused was a desperate and hardened criminal who attacked the police party---Ocular evidence connected the accused with the commission of the offence---Bail petition was dismissed.

Faqir Mahboob-ul-Hameed for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Sultan Shaharyar Khan Marwat for Respondent No.3.

Date of hearing: 17th January, 2011.

YLR 2011 PESHAWAR HIGH COURT 1127 #

2011 Y L R 1127

[Peshawar]

Before Zia-ur-Rehman Khan, J

Mst. FAZEELAT BIBI---Petitioner

Versus

MAHBUB AHMAD and others--- Respondents

Civil Revision No. 190 of 2010, decided on 13th December, 20.10.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption--Making of `Talbs'---Trial Court dismissed the suit filed by the plaintiffs, but Appellate Court set aside judgment and decree passed by the Trial Court and decreed the suit---Validity---Plaintiff besides recording his own statement, had produced other witnesses who proved the factum of Talbs---Despite Subjecting said witnesses to lengthy cross-examination, their testimonies could not be shattered---Appellate Court though had rightly observed that for performing the Talb-e-Muwathibat, the existence of Majlis' was necessary and that said right could be exercised by attorney or agent, but as, in the present case, the plaintiff had himself performed the Talbs, the observance of such formality, subsequently was not the requirement of law---Counsel for the defendant had failed to point out any material flaw in the evidence of plaintiff/decree-holder---Mere fact that pre-emptor delayed the observance of Talbe-Muwathibat, after he was informed telephonically by his attorney was of trivial importance---Approach of the Trial Court in that regard seemed to be misconceived, whereas that of Appellate Court was correct---Plea of waiver or estoppel was not available against plaintiff---Appellate Court, in circumstance had rightly set aside judgment of the Trial Court---In absence of any irregularity or illegality, misreading or non-reading of evidence, judgment of the Appellate Court could not be interfered with in revisional jurisdiction of High Court under S.115, C.P.C.---Petition was dismissed.

Haji Muhammad Zahir Shah for Petitioner.

Abdul Sattar Khan for Respondents.

Dates of hearing: 23rd and 29th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1143 #

2011 Y L R 1143

[Peshawar]

Before Mian Fasih-ul-Mulk, J

SAQIB KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.424 of 2010, decided on 6th December, 2010.

Criminal Procedure Code (V of 1898)---

---S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---West Pakistan Arms Ordinance (XX of 1965), S.13--Trafficking prohibited chemical and possession of arms---Bail, refusal of---Accused were caught red-handed while trafficking huge quantity of prohibited chemical namely `Acetic Anhydride' in vehicles, for which they could not offer any plausible explanation/reasonable justification---Tentative assessment of record would show that accused were found reasonably connected with the commission of heinous offence of moral turpitude, which fell within the prohibited clause of S.497, Cr.P.C.---Bail petitions filed by accused persons being bereft of any merit, were dismissed---Since challan had been put in the court, the Trial Court was directed to conclude the trial of case within shortest possible time, but not later than two months.

2009 YLR 1041 and 2277 and PLD 2010 SC 623 ref.

Masood-ur-Rehman Tanoli for Petitioner.

Tariq Khan Kakar for Respondent.

Date of hearing: 6th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 1153 #

2011 Y L R 1153

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

TIKA KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1520 of 2010, decided on 12th November, 2010;

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.419, 420, 468 & 471---Cheating by personating; cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, grant of---Further inquiry---Record revealed that the Registration Book and the Number Plate of the vehicle used by the accused was fake but question remained as to whether the petitioner or the previous owner had forged the documents of registration of vehicle for the purpose of cheating especially when National Computerized Identity Card of the said previous owner was also found to be fake---Determination of the question as to who committed the offence, required further inquiry entitling the accused to the concession of bail--Alleged offences did not fall within prohibitory clause of S.497(1), Cr.P.C.---Bail was granted.

Jalaluddin Akbar Azam Khan for Petitioner.

Naveed Akhtar, A.A.-G for Respondents.

Date of hearing: 12th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1164 #

2011 Y L R 1164

[Peshawar]

Before Syed Sajjad Hassan Shah, J

MUHAMMAD HUSSAIN---Petitioner

Versus

GUL SHAH and 14 others ---Respondents

Civil Revision No. 266 of 2008, decided on 8th November, 2010.

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

----S. 42---Civil Procedure Code (V of 1908), O. VI, Rr.4 & 7---Suit for declaration- Pleadings--- Trial Court decreed the suit---Appellate Court accepted appeal of defendant and dismissed the suit---Plaintiff contended that suit property was rented to the defendant who denied relationship of landlord and tenant---Validity---Plaintiff produced duly attested mutations to prove his ownership of suit property---Defendant not only failed to produce any documentary evidence to prove ownership but also did not claim ownership in his pleadings---Under O. VI, Rr.4 & 7, C.P.C., parties were required to give material facts and could not deviate from their pleadings---Mutations having been admitted in evidence, no objection to the admissibility of the same could be allowed in appeal---Defendant failed to rebut mutations in favour of plaintiff by any documentary evidence---Impugned judgment of appellate court was set aside and judgment and decree of Trial Court was restored.

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

----O. VI, Rr.4 & 7---Pleadings---Principles---Under O. VI, Rr.4 & 7, C.P.C., parties were required to give material facts and could not deviate from their pleadings at the appellate stage.

2006 SCMR 562; 1987 SCMR 1845 and 2008 SCMR 1395 fol.

Muhammad Nazeef v. Mumtaz Begum 2002 CLC 1517; PLD 1992 Pesh. 144; 2002 CLC 587; Major (R) Rabdul Raul Khan v. Atta Khan and others 2003 MLD 1900; 1983 CLC 414 and 1995 CLC 695 rel.

Abdul Zakir Tareen for Petitioner.

M. Arsala Khan Khalil for Respondent.

Respondents Nos. 2 to 15 for ex party.

Date of hearing: 8th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1173 #

2011 Y L R 1173

[Peshawar]

Before Liaqat Ali Khan and Mazhar Alam Khan Miankhel, JJ

FARHAD ULLAH and another---Appellants

Versus

NASIBULLAH and another---Respondents

Criminal Appeal No. 580 of 2009, decided on 21st July, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Sole witness in the case, who was brother of deceased, being interested witness, his testimony required thorough scrutiny---Version given by said brother of deceased that he was accompanying the deceased for collecting his pension, could not be believed as no convincing evidence was on record to that effect---Serious doubt existed about the presence of said witness who was also complainant who claimed to be with the deceased at the time of occurrence---Site plan which was prepared at the instance of the complainant; would reflect that the point attributed to the complainant and other three acquitted accused charged for ineffective firing on the person of complainant, would make another dent in the story of the prosecution---If seen the version given by the complainant as a sole eye-witness to the occurrence, said facts would suggest that testimony of the complainant/witness in absence of any supportive evidence, could not be believed---Abscondence of accused which spread over the years, alone could not be made as a ground for conviction of accused in absence of any material and trustworthy and confidence inspiring evidence to connect accused persons for commission of offence for which they were charged--Incident was an unseen occurrence and the ocular testimony given by the complainant, being an interested witness, could not be relied upon---Conviction and sentence awarded to accused persons by the Trial Court were set aside---Accused were acquitted of the charge levelled against then and were released in circumstances.

Khawaja Muhammad Khan for Appellants.

Ubaidullah Anwar for Respondent.

Asfandyar for the State.

Date of hearing: 21st July, 2010.

YLR 2011 PESHAWAR HIGH COURT 1187 #

2011 Y L R 1187

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. GULAB JAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.1572 of 2010, decided on 12th November, 2010.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 29---Possession of narcotics---Bail, refusal of--Accused could not justify their presence in the car carrying the contraband and failed to establish that they were not in conscious possession of the contraband---Presence of the accused in said car was sufficient to link theist with the recovery---Person found to be in possession of illicit articles would be presumed to have committed the offence under Control of Narcotic Substances Act, 1997 unless the contrary had been proved---Accused failed to rebut the presumption under S.29 of the Control of Narcotic Substances Act, 1997---Plea of the accused that they were travelling in the car as hitch-hikers could not be believed---Offence of the accused fell within prohibitory clause of S.497, Cr.P.C. disentitling them to the concession of, bail---Bail application was dismissed.

Muhammad Faisal v. The State 2006 YLR 3039 distinguished.

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

----S. 29---Possession of narcotics---Presumption---Person found to be in possession of illicit articles would be presumed to have committed the offence under Control of Narcotic Substances Act, 1997 unless the contrary had been proved.

Mrs. Farzana Javed for Petitioners.

Naveed Akhtar, A.A.-G for the State.

Date of hearing: 12th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1207 #

2011 YLR 1207

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

MAQBOOL alias BOOLI---Appellant

Versus

SHAUKAT ALI and another---Respondents

Criminal Appeal No. 129 of 2009, decided on 10th November, 2010.

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

----S.302/34---Anti-Terrorism, Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.40---Criminal Procedure Code (V of 1898), S.103--Qatl-e-amd, acts done by several persons in furtherance of common intention, act of terrorism---Appreciation of evidence---Valid procedure of recording confessional statement---Arrest of accused was kept secret by Police till the matter was brought to the notice of the court by his mother-Magistrate was required by law to dispel all signs of fear from the accused's mind by informing him that he was not bound to make the confessional statement and he would not be handed over to Police, instead, he would be sent to judicial lock-up whether he made the confessional statement or not---In the present case, language of the question put by the Magistrate suggested that the accused would be sent to the judicial lock-up only 'if he made confessional statement, fear of Police thus was not dispelled from the mind of the accused as required by law---Such confession would not be considered voluntary where accused remained in Police custody immediately before or after recording confessional statement---Custody of accused back to Police after confession vitiated validity and evidentiary value of such confession---Confessional statement having not been recorded in the manner prescribed by law, was excluded from consideration by the court---Pistol allegedly recovered on pointation of the accused was shown to have been recovered by the same Investigating Officer on the same day but sealed in a different parcel---Sealing of the same pistol simultaneously in two different parcels could not be believed---Recovery memo was tampered with and parcel number was added later---Under Art.40 of the Qanun-e-Shahadat, 1984 the compliance of S.103, Cr. P. C. vis-a-vis attendance of two or more respectable inhabitants was not mandatory where the place of recovery was only in the knowledge of the accused but, where the Investigating Officer knew the place of recovery before disclosure of such place by the accused, compliance of S.103, Cr.P.C. was compulsory---Disclosure of place of recovery by the accused to the Investigating Officer before recording of the statement of the accused under S.161, Cr.P.C. could not be believed---Belated and retracted confessional statement and recoveries could not prove charge against the accused---Unless substantive or direct evidence was available, conviction could not be based on any other type of evidence no matter how ' convincing such other evidence Wright be---Conviction and sentence of the accused was set aside and he was acquitted of the charges.

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

----Art. 40---Criminal Procedure Code (V of 1898), S.103---Application of S.103, Cr.P.C. and Art.40 of Qanun-e-Shahadat, 1984 to recovery proceedings---Scope---Under Art.40 of the Qanun-e-Shahadat, 1984, the compliance of S.103, Cr.P.C. vis-a-vis attendance of two or more respectable inhabitants was not mandatory where the place of recovery was only in the knowledge of the accused but, where the Investigating Officer knew the. place of recovery before disclosure of such place by the accused, compliance of S.103, Cr.P.C. was compulsory.

Murtaza and 2 others v. The State 1996 PCr.LJ 358 and Hafiz Muhammad Arshad v. The State PLD 2007 Lah. 324 rel.

Muhammad Parvaiz and another v. The State and others 2007 SCMR 370; Muhammad Farooq and another v. The State 2006 SCMR 1707; Mah Gul v. The State 2009 SCMR 4 and Bahader Khan v. The State PLD 1995 SC 336 fol.

Ahmad Ali Khan for Appellant.

Jehanzeb Khan Chughtai and Ghulam Qadir for the State.

Complainant present in Person.

Date of hearing: 10th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1245 #

2011 Y L R 1245

[Peshawar]

Before Syed Sajjad Hassan Shah and Imtiaz Ali, JJ

SAJID KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 486 of 2009, decided on 14th January, 2011.

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

----S. 9(c)---Appreciation of evidence--Benefit of doubt---Witnesses not only made improvements but also contradicted each other, on material points---Contradictions regarding recovery and samples of narcotic substance fatally dented prosecution case--Report of Forensic Science Laboratory falsified the prosecution story by revealing that the Charas was in `brown solid' instead of powder form as asserted by prosecution---Benefit of said doubt could not be withheld from the accused---No evidence was available to establish the link of the accused with the car allegedly carrying the contraband was produced---Prosecution witness's admission regarding presence of the two ladies demolished its case beyond redemption---Prosecution failed to prove conscious possession of narcotics by accused or their control over the vehicle---Commission of the offence by the father and the son jointly could not be believed while the same could have been done by one person alone---Prosecution failed to prove its case beyond reasonable doubt---Appeal was accepted in circumstances---Conviction and sentence of accused was set aside.

2010 SCMR 927; 2020 PCr.LJ 825; 2010 PCr.LJ 360; 1997 SCMR 543; 2005 YLR 605; 2008 SCMR 991; PLD (sic) SC 516; 2010 YLR 561; 2010 PCr.LJ 825 and 2010 YLR 1974 ref.

Noor Alam Khan for Appellants.

Matiullah Baloch for the State.

Date of hearing: 20th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 1300 #

2011 Y L R 1300

[Peshawar]

Before Sher Muhammad Khan, J

HASHIM KHAN and another---Petitioners

Versus

MUHAMMAD JAMEEL and others---Respondents

Civil Revision No.342 of 2007, decided on 3rd December, 2010.

(a) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----S. 3---Limitation Act (IX of 1908), Ss.19, 20(2) & Art.148--Suit for possession through redemption of mortgage---Limitation---Attestation of mortgage mutation on 9-7-1899 and filing of suit on 19-1-2004---Plaintiff's plea that receipt of usufruct of mortgaged land by defendant would be considered as an acknowledgement of mortgage and counted towards payment of mortgage money within meaning of S. 20(2) of Limitation Act, 1908---Validity---Defendant's father had acknowledged mortgage by getting sanction mortgages on 15-7-1925 and 25-9-1942---Defendant in cross-examination had admitted that he himself had not cultivated suit land, but his father had cultivated same---Such admission established that defendant and his father had been receiving usufruct of mortgaged land---Suit was decreed in circumstances.

Kata Amir and another v. Mst. S.H.O. Begum and others 2003 SCMR 589; Muhammad Zaman v. Abdul Malik Khan PLD 1981 SC 526; Zarif Khan v. Muhammad PLD 1983 Pesh. 58 and Amanullah v. Muhammad Ashraf Bajwa 2000 CLC 948 ref.

Nawaz Ali Khan v. Nawab Zada and others PLD 2003 SC 425; Abdul Haq v. Ali Akbar 1998 CLC 129; Muhammad Iqbal and others v. Ghufranullah and others 2002 CLC 1533 and 1999 SCMR 2531 rel.

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

----Art. 31---Admission---No one would make any admission against his interest unless same was true.

Sajid Nawaz Khan Sadozai for Petitioner.

Haji Zafar Iqbal for Respondents.

Date of hearing: 1st November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1311 #

2011 Y L R 1311

[Peshawar]

Before Sher Muhammad Khan, J

FAZAL ELAHI---Appellant

Versus

Chaudhry AKHTAR ALI---Respondent

R.F.A. No.33 of 2009, decided on 17th September, 2010.

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

----O. IX, R. 13----Application for setting aside of ex parte decree--- Defendant's plea that he was not served with summons, whereupon his signatures were fake; and that he cane to know about the decree dated 27-9-2006 four days before filing of such application on 23-11-2006---Validity---Plaintiff had filed two suits against defendant, one for recovery of earnest money and other on basis of pro note-Record showed that defendant had been served in both such cases on same time and date by same Process Server after obtaining his signatures thereon---Report of Process Server was supported by duly sworn affidavits---Defendant had not denied receipt of summons in pro note suit---Process server could not be believed to have obtained defendant's signatures on one summons and affixed forged signatures of defendant on other summons for unknown reason---Defendant while cross-examining plaintiff in pro note suit had put him positive suggestion that his other case (present suit) was pending against defendant in Civil Court--Defendant had been personally served and he had intentionally avoided appearance in court to delay decision of case---Defendant was not entitled to any leniency---Application for setting aside ex parte decree was dismissed in circumstances.

Muhammad Ramzan v. Afridi Variety Center PLD 2005 Pesh. 269; Rahmatullah v. Colonel (R) Muhammad Latif Khan 2005 YLR 3278; Zulfiqar v. Muhammad Jan 2002 CLC 932; Government of N.-W.F.P. v. Messrs Hussain Mir and Company 2010 CLC 295; Sarwar Khan v. Ali Bad Shah and 42 others 2004 YLR 2359; Muhammad Asghar and others v. Qamar Din PLD 2005 Lah. 240; Saifullah and 2 others v. Mst. Kausar Parveen 2006 YLR 526 and Ahmad Khan v. Haji Muhammad Qasim and others 2002 SCMR 664 distinguished.

(b) West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 18---Civil Procedure Code (V of 1908), O. XLI, R. 33---Civil Judge, decree of---Forum of appeal, determination of--Forum of appeal would be determined according to value of suit mentioned in plaint and not according to subject matter awarded in decree by Civil Court---Appeal being continuation of suit, Appellate Court could amend and reverse decree.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 and Mehtab Khan and others v. Faiz Muhammad PLD 2003 Pesh. 46 ref

----S. 14---Approaching wrong forum on advice of counsel-Time spent in such forum not condonable.

Manzur Hussain and 2 others v. Muhammad Ali and another 1989 SCMR 1498; Islam Din v. Allah Nawaz another 1988 SCMR 2; Raj Muhammad v. Mst. Chan Bibi and others 1984 SCMR 1068 and Mian Aizad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003 rel.

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

----S. 6 & O. VII, R. 10---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Limitation Act (IX of 1908), Ss. 5, 14 & Art. 156---Appeal to District Judge against decree of Civil Judge--Return of memorandum of appeal by District Judge for lacking pecuniary jurisdiction after granting ten days to appellant for its presentation before High Court---Appellant's plea before High Court that he had approached wrong forum of District Judge on advice of his counsel; and that he had presented appeal in High Court within ten days granted by District Judge--- Validity--- Forum lacking jurisdiction to adjudicate upon a lis conclusively could not pass any order in respect of any interlocutory, incidental or ancillary matters, and if passed thereto would be of no legal value, sanctity and binding effects---Time consumed in approaching wrong forum on advice of counsel could not be condoned---High Court dismissed appeal in circumstances.

Manzur Hussain and 2 others v. Muhammad Ali and another 1989 SCMR 1498; Islam Din v. Allah Nawaz another 1988 SCMR 02; Raj Muhammad v. Mst. Chan Bibi and others 1984 SCMR 1068 and Mian Aizad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003 rel.

Ahmad Ali Khan for Appellant.

Malik Muhammad Asad for Respondent.

Date of hearing: 23th July, 2010.

YLR 2011 PESHAWAR HIGH COURT 1327 #

2011 Y L R 1327

[Peshawar]

Before Sher Muhammad Khan, J

Mst. WAZIRAN MAI through Legal heirs and 29 others---Petitioners

Versus

RIAZ AHMAD and 3 others----Respondents

Civil Revision Petition No.373 of 2010, decided on 6th December, 2010.

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

-----O. X VIII, R. 17---Qanun-e-Shahadat (10 of 1984), Art. 133---Court witness not cross-examined by either party to proceedings---Effect---Statement of such witness would be deemed to have been admitted by both parties---Principles.

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

---Ss. 8 & 42---Civil Procedure Code (V of 1908) O.I., R.10 & O. XIV, R. 1---Suit for declaration and possession---Preparation of Revenue Record on basis of partition mutation dividing suit Khata into four new Khatas---Reduction of plaintiff's share in suit Khata by giving effect to partition mutation---Plaintiff's prayer for cancelling partition mutation and making good deficiency occurred in his share--Examination of District Qanungo as court witness after conclusion of evidence by parties---Disclosure by such court witness that shares of plaintiff had not been entered into defendant's name, rather had been entered in name of tenants-at-will not party to suit---Appeal against decree passed in plaintiff's favour--Application by defendant to Appellate Court for framing of additional issue regarding effect of non-joining of necessary parties in suit---Application to Appellate Court by another co-owner in suit Khata for impleading him as party in suit---Dismissal of appeal and both such applications by Appellate Court---Validity---Entire suit Khata was owned by numerous persons besides parties to suit and all of them might have been benefited or injuriously affected with partition mutation having created new Khata regarding tenants-at-will---After recording evidence, when new facts were brought on record, then Trial Court was bound to implead in suit all the owners of land in suit Khata and obtain relevant Revenue Record thereof prepared on basis of partition mutation---Trial Court must have directed parties to amend their pleadings for impleading necessary parties and after receiving written statements of newly added defendants must have framed new issues in order to do complete and substantial justice to all the parties concerned---Law would favour adjudication of all the disputed facts on merits after granting opportunity to parties to prove same---Appellate Court was not justified to direct such applicant to file application under S. 12(2), C.P.C., for redressal of his grievance---High Court set aside judgments/decrees of lower courts and remanded case to Trial Court for de novo trial with directions to implead all necessary parties having been benefited or injuriously affected from partition mutation and after obtaining their written statement frame issues in accordance with pleadings of parties regarding reduced shares of plaintiff and his beneficiaries.

Muhammad Yousaf v. Haji Murad Muhammad PLD 2003 SC 184; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad 2008 SCMR 1384 and Messer Mona Lisa Fruit Juice Industry Ltd v. Govt. of Sindh 1988 MLD 9 rel.

Zia-ur-Rehman Qazi for Petitioner.

Ishtiaq Ahmad Lashari for Respondent.

Date of 'hearing: 6th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 1357 #

2011 Y L R 1357

[Peshawar]

Before Sher Muhammad Khan, J

Sheikh GHULAM QASIM through Legal heirs and others---Petitioners

Versus

ABDULLAH KHAN and 3 others----Respondents

Civil Revision No. 1 of 2005, decided on 3rd December, 2010.

(a) North-West Frontier Province Pre-emption Act (XIV of 1950)---

----S. 31---Pre-emption suit---Limitation---Purchase of suit land by vendee through un-registered sale-deed dated 17-6-1977 and consent decree dated 27-3-1979---Filing of suit by pre-emptor on 10-4-1979---Validity---Vendor had sold suit land vide sale deed and delivered its possession to vendee on 17-6-1977---Vendee in a declaratory suit filed against vendor had obtained such consent decree declaring vendee to be owner in possession of suit land---Purchase of suit land and delivery of its possession to vendee on 17-6-1977 through such deed had not been disputed by pre-emptor in plaint---Time for institution of pre-emption suit in case of agricultural land would start running from date of attestation of mutation or delivery of possession, whichever was earlier---Delivery of possession of suit land to vendee on 17-6-1977 was admitted by pre-emptor---Pre-emptor had filed suit on 10-4-1979 beyond one year from taking possession of suit land by vendee on 17-6-1977---Suit was dismissed for being time barred in circumstances.

Govt. of N.-W.F.P. v. Syed Kamal Shah PLD 1986 SC 360; Muhammad Inayat and others v. Mst. Nisar Fatima PLD 1994 SC 120; Sikandar v. Sher Baz 2007 SCMR 1802; Muhammad Akbar and another v. Allah Ditta PLD 1974 Pesh. 51; Abdul Khaliq v. Abdul Ghani PLD 1969 Lah. 249; Muhammad Muzafar Khan v. Muhammad Yousaf Khan PLD 1959 SC (Pak) 9; Shabir Hussain and others v. Muhammad Sharif and others 1987 MLD 73; Muhammad Sharif v. Ghulam Hussain 1995 SCMR 514; Barkhurdar v. Muhammad Razaq PLD 1989 SC 749 and Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima 1987 SCMR 1206 ref.

Sher Muhammad v. Raja PLD 1981 SC 591; Allah Yar v. Raja 1989 SCMR 802; Burkhurdar v. Muhammad Razaq PLD 1989 SC 749; Ghulam Sarwar v. Mazhar Ahmad PLD 1995 SC 677 and Noor Muhammad v. Ahmad PLD 1997 SC 371 rel.

(b) North-West Frontier Province Pre-emption ,Act (XIV of 1950)----

----Ss. 5 & 6---Pre-emption suit---Suit land consisting of 29 Khasra numbers included in one Khata number in Revenue Record---Purchase of some land by vendee before institution of suit out of one suit Khasra number---Effect---Vendee on basis of such purchase would not become co-sharer in entire suit Khata.

Malik Sultan Mahmud v. Muhammad Arshad Khan 1991 SCMR 1542 and Gulzada v. Muhammad Usman PLD 1990 SC 465 ref.

Muhammad Muzafar Khan v. Muhammad Yousaf Khan PLD 1959 SC (Pak) 9; Malik Sultan Mahmud v. Muhammad Arshad Khan 1991 SCMR 1542; Saadullah v. Mohabat PLD 1975 .Pesh. 218; Ahmad Khan v. Sattar Din PLD 1981 SC 148; Bashir Hussain Shah v. Maskeen 1988 SCMR 1251 and Gul Zada v. Muhammad Usman PLD 1990 SC 465 rel.

----Ss. 5 & 6---Pre-emption suit--Death of original pre-emptor before passing of decree in suit---Effect---After death of original pre-emptor, his Legal heirs would have no superior right of pre-emption against vendee---Suit was dismissed in circumstances.

Nazir Hussain v. Mushtaq Ahmad PLD 2010 SC 1048; Muhammad Younas v. Khushal 1989 SCMR 69; Malik Ghulam Nabi and others v. Member Board of Revenue and others PLD 1990 SC 1043 and Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478 rel.

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

----O. XXIII, R. 3---Compromise of suit---Duty of court---Scope---Once compromise was recorded in Court and court was satisfied about its genuineness, then court would be bound to pass decree in accordance therewith---Principles.

Messrs Orient Occident (Pvt.) Ltd. v. Messrs Upaza Commercial Enterprises 2007 MLD 1374 ref.

Malik Muhammad Bashir for Appellants.

Khawaja Nawaz Khan for Respondents.

Date of hearing: 27th October, 2010.

YLR 2011 PESHAWAR HIGH COURT 1397 #

2011 YLR 1397

[Peshawar]

Before Mazhar Alam Khan Miankhel and Imtiaz Ali, JJ

Mst. ZAKIA BEGUM---Petitioner

Versus

NADIR KHAN and 40 others----Respondents

Writ Petition No.112 of 2008, decided on 30th November, 2011.

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

----Ss.135 & 141---Land in joint khata---Entries in column of ownership and cultivation---Legal status---Vendee of specific Khasra number of joint Khata, rights of---Extent stated.

The entries of a joint owner in possession of certain Khasra numbers in the column of cultivation have got all the legal sanctity and also preference over the other co-owners as the said owner is in possession of the specific Khasra number in the joint Khata. Besides the entries in the column of ownership, such an owner is also recorded as owner in possession "Hissadar Malik Qabiz" in the column of cultivation. Such entries in the column of cultivation are to be respected and the person acquiring ownership rights in specific khasra numbers of joint Khasra with entries in his name in the column of cultivation is joint owner for all intents and purposes. Vendee of such a joint owner will step into the shoes of his vendor and will have all the rights in the property, which his vendor had at the time of sale. At the time of partition of said joint Khata wherein such property is situated, vendee of such property has got every right to protect possession of his specific Khasra numbers given to him at the time of sale.

A vendee of specific Khasra number in the joint Khata is a joint owner for all intents and purposes and will enjoy all the rights in the property, which his vendor had in the property. At the time of partition of such property, the vendee would not be required to first transpose his name in the column of ownership and then claim partition. If there is a title dispute, then in that case under section 141 of West Pakistan Land Revenue Act, 1967, the Revenue Officer prior to partition of the property can refer the parties for determination of their dispute of title from a competent court or he himself can proceed to determine such dispute of title as if he was such a court.

Muhammad Muzzafar Khan's case PLD 1959 SC (Pak) Page 9 rel.

Altaf Ahmad for Petitioner.

Muhammad Ijaz Khan for Respondents.

Date of hearing: 30th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1462 #

2011 YLR 1462

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

MUHAMMADI KHAN---Petitioner

Versus

FAZAL MUHAMAMD and 10 others----Respondents

Writ Petition No. 950 of 2004, decided on 11th November, 2010.

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

----Art.129(e)---Judicial record got presumption of its correctness and admissibility---High Court could take judicial notice of the same.

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

----O.XX, R.14---Decree in pre-emption suit---Pre-emption money, deposit of---Scope---Pre-emptor could not deposit such money after a date specified in decree.

Nazir Muhammad for Petitioner.

Mian Muhammad Younas Shah for Respondents.

Date of hearing: 11th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1479 #

2011 Y L R 1479

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

HUSSAIN SHAH and others---Petitioners

Versus

AKBAR SHAH and others----Respondents

Civil Revision No. 663 of 2010, decided on 17th January, 2011.

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

----O. VI, R. 1---Pleadings---Defendant could not deviate from pleadings by setting up a new defence in evidence---Credibility of plaintiff's witnesses could not be effectively doubted without confronting them with such new defence by affording them proper opportunity to explain position---Principles.

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

----S. 1154--Concurrent findings of fact by courts below---Re visional jurisdiction of High Court---Scope---High Court could interfere with such findings, if same were found to be perverse, arbitrary or fanciful.

Bhika Mal and others v. Puran Mal and others AIR 1923 Lah. 123; Mt. Ramjhari Kuer and others v. Deyanand Singh and others AIR 1946 Patna 278; Rahim Bukhsh v. Nathu Bibi and others PLD 1951 Pesh. 61; Adalat Khan v. Mst. Begum Bibi through legal heirs and another 1991 SCMR 1381; Din Muhammad and another v. Subedar Muhammad Zamanl 2001 SCMR 1992; Nawab Ali v. Sardar Ali 2007 YLR 1794 and Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others 2008 SCMR 1702 ref.

Muhammad Akbar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

----S.115 & O.XLI, R.23---Revision---Findings of courts below being silent on material evidence on record---Validity---High Court in such case could not give any finding in exercise of revisional jurisdiction---Remand of case had become inevitable---High Court set aside impugned judgments and decree and remanded case to Trial Court for decision afresh.

Khalid Mehmood for Petitioners.

Javed Ali for Respondent No.2.

YLR 2011 PESHAWAR HIGH COURT 1488 #

2011 Y L R 1488

[Peshawar]

Before Attaullah Khan, J

RASHEED KHAN---Petitioner

Versus

MISAL KHAN----Respondent

Civil Revision No.277 of 2005, decided on 20th December, 2010.

North-West Frontier Province Pre-emption Act (IX of 1987)---

----Ss. 13 & 14---Pre-emption suit---Talb-i-Muwathibat, performance of---Appearance of Special Attorney as witness instead of pre-emptor due to his inability to appear in court and give statement---Statement of Special Attorney to the effect that pre-emptor and two witnesses went to suit-land and performed such Talb---Validity---Nothing was available on record to show that pre-emptor was infact physically or mentally unable to appear in court as his own witness---Special Attorney had not produced medical certificate or oral evidence to prove such inability of preemptor---Right of pre-emption was in nature of special personal right---Attorney of pre-emption could not legally prove such Talb on behalf of pre-emtpor---Such Talb required to be performed by preemtpor personally which had not been performed---Special Attorney having stepped into shoes of pre-emptor, though required to disclose date, time and place of making ,such Talb, had failed to do so---Pre-emptor had failed to prove such Talb---Suit was dismissed in circumstances.

2005 CLC 325 and 2007 SCMR 1344 rel.

Rustam Khan Kundi for Petitioner.

Sarwar Khan Kundi for Respondent.

Date of hearing: 20th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 1523 #

2011 Y L R 1523

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD ZUBAIR---Petitioner

Versus

ADALAT KHAN and others---Respondents

Civil Revision No.479 of 2007, decided on 13th December, 2010.

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

---S. 42---Suit for declaration---Plaintiff had claimed himself to be the owner in possession of suit property since his forefathers---Plaintiff had also claimed prescriptive title through adverse possession---Both the Trial Court and Appellate Court had concurrently dismissed suit of plaintiff, plaintiff was to prove through cogent and reliable evidence regarding his claim to shatter the evidence available on the record in the name of defendants in the shape of revenue record prepared after due diligence during the first ever settlement---Entire evidence of the plaintiff, was not credible, which could be accepted against the entries made in the revenue record of the Settlement Officers--Presumption of truth was always available to the entries made in the record of rights, though same was rebuttable, but the first ever settlement record had got a precedence over the general principle---Entries were made by the Settlement Officers on the basis of evidence produced by the parties regarding their entitlement---Very strong and authentic evidence was required to rebut such presumption of correctness attached to the first settlement in the area---Concurrent findings of fact in absence of any misreading or non-reading of evidence, could not be interfered with, when counsel for the plaintiff was unable to refer any such misreading or non-reading of evidence or any unlawful exercise of jurisdiction by the courts below which could have been made a room for interference.?

Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840 ref.

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

----S. 115---Re visional jurisdiction---Scope---High Court had a very limited jurisdiction and could only interfere when the courts below had failed to appreciate the evidence in its true perspective; or there was any jurisdictional defect in exercise of jurisdiction vested in the courts below.?

Roohul Amin for Petitioners.

Raheem Shah for Respondents No.80 to 83.

Date of hearing: 13th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 1535 #

2011 YLR 1535

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

Mst. NAYYAR NAHEED---Petitioner

Versus

Malik ZAHEER ULLAH and 2 others---Respondents

Writ Petition No.213 of 2005, decided on 3rd February, 2011.

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

----Ss. 13(2)(i) & 13(5-B)---Ejectment of tenant on ground of default in payment of rent---Tenant could not be termed as a defaulter under the law as he at the very outset had categorically admitted his liability and willingness to pay the rent.

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

---- S.13 (2) (vi) (4), (5-B)---Ejectment of tenant on ground, of reconstruction of premises---Safeguard to the tenant---Old construction and poor condition of the shop in question had been admitted by the tenant himself---Landlady raised the plea of reconstruction on the strength of notice issued by Municipal Corporation for demolition of the shop being dilapidated and old one---Attorney of the landlady asserted that very fact in his statement and tenant failed to cross-examine him on that point---Approval of reconstruction and approval of plan, though was not annexed with the ejectment petition, but same were produced during the proceedings---Production of such record during the proceedings, could not be held to be a ground for denial of right of landlady to reconstruct or improve her property; as no one could be deprived of enjoying his/her property by making improvement in the same---Law had safeguarded the right of a tenant under S.13(5-B) of West Pakistan Urban Rent Restriction Ordinance, 1959 against a landlord/landlady who had acted with mala fide and tenant in that case could apply to the Rent Controller for an order directing that he be put in possession.

Aziz-ur-Rehman v. Perviaz Shah and others 1997 SCMR 1819 and Qamar Din v. Mst. K. Taleh Begum 1980 SCMR 516 ref.

----S. 13(3)(a)(ii)(4)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant from shop on ground of personal bona fide need---Safeguard ,to tenant---Landlady sought ejectment of tenant from rented shop on her bona fide need to run her own `business (boutique)' in the shop---Nothing was on record suggesting, that landlady would not be able to run her own business, Merely because there were male shop keepers and customers---Landlady had provided a list of different shops in the area, which had revealed that Bazar in question was a ladies shopping area; and just opposite to it, across the road, was "Meena Bazar"---In both said Bazars, many shops were run by .the ladies as boutiques, beauty parlours, cosmetics etc.---Findings of the Appellate Court were not based on sound reasons---Landlady could not be refused possession of shop on flimsy reasons, when otherwise, she had proved genuineness of her requirement in good faith---Landlady had proved on record that the business she wanted to run, was suitable with all its probabilities in the locality---Statement of landlady on oath, if was consistent with the application for ejectment and was not shaken in cross-examination, was sufficient to establish her bona fide requirement---If after vacation of the shop by the tenant, landlady would fail to start her own business, rights of the tenant were very much protected under S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959; and he could be put into possession---Findings of the Appellate Court were not based on the evidence available on the record---Appearance through attorney also would not be a justification for an adverse inference---Evidence and the law on the subject having not been appreciated in its true perspective, findings of Appellate Court on the issue, being not maintainable were set aside in circumstances---Petition was allowed.

1998 CLC 1825 and PLD 1995 Lah. 469 ref.

Muhammad Shoaib Khan for Petitioner.

Asif Faishuddin Wardag for Respondent.

Date of hearing: 2nd February, 2011.

YLR 2011 PESHAWAR HIGH COURT 1559 #

2011 Y L R 1559

[Peshawar]

Before Muhammad Safdar Khan Sikandri and Sher Muhammad Khan, JJ

ALI MUHAMMAD JAN through legal heirs---Appellant

Versus

Mst. SURIYA BEGUM and 6 others----Respondents

R.F.A. No.1 of 2005, decided on 8th June, 2010.

Civil Procedure Code (V of 1908)---

----O.VII, R.2 & O.XLI, R.1---Suit for recovery of amount---Appeal against original judgment and decree---Competence---Trial Court decreed the suit---Daughter of deceased plaintiff who was equally a necessary party like other respondents in appeal filed by the defendants, was not impleaded as necessary party in appeal after period of limitation, which had rendered appeal incompetent---Appeal to the extent of respondent/daughter, was not only time-barred, but had also rendered the appeal against other respondents incompetent---On merits also the Trial Court, had rightly appreciated the evidence of the parties and decided all issues in the light of evidence recorded during trial and relevant provisions of law---Appeal was dismissed.

2001 MLD 1964; PLD 1988 SC (AJ&K) 156 and PLD 1982 SC 46 rel.

Muhammad Ayyaz Khan Qasuria and S. Saeed Hussain Shah Sherazi for Appellant.

Muhammad Anwar Awan for Respondents.

Date of hearing: 8th June, 2010.

YLR 2011 PESHAWAR HIGH COURT 1600 #

2011 Y L R 1600

[Peshawar]

Before Attaullah Khan, J

ASMATULLAH and 5 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5 of 2011, decided on 28th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.382/506/148/149---Theft after preparation made for causing death, hurt or restraint, criminal intimidation---Quashing of F.I.R., petition for---Scope---Generally, the proceedings could be quashed under S.561-A, Cr.P.C., only in cases which either did not disclose the commission of any offence or that the prosecution could not result in conviction of accused---Where the prosecution case was based on the evidence disclosing the commission of offence, then it was the right of prosecution to get an opportunity for proving the allegations---High Court, is such like cases, was not to interfere, as that would amount to interruption of ordinary course of law in criminal proceedings---High Court could only quash criminal cases when the case was of no evidence or the registration of case was proved to be mala fide, or the case was of civil nature, or there was serious jurisdictional defect; or where there was unreasonable delay in the disposal of case---None of those grounds was available in the present case---Investigation in the case was in progress and it was yet to be seen whether the evidence was deficient---At the moment, no mala fide had been established on the part of the complainant for registration of case---If High Court quashed the F.I.R. at that moment, same would amount to taking over the function of investigation agency, which was neither permissible under the law nor would be in the interest of justice---Petitioners/accused should face the proceedings and at any time if they would find that evidence was lacking and discover any other reason entitling for acquittal or discharge, they could move the Police or the court.

2004 SCMR 1892 ref.

H. Mirza Ali Khan for Petitioner.

Hashmat-ur-Rehman for the State.

Muhammad Ilyas Khan Marwat for Respondent No.2.

Date of hearing: 28th March, 2011.

YLR 2011 PESHAWAR HIGH COURT 1611 #

2011 Y L R 1611

[Peshawar]

Before Attaullah Khan, J

NEEL SHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.108 of 2011, decided on 25th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149--- Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---F.I.R. was promptly lodged wherein accused was directly charged for effective firing which resulted into the killing of the deceased---Accused remained absconder for about 7/8 years with no plausible explanation--- Abscondence simpliciter though could not be made a ground for refusal of bail, if otherwise the case was fit for bail, but in the present case other materials were available on record which had reasonably connected the accused with the commission of the offence---Some five persons were charged for effective firing in the F.I.R. and no body was specified, but that would not alone make the case of accused arguable for the purpose of bail being a matter to be thrashed out at the trial---Question of vicarious liability would also be adjudged at trial---Plea of acquittal of co-accused was also of no avail to accused because appeal thereagainst was sub judice before High Court---Accused was reasonably linked with commission of offence which carried a capital punishment---Bail application of accused was dismissed in circumstances.

2001 YLR 815; 2001 YLR 2896; 2010 PCr.LJ 340; 1985 SCMR 382 and Awal Khan v. Zawar Gul PLD 1985 SC 402 ref.

Muhammad Ghazanfar Ali for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Saifur Rehman Khan for the Complainant.

Date of hearing: 25th March, 2011.

YLR 2011 PESHAWAR HIGH COURT 1636 #

2011 Y L R 1636

[Peshawar]

Before Attaullah Khan, J

RAHEEM KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 120 of 2011, decided on 11th April, 2011.

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---Delay of 19/20 hours in lodging F.I.R., was not reasonably explained, which had made case of accused arguable for the purpose of bail because there seemed chances of consultation---No empty was recovered from the spot, despite the fact that according to the record number of injuries were caused to the deceased---F.I.R., showed that deceased was also fugitive from law which had also made case of accused as arguable for the purpose of bail---Statement of nine persons were recorded by the Police, who all had disclosed that accused was not present at the spot, but was present in the Mosque for offering prayer at the relevant time---Investigating Officer had also given same opinion---Police opinion though was not binding upon the court, but it could be taken into consideration in the matter of bail---Case of accused was different from other co-accused as they were absconders and had not surrendered before the Police---Case against accused requiring further inquiry into his guilt, he was admitted to bail, in circumstances.

Noman Gul for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 11th April, 2011.

YLR 2011 PESHAWAR HIGH COURT 1652 #

2011 Y L R 1652

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MAHMOOD---Applicant

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Bail Application No. 1922 of 2010, decided on 14th March, 2011.

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, refusal of---Accused along with his other two co-accused was directly charged in promptly lodged F.I.R. for committing the murder of deceased---Blood stained earth and recovery of empties was also effected from the spot; and the post mortem report had supported the version of the prosecution---Available record on the file would prima facie suggest the involvement of accused with the commission of offence---Plea of alibi raised by accused, no doubt, could be considered at bail stage and same could well be accepted even in the case of capital punishment, if peculiar facts and circumstances of the case so justify---Accused had raised a plea of his innocence, but without prejudice to any body, same was not of the nature that should be accepted as it was---Such plea would require its appreciation by the Trial Court which would decide its genuineness---Accused raised plea of old-age---Mere old age of accused was not a sufficient grounds for release of accused on bail---Case of infirm and sick persons could be considered for the purpose of bail, whereas case of the accused was silent in that regard and nothing of the sort had been brought on the record---Case of accused being not fit for his release on bail, his bail application was dismissed, in circumstances.

Khan Akbar Khan for Applicant.

Ubaid Razzak Khan, A.A.-G. for the State.

Muhammad Saleem Khan for the Complainant.

Date of hearing: 14th March, 2011.

YLR 2011 PESHAWAR HIGH COURT 1664 #

2011 Y L R 1664

[Peshawar]

Before Dost Muhammad Khan and Yahya Afridi, JJ

PASAND KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.330 and M.R. No.16 of 2009, decided on 8th February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/337-H/337-F(ii)---Qatl-e-amd, causing hurt by rash or negligent act and causing badli'ah---Appreciation of evidence---Benefit of doubt---Complainant who was a sitting DSP of the area, had made certain improvements and also omitted certain facts attempting to reconcile certain self-clashing facts brought on record---Prosecution witness also made dishonest improvements while deposing at the trial and made radical departure from his statement given under S.161, Cr.P.C.---Medical evidence had fully contradicted the ocular account---Such circumstances had exposed the ocular account to a serious debate---Both the so-called eye-witnesses had told lies albeit knowing well that they were under oath; they made crude attempts to conceal/suppress established facts on record---Dishonest suppression of facts fully established on record would adversely reflect upon the veracity of testimony of witnesses---Locale and site of injuries on the dead body would strongly suggest that it was a job of a single person, but three real brothers had been charged for effectively firing at the deceased---Incident was a day-light occurrence and the complainant who was a highly experienced senior Police Officer, was supposed to know about the weapons possessed by accused, but he omitted to give the description of the crime weapons possessed by accused---Such glaring omission spoke volumes about the fact that the complainant was not at all present on the spot at the fateful time---Complainant was a sitting DSP of the area and in all probabilities he must have exerted influence over his subordinate Investigating Officer for falsely planting the rifle against accused which possibility could not be altogether ruled out---Transaction of the rifle and empties to the expert had also not been proved to have taken place in a safe and secured manner---Opinion of the Arms Expert, in circumstances had lost its legal worth---Inference could be that undue favours were shown to the complainant party under the influence of the complainant who was a serving DSP of the District where the crime was committed---Deceased was having to his credit a long criminal history and had earned many enmities in the area as he was involved in serious crime, many people must be after his blood---Possibility that he was killed by someone else when he was found all alone could not be ruled out---Ocular account was of highly doubtful veracity---Both the eye-witnesses were highly inimical towards accused---Testimony of said witnesses needed strong independent corroboration, which was absent in the case---Recovery of gun and the Arms Expert's opinion, both were highly doubtful; and of no judicial efficacy to be relied upon while motive was double-edged weapon which would cut both ways; it would be highly unsafe to maintain the conviction and sentences of accused in view of the principles of safe administration of justice---Extending benefit of doubt, impugned judgment of the Trial Court was set aside, accused was acquitted of all the charges and was set free.

Nawaz Ali and another v. The State 1981 SCMR 132; Muhammad Zaman and another v. The State PLD 1993 Pesh. 13; Abdul Subhan v. Rahim Bakhsh and another PLD 1994 SC 178; Zar Shad v. Bahadur Khan and another 1972 SCMR 644; Kamal Din and 2 others v. Muhammad Sharif and others 1987 SCMR 1264; Farman and others v. The State PLD 1980 SC 201 and Mushtaq Ahmad v. The State 1990 SCMR 405 ref.

Ghulam Mohy-ud-Din Malik and Javed A. Khan for Appellant.

Alamgir Khan Durrani, D.A.-G. for the State.

Khawaja Muhammad Khan Gara for the Complainant.

Date of hearing: 8th February, 2011.

YLR 2011 PESHAWAR HIGH COURT 1671 #

2011 Y L R 1671

[Peshawar]

Before Mian Fasih-ud-Mulk, J

SIRAJ KHAN and other---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.105 of 2011, decided on 11th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---West Pakistan Arms Ordinance (XX of 1965), S.13---Possession, import, export and trafficking of narcotics---Bail, grant of---Earlier bail application filed by accused was dismissed by the High Court with direction to the Trial Court to conclude the trial of the case within shortest possible time, but not later than two months---Despite said direction of High Court, trial against accused had not commenced---Said delay could not be attributed to accused, because he had availed his legal right by submitting application for determination of his age; it was the duty of prosecution to get determined age of accused at investigation stage, but prima facie it appeared that prosecution had intentionally avoided getting the age of accused determined---Prosecution had failed to advance any reason for non-compliance of the direction of High Court---Whenever a specific direction was issued by a superior court, same must be acted upon, or at least some efforts towards achieving that object, must appear to have been made---No measures, in the case were taken for faithful compliance of court's direction, which constituted a sufficient ground for enlargement of accused on bail---Even otherwise there was no likelihood of conclusion of trial in near future---Case for bail on fresh ground was made out in favour of accused being Juvenile Offender---Accused, was admitted to bail, in circumstances.

1997 SCMR 436; 1999 SCMR 2147; 2003 MLD 1504; 2009 PCr.LJ 47; 2011 YLR 341 and 2006 SC 1805 ref.

Noor Alam Khan and Masoodur Rehman Tanoli for Applicants.

Tariq Khan Kakar and Muhammad Arshad Awan, D.A.-G. for Respondents.

Date of hearing: 11th April, 2011.

YLR 2011 PESHAWAR HIGH COURT 1686 #

2011 Y L R 1686

[Peshawar]

Before Syed Sajjad Hassan Shah, J

KHIZAR HAYAT and others---Petitioners

Versus

JEHANGIR KHAN MARWAT and another----Respondents

Criminal Miscellaneous Bail Applications Nos.23 34, 52 and 65 of 2011, decided on 21st February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409/420/468/477-A---Criminal breach of trust, cheating, forgery for purpose of cheating and falsification of accounts---Bail, refusal of---One of accused persons, who was Chief Manager of Bank had contended that fraud and misappropriation had been committed by the subordinate staff of the Bank---Even if contention of accused was true, by no stretch of imagination, it could be said that said accused was not in the knowledge of the defalcation of huge amount which run in millions, as it was not the business of a day, but spread over a period of three months---Affidavits, Bank record pertaining to the account holders, undertakings, indemnity and other available record, had prima facie connected the accused persons with the crime and they being officers could not absolve themselves from the duties laid on their shoulders by rules and regulations of the Bank---Huge amount involved in the case had been utilized by accused---Account holders were deprived of their profits on their savings---Public Exchequer had also sustained loss---Account holders, on account of such breach, suffered and lost faith and confidence in the banking system---Record did not suggest that proceedings initiated against accused were either mala fide or without jurisdiction---Accused were named in the F.I.R. with specific role attributed to them---Substantial evidence in support of allegations against accused had been collected by the prosecution which had shown that reasonable grounds existed to believe that accused were guilty of the offence alleged to have been committed by them, majority whereof fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused being not entitled to the concession of bail, their bail applications were dismissed.

1995 PCr.LJ 430 and Imtiaz Ahmad and another v. The State PLD 1997 SC 545 ref.

Ghazanfar Ali, Nasrullah Khan and Zia-ur-Rehman Qazi for Petitioners.

Jehanzeb Ahmad Chughtai for the State.

Gohar Rehman and Muhammad Aslam Khan for the Complainant.

Date of hearing: 21st February, 2011.

YLR 2011 PESHAWAR HIGH COURT 1702 #

2011 Y L R 1702

[Peshawar]

Before Attaullah Khan, J

Haji IMAM DIN---Appellant

Versus

CHAIRMAN, WAPDA and 7 others---Respondents

F.A.O. No.1 of 2010, decided on 28th March, 2011.

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

----O. XXXIX, Rr.1, 2, O. XLI, R.1---Electricity Act (IX of 1910), Ss. 24 & 54-C---Specific Relief Act (I of 1877), S.42---Suit for declaration---Temporary injunction---Trial Court granted temporary injunction, subject to deposit of disputed amount within thirty days---Plaintiff had filed appeal against said order of the Trial Court---No irreparable loss would be caused to the plaintiff because it was a money matter and could be measured in terms of money---Plaintiff was bound to comply with the provisions of S.54-C of the Electricity Act, 1910---Defendants were not required to give notice under S.24 of Electricity Act, 1910---Plaintiff had got no prima facie case, he would not also suffer irreparable loss; and the balance of inconvenience was also not in his favour---Impugned order was based on correct legal footings and needed no inter-ference, which was upheld, accordingly.

PLD 2000 Pesh. 4; Mst. Raisa Bibi v. The Sub-Divisional Officer (E) Wapda Operation Sub-Division Mansehra and 2 others PLD 1990 Pesh. 105; WAPDA v. Muhammad Fayyaz Butt 1999 MLD 2731 and WAPDA v. Messrs Kashmiri Steel Furnance alias T.I. Steel Furnance, Bund Road Rawalpindi 1999 CLC 492 ref.

(b) Electricity Act (IX of 1910)---

----S. 54-C---Discontinuation of supply of electricity---Jurisdiction of court---Jurisdiction of civil court was barred under S.54-C of Electricity Act, 1910 and no court would make an order prohibiting the discontinuation of supply of electricity, but according to Proviso thereof, if the disputed amount was deposited with the court within a period of thirty days, order prohibiting the disconnection could be made.

----S. 24---Disconnection of power---Issuance of notice---Scope---Licensee under S.24 of Electricity Act, 1910, was bound to give notice of not less than seven days to the consumer for disconnection of power.

Ehsanaul Haq Malik for Appellant.

Arif Rahim for Respondent.

Date of hearing: 28th March, 2011.

YLR 2011 PESHAWAR HIGH COURT 1717 #

2011 Y L R 1717

[Peshawar]

Before Attaullah Khan, J

INAYATULLAH KHAN---Petitioner

Versus

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY, ISLAMABAD

and 11 others ---Respondents

Civil Revision Petition No.120 and Civil Miscellaneous No. 67 of 2011, decided on 25th March, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42, 54, 55 & 56---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Suit for declaration, permanent, prohibitory and mandatory injunction---Temporary injunction, grant of---Scope and essentials---For grant of temporary injunction, three ingredients were necessary to be proved by the plaintiff, which included a prima facie good case, irreparable loss and balance of convenience---All said three ingredients were not available in the present case---Injunction could not be granted under S.56(d) of the Specific Relief Act, 1877 when it related to interference with the public duties of the Government---Mere filing of declaratory suit and application, would not entitle the plaintiff/applicant for issuance of status quo order from the court; it was to be proved that, if act was not stayed same would cause damage---Nothing was on record to establish such factum---Balance of inconvenience also did not lie in favour of the plaintiff/the applicant for granting status quo order---For determination of all the three factors, conduct of the parties and facts of suit were to be kept in mind---Aim of grant of stay should be to prevent recurrence of a future injury, if any---Plaintiff had failed to prove any illegality or irregularity in the impugned judgments, orders of the lower courts---Judgments/orders of the courts below were maintained by High Court, in circumstances.

Noor Gula Khan Marwat for Petitioner.

Nemo for Respondents.

Date of hearing: 25th March, 2011.

YLR 2011 PESHAWAR HIGH COURT 1731 #

2011 Y L R 1731

[Peshawar]

Before Attaullah Khan, J

OBAIDULLAH KHAN---Petitioner

Versus

UMER HAYAT KHAN and another---Respondents

Civil Revision Petition No.333 of 2005, decided on 28th March, 2011.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 12 & 13---Oaths Act (X of 1873), S.5---Civil Procedure Code (V of 1908), S.115---Suit for pre-emption---Waiving right of pre-emption---Trial Court dismissed suit filed by the pre-emptor and appeal against judgment of Trial Court was dismissed by the Appellate Court---Concurrent judgments and decrees passed by both courts below had been objected to on the grounds that statements of witnesses of defendants had been recorded by the Trial Court without administering oath to them which was violation of Oaths Act, 1873; and that court had no option but to record the statement of witness after administering oath or affirmation---Validity---Court was duty bound to administer oath to witness---If the court would examine the witness without administering oath, that would reflect adversely on the evidence---Best way was to remand such like case to the court concerned for recording evidence of the witnesses---When oath was not administered to witnesses, omission committed by Judge or court should not prejudice any of the parties---Omission to administer oath to a witness, would amount to an illegality which could not be cured---Evidence of four witnesses in the case having been recorded without administering oath, their evidence had become inadmissible and also would amount to illegality--- Impugned judgments/decrees of the two courts below were set aside and case was remanded to the Trial Court with direction to administer oath to the four witnesses of the defendants and decide the case after hearing arguments of the counsel of the parties, within three months.

Nasrullah Khan for Petitioner.

Asghar Nawaz Khan for Respondent.

Date of hearing: 28th March, 2011.

YLR 2011 PESHAWAR HIGH COURT 1746 #

2011 Y L R 1746

[Peshawar]

Before Syed Sajjad Hassan Shah, J

NOOR ULLAH and others---Appellants

Versus

JEHANGIR KHAN and others---Respondents

R.F.A. No.233 of 2007, decided on 29th October, 2010.

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

----O.XIV, R.1---Framing of issues by Court---Duty of parties---Scope---Parties to suit must be vigilant at time of framing of issues by court and get framed all relevant issues arising out of pleadings.

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

----O.XLI, Rr.24 & 25---Provisions of O.XLI, Rr. 24 & 25, C.P.C.---Scope---Wisdom behind such provisions being to minimize possible hardship to litigants and avoid unnecessary delay in disposal of cases.

Anwar Ahmed v. Mst. Nafis Bano through Legal heirs 2005 SCMR 152 ref.

----Ss.12 & 42---Transfer of Property Act (IV of 1882), S.53-A---Registration Act (XVI of 1908), S.50---Suit for declaration of title on basis of unregistered sale-deed---Maintainability---Alternate relief of specific performance of such deed introduced by amendment of plaint---Validity---Plaintiff had remedy to file suit for specific performance of such deed as its part performance had been made by receiving sale consideration, execution of such deed and delivery of possession of suit property---Plaintiff's right to seek specific performance of such deed was not barred by any law---Plaintiff had filed suit in accordance with law.

Javaid Iqbal v. Abdul Aziz PLD 2006 SC 66; Fazla v. Mehr Din and 2 others 1997 SCMR 837 and Muhammad Akram alias Raja v. Muhammad Ishaque 2004 SCMR 1130-1131 rel.

Gul Sadber Khan for Appellants.

Attaullah Khan Tangi for Respondent.

Date of hearing: 23rd September, 2010.

YLR 2011 PESHAWAR HIGH COURT 1907 #

2011 Y L R 1907

[Peshawar]

Before Attaullah Khan, J

ZARKIM KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.438 of 2010, decided on 22nd November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Delay in lodging F.I.R. stood explained---Six persons had been charged in the F.I.R., but the role of accused was different as he had been given effective role of firing at the deceased, with which deceased got injured and succumbed to his injury---Single injury was on the body of deceased which had supported the allegation against accused to the effect that he had fired at the deceased with which he got injured---Medical evidence, in circumstances, supported the prosecution case regarding the involvement of accused in the case---Contention that accused was incapable because of specific disease, was of no avail because no medical record was available on file in that connection---Accused was hardened criminal as many F.I.Rs. were lodged against accused under different sections of law---Accused being not entitled to concession of bail, his bail application was refused.

2007 PCr.LJ 1274 ref.

Abdul Latif Khan Baloch for Appellant.

Sanaullah Shamim D.A.-G. for the State.

Muhammad Ashraf Khan Marwat for the Complainant.

Date of hearing: 22nd November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1932 #

2011 Y L R 1932

[Peshawar]

Before Attaullah Khan, J

NAZA MIR---Petitioner

Versus

ADAM JAN and 2 others---Respondents

Criminal Miscellaneous Bail Cancellation Petition No. 443 of 2010, decided on 8th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324 & 34---Attempt to commit qatl-e-amd, acts done by several persons in furtherance of common intention---Bail, cancellation of---Application for---Material available on record brought the case of the accused within ambit of further inquiry entitling them to the concession of bail---Complainant having not mentioned the source of light, identification of accused was not possible in midnight occurrence---F.I.R. was lodged by delay of 7-1/2 hours---No recovery was made from the place of occurrence---Site-plan was not consistent with the F.I.R.---No incriminating article was recovered on pointation of accused---Impugned order granting bail was neither capricious nor fanciful warranting interference of High Court---Considerations for grant of bail and cancellation of bail were quite different---Once bail had been granted by a competent court the same could not be recalled unless the accused had misused the concession of bail or had tampered with the investigation process---Neither accused misused the concession of bail nor any fresh incriminating material estab-lishing the guilt of the accused emerged during investigation---Application for cancellation of bail was dismissed in limine.

Sarwar Khan Kundi for Petitioner.

Nemo for Respondents.

Date of hearing: 8th November, 2010.

YLR 2011 PESHAWAR HIGH COURT 1965 #

2011 Y L R 1965

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan, JJ

Mst. MIR SHAHBANO---Appellant

Versus

AHMAD KHAN and 3 others---Respondents

Criminal Appeal No.140 of 2005, decided on 3rd March, 2011.

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

----Ss. 302/148/149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd---Appeal against acquittal---Appreciation of evidence---Case of prosecution rested upon a solitary witness, who being mother of deceased, was closely related to deceased---Evidence of said lady witness needed corroboration from independent source, which was missing in the case---Not only presence of the witness at the place of occurrence was doubtful, but her statement was contradictory with the medical evidence---Medical report totally negated the number of fire shots attributed by complainant to accused, which did not tally with the number of injuries on the body of deceased---Medical evidence had totally contradicted the ocular version in the case---Not a single empty had been recovered from the spot, in spite of the fact that on same day the Investigating Officer inspected the spot---Non-recovery of empties also had created doubts---Time of making report was incorrect and had contradicted the ocular version of prosecution witness---Certain improvements had been made by complainant in her evidence in order to bring the case in line with circumstances, which had caused serious doubts---Motive, which was shown to be blood feud enmity, had not been proved at all in the evidence of the prosecution---Mere abscondence of accused, was not sufficient to connect accused with the commission of offence; and same could not be taken into consideration in isolation when other reliable evidence was not available---Case against accused being full of doubts, benefit of such doubts should go to accused---No case was made out by appellants for reversal of impugned acquittal of accused persons---In absence of any strong reason to reverse judgment/ order of the Trial Court, acquitting accused, appeal against acquittal was dismissed.

2009 SCMR 1382; Shahbaz Khan Jakhrani's case 1984 SCMR 42; Muhammad Shafique Ahmed's case PLD 1981 SC 472; Ali's case PLD 1973 SC 321; Darey Khan's case 1972 SCMR 578; Shah Bakhsh's case 1990 SCMR 158 and 2009 SCMR 230 ref.

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

----Ss.302/148/149--Qatle-e-amd---Motive--Normally motive was of no avail and in certain cases which were motiveless, conviction could be recorded---Once motive was alleged by complainant in report, same must be proved, and in case of failure, the benefit must go to the accused.

----Ss. 302/148/149--- Qatl-e-amd---Abscondence---Abscondence could be considered as corroborative piece of evidence and a circumstance against an accused.

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

----S. 417---Appeal against acquittal---Principles---Presumption of innocence---Presumption of innocence was attached to every accused, but after acquittal, accused was clothed with double presumption of innocence---Principle laid down in connection with appeal against acquittal, were different, from appeal against conviction---Different parameters were applied for interference in an appeal against the acquittal and appeal against conviction---Appellate Court would not interfere, unless conclusion reached by courts below was not supported by evidence on record---Principles.

2009 SCMR 946; 2011 PCr.LJ 357 and PLD 2003 SC 14 ref.

Akhtar Saeed Khan for Appellant.

Saleem Ullah Khan Ranazai for Respondent.

Jahanzeb Ahmad Chaghtai for the State.

Date of hearing: 3rd March, 2011.

YLR 2011 PESHAWAR HIGH COURT 2188 #

2011 Y L R 2188

[Peshawar]

Before Syed Sajjad Hassan Shah, J

GHULAM FARID and 2 others---Petitioners

Versus

Mst. HAMIDA BIBI and 2 others---Respondents

Civil Revision No.121 of 2007, decided on 6th May, 2011.

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

----Ss. 11---Res judicata---Purpose---When a judgment was passed inter parties, same would prevent the filing of a fresh suit regarding the same matter---Purpose lying behind S.11, C.P.C. was that justice required that every cause should be tried once fairly and conclusively and it must be made effective with regard to the disputes arising in future, so that the public tranquillity and conclusive end of certain litigation must be achieved having the binding effect on the parties to the Us; otherwise there would be no end to litigation.

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

----Art. 114---Estoppel---Object--Provisions of Art.114 of Qanun-e-Shahadat, 1984, prevented the litigant from raising inconsistent thing in subsequently instituted proceedings---Litigant could not blow hot and cold at the same time--Approbation and reprobation being not permissible in the legal proceedings, the litigant could not deviate from his previous stance.

Gadoon Textile Mills Ltd. and another v. Chairman, Area Electricity Board WAPDA (PESCO), Peshawar and others PLD 2005 SC 430 and Mst. Yasmeen v. Natinoal Insurance Corporation and others 2004 CLC 979 ref.

Ejaz Hussain v. Bashir Ahmad and others 2000 SCMR 1190 rel.

Muhammad Ghazanfar Ali for Appellant.

Muhammad Younis Taheem for Respondent.

Date of hearing: 6th May, 2011.

YLR 2011 PESHAWAR HIGH COURT 2202 #

2011 Y L R 2202

[Peshawar]

Before Syed Sajjad Hassan Shah, J

ABDUL LATIF---Petitioner

Versus

ABDUL HAMEED and another---Respondents

C.R. No.25 of 2006, decided on 20th May, 2011.

Civil Procedure Code (V of 1908)---

----O. XLI, Rr.23, 33, Ss.107, & 151---Remand of case---Powers of Appellate Court---Scope---Where a suit had been disposed of upon a preliminary point and the decree was reversed in appeal, then the Appellate Court could remand the case with further direction of framing issue and trial of the case---Appellate Court had ample powers to set aside the impugned judgment and decree while exercising its inherent powers to direct the Trial Court to amend the plaint, frame issues, record evidence of both the -parties; and then decide the matter---Appellate Court, even otherwise could exercise such power as vested in it under S.107, C.P.C.---Appellate Court enjoyed all the powers vested in the Trial Court---In order to meet some eventualities which could not be catered with by any existing provisions of law, it could exercise powers under S.107, C.P.C., read with S.151 and O.XLI, R.33 of C.P.C. as those were enabling provisions which covered those situations causing insurmountable difficulties in dispensation of justice---Appellate Court could act as ex debito justitiae to supply the omission in the procedure and could adopt the methodology to effectively carry out the purpose in view and enjoyed plenary powers to proceed in the matter---Provisions of O.XLI, Rr.23, 33, Ss.107 & 151, C.P.C., had been introduced in the Code of Civil Procedure to fill in the gaps wherever found in the procedure---Said provisions did not abridge or in any manner override the other provisions of law relating to disposal of appeals---Appellate Court, in the present case, had exercised the powers vested in it to meet the ends of justice---In absence of any illegality or material irregularity in the impugned order of Appellate Court, High Court declined interference in exercise of its revisional jurisdiction.

Karim Khan Marwat for Petitioner.

Sh. Iftikhar-ul-Haq for Respondents.

Date of hearing: 20th May, 2011.

YLR 2011 PESHAWAR HIGH COURT 2219 #

2011 YLR 2219

[Peshawar]

Before Attaullah Khan, J

AMANULLAH KHAN---Petitioner

Versus

Pirzada MUHAMMAD SABIR SHAH---Respondent

Civil Revision No.237 of 2006, decided on 11th April, 2011.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 31 & 32---Civil Procedure Code (V of 1908), O. VII, R. 11(d)---Pre-emption suit filed on 20-4-2005 on basis of sale mutation attested on 9-1-2004---Defendant's application under O. VII, R.11, C.P.C., for rejection of plaint for its suit being tune-barred---Plaintiff's plea that he got knowledge of sale on 4-4-2005; and that formalities of S. 32 of North-West Frontier Province Pre-emption Act, 1987 had not been complied with, thus, period of limitation would start from 4-4-2005---Validity---Date of knowledge would be relevant in case where sale was neither through registered sale-deed or mutation or delivery of physical possession---Provision of S. 31 of the Act was mandatory and independent of S.32 thereof---Transaction in the present case, was made through mutation, thus, period of limitation of 120 days would start from date of its attestation---Suit filed about 16 months after attestation of mutation was hopelessly time-barred---Plaint was rejected in circumstances.

2004 SCMR 1941; 2004 SCMR 535; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Ameen-u-din v. Tehsil Khan 2009 YLR 2227 and Malik Mirza v. Matloob Ahmad and 3 others 2008 CLC 1556 rel.

Muhammad Waheed Anjum for Petitioner.

Muhammad Jehangir Awan for Respondent.

Date of hearing: 11th April, 2011.

YLR 2011 PESHAWAR HIGH COURT 2231 #

2011 YLR 2231

[Peshawar]

Before Dost Muhammad Khan and Miftah-ud-Din Khan, JJ

REHANA KHATUN---Petitioner

Versus

RIZWAN ULLAH and another---Respondents

Writ Petition No.3552 of 2010, decided on 7th June, 2011.

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

----S. 5, Sched., Ss. 9 & 17-A---Constitution of Pakistan, Art.199---Constitutional petition--- Petitioner, defendant in an earlier suit for conjugal rights submitted written statement claiming maintenance with an additional prayer for interim maintenance allowance under S.17-A of West Pakistan Family Courts Act, 1964 which was allowed by the Family Court and High Court approved the judgment of Family Court in constitutional petition---Subsequently when husband withdrew his suit for restitution of conjugal rights, and on its dismissal the written statement, filed by the We, was also discarded and was held to be not triable---After the amendments, introduced in the relevant provisions of S.9 of West Pakistan Family Courts Act, 1964, written statement filed by one or the other party was to be given the status of plaint---In the present case the plaintiff had withdrawn the suit, the proper course for the Family Court was to treat the written statement as plaint and the plaint as written statement; and also to order the transposition of the Parties converting the status of the defendant to that of plaintiff and vice versa---Judge Family Court failed to apply its mind and did not take a proper step and permitted the course which was suggested to it by the respondent---Under the directions of the Family Court, wife filed a fresh suit and also prayed for interim maintenance allowance which had been refused albeit---If, husband was apprehensive that tomorrow if the suit seeking maintenance allowance was dismissed/rejected, then recovery of the paid amount would become difficult; in that situation the Family Court could obtain indemnity/surety bond from the wife to pay back the amount received as interim maintenance allowance pending trial to the husband, while in the case of decree, same could be adjusted in the decreed amount--Family Court was directed by High Court to act strictly according to the given guidelines and to conclude the trial of the case within 3 or at the most within 4 months.

Abdul Zakir Tareen for Petitioner.

Malik Jarrar Hussain for Respondent No.1.

YLR 2011 PESHAWAR HIGH COURT 2252 #

2011 Y L R 2252

[Peshawar]

Before Attaullah Khan, J

SADDAM HUSSAIN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.530 of 2010, decided on 10th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.411/120-B---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Dishonestly receiving stolen property, criminal conspiracy and Haraabah---Bail, grant of---Two pieces of evidence were against two accused persons, one in the shape of recovery memo prepared on the pointation of other co-accused vide which .12 bore shotgun belonging to one of two accused persons was recovered; second was the statement of said other co-accused recorded under S.161, Cr.P.C.-Alleged recovery of shotgun was pointed out by said other co-accused and not by both accused persons---No proof was available on record to show that said shotgun was owned by any of two accused persons---Statement of said other co-accused recorded under S.161, Cr.P.C., had no evidentiary value as he had saved his skin and involved two accused in the case---Three co-accused having been granted bail, rule of consistency was also applicable to the case of two accused persons---Two accused persons were not nominated in the F.I.R. and after their arrest no identification parade had been held enabling the complainant to identify them---No confession had been made by any of accused persons---Accused were admitted to bail, in circumstances.

1999 PCr.LJ 198 and Muhammad Suleman v. Riasat Ali and another 2002 SCMR 1304 ref.

Noor Gul Khan Marwat for Petitioner.

Sanaullah Shamim D.A.-G. for the State.

Najbullah Khan for the Complainant.

Date of hearing: 10th January, 2011.

YLR 2011 PESHAWAR HIGH COURT 2265 #

2011 Y L R 2265

[Peshawar]

Before Attaullah Khan, J

NASIR GUL alias NASIR MUHAMMAD and another---Petitioners

Versus

THE STATE and another---Respondents

Bail Petition No.511 of 2010, decided on 3rd January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.376/365-B/454---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.5/10(2)/19(2)---Rape, abduction, lurking house-trespass---Bail, grant of---Further inquiry---Delay in lodging F.I.R. had not been properly explained---Complainant who claimed that he had married the' alleged abductee, had failed to produce any Nikahnama in proof of said marriage---Earlier affair between the complainant and alleged abductee was mere engagement and not Nikah---Marriage, if any, with the complainant also became doubtful keeping in view the age of alleged abductee---Affidavits available on file, had also supported the plea that accused had entered into Nikah with alleged abductee and had got two children---As there were two claimants of a woman to be their wife, case had become of further inquiry---Only material against accused persons was their alleged abscondence, which was only corroborative in nature; and could not be made hurdle in their way to avail bail, when otherwise their case fell within the ambit of further inquiry---Accused, were admitted to bail, in circumstances.

2005 PCr.LJ 340 and 2007 PCr.LJ 1715 ref.

Sh. Iftikharul Haq for Petitioners.

Sanaullah Shamim D.A.-G. for the State.

Noor Gul. Khan Marwat for the Complainant.

Date of hearing: 3rd January, 2011.

YLR 2011 PESHAWAR HIGH COURT 2273 #

2011 Y L R 2273

[Peshawar]

Before Attaullah Khan, J

TILLA MUHAMMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.492 of 2010, decided on 10th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Abduction---Bail, grant of---Further inquiry---Counsel for the complainant had stated that accused was committing zina with allegedly abducted woman because he had effected Nikah with said woman who was already given in nikah to somebody else---Complainant in his statement recorded under S.161, Cr.P.C. had stated about engagement of his daughter, alleged abductee, with someone and he did not mention that any nikah was performed---First alleged nikah of alleged abductee with someone was not in fact nikah, but was engagement; and there was difference between `Nikah' and 'engagement'-Engagement was a contract, but not final---Alleged abductee at the time of occurrence being more than 18 years of age was sui juris and could enter into a valid nikah on her own free will---If presumed that second nikah of accused with alleged abductee was disputed, then proper forum would be Family Court to decide the issue because criminal court was not competent to take jurisdiction in the case---Father of alleged abductee and her first alleged husband had not filed any suit for jactitation of marriage, which had created doubts---Alleged abductee appeared in the Trial Court and recorded her statement that she entered into nikah with accused on her own free will and that she was never abducted by him---Accused, in circumstances, could not be connected with the offence for which he was charged, unless some facts were proved at the trial stage against him---Case against accused having become of further inquiry, he was entitled to bail on merits--Abscondence of accused had become irrelevant at bail stage.

PLD 2008 Lah. 66; Nighar Abbas and others v. Muhammad Zarif 2004 PCr.LJ 620 and PLD 2004 SC 219 ref.

Bahadar Khan Marwat for Petitioner.

Sananullah Shamim D.A.-G. for the State.

Sh. Iftikharul Haq for the Complainant.

Date of hearing: 10th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 2405 #

2011 YLR 2405

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

BASRAJ BIBI---Petitioner

Versus

IBRAHEEM /and another---Respondents

B.C.A. No.424 of 2010, decided on 27th May, 2011.

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---Trial Court, in the present case, while making tentative assessment of the material available on the record, had found that case of accused was that of further inquiry---No definite opinion or conclusion seemed to have been given, which could affect the prosecution case---Even otherwise, any opinion expressed by the court while deciding a bail application would be treated as the result of tentative assessment of record and would not prejudice the case of either side at the trial---Occurrence in the case had taken place at night, the complainant herself was not an eye-witness of the occurrence---Alleged eye-witness had recorded his statement after about eight days of the occurrence---One of the co-accused had been declared innocent by the Police---All said points were sufficient to bring the case of accused within the ambit of S.497(2), Cr. P. C. ---Law and principles governing the grant and cancellation of bail were entirely different---For making a case for cancellation of bail, one had to establish on record that bail granting order was perverse, arbitrary and fanciful; accused after release on bail had misused the concession of bail by influencing/ threatening the witnesses; or had tried to hamper the evidence on record---No such thing was urged or referred to---Bail granted to accused, could not be cancelled, in circumstances, when no valid ground existed for the cancellation of bail granted to accused.

Hayatullah v. Lal Badshah PLD 2009 Pesh. 28 ref.

S. Muhammad Attiq Shah for Petitioner.

Muhammad Hayat for Respondents.

Muhammad Abbas for the State.

Date of hearing: 27th May, 2011.

YLR 2011 PESHAWAR HIGH COURT 2417 #

2011 Y L R 2417

[Peshawar]

Before Dost Muhammad Khan and Yahya Afridi, JJ

Mst. GULZARA---Petitioner

Versus

AZAM KHAN---Respondent

Writ Petition No.1387 of 2009, decided on 20th April, 2011.

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

----S. 5, Sched. [as amended vide Family Courts (Amendment) Ordinance (LV of 2002)] and S.14---Constitution of Pakistan, Art. 199--- Constitutional petition---Suit for recovery of dower, maintenance allowance and recovery of dower articles---Family Court decided case in favour of plaintiff and granted to her, dower of five Tolas golden ornaments or its market value; separate house of five marlas; maintenance for five months at the rate of Rs.2000 per month future maintenance at the rate of Rs.3000 per month; subject to condition that the plaintiff would resume her marital obligations with defendant---Dowry articles, however, were declined to the plaintiff---Appellate Court accepted appeal of defendant to the extent that dower comprising of gold ornaments and the house was set aside, while the maintenance of past and future allowances were maintained---Plaintiff had contended that the dower had been fixed on 3-9-2006 through an agreement, while the marriage between the parties was solemnized in the year 2002---Appellate Court, had totally misconstrued the legal jurisdiction of Judge Family Court as envisaged under S.5 read with Part-1 of Schedule of West Pakistan Family Courts Act, 1964---Section S. of West Pakistan Family Courts Act, 1964 provided that matters enunciated in Part-1 of Schedule, would be within the jurisdiction of Family Court to adjudicate upon---Item No.9 of Part-1 of Schedule had expanded the scope and jurisdiction of Judge Family Court to adjudicate all the matters stated therein including matters relating to the claim of a wife over her present property, which was other than her dower---Finding of Appellate Court that Judge Family Court was barred to adjudicate upon the agreement deed, was totally incorrect and contrary to the clear provisions of the Schedule of West Pakistan Family Courts Act, 1964---Judgment and decree passed by the Appellate Court below was declared to be illegal and without lawful authority and was set aside, in circumstances.

Iftikhar Ali Qadari for Petitioner.

M. Amin Khatak Lachi for Respondent.

Date of hearing: 20th April, 2011.

YLR 2011 PESHAWAR HIGH COURT 2421 #

2011 Y L R 2421

[Peshawar]

Before Syed Sajjad Hassan Shah, J

ABDUL HAFIZ---Petitioner

Versus

Dr. MUHAMMAD SALEEM---Respondent

Civil Revision No.387 of 2010, decided on 17th May, 2011.

Contract Act (IX of 1872)---

----Ss.124 & 125---Specific Relief Act a of (I of 1877), S. 12---Suit for specific performance of agreement was dismissed by the Trial Court and on filing appeal by the plaintiff, Appellate Court set aside judgment and decree passed by the Trial Court and decreed the suit---Validity--Exchange transaction was effected between the parties through an agreement, whereby they had transferred the possession of shops to each other---One of the clauses of agreement showed that plaintiff had agreed to compensate the defendant by transferring the equal area from the area adjacent towards the western side of disputed shop from the ownership of plaintiff and if the area of shop would be encroached upon by the Highway Department, the defendant would make good the loss sustained by the plaintiff---Defendant deriving the benefit of said exchange transaction, sold away the shop which was transferred in his favour through exchange transaction---Shop in question which was transferred to the plaintiff through exchange agreement, was acquired by Highway Authority under Land Acquisition Act, 1894 and the plaintiff was directed to demolish said shop and remove the superstructure---Shop in dispute having gone out of possession of the plaintiff as a result of acquisition proceedings, defendant was under legal duty to indemnify the loss sustained by the plaintiff as provided under Ss.124 & 125 of the Contract Act, 1872---Any person receiving consideration or deriving any benefit, even under an agreement which was void and not enforceable, was liable to return the benefit which he received or to indemnify the promise in terms of Ss.124/125 of the Contract Act, 1872---Exchange transaction in the present case was valid one and the defendant had enjoyed the sale proceeds of shop which he had taken as a result of exchange transaction---Decree passed by the Appellate Court, in circumstances, was quite in accordance with law, which called for no interference in revisional jurisdiction of High Court.

Haji Muhammad Shah v. Sher Khan and others PLD 1994 SC 294 ref.

Aamir Farid Sadozai for Petitioners.

Muhammad Asghar Khan Baloch for Respondent.

Date of hearing: 17th May, 2011.

YLR 2011 PESHAWAR HIGH COURT 2452 #

2011 YLR 2452

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

WAJAHAT---Petitioner

Versus

VICE-CHANCELLOR and 3 others---Respondents

Writ Petition No.481 of 2010, decided on 27th January, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Examination---Re-checking and re-marking of answer book---Petitioner/candidate applied for rechecking/recounting of his answer book---Delay, if any in filing said application was condoned---As per rules of the University, re-checking would be referred to the examiner, who had already conducted the marking/evaluating of answer book; and in case of his non-availability, the same would be referred to an examiner of integrity from the panel of examiners, subject to approval of Vice-Chancellor--Petitioner had fulfilled the requirements of re-checking and re-evaluating the answer book and authorities had not filed any counter affidavit to rebut the declaration made by the petitioner in his affidavit---Re-checking and re-evaluating was permissible under Regulations, which had been refused by the authorized examiner and in such an eventuality, the answer book could be sent to any one of the examiners out of the list filed by the petitioner---Constitutional petition was allowed and authorities were directed to refer the answer book in question for re-checking/re-evaluation to any of the examiners mentioned in the list provided by the petitioner subject to the approval of the Vice-Chancellor.

Ahmad Ali Khan for Petitioner.

YLR 2011 PESHAWAR HIGH COURT 2494 #

2011 Y L R 2494

[Peshawar]

Before Attaullah Khan, J

AHMAD ALI KHAN and others Petitioners

Versus

BIBI RO and others---Respondents

C.R. No.564 of 2011, decided on 18th May, 2011.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 2(d) & 6---Suit for pre-emption---Better management---Scope---Transaction, whether 'sale' or 'exchange'---Plaintiff had alleged in the plaint that disputed mutation was in fact a 'sale' mutation, but in order to ward off the right of pre-emption it was shown to be 'exchange' mutation---When an agricultural property was exchanged for 'better management', same would not be included in the definition of 'sale'---Exchange of agricultural immovable property was qualified; with the condition that it must be exchanged for a better management---Person claiming exemption must prove that he had acquired property for better management---When an exchange was not for better management, same would be included in the definition of 'sale'---"Better management" used in S.2(d) of North-West Frontier Province Pre-emption Act, 1987 was unqualified and any transaction based on intention of better management would be exempted---'Better management' included the convenience of the parties, privacy and location of the property---Mutation in the present' case, was of exchange and the transaction was for better management---Plaintiffs/preemptors had failed to prove that impugned mutation was of 'sale' and any sale consideration was passed in the case---Vendees/defendants had proved that the property was acquired through exchange for better management---Suit filed by the plaintiffs, was rightly' dismissed concurrently by two courts below---In absence of any irregularity/illegality or error in jurisdiction in impugned concurrent judgments of courts below, revision against said judgments was dismissed, in circumstances.

Muhammad Anwar Khan Kundi v. Abdur Rehman and others 2006 CLC 604 ref.

Mazullah Barkandi for Petitioner.

YLR 2011 PESHAWAR HIGH COURT 2550 #

2011 YLR 2550

[Peshawar]

Before Miftah-ud-Din Khan and Syed Sajiad Hassan Shah, JJ

ABDUL WAHAB---Petitioner

Versus

Mst. SADIA and 2 others-Respondents

Writ Petition No.2356 of 2010, decided on 13th January, 2011.

(a) West Pakistan Family Courts Act (XXX1 of .196)---

----S. 5, Schd, & S. 14---Constitution of Pakistan, Art. 199---Constitutional petition--- Plaintiff filed suit for dissolution of marriage, recovery of dower in shape of gold ornaments weighing 29 Colas or the market value of the same, recovery of maintenance allowance; and recovery of dowry articles as per detail mentioned in the list or the market value of the said articles---Suit had concurrently been decreed by the Family Court and Appellate Court below--Validity---Nikah of the parties was performed in the year 1990 and 29 tales gold ornaments were fixed as dower of the plaintiff--Defendant had divorced the plaintiff in the year, 2003 and ousted her in her wearing apparel from his house and since then the plaintiff was residing with her parents---Dowry, articles and gold ornaments taken by the defendant were in his possession---Defendant had not paid maintenance allowance---Both the courts below had granted decree for recovery of dower i.e. 29 tolas gold ornaments and the defendant had not sought for relief of the substitution of dissolution of marriage on the basis of "Khula "---Plaintiff had proved on record that 29 Was gold ornaments fixed as dower, was not paid by the defendant to her---Plaintiff being entitled for decree of dower amount, same was rightly granted by the courts below---Judgments and decrees of both the courts below not suffering from any illegality, irregularity, misreading and non-reading or jurisdictional error, were maintained, in circumstances---High Court had no jurisdiction to substitute its own findings to the findings of the Tribunals below in constitutional jurisdiction---Constitutional petition was dismissed.

Dr. Fakhr-ud-Din v. Mst. Kausar Takreem and another PLD 2009, Pesh. 92 and Mst. Tahira Khatoon's case 1985 CLC Kar. 2735 rel.

Rani Khajoorunnisa v. Rani Raeesunnisa (1875) WR 103 PC ref.

Khuda Bakhsh's case 1974 SCMR 279; M. Musaddaq's case PLD 1973 Lah. 600 and Qaisar Saif Ullah's case PLD 1994 SC 859 ref.

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

----O. VI, R.1---Constitution of Pakistan, Art. 199---Constitutional petition-"Pleadings"-Parties ought to raise all the material questions of law and fact in their pleadings, so that they must he aware of the allegations made by them against each other; and to meet them by leading evidence at the trial and not to be taken by surprise---If at any subsequent stage, much less, in the constitutional jurisdiction of the High Court to have agitated, the cowl would not consider the same, unless pleaded before the fora below in their pleadings.

Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 rel.

Government of Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469 ref.

----Art. 199---Constitutional petition---Raising new plea for the first time in constitutional petition, was not permissible under the law and could neither be agitated nor argued before the High Court.

Ch. Arfan Jabbaz alias Ch. Zafar Iqbal v. Mst. Rizwan Jabeen and 2 others 2002 CLC 1964 rel.

John E.Brown Lee v. Vivan Mac Milian AIR 1940 PC 219; Ashfaq Rehman Khan v. Ch. Muhammad Afzal PLD 1971 SC 766; Muhammad Saleem Akhtar v. Judge Family Court and others 2004 YLR 2541 and Ch. Arfan Jabaz alias Ch. Zafar Iqbal v. Mst. Rizwana Jabeen and 2 others 2002 CLC 1964 ref.

Mian Iqbal Hussain for Petitioner.

Malik Ahmed Jan for Respondents.

Date of hearing: 13th January, 2011.

YLR 2011 PESHAWAR HIGH COURT 2710 #

2011 Y L R 2710

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Yahya Afridi, J

ZEESHAN-UR-REHMAN---Petitioner

Versus

GHULAM.ISHAQ KHAN Institute of Engineering Sciences and Technology through Rector and 6 others---Respondents

Writ Petition No.931 of 2011, decided on 1st June, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Main thrust of the petitioner's challenge to the impugned actions of the Institution, was based on the violation of the provisions of the "Student Handbook 2010-11 "---No doubt Institute was a statutory body created under Ghulam Ishaq Khan Institution of Engineering, Science and Technology Act, 1994, but the "Student Handbook 2010-11" was not a statutory instrument---Violation of "Student Handbook 2010-11", in circumstances, could not be corrected through exercise of constitutional jurisdiction of High Court under Art.199 of the Constitution would not mean that under all such cases, High Court would remain a silent spectator with folded hands to grave excesses of a statutory body, especially where there appeared blatant violations warranting the exercise of constitutional jurisdiction---Grievance of the petitioner, in the present case, was regarding principles of natural justice which stood independently and were not dependant upon the provisions of the "Student Hand Book 2010-11"-High Court, under Art. 199 of the Constitution would be available to rescue the aggrieved person, in circumstances.

Fahad v. President CECOS University 2011 CLC 1 rel.

(b) Natural justice, principles of---

----Right to hearing---Violation of principles of natural justice had been equated with the violation of the fundamental rights of a citizen under the Constitution---Principle of natural justice, however, could not be stretched to an extent, where it would lose its forcefulness and would lead to abuse thereof---Mode, manner and the stage of providing "personal hearing" would depend on circumstances of each case--- "Right to a hearing" was of prime importance---Limits to its application, scope and its final .implication on the order so passed was acknowledged and respected---Where the "right to a hearing" had not been expressly so provided in a statute or a statutory rule or regulation, the most crucial and essential element, was to see that the party affected had not been "prejudiced" in its defence.

Aneesa Rehman v. PIAC 1998 SCMR 2222; University of Dhaka v. Zakir Ahmad PLD 1965 SC 90; Collector Sahiwal v. Muhammad Akhtar 1971 SCMR 681; Muhammad Ishaq v. Dr. Salahuddin PLD 1959 Kar. 669; Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092; S.Nizamuddin Qadri v. The Deputy Secretary of Government 1979 CLC 217; Sikandar Sadiq v. University of Peshawar PLD 1988 Pesh. 99; The Institute of Bankers in Pakistan and another v. Zainul Abedin 1987 MLD 549; Mehrab Khan v. Taj Mohomed and others PLD 1961 (W.P) Quetta 1; Dr. Mumtaz Hussain v. University of Sind, Hyderabad and others PLD 1966 Kar. 429; Oadri Brothers Foundry and Workshop Karachi v. Sind Employees Social Security Institute PLD 1977 Kar. 112; Pakistan Warranted Warehouse Ltd. Karachi v. Government of Pakistan and 4 others PLD 1977 Kar. 954 and Messrs General Tractors and Machinery Company Ltd., Karachi v. The State 1972 PCr.LJ 604 rel.

----Art. 199---Educational institution---Constitutional jurisdiction--- Scope--Interference by a constitutional court in departmental inquiries of educational institutions, regarding sensitive .issue, should be sparingly exercised and that too in cases where the proceedings challenged were not arbitrary, capricious, outrightly absurd or against the settled norms of justice and fair play---Petitioner, in the present case had sought preservation and enforcement of the terms of his "Associate-ship" under the agreement---Seeking any relief thereto, would amount to enforcement of the terms of contractual obligation which was beyond the pale of constitutional jurisdiction, unless Government instrumentality was involved or a clear breach of any statutory provision was committed by the party---Agreement having no statutory backing the violation of any provision thereof, if any, would surely not be 'justiciable', under constitutional jurisdiction---Petitioner could seek his legal remedy, if any, before the appropriate legal forum---Proceedings challenged by the petitioner, were far from having legal infirmities which would warrant constitutional interference---Court was to be more cautious of issuing the prayed writ, when the petitioner had been provided "fair hearing" by different forums, coupled with his admission of guilt in his final letter.

Fazal Elahi Khan for Petitioner.

Atiqur Rehman Qazi for Respondents.

Date of hearing: 1st June, 2011.

YLR 2011 PESHAWAR HIGH COURT 2736 #

2011 Y L R 2736

[Peshawar]

Before Attaullah Khan, J

JAVED and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.534 of 2010, decided on 10th January, 2011.

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---Report was lodged in reasonable time and accused were directly charged with effective role of firing which caused injuries to two persons---Motive was given in the F.I.R. and nothing was on record to constitute mala fide on the part of complainant for false implication of accused---Accused being already known to the complainant, no question of mistaken identity could arise---All three eye-witnesses, including two injured, had fully testified against accused---Fact that there was no injury on the sensitive part of the body of injured, would not bring the case out of the purview of the prohibitory clause of S.497(1), Cr.P.C. to claim the bail as a rule---Accused having been connected with the commission of offence, their bail petition was rejected.

2004 YLR 94; 2005 PCr.LJ 437 and Muhammad Rafique v. The State 2008 SCMR 678 ref.

Muhammad Imran Khan Gandapur for Petitioners.

Sanaullah Shamim D.A.-G. for the State.

Muhammad Waheed Anjum for the Complainant.

Date of hearing: 10th January, 2011.

YLR 2011 PESHAWAR HIGH COURT 2744 #

2011 Y L R 2744

[Peshawar]

Before Attaullah Khan, J

ABDUL AZIZ---Petitioner

Versus

MIJHAMMAD AZEEM and 4 others---Respondents

Criminal Miscellaneous No.509 of 2010, decided on 10th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 382/324/148/149---Theft after preparation made for causing death, hurt or restraint, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry--Nothing had been recovered from accused, to connect him with the offence---Money was recovered from two shopkeepers vide recovery memo, but that recovery memo also did not connect accused with the offence, because it did not disclose that alleged recovery was stolen property---Both witnesses/shopkeepers examined under S.164, Cr.P.C. by Judicial Magistrate, had stated that accused had purchased some household articles and payment was made in that connection by accused to them---Such statements did not disclose that said amount in question was snatched by accused from the complainant party---After arrest of accused his identification parade was required to have been conducted by the prosecution, but it had failed to do so---Trial had not been completed in the case---Involvement of accused in another criminal case was no ground for refusing bail to him, unless it was proved that he was habitual offender---Accused was not named in the F.I.R.---No ocular evidence was available to connect accused with the offence and no incriminating material had been recovered from his possession---Case of accused fell within the ambit of further inquiry entitling him to the concession of bail---Accused was admitted to bail, in circumstances.

1991 PCr.LJ 198; 2009 PCr.LJ 1172; Muhammad Suleman v. Riasat Ali and others 202 SCMR 1304 and 1999 PCr.LJ 271 ref.

Noor Gul Khan Marwat for Petitioner.

Sanaullah Shamim D.A.-G. for the State.

Burhan Latif Khaisori for the Complainant.

Date of hearing: 10th January, 2011.

YLR 2011 PESHAWAR HIGH COURT 2785 #

2011 Y L R 2785

[Peshawar]

Before Attaullah Khan, J

KHALID KHAN alias LADHI and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Bail Petition No.14 of 2011, decided on 7th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/ 324/ 427/ 148/ 149-- Qatl-e-amd, attempt to commit qatl-e-amd, mischief causing damage---Bail, refusal of---Plea of alibi which was available to the co-accused who had been granted ad interim pre-arrest bail, was not available to the accused persons---Principle of rule of consistency was not attracted to the case of accused persons, in circumstances---Accused persons who remained absconders for sufficient time without any just explanation, were directly charged---Alleged cross-case was doubtful, unless same was proved at the trial stage---Challan had been submitted and the trial was about to start and, if bail was allowed, it could affect the trial---Accused, in circumstances, were not entitled to concession of bail.

1997 SCMR 251; 2005 SCMR 1402; 1988 SCMR 918 and 1992 SCMR 1418 ref.

Rashid Khan Wazir for Petitioner.

Sanaullah Khan Shamim D.A.-G. for the State.

Muhammad Farid Khan Mardadkhel for the Complainant.

Date of hearing: 7th February, 2011.

YLR 2011 PESHAWAR HIGH COURT 2823 #

2011 Y L R 2823

[Peshawar]

Before Attaullah Khan, J

GULZAR and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.44 of 2011, decided on 21st February, 2011.

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---Accused had been charged in promptly lodged F.I.R. directly which had minimized the chance of false implication of accused---Medical report had revealed, that the injury caused by accused was on chest of the injured/complainant; which was on vital part of the body, which had clearly reflected the intention of accused to kill the complainant---Pistol with which accused fired at the complainant was recovered from accused---Recovery of pistol also supported the prosecution case against accused---Presence of injured at the spot was proved by the injury on his body---Besides the complainant, two witnesses had also seen the occurrence--Accused being already known to the complainant, there was no chance of misidentification---Incident was daylight occurrence---Motive, which was previous enmity, had also been given in the F.I.R,---On tentative assessment of evidence and material available on the file, accused were connected with the offence for which they were charged, unless rebutted at the trial stage---Bail application, was dismissed, in circumstances.

Rab Nawaz Awan for Petitioner.

Sanaullah Shamim D.A.-G. for the State.

Saifur Rehman Khan for the Complainant.

Date of hearing: 21st February, 2011.

YLR 2011 PESHAWAR HIGH COURT 2975 #

2011 Y L R 2975

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. KABELA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1245 of 2011, decided on 15th August, 2011.

Criminal Procedure Code (V of 1898)--

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Possessing narcotics---Bail, grant of----Accused though was directly involved in the narcotics case, but a suckling baby was along with the accused who had been behind the bars for the last two months---Welfare of minor at such a stage would be taken into account---Punishment provided for the offence, was either death or life imprisonment because the quantity of narcotic recovered from her possession exceeded more than 1 Kilogram---Accused, in circumstances, though could not be released on bail as laid down in S.51 of Control of Narcotic Substances Act, 1997, but there was a suckling baby of accused who was kept in jail and was innocent---Concept of "welfare of minor" was incompatible with jail life---Instead of detaining the innocent child/infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor, if the mother was released from the jail---Holy Prophet in case of "Ghamidiyyah" had suspended the sentence of pregnant woman, not only till delivery of the child, but also postponed same till suckling period i.e. two years, for the welfare of the child which showed paramount importance and significance of the right of a suckling child in Islam---Held, woman having suckling child, should not be detained and granted bail, in such circumstances---Order accordingly.

2009 PCr.LJ 702, 1998 MLD 1339 and 2004 PCr.LJ 20 rel.

Astaghfirullah for Appellant.

F.M. Sabir for Respondent.

Date of hearing: 15th August, 2011.

YLR 2011 PESHAWAR HIGH COURT 2980 #

2011 Y L R 2980

[Peshawar]

Before Attaullah Khan, J

Mst. HAKIM BIBI and another---Petitioners

Versus

RAB NAWAZ KHAN and another---Respondents

Civil Revision Petition No.116 of 2004, decided on 20th June, 2011.

(a) Islamic Law---

----Gift deed---Proof---Scribe and marginal witnesses in their evidence had confirmed execution of gift deed by donor in their presence---Ingredients essential for a valid gift would be offer, acceptance and delivery of possession---According to scribe, donor was known to him and that donee was in possession of property before gift---Offer and acceptance of gift stood proved from contents of gift deed itself and also from its signing by donor and donee---Donee had proved through evidence such three ingredients of gift---Donee's suit was decreed, in circumstances.

(b) Islamic Law---

----Gift---Validity---Gift by a Muslim donor having proper health could not be invalidated on ground that his legal heirs were deprived of their shares---Principles.

A Muslim donor has ample powers to gift his property during his life time subject to the condition that he is in proper status of health. This power is unfettered. Gift cannot be invalidated only because the legal heirs are deprived of their shares.

PLD 2006 SC 15 rel.

----Ss.123 & 129---Un-registered gift deed by a Muslim donor---Validity---No mode was prescribed in Muslim Law for a gift, which might be made orally---Such deed was not required to be registered.

1994 MLD 677 rel.

Muhammad Younis Thaheem for Petitioners.

Shaukat Hayat Khan Khakwani and Muhammad Arshad Kabir for Respondents.

Date of hearing: 20th June, 2011.

YLR 2011 PESHAWAR HIGH COURT 3003 #

2011 Y L R 3003

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

SHABIR AHMAD---Petitioner

Versus

MUHAMMAD LUQMAN and 2 others---Respondents

Writ Petition No.493 of 2009, decided on 4th May, 2011.

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

----S. 13---Ejectment proceedings---Denial of relationship of landlord and tenant between parties on ground of pendency of tenant's suit for specific performance of unregistered sale agreement executed by landlord---Validity---Tenant could not resist title of landlord prior to passing of decree in his favour in suit for specific performance--- Ejectment proceedings would continue in normal course in presence of such agreement or pendency of such suit and Rent Controller could decide question of relationship being factual controversy after considering evidence on record---When denial of relationship was contumacious, then Rent Controller had power to straightaway pass ejectment order without recording evidence on other grounds such as personal need or violation of terms of tenancy agreement---Status of a tenant inducted in possession of premises by owner/landlord under tenancy agreement would not be altered, If he entered into sale transaction with owner thereof---Tenant would be bound to surrender possession of demised premises to landlord in compliance of order of Rent Controller.

Haji Muhammad Khan v. Haji Zarin Khan PLD 1999 SC 1301(sic) rel.

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

----S. 13---Ejectment petition---Bona fide personal need of landlord, damage and default in payment of rent---Denial of relationship of landlord and tenant between parties by tenant---Validity---Original rent deed produced in evidence and such grounds asserted by landlord were not challenged in his cross-examination by tenant---Ejectment petition was accepted in circumstances.

Sheikh Sanaullah v. Farah Deeba and others 2005 YLR 248 rel.

Sarwar Khan Kunsi for Petitioner.

Muhammad Wahid Anjum for Respondent No.1.

YLR 2011 PESHAWAR HIGH COURT 3030 #

2011 Y L R 3030

[Peshawar]

Before Shah Jehan Khan and Fazl-i-Haq-Abbasi, JJ

MUHAMMAD ZAHIR---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.958 of 2010, decided on 6th September, 2011.

Penal Code (XLV of 1860)---

----S. 365-A---Kidnapping---Appreciation of evidence---Benefit of doubt---Accused was charged by the complainant and prosecution witness, due to suspicion---Suspicion, even if strong, could not be taken as a substitute for legal evidence---Prosecution had failed to prove its case beyond reasonable doubt against accused--Many reasons were not required, but even a single reason creating reasonable doubt in a prudent mind was sufficient for acquittal---Extending the benefit of doubt to accused, conviction and sentence awarded by the Trial Court, were set aside and accused was acquitted and set free; in circumstances.

Ishtiaq Ibrahim for Appellant.

Abdur Rauf Gandapur for the State.

Ali Zaman for the Complainant.

Date of hearing: 6th September, 2011.

YLR 2011 PESHAWAR HIGH COURT 3038 #

2011 Y L R 3038

[Peshawar]

Before Azmatullah Malik, J

SHER ALI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.379 of 2011, decided on 12th September, 2011.

Explosive Substances Act (VI of 1908)---

---S. 5---Making or possessing explosives---Appreciation of evidence---Benefit of doubt---Scope---Prosecution only relied upon the statement of recovery witness and complainant besides the Investigating Officer---Articles allegedly recovered from the vehicle, were not sealed at the time of recovery nor thereafter at any time and same were also not sent to Forensic and Ballistic Expert to know, if the detonators and fuses allegedly, recovered from the vehicles possessed by accused person, were in a working condition or otherwise---Non-sending of allegedly recovered detonators to the Ballistic Expert, itself had created doubt and dent in the prosecution story and its examination through employees of the Police Station, further smacked of their working disregard to the settled principles of investigation---Benefit of doubt would always go to accused and for that purpose, it was necessary that there must always be multiple circumstances to create doubt---Even a single circumstance, creating a reasonable doubt as to the guilt of accused would entitle him to such benefit---Conviction and sentence recorded by the Trial Court was set aside and accused were acquitted of the charge by extending the benefit of doubt and were released in circumstances.

Sajjan v. State 1998 PCr.LJ 1399 and Tariq Parvez v. State 1995 SCMR 1345 rel.

Syed Akbar Ali Shah for Appellant.

Shafiullah for the State.

YLR 2011 PESHAWAR HIGH COURT 3045 #

2011 Y L R 3045

[Peshawar]

Before Syed Sajjad Hassan Shah, J

REHMAN ULLAH---Petitioner

Versus

WAZIR ZADA---Respondent

Civil Revision No.6 of 2009, decided on 10th December, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 13 & 31---Suit for pre-emption---Making of Talabs---Limitation---Plaintiff had produced sufficient evidence on record to establish that having gained the knowledge about sale transaction of suit property, he immediately declared his intention in the same sitting, to exercise his right of pre-emption in respect of said property and that thereafter issued the Talabs in accordance with law---Mere fact that one vendee/defendant was issued original notice, whereas the remaining ones were served with photostat copies, by itself, could not be considered a good ground to dislodge claim of the plaintiff, who was co-sharer in the suit property---Vendees/defendants, were real brothers and resided in the same house---Issuance of photostat copies of the notices, did not appear to have affected their rights---Suit which was filed after 3 months and 10 days from attestation of mutation, was within time---Appellate Court below, in circumstances had rightly set aside judgment and decree of the Trial Court, whereby suit by the plaintiff was dismissed---Suit was rightly decreed by the Appellate Court, in circumstances.

Rooh-ul-Qudus v. Muhammad Rafiq and 2 others 2002 CLC 379 and Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 rel.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 13 & 21---Suit for pre-emption--Improvement made by vendee on suit land---Vendee/defendant claimed that after sale transaction made vide sale-deed, he constructed a house over the suit land and that he was residing in the said house and that after 7 months of the completion of said house, he received the notice of Talb-e-Ishhad---No cross-examination in respect of said statement of the defendant but said statement was corroborated by witness produced by him---Defendant/vendee, having fully proved making of improvement over suit land, immediately after sale transaction in his favour, was entitled to the cost of said improvements and court below was not justified in not taking into consideration the same---Case was remanded to the Trial Court for deciding issue in that respect after granting an opportunity to both the parties to produce fresh evidence, in circumstances.

2009 SCMR 1256; Qurban Hussain v. Mst. Bashir Begum and others PLD 1986 SC (AJK) 109 and Samrathmal v. Union of India (1959) M (305) rel.

----Art. 134---Cross-examination---When a portion of statement or statement of a witness was not cross-examined, presumption would be that the other party had admitted such portion of statement or the statement made by witness.

2001 SCMR 1700 ref.

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

----O. XIV, R.1---Framing of issues---Trial Court's primary duty was to frame issues properly and in accordance with the pleadings of the parties-Non-framing of issues was an illegality amounting to exercise of jurisdiction illegally or with material irregularity.

Muhammad Bashir v. Muhammad Hussain and 16 others 2009 SCMR 1256; The Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1; Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895 and Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 rel.

Nasim Mehmood Khattak for Petitioner.

Jan Muhammad Khan for Respondent.

Date of hearing: 10th December, 2010.

YLR 2011 PESHAWAR HIGH COURT 3067 #

2011 Y L R 3067

[Peshawar]

Before Syed Sajjad Hassan Shah, J

MUHAMMAD TAHIR and 16 others---Petitioners

Versus

DISTRICT POLICE OFFICER, DERA ISMAIL KHAN and 4 others---Respondents

Quashment Petition No.95 of 2011, decided on 21st July, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 144, 195 & 561-A---Penal Code (XLV' of 1860), S.188---Disobedience to order duly promulgated by public servant---Quashing of order, petition for---District Co-ordination Officer, vide his letter/order passed under S.144, Cr.P.C. imposed ban on procession and use of Loud-speaker---Petitioners, allegedly had violated said order by taking out the procession on the eve of Labour Day and used Loud-speaker-- F.I.R, was registered against petitioners on behalf of S.H.O. Police Station concerned, on account of violation of order passed under S.144, Cr.P.C. by the District Co-ordination Officer---Validity---Entire exercise, seemed to be against the provisions of law contained in S.195, Cr.P.C., according to which S.H.O. of the concerned Police Station, had no lawful authority to register the F.I.R. against the persons who had indulged in violation of the proclamation made under S.144, Cr.P.C.---Requirement of law was that the complaint was to be made in writing by the public servant concerned or by some other public servant to whom he was subordinate---Under the provisions of S.195, Cr.P.C., only the Public Authority or the concerned court had the right to lodge complaint, unless there was a complaint by such public authority or court---No criminal court would take cognizance of those offences--Violation of S.144, Cr.P.C., provided the penal action under S.188, P.P. C., whereas the procedure was provided for initiating the criminal proceedings against the violator under S.195, Cr.P.C. by filing complaint by the authority, who had enforced the order or to whom he was subordinate---In view of said restriction, no other person, including S.H.O. was vested with authority to initiate the proceedings in his name---S.H.O. having no lawful authority, impugned F.I.R. against the petitioners was against the provisions of law and being without jurisdiction, void ab initio and having no legal effect---F.I.R. and the superstructure built upon the impugned F.I.R. was declared without jurisdiction, void ab initio and having no effect---F.I.R. was quashed.

Muhammad Shafiullah v. Government of Pakistan through Secretary Parliamentary Affairs Division, Pakistan Secretariat, Islamabad and 5 others PLD 2002 Pesh. 50 and Muhammad Shoaib v. Ghulam Samdani and others PLD 1996 Pesh. 37 rel.

Fazlur Rehman Baloch for Petitioners.

Khan Wali Khan A.A.-G. for Respondents.

Date of hearing: 21st July, 2011.

YLR 2011 PESHAWAR HIGH COURT 3075 #

2011 YLR 3075

[Peshawar]

Before Waqar Ahmad Seth, J

SAFDAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Bail Petition No.1061 of 2011, decided on 11th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-B---Abduction---Bail, refusal of---Occurrence pertained to the year 2007 and accused was granted bail by the Trial Court when abductee was not recovered and no cogent evidence about his involvement in the crime was available---Abductee upon her recovery had charged accused along with cot-accused for the commission of offence in a statement recorded under S.164, Cr.P.C. before the Magistrate---Fact that challan had not been submitted before the court, was on account of mala fide on the part of local Police on one hand; and collusion with accused on the other----Offence for which accused was charged, fell within the prohibitory clause of S.497, Cr.P.C.---Tentative assessment of material available on record reflected that reasonable grounds existed to believe that case of accused was not that of further inquiry---Bail petition was dismissed, in circumstances.

1992 PCr.LJ 1358; 2009 PCr.LJ 1155 and 2009 MLD 171 ref.

Ishtiaq Ibrahim for Petitioner.

Sahib Zada Asadullah and Miss Zarmina Gul for Respondents.

Date of hearing: 11th August, 2011.

YLR 2011 PESHAWAR HIGH COURT 3085 #

2011 Y L R 3085

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. ZAINAB BIB1---Petitioner

Versus

JEHANZEB and another---Respondents

Criminal Bail Petition No.1238 of 2011, decided on 12th August, 2011.

Criminal Procedure Code (V of 1898)---

-----S. 497(2)-Penal ----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/109/148/149---Qatl-e-amd---Bail, grant of---Further inquiry---Occurrence was un witnessed as no witness had been shown by the complainant in support of his alleged version---Accused had been involved in the case after six days of the occurrence and such delay had not been explained reasonably---Co-accused involved in the matter with the same and similar role, having been granted bail, on the principle of rule of consistency, accused was also entitled to the same treatment---All said lacunae in the prosecution would be answered by the prosecution at the trial, and accused could not be kept behind the bars for an indefinite period---Accused having made out a case for further inquiry, he was allowed bail, in circumstances.

2009 SCMR 786 and 2011 SCMR 710 ref.

Sher Afzal for Petitioner. Respondent No.1 in person.

Aamirullah Khan for the State.

Date of hearing: 12th August, 2011.

YLR 2011 PESHAWAR HIGH COURT 3096 #

2011 YLR 3096

2011 Y L R 215

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

Haji ABDUL BARI---Petitioner

Versus

SUB-DIVISIONAL OFFICER, SUB-DEVISION QESCO and another---Respondents

Civil Revision No.295 of 2003, decided on 19th July, 2010.

(a) Electricity Act (IX of 1910)---

----Ss. 54-C, 2(c), 6, 16, 24, 25 & 26-A---Electricity Rules, 1937, Abridged Conditions, Condition No.16---Specific Relief Act (I of 1877), S.42---Suit for declaration--- Maintainability--- Scope---Trial Court dismissed the suit---Appellate Court dismissed appeal against---Plaintiff contended that he was not obliged to pay the electricity bills issued in the names of his previous tenants---Plaintiff also filed application for injunction to restrain the defendant/WAPDA from demanding payment of disputed dues till the correction of the bill and sought restoration of electricity connection---Defendant/WAPDA contended that the landlord, and not the tenant, was responsible for payment of electricity bills---Validity---Section 54-C of the Electricity Act, 1910 barred jurisdiction of the court only in matters relating to disconnection and restoration of energy supply by the licensee but did not preclude an aggrieved person from filing suit against any act of the licensee/ WAPDA; relief, however, was conditional on payment of dues/outstanding---Courts below failed to appreciate that the plaintiff had also sought several reliefs which were not related to payment of dues, therefore, both the courts wrongly found that the suit was not maintainable---Trial Court could have declined the relief of restoration of connection but other reliefs sought by the plaintiff should have been considered and awarded--Electricity connections were installed at the premises owned by plaintiff and were disconnected seventeen years ago but he remained silent all these years---Though the said premises was in occupation of tenants yet plaintiff; being owner/landlord, was a `consumer' as defined by S.2(c) of the Electricity Act, 1910---Plaintiff, therefore, was liable to pay the outstanding charges of electricity supply---Plaintiff had violated the Condition No.16 of the Abridged Conditions of Supply . annexed to Electricity Rules, 1937 by extending electricity supply to the disconnected portions of his property which amounted to dishonest abstraction or consumption of energy under S.26-A of the Electricity Act, 1910---Relief of restoration of electricity could not be granted to the plaintiff until he had paid the outstanding dues---Plaintiff could not establish that charges were wrongly calculated by defendant---Suit was dismissed accordingly.

(b) Electricity Act (IX of 1910)---

----S. 54-C---Bar of jurisdiction---Principle and applicability---Scope---Section 54-C of the Electricity Act, 1910 barred jurisdiction of the court in matters relating to disconnection and restoration of energy supply to the licensee but did not preclude an aggrieved person from filing suit against any act of the licensee.

Miss Sarwat Hina for Petitioner.

H. Shakil Ahmed for Respondent.

Date of hearing: 16th April, 2010.

2011 Y L R 1921

[Quetta]

Before Muhammad Noor Meskanzai, J

ABDUL QADOOS alias PEHLWAN---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.236 of 2009, decided on 17th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.376 & 354---Rape, assault or criminal force to woman with intent to outrage her modesty---Bail, grant of---Further inquiry---Trial Court dealt with the matter mechanically and had passed order without consulting the record---No plausible explanation had been offered by the prosecution regarding 3 hours' delay in lodging of F.I.R.---Deliberations and consultations could not be ruled out, in circumstances---Clear allegation of an attempt to commit forcible Zina had been made in the F.I.R., but complainant/ victim had not stated that her clothes were stripped, removed, torn, so without going deep into the contents of F.I.R., ingredients of Ss.376 & 354, P.P.C., were missing, in the case---One of prosecution witnesses had stated that he entered the room along with other prosecution witnesses and saved the complainant from the clutches of accused, but other prosecution witnesses did not state so---None of the said witnesses had stated that complainant was being beaten and they all saved the complainant from the clutches of accused---Prosecution seemed to have concealed the real position; and situation might be somewhat different from what had been stated---Statements of prosecution witnesses lacking consistency--Accused had succeeded to make out a case of bail---As ingredients of main Ss.376 & 354, P.P.C., were missing, on analogy of principle of further inquiry, accused was admitted to bail, in circumstances.

2009 PCr.LJ 153; 1996 PCr.LJ 620 and 2004 PCr.LJ 1876 ref.

Sanaullah Ababaki for Applicant.

Mrs. Saima Jameel for the State.

Barrister Iftikhar Raza Khan for the Complainant.

Date of hearing: 6th November, 2009.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 1954 #

2011 Y L R 1954

[Quetta]

Before Mrs. Syeda Tahira Safdar and Jamal Khan Mandokhail, JJ

PEER BAKHSH and 9 others---Petitioners

Versus

RASOOL BAKHSH and 13 others---Respondents

Constitutional Petition No. 396 of 2009, decided on 4th March. 2011.

Specific Relief Act (I of 1877)--

----S. 42---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---Trial Court dismissed the suit for being time-barred---District Judge, accepted the revision filed by plaintiffs and remanded the case to Trial Court for decision after recording evidence of the parties---Validity---Case involved issues of fact and law which could only be resolved after recording of evidence---Trial Court while deciding legal objections recorded findings merely on presumptions which were neither legal nor just---Revisional court rightly remanded the case for evidence of parties---Impugned order did not warrant interference---Constitutional petition was dismissed.

Amanullah Kanrani for Petitioner.

Abdul Ghani Mashwani for Respondents Nos.1 to 9.

Abdul Aziz Khilji Additional Advocate General for the State.

Date of hearing: 7th October, 2010.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 1999 #

2011 Y L R 1999

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

Mst. PARVEEN AKHTAR and another---Petitioners

Versus

Syed WASEY AGHA and 2 others---Respondents

Civil Revision No.135 of 2008, decided on 11th February, 2011.

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

----O. I, R.9, O.VII, R.11, O.XXIII, R.1(3) & S.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Non-Joinder or misjoinder of parties---Effect---Trial Court dismissed the suit for non-accrual/non-disclosure of the cause of action---Appellate Court dismissed appeal on the same ground---Plaintiff contended that Trial Court dismissed the suit instead of rejecting the plaint---Defendant contended that the plaintiffs having withdrawn an earlier suit, second suit was not maintainable---Validity---Courts below failed to appreciate the provision of law and arrived at erroneous conclusion---Order XXIII, R.1(3), C.P.C. barred filing of fresh suit but burden of proof lay on defendants to establish that the suit was barred as they had raised objection under O.XXIII, R.1(3), C.P.C.---Order I, R.9, C.P.C. specifically provided that no suit should be defeated by reason of mis-joinder or non-joinder of parties, rather, court was empowered under O.I, R.10(2), C.P.C. to strike out or add parties at any stage of the proceedings---Courts below wrongly held that the suit was not maintainable due to non-joinder of parties---Court, under provisions of O.VII, R.1(i), C.P.C., initially had to rely upon the valuation as assessed by the plaintiff in plaint---Order VII, R.11, C.P.C., empowered the court to reject the plaint which was insufficiently stamped and where plaintiff had failed to file requisite stamp paper within the time fixed by the court---Trial Court did not allow sufficient time to plaintiff to file the requisite court-fee, rather based its findings on presumptions which was neither legal, nor proper---Impugned orders were set aside and case was remanded to Trial Court for decision afresh.

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

----O. I, R.9---Application and scope of O.I, R.9, C.P.C.---Order I, R.9, C.P.C. specifically provided that no suit shall be defeated by reason of mis-joinder or non-joinder of parties.

----O. I, R.10---Powers of the court---Order I, R.10, C.P.C. empowered the court to strike out or add parties at any stage of the proceedings.

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

----O. VII, R.1(i)---Valuation of suit---Principle---Initially, the court as per provisions of O.VII, R.1(i), C.P.C., had to rely on the valuation as assessed by plaintiff in the plaint.

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

----O. VII, R.11---Insufficiency of stamps--- Effect--- Powers of court--- Order VII, R.11, C.P.C. empowered the court to reject the plaint which was insufficiently stamped and where plaintiff had failed to file requisite stamp paper within the time fixed by the court.

Ayaz Swati for Petitioners.

Mujeeb Bazai for Respondents Nos. 1 and 2.

Date of hearing: 22d October, 2010.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2012 #

2011 Y L R 2012

[Quetta]

Before Muhammad Noor Meskanzai, J

Haji AMANULLAH---Appellant

Versus

Haji JAVED and another---Respondents

F.A.O. 153 of 2009, decided on 30th July, 2010.

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

----Ss. 13 & 15---Ejectment proceedings through attorney---Counsel for tenant made request before the Rent Controller and sought time for production of tenant to record his statement, which request was acceded to, but despite various adjournments tenant failed to appear before the Rent Controller---Whole proceedings were conducted through attorney appointed by the tenant and it was not known as to why tenant had not got recorded his statement himself---Seeking time for recording his statement by the tenant without filing any affidavit, did not seem to be reasonable and rational---Act of the tenant to gain time, not only lacked bona fide, but smacked mala fide---Rent Controller after appraisal of material available, had recorded an exhaustive judgment by dilating upon each and every aspect of the matter---Appeal against judgment of the Rent Controller being meritless, was dismissed, in circumstances.

Munir Agha for Appellant.

Shahid Javed for Respondents.

Date of hearing: 7th May, 2010.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2031 #

2011 Y L R 2031

[Quetta]

Before Muhammad Noor Meskanzai, J

MUHAMMAD IQBAL alias IQBAL JATOI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.9 of 2010, decided on 20th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery and Haraabah---Bail, refusal of---Record being silent about any enmity in between accused and complainant, question of false implication of accused was out of question---Accused was identified by complainant during the course of identification parade---Motorcycle, mobile etc. having been snatched by show of force, particularly by showing pistol to complainant, it could not be said that S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 relating to Haraabah, was inapplicable---Legality of identification parade by Police, being contentious, observation in that respect at bail stage, could prejudice case of either party---Point of delay was of no consequence as in the circumstances of case no delay could be attributed to have occurred---Even otherwise, if one was not entitled to concession of bail on merits, mere delay in lodging F.I.R., would not constitute a ground for bail---Tentative assessment of material on record, had fully implicated accused in alleged commission of offence---Collected material was rightly appreciated by the Trial Court---Grant or refusal of bail being matter of discretion of the court, once the discretion was exercised rightly, within the parameters prescribed by law and approved by superior courts, courts were reluctant to interfere with such discretionary order---Bail application was dismissed, in circumstances.

1994 PCr.LJ 1068 ref.

Nasir Yousafzai for the Applicant.

Zahoor Ahmed Shahwani Prosecutor-General for the State.

Date of hearing 12th January, 2010.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2146 #

2011 Y L R 2146

[Quetta]

Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ

SI1AH NAWAZ and others ---Appellants

Versus

THE STATE and others-Respondents

Criminal Appeal No. 5 and Criminal Revision Petition No.2 of 2010, decided on 23rd June, 2011.

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

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Appreciation of evidence---Witnesses did not mention the injuries caused to accused persons, but they assigned the role of raising "Lalkara" to accused---Said statements of the prosecution witnesses did not match the facts of the incident and had suppressed some of the facts---If accused had a Kalashnikov to kill the deceased, there was no need for the accused to wait till arrival of the eye-witnesses---Statements of the witnesses of with regard to "Lalkara" were unbelievable; for the reason that the F.I.R. was registered prior to the F.I.R. of the present case---Despite the narrated facts of the complainant side, there was no pre plan or pre-concert of mind for commission of the murder---Section 34, P.P.C., in circumstances, hardly could be applied in the matter---Facts had further shown that accused, despite having kalashnikov, same was not used by them nor at a sudden or in spur of the moment, the deceased took out the knife and started inflicting the injuries to accused---No common intention having been found on the part of accused, he could not be held responsible for the act of co-accused---Accused, in circumstances, was not liable to be convicted for the murder of deceased---Conviction and sentence awarded to accused in the case was absolutely improper and illegal---Accused was acquitted of the charge; whereas it was proved that during the fight, the circumstances compelled co-accused to kill the deceased.

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

----S. 302 (b)/34---Qatl-e-amd---Common intention---Appreciation of evidence---Act of co-accused had shown that he fired at the deceased, who received several injuries on his vital parts---Co-accused, in his self defence, could have made fires at the legs of the deceased and not on his vital parts-- Co-accused, in circumstances, had committed the murder of deceased and Trial Court had rightly held it a result of mitigating circumstances---Finding of the Trial Court to the extent of co-accused could not be interfered with---Appeal against order of the Trial Court to the extent of co-accused was dismissed and his conviction was maintained by High Court.

Mst. Khatoon v. Sabir Ahmed and others PLD 1995 Kar. 593 and 1997 (4) CRI (563) ref.

Muhammad Aslam Chisthi for Appellants.

Ateeq Ahmed D.P.G. for Respondent.

Muneer Ahmed Langove for the Complainant.

Muneer Ahmed Langove for Petitioners.

Muhammad Aslam Chishti for Respondents.

Ateeq Ahmed D.P.-G. .for the State.

Date of hearing: 6th June, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2169 #

2011 Y L R 2169

[Quetta]

Before Ghulam Mustafa Mengal and Muhammad Hashim Khan Kakar, JJ

ABDUL JABBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.232 of 2009, decided on 23rd `June, 2011.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Prosecution witnesses were cross-examined at length, but nothing had come on record favouring accused or materially affected the case of prosecution to believe that charas was not recovered from the vehicle, which was being driven by accused at the relevant time---Prosecution had proved its case in respect of recovery of charas from the vehicle which was in possession and under control of the accused---Prosecution witnesses, however, in their account had stated that the charas, recovered front accused was in shape of rods, out of which 10/10 grams charas from 10 packets, in the shape of rods, were sent to the Chemical Expert for analysis, meaning thereby that initially only 100 grams of charas was sent to the expert for analysis---Nothing was available on record showing that samples for examination by Chemical Examiner were taken out from all the packets or each rod to prove that entire rods/packets contained charas---Samples were separated and sent to the Chemical Expert after lapse of about seven months after the arrest of accused---Nothing had come on record, which could show that during such period of time where the charas was lying, whether in the Customs Intelligence Office or somewhere else---Prosecution was duty bound to place on record the entire evidence in order to prove its case against accused effectively beyond any shadow of doubt, but evidence, brought on record, clearly missed the chain---Trial Court had wrongly placed reliance upon the report of Chemical Expert which was not admissible piece of evidence being procured and tendered illegally---Prosecution had proved its case against accused only to the extent of 100 grams charas in circumstances----Accused being in custody since 13th January, 2008, conviction and sentence awarded to accused be treated as already undergone.

1993 PCr.LJ 2287 (FSC) rel.

PLD 2004 SC 858 ref.

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

---Ss. 156 & 173---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotics--- Investigation of case by Police or Customs Authorities---Power of Police to reinvestigate the case---Police or Customs Authorities were not statutorily prohibited from investigating a case as many times as they chose; and could file a fresh challan in the court as a result of subsequent investigation or events--Powers of Police to reinvestigate the case or submit subsequent challan, were unlimited; and no law existed which precluded the Police from reinvestigation of case---Any document, which, the prosecution intended to rely upon, should be submitted before the court through proper and subsequent challan as envisaged under S.173 of Cr.P.C.---If the law required something to be done in a specific manner, it should be done as law required and departure was not permissible---Police or any other Investigating Agency, had no unfettered power to place a document on record in gross violation of the prescribed manner.

----S. 265-C---Supply of statements and documents to accused---Object of S.265-C, Cr.P.C.---Object of S.265-C, Cr.P.C. appeared to be to meet the vacuum created by the abolition of commitment proceedings and to make available to accused all the available evidence, which the prosecution had for the unfolding of the true case before the court---Purpose, was that accused could know before he was sent up to stand trial in a charge punishable with death or imprisonment for life as to what evidence he would have to meet at the trial in order to take up a proper defence plea---Interval of seven days emerged under S.265-C, Cr.P.C., was also significant, because it was meant to give accused sufficient time to study the allegations against him and to prepare his plea in defence.

Muhammad Qahir Shah for Appellant.

Chaudhry Mumtaz Yousaf, Standing Counsel for the State.

Date of hearing: 31st May, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2407 #

2011 Y L R 2407

[Qeutta]

Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ

MUHAMMAD IMRAN TEHSEEN---Petitioner

Versus

EJAZ LODHI and 3 others---Respondents

Civil Revision Nos.282 and 298 of 2006 decided on 7th May, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, R. 9---Attachment before judgment---Dismissal of suit---Pendency of appeal---Effect---Plaintiff filed suit for recovery of money and during its pendency property of defendants was attached before judgment but during pendency of petition before High Court, the Trial Court dismissed the suit---Validity---While making an order, whereby the suit stood dismissed, it was incumbent upon Trial Court to make a specific order for withdrawal of the order made for attachment of the property---Even if the Trial Court failed to make order as required under O. XXXVIII, Rule 9 C.P.C., even then that order had come to an end, as soon as the suit was dismissed---Fact of filing of appeal against such order of dismissal of suit did not change its effect, as attachment so made before the judgment did not automatically revive, even if the decision of dismissal of suit was reversed by appellate Court thus pendency of appeal against final order was of no effect---Order of attachment stood withdrawn as soon as the judgment was announced by Trial Court, whereby the suit was dismissed---If appellate Court would arrive to the findings and thereby set aside the order decree of Trial Court and remanded the case to Trial Court for further proceedings, even then the order of attachment or furnishing of surety would not revive---Party interested in order of attachment, after remand of case to Trial Court, had to make a fresh request for the purpose to obtain a fresh order in same respect---Revision was dismissed in circumstances.

Adnan Ejaz for Petitioner.

Rauf Hashmi for Respondents.

Date of hearing: 2nd May, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2618 #

2011 Y L R 2618

[Quetta]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

MUHAMMAD DIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-55 and Murder Reference No.(S) 8 of 2009, decided on 28th July, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.374---Qatl-e-amd---Sentence, reduction in---Accused who was convicted and sentenced under S.302(b), P.P.C. to death as ta'zir, had filed appeal for his acquittal, while Sessions Judge had sent Murder Reference for confirmation of the sentence of death or otherwise--Occurrence, which took place in broad daylight, was reported to the Police promptly without any delay---Complainant and prosecution witness were related to the deceased persons, but their evidence could not be brushed aside merely on the ground of their such relationship---Both the eye-witnesses faced the test of cross-examination quite successfully, but their evidence could not be shattered---Medical evidence was also in line with the ocular account and fully corroborated the same--Besides, the ocular evidence, got full support from all the other attending circumstances---Contention of counsel for accused that occurrence was unseen and the 'witnesses were planted, was repelled---Motive seemed to be shrouded in mystery as neither accused nor complainant party had uttered a single word in that regard---Both the parties had appeared to have tried to suppress the facts in order to minimize their role in the whole episode, which culminated in the death of deceased persons---Murder based on "Ghairat" did not furnish a valid mitigating circumstances for awarding a lesser sentence---Motive for the occurrence was stated to be the allegation of "Siahkari", but same had not been established by the prosecution through any preponderant evidence--Prosecution, no doubt, was not required to disclose or set up a motive, but once it chose to do so, then it would become its obligation to prove the same by cogent evidence; and failure in doing so would not only damage the credibility of the prosecution case beyond repair, but it would also be fatal for it---Accused had shown that a mitigating circumstance did exist for commuting the death sentence awarded to him into that of imprisonment for life---Death sentence awarded to accused on two counts under S.302(b), P.P.C., was converted into that of life imprisonment, with benefit of S.382-B, Cr.P.C., in circumstances.

1998 PCr.LJ 990 rel.

Abdul Ghias Nausherwani P.G. assisted by Kamal Khan Kakar for the State (in Murder Reference No.8 of 2009).

Nadir Ali Chagari for Respondent (in Murder Reference No.8 of 2009).

Nadir Ali Chalgari for Appellant (in Criminal Appeal No.S-55 of 2009).

Abdul Ghias Nousherwani P.G. assisted by Mr. Kamal Khan Kakar for the State (in Criminal Appeal No.S-55 of 2009).

Date of hearing: 30th June, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2657 #

2011 Y L R 2657

[Quetta]

Before Muhammad Hashim Khan Kakar, J

Master MUKHTIAR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.(S) 35 of 2011, decided on 22nd July, 2011.

(a) 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---Benefit of doubt---Deeper appreciation of evidence at bail stage was not warranted under the law; and only bird's-eye view was to be made, but bail application could not be decided in vacuum---Tentative perusal of the record had shown that prima facie, no sufficient material was available to believe that accused had committed an offence which fell under the prohibitory clause of S.497, Cr.P. P.C. ---Intention of accused to kill the complainant was not available in the case, particularly when after sustaining a bullet injury, complainant fell down and was entirety at the mercy of accused, but accused, despite having deadly weapons i.e. Kalashnikovs, ceased to repeat their act---Receipt of solitary firearm injury on the leg by the complainant, had indicated that accused had no intention to kill hint; otherwise they would have not shot on his leg---Firing had been attributed to three accused persons, while the complainant had sustained only one bullet injury on his leg---Prima facie, the applicability of S.324, P.P.C. was yet to be determined during course of the trial; and at best the case of accused seemed to be covered by provisions of Ss. 337-A, 337-D & 337-F of P.P.C. which otherwise, either did not fall within the prohibitory clause of S.497, Cr.P. C., or bailable in nature and some of the acts/offences, even punishable with fine only---When an offence was also punishable with fine only, accused would be entitled to bail as a matter of right, because if at the trial he was only sentenced with fine, the period which he served as under-trial prisoner, due to refusal of bail would amount to a case of double jeopardy, which was prohibited under S.26 of the General Clauses Act, 1897, S.403, Cr.P.C. and Art.13 of the Constitution---Case of accused, in circumstances fell within the ambit of further inquiry---Complainant was accompanied by one person at the time of alleged occurrence, but neither statement of said person under S.161, Cr.P.C. was recorded nor he was cited as a witness in the calendar of witnesses, which had shown that prosecution had withheld a very important piece of evidence, which had created doubt to the prosecution case---Doubt could be taken into consideration, even at bail stage---Accused was admitted to bail, in circumstances.

Qurban Hussain and another v. The State PLD 1994 Lah. 385 and 1994 PCr.LJ 1756 rel.

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

----S. 324---Attempt to commit qatl-e-?amd---Section 324, P.P.C. dealt with an attempt to commit qatl-e-amd---Attempt as an indictable crime, would mean an intentional act with a view to attain a certain end, but which was not achieved because of circumstances independent of the will of the offender---Applicability of S.324, P.P.C. had to be adjudged in the background of member of accused persons, the weapons carried by them and the opportunity available to them to complete the intended offence.

Jameel Ahmed Khan for Applicant.

Abdul Ghias Nausherwani, P.G. for the State.

Date of hearing: 22nd July, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2721 #

2011 YLR 2721

[Quetta]

Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ

Haji SANAULLAH---Appellant

Versus

KHALIQ DAD and 3 others---Respondents

Criminal Acquittal Appeal No.158 of 2011, decided on 8th August, 2011.

Penal Code (XLV of 1860)---

----Ss. 447 & 147---Criminal Procedure Code (V of 1898), Ss.417(2-A) & 249-A---Criminal trespass---Appeal against acquittal---Complainant who claimed himself owner of property in question lodged report against respondents/accused persons alleging that they had committed offence of criminal trespass under Ss.447/147, P.P.C.---Ownership and possession of the property was in dispute, between the parties---Disputed land originally belonged to respondents/accused persons; and it was not confirmed that the same was purchased by one who then transferred the same to the complainant---Prima facie, a symbolic possession was given to the complainant while factual or actual possession of the property still seemed not clear---Suit over the ownership of the property in dispute was pending before the civil court---Acquittal order by Judicial - Magistrate under S.249-A, Cr.P.C., deserved no interference---Entrance of legally entitled person could not hold him responsible for his role or any case was made out, falling under S.447/147, P. P. C.

AIR 1968 SC 702 rel.

Muhammad Arshad Aziz for Appellants.

Nemo for Respondents.

Date of hearing: 2nd August, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2768 #

2011 Y L R 2768

[Quetta]

Before Muhammad Hashim Khan Kakar, J

GHULAM RASOOL---Applicant

Versus

THE STATE through Police Station Sohbat Pur District Jaffarabad and

another---Respondents

Criminal Quashment No. S-12 of 2011, decided on 5th August, 2011.

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

----S. 156 & 561-A---Constitution of Pakistan, Art.199-Application for quashment---Investigation-"-Investigation was the right of the Police and it should come to its natural conclusion without interference---Proceedings under Art.199 of the Constitution, were competent against any criminal inquiry or investigation, if the same would encroach upon any fundamental right guaranteed by the Constitution or violated some other law or was motivated by some mala fide reasons.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.365/147/149---Abduction---Quashing of F.I.R., application for---Alleged abductee in her affidavit had stated that she being aged about 21 years was well and sufficiently in a position to think for her future betterment without any coercion, interruption of any kind; that she wanted to marry with accused, who had serious love and affection for her and that he was ready to accept her; that she had decided to marry with him on her choice by exercising her right of free-will---Registered Nikah Nama was executed between accused and alleged abductee---According to said Nikah Nama age of alleged abductee was 21 years and said Nikah Nama was witnessed---Dower' amount Rs.50,000 was also written therein---Alleged abductee also appeared in the court and had not supported the prosecution case and had sought quashing of F.I.R. lodged by her father against accused---Alleged abductee being sui juris, having lawfully married each other, offence as alleged in F.I.R. was not made out---Conviction of accused, in circumstances, was not possible and continuance of the investigation against accused would simpliciter amount to unnecessary harassment and abuse of the process of law---Application for quashing F.I.R. was allowed and F.I.R. registered against accused under S.365, P.P.C., was quashed, in circumstances.

Ali Hassan Bughti for Applicant.

Abdul Sattar, D.P.-G. for the State.

Date of hearing: 29th July, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2807 #

2011 Y L R 2807

[Quetta]

Before Muhammad Hashim Khan Kakar, J

Malik JAFFAR and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-38 of 2011, decided on 12th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Accused were duly named in the F.I.R. and during the course of investigation, accused were found to be involved in the commission of the alleged offence---Allegation as contained in the F.I.R. was duly supported by the complainant and injured witness in their statements recorded under S.161, Cr.P.C.---Record showed that deceased had died due to injuries received by him by discharge of firearms, which was supported by the ocular evidence; as well as the external postmortem examination report---Presence of accused person on the spot along with the absconding accused had been tentatively established from prosecution record as well as from cross F.I.R.-Bail application was dismissed, in circumstances.

1999 SCMR 1360 and 1996 SCMR 1845 distinguished.

Nasir Muhammad Wassan and another v. The State 1992 SCMR 501(b) ref.

Sardar Ahmed Haleemi for Applicants.

Abdullah Kurd for the State.

Date of hearing: 5th August, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2843 #

2011 YLR 2843

[Quetta]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

SHAH NAWAZ and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. (S) 10 of 2010, decided on 4th August, 2011.

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

----S. 302 (b)---Qatl-e-amd---Appreciation of evidence---Not a single tangible evidence could be found in support of the charge against accused persons, connecting them with the commission of offence---One of the prosecution witnesses was cousin of the deceased while other one was real brother of the deceased---Both of them were not only related, but were chance, interested and inimical witnesses---Ocular account furnished by said witnesses was neither confidence-inspiring nor straightforward---Conduct of the prosecution witnesses was not normal, as they had not tried to save the life of the deceased; and also had not tried to catch the culprits, in spite of the fact that the complainant party and accused persons were equal in number and according to their version, accused were unarmed---Occurrence having taken place at odd hours of the night, had gone un witnessed and no independent corroboration was available in support of the ocular account---Prosecution had failed to prove the alleged motive---No evidence was on record to show that the crime weapon, allegedly, recovered on the pointation of accused, was used during the occurrence, as same was not sent to Forensic Science Laboratory---Such piece of evidence, was of no significance and the Trial Court was not justified to place reliance upon the sane---Prosecution evidence had been disbelieved qua the acquitted accused persons---Same evidence, without material corroboration, could not have been considered against the accused persons, when their case was at par with that of co-accused---Prosecution having failed to establish the presence of both the witnesses at the time and place of incident beyond any reasonable doubt, it was very unsafe to rely upon such witnesses on capital charge---After excluding the evidence of ocular testimony, corroborative pieces of evidence of alleged recovery of crime weapon Wanda' on the pointation of accused and medical evidence furnished by the doctor, by itself were insufficient to convict accused in absence of substantive piece of evidence---Conviction and sentence awarded to accused persons, were set aside and they were acquitted of the charge and were released, in circumstances.

Noor Muhammad v. State 2010 SCMR 97 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Motive---Prosecution, no doubt, was not required to disclose or set up a motive, but once it chose to do so, then it would become its obligation to prove the same by cogent evidence; and failure in doing so would not only damage the credibility of the prosecution case beyond repair, but it would also be fatal for it.

1998 PCr.LJ 990 rel.

Haji Liaquat Ali for Appellants.

Abdullah Kurd for P.G. for the State.

Date of hearing: 28th July, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2969 #

2011 YLR 2969

[Quetta]

Before Abdul Qadir Mengal, J

AKRAM and 3 others---Petitioners

Versus

NAZAR ALI and others---Respondents

Civil Revision No.247 of 2002, decided on 5th August, 2011.

Civil Procedure Code (V of 1908)---

----Ss.11, 115 & O. VII, R.1 ---Specific Relief Act (I of 1877), Ss.12 & 54---Declaration of title and injunction---Rejection of plaint---Res judicata, principle of---Plaint filed by plaintiff's was rejected by Trial Court on the principle of res judicata---Validity---Original suit lying between the same parties on the same subject-matter had already been finally decided through which the contention of' plaintiffs was rejected that they were the only legal owners in possession of suit property---Subsequent suit was hit by section 11, C.P.C. which was a legal objection and the same could be considered and decided at any stage of proceedings---Revision under section 115, C.P.C. filed by plaintiffs was not maintainable as the suit of plaintiffs was hit by section 11 C.P.C.---Revision was dismissed in circumstances.

Saleem Lashari and Waseem Shahid for Petitioners.

Mujeeb Ahmed Hashmi for Respondents.

Date of hearing: 29th July, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 2991 #

2011 Y L R 2991

[Quetta]

Before Naeem Akhtar Afghan and Muhammad Noon Meskanzai, JJ

GHULAM AHMED---Appellant

Versus

MUZAFARA BEGUM and 8 others---Respondents

Regular First Appeal No.6 of 2007, decided on 28th July, 2011.

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

----S. 42---Declaration of title---Limitation---Scope---Limitation runs from the date of denial to the right of plaintiff by defendant.

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

----S. 42--- Mutation=-- Presumption---Mutation does not confer any right in any property on any one---Mutation entry raises a rubttable presumption in favour of person in whose favour the same is made.

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Declaration of title---Fraudulent mutation entries---Mutation entry and registered sale-deed--Plaintiff claimed to be co-owner of suit property to the extent of one half share, on the basis of a registered sale-deed dated 16-6-1920, in favour of his predecessor-in-interest, while defendants relying on mutation entry in revenue record denied the claim of plaintiff---Validity---Presumption attached to mutation entry in favour of predecessor-in-interest of defendants stood rebutted through registered sale-deed dated 16-6-1920, in view whereof defendants or their predecessors could not be held as exclusive owners of disputed property---Plaintiff and defendants were half owners of disputed property in equal shares---Revenue record reflected that entry in the name of predecessor-in-interest of defendants was a result of fraud which had vitiated the most solemn proceedings---Once a mutation was challenged, the party that relied on such mutation was bound to revert to the original transaction, which resulted into the entry or attestation of mutation in question---Defendant failed to bring any document on record to prove the transaction in which entry in question was made in favour of their predecessor-in-interest as exclusive owner with regard to disputed property and on the contrary, the only existing document on record i.e. registered sale-deed dated 16-6-1920, proved that plaintiff was owner of one half of the property, who was illegally deprived of the property as shareholder in revenue record---As mutation entry in revenue record in the name of predecessor-in-interest of defendants was a result of fraud and contrary to registered sale-deed, therefore, the same was void ab intio, hence no limitation could run with regard to such fraudulent entry---Plaintiff was entitled to the relief claimed in the suit property with regard to half of the disputed property as co-sharer on the basis of registered sale-deed dated 16-6-1920---Plaintiff was further entitled to inherit share of his mother and wife in the other half of disputed property, by way of correction of entries, partition and possession---Judgment and decree passed by Trial Court was set aside and the suit was decreed in favour of plaintiff---Appeal was allowed in circumstances.

Muhammad Younus Khan v. Government N.W.F.P. 1993 SCMR 618; Mst. Suban v. Allah Ditta 2007 SCMR 635 and Muhammad Saleh v. Muhammad Shafi 1982 SCMR P. 33 ref.

Syed Ayaz Zahoor for Appellant.

Jamil Ramzan for Respondents.

Date of hearing: 20th July, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 3013 #

2011 Y L R 3013

[Quetta]

Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ

Haji MEHRAB KHAN---Appellant

Versus

Mst. BIBI WAHIDA and others---Respondents

Regular First Appeal 'No.48 of 2004, decided on 18th July, 2011.

Islamic law---

----Pre-emption suit for---Talbs, performance of-Proof-Plaint not finding mention specific date, day and time of knowledge about sale and performance of Talb-e-Muwathibat---Notice of Talb-e-Ishhad not finding mention either date of knowledge of sale or name of persons before whom Talb-e-Muwathibat was made---Two witnesses examined in court by pre-emptor were not regarding factum of such Talbs---One witness examined in support of factum of Talb-e-Muwathibat neither stated date, day and time of knowledge of sale nor named person before whom such Talb was made---Validity---Law required that person before whom Talb-e-Muwathibat was made, must be nominated and specified, thus, his statement was essential and inevitable---Pre-emptor had failed to prove first Talb-e-Muwathibat-Suit was dismissed in circumstances.

W.N. Kohli for Appellant.

Safdar Muhammad for Respondents.

Respondent No.13 present in person.

Date of hearing: 1st June, 2011.

YLR 2011 QUETTA HIGH COURT BALOCHISTAN 3055 #

2011 YLR 3055

[Quetta]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

ALI MUHAMMAD alias BABOO and another---Appellants

Versus

THE STATE---Respondent

Criminal A.T.A. Appeal No. (S) 3 of 2010, heard on 21st July, 2011.

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

----Ss. 302(b) & 202---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.38 & 39---Qatl-e-amd, intentional omission to give information of offence by person bound to inform, terrorism---Appreciation of evidence--Benefit of doubt---Two Police Officials, who appeared as prosecution witnesses, stated about two disclosures of accused person; one made before them regarding murder of deceased; and second with regard to concealment of the crime weapon of offence/knife in the guest house of the complainant---Disclosure with regard to the murder of deceased by accused, which amounted to confession, before Police, were inadmissible in view of the clog contained in Arts.38 & 39 of Qanun-e-Shahadat, 1984; other disclosure, which related to the concealment of knife, was admissible as alleged weapon was recovered in pursuance thereof---Such evidence by itself being evidence of purely corroborating nature, in absence of any direct or substantive evidence alone, was not sufficient to bring home charge against accused person---Witness during cross-examination had admitted that the knife was not stained with blood---Chemical Examiner's report was not produced in evidence so as to prove that knife was stained with blood---Unless substantive direct evidence was available, conviction could not be based on any other type of evidence, howsoever, convincing it could be---Ocular evidence was furnished by the complainant and other prosecution witness---Complainant had stated that he involved the accused persons in the commission of offence as he suspected accused person in "Balochi Hal-o-Ehwal "---Capital punishment could not be awarded, simpliciter on account of suspicions and "Balochi Hal-o-Ehwal" as suspicion could not take the place of proof---Accused had been convicted and sentenced on basis of inadmissible pieces of evidence---Prosecution having failed to prove the case against accused beyond any reasonable doubt, they were entitled to the benefit of doubt---Giving benefit of doubt, accused were acquitted of the charge.

1991 SCMR 643 and 1997 SCMR 290 rel.

(b) Constitution of Pakistan---

----Art. 28---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Preservation of language, script and culture---Any section of citizens having a distinct language, script or culture, had the right to establish institutions for protection of said culture, but by no stretch of imagination, under the garb of any cultural event, a person could be found guilty of murder---?Balochi Hal?o-Ehwal" was a recognized method of communication, where acquainted people asked about the well-being of each other---Under the Balochi Culture, an accused, while showing himself to be innocent, could pass through the fire; or could clear his position by means of taking the oath on Holy Quran, but in no way could be found guilty on account of "Balochi Hal-o-Ehwal".

Nouroz Mengal for Appellant.

Liaquat Ali for Respondent.

Date of hearing: 21st July, 2011.