YLR 2014 Judgments - Pakistan Legal Archive

Courts in this Volume

Election Tribunal Sindh
Federal Shariat Court
Gilgit Baltistan Chief Court
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Shariat Court Azad Kashmir
Supreme Court Azad Kashmir

Election Tribunal Sindh

YLR 2014 ELECTION TRIBUNAL SINDH 2351 #

2014 Y L R 2351

[Election Tribunal Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

ZULFIQAR ALI BEHAN---Petitioner

Versus

RAIS GHULAM MURTAZA KHAN JATOI and 16 others---Respondents

Election Petition No.1 of 2014, decided on 11th August, 2014.

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

----Ss. 68 (b), 69, 99 (f), 12 (f) & 52---Constitution of Pakistan, Arts.62 & 63---Election petition---Election for the seat of Member of National Assembly---Fake declaration about educational certificate, assets and liabilities---Qualification and disqualification of a candidate---Burden of proof---Person not ameen and righteous---Scope---Disqualification---Nature---Burden of proof with regard to qualification of a candidate for his election as a member of Majlis-e-Shoora (Parliament) was on the candidate himself whereas the burden of proof with regard to his disqualification would be on the election petitioner---Returned candidate was disqualified during the previous election due to his Sanad produced by him as equivalent to the graduation or bachelor's degree which was not recognized by University Grants Commission---Such disqualification was permanent in nature which could not be vanished if he had passed B.A. examination thereafter---Returned candidate had falsely claimed himself to be a graduate and he had not disclosed his assets in the nomination form filed by him, therefore, he was not ameen and righteous---Returned candidate did not have the qualification as provided under Art. 62(f) of the Constitution read with S. 99(f) of Representation of the People Act, 1976 and he was not qualified to be elected as a member of National Assembly---Nomination papers of returned candidate were illegally accepted---Disqualification of returned candidate was notorious to the public and his voters and votes obtained by him were liable to be thrown away---Petitioner was entitled to be declared as a returned candidate having obtained the second highest votes amongst all the contesting candidates and no disqualification against him had been alleged by the returned candidate or any other person---Election of returned candidate was declared void and petitioner was declared as returned candidate---Election petition was accepted in circumstances.

Malik Iqbal Ahmed Langrial v. Jamshed Alam and others PLD 2013 SC 179 rel.

Jhamat Jethanand for Petitioner.

Ikram Ahemd Ansari for Respondent No.1.

YLR 2014 ELECTION TRIBUNAL SINDH 2432 #

2014 Y L R 2432

[Election Tribunal Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

MUHAMMAD ABDUL RAUF SIDDIQUI---Petitioner

Versus

ISRAR AHMED ABBASI and 29 others---Respondents

Election Petition No.3 of 2013, decided on 25th July, 2014.

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

----Ss. 68 (b), 70 (b) & 52---Election petition---Election for the seat of Member of Provincial Assembly---Corrupt or illegal practice---Examination of thumb marks appended on counterfoils of the votes cast at polling stations through National Database and Registration Authority---Scope---Firing outside the polling station during polling was made due to which sense of insecurity among voters was created by the returned candidate---Out of total 92,731 counterfoils only 10,007 were such counterfoils on which the fingerprints could be authenticated whereas 3,270 were the counterfoils on which the fingerprints had failed authentication while 63,469 counterfoils were such on which the fingerprints were of bad quality and same could not be processed---Magnetized ink proposed to the Election Commission by National Database and Registration Authority during polling was not used---Out of 6,175 counterfoils of six polling station only 458 were authenticated as of the genuine voters of specific constituency and 6,867 votes polled at such six polling stations where corrupt and illegal practices had been proved could not be said to have been polled in free and congenial atmosphere necessary for the free and fair election---Petitioner had proved corrupt and illegal practices at the election of six polling stations in the specific constituency---Margin of lead of returned candidate was only 6,825 votes---Election of specific constituency had been materially affected which was declared void as a whole---Election petition was accepted in circumstances.

Ananda Bachar v. A.R. Khan PLD 1967 Dacca 362 and Abdul Hafeez v. Muhammad Tahir Khan Looni 1999 SCMR 284 ref.

Ananda Bachar v. A.R. Khan PLD 1967 Dacca 362 rel.

Dr. Farough Nasim for Petitioner.

Khalid Nawaz Marwat for Respondent No.19.

Nemo for other Respondents.

Federal Shariat Court

YLR 2014 FEDERAL SHARIAT COURT 459 #

2014 Y L R 459

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J.

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.98/L of 2009, decided on 11th June, 2013.

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

----S. 12---Penal Code (XLV of 1860), S.377---Kidnapping or abducting in order to subject person to unnatural lust, sodomy---Appreciation of evidence---Benefit of doubt---F.I.R., which was lodged after about five and a half hours of the alleged incident, neither mentioned the name of accused, nor his features were given---Co-accused had been shown as the main culprit, but he was exonerated afterwards, and was acquitted from the case---Since, the name of accused did not appear in the F.I.R., it was legally necessary to have conducted his identification parade through the victim and two other witnesses, who had seen him running in the street---No explanation was on record to the effect as to why identification parade was not held---Both the witnesses were related to the complainant, and were chance witnesses as they were not resident of the area concerned---No person from the vicinity had been made witness of the incident---According to Doctor, anus sphincter of the victim was normal, and no abrasion or laceration in the anal canal was present and there was no pain in walking---Trial Court was not justified to convict and sentence accused, as the prosecution had not proved the charge against accused beyond any reasonable doubt---Conviction and sentences awarded to accused by the Trial Court, were set aside, and he was acquitted of the charge by giving him the benefit of doubt in circumstances.

Ch. Muhammad Arshad Ramay for Appellant.

Zahid Younas, Deputy Public Prosecutor Punjab for the State.

Date of hearing: 11th June, 2013.

YLR 2014 FEDERAL SHARIAT COURT 724 #

2014 Y L R 724

[Federal Shariat Court]

Before Shahzado Shaikh, Rizwan Ali Dodani and Sheikh Ahmad Farooq, JJ

SHAHNAWAZ and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 77/L, 85/L of 2009, 65-I of 2010 and Criminal Murder Reference No.11-I of 2009, decided on 29th August, 2013.

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

----Ss. 302(b) & 201---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)---Qatl-e-amd, causing disappearance of evidence of offence, or giving false information, zina-bil-jabr, liable to Tazir---Appreciation of evidence---Benefit of doubt---F.I.R., was got recorded after a delay of about 7/8 hours, which delay was unexplained---Such delay would lead to inference that occurrence was unwitnessed, and the complainant availed enough time to deliberate, consult and fabricate a false story---Postmortem examination of the deceased ladies was also conducted after approximately 22 to 28 hours of the death---Possibility, could not be ruled out that the intervening period could have been consumed by the complainant for concocting a story, in consultation with his relatives to falsely implicate accused persons---No one had seen accused persons committing qatl-e-amd of deceased ladies---Mere allegation that accused were seen digging the earth and burying the dead bodies in the mud, was not sufficient to hold that said two ladies were actually murdered by accused persons---Two ladies could not be murdered by one person, in the manner, narrated by prosecution witnesses---Two co-accused persons were declared innocent during investigation, and were acquitted by the Trial Court---Case of convicted accused, could not be distinguished from acquitted co-accused---Ocular account of the occurrence furnished by the prosecution was not trustworthy or confidence inspiring; and accused persons could not have been convicted on the basis of inherent weak and improbable prosecution story---Ocular account of the incident, was not at all corroborated by the medical evidence---Recovery of articles belonging to the deceased ladies, could not be relied upon for maintaining conviction of accused, as no mention was in the F.I.R. or the statements of the prosecution witnesses that deceased ladies were wearing said articles---Said articles were never got identified by the Investigating Officer---Articles belonging to the deceased ladies, were not only recovered at a belated stage, but also from muddy wet surface of sugar-cane field---Said articles were not sent to the Chemical Examiner or the Serologist for detecting of blood---Said recovery did not connect accused with the commission of offence of murder---Ocular account as well as the medical evidence had established that deceased ladies were not subjected to zina---Murder of deceased ladies, being unwitnessed and shrouded in mystery, provisions of S.201, P.P.C. could not be applied to accused persons---Flagrant discrepancies existed in the statements of the star witnesses, and prosecution case was pregnant with serious doubt and full of contradictions---Case of accused was at par with the case of co-accused, who had been acquitted---Conviction and sentences recorded by the Trial Court against accused persons were set aside---Accused who was in jail was released, in circumstances.

2009 PCr.LJ 1022; PLD 1975 SC 588; 1985 SCMR 160; 2010 SCMR 1604; Asif Hussain and another v. The State PLD 1994 S.C 178; PLD 1994 SC 679; 1983 SCMR 428; 1977 PCr.LJ 859; PLD 2003 SC 656; 1983 SCMR 806; 1984 SCMR 646; 2010 SCMR 1020; 1995 SCMR 1365; 2005 SCMR 427; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Abdullah v. The State NLR 2004 Criminal 676 and PLD 1963 Pesh. 178 ref.

(b) Criminal trial---

----Motive---Motive was a double edged weapon, which cut both ways---Enmity could prompt a person to commit crime, but on the other hand, could be used for false implication in the case.

----S. 201---Causing disappearance of evidence, of offence, or giving false information to screen offender---Ingredients of offence---Three ingredients were essential to constitute offences under S.201, P.P.C. which were "knowledge"; "commission" and "intention".

(d) Criminal trial---

----Benefit of doubt---Principles---If a case was to be decided merely on surmises and conjectures, or high improbabilities to prove the guilt of an accused, the golden rule of benefit of doubt to accused, which was deep-rooted, and had been dominent feature of administration of justice with consistent approval of superior courts would be reduced to naught.

Shahbaz A. Rizvi and M. Abdul Sattar Chughtai for Appellants.

Manzoor Hussain Butt for the Complainant.

Tariq Javed, D.D.P.P. for the State.

Date of hearing: 27th August, 2013.

YLR 2014 FEDERAL SHARIAT COURT 853 #

2014 Y L R 853

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Syed TALIB HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.8-L of 2012, decided on 19th November, 2013.

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

----S. 10(3)---Penal Code (XLV of 1860), Ss.380, 448 & 34---Zina-bil-jabr liable to tazir, theft in dwelling house, house-trespass, common intention---Appraisal of evidence---Benefit of doubt---Inordinate delay of 2 months and 13 days in registration of F.I.R., was not cogently and plausibly explained---No one had seen accused committing 'zina-bil'jabr' with the daughter of the complainant---Co-accused had been acquitted by the Trial Court---At least, there were 20/25 houses in the street, where occurrence took place---No man of ordinary prudence would try to commit "zina-bil-jabr" with a woman without locking/bolting the door of the room/house which was situated in a narrow thickly populated street---Version/story of the complainant seemed to be improbable---Inhabitants of street had gathered on the spot immediately after the occurrence on hearing the hue and cry of the complainant and the victim; but, none of them had appeared in the Trial Court in order to support the allegations of the complainant---Corroboration, was not a rule of law but that of prudence---Acid test of veracity of the statement of the prosecutrix, no doubt was the inherent merit of her statement, but solitary statement of the victim was neither trustworthy, or confidence inspiring, nor supported by medical evidence---Victim alone could not be relied upon for recording conviction of accused, in circumstances---Medical evidence also did not prove the commission of 'zina-bil-jabr' by accused with the victim beyond reasonable shadow of doubt---Neither any Police Official accompanied the victim to the Lady Doctor who conducted her medico-legal examination, nor any independent person identified her during said examination---As to whose medical examination was conducted by the Lady Doctor was shrouded in mystery---Lady Doctor was not able to give any opinion regarding the commission of zina prior to receipt of report of Chemical Examiner---Sample of semen of accused was not taken by the Doctor, nor sent to the Serologist for grouping---No DNA test of accused was conducted---Trial Court did not properly appreciate the statement of accused made on oath in disposal of the allegations/charges made against him---Statement of accused which was supported by a number of documents was more convincing as compared to the evidence of the complainant, which was not only contradictory, but also not worthy of any credence---Trial Court had de-exhibited all the documents which were produced by accused while making his statement under S.340(2), Cr.P.C.---Inquiry Officer in his report had clearly mentioned that real dispute between the parties was regarding vacation of the house in possession of the complainant as a tenant---Accused had also proved his enmity with a relative complainant---Chances of false implication of accused by the complainant could not be ruled out, in circumstances---Trial Court disbelieved the evidence of the complainant to the extent of presence and participation of two co-accused, but had convicted accused on the same evidence---Whole occurrence as narrated by the complainant in the F.I.R. was not believed, which fact alone had created a serious dent in the veracity of the prosecution story, benefit thereof must accrue in favour of accused as a matter of right and not of grace---Prosecution having failed to prove the charges against accused beyond reasonable shadow of doubt, Trial Court was not justified in recording convictions and sentence against accused---Impugned judgment of the Trial Court was set aside by Federal Shariat Court and accused was acquitted of the charges and was released.

2007 PCr.LJ 1792; PLD 1985 FSC 120; 1986 PCr.LJ 1794; 2007 PCr.LJ 50; 2005 PCr.LJ 1722; PLD 1987 FSC 25; 1993 PCr.LJ 1842 and 2010 SCMR 584 ref.

Khan Muhammad v. The State PLD 1986 FSC 262; Saeed Ahmed and another v. The State 2006 PCr.LJ 1311; 2010 SCMR 584; Shehzad alias Shaddu and others v. The State 2002 SCMR 1009; 1993 PCr.LJ 1842; 2013 SCMR 203 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Mrs. Fakhar-un-Nisa Khokhar for Appellant.

Ch. Muhammad Mustafa D.P.P. for the State.

Date of hearing: 12th November, 2013.

YLR 2014 FEDERAL SHARIAT COURT 1089 #

2014 Y L R 1089

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Mst. IRSHAD BIBI---Appellant

Versus

NISAR AHMAD and 5 others---Respondents

Criminal Appeal No.326/L of 2002, decided on 28th November, 2013.

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

----Ss.10 & 11---Criminal Procedure Code (V of 1898), Ss. 417(2-A) & 431---Zina-bil-jabr, liable to tazir, kidnapping, abducting or inducting woman to compel for marriage etc.---Appeal against acquittal---Appreciation of evidence---Main accused with whom alleged abductee had contracted marriage of her own free will and consent, had died after the impugned judgment of Trial Court, and during the pendency of appeal which had rendered the appeal infructuous in toto; because after the death of main accused, there remained no criminal liability of the remaining accused persons---In the present case, appeal, even to the extent of remaining accused persons, being no more maintainable, was liable to be dismissed---Judgment of the Trial Court, was neither perverse nor based on misreading and non-reading of evidence---No injustice had been done in the administration of criminal justice by the Trial Court, while passing impugned order of acquittal.

Azam's case PLD 1984 SC 95 ref.

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

----Ss. 410 & 417(2-A)---"Appeal against conviction" and "appeal against acquittal"---Scope---Criterion for deciding appeal against acquittal was different from one against conviction---Appellate Court should always give proper weight and consideration to the views of the Trial Court; as to the credibility of the witness---Presumption of innocence in favour of accused would not be weakened by acquittal at trial---Finding of fact recorded by Trial Court, unless perverse, based on misreading, or non-reading of evidence and suffered from gross injustice could not be disturbed.

PLD 2010 SC 632; 1991 SCMR 2220; 1992 SCMR 96 and 2009 SCMR 985 ref.

Nemo for Appellant.

Nadeem Zafar, DDPP Punjab for the State.

Date of hearing: 28th November, 2013.

YLR 2014 FEDERAL SHARIAT COURT 1717 #

2014 Y L R 1717

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Mst. LAL KHATOON---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.136-L of 1999, decided on 21st March, 2014.

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

----S.10(3)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Zina-bil-jabr---Appeal against acquittal---Appraisal of evidence---Sentence, reduction in---Mitigating circumstance---Delay of six days in the registration of the case, being genuine had plausibly been explained, no adverse inference therefore, could be drawn regarding the truthfulness of the prosecution story, merely, due to said delay---Minor contradictions between the statements of the victim and prosecution witness, neither were material, nor sufficient to disbelieve the prosecution story, as such statements were recorded by the Trial Court after more than seven years of occurrence---Such contradictions were not proved in accordance with Art.140 of Qanun-e-Shahadat, 1984---Despite minor contradictions in the statement of prosecution witness, his evidence could not be discarded---Mere absence of marks of injury or violence on the victim's body, would not imply non-commission of rape---Existence of marks of struggle, pre-supposed struggle which depended on capability of victim to offer resistance---In the present case, victim was a married lady of 38 years, having suddenly been overpowered by a young man of about 22 years, victim could not have resisted the assault with her physical force---Non-recovery of the knife, allegedly being carried out by accused at the time of occurrence, was not fatal to the prosecution story, as the complainant could not be held liable for any lapse on the part of the Investigating Officer---No previous enmity existed between the complainant and accused which could have resulted in the false implication of accused---Solitary statement of the victim, if found to be confidence-inspiring, was sufficient to record conviction of accused without any corroboration---Shalwar as well as the swabs taken from the vagina of the victim, were found to be stained with semen by Chemical Examiner---Lady doctor had stated that the victim was subjected to sexual intercourse---Statement of the victim was fully supported and corroborated by medical evidence---Trial Court had no justification to acquit accused of the charge, in circumstances---Misreading of evidence by the Trial Court, had resulted in miscarriage of justice---Impugned judgment, whereby accused was acquitted by the Trial Court, was set aside---Period of more than 20 years having elapsed, since the occurrence, till the decision of the present appeal, same was a mitigating factor for awarding a lesser punishment to accused---Ends of justice, would adequately be fulfilled, if a lesser punishment was awarded to accused--Maintaining conviction of accused, accused was sentenced to four years' R.I., with benefit of S.382-B, Cr.P.C.

Haji Ahmad v. The State 1975 SCMR 69; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Janoo alias Jan Muhammad v. The State PLD 1982 FSC 87; Bayazeed alias Kali v. The State 1988 PCr.LJ 1458; Gulsher and another v. The State 2004 YLR 602 and Mst.Zafran Bibi v. The State PLD 2002 FSC 1 ref.

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

----S. 10(3)---Zina-bil-jabr---Appreciation of evidence---Recovery of weapon of offence, was a corroborative piece of evidence, which was not essential in case of 'zina'bil-jabr'---Most important witness in such-like cases was the victim; and if her statement was trustworthy and reliable, conviction could safely be recorded on her evidence---Corroboration, was not a rule of law, but that of prudence---Acid test of the veracity of the statement of the prosecutrix/victim, no doubt was the inherent merit of her statement, because corroborative evidence alone, could not be made a basis to record conviction.

----S.417(2-A)---Appeal against acquittal---Acquittal, effect---Accused after his acquittal from the Trial Court, would acquire double presumption of innocence, but finding of acquittal, was not sacrosanct, if the reasons given, were of speculative or artificial in nature, or the same was based on no evidence, or misreading or misinterpretation of evidence; or the conclusion drawn as to the guilt or the innocence of accused, were perverse, resulting into miscarriage of justice.

Sheikh Khizar Hayat for Appellant.

Respondent in person.

Humayun Aslam, D.P.G. for the State.

Date of hearing: 20th March, 2014.

YLR 2014 FEDERAL SHARIAT COURT 2026 #

2014 Y L R 2026

[Federal Shariat Court]

Before Allama Dr. Fida Muhammad Khan, Rizwan Ali Dodani and Mrs. Ashraf Jahan, JJ

ABDUL WAHEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.4/I of 2014, decided on 21st April, 2014.

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

----S.17(4)---Haraabah with murder---Appreciation of evidence---Benefit of doubt---Case of no ocular evidence---Firearm injury on the left side of chest of accused, was fatal, such injury on the vital part of the body of accused, did not appear to be self-inflicted---Police had not taken independent witnesses from the locality without any reasonable explanation---Police instead of asking respectables of area to witness the recoveries, got the street vacated and only Police Officials acted as mashirs---In case of availability of independent witnesses, if the recovery was not attested through them, same would be doubtful---No identification test of recovered money and mobile phone belonging to deceased had been conducted through the witnesses to ascertain the same as actual robbed property---Such lacunae were fatal to the case of prosecution; and could not be ignored specially in circumstances when there was no ocular evidence against accused---Complainant was the brother of deceased and other prosecution witnesses were also his close relatives---Prosecution witnesses, in the F.I.R. and during the evidence before the Trial Court had not nominated accused with the commission of crime---Witnesses, who had been declared hostile, had denied the suggestion made by the prosecution regarding involvement of accused in the commission of crime, or about any compromise allegedly arrived between the parties---Neither any "faisla" was produced on record nor any witness of such "faisla" was examined---Said version of prosecution was not supported through any oral or documentary evidence---Neither Investigating Officer of the case was examined, nor DSP, who was said to have attended proceedings of alleged compromise had come forward to support that contention---Contradictory versions of Police witnesses regarding arrest of accused were found on record---No Mashirnama of arrest of accused was produced to show as to when or from which place accused was arrested---All those facts had created serious doubts about the trustfulness of the case of prosecution against accused---For proof of theft liable to hadd, either accused had to confess about his guilt, or at least two Muslim adult male witnesses, having regard to the requirement of 'tazkiyah-al-shahood' give evidence as eye-witnesses of the occurrence and only then punishment under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, could be awarded---Such evidence lacked in the case, Trial Court had committed an error while awarding sentence of death to accused---Extending benefit of doubt to accused, he was acquitted, in circumstances.

Muhammad Afzal v. The State 1983 SCMR 1; State through Advocate General Sindh v. Bashir and others PLD 1997 SC 408 and Muhammad Azam v. The State PLD 1996 SC 67 ref.

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

----S. 103---Search---Main object behind S.103, Cr.P.C., was to guard against possible chicanery and concoction---Application of S.103, Cr.P.C. was mandatory in nature unless it was shown by the prosecution that in the circumstances of a particular case it was not possible to have mashirs from the locality.

Zahoor-ul-Haque Chishti for Appellant.

Muhammad Tahir Iqbal Khattak, Additional Prosecutor General, Balochistan for the State.

Date of hearing: 4th April, 2014.

YLR 2014 FEDERAL SHARIAT COURT 2116 #

2014 Y L R 2116

[Federal Shariat Court]

Before Allama Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

Mst. SAJIDA BIBI---Appellant

Versus

MUKHTAR AHMED and 2 others---Respondents

Criminal Appeal No.216/L of 2003, decided on 14th May, 2014.

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

----S.10(3)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Zina-bil-jabr liable to tazir---Appeal against acquittal---Appreciation of evidence---F.I.R. was lodged after 4/5 days of the occurrence and such delay was not plausibly explained---Medical test of the victim was conducted after 5 days of the incident---Father of the victim was not produced as a witness before the Trial Court, while his daughter had been subjected to zina-bil-jabr---Victim got no injury during alleged incident of rape; medical report also opined that no mark of violence or injury was found on the person of victim---Such fact alone cast serious doubt, when the manner in which alleged offence of rape was stated to have been committed---Presence of prosecution witness who gave ocular account in respect of the incident, at the place of incident, was doubtful as he was resident of other town, which was about three K.Ms. away from the town of the victim---Prosecution did not bother to produce the clothes of victim which she was wearing at the time of incident, which could play a major role in case of rape, particularly when same was said to have been stained with semen and blood as per the statement of victim---Victim had recorded her statement before the Magistrate under S.164, Cr.P.C., but said Magistrate was not examined before the court to substantiate such statement---Prosecution could not make out the case against accused persons---Sole testimony of prosecutrix, in such circumstances, could not be believed, as it depended upon the facts and circumstances of each case, and had to be assessed by the court on the basis of the entire evidence on the record---Impugned judgment of acquittal passed by the Trial Court was upheld, which did not warrant interference by Federal Shariat Court.

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

----Arts. 132 & 133---Cross-examination of witness---Scope---Suggestions in cross-examination by the counsel of acquitted accused may be in nature of admissions of some incriminating fact or a guilt, same could not be construed as an admission of fact or a guilt, unless proved by some independent evidence, inasmuch as those may at the most be said to be the result of an inarticulate, or inappropriate art of cross-examination, and could not be given that much significance.

Mian Muhammad Nawaz for Appellant/Complainant.

Abdul Waheed Sheikh for Respondents.

Dr. Muhammad Anwar Khan Gondal, Additional Prosecutor General Punjab for the State.

Date of hearing: 2nd May, 2014.

YLR 2014 FEDERAL SHARIAT COURT 2247 #

2014 Y L R 2247

[Federal Shariat Court]

Before Dr. Agha Rafiq Ahmed Khan, C.J., Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

MUHAMMAD ASHRAF---Appellant

Versus

MUHAMMAD ILYAS and 8 others---Respondents

Criminal Appeal No.59/L of 2003, decided on 16th May, 2014.

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

----Ss.10(3)(4) & 11---Penal Code (XLV of 1860), Ss.324, 397, 460, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Zina-bil-jabr, liable to tazir, kidnapping, abducting or inducing woman to compel for marriage, attempt to commit qatl-e-amd, robbery or dacoity with attempt to cause death or grievance hurt, lurking house-trespass by night, rioting, common object---Appeal against acquittal---Appraisal of evidence---F.I.R. was lodged in the case with delay and no explanation was available for the same---Witnesses produced by the prosecution were inter se closely related---None of the independent witnesses who were allegedly attracted to the place of occurrence after hearing firearm alarm, had been produced---No gun or rifle etc. allegedly looted by accused, was recovered from them---Sotas, had been recovered, but being commonly available items and not being conclusive proof, could not be used as substantive piece of evidence to prove the charge beyond any doubt---Though the injuries on the person of three prosecution witnesses, which did not appear self implicated, had shown their presence on the spot, non-production of the independent material witnesses, created doubts about veracity of deposition made by related prosecution witnesses---Nikah between accused and alleged abductee was duly solemnized, and alleged abductee had filed suit for jactitation of marriage---Counter suit for restitution of conjugal rights was also filed by accused against alleged abductee---Suit filed by accused for restitution of conjugal rights was decreed, while suit for jactitation of marriage was dismissed---Said judgment of Family Court had finalized the matter of restitution of conjugal rights in favour of accused which had created dent in the case of prosecution, and charge of abduction etc. in the circumstances had also become highly doubtful---Accused persons having acquitted, had earned double presumption of innocence---For setting aside acquittal, unimpeachable evidence was required, which was not forthcoming on record---Charge against accused persons, having not been proved beyond reasonable doubt, appeal against acquittal was dismissed.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 ref.

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

----Ss.417(2-A) & 410---Appeal against acquittal--- Scope--- Considerations for interference in an appeal against acquittal and in appeal from conviction, were altogether different---With the acquittal, the presumption of innocence of accused would become double; one initial that till found guilty he was innocent, and secondly, that after his trial, court below had confirmed the assumption of innocence---Unless all the grounds on which a court had purported to acquit accused, were not supportable, from the evidence on record, superior courts would be reluctant to interfere, even though upon the same evidence, it could be tempted to come to a different conclusion---Unless the conclusion recorded by a court below was such that no reasonable person would conceivably reach the same, superior courts would not interfere---Superior courts, would interfere in exceptional case on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice, and for no other purpose.

Muhammad Amin Javed for Appellant.

Muhammad Yar Khan Daha for Respondents.

Dr. Muhammad Anwar Khan Gondal, Addl. Prosecutor General, Punjab for the State.

Date of hearing: 28th April, 2014.

Gilgit Baltistan Chief Court

YLR 2014 Gilgit Baltistan Chief Court 1503 #

2014 Y L R 1503

[Chief Court (Gilgit-Baltistan)]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

AMJAD WALI and 6 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.24 of 2012, decided on 20th November, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 34, 109 & 212---Anti-Terrorism Act (XXVII of 1997), Ss.7(a), 21-L & 21-J---Qatl-e-amd, common intention, abetment, harbouring offender, act of terrorism---Appreciation of evidence---F.I.R., though had been lodged promptly, but same did not mention name of any assailant responsible for the occurrence---Impugned judgment/order, did not refer to extra judicial confession of accused persons, but at one place of said judgment Trial Court had very confusedly used the words "extra judicial confession" and "confession"---"Confession" of one of prosecution witnesses, who was not amongst the accused persons, could not be termed as "extra judicial confession"---Prosecution story had mentioned the explosion on the scene of occurrence, but Investigating Officer had conducted investigation negligently by omitting, to dispatch the parts of the same explosive instrument to the expert---Such kind of conduct in the investigation had rendered a very important part of prosecution evidence, not proved---Trial Court did not discuss evidence of any prosecution witness regarding the offence of harbouring while passing the impugned judgment/order, except the statement of one of accused recorded under S.21(h) of Anti-Terrorism Act, 1997 which was not admissible in evidence---Prosecution had released one of accused under S.169, Cr.P.C., while the role attributed to said accused and the one who was convicted was very similar---No direct or circumstantial evidence was on record, connecting accused persons with the occurrence---None of prosecution witnesses attributed any role to accused persons in commission of the occurrence---Accused persons, were acquitted and were directed to be released, in circumstances.

PLD 1998 SC 1445-1462 and SAC Criminal Appeal No. 10/12 P. 17 ref.

Malik Haq Nawaz for Appellants.

Assistant Advocate-General for the State.

Shahbaz Ali for the Complainant.

Date of hearing: 20th November, 2013.

YLR 2014 Gilgit Baltistan Chief Court 1850 #

2014 Y L R 1850

[Chief Court (Gilgit-Baltistan)]

Before Wazir Shakeel Ahmed, J

MUDASIR IMAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.45 of 2013, decided on 17th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Neither overt act was attributed to accused, nor any recovery had been effected by him---Accused had been involved in the case in connection with a story of providing of a blank 'sim card' to the principal accused, which was allegedly used for calling deceased on behalf of a female---Said story seemed self destructive--When two essential conditions contained in S.497(2), Cr.P.C. i.e.; that there were no reasonable grounds for believing that accused had committed a non-bailable offence and that there were sufficient grounds for further inquiry into his guilt, were satisfied, accused would become entitled to bail as of right---When said two conditions were fulfilled, further detention of accused was deprecated---Accused, was released on bail, in circumstances.

1995 PCr.LJ 1494 ref.

Malik Haq Nawaz for Petitioner.

Assistant Advocate-General for the State.

YLR 2014 Gilgit Baltistan Chief Court 1868 #

2014 Y L R 1868

[Gilgit-Baltistan, Chief Court]

Before Wazeer Shakeel Ahmed, J

MURSALEEN and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No.93 of 2013, decided on 19th December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Role attributed to accused had resulted into an injury of leg of the injured---Such was also a case with the other injured person in the same case---Tentative assessment of the record of the case, raised a question whether the provision of the S.324, P.P.C. was attracted in the case, or it was a case of simple hurt---Sustained injury being not on the vital part of the body of the injured, it was yet to be determined, if accused intended to kill the injured which made the case that of further inquiry---Co-accused had already been enlarged on bail---Accused was also entitled to be enlarged on bail.

Malik Haq Nawaz for Petitioners.

Assistant Advocate General for the State.

High Court Azad Kashmir

YLR 2014 HIGH COURT AZAD KASHMIR 77 #

2014 Y L R 77

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SOHAIL AHMED and another---Petitioners

Versus

RENT CONTROLLER/SENIOR CIVIL JUDGE, MIRPUR and 2 others---Respondents

Writ Petition No. 43 of 2013, decided on 26th April, 2013.

(a) Azad Jammu and Kashmir Rent Restriction Ordinance (XCII of 1980)---

----S.18(6)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44--- Writ petition--- Ejectment application---Functions of Rent Controller under Azad Jammu and Kashmir Rent Restriction Ordinance, 1980---Scope---Right to produce evidence by parties---Rent Controller close the evidence of petitioner/ tenant and fixed the case for arguments---Petitioner had a right to produce evidence---Rent Controller could not close the evidence of petitioner---Rent Controller had been given powers of summoning and enforcing the attendance of witnesses and was not bound in every case to follow the procedure stipulated in the Code of Civil Procedure---Rent Controller had been given powers to make orders after holding such inquiry as the thought fit---Question to decide the nature and extent of inquiry was purely discretion of Rent Controller and parties had no right to insist upon for production of such evidence in support of their case---Writ petition was dismissed.

PLD 1983 (AJ&K) 204 rel.

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

----S.44---Writ jurisdiction of High Court---Scope---High Court while exercising the writ jurisdiction could not sit upon the judgments of subordinate courts or local authorities or Tribunals as court of appeal---Even the orders passed by such forums could not be set aside by the High Court while exercising writ jurisdiction.

1996 MLD 355 rel.

Khalid Rasheed Chaudhary for Petitioners.

Muhammad Riaz Alam for Respondents.

YLR 2014 HIGH COURT AZAD KASHMIR 98 #

2014 Y L R 98

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Ch. MUHAMMAD SAEED and another---Petitioners

Versus

CUSTODIAN OF EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR

and 6 others---Respondents

Writ Petition No.588 of 2011, decided on 22nd June, 2013.

(a) Azad Jammu and Kashmir (Administration of Evacuee Property) Act, (XII of 1957)---

----S.18-A---Azad Jammu and Kashmir (Administration of Evacuee Property) Rules, R.17(3)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Limitation Act (IX of 1908), S.5---Writ petition---Allotment of land---Custodian of Evacuee Property---Review petition---Limitation---Time-barred review petition---Condonation of delay---Scope---Allotment of respondent was challenged by the petitioners, before Custodian of Evacuee Property, after about forty six years---Petitioners filed review petition sixteen years after issuance of Proprietary Rights Certificate---Petitioners contended that they came to know about allotment and Certificate two weeks ago therefore review petition could not be dismissed as being time-barred---Custodian of Evacuee Property dismissed the review petition---Validity---Petitioners and respondents were living in the same vicinity and also close relatives---Land in dispute was also situated in the neighbourhood of petitioners---No plausible explanation was given for such long inordinate delay---Petitioners were obliged to give each day's explanation of delay extended over more than four and half decades---Review petition could be filed within thirty days from the date of passing of an order by Custodian of Evacuee Property---Custodian of Evacuee Property rightly dismissed the review petition, in circumstances---Writ petition was dismissed.

Makhan Jan and 5 others v. Custodian of Evacuee Property, AJ&K, Muzaffarabad and 2 others 2001 CLC 1149 rel.

(b) Azad Jammu and Kashmir (Administration of Evacuee Property) Act, (XII of 1957)---

----S.18-A---Qanun-e-Shahadat (10 of 1984), Art. 100---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Allotment of land---Custodian of Evacuee Property---Review petition---Presumption of correct-ness of a thirty years old document---Scope---Petitioners contended that disputed evacuee piece of land was allotted in favour of their grandmother and after the death of their grandmother the land in question was inherited in favour of their father and after father's death they were owners and allottees of the land in dispute---Petitioners further contended that respondent fraudulently got illegal allotment permit regarding disputed land---Respondent produced a certified copy of thirty years old statement of petitioner's grandmother whereby she had voluntarily excluded her name from the allotment---Custodian of Evacuee Property relied on the statement of grandmother of petitioners and dismissed the review petition--- Validity--- Grandmother of petitioners had appeared before the Authority and made a categorical statement that the land in dispute may be allotted to elder brother of her husband, grandfather of the private respondent by excluding her name from allotment---Grandmother of petitioners had also stated that allotment was not yet issued in her favour in accordance with law---Respondents produced certified copy of statement of grandmother of petitioners which was thirty years old document---Certified copy of thirty years old statement had got presumption of truthfulness---Custodian of Evacuee Property on the basis of statement, had rightly negated the claim of petitioners---Writ petition was dismissed.

Syed Muhammad Ali Bukhari, for Petitioners.

Nemo for Respondents Nos. 1, 5 and 6.

Khawaja Muhammad Nasim for Respondents Nos. 2 and 4.

YLR 2014 HIGH COURT AZAD KASHMIR 336 #

2014 Y L R 336

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD ASHRAF KHAN RAJA---Petitioner

Versus

KHAN MIR KHAN and another---Respondents

Revision Petition No. 47 and Civil Appeal No. 29 of 2009, decided on 13th May, 2013.

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

----S. 60---Civil Procedure Code (V of 1908), S. 148---Suit for redemption of mortgage---Mortgage deed---Enlargement of time---Powers of court---Scope---Suit was decreed in favour of plaintiff subject to deposit of decretal amount within three months---Plaintiff did not file appeal however, defendants filed appeal---Plaintiff failed to deposit decretal amount within the period fixed by the Trial Court and his application for permission to deposit the same was rejected and suit stood dismissed---Appeal of the defendants was disposed of by dismissing the suit---Validity---Conditional decree was passed in favour of plaintiff which had a penal provision---Decree of Trial Court had attained finality---Trial Court was functus officio when appeal was disposed of---Application for extension of time was moved after three months---Amount deposited could not benefit the plaintiff as same was subject to objections from other side---Discretion exercised by the Trial Court had been exercised properly and no illegality or irregularity or perversity was found in the impugned order---Impugned order of the Appellate Court did not need further resolution as suit had not been decreed---Both revision and appeal were dismissed.

Muhammad Siddique Khan v. Sardar Muhammad Akbar Khan and others 2013 MLD 514 rel.

Sardar Atta Ellahi Abbasi for Petitioner.

Raja Sajjad Ahmed and Sardar Muhammad Arif Abbasi for Respondents.

YLR 2014 HIGH COURT AZAD KASHMIR 370 #

2014 Y L R 370

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD JAMIL MUGHAL and 15 others---Petitioners

Versus

MUHAMMAD RAFIQUE MUGHAL and 24 others---Respondents

Revision Petition No.133 of 2010, decided on 14th June, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Application for grant of temporary injunction--- Defendants executed an undertaking that they would be bound to pay sale price without litigation in case of final declaration in favour of plaintiffs---Plaintiffs had been properly/legally redressed of their grievance and both the courts below had concurrently reached the same conclusion---Impugned order did not warrant interference of the High Court---Revision was dismissed.

Aftab Ahmed Awan for Petitioners.

Sardar Pervaiz Akhtar Niazi for Respondents.

2014 Y L R 1176

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

KHADIM HUSSAIN and 5 others---Appellants

Versus

COLLECTOR LAND ACQUISITION MANGLA DAM and another---Respondents

Civil Appeals Nos.453 and 463 of 2009,decided on 9th December, 2013.

Land Acquisition Act (I of 1894)---

----S. 18---Reference to court---Enhance-ment of compensation---Referee Judge enhanced compensation price to the extent of Rs. 5,40,000 Hael, Rs. 4,80,000 Mera Awal, Rs. 3,70,000 Mera Doam and Rs. 1,65,000 for Ghair Mumkin, per kanal---Validity---Land acquired consisted of an orchard which was at the distance of 1 to 2 kilometers from Municipality---Said land was situated on metalled road having market value of Rs.15 to 25 lac per kanal---High Court enhanced compensation price to the extent of Rs.6,00,000 Hael, Rs. 5,30,000 Mera Awal, Rs. 4,10,000 Mera Doam and Rs.1,85,000 for Ghair Mumkin, per kanal alongwith compulsory acquisition charges @ 15%---Appeal of plaintiffs was accepted whereas that of defendants-WAPDA was dismissed in circumstances.

Bostan Chaudhary for Appellants.

Najam-us-Saqib for Respondents.

2014 Y L R 1641

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., M. Tabassum Aftab Alvi and Abdul Rasheed Sulehria, JJ

FAISAL MUMTAZ RATHORE---Petitioner

Versus

ELECTION TRIBUNAL AZAD JAMMU AND KASHMIR through Chief Election Commission and 15 others---Respondents

Writ Petition No.1052 of 2013, decided on 7th October, 2013.

Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970---

----Ss. 49, 50, 51 & 59---Azad Jammu and Kashmir High Court Procedure Rules, 1984, Rr. 88, 89 & 90---Civil Procedure Code (V of 1908), O. VI, R. 15---Oaths Act (X of 1873), S. 7---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Election to the seat of Azad Jammu and Kashmir Legislative Assembly---Election petition---Maintainability--- Non-verification of petition and annexures on oath---Effect---Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 was a special law which had to prevail on general law in which a special procedure was provided for drafting the election petition and its verification---Petition under Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 was to be heard by a Tribunal of special jurisdiction---Tribunal could assume the jurisdiction on a petition which had been drafted and filed in accordance with Ss. 50 and 51 of the Ordinance---If anything was missing, the assumption of jurisdiction on an incompetent petition would be illegal and without lawful authority---Contents of affidavit as well as annexures appended with the election petition to be verified accordingly---Such affidavit had to be attested by an officer authorized under S. 7 of the Oaths Act, 1873---Verification and affidavit filed on behalf of respondent did not fulfil the required conditions as verification on the election petition had not been attested by the Oath Commissioner---Respondent had also not verified the annexures appended with the petition---Affidavit had not been written in an approved manner---Writ of prohibition, in such circumstances, could be issued against the Tribunal to refrain from proceeding on an incompetent petition---Election petition filed by the respondent was not verified in accordance with law and same was liable to be dismissed---Writ petition was accepted in circumstances and election petition pending before the Election Tribunal was dismissed.

Sardarzada Zafar Abbas's case PLD 2005 SC 600; Malik Umar Aslam's case PLD 2007 SC 362; Imam Ali Samejo's case 2009 CLC 771; Lal Shakeel-u-Rehman v. Dr. Muhammad Ashraf Chohan and 10 others 2009 CLC 1302; Muhammad Rafique Nayyar v. Raja Nisar Ahmed Khan and 9 others 2003 SCMR 2784; Rashid Ahmad v. The State PLD 1972 SC 271 and Jmmau and Kashmir v. Muhammad Shafi PLD 1971 (AJ&K) 33 rel.

Dr. Muhammad Najeeb Naqi Khan v. Election Tribunal and others decided on 2-7-2012; 1988 MLD 113 and PLD 1990 Lah.290 distinguished.

Raja Muhammad Hanif Khan for Petitioner.

Kh. Muhammad Naseem and Ch. Ghulam Nabi, for Respondent No.2.

Nemo for remaining Respondents.

YLR 2014 HIGH COURT AZAD KASHMIR 1710 #

2014 Y L R 1710

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD SHAFIQUE and 2 others---Petitioners

Versus

MUHAMMAD SALEEM KHAN and another---Respondents

Revision Petition No.91 of 2012, decided on 4th July, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2 & S. 12(2)---Application for grant of temporary injunction---Decree on the basis of adverse possession had been passed with regard to State land and Shamlat Deh---Law of adverse possession was not on the statute book since 1996---Appellate Court had discussed all the merits of the case and had expressed its final opinion which was not permissible---Issuance of temporary injunction in the present case was justified---Impugned order of Appellate Court was set aside and that of Trial Court was restored and temporary injunction was granted to maintain status quo for a period of six months---Revision was accepted accordingly.

2010 SCR 102 and 2008 SCR 207 rel.

Muhammad Yaqoob Khan Mughal for Petitioners.

Mushtaq Ahmed Janjua for Respondents.

YLR 2014 HIGH COURT AZAD KASHMIR 1869 #

2014 Y L R 1869

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C J

QURAT-UL-AIN LATIF and another---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary Azad Government Civil Secretariat, Muzaffarabad and 14 others---Respondents

Writ Petition No.1927 of 2013, decided on 28th December, 2013.

Azad Jammu and Kashmir State Subject Act, 1980---

----S. 5---Azad Jammu and Kashmir State Subject Rules, 1980, R. 7---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 44 & 4 (15)---Writ petition--- Maintainability--- Adequate remedy--- Educational Institution---Advertisement for admission in MBBS course---Quota reserved for District "A"---First Class and Class III State Subjects of State Jammu and Kashmir---Equality before law---Discrimination between State Subjects--- Scope--- Contention of petitioners was that they were First Class State Subjects and respondents being Class III State Subjects were not entitled to be nominated against the seats reserved for First Class State Subjects---Validity---Father of respondents "V" & "W" had settled in the District "A" on the basis of Rayatnama and had also obtained State Subject Certificate Class III---State Subjects of Class I should receive preference over other Classes and those of Class II over Class III, Subjects in the matter of grant of State Scholarship, State lands for agricultural and house building purpose and recruitment of State Service---When different Classes of State Subjects were in the run in case of admission in the professional colleges then State Subject Class I, was to be preferred over Class II and Class II was to be preferred over Class III---State Subjects Class I, had been treated as separate class by the Constitution itself and question of discrimination and in-equality did not arise in the present case---Father of respondents "V" & "W" themselves had accepted the status of Class III and surrendered their position; therefore they could not claim preference against the provisions of the Constitution---Constitution itself having created classification among the State Subjects, equality before law could be claimed when persons were equal in all respects and were similarly placed but not otherwise---Nomination of respondents "V" & "W" against the quota of District "A" was made in violation of the Constitution---Appeal under State Subject Act, 1980 was not adequate remedy, therefore writ petition could not be dismissed---Domicile of respondent "X" also had not been challenged and she had obtained Identity Card, State Subject Certificate, Domicile Certificate and Permanent Resident Certificate from District "A"---Domicile of her father had also been issued by Deputy Commissioner of District "A" and also had State Subject Certificate of the same District in his favour---Mother and other relatives of respondent "X" had also been issued certificates from the same District "A"---Respondent "X" also had domicile of District "A"---Respondent "Y" was permanent resident of District "A" and her nomination was made in accordance with law---Father of respondent "Z" had not resided in District "A" for a period of 5 years before obtaining Domicile Certificate from the said District as required under S.5 of Azad Jammu and Kashmir State Subject Act, 1980 read with Rule 7 of Azad Jammu and Kashmir State Subject Rules, 1980---Person who was already living in Azad Jammu and Kashmir and had only shifted his place of residence by obtaining the domicile of choice then he was not required to live physically for a period of 05 years and condition of five years would not be applicable for him---Respondent "Z" was domicile by origin, therefore he could not be deprived on the ground that he was resident of District "B" and had adopted the domicile of his choice---Seats occupied by respondent "V" & "W" were declared vacant against which nomination should be made on the basis of merit of candidates prepared for District "A"---Petition to the extent of other respondents was dismissed accordingly.

Qamar Afzal v. Muhammad Ashfaq Khan and another PLD 1979 (SCAJK) 96; Miss Rakhshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and 2 others PLD 1986 (SCAJK) 1; Miss Shahida Bano v. Azad Government and 5 others 1998 CLC 534; Beenish Bashir v. Deputy Commissioner/ District Magistrate, District Bhimber and 6 others 2012 MLD 1508; Pervaiz Akhtar v. Shaikh Rashid Majeed and 3 others 2002 PLC (C.S.) 1425; Waqas Ahmad Baig v. Samara Moin and 9 others, 2009 SCR 542 and Syed Abbas Haider Gillani v. Azad Jammu and Kashmir University through Vice-Chancellor and 6 others 1996 MLD 1377 ref.

Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others 1995 CLC 1761; Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261; Syed Abbas Haider Gillani v. Azad Jammu and Kashmir University through Vice-Chancellor and 6 others 1996 MLD 1377 and Attaullah Atta v. Ghulam Bashir Mughal and 5 others 1996 CLC 1551 rel.

Sheikh Maqsood Iqbal and Raja Ayaz Fareed for Petitioners.

Chaudhary Muhammad Saddique for Respondents Nos.10 and 11.

Muhammad Yaqoob Khan Mughal for Respondent No.12.

Raja Sajjad Ahmed Khan for Respondent No.13.

Sadaqat Hussain Raja for Respondent No.14.

YLR 2014 HIGH COURT AZAD KASHMIR 1972 #

2014 Y L R 1972

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD IQBAL---Appellant

Versus

MUHAMMAD IRFAN and 6 others---Respondents

Civil Appeal No.307 of 2008, decided on 5th April, 2014.

Civil Procedure Code (V of 1908)---

----0. VI, R. 17---Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK), Ss. 4 & 6---Suit for right of prior purchase---Appeal---Amendment of pleadings/prayer clause of plaint---Scope---Amendment sought had already been mentioned in the plaint and consequential relief had also been prayed for with regard to controversy---Decree to the extent that impugned gift-deed was in fact a sale-deed could also be granted on the basis of present prayer clause---Application for amendment had been filed to clarify the prayer clause while adding the proposed amendment---Issue was also framed with regard to the fact whether gift-deed was in fact a sale-deed and both the parties had produced their evidence on the said controversy---Amendment in the pleadings could be granted at any stage of the proceedings provided that same could only be allowed for resolution of real question in controversy---Cause of action and nature of suit in the present case would not change by granting the said amendment---No additional issue was required to be framed and no evidence was needed to be produced with regard to proposed amendment as parties had already produced evidence on such version--Proposed amendment was necessary for resolution of real question in controversy---Application for amendment could be filed at any stage of proceedings which was allowed accordingly.

PLD 1990 SC (AJ&K) 1: 1999 YLR 1511; PLD 1985 Lah. 630; 1992 SCR 265; 1997 CLC 1768; 1999 CLC 1146 and 2007 SCMR 1275 ref.

PLD 1990 SC (AJ&K) 1 and 1999 YLR 1511 rel.

PLD 1985 Lah. 630; 1992 SCR 265; 1997 CLC 1768; 1999 CLC 1146 and 2007 SCMR 1275 distinguished.

Abdul Majeed Mallick for Applicant.

Ch. Muhammad Mumtaz for Respondents Nos. 1 to 6.

Muhammad Ayub Sabir for Respondent No.7.

YLR 2014 HIGH COURT AZAD KASHMIR 2139 #

2014 Y L R 2139

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD MAQSOOD---Petitioner

Versus

MUHAMMAD LATIF and another---Respondents

Criminal Revision No.31 of 2010, decided on 20th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 439---Penal Code (XLV of 1860), Ss.419, 420 & 406---Cheating by personation, cheating and dishonestly including delivery of property, criminal breach of trust---Interim bail, confirmation of---Concession of bail, could not be withdrawn unless some cogent reasons exist---Petitioner/ complainant, had not mentioned any of the requirements for cancellation of bail granted in favour of accused---Only allegation levelled against accused, was that he misappropriated amount in question with connivance of co-accused---Challan of the case had been submitted in the competent court---Petitioner raised plea for cancellation of bail on the grounds; that order granting bail was illegal, perverse, passed in violation of principles for grant of bail, factually incorrect, or had resulted into miscarriage of justice; that accused persons had misused the benefit of bail; that there was possibility of repetition of the offence charged with or commission with any other offence; that there was appreciation of abscondance of accused and that accused persons were trying to tamper with the prosecution evidence---Record revealed that none of the said grounds existed in the present case---Findings recorded by the Trial Court while confirming interim bail were based on sound and cogent reasons, which needed no indulgence by High Court.

1999 PCr.LJ 883 and 2011 PCr.LJ 1354 ref.

Ch. Muhammad Riaz Alam for Petitioner.

Kamran Tariq for Respondent No.1.

Farid Awan, Assistant Advocate General for the State.

YLR 2014 HIGH COURT AZAD KASHMIR 2195 #

2014 Y L R 2195

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

QURBAN and another---Appellants

Versus

SHAHEEN AKHTAR and 4 others---Respondents

Civil Appeal No.232 of 2008, decided on 6th July, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XX, R.5---Suit for declaration---Recording of finding on each issue by the court---Scope---Contention of plaintiffs was that defendant had gifted excess land from his share fraudulently---Suit was dismissed concurrently---Validity---Partition proceedings were sub judice before the Revenue Officer which were kept in abeyance due to the present suit---Plaintiffs had not produced reliable evidence in support of their version---No evidence had been produced to show that defendant had alienated land beyond his share---Recording of findings upon each separate issue was not necessary if findings upon anyone or more of the issues was sufficient for decision of the suit---Appellate Court had opined in detail on the principal issue in his judgment---No need was left behind to record findings on the issues separately in the present case---Appeal was dismissed in circumstances.

PLD 1980 Lah. 145; 2002 SCMR 1938; 2007 SCR 86; 2008 SCR 406 and PLJ 2010 Lah. 59(sic) distinguished.

1997 CLC 466; 2002 CLC 1102 and 2003 YLR 1788 rel.

Kamran Tariq for Appellants.

Raja Liaqat Ali Khan for Respondents.

YLR 2014 HIGH COURT AZAD KASHMIR 2383 #

2014 Y L R 2383

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi and Azhar Saleem Babar, JJ

Barrister Syed IFTIKHAR ALI GILLANI and others---Petitioners

Versus

Messrs FRIENDS TECHNICAL ENGINEERING ASSOCIATION through Advisor to the Prime Minister of AJ&K and others---Respondents

Writ Petitions Nos.1007 and 1047 of 2014, decided on 13th June, 2014.

Azad Jammu and Kashmir Local Government Act, 1990---

----Ss. 31, 44, 45 & 46---Azad Jammu and Kashmir Local Councils (Imposition of Taxes) Rules, 1981, R. 4---Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971, Ss. 73, 74, 76, 93 & 109---Azad Jammu and Kashmir High Ways Ordinance, 1959, Ss. 29 & 25---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Installation of weighing apparatus and fixation of fee at entry points---Advertisement for bid---Objections, filing of---Limitation---Laches, principle of---Applicability---Impugned notification was issued by the Government while exercising powers under Ss. 31, 44, 45 & 46 of Azad Jammu and Kashmir Local Government Act, 1990 which were neither with regard to installation of weighing apparatus nor anything pertaining to enforcement of tax and fine due to overloading upon heavy vehicles---Said notification was against the basic law cited by the Government and notification was issued by misinterpreting the statute and was not sustainable under the law---Advertisement for bid was not published in the original newspapers---Bids were solicited for financial year 2012-13 but agreement was executed for 25 years with firm "A" which was an unreasonable period not covering under any provision of Azad Jammu and Kashmir Local Government Act, 1990---Period for filing objections in the advertisement was fixed 10 days instead of 30 days as provided under Rule 4 of Azad Jammu and Kashmir Local Councils (Imposition of Taxes) Rules, 1981---Proceedings conducted for bids in question and allotment of work in favour of firm "A" were not fair and transparent and same could not be allowed to remain in field---Government might prescribe conditions for issuance of permits for heavy transport vehicles through Provincial or Regional Transport Authority and could frame rules with regard to installation and use of weighing devices---Any person who had contravened the provisions of Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971 could be penalized with fine in accordance with law---Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971 could be amended and fine could be enhanced for the purpose of installing weighing apparatus on entry points---Heavy loaded vehicles must be penalized to save the roads which could be done through appropriate legal backing---Government had power to make rules and enforce penalties for the designs of goods vehicles and maximum load to be carried thereon---Impugned notification was not promulgated for information to public at large and principle of laches was not attracted in the present case---Impugned proceedings and notification were declared without lawful authority having no legal effect and all subsequent proceedings/ orders issued on the basis of said notification were set at naught---Writ petition was accepted in circumstances.

Azad Government and 2 others v. Muhammad Arif Khan and 2 others 2004 YLR 1787; Chaudhry Liaquat Ali v. Abdul Khaliq and 6 others 2004 SCR 266; Tahir Mahmood Khan and 3 others v. Azad Government and 3 others 2008 CLC 1662; Azad Government and 2 others v. Syed Tayyab Gilani and 414 others 2009 SCR 415; Iqbal Ahmed and others v. Government of Sindh through Secretary, Home Department, Karachi and others PLD 2007 Kar. 353; Muhammad Munir Awan and 3 others v. Azad Jammu and Kashmir Ehtesab Bureau 2005 SCR 109; Public Works and Communications Department and others v. Raja Muhammad Azad Khan and another 2005 SCR 236; Raja Iqbal Rashid Minhas v. Azad Jammu and Kashmir Council and 3 others PLD 2002 SC (AJ&K) 1; Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161; Siraj Din v. Azad Jammu and Kashmir Government through Chief Secretary and 13 others 2012 SCR181; Azad Govt. of the State of Jammu and Kashmir and others v. Haji Summandar Khan and others 1995 MLD 1350; Writ Petition No.1839/2011; Dr. Ejaz Ahmed v. Azad Government and others decided on 22-3-2012; Writ Petition No.1051/2010 titled Raja Shoukat Iqbal and 2 others v. Azad Government and 5 others decided on 1-7-2011 and Civil P.L.A. No.255/2013 titled Kamran Hafeez v. Gul Zaman Khan and others decided 28-5-2014. ref.

Raja Sajjad Ahmed Khan for Petitioners (in Writ Petition No.1007 of 2014) and Syed Shahid Bahar for Petitioners (in Writ Petition No.1047 of 2014).

Sardar M.R. Khan, Additional Advocate General and Sardar Abdul Sammie Khan for official Respondents (in both Writ Petitions).

Mushtaq Ahmed Janjua for Respondents (in both Writ Petitions).

YLR 2014 HIGH COURT AZAD KASHMIR 2491 #

2014 Y L R 2491

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

PUBLIC AT LARGE INHABITANTS OF DHOKE PHALA through

Mumtaz Hussain---Petitioner

Versus

MAZHAR HUSSAIN and 2 others---Respondents

Revision Petition No.136 of 2010, decided on 17th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 24---Suit for declaration---Transfer of case on ground of bias in Civil Judge---Defendants filed application for transfer of suit which was accepted by the District Judge---Contention of defendants was that plaintiff was Additional Public Prosecutor and due to his influence Trial Court was proceeding with the case partially---Both the parties were residing at place "X" and disputed property was also situated within the jurisdiction of Civil Judge working at the same place---Courts had been established at place "X"and other Sub-Divisions to facilitate the general public and for protection of their rights---Plaintiff had been removed from the post of Additional Public Prosecutor and new Prosecutor was working in his place---Civil Judge in question had been transferred and circumstances did not exist at the moment which were in existence at the time of passing of order of transfer of case---Held, suit between the parties should be heard at place "X" to meet the ends of justice---Impugned order was set aside by High Court and suit was transferred to the court of Civil Judge from where same was transferred---Revision was accepted accordingly.

Ch. Muhammad Anwar for Petitioner.

Bostan Chaudhary for Respon-dents.

YLR 2014 HIGH COURT AZAD KASHMIR 2515 #

2014 Y L R 2515

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

ADMINISTRATOR MUNICIPAL COMMITTEE, KOTLI---Appellant

Versus

Ch. RAHEEM DAD KHAN and 3 others---Respondents

Civil Appeals Nos. 67 and 78 of 2003, decided on 27th March, 2014.

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

----Ss. 18 & 23---Acquisition of land by the order of High Court---Reference to court---Interest, payment of---Enhancement of compensation--- Scope--- Contention of department was that acquisition process was initiated in compliance of order of High Court---Referee Judge enhanced compensation price to the extent of Rs.1,15,000 per marla along with compulsory acquisition charges and 14% profit upon the enhanced compensation from the date of possession---Validity---Reference Court had passed the impugned judgment by appreciating evidence carefully and properly in a legal fashion---Average price fixed by the Reference Court was justified and was in accordance with the conditions provided in S. 23 of Land Acquisition Act, 1894---Value of remaining land of plaintiff stood increased due to construction of link road which was otherwise locked land having no use for him---Link road was neither notified for public purpose nor same was included in the Annual Development Programme---Value of acquired land was assessed for payment to the plaintiff on the direction of High Court---Plaintiff had claimed compensation after construction of road at the expenses of Municipal Council's funds---Entire land of plaintiff was of no market value before construction of link road and rest of his land became first time marketable after construction of such road---Market value of land would be considered before construction of said road---Reference Court had arrived at a just conclusion which would meet the ends of justice---Department neither initiated acquisition proceedings nor demanded the land for the project at his own but same were initiated in compliance of order of High Court---Impugned judgment to the extent of profit at the rate of 14% on the compensation/enhanced value was liable to be vacated as no interest/profit had been claimed/prayed---Impugned judgment was beyond the pleadings of the parties with regard to payment of profit which was not permissible under the provisions of Land Acquisition Act, 1894---Interest was against the Injunctions of Quran and Sunnah---Impugned judgment and decree were modified to such extent which should be deemed to have been deleted from the contents of the same---Appeals were dismissed in circumstances.

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

----Ss. 12-A, 48 & 18---Acquisition of land---De-award of acquisition---Scope---De-award of land after acquisition of the same could not be allowed.

Sardar Ghulam Mustafa Khan for Appellant/Respondents.

Kh. Abdul Basit for Respondents/ Appellant.

YLR 2014 HIGH COURT AZAD KASHMIR 2641 #

2014 Y L R 2641

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUNSHI KHAN and another---Petitioners

Versus

KARAMAT KHAN and 24 others---Respondents

Revision Petition No.36 of 2012, decided on 19th December, 2013.

Civil Procedure Code (V of 1908)---

---O. VI, R. 17---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Amendment of pleadings---Scope---Defendants did not mention the facts which were brought on record through amendment in the plaint---Defendants could not justify that said facts were in the knowledge of plaintiff at the time of filing suit or said facts were in existence at that time---Revision was dismissed in circumstances.

Mallick Muhammad Mansha for Petitioners.

Kh. Abdul Basit and Sardar Ghulam Mustafa Khan for Respondents.

YLR 2014 HIGH COURT AZAD KASHMIR 2663 #

Before Shaukat Aziz Siddiqui, J

SAMAR ABBAS---Petitioner

Versus

SIKANDAR and 3 others---Respondents

Criminal Miscellaneous No.585-BC of 2013, decided on 18th December, 2013.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 337-F(v), 354, 506 & 34---Ghayr-jaifah hashimah, assault or criminal force to woman with intent to outrage her modesty, intentional insult with intent to provoke breach of peace, common intention---Pre-arrest bail, cancellation of---Recovery of crime weapon was still to be effected, thus extending benefit of pre-arrest bail would hamper the investigation---Bail granting order was silent about the aspect of any mala fide (of complainant)---Complainant received a serious injury resulting into a fracture of his left arm but court below did not make any reference to such effect---Pre-arrest bail granted to accused was cancelled in circumstances.

PLD 2008 Lah. 208; 2013 YLR 958 and 2010 SCMR 64 distinguished.

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

---S. 498---Pre-arrest bail, grant of---Pre-requisites---Mala fide---Extraordinary concession of bail before arrest could only be granted if element of mala fide (of complainant) was apparent.

Rana Afsar Ali Khan for Petitioner.

Rana Abid Nazir Khan for Respondents Nos.1 and 2.

Fazal ur Rehman Khan Niazi, D.A.G. for the State.

Anar Lak, S.I.

YLR 2014 ISLAMABAD 1924 #

2014 Y L R 1924

[Islamabad]

2014 Y L R 66

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Messrs QAMDEEN BROTHERS (PVT.) LTD. through Director and 3 others---Appellants

Versus

Mrs. SHIRLEY AMIRUDDIN VALIKA and 3 others---Respondents

H.C.A. No.114 of 2008 and C.M.As. Nos.446 and 447 of 2010, decided on 4th September, 2013.

Civil Procedure Code (V of 1908)---

----S.12(2) & O.XXIII, R. 3---Application under S.12(2), C.P.C. for setting aside of consent order---Scope of S.12(2), C.P.C.---Applicant had not challenged any misrepresentation or fraud on the part of appellants which could justify filing of the application---Provisions of section 12(2) Civil Procedure Code, 1908 could not be equated with the provisions of review or revision and the parties could not be allowed to delay the final adjudication of the disputes by filing such frivolous applications and that too against the consent order at a belated stage---Controversy which had attained finality, and specially with consent order of the parties could not be re-opened on the false pretext of fraud and misrepresentation by either party---Once consent order had been passed by a court, the parties could not resile from it without cogent and valid reasons---Any indulgence at such stage of the proceedings would amount to frustrate the implementation of consent order, which otherwise had attained finality in law---Application was dismissed.

Haseeb Jamali for Appellants.

Arshad Iqbal for Respondents.

YLR 2014 KARACHI HIGH COURT SINDH 80 #

2014 Y L R 80

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

MUHAMMAD RASHEED and another---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary Local Government Department and 7 others---Respondents

Constitutional Petition No.D-3585 of 2012, decided on 3rd October, 2013.

Sindh Local Government (Local Fund Imposition of Taxes), Rules, 2001---

----R.7---Constitution of Pakistan, Art.199---Constitutional petition---Local tax/fee, imposition of---Petitioners were aggrieved of entry fee imposed by local government on entry of cattle including cow, buffalo, bachara, camel and goat etc. in cattle market---Plea raised by petitioners was that according to press advertisement, entry fee had been abolished---Validity---No gazette notification with regard to such relaxation or exemption of fee and taxes had been placed on record by either party---If the advertisement was taken to be issued under lawful authority, even then relaxation or exemption from collection of tax/fee on cattle was for a period of one month only and that too by Karachi Municipal Corporation and not by District Municipal Corporation---Fee in respect of cattle was levied and being collected pursuant to gazette notification which had been placed on record which prima facie authorized District Municipal Corporation to impose such tax/fee upon cattle---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

Malik Khushhal Khan, for the Petitioners.

S. Sultan Ahmed, Dr. Zafar Zaidi, Senior Director, Veterniary, KMC and Imran Aslam Khan, Administrator, DMC Karachi West for Respondents No.2.

Abdul Hadi for Respondent No.3.

Khalid Mehmood Siddiqui for Respondents Nos.4 & 5.

Hassan Khursheed Hashmi for Respondent No.8.

Ch. Muhammad Rafiq Rajuorvi, A.A.-G. for the State.

Date of hearing: 3rd October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 105 #

2014 Y L R 105

[Sindh]

Before Zafar Ahmed Rajput, J

SAEED ALAM---Petitioner

Versus

FAMILY JUDGE, ROHRI through Additional Advocate-General and another---Respondents

Constitution Petition No.2875 of 2012, decided on 20th September, 2013.

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

----Ss. 10 (4) & 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Form II, Column 15---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on the basis of khula and recovery of dowry articles---Restoration of dower amount to the husband by the wife---Scope---Contention of wife was that dower amount was not paid to her; however; husband contended that he had paid the same to her after marriage according to a 'faisla'---Validity---Parties had adopted divergent stances with regard to payment of dower amount---Family Court could not adjudicate such controversy without recording evidence and providing opportunity to the parties to substantiate their claims---Husband had not mentioned in his written statement as to when, where and amongst whom the alleged "faisla" was made or whether the same was brought in black and white or not---Dower amount was not paid by the husband to the wife at the time of marriage---Right to exercise khula by the wife was dependent upon restoration of dower amount to the husband but same was qualified with the word 'at the time of marriage'---Matter of defendant did not fall within the ambit of purview of proviso to S. 10(4) of West Pakistan Family Courts Act, 1964---Restoration of dower amount to the husband received by the wife in consideration of marriage at the time of marriage must be in consonance with the amount referred to in column 15 of the nikahnama---Dower amount paid at any other time except at the time of marriage could not be restored at the time of dissolution of marriage when reconciliation failed---Constitutional petition was dismis-sed in circumstances.

Abdul Sattar v. Mst. Kalsoom PLD 2006 Kar. 272 distinguished.

Rana Shahnawaz Khan v. Judge Family Court Lahore and another PLD 2009 Lah. 227 and Dr. Fakhr-ud-Din v. Kausar Takreem and another PLD 2009 Pesh. 92 rel.

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

----S. 10 (4)---Dissolution of marriage on failure of reconciliation---Object of S.10(4) of West Pakistan Family Courts Act, 1964 was to provide the specific remedy without any undue delay so as not to keep the woman in a state where she might be deprived of her right to remarry while she was of marriageable age in addition to the mental agony and tension which was the objective to meet the ends of justice.

Shahzad Gul Kalwar for Petitioner.

Sikander Ali Junejo and Shuhabuddin Shaikh for Respondents.

Date of hearing: 20th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 116 #

2014 Y L R 116

[Sindh]

Before Sadiq Hussain Bhatti, J

Mst. NAEEMA JEHAN---Applicant

Versus

Mst. AKBARI and 4 others---Respondents

Civil Revision Application No.37 and C.M.A. No.955 of 2010, decided on 6th September, 2013.

Civil Procedure Code (V of 1908)---

----S. 115---Limitation Act (IX of 1908), Ss. 5 & 29(2)---Revision---Delay of six (6) days in filing revision petition---Application under S. 5 of Limitation Act, 1908 for condonation of such delay---Maintainability---Limitation for filing revision was prescribed under S. 115, C.P.C., thus, provision of S. 5 of Limitation Act, 1908 by virtue of S. 29(2) thereof would not apply thereto---High Court declined to condone such delay and dismissed revision for being time-barred.

Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 and City District Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676 rel.

Muhammad Zafar Alam for Applicant.

Imtiaz Agha for Respondents.

Date of hearing: 22nd August, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 128 #

2014 Y L R 128

[Sindh]

Before Zafar Ahmed Rajput, J

HABIBULLAH---Applicant

Versus

MEHAR through L.Rs. and 2 others---Respondents

Civil Revision No.S-68 and C.M.A. No.439 of 2012, decided on 10th September, 2013.

Limitation Act (IX of 1908)---

---S.5---Sindh Civil Courts Rules, R. 324---Limitation---Application for condonation of delay---Scope---Suit filed by the plaintiffs was decreed against which appeal along with application for condonation of delay were dismissed being time-barred---Validity---Civil Judge passed the judgment and decree on 30-4-2005---Defendant applied for copy of the same on 2-5-2005 which were made ready on the same day but he supplied the stamp on 21-7-2005 after 78 days---Defendant should have supplied the stamps within 7 days---Defendant did not approach the Appellate Court in the months of May, June and 20 days of July---Month of July was summer vacations and defendant should have filed appeal on first opening day of the court i.e. 1-8-2005 but he filed the same with delay of 23 days---In order to succeed in application for condonation of delay, each and every day's delay was to be explained---Mis-calculation was no ground to condone the delay in filing of appeal as by expiry of period of limitation, valuable right vested in the plaintiffs of which they could not be deprived of---Defendant had failed in showing any bona fide mistake in calculating period of limitation---No jurisdictional error, factual or legal infirmity was found in the impugned order passed by the Appellate Court---Revision was dismissed in limine.

Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504 and Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582 distinguished.

The West Pakistan Agricultural Development Corporation and 2 others v. Soomar and 2 others PLD 1984 Kar. 190; Muhammad Hussain v. Settlement and Rehabilitation Commissioner 1975 SCMR 304; Muhammad Saeed v. Shaukat Ali 1982 SCMR 285 and Mst. Rukhsana Ahmed v. Tariq Attaullah 1980 SCMR 36 rel.

Iftikhar Ali Arain for Applicant.

YLR 2014 KARACHI HIGH COURT SINDH 135 #

2014 Y L R 135

[Sindh]

Before Naimatullah Phulpoto, J

JABBAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-43 and M.A. No.1674 of 2013, decided on 13th August, 2013.

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

----Ss. 426, 497 & 367---Penal Code (XLV of 1860), Ss.324, 452, 337-A(i) & 337-F (i)(iii)(v)---Attempt to commit qatl-e-amd, house-trespass, after preparation for hurt, assault or wrongful restraint, causing Shajjah-i-Khafifah, causing Damiyah, Mutalahimah and Hashimah---Suspension of sentence, application for---Principles---Accused faced trial under Ss.324, 452, 337-A(i), 337-F(i)(iii)(v), P.P.C. and was convicted and sentenced under all said sections, except S.452, P.P.C., as there was no decision of acquittal or sentence in respect of S.452, P.P.C. in the order of the Trial Court---Under S.367, Cr.P.C., it was duty of the Trial Court to have specified the relevant sections whereunder accused was convicted and sentenced; nothing should have been left to presumption---Section 367, Cr.P.C., was not permissive, but imperative and compliance of its terms was mandatory in nature---Omission of the Trial Court for recording the findings/reasons with regard to S.452, P.P.C. was apparent on record---As hearing of appeal might take some time, and the sentence being short one, State Counsel recorded no objection to suspension of sentence---Appellate Court in exercise of its power under S.426, Cr.P.C., could, in appropriate cases, suspend the sentence of accused and grant bail pending disposal of his appeal---Notwithstanding any material difference in the principles governing for grant of bail under Ss.497 and 426, Cr.P.C., considerations for suspension of sentence and grant of bail pending trial could not be the same---Distinction must be adhered to for exercise of power under said provisions in proper manner---Power of Appellate Court under S.426(1), Cr.P.C., was not limited, and court, pending disposal of an appeal, could suspend the sentence of a convict in an appropriate case, in its discretion for sufficient reasons, but that power of suspension of sentence, and grant of bail was not wider than that of under S.497, Cr.P.C.---Unless it was shown that conviction was based on no evidence, legal flaws or being based on an inadmissible evidence, was not ultimately sustainable, the grant of bail under S.426(1), Cr.P.C. could be allowed only on the basis of tentative assessment of evidence---Sentence of accused/appellant was suspended during the pendency of appeal and accused would be released on bail.

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

----Ss. 426 & 497---Suspension of sentence and grant of bail by appellate court---Distinction and consideration for---Appellate Court, in exercise of its power under S.426, Cr.P.C., could in appropriate cases, suspend the sentence of a convict and grant him bail pending disposal of his appeal; and notwithstanding any material difference in the principles governing for grant of bail under Ss.497 & 426, Cr.P.C., considerations for suspension of sentence and grant of bail pending trial, could not be the same---Distinction must be adhered to for exercise of power under said provisions in the proper manner---Power of Appellate Court under S.426(1), Cr.P.C., was not limited, and the court could, pending disposal of appeal, suspend the sentence of a convict in an appropriate case in its discretion for sufficient reason, but that power of suspension of sentence, and grant of bail, was not wider than that of under S.497, Cr.P.C., and unless it was shown that conviction was based on no evidence, legal flaws, or being based on an inadmissible evidence was not ultimately sustainable, the grant of bail under S.426(1), Cr.P.C. could be allowed only on the basis of tentative assessment of evidence.

----S. 367---Judgment---Duty of Trial Court---Court under S.367, Cr.P.C., was supposed to specify the relevant section whereunder accused were convicted and sentenced---Section 367, Cr.P.C. was not permissive, but imperative and compliance of its terms, was mandatory in nature.

Asif Ali Abdul Razak Soomro for Appellant.

Riaz Hussain Khoso for the State.

YLR 2014 KARACHI HIGH COURT SINDH 152 #

2014 Y L R 152

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. SHAZIA BANO---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Home Department, Karachi

and 6 others---Respondents

Constitution Petition No.S-329 of 2013, decided on 15th April, 2013.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 491---Constitutional petition---Habeas corpus---Minor, recovery of---Minor was given in father's custody on the basis of document executed between the parties---Contention of mother of minor was that welfare of the minor was in her custody---Validity---Courts were not supposed to go into the technicalities in the cases pertaining to the custody of child but should decide the case taking into consideration welfare of the child---Petition was not found to be competent when there was no element of illegal custody but in the welfare of the child the courts could pass appropriate orders---Mother was entitled to retain the custody of the minor---Constitutional petition was allowed and custody of the minor was handed over to the mother---Parties would be at liberty to approach the Guardian Judge for the redressal of their grievance if any.

Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir 1987 SCMR 174 and Mst. Khalida Parveen v. Muhammad Sultan Mehmood PLD 2004 SC 1 rel.

Qadir Hussain Khan for Petitioner.

Mansoor Ahmed Khan for Respondent No.7.

Ali Hyder Salim for the State.

YLR 2014 KARACHI HIGH COURT SINDH 161 #

2014 Y L R 161

[Sindh]

Before Abdul Rasool Memon, J

MEHFOOZ HUSSAIN and another---Petitioners

Versus

ABDULLAH KHAN through L.Rs. and 7 others---Respondents

Constitutional Petition No.S-503 of 2012, decided on 28th June, 2013.

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

---S. 15---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment of tenants---Contention of landlords was that premises was required for their personal bona fide need whereas tenant contended that he had purchased some shares in the demised premises and had become co-owner---Ejectment petition was dismissed by the Rent Controller but same was accepted by the Appellate Court---Validity---Tenant had purchased shares of some landlords in the demised premises which had been admitted and he had become co-owner---Privity of landlord and tenant had come to an end---Status of tenant had ceased and he could not be ejected till partition of joint property---Constitutional petition was accepted and impugned judgment passed by the Appellate Court was set aside and order of Rent Controller was restored.

Mst. Karima Bibi v. Mst. Hawa BAI 2003 C.L.R. 1965; Rehan Ahmed v. Nadra Israr PLD 2012 Sindh 203; Muhammad Wali Khan v. Gul Sarwar Khan PLD 2010 SC 965; Hyder Ali Bhimji v. VIth Additional District Judge 2012 SCMR 254; Jana Bai v. Ghulshan 1984 CLC 1061; Abdul Zahir v. Jaffar Khan 2010 SCMR 189; Sanobar Sultan v. Obaidullah Khan PLD 2009 SC 71; Abdul Fayyaz Khan v. IIIrd Additional District Judge 2012 CLC 793; Naveed Merchant v. Pakistan Institute of International Affairs PLD 2012 Sindh 23; Abde Ali v. Hatim Bhaxi 2003 SCMR 730; Muhammad Asghar v. Abdul Rehman 2010 MLD 665; Muhammad Irfan v. Abdul Ghani 2010 YLR 2549; Muhammad Hafeez v. District Judge 2008 SCMR 398; Ayesha Bai v. Zahid Hussain 1999 MLD 2761; Ghulam Muhammad Khan v. Muhammad Khalid 2000 CLC 764; Nisar Hussain Rizvi v. Aisha 1998 CLC 349; Abdul Rehman v. Pakistan State Oil Company Ltd. 1997 CLC 1085; Muhammad Moosa Khawaja v. Muhammad Umar 1995 MLD 1880; Shamim Akhtar v. Zakaria Yousuf 1998 CLC 410; Shah Zareen Khan v. Sada Gul 1998 MLD 903; Jehangir Rustam Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Sanobar Sultan v. Obaidullah Khan PLD 2009 SC 71; Abdul Zahir v. Jaffar Khan 2010 SCMR 189; Imran Ahmed v. Noor Ahmed 1992 SCMR 1152; Saira Bai v. Anisur Rahman 1989 SCMR 1366; All Kathiawar Mansoori Genl. Jamait v. Parvez Akhtar 1982 CLC 1192; Muhammad Hanif v. Muhammad Jamil Turk 2002 SCMR 429; Madrissa Darul Uloom v. Addl. District Judge PLD 1992 SC 401; Bashir Ahmed v. Shah Muhammad 2010 CLC 734; Ghulam Qadir v. Punjab Cooperatives Board for Liquidation 2010 CLC 220; Abdul Rasheed v. Maqbool Ahmed 2011 SCMR 320; Jehangir Rustam Kakalia v. Hashwani Sales Services (Pvt.) Ltd. 2002 SCMR 241; N.T.C.C. v. Tariq Rahim NLR 1991 Civil 366; Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925 and Irshad Ahmed v. Allah Ditta 1998 SCMR 948 ref.

Zahoor Hussain Mahar for Petitioners.

S.M. Haider for Respondent No. (1 to 7).

Shajee Siddiqui for Respondent No.1(8).

Date of hearing: 14th May, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 183 #

2014 Y L R 183

[Sindh]

Before Sadiq Hussain Bhatti, J

Mst. SARA---Petitioner

Versus

PROVINCE OF SINDH, through Home Secretary, and 3 others---Respondents

C.P. No. S-103 and Criminal Revision Application No.S-86 of 2013, decided on 2nd August, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, & 22-B---Constitution of Pakistan, Art.199---Constitutional petition--Petitioners were police officials and allegation against them was that they had kept one person in illegal detention, who was recovered during raid---Ex-Officio Justice of Peace after conducting of inquiry into the guilt directed for registration of criminal case against petitioners--- Validity--- Registration of F.I.R. in respect of cognizable offence was right of aggrieved party given by law---Lodging of F.I.R. against a person meant that there were accusations and he had to clarify satisfactorily; but in case such accusations were proved by way of evidence then he would be culprit---Order passed by Ex-Officio Justice of Peace did not suffer from any legal infirmity---High Court declined to interfere in the order passed by Justice of Peace as the same did not suffer from any illegality---Constitutional petition was dismissed in circumstances.

Sikanhdar Ali Khaskheli for Petitioner (in C.P. No. S-103 of 2013). And for Respondent No.1 (in Criminal Revision Application No.S-86 of 2013).

Ishrat Ali Lohar for Intervener (in C.P. No.S-103) and for Applicants (in Criminal Revision Application No.S-86 of 2013).

Allah Bachayo Soomro Addl: A.G. for Respondent (in C.P. No.S-103 of 2013).

Muhammad Iqbal Kalhoro, A.P.G. for the State (in Criminal Revision Application No.S-86 of 2013).

Date of hearing: 29th July, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 188 #

2014 Y L R 188

[Sindh]

Before Salahuddin Panhwar, J

ALI HASSAN alias HASAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-188 of 2013, decided on 12th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Possession of narcotic ---Bail, grant of---Further inquiry---Non-association of private witnesses in spite of spy information---Punishment for the offence not falling within prohibitory clause of S.497(1), Cr.P.C.---Effect---Accused was allegedly found in possession of 1540 grams of charas---Although police witnesses were good witnesses as others but simultaneously it was the duty of police officer to make all efforts to join independent witnesses when there was such a possibility, and in case of failure to do the same, it should be justified with explanation---Maximum punishment for the offence, if proved, did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Record did not show that accused remained involved in offences similar to the present one---All witnesses were police officials, therefore, there was no likelihood of tampering with prosecution evidence---Case against accused was one of further inquiry---Accused was granted bail accordingly.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and Nawaz v. The State 2004 YLR 118 rel.

Shahzeb Abbasi for Applicant.

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

YLR 2014 KARACHI HIGH COURT SINDH 199 #

2014 Y L R 199

[Sindh]

Before Sadiq Hussain Bhatti, J

TRUSTEES OF THE PORT OF KARACHI (K.P.T.) through Manager Legal Affairs ---Plaintiff

Versus

Messrs SAHAF CORPORATION (PVT.) LTD. through Managing Director---Defendant

Civil Suit No.1485 of 2004, decided on 10th September, 2013.

Civil Procedure Code (V of 1908)---

----O.IX, R.6 & O.VII, R.2---Qanun-e-Shahadat (10 of 1984), Art. 118---Suit for recovery of money---Non-appearance of defendant despite service of summons through newspaper---Validity---Affidavit-in-ex parte proof of plaintiff's witness was verified on oath, and there was nothing on record in rebuttal thereof---Suit was decreed in circumstances.

Muhammad Sarfraz Sulheri for Plaintiff.

Nemo for Defendant.

Date of hearing: 4th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 298 #

2014 Y L R 298

[Sindh]

Before Muhammad Shafi Siddiqui, J

ABDUL AZIZ---Appellant

Versus

MUHAMMAD NASIR and 9 others---Respondents

Civil Appeal No.37 of 2011, decided on 27th September, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of contract---Concurrent findings of two courts below could not be re-determined by re-appreciating the evidence in appeal without any error of law---Specific performance was a discretionary relief and same could not be claimed as a matter of right even in case where contract was proved---Such discretion was to be exercised judiciously and not arbitrarily---Plaintiff had failed to point out any error in the impugned judgments---Trial Court as well as Appellate Court had found the plaintiff not entitled to the discretionary relief of specific performance---Appeal was dismissed in circumstances.

Anwar Ahmed v. Mst. Nafis Bano 2005 SCMR 152 rel.

Syed Kamran Ali for Appellant.

Muhammad Saleem Khaskheli for Respondents Nos. 1 to 5.

Allah Bachayo Soomro, Additional A.G. for the State.

Date of hearing: 10th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 303 #

2014 Y L R 303

[Sindh]

Before Nisar Muhammad Shaikh and Salahuddin Panhwar, JJ

GHULAM MUHAMMAD and another---Applicants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-427 of 2010 and M.A. No.7425 of 2012, decided on 10th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)--- Qatl-e-amd--- Suspension of sentence pending appeal and release of accused on bail---Present jail appeal was filed by appellants/accused persons, three days after awarding them conviction by the Trial Court, and it was admitted for hearing after one month and four days from its filing---Order sheet had revealed that there was no delay on the part of accused party in proceeding with the appeal---Record did not show any adjournment application moved by accused persons or their advocate---Period of statutory delay, in the case, appeared to have matured for consideration of the release of accused persons on bail---Nothing was on record to indicate, if accused were previously convicted, or were involved in any act of terrorism---No material had been brought on record to indicate that accused were desperate, hardened or dangerous criminals---Accused persons, who were in jail since the day of their arrest on 9-4-2004, seemed to be entitled for the suspension of their sentence and grant of bail pending appeal---Sentence awarded to accused persons, was suspended and they were directed to be released on bail in circumstances.

2012 PCr.LJ 634; 2012 MLD 1532; PLD 1995 SC 49; 2012 YLR 2914; 2012 PCr.LJ 1172; 2012 YLR 77; 2013 YLR 906 and 2013 PCr.LJ 403 ref.

Syed Madad Ali Shah for Appellant.

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

YLR 2014 KARACHI HIGH COURT SINDH 316 #

2014 Y L R 316

[Sindh]

Before Shahnawaz Tariq, J

DIN MUHAMMAD alias DINO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.889 and M.A. No. 6554 of 2012, decided on 16th September, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(2), 114, 148 & 149---Qatl-e-amd, rash and negligent act, presence of abettor, rioting---Bail, refusal of---Delay in lodging of F.I.R. had been explained appropriately---No scuffle as alleged had taken place between the parties, and specific role of firing and causing fatal injury to accused had been attributed---Both parties resided in same village and were well known to each other---Prior to the incident, there was a quarrel between the children and after exchange of hard words, parties were not on talking terms with each other---Parties though belonged to different sects, but no evidence was available on record to indicate that alleged offence was result of any sectarian dispute---Accused was specifically named in the report, and direct and particular role had been ascribed to him in the F.I.R. to the effect that allegedly accused had fired shots directly at the deceased from his pistol---Crime weapon, pistol was recovered and produced by accused---Question of darkness at the place of incident, could not be determined or considered as deeper appreciation and discussion of the evidence at the bail stage would definitely affect the case of either party---Accused was main culprit who had fired shots directly which hit the deceased at right side of his abdomen which resulted into the death of the deceased---Role of accused could not be termed at par with the role of co-accused to whom bail had already been granted---Accused had failed to make out a prima facie case for consideration of concession of bail at initial stage---Bail application of accused, was dismissed, in circumstances.

Gyasuddin v. The State 2006 S.L.J. 179 and Ahmed v. The State 2007 PCr.LJ 987 distinguished.

Dilawar Khan and another v. Iqbal Khan and another 2010 PCr.LJ 502; Gohram and another v. The State 2012 MLD 1927; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Balach v. The State 2010 PCr.LJ 509; Khalida Bibi v. Nadeem Baig PLD 2009 SC 440; Raja Muhammad Irshad v. Muhammad Bashir Goraya and others 2006 SCMR 1292; Ayaz v. The State 2011 PCr.LJ 177 and Shoaib Shahid v. The State 2011 PCr.LJ 1896 ref.

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

----S. 497---Grant or refusal of bail---Rule of consistency---Basic theme and philosophy of the rule of consistency was to scrutinize thoroughly and strictly, covering each and every aspect of the role performed by one culprit during the commission of the offence with other co-accused of the same offence---Mere granting of bail to one of accused, nominated in the F.I.R., would not create any space to extend the concession of bail for remaining perpetrators, unless the material available in case, prima facie indicated same set of allegations.

----S. 497---Question for grant of bail---Considerations---Deeper appreciation of evidence---Scope---Court while considering the question for grant of bail to accused was to avoid to discuss at length the main aspects of the prosecution case, as such findings and observations of the court would seriously affect the merits of case of other party; and impact of influence upon Trial Court could not be ruled out---Deeper appreciation of evidence, in circumstances, could not be gone into at bail stage, and tentative assessment of the available evidence be made only to find out as to whether accused was, prima facie, connected with offence or not.

Ghulam Shabbir Shar for Applicant.

Muhammad Saleh Bhutto for the Complainant.

Zulfiqar Ali Jatoi D.P.G. for the State.

Date of hearing: 16th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 341 #

2014 Y L R 341

[Sindh]

Before Ghulam Sarwar Korai and Munib Akhtar, JJ

DODO KHAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.340 and Criminal Acquitted Appeal No. 341 of 2011, decided on 10th June, 2013.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Variations in evidence---Plea of alibi---Accused was convicted by Trial Court under S. 302 (b) P.P.C. and was sentenced to imprisonment for life---Validity---Evidence and not the quantity of witnesses was to be seen---Evidence of Prosecution witnesses was consistent and had not been shaken---Variations, if any, were not such as would raise reasonable doubt and in any case, were to be expected given the fact that evidence was recorded some years after the incident---If the evidence of prosecution witnesses been letter perfect, marching as it were, in lockstep, that would have been something that would have caused concern---Robustness of prosecution evidence to the standard required in a criminal case had been made out---Evidence produced by accused in support of plea of alibi taken was weak and of doubtful nature, and the same was insufficient to create reasonable doubt in what had been deposed by prosecution witnesses---Accused failed to make out a case for his acquittal---Appeal was dismissed in circumstances.

Ali Sher and others v. The State 2008 SCMR 707; Noor Alam v. The State 2003 PCr.LJ 2003; Ayub Masih v. The State PLD 2002 SC 1048; Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25; Abdullah Khan and 5 others v. The State 2008 MLD 535; Mardan Ali v. Gulistan and others 1980 SCMR 889; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Shah v. The State 2010 SCMR 1009; Din Muhammad v. The Crown 1969 SCMR 777; Muhammad Hanif and others v. The State 1994 PCr.LJ 1503; Shamsul Islam v. The State 2006 SCMR 1778 and Qasim Ali v. The State 2007 SCMR 1285 ref.

Muhammad Ashraf Kazi for Appellants.

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

Dates of hearing: 17th and 24th May, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 367 #

2014 Y L R 367

[Sindh]

Before Farooq Ali Channa, J

SHAH NAWAZ and 2 others---Applicants

Versus

GOVERNMENT OF SINDH through Secretary, Board of Revenue Sindh, Hyderbad and 8 others---Respondents

Civil Revision Application No.264 of 2012, decided on 11th November, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 96---Suit for declaration---Appeal---Scope---Inheritance---Contention of plaintiffs was that defendants had deprived them from inheritance fraudulently---Suit was decreed ex parte by the Trial Court but same was remanded by the Appellate Court for decision afresh---Validity---Trial Court had declared plaintiffs to be the legal heirs of deceased which had not been disputed by the defendants---No controversy existed between the parties with regard to legal heirs of the deceased---Defendants were not aggrieved of the impugned ex parte decree---Said decree did not affect rights of defendants in their ancestral property---Decree or order could be challenged in appeal if same would adversely affect a person---Such condition was missing in the present case---Defendants had not approached the Trial Court for setting aside the ex parte judgment and decree---No reason existed for setting aside ex parte decree and for remand of case to the Trial Court---Directions of the Appellate Court were beyond the pleadings---Impugned judgment was perverse, suffering from infirmity and material irregularities---Revision was accepted in circumstances.

Sartar Iqbal Panhwar for Applicants.

Abdul Qayoom Pirzada for Private Respondents.

Allah Bachayo Soomro, Addl. A.G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 394 #

2014 Y L R 394

[Sindh]

Before Sadiq Hussain Bhatti, J

AKBAR NOOHANI and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-354 of 2011, decided on 9th May, 2013.

Penal Code (XLV of 1860)---

----S. 395---Dacoity---Appreciation of evidence---Complainant, who deposed that he saw accused persons from a distance of 1/2 Kilometer, had admitted that night of incident was dark---Complainant had also admitted that due to darkness said persons could not be identified from a distance of 1/2 Kilometer---Two prosecution witnesses, had absolutely not supported the identity of any accused---All three prosecution witnesses, had disclosed that the place of incident was surrounded by number of houses; and that people of different caste, resided there---Complainant had also admitted that Police gave him the name of one accused person---Complainant had deposed that they raised no cries to attract the persons from neighbourhood, but prosecution witness had deposed that they raised cries for help, but nobody came for their rescue---Incident was not denied, but the identity of the doers, was not established, which had created doubt in the prudent mind---Whenever, direct evidence failed, the corroborative evidence, would be of no legal value---Corroborative evidence, would not carry any weight, and was of no legal consequence---Court, after taking into consideration, all the facts and circumstances of the case, had not only to be satisfied, that the incident had been committed, but it must also be satisfied that it was the accused, who had committed the incident---Prosecution, having failed to establish its case against accused persons beyond reasonable doubt, conviction and sentence awarded to accused persons, were set aside---Accused were acquitted from the charges levelled against them---Accused who were on bail, their bail bonds were cancelled, and sureties were discharged, in circumstances.

Miandad Leghari's case 2009 PCr.LJ 1226 rel.

Ms. Aliya Sahar for Appellants.

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

Date of hearing: 9th May, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 403 #

2014 Y L R 403

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD YOUSIF through L.Rs.---Applicant

Versus

MUHAMMAD USMAN---Respondent

Revision Application No.158 and M.A. No.543 of 2010, decided on 23rd October, 2013.

Specific Relief Act (I of 1877)---

----Ss.8, 42 & 54---Suit for recovery of possession, declaration and injunction---Benami transaction---Title of property---Proof---Document not produced---Plaintiff claimed to be owner of suit property and urged that gift deed in favour of defendant was a forged and fraudulent document---Trial Court partly decreed the suit in favour of plaintiff, holding him entitled to half of the suit property but Lower Appellate Court set aside the finding of Trial Court and decreed the suit in favour to plaintiff to the extent of whole property---Validity---No dispute existed at all regarding purchase of suit property in the name of plaintiff through registered sale deed rather the same was not produced in evidence and such fact was not seriously disputed by defendant---Transaction was proved to be Benami transacation and sale consideration was paid by the father of parties which fact was also not rebutted by plaintiff and Benami nature of transaction had been fully established---Subsequently plaintiff signed and executed two Iqrarnamas whereby half protion of suit property was given to defendant---Signatures on and contents of both Iqrarnamas could not be denied or disputed by plaintiff as one could not approbate and reprobate---Sale deed in favour of plaintiff was not produced in evidence and any document if was not part of judicial record, its judicial notice could not be taken---Lower Appellate Court without properly appreciating the evidence on record, contrarily took into consideration the sale deed in favour of plaintiff as an absolute document of title---Lower Appellate Court failed to properly appreciate nature of transaction---High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed accordingly.

Mst. Umer Bibi and 3 others v. Bashir Ahmed and 3 others 1977 SCMR 154; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403; Mst. Jan Rana v. Commissioner of Income Tax, Peshawar 2006 PTD 529; Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022; Reham Hussain v. Abdul Rahim and 2 others 2007 MLD 1110; Muhammad Ibrahim v. Mst. Mehmooda 1991 CLC 1795; Raja Humayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Abdul Razzak v. Sabar Khan 2004 CLC 950; Syed Farzand Raza Rizvi v. Syed Zaheer Mustafa 1988 MLD 463; Walid Bin Nawaz and others v. Malik Muhammad Akram and others 2003 MLD 140; Arfan Hameed, S.D.O. Mirpur and 42 others v. Secretary, Education, AJ&K Government Civil Secretariat, Muzaffarabad and 3 others 2005 CLC 564; Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 376; Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig PLD 1994 Kar. 194; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Syed Hassan Shah v. Syed Malok Shah 1987 CLC 2281; Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022 and Manzoor ul Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109 ref.

Ghulam Samdani v. Faqeer Khan PLD 2007 Pesh. 11 distinguished.

Abdul Aziz Shaikh for Applicants.

Rana Muhammad Siddique Khan for Respondent.

Date of hearing: 9th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 429 #

2014 Y L R 429

[Sindh]

Before Nadeem Akhter and Syed Muhammad Farooq Shah, JJ

BASHIR AHMED---Petitioner

Versus

VIIITH FAMILY JUDGE, DISTRICT WEST, KARACHI and 2 others---Respondents

C.P. No.3056 of 2013, decided on 23rd October, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 249---Constitution of Pakistan, Art. 199---Constitutional petition---Inherent jurisdiction of High Court to quash criminal proceedings---Scope---Non-appearance of complainant and prosecution witnesses---Stoppage of proceedings by the Magistrate---Quashment in criminal proceedings might be sought when case was of no evidence or registration of case was mala fide or case was of civil nature or there was jurisdictional defect or there was violation of some provisions of law and continuation of proceedings would amount to abuse of process of court---Constitutional jurisdiction might be exercised for quashment of proceedings in exceptional cases---High Court had ample power to quash the proceedings if it was found that even after recording the evidence, the accused would not be convicted if same was invoked after exhausting the alternate remedy under S. 249-A, Cr.P.C.---Powers under S. 561-A, Cr.P.C. were to be exercised sparingly and only when there appeared to be abuse of process of law or when it was necessary to prevent ends of justice from being defeated---Inherent jurisdiction of High Court was not an alternative or additional jurisdiction---Magistrate had not committed any illegality to stop the proceedings after recording plausible reasons---No cogent material was on record as to why prosecution had been launched for improper motive to harass the accused---Powers under S. 561-A, Cr.P.C. could not be utilized as to interrupt or divert ordinary course of criminal procedure---Case against the accused was not an exceptional case---Stoppage of proceedings would amount to ends of justice---Relief sought by the accused could not be granted---Constitutional petition was dismissed in limine.

Manzoor Hussain Khoso for Petitioner.

Nemo for Respondents.

Date of hearing: 9th October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 444 #

2014 Y L R 444

[Sindh]

Before Muhammad Junaid Ghaffar, J

MUHAMMAD ALI SHAIKH---Plaintiff

Versus

SUI SOUTHERN GAS COMPANY LTD. through Managing Director and 3 others---Defendants

Suit No.982 of 2008 and C.M.A. No.9789 of 2012, decided on 21st October, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. I, R. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Scope---Contention of defendants was that suit could only be filed against natural or legal person and not against an official title or designation and plaint could not be rejected in parts or piecemeal---Provision of Order VII Rule 11, C.P.C. was procedural in nature and power under said provision had to be exercised only in exceptional circumstances---Such power should be exercised where court would come to the conclusion that even if all the allegations were proved, the plaintiff would not be entitled to any relief---Court had only to see as to whether any cause of action had been disclosed and it was immaterial to see whether plaintiff would be able to prove the case or not which could not be decided without framing of issues and recording of evidence---Defendant/authorities issued demand notice for recovery of amount on behalf of company and company had been arrayed as defendants with official designations which was right and proper cause of action---Case of plaintiff was against the company and not against its officials---Plaintiff had acted in correct and proper manner---Party could not be denied relief on the grounds of misjoinder or non-joinder---Objection of joinder, mis-joinder or non-joinder must be taken at the earliest, failing which the same should be deemed to have been waived---Court had power to add or strike out the parties---Cases/issues must not be decided on technicalities---Plaintiff could be directed to file amended title with proper name and designation if so advised---Proper course would be to provide opportunity to the plaintiff to correct the technical defect if any and not to dismiss or reject the plaint on such issue---Case of plaintiff against the officials of the company was not in their private capacity but was in their official capacity---Officials of company had acted under the authority of the company and they were immune from any liability---Plaintiff could maintain his suit against the company and plaint could not be rejected---Application was dismissed in circumstances.

Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590; Muhammad Younus v. Corex Enterprise 2007 MLD 508 and Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011 SCMR 1591 rel.

Bore Muhammad v. Mst. Aziza Begum 2001 CLC 701; Nagina Bakery v. Sui Southern Gas Ltd. 2001 CLC 1559; Secretary B & R Government of West Pakistan v. Fazal Ali Khan PLD 1971 Kar. 625 and Ghulam Rasool and others v. The Board of Revenue 2010 MLD 776 distinguished.

Shaikh Jawed Mir and Zulfiqar Haider Shah, for the Plaintiff.

Asim Iqbal for the Defendants.

Date of hearing: 30th September, 2012.

2014 Y L R 497

[Sindh]

Before Abdul Rasool Memon, J

Syed QAMAR ALAM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-208 of 2013, decided on 13th August, 2013.

(a) Precedent---

----Criminal case---Precedent had no universal application in criminal case because each case was to be dealt with in its own facts and circumstances.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Accused had been arrested on the charge of bouncing of cheque amounting to Rs.300,000 under S.489-F, P.P.C.---Maximum punishment of S.489-F, P.P.C., being 3 years, offence alleged did not fall within the ambit of prohibitory clause of S.497, Cr.P.C.---Mere pendency of another criminal case, or registration of another F.I.R. against accused, could not be held as valid ground for refusal of bail; and unless it was brought on record that accused had been convicted in a case of like nature---Accused having made out a case for grant of bail, he was admitted to bail, in circumstances.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 rel.

Sultan Ahmed v. The State 2007 YLR 2723 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 ref.

Shameel Ahmed v. The State 2009 SCMR 174; Sohail Ahmed Babar v. The State and another 2008 SCMR 966; Naveed Maqsood v. The State 2012 YLR 674; Riaz Jafar Natiq v. The State and another 2012 MLD 232 distinguished.

Miss Farida Khan for Applicant.

Rao Muhammad Mustaqeem for the Complainant.

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

YLR 2014 KARACHI HIGH COURT SINDH 505 #

2014 Y L R 505

[Sindh]

Before Sadiq Hussain Bhatti, J

Rana AZHAR ALI KHAN through Legal heirs---Plaintiffs

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH and 46 others---Defendants

Suit No.544 of 2002, decided on 22nd October, 2013.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Contention of plaintiff was that he purchased the suit-land and defendants had encroached the same---Scope---Plaintiff had not produced any document to prove his title over the suit-land---Possession of plaintiff on the suit-land was doubtful---Plaintiff had no locus standi to file the present suit which was dismissed in circumstances.

S.M. Haider for Plaintiff.

Farkhunda Mangi for Defendants Nos. 1, 45 and 46.

Nemo for the other Defendants.

Date of hearing: 3rd October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 523 #

2014 Y L R 523

[Sindh]

Before Shahnawaz Tariq, J

MUNAWAR SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-641 and M.A. No. 3305 of 2012, decided on 28th October, 2013.

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

----S. 497---Bail, grant of---Wisdom and philosophy behind the concept of extension of concession of bail was to protect the innocent persons and to minimize the worries, mental agonies, glooms and miseries of members of family who were depending upon the confined person; and said concession must not be declined merely on the surmises and self-assumptions pointed out by the prosecution---Each case would be scrutinized strictly within purview of the involved relevant facts, specific circumstances, nature and manner of commission of offence, and legal parameters settled by the superior courts.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting---Bail, refusal of---Name of accused was mentioned in the F.I.R. with specific allegation that he and other accused persons duly armed with lethal weapons carried out a murderous assault, wherein three persons sustained bullet injuries and out of them one injured succumbed to injuries, which was sufficient to indicate that accused had shared the common object---Motive of incident was also alleged in the F.I.R.---Deeper assessment of evidence and merits, while considering the application for the bail was not admissible, which could affect the case of either party---At bail stage it would be immaterial to discuss as to whose shot proved fatal; it was the domain of the Trial Court to dig out the factum of such responsibility after recording the evidence of witnesses---Reasonable grounds existed to believe that accused was guilty of the alleged offence punishable with death or imprisonment for life---Accused having failed to make out a case of further inquiry for extension of concession of bail, application for bail was dismissed, in circumstances.

Muhammad Sadiq and another v. The State 1996 SCMR 1654; Dilmurad v. The State 2010 SCMR 1178; Manzoor Hussain and another v. The State 2011 SCMR 902; Inayatullah and 3 others v. The State 2007 PCr.LJ 1340; Tariq Zia v. The State 2003 SCMR 958; Nazakat Ali v. The State and another 2008 PCr.LJ 810; Faraz Akram v. The State 1999 SCMR 1360 and Muhammad v. The State 1998 SCMR 454 distinguished.

Gulu Khan v. Gul Daraz Khan 1995 SCMR 1765 ref.

Serajul Haque v. The State 1968 SCMR 251; Javed Aslam and another v. The State 1983 PCr.LJ 2597; Babu v. The State 1981 SCMR 849; Muhammad Usman v. Zafarullah Khan and another 1994 PCr.LJ 1750; Muhammad Ishaq v. Chan Zeb and another 1996 PCr.LJ 845; Jan Muhammad and 6 others v. The State 1997 MLD 81; Bashir Ahmed v. The State PLD 1994 Kar. 462; Muhammad Nawaz v. The State 1994 PCr.LJ 2368; Nazar Hussain and another v. The State 1994 PCr.LJ 1528 and Taj Din alias Bholi v. The State 1996 PCr.LJ 838 rel.

Ghulam Shabbir Shar for Applicant.

Zulifqar Ali Jatoi, D.P.G. for the State SIP/I.O. along with Wali Muhammad of Police Station Naushehro Feroze and SIP Muhammad Chuttal of Police Station Naushehro Feroze.

Complainant in person.

Date of hearing: 28th October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 548 #

2014 Y L R 548

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD YAMIN ELLAHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.88 of 2007, decided on 28th October, 2013.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt---Statement of prosecution witness, on whose sole testimony the conviction was awarded to accused by the Trial Court, was recorded on the next day of the incident---Deposition of said witness was contrary to his statement recorded under S.161, Cr.P.C.---General type of allegations were levelled such as causing indiscriminate firing upon the deceased and injured persons---Complainant, who was eye-witness had not been examined and no plausible explanation was given for that---Medical evidence had reflected that injuries to the prosecution witness, were caused by fire arm, but no bullets were recovered from the body, or any empty or weapon from accused---Trial Court, could not judge credibility and demeanour of the witness in view of the principle that every person was presumed to be innocent, unless proved guilty---On reappraisal of sole testimony of injured, without any corroboration, a different view could be drawn with regard to manifest wrong, perversity or uncalled conclusion from facts provided on record, as material evidence had been misread blatantly to an extent that miscarriage of justice had occasioned---Remaining injured persons and complainant did not implicate accused in commission of offence---On same reason and ground co-accused had been acquitted by the Trial Court---No motive of commission of offence---Serious illegalities had been committed by the Trial Court while recording conviction of accused---Accused had served almost more than half of awarded sentence---Solitary evidence of prosecution witness creating doubt in prudent mind, was not sufficient for recording conviction---In the present case, sufficient circumstances were available which had created doubt upon the prosecution case---Conviction could not be recorded, merely on probabilities and prosecution had to prove its case beyond any shadow of doubt, which the prosecution had failed---Conviction and sentence awarded to accused by the Trial Court, were set aside, in circumstances.

Noor Zaman v. Abdul Latif and another 2012 PCr.LJ 569; Muhammad Din v. The State PLD 1959 SC (PAK) 491; Rohtas Khan v. The State 2010 SCMR 566; Muhammad Sadiq v. Najeeb Ali and another 1995 SCMR 1632; Amir Abdullah v. The State 1980 SCMR 51; Mehmood Khan v. Ahmed and 2 others 1972 SCMR 620; Mamoon and another v. The State PLD 1962 (W.P.) Kar. 800; Riaz v. The State 1998 PCr.LJ 1613; Gul Muhammad alias Gullo and another v. The State 1974 PCr.LJ 400; Astam Khan v. The State 1995 PCr.LJ 459; Ghulam Murtaza v. The State PLD 1989 Kar. 293; 1980 PCr.LJ 898; 1973 SCMR 473; 1969 SCMR 76; 1993 SCMR 585; PLD 1975 SC 160; PLD 1988 SC 133; 2005 YLR 2427; 2004 PCr.LJ 1138; 1995 SCMR 1793 and PLD 1988 Kar. 539 ref.

Muhammad Din v. The State PLD 1959 SC 491; 1980 SCMR 51; 1972 SCMR 620; PLD 1962 (W.P.) Kar. 800 and 1998 PCr.LJ 1613 rel.

(b) Criminal trial---

----Benefit of doubt---Entitlement---For extending benefit of doubt, it was not necessary that there should be many circumstances creating doubt, if there was a circumstance which would create reasonable doubt about the guilt of accused, then accused would be entitled to the same , not as a matter of grace and concession, but as a matter of right.

Aamir Mansoob Qureshi for Appellant.

Ali Haidar Saleem, A.P.-G. Sindh for the State.

Date of hearing: 24th October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 575 #

2014 Y L R 575

[Sindh]

Before Riazat Ali Sahar, J

ARBAB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.97 of 2006, decided on 12th July, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Incident was witnessed by complainant and prosecution witnesses, who had fully implicated accused in the commission of offence---Evidence of complainant and prosecution witnesses was fully corroborated by the medical evidence and circumstantial evidence of recovery of crime weapon from the possession of accused, which was in line with the ocular evidence, coupled with evidence of Magistrate, who recorded the confessional statement of accused---Accused was proved to have made his confessional statement voluntarily as he had committed murder of the deceased to take revenge from him---Confessional statement of accused was recorded according to law---No material contradiction was noticed in the evidence of prosecution witnesses, and no mis-reading or non-reading of evidence was found in the impugned judgment---No infirmity existed in the assessment of evidence by the Trial Court requiring interference to the impugned judgment---Prosecution had proved its case against accused beyond any shadow of doubt, as the Trial Court had appreciated the evidence in accordance with law---Judgment of the Trial Court being based upon sound reasons, conviction and sentence awarded to accused by the Trial Court was maintained.

Faiz Muhammad M. Larik for the Appellant.

Naimatullah Bhurgri, for the Complainant.

Abdul Rasheed Soomro, State Counsel.

Date of hearing: 12th July, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 584 #

2014 Y L R 584

[Sindh]

Before Abdul Rasool Memon, J

ABDUL AZIZ and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-35 of 2004, decided on 4th October, 2013.

Penal Code (XLV of 1860)---

----Ss. 324, 353, 148 & 149---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting---Appreciation of evidence---Benefit of doubt---Firing continued for 15/20 minutes and accused persons allegedly were armed with K.K. guns and pistols, and the Police was also having sophisticated weapons, and they retaliated and made firing, but not a single empty of bullet or cartridge had been recovered from the place of wardat to substantiate the allegation of firing with intention to commit qatl-e-amd of Police party by accused persons---Neither accused, nor Police Officials sustained injury in that incident---Identification parade was not only delayed by twenty three days of the incident, but ratio of dummies had also not been maintained because four accused had been mixed up with ten dummies---Identification parade was of no use on that score---Prosecution case suffered from doubt, and, if accused would bring on record a slightest doubt regarding his involvement in the commission of the offence, then its benefit should be given to him, not as a matter of grace or concession, but as a matter of right---Prosecution had failed to prove its case beyond shadow of reasonable doubt against accused persons---Impugned judgment was set aside and accused were acquitted, in circumstances.

Faiz Muhammad Larik for Appellants.

Naimatullah Bhurgari for the State.

Date of hearing: 4th October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 602 #

2014 Y L R 602

[Sindh]

Before Zafar Ahmed Rajput, J

Chaudhry MUHAMMAD SHAFI and others---Applicants

Versus

GOVERNMENT OF SINDH through Secretary Revenue, Hyderabad and 13 others---Respondents

Civil Revision No.77 of 2005, decided on 17th September, 2013.

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

----O. XLI, R. 31---Judgment---Points for determination---Scope---Appellate Court below did not frame points for determination nor had recorded findings on such points---Impugned judgment had been passed ignoring the provisions of Order XLI, Rule 31, C.P.C. which was mandatory in nature---Points for determination should have been framed to decide the matter in accordance with law---Judgment passed by the Appellate Court could not be said to be "judgment" within the meaning of Order XLI, Rule 31, C.P.C.---Concurrent findings could not be considered sacrosanct in a situation where rights of parties were not determined in accordance with law---Revisional jurisdiction of High Court was meant to rectify the errors made by the subordinate courts---Judgment and decree passed by the Appellate Court were set aside and case was remanded to the said court for passing de novo judgment and decree after framing points for determination in the appeal---Revision was accepted in circumstances.

Juma Khan v. Mst. Shamim and others 1992 CLC 1022 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings---Effect---Concurrent findings could not be considered sacrosanct in a situation where rights of parties were not determined in accordance with law---Revisional jurisdiction of High Court was meant to rectify the errors made by the subordinate courts.

Parya Ram M. Vaswani for Applicants.

Jamshed Ahmed Faiz and Abdul Ghaffar Memon State Counsel for Respondents.

YLR 2014 KARACHI HIGH COURT SINDH 618 #

2014 Y L R 618

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD IBRAHIM---Petitioner

Versus

Syeda JAMILA BEGUM and 2 others---Respondents

Constitutional Petition No.S-458 of 2010, decided on 14th May, 2013.

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

----Ss. 15(2)(ii) & 21---Constitution of Pakistan, Art.199---Constitutional petition--Ejectment of tenant was sought on ground of default in payment of rent---Rent Controller, dismissed ejectment application filed by the landlady against the tenant, but Appellate Court below reversed findings of the Rent Controller and allowed ejectment application---Tenant who denied default in payment of rent of the premises, and asserted that on refusal of previous owner to accept the rent, tenant tendered the rent through money order, which was refused; and that thereafter tenant started depositing the rent in Court---Tenant had also asserted that on coming to know about the change of ownership of the premises, he offered the rent to the new owner/(landlady); and on her refusal he tendered the same through money order; and on her refusal to accept the money order, he deposited the same in Court in her name---Tenant had not produced any tangible material in support of his said assertion, regarding payment of rent---Nothing was on record, that the tenant had deposited any other rent; either in the name of previous or new owner/landlady in the case---As soon as, the landlord would come forward and make statement on oath that he had not received the rent of certain period, then burden would shift upon the tenant to prove that he had paid or tendered the rent---Tenant had failed to produce any documentary, or oral evidence in support of his assertion that he had paid, or tendered the rent through money order; and on refusal of landlady, he deposited the same in court---Rent Controller had failed to appreciate that tenant had not specifically stated, as to in whose favour the tenant was depositing the rent; what was the rate of rent; and for which period, the tenant had deposited the rent---Landlady, in her application had mentioned that tenant was not paying electricity and other charges, also---Appellate Court below, in circumstances, had rightly reversed the findings of the Rent Controller, holding that tenant had made default in payment of the rent---Constitutional petition was dismissed.

1999 SCMR 2924 distinguished.

2013 CLC 119; 2011 SCMR 589; 2001 SCMR 678; 1995 SCMR 204; 1997 SCMR 945; 1992 SCMR 871 and 1988 SCMR 775 ref.

Sadiq Hidayatullah for Petitioner.

Mujahid Bhatti for Respondent No.1.

Date of hearing: 11th April, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 632 #

2014 Y L R 632

[Sindh]

Before Syed Hasan Azhar Rizvi, J

JANIB ALI ZARDARI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.751 of 2013, decided on 24th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 21---Control of Narcotic Substances Government Analysts Rules, 2001, R.4(2)---Possessing and trafficking narcotics---Bail, grant of---Further inquiry---F.I.R. was registered on the direction of the high-ups of the Police, but no competent officer, as provided under S.21 of Control of Narcotic Substances Act, 1997, was sent/deputed at the time of raid---Samples of charas were not taken and dispatched to the Laboratory for opinion within 72 hours, but were sent after about seven days of alleged recovery; and no explanation was given by the Police for such delay which was a violation of R.4(2) of Control of Narcotic Substances Government Analysts Rules, 2001---Memo of arrest and recovery was prepared in presence of two witnesses, who both were Police Officials---Names of said recovery witnesses had not been mentioned in the statement recorded under S.154, Cr.P.C. and in the F.I.R. which was lapse on the part of the prosecution creating reasonable doubt about recovery; and authenticity of Mashirnama of recovery had become fishy and made the case of prosecution of further inquiry---No reasons existed for keeping accused behind the bars, when sufficient illegalities and irregularities had appeared in the case of prosecution, which had created doubt in the prosecution story; benefit of which would go to accused---Accused, in circumstances, was entitled for grant of bail.

Mumtaz Ali v. The State 2001 YLR 1847; Abdali Shah v. The State PLD 2008 Kar. 57; Rawal v. The State 2012 MLD 1032; Jan Muhammad v. The State 2008 YLR 2080 and Inayat Ullah v. The State 2006 PCr.LJ 840 rel.

Nasrullah v. The State PLD 2001 Pesh. 152; Muhammad Siraj v. The State 2011 MLD 958; Rafaqat Ali v. The State 1999 PCr.LJ 924 and Nawaz v. The State 2004 YLR 1118 ref.

Amir Haider Shah and Rajab Ali Mughairi for Applicant.

Shehzado Saleem A.P.-G. for Respondent.

Date of hearing: 19th July, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 639 #

2014 Y L R 639

[Sindh]

Before Naimatullah Phulpoto, J

ASHRAF---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.331 of 2013, decided on 13th May, 2013.

Criminal Procedure Code (V of 1898)---

---S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)---Possession of narcotic drugs---Bail, grant of---Allegation against the accused was that he was selling Charas---1040 grams of Charas was recovered from the possession of the accused-petitioner and it was yet to be determined whether offence would fall under clause (b) or (c) of S.9 of the Control of Narcotic Substances Act, 1997---Present case was a border line case---Challan had already been submitted and accused-petitioner was no more required for investigation---Prosecution witnesses were police official and there was no question of tampering with evidence---Nothing was on record that the accused-petitioner was previous convict in similar offences---Enmity with police had also been alleged---Case for grant of bail to the accused-petitioner was made out---Accused-petitioner was granted bail in circumstances.

Ghulam Rasool Mangi for Applicant.

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

Date of hearing: 13th March, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 648 #

2014 Y L R 648

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ALI through Attorney ---Petitioner

Versus

Vth-ADDITIONAL DISTRICT JUDGE, HYDERABAD and 2 others---Respondents

Constitution Petition No.S-423 of 2010, decided on 18th November, 2013.

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

----S. 15---Civil Procedure Code (V of 1908), S.12 (2)---Constitution of Pakistan, Art.199---Constitutional petition---Laches, principle of--- Applicability--- Ejectment petition---Bona fide personal need of landlord---Scope---Landlord filed eviction petition on the ground of his personal bona fide need which was dismissed by the Rent Controller but same was accepted by the Appellate Court ex parte---Validity---Rent Controller did not consider the plea of landlord with regard to his personal bona fide need who was entitled to have vacant possession of the premises---Mere lack of experience and not disclosing the nature of business intended to be established would not disentitle landlord from claiming ejectment of tenant---Landlord had prerogative to choose any premises for his business irrespective of its suitability---Attorney could appear and contest the litigation but he could not become the tenant nor was entitled to retain the premises---Landlord was entitled to be in possession of subject shop---Impugned order was passed on 21-12-2009 which despite knowledge of tenant was assailed after lapse of eleven months---Constitutional petition suffered from laches and liable to be dismissed.

Manager, Jamu and Kahsmir State Property v. Khuda Yar PLD 1975 SC 678 and Pakistan International Airlines Corporation and others PLD 2001 SC 676 rel.

Irfan Merchant and others v. Federation of Pakistan and others 2013 CLC 853; Mirpurklas Shugar Mills Ltd., and 22 others v. Federation of Pakistan and others 2013 MLD 433; Tahsil Municipal Administration (T.M.A), Mandi Bahauddin v. Evacuee Trust Property Board Punjab, Lahore and others 2004 YLR 1969 and Amin Akhtar Jami v. Jahangir Alam 1993 MLD 1530 distinguished.

Ejaz Ali Hakro for Petitioner.

Mukhtiar Ahmed Khanzada State Counsel for Respondents Nos. 1 and 2.

Muhammad Hanif Shaikh for Respondent No.3.

Date of hearing: 4th November, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 652 #

2014 Y L R 652

[Sindh]

Before Aftab Ahmed Gorar, J

GUL BAHAR alias GULBO alias ALI GOHAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-115 and M.A. No.2087 of 2010, decided on 20th June, 2013.

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

----S.302/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---No overt act against any of accused persons---Complainant and prosecution witness had improved their evidence at the time of trial---Both the prosecution witnesses, were resident of village which was about 16/17 Kilometers away from the place of incident---As to how the persons who were residing at such a long distance from the place of incident were available there at the dark hours of the night was highly doubtful---Prosecution witness had admitted that complainant was from his caste, while deceased was his brother-in-law---Said witness remained mum for about two months and did not disclose the facts to the complainant or Investigating Officer---Neither the witnesses at the time of occurrence, challenged accused, nor they tried to raise hakal etc., to rescue the deceased; or inform the complainant about the accused causing injuries to the deceased---Presence of both the witnesses at the place of incident, had created doubt about the prosecution case, in circumstances---Improvements made by the prosecution, had also created doubt---Evidence of one of the witnesses was recorded after a delay of five days without furnishing any explanation for such delay---Sufficient circumstances existed in the present case, which had created doubt about the prosecution case---Conviction could not be recorded merely on probabilities and presumptions, and prosecution had to prove its case beyond any shadow of doubt, which the prosecution had failed to prove in the present case---Accused were acquitted and were released, in circumstances.

Hadi Bux v. State PLD 1963 (W.P.) Kar. 805; Muhammad Ilyas v. State 1997 SCMR 25 and Attaullah v. State PLD 2006 Kar. 206 ref.

Sahib Gul v. Ziarat Gul 1976 SCMR 236; Saeed Muhammad Shah v. State 1993 SCMR 550 and Muhammad Sadiq v. State PLD 1960 SC 223 rel.

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

----Art. 129(g)---Failure to produce best piece of evidence---Effect---If a best piece of evidence was available with the party and same was not produced in the court; it could be presumed that the party had some ulterior and sinister motive behind it---Presumption under illustration (g) of Art.129 of Qanun-e-Shahadat, 1984 could fairly be drawn that, the said evidence, if it had been produced, same would have been unfavourable to the said party.

----Benefit of doubt---Entitlement---For extending benefit of doubt, it was not necessary that there should be many circumstances creating doubt---If there was a single circumstance, which created doubt in a prudent mind about the guilt of accused; then accused would be entitled to the benefit, not as a matter of grace, but as a matter of right.

Asif Ali Abdul Razak Soomro for Appellants.

Ameer Ahmed Narejo, State Counsel along with Complainant in person.

Date of hearing: 20th June, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 660 #

2014 Y L R 660

[Sindh]

Before Abdul Maalik Gaddi, J

ABDUL MALIK and 3 others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.S-208 of 2013, decided on 24th September, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 173, 77, 87 & 88---Penal Code (XLV of 1860), Ss.302, 324, 338-C, 506(2) & 34---Qatl-e-amd, attempt to commit qatl-e-amd, Isqat-i-Janin, criminal intimidation, common intention---Issuing non-bailable warrants---Police investigated the case against accused, and Investigating Officer, placed names of accused persons in column No.2---Magistrate did not agree with said report of Investigating Officer, and vide impugned order, joined accused persons and ordered issuance of non-bailable warrant to them, which order of Magistrate had been challenged by accused persons in their application filed under S.561-A, Cr.P.C.---Validity---Magistrate was not merely a post office to send up all accused persons nominated by the Police for trial, and let off those placed in column No.2 of the challan---Magistrate, had to apply his conscious mind and thereafter make up his mind to agree or disagree with the Police report---Magistrate would take cognizance of the offence and not the particular person named in the challan---If the Magistrate would decide to join the person who had been placed in column No.2 of the challan, he was duty bound to summon him or them which could also include using coercive process viz., issuance of non-bailable warrants and proceedings under Ss.87 & 88, Cr.P.C., if such person despite efforts did not appear before the Magistrate---Accused persons, in the present case, had been cooperating with the Police---As names of accused persons were placed in column No.2, it would be harsh to issue non-bailable warrants against them in the first instance---Magistrate, should in the first instance, issue bailable warrants; and if accused persons did not appear, then coercive method should be adopted---Non-bailable warrants issued against accused persons, were converted into bailable warrants, in circumstances.

Asif Ali Abdul Razak Soomro for Applicants.

Naimatullah Bhurgri for the State.

Date of hearing: 24th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 665 #

2014 Y L R 665

[Sindh]

Before Sadiq Hussain Bhatti, J

HUSSAIN BUX---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-441 of 2010, decided on 29th July, 2013.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence--- Enmity--- Interested witnesses---All witnesses were inter-related and were residents of different villages, who admitted enmity between them over abduction of girls and Jirga was held before Sardars---Enmity cuts both ways---Place of incident was surrounded by habitation, there were villages, garden, petrol pump and busy road but no one from there was examined to corroborate their testimony---Even no attendant from petrol pump was examined as witness from where they fueled their car---Driver of the car, who was an independent witness, was with them who according to prosecution witnesses witnessed the incident but he was not examined---No number of witnesses was required to prove a certain fact but testimony of single independent witness was sufficient to warrant conviction as evidence was always weighed and not counted---Conviction must be based on evidence beyond any shadow of doubt because damage resulting from erroneous sentence was irreversible and principle that it was better to acquit person than to punish an innocent one, as prosecution had failed to prove guilt of accused beyond any shadow of doubt---High Court set aside conviction of accused and acquitted him of the charge---Appeal was allowed in circumstances.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Qalander Said v. The State and another 2013 YLR 759; Abdul Rehman v. The State 2012 YLR 533 and Abdul Sattar v. The State 2012 YLR 580 and Abdul Ghafoor alias Multani v. The State 2013 YLR 771 ref.

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

----S. 302(b)---Qatl-e-Amd---Evidence---Chemical Examiner's report and ballistic expert's reports were not produced through prosecution witnesses but the same were produced by prosecutor after the statement of accused was recorded---Validity---Any piece of incriminating evidence must be put to accused, so that he should be in position to give its reply---Evidence was not believed in circumstances.

Sajjad Ahmed Chandio for Appellant.

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

Date of hearing: 19th July, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 695 #

2014 Y L R 695

[Sindh]

Before Abdul Maalik Gaddi, J

SARFRAZ AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-425 of 2013, decided on 1st October, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.371-A & 496-A---Selling person for purposes of prostitution etc., enticing or taking away or detaining with criminal intent a woman---Bail, grant of---Further inquiry---Non-association of private witnesses---Factum of prostitution not established---Contradiction between F.I.R. and newspaper clippings regarding the incident---Effect---Police arrested accused, who was driver of a vehicle which was being allegedly used to traffic women for purposes of prostitution---Police also arrested co-accused persons from the car and recovered the alleged abductee, whose hands and mouth were tied---Alleged abductee implicated accused for the offence in her statement under S. 164, Cr.P.C.---Police papers and F.I.R. revealed only general allegations against accused to the effect that he was driving the car, wherein alleged abductee was also present---Questions as to who had kidnapped the alleged abductee and tied her hands and mouth were not clear---Fact that alleged abductee was kidnapped from one city without any weapons and was brought to another city (by road) without being checked, was not understandable--Alleged abductee made a statement under S.164, Cr.P.C. to the effect that before their arrest accused and co-accused persons left her alone at a house and went to sell another girl---Surprisingly alleged abductee did not try to escape or run from the said house and kept waiting for accused and co-accused persons to return---Implication of accused in the offence merely on basis of statement of alleged abductee under S. 164, Cr.P.C. was not sufficient, and besides such statement was recorded in absence of accused---Accused and co-accused were arrested on basis of spy information, but police party made no efforts to obtain services of independent witnesses despite presence of shops and hotels in the area---Personal search of a co-accused lady at the spot was allegedly done by a passerby woman, but surprisingly neither name of said woman was disclosed in the F.I.R. nor she had been made a witness of arrest and recovery---Alleged abductee was neither recovered from a brothel house nor from any person, which indicated that she was being used for purpose of prostitution---Evidence did not show that alleged abductee was produced before any doctor to ascertain whether she was used for prostitution or not---Newspaper clippings available on record stated that accused and co-accused were arrested during a raid at a house, whereas in the F.I.R. arrest was made on a road---Case was one of further inquiry---Accused was released on bail accordingly.

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

----Ss. 497 & 103---Bail---Police officials, evidence of---Scope---Non-joining of private witnesses---Effect---Evidence of police officials was as good as that of private persons, but when availability of private persons at the place of arrest and recovery was not denied, then non-joining of private persons to witness the event created doubt.

----S. 497---Bail---Doubt in prosecution case, benefit of---Scope---Benefit of any doubt created in the prosecution case must be extended to the accused even at bail stage.

PLD 1988 SC(AJ&K) 14 rel.

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

----S. 497---Bail---Offence falling within prohibitory clause of S. 497, Cr.P.C---Scope---No legal or moral compulsion existed to keep people in jail merely on the allegation that they had committed offences punishable with death or transportation, unless reasonable grounds existed to disclose their complicity.

Mrs. Kalpana Devi for Applicant.

Ameer Ahmed Narejo, State Counsel along with SIP Miran Khan Durrani, S.H.O. Police Station Market, Larkana.

YLR 2014 KARACHI HIGH COURT SINDH 705 #

2014 Y L R 705

[Sindh]

Before Abdul Maalik Gaddi, J

Mst. ABIDA---Applicant

Versus

S.H.O., RATODERO POLICE STATION (DISTRICT LARKANA) and 3 others---Respondents

Criminal Miscellaneous Application No.S-233 of 2013, decided on 25th November, 2013.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas corpus petition---High Court, jurisdiction of---Scope---Recovery of minor children---Mother of minor children sought their custody, as they had been removed by their father---Plea raised by father of minors was that matter related to jurisdiction of Guardian Court---Validity---Minor son was only thirty days old, whereas two minor daughters were two and three years of age---Minors were in tender age and needed constant care of mother and there could not be any substitute for a mother and that lap of mother was God's own cradle for a child---Custody of minors with their father was improper, if not illegal---High Court, as an interim measure could grant custody of minors to his/her lawful guardian even in case pending in Guardian Court---High Court directed father of minors to hand over custody of minors to their mother---Application was allowed in circumstances.

2013 MLD 1640 rel.

Safdar Ali Ghouri for Applicant.

Muhammad Ibrahim Bapar, ADPG for the State.

Abdul Rehman Bhutto for Respondent No.3.

YLR 2014 KARACHI HIGH COURT SINDH 719 #

2014 Y L R 719

[Sindh]

Before Shahnawaz Tariq, J

SHAH MUHAMMAD---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION and another---Respondents

Criminal Miscellaneous Application N.194 of 2013, decided on 9th September, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A & 22-B---Application for quashing of order---Applicant had filed application under Ss.22-A, 22-B, Cr.P.C. for registration of criminal case against respondents which was dismissed by Justice of Peace---Application under S.561-A, Cr.P.C. for quashing said dismissal order---Applicant and proposed accused were real brothers who were disputing over a plot and had neither filed any civil suit for cancellation of disputed lease deed during the last more than ten years, nor approached any competent Authority for redressal of his grievance---Complaint before Justice of Peace, was based on mala fide intention of the applicant, which would just drag the proposed accused in a false case, and would also cause any kind of unnecessary harassment and mental agony to the accused---Prime duty of the court to play its role to curtail and discourage such practice---Applicant had failed to place trustworthy evidence and inspiring confidence circumstances before High Court to support his claim that a cognizable offence was made out against the proposed accused---Impugned order passed by the Justice of Peace, not calling for any interference, application for quashment was dismissed---Applicant, however, was at liberty to file a private complaint to achieve subject purpose.

2012 SCMR 354; 1996 PCr.LJ 1440; 2002 YLR 3625; 2004 YLR 2027; 2008 SCMR 1448; 2004 PCr.LJ 1154; 1991 PCr.LJ 534; Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951; Muhammad Ramzan v. Additional Sessions Judge Kabirwala District Khanewal and 6 others 2005 PCr.LJ 1579; Mian Abdul Waheed v. Additional Sessions Judge Lahore and 7 others 2011 PCr.LJ 438 and Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SC 691 ref.

Shafque Ahmed Leghari for Applicant.

Nizamuddin Bloach for Respondent.

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

YLR 2014 KARACHI HIGH COURT SINDH 742 #

2014 Y L R 742

[Sindh]

Before Abdul Rasool Memon and Abdul Maalik Gaddi, JJ

BAHADUR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-138 of 2010, decided on 9th October, 2013.

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

----Ss. 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, act of terrorism and possessing unlicensed arms---Appreciation of evidence---Ocular account of the occurrence had been furnished by Assistant Sub-Inspector of Police, being the complainant---Testimony of prosecution witnesses who were Police Officials, had established act of perpetration by accused---Version of said witnesses was consistent on material points and facts---Some discrepancies in the evidence of prosecution witnesses, which were minor in nature, had no bearing; and did not affect the conclusion arrived at by the Trial Court---Prosecution witnesses, though Police Officials, yet there appeared to be no reason to tell a lie by indicating accused---Nothing came on record to suggest that the Investigating Agency had motive to set up the witnesses to depose against accused falsely---Truthfulness of the ocular testimony, could not be questioned on minor contradictions or discrepancies---Police Officials were as good witnesses as any other citizen, unless any mala fide was established against them---Deposition of the Police Officials, could not be brushed aside simply on the bald allegation that they belonged to the Police department---Accused who had pleaded that case against him was false, and had been registered due to inimical terms with the informer on the dispute of a house, could not produce documentary proof to prove said plea---Counsel for accused, had not been able to point out any misreading or non-reading of evidence or contradiction on material particulars in the statements of the prosecution witnesses resulting into miscarriage of justice---Prosecution had succeeded to establish its case and accused had failed to prove his innocence---Prosecution having established its case against accused beyond any shadow of reasonable doubt, no reason was available to interfere with the conclusion arrived at by the Trial Court in recording conviction and sentence against accused.

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

----S. 103---Search proceedings---Essen-tials---Requirements of S.103, Cr.P.C., were not absolute in the sense that failure to comply with that would make the entire process illegal.

Munwar Shah v. The State 2004 MLD 200 rel.

Habibullah Ghouri and Faiz Muhammad Larik for Appellant.

Abdul Rasheed Soomro for the State.

Date of hearing: 2nd October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 757 #

2014 Y L R 757

[Sindh]

Before Nisar Muhammad Shaikh and Shahnawaz Tariq, JJ

ZARBAD KHAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos.D-57 to D-60 of 2012, decided on 24th December, 2012.

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

----Ss. 9(c) & 25---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Possessing and trafficking narcotics, possessing unlicensed arms---Appreciation of evidence---Section 25 of Control of Narcotic Substances Act, 1997, having excluded the applicability of S.103, Cr.P.C., non-association of private mashirs at the time of recovery of narcotics would neither cause any dent in prosecution case, nor vitiate the conviction---Investigating Officer could be a complainant as well as a witness at the same time, without any adverse effect on the prosecution case---Police and Excise Officials, were as good witnesses as others; and their testimonies were also trustworthy---Investigating Officer and other prosecution witnesses, although were employees of Anti-Narcotic Force; but had no animosity or rancour against accused to plant such huge quantity of narcotic material upon him---Such was the exclusive domain of the prosecution to examine any witness or otherwise; and non-examination of any witness, would not vitiate the merits of the prosecution case---All prosecution witnesses supported prosecution case---Prosecution had been successful to bring home the guilt of accused to the hilt by placing ocular account, recovery of narcotic material and Chemical Examiner's report---No reason was there to discard the testimony of the official witnesses---Counsel for accused persons, could not point out any misreading or non-reading of evidence by the Trial Court---Accused having failed to point out any error of law in impugned judgments, same were unexceptionable---Impugned judgments, not calling for any interferences, were maintained, in circumstances.

Khursheed Khan v. The State 2012 PCr.LJ 1151; Qaisarullah and others v. The State 2009 SCMR 579; Mir Muhammad v. The State 2008 MLD 1333; Agha Qais v. The State 2009 PCr.LJ 1334; Sartaj Khan v. The State 2001 PCr.LJ 977; Mukhtar Ahmed alias Muhammad Mukhtar v. The State 1999 PCr.LJ 222 and Sajid and another v. The State 2011 YLR 1245 distinguished.

Zafar v. The State 2008 SCMR 1254; Mst. Rashida Bibi v. The State 2010 PCr.LJ 900; Gul Badshah v. The State 2009 MLD 1230; Mst. Gulshan Bibi v. The State 2009 SCMR 819; Faiz Muhammad v. The State 2009 SCMR 403; Gul Badshah v. The State 2009 MLD 1230; Haji Muhammad Iqbal and 2 others v. Muhammad Saeed and 4 others 2011 PCr.LJ 1086; Afsar Khan v. The State 2008 SCMR 1219; Shah Muhammad v. The State 2012 SCMR 1276; Muhammad Sadiq's case 2005 SCMR 1689 and Kashif Amir v. State PLD 2010 SC 1052 ref.

Zarbad Khan, Iftikhar Khan and Syed-ur-Rehman appeared in person (in Criminal Jail Appeal No.D-57 and D-58 of 2012).

Fazal-e-Haque Khohidamani for Appellants (in Criminal Appeal No.D-59 and D-60 of 2012).

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

Date of hearing: 19th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 771 #

2014 Y L R 771

[Sindh]

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

Messrs SARDAR MUHAMMAD ASHRAF D. BALOCH (PVT.) LTD. Through Authorized person---Applicant

Versus

The STATE and another---Respondents

Criminal Revision Application No.D-38 of 2013, decided on 10th December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---Application for restoration of custody for vehicle on superdari---Contention of the applicant was that the vehicle was sole property of the Company he was representing and had not been used in commission of offence---Validity---Perusal of record revealed that the applicant was the authorized person for the Company, and had filed the registration documents for the vehicle, including certificate of change of ownership---Complainant had extended no objection to restoration of vehicle in favour of applicant and applicant had also submitted Form-A and Form-29 to SECP as per requirement---Vehicle was not involved in any crime and there existed no justification to refuse restoration of custody---High Court directed restoration of vehicle to the applicant on furnishing surety in the sum of Rupees 100,000 and PR bond in the like amount---Applicant was further directed to produce the vehicle before Trial Court as and when required---Revision was allowed, accordingly.

Safdar Ali G. Bhutto for Applicant.

Muhammad Ibrahim Babar, D.D.P.P. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 778 #

2014 Y L R 778

[Sindh]

Before Abdul Maalik Gaddi, J

ALI AKBAR and 2 others---Applicants

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Application No.S-191 of 2013, decided on 1st October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.337-F(i)(iii) & 504---Causing Damiyah, Mutalahimah, intentional insult with intent to provoke breach of peace---Quashing of order, application for---Magistrate, disagreeing with recommendation of Police report, whereby case was drawn under "C" class, directing S.H.O. concerned to submit challan of case against all three accused persons---Accused persons had filed application under S.561-A, Cr.P.C. for quashing of impugned order passed by the Magistrate---Respondent/complainant got registered F.I.R. against accused persons nominating them with specific allegations---Accused allegedly duly armed with Lathis and hatchet gave blows to the injured which hit on his body---Version of the complainant was fully supported by medical certificates issued by hospital---F.I.R. had been registered against accused persons after the directions issued by Justice of Peace---Injuries on the person of injured had been declared by Medical Officer as Jurh-Ghyr-Jaifah, Mutalihimah and Jurh-Ghyr Jaifah Damiyah, which constituted the cognizable offence---Injuries on the person of injured had not been declared as self-suffered by Doctor---Report of the Investigating Officer of the case in presence of medical certificate, which was corroborated by ocular evidence, had no evidentiary value---Investigating Officer could not be considered such as skilful person to give his opinion on medical evidence---Question as to whether medical evidence corroborated ocular version or not and what was evidentiary value of expert's report, could be decided only by the Trial Court---Magistrate having jurisdiction could pass order on Police report as sufficient material was on record for taking cognizance by the Magistrate---Impugned order passed by the Magistrate appeared to be justified and in accordance with law.

2011 SCMR 1430 and 2012 MLD 1075 ref.

2011 SCMR 1354 and 2011 SCMR 508 rel.

Sobhraj L.P. for Applicants.

Muhammad Ayoub Khanzada for Respondent No.3.

Ali Raza Pathan, State Counsel.

Date of hearing: 1st October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 782 #

2014 Y L R 782

[Sindh]

Before Salahuddin Panhwar, J

AKBAR ALI SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.18 of 2006, decided on 15th April, 2013.

(a) Criminal trial---

----Evidence---Circumstantial evidence---Conviction could be based on direct or substantive evidence---Guilt of accused could not be based on high probabilities---Circumstantial evidence was known as indirect evidence and was an exception to the said principle---Requirement of proof in such cases, basing on circumstantial evidence only, was that every link had to be proved by good and convincing evidence---When circumstantial evidence, was based on last seen, extra judicial confession, recovery of stolen goods, recovery of incriminating material i.e. weapon of offence, pointation of dead body at instance of accused, recovery of articles belonging to deceased; it was to be established on record that every piece of circumstantial evidence fit in with another piece of such evidence in the chain and corroborated each other---Role of prosecution agency collecting evidence against accused was very important; and it was to be seen that same was above board and free from any doubt and suspicion.

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

----Ss. 302(b), 364 & 34---Qatl-e-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Complainant, who was abroad at the time of alleged incident, had not claimed to have seen the deceased lastly in company of accused, but he had claimed to have acquired such knowledge from his relative---Evidence of complainant to the extent of last seen, was not worth reliance being hearsay---Complainant had named accused in the F.I.R. only on account of suspicion---Complainant was not sure about the dead body to be of his son---Photographs alone was not sufficient for identification of the dead body---Complainant had to refer to evidence of the people of area that dead body, which was buried, was of his son---Only witness, examined by the prosecution to establish last seen evidence, had stated that in his presence, the deceased was last seen going with accused persons, but said witness became silent for an indefinite period despite threat to the life of the deceased---Said conduct of the witness made his testimony doubtful---Accused had voluntarily confessed his guilt and he was prepared to produce the articles, but Investigating Officer did not consider it necessary to get his confession recorded, or least to have approached the Magistrate with a written request for such purpose---Investigating Officer and Mashir, did not support each other in respect of manner of securing of articles---Prosecution had failed to establish all links properly and neatly fitting with each other; and failed in building a chain of unbroken links of circumstances---Accused, in circumstances was entitled for benefit of doubt, because no evidence could rest on circumstantial evidence; if some of the links were either missing or under clouds/doubts---Accused was acquitted, in circumstances.

Muhammad Nadeem v. The State 2011 SCMR 1517; Munir Ahmad Dar v. Imran and others 2001 SCMR 1773; Mir Muhammad v. The State 1995 SCMR 614; Shah Jahan v. The State 2012 YLR 1355; Qaiser Muhammad v. The State 2012 PCr.LJ 930 and Gul Muhammad v. The State 2011 SCMR 670 ref.

Ghulam Shabbeer Shar for Appellant.

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

Date of hearing: 15th April, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 794 #

2014 Y L R 794

[Sindh]

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

MUHAMMAD SALEEM---Appellant

Versus

The STATE---Respondent

Special Criminal A.T. Appeal No.43 of 2009, decided on 19th December, 2013.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Abduction for ransom---Delay in F.I.R.---Effect---In matters of abduction for ransom, parents as well as police invariably try their best to locate victim rather than promptly lodging F.I.R. for fear of death of victim---Delay in such matters is not always fatal, however, prosecution has to give some explanation or least circumstance for such delay in not intimating/reporting the matter to police.

(b) 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---Accused was convicted by Trial Court and sentenced to imprisonment for life---Validity---Victim claimed that he was continuously kept confined for 20 days under arms and threats and during such period he was kept on liquid food and sometimes he was not provided any food---Surprisingly on the night when he was recovered in a result of police effort, he needed no medical treatment nor rest and on very next morning he went to his shop---Safe criminal administration of justice rested on principle of benefit of doubt, which demanded that benefit be extended in favour of accused---Prosecution failed in establishing charge against accused beyond reasonable doubt---High Court set aside conviction and sentence awarded by Trial Court and acquitted the accused of the charge---Appeal was allowed in circumstances.

Sikandar Shah v. Din Muhammad and 2 others 2004 PCr.LJ 1146; Tariq and 2 others v. The State 2013 PCr.LJ 1786; Shahid alias Aamir and another v. The State 2011 YLR 2238; Muhammad Aslam and 3 others v. The State 2008 SCMR 1040 Nadeem Akhtar v. The State 2009 PLJ Cr.C. 1087; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Rahim Shah v. The State 2004 PCr.LJ 1129; Muhammad Aslam v. Additional District Judge, Kot Addu 2005 YLR 43; Anwar Shamin and another v. The State 2010 SCMR 1791; Elahi Bakhsh and others v. The State 2005 SCMR 810 and Muhammad Tufail v. The State 2013 SCMR 768 ref.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Irfan Aziz along with Nadeem Khan for Appellants.

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

Date of hearing: 6th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 814 #

2014 Y L R 814

[Sindh]

Before Nadeem Akhtar, J

KHUDA BUKHSH and 4 others---Applicants

Versus

The STATE---Respondent

Pre-Arrest Criminal Bail Application No.S-357 of 2012, decided on 18th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.365-B---Kidnapping, abducting or introducing woman to compel for marriage etc.---Pre-arrest bail, refusal of---Delay in lodging F.I.R. was not deliberate or intentional, and there was justifiable reason and plausible explanation for such delay---Accused persons had not alleged any mala fides or collusion, in particular on the part of the Investigating Officer/ Police---All accused persons had been specifically nominated in the F.I.R. with specific roles in the commission of the alleged crime---All accused persons allegedly kidnapped the abductee by taking her with them in a car; and zina was committed by all of them with her---Alleged abductee in her statement recorded under S.164, Cr.P.C., had fully implicated all accused persons, wherein she had specifically alleged that accused persons had kidnapped her and had committed zina with her---Mere statement of the victim in a rape case, was sufficient to connect accused with the commission of offence, if the statement of victim inspired confidence--- Prima facie, medical examination report in the case, inspired confidence---Grounds urged by accused persons for the grant of bail required deeper appreciation or evaluation of evidence, which was not permissible at bail stage---Reasonable grounds were available on the record to believe that accused persons had committed the offence alleged in the F.I.R., which fell within the prohibitory clause of S.497(1), Cr.P.C.---For the purpose of bail, only tentative assessment could be made and detailed assessment or evaluation of evidence, should be left for the Trial Court---Prima facie, there being sufficient circumstances to connect accused persons with the offence alleged against them, they were not entitled to the grant of concession of pre-arrest bail---Pre-arrest bail granted to accused persons was recalled and their bail application was dismissed, in circum-stances.

Shaban alias Umed Ali v. The State 2008 PCr.LJ 29 distinguished.

Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765; Mushtaq Ahmed and another v. The State 2007 SCMR 473; Masood Ahmed alias Muhammad Masood and another v. The State 2006 SCMR 933; Ch. Waris Ali v. The State 2007 SCMR 1607; Shaukat Ilahi v. Javed Iqbal and others 2010 SCMR 966; Bashir Ahmed v. The State 2004 SCMR 244; Rashad v. The State, 2002 SCMR 1329; Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Akhtar Hussain v. The State 2000 PCr.LJ 315; Bashir Ahmed and another v. The State 2007 PCr.LJ 966; Muhammad Ramzan v. The State and others 2012 MLD 579; Allah Dad v. The State and 2 others 1992 PCr.LJ 420 (Peshawar; Shafqat Ali v. The State, 2011 YLR 1744 and Mst. Shamim Akhtar v. The State 2010 PCr.LJ 135 rel.

Muhammad Ali Rind for Applicants.

Shahzado Saleem Nahyoon, A.P.-G. for Respondent.

Sajjad Ahmed Chandio for the Complainant.

Date of hearing: 13th March, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 825 #

2014 Y L R 825

[Sindh]

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

SAEED ISMAIL BURERO---Petitioner

Versus

PROVINCE OF SINDH through Secretary Education, Government of Sindh and another---Respondents

Constitutional Petitions Nos. D-2395 and D-2396 of 2013, decided on 3rd July, 2013.

(a) Sindh Public Procurement Regulatory Authority Rules, 2010--

----Rr.13 & 31---Constitution of Pakistan, Art. 199---Constitutional petition---Locus standi---Aggrieved person---Alternate and efficacious remedy---Invitation of Tender---Petitioners assailed tender notices for procurement of supplies and sought restraining the award of contract for supply of articles---Validity---Petitioners neither obtained tender documents nor participated in bid process, therefore, they did not have locus standi to invoke Constitutional jurisdiction of High Court---Tender was merely an invitation for making an offer and did not by itself vest any right in a person until and unless the same was accepted---Petitioners were not aggrieved party as envisaged under Art.199(1)(a) of the Constitution, thus could not competently make a resort to High Court under its Constitutional jurisdiction---Petitioners had suitable/ efficacious alternate remedy by way of presentation, appeal and review before review panel---No exceptional circumstances existed which could justify/warrant exercise of extraordinary jurisdiction of High Court by invoking Constitutional jurisdiction under Art. 199 of the Constitution---Petition was dismissed in circumstances.

Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577; Messrs Iqbal and Sons v. City District Government and others SBLR 2011 Sindh 1249; Messrs KSB Pumps Company Ltd. v. Government of Sindh and others 2011 MLD 1876; West Pakistan Tanks Terminal (Pvt.) Ltd., v. Collector (Appraisement) 2007 SCMR 1318 ref.

Messrs M.A. Khan and Co. through Sole Proprietor Muhammad Ali Khan v. Messrs Pakistan Railway Employees Cooperative Housing Society Ltd. through Principal Officer/Secretary, Karachi 2006 SCMR 721; City Schools (Pvt.) Ltd., Lahore Cantt: v. Privatization Commission, Government of Pakistan and others 2002 SCMR 1150; Province of Balochistan through Secretary Excise and Taxation Department Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386; Nisar Ahmad and 2 others v. Additional Secretary, Food and Agriculture, Government of Pakistan and 3 others 1979 SCMR 299/301; Messrs Iqbal and Sons v. City District Government and others SBLR 2011 Sindh 1249/1261 and Pakistan Burmah Shell Ltd. v. Mrs. Nasreen Irshad and others 1989 SCMR 1892/1896 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Disputed question of fact---While exercising Constitutional jurisdiction, disputed questions/factual controversies particularly of general nature and evasive ones cannot be looked into appropriately without making resort to recording of evidence, which drill cannot be undertaken by High Court while exercising Constitutional jurisdiction.

----Art. 199---Constitutional petition---Necessary party---No effective order can be passed in absence of necessary party.

Akhtar Ali Khan and another v. Settlement Commissioner, Peshawar and 4 others 1989 SCMR 506 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Apprehensions--- Scope--- Baseless apprehensions provide no cause of action and or ground for filing of Constitutional petition.

Hundal Dass v. District Nazim and others 2004 YLR 2131 rel.

Jawaid Ahmed Siddiqui and Rizwan Nadeem for Petitioners.

Saifullah, A.A.-G. for Respondents Nos. 1 and 2.

Qurban Ali Malano for Respondent No.3 (in C.P. No.D-2396 of 2013).

Jai Raam, Director (Schools), Government of Sindh, Sukkur in person (in C.P. No.D-2396 of 2013).

Dates of hearing: 20th and 24 June, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 874 #

2014 Y L R 874

[Sindh]

Before Nisar Muhammad Shaikh, J

GHULAM HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-486 of 2013, decided on 11th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry--Total 4 'pattis' (slabs) weighing 2 kilograms of charas lying in two packets were allegedly recovered from the accused but only 10 grams each from 2 packets were separated as sample for chemical examination leaving the remaining two 'pattis' in the packets---Positive report of Chemical Examiner received in respect of two samples which were taken out from two 'pattis' could not be considered at bail stage to have its connection with the alleged recovery of all the 4 'pattis'---Remaining two 'pattis' from which no samples were separated or sent for chemical examination was left for the Trial Court to determine the same and to such extent, the case needed further inquiry---Recovery of two 'pattis' the weight of which seemed to be one kilogram was covered by S. 9(b) of Control of Narcotic Substances Act, 1997 which did not fall within the ambit of prohibitory clause of S. 497(1), Cr.P.C.---Bail was granted in circumstances.

Khuda Bux Leghari for Applicant.

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

Date of hearing: 11th July, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 884 #

2014 Y L R 884

[Sindh]

Before Syed Muhammad Farooq Shah, J

Messrs INTERNATIONAL BUSINESS MANAGEMENT through Sole Proprietor ---Petitioner

Versus

S. AZIZ AHMED through legal Representatives and 5 others---Respondents

Constitutional Petition No.S-1208 of 2011, decided on 4th December, 2013.

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

----S.16(2)---West Pakistan General Clauses Act (VI of 1956), S.9---General Clauses Act (X of 1897), S.10---Constitution of Pakistan, Art.199---Constitutional petition---Default in pay-ment of rent---Scope---Ejectment order---Striking off defence---Monthly rent was deposited by tenant with the delay of one day from the last date fixed by Rent Controller on account of the circumstances beyond his control as it was holiday on the said date---Effect---Petitioner/tenant was not at fault, so as to penalize for not depositing the rent on last day being Sunday---Last day was public holiday and the petitioner had deposited the rent on the next day on Monday, which could not be treated as a default---Deposit made on the date next after public holiday was valid---Extreme penalty of striking off tenants defence/eviction would not be called for when non-compliance with order was a technical default and not wilful---Unintentional and bona fide act on tenant's part in depositing rent strictly in observance of letter and spirit could not be equated with non-compliance with order, making tenant liable to eviction---Before passing the tentative rent order, it was incumbent upon Rent Controller to determine whether deliberate default had been committed in respect of rent of demised premises by the tenant or not---Impugned order was set aside, matter was remanded to Rent Controller for decision afresh on merit---Constitutional petition was allowed.

Obaid-ud-Salam and others v. Faiz Muhammad Khan and others 1987 SCMR 216; Harinder Singh v. S. Karnal Singh AIR 1957 SC 271 and Safeer Travels v. Muhammad Khalid Shafi PLD 2004 SC 690 rel.

Ch. Muhammad Siddique v. Muhammad Rashid 1985 SCMR 21; Ch. Muhammad Masood Akhtar Khan v. Muhammad Siddique and others 1991 SCMR 199; Ashiq Ali and another v. Mehar Elahi and 13 others 2001 SCMR 130 and Khadim Hussain v. Nasir Ahmed 2003 SCMR 1580 distinguished.

Ghazain Magsi for Petitioner.

Naeem Suleman for Respondents.

Date of hearing: 20th November, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 899 #

2014 Y L R 899

[Sindh]

Before Ghulam Sarwar Korai and Abdul Rasool Memon, JJ

Mst. NASEEBAN KHATOON and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.296 and 297, Criminal Revision Applications Nos.124, 125 and Criminal Acquittal Application No.295 of 2011, decided on 23rd December, 2013.

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

----S. 302(b)/34---Qatl-e-Amd---Apprecia-tion of evidence---Medical and ocular evidence---Contradiction---Nature of injuries---Proof---Both the accused were convicted by Trial Court for common intention of Qatl-i-Amd and sentenced---Validity---Complainant deposed that accused persons caused hatchet injuries with sharp side to deceased---Medical report did not coincide with version of complainant and it did not show if any of the deceased sustained injury with sharp cutting weapon---Both deceased besides fire arm injuries had injuries of hard blunt substance, which might have been caused with butt of pistols---Medical evidence was in clear contradiction with ocular evidence to the extent of role assigned to both the accused as well as those who were acquitted---Prosecution case was not strong enough against both the accused and prosecution failed to prove its case beyond shadow of reasonable doubt against them---Each and every case was to be decided on its own peculiar facts and circumstances---High Court set aside conviction and sentence awarded by Trial Court and both the accused were acquitted of the charge---Appeal was allowed accordingly.

Faiz Ahmad and another v. Shafiq-ur-Rehman and another 2013 SCMR 583; Azhar Iqbal v. The State 2013 SCMR 383; Lal Bux v. Dhani Bux and 3 others 2013 PCr.LJ 345; Shah Nawaz v. The State 2013 YLR 1193; Riaz Hussain v. The State 2013 PCr.LJ 1428; Umar Draz v. The State 2013 PCr.LJ 755; Mian Khan v. The State 2013 PCr.LJ 182; Nadeem v. The State 2010 PCr.LJ 1681; Muhammad Imran v. The State 2006 PCr.LJ 954; Abdur Rauf v. The State 2004 SCMR 522; Muhammad Mansha v. The State 2010 MLD 1446; Abdul Rehman v The State PLD 1975 SC 275; Ghaus Bux v. The State PLD 2004 Kar. 201; Khadim Hussain v. The State PLD 2010 SC 669; Shoukat Ali v. The State PLD 2007 SC 93; Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906; Saleemuddin and others v. The State 2011 SCMR 171; Bashir and 3 others v. The State PLD 1991 SC 1145; Ahmed Sultan and another v. The State 2007 SCMR 1424; Moazam Shah v. Mohsan Shah and another PLD 2001 SC 458 and Commissioner, Sindh Employees Social Securities Institution and another v. Messrs E.M. Oil Mills and Industries Ltd. S.I.T.E. Karachi and 2 others 2002 SCMR 39 distinguished.

Muhammad Saleem's case 1994 SCMR 2213 and Mushtaq Ahmed's case PLD 1973 SC 418 rel.

(b) Criminal trial---

----Acquittal as abundant caution---Effect---When one accused is acquitted as abundant caution, co-accused cannot claim benefit thereof.

1988 SCMR 1521 rel.

----S.302 (b)---Qatl-e-Amd---Appreciation of evidence---Sentence, enhancement of---Mitigating circumstances---Prosecution had successfully established only charge of murder of one deceased against accused---If prosecution proved case beyond reasonable doubt and also established charge of murder, the normal penalty was death---If normal penalty of death was not awarded, the Court had to make out a case and give reason for reduction of sentence on the basis of mitigating circumstance---Accused, in the present case, had taken part in commission of crime and made direct firing on deceased which resulted in his death, as such no case for lesser sentence was made out and Trial Court had awarded him lesser punishment simply on the ground of dispute over petty matter---Such ground alone was sufficient to award normal penalty of death as accused who on a very petty matter snatched life of a young man of 30 years, in front of his mother, thus accused deserved no concession---High Court in exercise of revisional jurisdiction enhanced sentence of accused from imprisonment for life to death---Petition was allowed accordingly.

Sardar Khan v. State 1998 SCMR 1823 rel.

Muhammad Faisal Sial for Appellants (in Criminal Appeals No.296 and 297 of 2011 and respondents in other matters.

Suleman Badshah for the Complainant (in Criminal Revision Applications Nos. 124 and 125 of 2011 and Criminal Acquittal Appeal No.295 of 2011).

Akhtar Rehana, D.P.G. for Respondents.

Date of hearing: 31st October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 917 #

2014 Y L R 917

[Sindh]

Before Sadiq Hussain Bhatti, J

Messrs APPARELS (PVT.) LTD. through Director---Plaintiff

Versus

KARACHI METROPOLITAN CORPORATION through Administrator---Defendant

Suit No.1286 of 2002, decided on 22nd October, 2013.

Land Acquisition Act (I of 1894)---

----S. 23---Compensation for acquired land---Contention of plaintiff-company was that their land was acquired but no amount as compensation was paid---Defendants contended that land was acquired for widening of road after fulfilling all the formalities and no question of payment of compensation on market rate arose---Validity---No private land could be utilized for any "public purpose" without acquiring the same---No land could be acquired without proper and adequate compensation---Plaintiffs were owners of suit property and they were entitled to compensation on market value if said land was to be acquired for any "public purpose"---Compensation paid to the plaintiffs should be determined under Land Acquisition Act, 1894---Land of plaintiffs had not been used by the Authority and they would be entitled to receive compensation if same was actually used.

Kh. Naveed Ahmed for Plaintiff.

Iftekharul Hassan for Defendant.

Date of hearing: 12th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 947 #

2014 Y L R 947

[Sindh]

Before Sadiq Hussain Bhatti, J

Syed ZUBAIR AHMED HASHMI through Attorney Iftekhar Ali Osto---Plaintiff

Versus

CITY DISTRICT GOVERNMENT through District Officer and 2 others---Defendants

Suit No.1457 of 2005, decided on 9th October, 2013.

Specific Relief Act (I of 1877)---

----Ss.39, 42 & 54---Suit for cancellation of document, declaration and injunction---Plaintiff claimed to be owner of suit plot and sought its possession and also claimed that cancellation of its allotment and sub-division into three plots and allotment in the names of defendants was illegal---Validity---Allotment of plot in question was cancelled and it was taken on vacant pool and subdivided into three units as described by defendant in his written statement---Plaintiff was claiming his right through previous owner and suit plot allotted in favour of that previous owner was cancelled and new plot in lieu thereof was allotted to him---Previous owner did not have any title, right or interest in suit plot, which was taken in vacant pool and was subdivided into three plots and allotted to defendants---Plaintiff was not in possession of suit plot as construction raised by him was demolished and suit filed by him was returned to him---Plaintiff was not entitled to possession of suit plot---Suit was dismissed in circumstances.

Nemo for the Plaintiff.

Iftikharul Hassan for Defendant No.1 (CDGK).

M.G. Dastgir for Defendants Nos.2 and 3.

YLR 2014 KARACHI HIGH COURT SINDH 1019 #

2014 Y L R 1019

[Sindh]

Before Aftab Ahmed Gorar, J

JUMA KHAN alias SAJID and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-158 of 2013, decided on 12th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 504, 148, 149 & 337-H(2)---Qatl-e-amd, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapons, unlawful assembly, hurt by rash or negligent act---Bail, grant of---Accused persons allegedly fired at the deceased resulting in his death---Delay of five days in lodging of F.I.R. had not been explained satisfactorily---Although complainant informed the police about the incident on the very morning of the occurrence, and police also came to the hospital, but even then the complainant remained silent for five days and did not lodge the F.I.R.---Such single circumstance made the case of prosecution doubtful---Accused persons had not been assigned any specific injury---Three persons had allegedly fired upon the deceased, including accused persons, therefore, it would be determined at trial as to whose shot proved fatal---Mashirnama of place of occurrence did not show any recovery of any empty or blood-stained earth---After arrest of accused persons nothing incriminating was recovered from their possession to connect them with the commission of the offence---Statements of prosecution witnesses under S.161, Cr.P.C. were recorded two days after recording of F.I.R., which was also fatal to the prosecution---Accused person were in jail since about last 1-1/2 year---Accused persons were granted bail in circumstances.

Ali Nawaz Ghanghro for Applicants.

Abdul Rasheed Soomro for the State.

Date of hearing: 12th June, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1028 #

2014 Y L R 1028

[Sindh]

Before Syed Muhammad Farooq Shah, J

UMED ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-113 of 2013, decided on 22nd January, 2014.

Pakistan Arms Ordinance (XX of 1965)---

----S.13(d)---Possessing unlicensed arms---Appreciation of evidence---Trial Court failed to go through the depositions, which included Examination-in-Chief/cross-examination of both witnesses---Neither evidentiary value of their testimony was discussed, nor material contradictions in their evidence were considered---Defence plea taken by accused in his statement under S.342, Cr.P.C. had also not been discussed, considered or appreciated by the Trial Court---Trial Court had erred to evaluate the price of Kalashnikov rifle, which was round about Rs.1,20,000 to Rs.1,50,000, without showing his personal source of information; and to observe that it was not possible for Investigating Officer to purchase two Kalashnikov for foisting upon two persons---Observation of the Trial Court was based on supposition, surmises and conjectures, and was a result of misreading and non-reading of the evidence, available on record---Judgment of Trial Court was contrary to law, facts of the case, and against the principles of criminal justice, which could not be sustained---Alleged incident was witnessed by number of private persons of the locality, and even on receipt of advance information about presence of accused, Police did not call any respectable person to act as a mashir or witness of the incident---Entry in Roznamcha, had also not been produced to prove the movement of Police from the Police Station to the place of recovery of weapon---Ballistic Expert had also not been examined by the prosecution---From the list of 23 prosecution witnesses mentioned in the charge sheet, prosecution had examined only two witnesses---Star witness of the prosecution, who was Investigating Officer, was inimical to accused due to his involvement in the murder case of brother of accused, his evidence, could not be treated inspiring confidence and trustworthy---Conviction of accused, merely on the statements of two Police Officials, was not in accord with the safe administration of justice---Justice should be dispensed with according to the law, and ought not to be administered according to the whims, caprice, or subjective standard of a Judge, in the overall context---Evidence on record falling short of disclosing the offence against accused, conviction and sentence awarded to accused, were set aside, accused was acquitted, in circumstances.

Ishrat Ali Lohar for Appellant.

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

Date of hearing: 22nd January, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1038 #

2014 Y L R 1038

[Sindh]

Before Ahmed Ali M. Shaikh and Farooq Ali Channa, JJ

MUHAMMAD ASIF KHAN---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petition No.D-464 of 2010, decided on 27th January, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Relief sought in the petition had become infructious---Effect---Educational Institution---Cancellation of admission of student in LL.B. Part-I on the basis of graduation in third class---Scope---Contention of University was that petitioner was not eligible for admission in LL.B. Part-I, as he passed graduation in third class and his admission was in violation of Rules/Admission Policy---Validity---Respondents had cancelled the admission and enrollment card of petitioner during pendency of present Constitutional petition but no amendment in the petition or in the prayer clause for restoration of same had been sought---Petitioner was not entitled to be allowed to appear in LL.B. examination as his admission had become infructuous and petition was liable to be dismissed on such score alone---Admission of petitioner was in violation of decision of Vice-Chancellor of the University and same had been cancelled against which no relief had been sought---University authorities had no power/authority to give admission to the petitioner in LL.B. Part-I who was graduate in third class/division---Constitutional petition was dismissed in circumstances.

Ghulam Sarwar Qureshi for Petitioner.

Mukhtar Ahmed Khanzada, State counsel.

Aftab Ahmed Shaikh, Advocate/ Principal Government Jinnah Law College, Hyderabad.

Kamaluddin for Respondent No.3.

Date of hearing: 20th November, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1074 #

2014 Y L R 1074

[Sindh]

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

MUHAMMAD SHAHBAN MUGHERI---Petitioner

Versus

4TH ADDITIONAL DISTRICT JUDGE, SHIKARPUR and 12 others---Respondents

Constitutional Petition No.D-693 and M.A. No.1713 of 2010, decided on 10th February, 2013.

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art. 115---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Application for ejectment of tenant---Default in payment of rent---Bona fide personal need of landlord---Denial of relationship of landlord and tenant by the tenant---Scope---Permanent Transfer Deed (PTD) with regard to demised premises was issued in favour of landlords in the year 1963 by the competent Settlement Authority after observing all legal formalities---Demised premises was rented out to the tenant in the year 1977-1978 orally who paid rent up to October, 2005---Relationship of landlord and tenant existed between the parties---Person who had accepted another as his landlord could not be allowed to challenge title of the same---Nobody could be added, altered or deleted from the proceedings as per whim and wish of a party---Question with regard to appreciation of facts could not be resorted to in exercise of Constitutional jurisdiction---Constitutional petition was not a substitute of a revision or a second appeal---Constitutional petition should be entertained if Rent Controller and Appellate Authority had made an order without jurisdiction or there was a lack of jurisdiction or findings were perverse or any provision of law had been violated---Concurrent findings of courts below could not be disturbed unless same were against evidence on record---No illegality, irregularity, infirmity, misreading or non-reading had been pointed out in the impugned orders---Tenant was directed to vacate the premises within sixty days and hand over its peaceful possession to the landlords---Constitutional petition was dismissed in circumstances.

Mst. Mariam Bai and others v. Islamic Republic of Pakistan and 5 others 1993 SCMR 515; Muhammad Shafi v. Joint Secretary, Ministry of Religious and Minorities Affairs and others 1997 SCMR 227; Syed Abdul Majeed v. Secretary, Ministry of Religious Affairs and Minorities, Government of Pakistan, Islamabad and 2 others 2000 MLD 1470; Allied Bank Ltd. v. M. Shafi through legal heirs and 4 others 2011 MLD 371 and Abdul Khalid v. Ghulam Saghir 2013 YLR 2342 distinguished.

Saifuddin and another v. Senior Civil Judge/Rent Controller-VIII Karachi (South) and 7 others 2007 SCMR 128 and Haji Abdul Sattar and others v. Farooq Inayat and others 2013 SCMR 1493 ref.

Kalimullah v. Amin Hazin and others 1975 SCMR 77; Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 and Muhammad Qasim v. VIth Additional District and Sessions Judge, Karachi Central and 2 others 2008 CLC 446 rel.

Rafique Ahmed K. Abro for Petitioner.

Rehmat Ali Rajput for Respondents Nos. 3 to 8.

Niaz Ahmed Shaikh for Respondents Nos. 10 to 12.

Abdul Hamid Bhurgari, Addl. A.G. assisted by Miss Shamim, State Counsel.

Jai Jai Veshno Mange Ram, D.A.G.

Date of hearing: 10th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1087 #

2014 Y L R 1087

[Sindh]

Before Shaukat Ali Memon and Sajjad Ali Shah, JJ

GHULAM MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-319 of 2006, decided on 12th September, 2013.

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

----S. 9(a) & (b)---Possessing narcotics---Appreciation of evidence---Sentence, reduction in---Accused had stated that in case, the High Court, while maintaining the conviction, reduced the sentence to one already undergone, accused would not press the instant appeal---Sample drawn for chemical examination, represented the recovery of charas from accused to the extent of 10 grams---Accused who was more than 60 years of age, had no previous conviction record; he had undergone agony of the pendency of the appeal since 2006---Request of accused was acceded to the extent of reducing the sentence to one already undergone by him, maintaining his conviction, in circumstances.

Ameer Zeb's case PLD 2012 SC 380 and Ghulam Murtaza's case PLD 2009 Lah. 362 ref.

Gul Muhammad Bhurgari for Appellant.

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

Date of hearing: 12th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1097 #

2014 Y L R 1097

[Sindh]

Before Aftab Ahmed Gorar, J

BASHIR AHMED MIRZA---Applicant

Versus

KAMALUDDIN ALVI and others---Respondents

Civil Revision Applications Nos. 20 and 21 of 2001, decided on 6th June, 2013.

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

----Ss. 8, 12 & 37---Transfer of Property Act (IV of 1882), 53-A---Suit for possession of immovable property and specific performance of contract---Plaintiff filed suit for possession of disputed plot on the basis of lease deed whereas defendant filed suit for specific performance of contract---Contention of plaintiff was that disputed plot was leased out in his favour whereas that of defendant was that lease deed was bogus---Both the suits were consolidated and suit of plaintiff was dismissed whereas that of defendant was decreed concurrently---Validity---Construction company ceased to exist as soon as Receiver was appointed---Defendant was owner of the disputed plot---Validity and authenticity of the documents had not been challenged by the plaintiff---No notice was issued to the defendant before cancellation of his allotment---Defendant being in possession of the plot was entitled to protect his right---Without cancelling the previous allotment new sale was not permissible---Revision was dismissed.

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

----S. 115---Revisional jurisdictional of High Court--- Scope--- Revisional jurisdiction of the High Court could be exercised only in cases where subordinate court had exercised its jurisdiction contrary to law---Jurisdiction of the High Court to interfere with concurrent findings of facts was narrower---High Court under revisional jurisdiction could only correct jurisdictional errors of courts below.

2001 SCMR 789 and PLD 1994 SC 291 rel.

S. Shamim Ahmed Riazi for Applicant.

Munir-uddin Alvi for Respondent No.1.

Date of hearing: 16th May, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1114 #

2014 Y L R 1114

[Sindh]

Before Sadiq Hussain Bhatti, J

WALI MUHAMMAD RAJOR---Appellant

Versus

SIKILADHO RAHIMOON and 2 others---Respondents

Criminal Acquittal Appeal No.226 of 2010, decided on 23rd April, 2013.

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

----Art. 117---Burden of proof---Burden always lay on the prosecution to prove its case, and same never would shift---Anyone who alleged, must prove the allegation.

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

----S.417(2-A)---Appeal against acquittal---Interference by High Court in the acquittal judgment passed by the Trial Court was unwarranted, unless the acquittal was arbitrary, capricious, fanciful and against the record---Appraisal of evidence in an appeal against conviction was done strictly, but in an appeal against acquittal same rigid method was not to be applied---Interference by High Court, could be made only where there was gross misreading of evidence amounting to miscarriage of justice---Acquittal of an accused could not be set aside lightly in absence of any strong evidence---Finding of acquittal not sacrosanct, if reasons were of speculative or artificial in nature, or based on no evidence, or misrepresentation of evidence, or the conclusion drawn as to guilt or innocence was perverse resulting into miscarriage of justice, High Court could interfere in the finding of acquittal.

Haji Amanullah v. Munir Ahmed 2010 SCMR 222 ref.

Himan Das for Appellant.

Zahoor A. Baloch for Respondent No.1.

Sajjad Ahmed Chandio for Respondent No.2.

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

Respondents Nos. 1 and 2 in person

Date of hearing: 8th April, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1151 #

2014 Y L R 1151

[Sindh]

Before Riazat Ali Sahar, J

BAKHSHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-64 of 2010, decided on 30th September, 2013

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---No conflict was found between medical and ocular testimony---Prosecution witnesses had fully supported the case of prosecution, which was seconded by the medical evidence---Evidence of Police Officials, would not become invalid for mere reason of their belonging to Police Department; and that they were good witnesses like others, unless they were shown to be having any sort of motive to falsely implicate the person, charged in the case---Defence version of accused, as recorded on oath, was not supported by any of the two defence witnesses---Defence story did not appeal to reason---Statement of defence witness, was of no help to accused because he had merely stated to have seen accused going with armed persons in his car, whereas other defence witness's statement was hearsay, which was not an admissible evidence---No weight could be given to defence version---When both versions were put in juxtaposition, prosecution version, was found to be impressive, and consistent; and that of defence was discrepant---Contradictions in the case, being minor in nature, would not overcome the case of prosecution---Those were not to be given weight because by the lapse of time, it was natural phenomenon, that there occur minor contradictions in the testimony of witnesses.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Noor Ahmed and others v. The State PLD 2005 Kar. 177 and Muhammad Akram v. The State 2009 SCMR 230 distinguished.

Kouro and 5 others v. The State 2013 YLR 1215; Anwar Shamim and another v. The State 2010 SCMR 1791; Muhammad Azam v. The State PLD 1996 SC 67; Muhammad Hanif v. The State 2003 SCMR 1237; Riaz Ahmad v. The State 2004 SCMR 988 and Naseer Ahmad v. The State 2004 SCMR 1361 ref.

Ali Ahmed Khan for Appellant.

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

Date of hearing: 30th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1157 #

2014 Y L R 1157

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

KHAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-443 of 2010, decided on 26th September, 2013.

Penal Code (XLV of 1860)---

----Ss. 365-A & 34---Kidnapping for ransom---Appreciation of evidence---Material contradictions were noticed about the mode of payment of ransom upon demand by accused---Complainant had admitted his relationship with all prosecution witnesses--- Investigating Officer, had admitted that all accused persons were innocent---In absence of motive, unusual delay in lodging of F.I.R., total silence about the recovery of alleged abductee, whether dead or alive, impugned judgment did not meet with the minimum standard of conviction and sentence---Judgment of conviction was set aside and accused were acquitted, in circumstances.

Omparkash H. Karmani for Appellants.

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

YLR 2014 KARACHI HIGH COURT SINDH 1173 #

2014 Y L R 1173

[Sindh]

Before Sajjad Ali Shah and Shoukat Ali Memon, JJ

SIKANDAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-227 of 2012, decided on 2nd October, 2013.

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

----S. 9(c)---Possessing and trafficking narcotics---Sentence, reduction in---No ground for interference with sentence was made out and the only point for consideration was its appropriateness---Imprisonment of four years was upon recovery of opium exceeding one kilogram up to two Kilograms and fine of Rs.8000---Recovery was 1050 grams, a little more than one Kilogram, whereas the punishment for two Kilograms of opium was four years---Punishment for 1050 grams should be little more than two years---While dismissing appeal, sentence was modified to two and half years with fine of Rs.5000.

Ghulam Murtaza's case PLD 2009 Lah. 362 ref.

Ameer Zeb's case PLD 2012 SC 380 rel.

Shamsuddin Khushik for Appellant.

Amjad Ali Sahito, SSP for ANF for Respondent.

Date of hearing: 2nd October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1190 #

2014 Y L R 1190

[Sindh]

Before Aftab Ahmed Gorar, J

SAEED AHMED and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.152 of 2013, decided on 6th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.161, 420, 468, 471 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Public servant taking gratification other than legal remuneration in respect of an official act, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, common intention, criminal misconduct---Bail, grant of---Further inquiry---District Education Officer allegedly made illegal appointments on government posts by issuing fake and false offer/appointment letters---Said letters bore the handwriting of accused persons, who were working as assistants in the office of District Education Officer---Prosecution was not able to point out whether said letters were sent to hand-writing expert and/or there was any report of such expert available on record---Alleged offences did not fall within the prohibitory clause of S. 497, Cr.P.C.---Case stood challaned and accused persons were no more required by police for investigation---Case of prosecution depended upon documentary evidence, which was with the prosecution, therefore, there was no likelihood of tampering with the same by the accused persons---Case was one of further inquiry---Accused persons were granted bail in circumstances.

Pervaiz Ali Shaikh and another v. The State 1998 MLD 202 rel.

Asif Ali Abdul Razzak Soomro holding brief for Safdar Ali Ghouri for Applicants.

Ali Raza Pathan, State Counsel.

Date of hearing: 6th June, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1201 #

2014 Y L R 1201

[Sindh]

Before Nadeem Akhtar, J

Mrs. NASREEN YOUSUF---Plaintiff

Versus

AIJAZ SAFDAR KIYANI and 2 others---Defendants

Suit No.560 of 2000, decided on 24th December, 2013.

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

----Ss.39, 42 & 54---Suit for cancellation of document, declaration and injunction---Limitation---Plaintiff assailed gift deed in favour of defendant on the plea of coercion and undue influence---Validity---Plaintiff was a British national and at relevant time she was settled there with her family and used to visit Pakistan from time to time---Plaintiff used to stay at the house of defendant and her real brother was also staying at defendant's house at the relevant time---In absence of reliable and convincing evidence, High Court declined to believe that from the date of gift (10-2-1992) till 18-8-1999, plaintiff's real brother did not inform her or he was prevented from doing so that he was subjected to coercion and undue influence by defendant and her husband to execute gift in favour of defendant---Plaintiff's husband did not produce single document, such as plaintiff's passport or ticket to show that plaintiff had come to Pakistan in the year 1999---Suit filed by plaintiff was barred by time as it was filed six years after registration of deed, therefore, it was barred by time---Suit was dismissed in circumstances.

Fazal Muhammad v. Nabi Bakhsh 1969 SCMR 531; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others, 1994 SCMR 818; Nasrullah Khan v. Rasool Bibi, 2001 SCMR 1156; Mst. Bandi v. Province of Pubjab and others, 2005 SCMR 1368; Sardara through legal heirs v. Muhammad through legal heirs 1994 SCMR 2299; Khalid Mehmood v. Abida Perveen 2003 SCMR 18; Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146; Mir Ajam Khan v. Mst. Quresha Sultana; Nazim Ali v. Rashid Qamar and 2 others, 2006 CLC 289; Nooruddin and 11 others v. Abdul Waheed PLD 1997 Kar. 6; Muhammad Siddiqi through attorney v. Messrs T.J. Ibrahim and Company and others, 2001 SCMR 1443; Al-Haaj Muhammad Rafique v. Mst. Khalida Shehzadi, 2003 CLC 559; Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 and Muhammad Hafeez v. Muhammad Hanif Khan and another 1991 MLD 1576 ref.

(b) Stamp Act (II of 1899)---

----S.35---Civil Procedure Code (V of 1908) O. XIII, R.8---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Suit for cancellation of document, declaration and injunction--Impounding of document---Short levy of stamp duty---Registered document dated 10-2-1992, whereby suit property was transferred to defendant was neither illegal nor void---Effect--Defendant was liable to pay stamp duty and other charges in respect of such document that were prevailing and chargeable on 10-2-1992 for a sale deed in respect of suit property---Original registration of declaration of oral gift deed dated 10-2-1992, was impounded under O.XIII, R. 8, C.P.C.---High Court directed that document in question as well as other original title documents of suit property would remain in the custody of Court and the same were handed over to defendant only when stamp duty and others charges had been paid.

Shakeel Ahmed and Abdul Wahab Baloch for Plaintiff.

Defendant No.1 called absent.

Jamshed Malik for Defendant No.2.

Defendant No.3 called absent.

Dates of hearing: 21st, November, 11th, 18th December, 2012, 10th January, 9th December and 13th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1226 #

2014 Y L R 1226

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD ABID QASMI---Petitioner

Versus

HUMAIRA MUSHEER and others---Respondents

Constitutional Petition No.906 of 2011, decided on 30th December, 2013.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Application for ejectment of tenant---Bona fide personal need of landlady---Scope---Constitutional jurisdiction of High Court was extraordinary in nature and was meant for dispensation of justice and to avoid abuse of process of law---Such jurisdiction could not be exercised unless findings of courts below were arbitrary, capricious, perverse and had resulted into miscarriage of justice---Span of litigation in rent cases had been shortened and concurrent findings of facts could be interfered in exceptional circumstances---Landlady, in the present case, had stated that demised premises was required for her residence and there was no reason to discard her words stated on oath---Landlady had no other property---No illegality, irregularity, mis reading or non-reading had been pointed out in the impugned orders---Constitutional petition was dismissed in circumstances---Tenant was directed to vacate the premises in question within a period of 30 days.

Fazal Ahmed v. Ramzan Bibi 1984 CLC 2196; Nisar Hussain Rizvi v. Aisha 1998 CLC 349; Fazahat Ali v. Noor Jehan Begum 1991 CLC 1902; Saleemuddin v. Bibi Jan 2001 MLD 1176; Hajra Bai Sulaiman v. Aisha Bai 1982 CLC 1444; Shafiq Fatima v. Rais Hassan Siddiqui 1987 CLC 1250 and Noorunissa v. Qamurul Huda 1988 CLC 1833 distinguished.

Mazhar Hussain Shah through L.Rs. v. Member Board of Revenue Punjab, Lahore and others 2006 SCMR 959; Malak Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488; Haji Muhammad Siddique v. District Judge, Peshawar and others 1990 SCMR 997; Abdul Latif v. Faqir Muhammad 1982 SCMR 1046; Wasim Ahmad Adenwalla v. Shaikh Karim Riaz 1996 SCMR 1055; Mst. Tauheed Khanum v. Muhammad Shamshad; 1980 SCMR 593; Hassan Khan's case PLD 1976 Kar. 832; Jehangir Rustom Kakalia v. Hashwani Sales Services (Pvt.) Ltd., 2002 SCMR 241; Iqbal Book Depot v. Khatib Ahmed 2001 SCMR 1197; Sheraz Tufail v. State 2007 SCMR 518 and Pakistan Institute of International Affairs v. Naveed Merchant 2012 SCMR 1498 rel.

Azizuddin Qureshi for Petitioner.

Syed Muhammad Haider for Respondent No.1.

Date of hearing: 5th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1236 #

2014 Y L R 1236

[Sindh]

Before Sajjad Ali Shah and Shoukat Ali Memon, JJ

GHULAM AKBAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-137 of 2005, decided on 25th September, 2013.

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

----Ss.9(b) & 25---Criminal Procedure Code (V of 1898), S.103---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Evidence of the prosecution was lacking quality as well as reliability about the recovery of the narcotics from the possession of accused---Major contradictions were noticed within the evidence of two prosecution witnesses, the complainant, and Mashir, who were members of the Police party, and were professional Police personnel having experience of search and seizure and the requirements of law---Alleged narcotic was not weighed in presence of the complainant---As per complainant, out of 5 pieces, one weighing 10 grams was separated for sample and sealed, which according to contents of the chemical report was found as charas, but said 5 pieces at the time of recording of the evidence of the complainant were found as case property present in the court which had raised two fold questions; whether more than 5 pieces of charas were secured, and which one was sent for chemical analysis; and whether already separated quantity of 10 grams represented the remaining quantity as narcotic when no sample was drawn from those remaining 5 pieces---Private persons, despite presence, were not associated with search and recovery in gross violation of the provisions of S.103, Cr.P.C.---No doubt S.25 of Control of Narcotic Substances Act, 1997 was an exception to the general rule under extraordinary circumstances, but necessasity of employing private persons as Mashirs could not be overlooked, wherever same was possible---Unexplained delay of 22 days in sending sample to Chemical Examiner---Police had shown extra swiftness in completion of process in unusual way, from which it could be concluded that quality of unimpeachable evidence free from all reasonable doubts was lacking for recording of the judgment of the conviction and sentence---Prosecution evidence being full of doubt, accused was acquitted by extending him benefit of doubt and impugned judgment was set aside, in circumstances.

2012 SCMR 577; 2011 SCMR 820 and 2007 MLD 825 ref.

(b) Criminal trial---

----Procedure---Prosecution had to prove its case free from all reasonable doubts; and that too through trustworthy evidence by standing upon its legs, irrespective of the weakness of the defence evidence---Absence of evidence of enmity of the complainant with accused, was not the deciding factor, and could not be resolved in favour of the prosecution, when other material evidence was full of contradictions throwing doubt upon the veracity of the entire case of the prosecution.

----Benefit of doubt---Single infirmity in prosecution case was sufficient for creating doubt within the mind of prudent man, for which multiple factors were not required, the benefit whereof must go to accused.

Syed Tarique Ahmed Shah for Appellant.

Syed Meeral Shah D.P.G. for Respondent.

Date of hearing: 19th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1244 #

2014 Y L R 1244

[Sindh]

Before Farooq Ali Channa, J

Mst. BAI and 3 others---Applicants

Versus

PROVINCE OF SINDH through District Co-ordination Officer, Badin and 3 others---Respondents

Civil Revision Application No.10 of 2010, decided on 20th January, 2014.

(a) Islamic Law---

----Gift, essentials of---Constructive possession--- Scope--- Contention of plaintiffs was that possession was not delivered to the defendant---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Donee had accepted the gift declared by the donor and possession of suit land was delivered to him---Donor and donee signed the gift deed in presence of witnesses and all the three essentials of gift were complied with in accordance with law---Neither any land revenue receipt nor corroborative evidence was produced by the parties to prove possession on the suit land---Taking of possession of the subject-matter of gift by the donee either actually or constructively was necessary to complete the same---Registered gift deed and mutation of suit land existed in the name of donee in the revenue record---Constructive possession of donee over the gifted property was proved in circumstances---No illegal assumption or non-exercise or irregular exercise of jurisdiction by the courts below had been pointed out---Revision was dismissed in circumstances.

Muhammad Law quoted.

(b) Words and phrases---

----"Constructive possession"---Meaning---Possession which was not actual but assumed to exist where one had claimed to hold by virtue of some title without having the actual occupancy.

Black's Law Dictionary quoted.

Ishaq Khoso for Applicants.

Jhamat Jethanand for Respondents.

Date of hearing: 23rd December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1255 #

2014 Y L R 1255

[Sindh]

Before Sadiq Hussain Bhatti, J

ZIA UL HAQ MAKHDOOM---Petitioner

Versus

ABDUL REHMAN and another---Respondents

Constitutional Petitions Nos. S-223 and S-224 of 2013, decided on 2nd December, 2013.

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

----Ss. 20 (c) & 8---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Interlocutory order---Invocation of constitutional jurisdiction---Scope---Availability of adequate and alternate remedy---Effect---Fixation of fair rent---Inspection of demised premises and adjacent shops by the local commissioner---Scope---Landlord filed application for inspection of site and the adjacent shops and for finding out their rent---Rent Controller accepted the said application and appointed Nazir of District Court as local commissioner---Contention of tenant was that Rent Controller had to inspect the site in person but such power could not be delegated to any other person/officer---Validity---Rent Controller and Appellate Authority had been only authorized to inspect the site and not anybody else---No prayer was made on behalf of landlord for appointment of commissioner to inspect the shops etc.---Rent Controller could adopt any procedure which was legal and not a procedure which was in contravention of law---Rent Controller committed jurisdictional mistake with regard to delegation of powers of inspection to the Nazir of District Court which was not permissible under the law and he directed the commissioner to inspect the adjoining shops/premises as well---Rent Controller had exceeded his limits and his order was void and illegal which was passed without jurisdiction---No power had been given to Rent Controller or the Appellate Authority to delegate their powers of inspection to any other person under S.20(c) of Sindh Rented Premises Ordinance, 1979---If report of commissioner was considered by the Rent Controller then same would be an exercise in futility as same was without jurisdiction having no legal effect---Public functionaries discharging their functions under a statute providing a procedure for doing a thing in a particular manner were required to do such function in such manner or not to do at all---Case was to be decided on the basis of evidence produced by the parties---Report of commissioner could not be a substitute for the evidence produced by the parties as commissioner or the persons who had produced evidence before him could not be subjected to cross examination by the other side and such report or the evidence produced before the commissioner/Nazir was also not on oath---Question of fixation of fair rent could not be decided on the basis of report of a commissioner and same had to be decided on the basis of evidence produced by the parties---Constitutional jurisdiction of High Court could be invoked in order to prevent an exercise in futility---Order of Rent Controller on an interlocutory application having jurisdiction to pass the same could not be challenged by filing a constitutional petition but when such order was passed without jurisdiction and same suffered from illegality then it could be challenged by filing a constitutional petition---Availability of adequate alternate remedy would not come in the way of High Court to set the wrong at naught---Impugned order was set aside and constitutional petition was accepted in circumstances---Report of commissioner would not be considered by the Rent Controller---Application filed under S.8 of Sindh Rented Premises Ordinance, 1979 was to be decided on the basis of evidence of the parties.

Haji Ahmed Haji Essa v. Rent Controller, and others 1983 CLC 840; Pervez Impex v. Mst. Nazir Begum and another 1989 CLC 374; Muslim Commercial Bank v. Deputy Commissioner Income Tax 2004 PTD 1901; Abdul Rashid v. Mahmood Ali Khan 1994 SCMR 2163; Javedan Cement Ltd. v. Deputy Commissioner 2002 CLC 1804; Jalal Khan v. Khando Malik 2003 SCMR 1351; A.R. Builders v. Faisal Cantonment Board PLD 2004 Kar. 492; Tahir Mehmood v. Tariq Mehmood 2006 MLD 1457; Popalzai v. District and Sessions Judge 1984 CLC 630; Aamir Khursheed Mirza v. The State 2006 CLD 568 and Syed Mansoor Sadiq Zaidi v. Mst. Begum Narjis Zaidi 2013 YLR 2122 ref.

Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Pakistan Burmah Shell Ltd. v. Mrs. Nasreen Irshad and others 1989 SCMR 1892; Muhammad Saeed Shah v. Mst. Philpana and others 2012 MLD 783; Ahmad Khan v. Khalid Mehmood and others 1990 MLD 1224; Sultan Ahmad v. Sr. Civil Judge/Rent Controller, and another 1984 CLC 101; Habib Alvi Athar v. Hassan and others 1986 MLD 1656; Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21; Rashid Ahmed v. Soofi Muhammad Saleem and another PLD 1976 Lah. 1450; Malik Rehmatullah v. Sh. Mohamamd Amjad and others PLD 1979 (sic) 86; Kh. Noorul Qadir Darabu v. Ejaz Ahmed and others PLD 1997 Kar. 501; Haji Wali Muhammad through L.Rs. and another v. Aslam Pervez and others 2011 CLC 19; Abdul Rehman and another v. Ziaul Haque Makhdoom 2012 SCMR 954 and Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 distinguished.

Atta Muhammad Qureshi v. Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720 rel.

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

----S. 8---Factors for determination of fair rent---Factors for determination of fair rent were the rent of similar premises situated in the similar circumstances in the same or adjoining locality; the rise in cost of construction and repair charges; the imposition of new taxes if any after commencement of tenancy and annual value of the premises if any on which property tax was levied.

Ms. Sana Minhas for Petitioner (in both the Petitions).

Iftikhar Javed Qazi for Respondent No.1 (in Constitutional Petition No.223 of 2013) and Respondent No.1 (in Constitutional Petition No.224 of 2013).

Nemo for Respondent No.2.

Date of hearing: 25th November, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1273 #

2014 Y L R 1273

[Sindh]

Before Muhammad Shafi Siddiqui, J

ABDUL AZIZ---Plaintiff

Versus

SHAHID AHMED through Attorney and 3 others---Defendants

Suit No.1015 and C.Ms. Nos.9789 and 13119 of 2013, decided on 24th January, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11, O. II, R. 2 & O. XXIII, R. 1---Limitation Act (IX of 1908), Arts.91 & 113---Withdrawal of earlier suit---Filing of fresh suit---Rejection of plaint---Scope---Contention of defendants was that earlier suit was withdrawn unconditionally and plaintiff was precluded from filing fresh suit---Validity---Plaintiff had fresh cause of action to file the present suit---Earlier suit had been withdrawn under O.XXIII, Rule 1, C.P.C. but same would preclude the plaintiff to file fresh suit on the same cause of action---Cause of action to file the present suit commenced from the day when the alleged settlement between the parties was arrived at and compliance of same was denied---Plaintiff sought compliance of settlement arrived at between the parties at the time of withdrawal of earlier suit for which limitation period was three years---Article 91 of Limitation Act, 1908 would not apply in the present case as the facts entitling the plaintiff to file present suit commenced when public notice was issued---Present suit had been filed for enforcement of settlement arrived at in the earlier suit between the parties---Earlier suit was filed for declaration and cancellation of sale deed, however on account of settlement a fresh cause accrued to the plaintiff on denial of such settlement---Plaintiff had not relinquished any rights with regard to suit property---Application filed under O. VII, Rule 11, C.P.C. was dismissed accordingly.

Mst. Hamida Begum v. Mst. Murad Begum PLD 1975 SC 624 ref.

Nizar Ali v. Noorabad Cooperative Housing Society PLD 1987 Lah. 676 and Saeed Akhtar v. Lal Din and others PLD 1981 Lah. 623 rel.

Muhammad Ahsan for Plaintiff.

Muhammad Khalid for Defendant No.1.

Mushtaq A. Memon along with Ishtiaq Memon and Shahid Ali Ansari for Defendant No.6.

YLR 2014 KARACHI HIGH COURT SINDH 1304 #

2014 Y L R 1304

[Sindh]

Before Shahnawaz Tariq, J

MUNICIPAL COMMITTEE TANDO JAM through T.M.O. and Taluka Administration (Rural) Taluka, Hyderabad---Applicant

Versus

ARJAN KUMAR and 12 others---Respondents

Civil Revision No.353 of 2011, decided on 7th March, 2014.

Specific Relief Act (I of 1877)---

----Ss.43 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Concurrent findings of fact by two courts below---Cancellation of lease---Municipal Committee leased out suit land to plaintiff for 99 years in open auction but subsequently cancelled the same---Trial Court and Lower Appellate Court concurrently decreed the suit in favour of plaintiff--- Validity--- Provincial Government at the relevant time, had appointed Administrator to manage, control and supervise affairs of Municipal Committee in question---Considering financial collapse of Municipal Committee, particularly its failure to pay salaries of staff for six months and after calling prevailing market value of suit land from concerned revenue authorities through letter, Administrator approached concerned quarter of government and sought permission, which itself was sufficient for sale and execution of lease in favour of plaintiff---Administrator was permitted by the Minister for sale of plot in question and consequently suit plot was sold out through open auction---Both Courts below had properly examined and discussed evidence adduced by parties supported with their documents in respect of their claims---Concurrent findings could not be interfered without establishing that same were invalid, erroneous or result of misreading or non-reading of material evidence available on record or Courts below had no jurisdiction to decide the matter---Municipal Committee failed to point out any illegality or infirmity in judgments of both the Courts below and the same did not call for any interference by High Court in exercise of revisional jurisdiction and the same were maintained--Revision was dismissed in circumstances.

Dilawar Khan v. Mehrun Nissa 2011 YLR 872; Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Abdul Rahim v. Mrs. Jannatay Bibi and others 2000 SCMR 346 ref.

Saeeduddin Siddiqui for Applicant.

Irfan Ahmed Qureshi for Respondent No.1.

Ch. Bashir Ahmed A.A.-G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 1319 #

2014 Y L R 1319

[Sindh]

Before Shahnawaz Tariq, J

TALIB HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-776 of 2013, decided on 10th February, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, grant of---Further inquiry---Delay in lodging of F.I.R. without any plausible explanation---Effect---Accused along with his co-accused was alleged to have snatched cash, mobile sets and a vehicle from the complainant party---F.I.R. was lodged with a delay of eight days without any plausible explanation---Regarding delay in lodging F.I.R. complainant merely stated that he informed a nekmard about the incident, who then approached the accused persons but complainant was kept on false hopes, and ultimately complainant lodged an F.I.R.---Factum of deliberations and consultations could not be ruled out in such circumstances---During the course of commission of the alleged offence complainant claimed to have identified two of the culprits through the head-lights of his vehicle, which proved that accused was already known to the complainant, who in such circumstances should have approached the police station immediately after the incident, which was situated at a distance of 5 to 6 kilometers from the place of incident---Where the alleged offence was punishable with maximum as well as minimum quantum of sentence, the court may consider the minimum sentence even at bail stage---Section 395, P.P.C. besides its maximum punishment also provided (minimum) imprisonment of not less than 4 years---Accused was admitted to bail in circumstances.

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

----S. 497---Bail---Offence alleged---Quantum of sentence to be considered by court---Minimum and maximum punishment---When the alleged offence was punishable with maximum as well as minimum quantum of sentence, the court may consider the minimum sentence even at bail stage.

Shehzore and another v. The State 2006 YLR 3167 and Zahid Maseeh v. The State 2012 MLD 814 rel.

Manzoor Ahmed Panhwar for Applicant.

Shahid Ahmed Shaikh, Assistant P.G. for the State.

Date of hearing: 10th February, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1331 #

2014 Y L R 1331

[Sindh]

Before Syed Muhammad Farooq Shah, J

PEERANO KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.S-156 and S-163 of 2013, decided on 14th February, 2014.

(a) Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010)---

----Ss. 3, 4, 8 & 14---Penal Code (XLV of 1860), S.34---Encroachment on public property---Removal of encroachment---Procedure and power of the Tribunal---Common intention---Appreciation of evidence---Neither the judicial procedure prescribed under S.14 nor provisions of Ss.3 & 4 of Sindh Public Property (Removal of Encroachment) Act, 2010 had been followed in letter and spirit---Universal principle of law i.e. 'audi alteram partem' had been violated in such a manner that proper opportunity of hearing had not been provided to accused persons by deciding the case in summary manner, in violation of administration of justice and equity---Impugned judgment whereby accused were convicted and sentenced, could not be sustained under the law, which was against the judicial norms---Law involved in the present case, did not allow the speedy disposition of controversy without adopting the necessary steps of procedure as enunciated in the Sindh Public Property (Removal of Encroachment) Act, 2010---Said statute nowhere prescribed summary plan or procedure to expedite the trial, hurriedly---Prosecution to establish its case had neither found inhabitant of the locality, nor any other private person as witness---Legal right of accused persons, safeguarded and respected by the Constitution, had not been afforded in its true spirit---Trial had not been conducted and concluded in a fair and transparent manner, in which the truth could be received and given credence---Conviction of accused persons recorded by the Tribunal, was set aside in circumstances.

(b) Natural justice, principles of---

---Legal justice---Scope---Natural justice was another name of common sense justice---Rules of natural justice, were not codified canons, but were principles ingrained into the conscience of man---Natural justice was the administration of justice in a common sense liberal way---Justice was based substantially on natural ideas and human values---Administration of justice was to be freed from the narrow and restricted considerations which were usually associated with a formulated law involving linguistic technicalities and grammatical niceties---Substance of justice was to determine its form---Expressions "natural justice" and "legal justice", did not present a water-tight classification---Substance of justice which was to be secured; and whenever legal justice would fail to achieve that solemn purpose, natural justice was called in aid of legal justice---Natural justice relieved legal justice from unnecessary technicality, grammatical pedantry or logic prevarication, it would supply the omission of a formulated law.

----Art. 10-A---Fair trial---Fair trial guarantees in criminal proceedings in Islamic law; constitutional law; international law and general principles of law as recognized by civilized nations

Zakir Hussain Bughio for Appellants (in Criminal Appeal No.163 of 2013).

Farhat Ali Abro for Appellants (in Criminal Appeal No.S-156 of 2013).

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

YLR 2014 KARACHI HIGH COURT SINDH 1348 #

2014 Y L R 1348

[Sindh]

Before Riazat Ali Sahar, J

MUNEER AHMED and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-96 and M.A. No 96 of 2013, decided on 27th January, 2014.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.337-D & 337-F(ii)---Jaifah, causing Mutalahimah---Suspension of sentence, application for---Nothing, as to plea of enquiry report, as raised by counsel for applicants, was available on record---Only memo of appeal, along with listed-application, was filed annexing certified copy of impugned judgment---Enquiry report could not prevail over the investigation---Appeal regarding conviction and sentence, exceeding three years, but not exceeding seven years would be proceeded within a period of one year, and in case of non-proceeding of appeal within stipulated period, right under S.426, Cr.P.C., could be established---Applicants failed to deposit the Paper-Book Cost, which fact was significant for causing delay---To allow application under S.426, Cr.P.C. in every case, wherein conviction and sentence came within short term sentence as 5 years was not a hard and fast rule---Sentence of 'Arsh' amount could not be suspended, unless applicants desired to deposit such amount conditionally before Appellate Court---In the present case, neither applicants had shown willingness through memo of application under S.426, Cr.P.C., nor counsel for applicants, had expressed such inclination during course of arguments---Applicants were not entitled for concession of bail in terms of suspension of conviction and sentence, awarded by the Trial Court.

Abdul Haque G. Odho for Appellants.

Hubdar Ali Bhatti for the Complainant.

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

YLR 2014 KARACHI HIGH COURT SINDH 1363 #

2014 Y L R 1363

[Sindh]

Before Syed Muhammad Farooq Shah, J

Malik BABAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-143 of 2013, decided on 24th January, 2014.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence---Medical ground---Report submitted by Special Medical Board, duly constituted, had shown that one of accused persons was a crippled person, while nature of illness of other one was of serious nature---In view of the ailment of accused persons, being of serious nature, they were entitled to the relief sought under S.426, Cr.P.C.---Sentence awarded to accused persons by the Trial Court, were suspended till the final disposal of the appeal---Accused were released on bail on furnishing bonds, in circumstances.

Sardar Amjad Ali Khan v. The State 2009 SCMR 425; Hakim Ali Zardari v. The State 2003 PCr.LJ 154; Malik Fida Hussain v. The State 2002 YLR 2199; Haji Mir Aftab v. The State 1979 SCMR 320 and Lal Din v. The State 1994 PCr.LJ 1796 rel.

Ishrat Ali Lohar Mumtaz Alam Leghari and Shaikh Aijaz for Appellants.

Hidayatullah Abbasi for the Complainant.

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

YLR 2014 KARACHI HIGH COURT SINDH 1372 #

2014 Y L R 1372

[Sindh]

Before Riazat Ali Sahar, J

INAYAT ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.426 of 2013, decided on 4th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), Ss.2 & 24---Possessing unlicensed arms---Bail, grant of---Further inquiry---Police allegedly recovered an unlicensed pistol from possession of accused---F.I.R. did not mention the manner of recovery of unlicensed pistol from accused---F.I.R. was silent about the date, time and place of alleged recovery, therefore, case was one of further inquiry---Present case was of recovery of unlicensed pistol, which fell within the definition of 'arms' provided under S. 2 of Sindh Arms Act, 2013---Section 24 of Sindh Arms Act, 2013 provided maximum punishment up to 10 years for possessing arms or ammunition, licensed or unlicensed, with the aim to use them for any unlawful purpose, therefore, alleged offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was granted bail in circumstances.

Farman Ali Kanasero for Applicant.

Zulfiqar Ali Jatoi, D.P.G. for the State.

Date of hearing: 4th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1385 #

2014 Y L R 1385

[Sindh]

Before Aftab Ahmed Gorar, J

Dr. IFTIKHAR AHMED SEEHAR---Applicant

Versus

The STATE---Respondent

Bail Application No.S-1112 of 2013, decided on 30th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S.5(2)---Public servant taking gratification other than legal remuneration in respect of an official act, criminal misconduct---Bail, grant of---Further inquiry---Trap proceedings---Public servant (accused) caught by members of a raiding party while taking a bribe/illegal gratification---Conversation between accused and complainant at the time of payment of bribe money---Scope---Accused an old-aged diabetic patient---Trapping party/Magistrate did not hear conversation between accused and complainant when alleged illegal gratification was settled and agreed to be paid---F.I.R. was lodged on 3-9-2013, whereas the incident was alleged to have taken place on 4-9-2013---Accused was a diabetic patient of old age as such there was no apprehension of tampering with prosecution evidence---Investigation of case was complete and challan had already been submitted before Trial Court---Case required further probe into guilt of accused---Accused was granted bail accordingly.

Bashir Ahmed v. The State 2001 SCMR 634 and Sameen Jan (Naib Tehsildar) and another v. The State and another PLD 2011 SC 509 rel.

Barrister Zamir Ghumro for Applicant.

Rahat Ehsan, D.P.G. and Irshad Ahmed Sadhayo, ACE Police Karachi-South for the State.

YLR 2014 KARACHI HIGH COURT SINDH 1394 #

2014 Y L R 1394

[Sindh]

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

ARSHAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.70 of 2011, decided on 6th February, 2014.

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

----S.164---Retracted confession---Scope---If a retracted confessional statement was found true, confidence-inspiring and voluntary, there remained no need at all to look into for further corroboration---Such confession could safely be made basis of capital punishment.

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

----Ss. 302(b), 306, 308 & 311---Qatl-e-amd, qatl-e-amd not liable to qisas, tazir after waiver or compounding of right of qisas in qatl-e-amd---Appreciation of evidence---Retracted judicial confession not only appeared to be true, voluntary and confidence-inspiring, but also found corroboration from the circumstantial evidence---Accused allegedly had committed murder of his wife and his son---Trial Court had awarded death penalty to accused under S.302(b), P.P.C. as tazir on two counts, firstly, on account of murder of his son and secondly for murder of his wife---Another son who was just 6-1/2 months of age, after death of his mother had no wali, besides his father/accused---Qatl-e-amd was not liable to qisas when offender had caused the death of his child or grandchild, how lowsoever---Section 308, P.P.C., which detailed the punishment in cases where qatl-e-amd was not liable to qisas, provided that an offender guilty of qatl-e-amd was not liable to qisas under S.306, P.P.C., he would be liable to diyat---Trial Court, in circumstances was not justified in sentencing accused to death without the application of S.311, P.P.C., whereunder death sentence could not have been awarded to accused for causing the death of his son without charging him on account of fasad fil arz---Accused, after the murder of his son, could not be given the benefit of S.306(c), P.P.C., which provided that qatl-e-amd was not liable to qisas, when any wali of the victim was a direct descendant howsoever of the offender---Since in the present case, no descendant of the offender who could be wali of the deceased, death sentence awarded to accused on account of committing qatl-e-amd of his wife, in absence of any issue as tazir, did not require interference---Accused had contended that he was suffering from mental ailment at the time when he committed such gruesome act---Accused nowhere pleaded mental ailment during the trial, nor produced any documentary evidence to show that at any point of time, accused had complained of any type of mental ailment---Even in the memo of appeal, no such ground had been taken after two years of filing appeal---Nowhere it was pleaded that accused had any previous record in respect of his mental ailment---Half-hearted afterthought plea of mental ailment was not found worth-consideration---Sentence of accused was modified on account of murder of his son to imprisonment for 14 years as tazir, whereas dismissed appeal on account of committing the murder of his wife by maintaining the death penalty so awarded.

Shaikh Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307; Khalil-uz-Zaman v. Supreme Appellate Court PLD 1994 SC 885; Haq Nawaz v. The State 2000 SCMR 785; Abid Mahmood v. The State 2009 PCr.LJ 894; Habib-ur-Rehman v. The State 2003 PCr.LJ 667 and Jamila Bibi v. The State 1999 PCr.LJ 381 ref.

Fauqual Bashir v. The State 1997 SCMR 239 and Sher Afzal v. The Sttae PLD 1960 (W.P.) Pesh. 66 ref.

----S. 302(b)---Criminal Procedure Code (V of 1898), S.345(2)---Qatl-e-amd---Compounding of offence---Death penalty had been awarded to accused under S.302(b), P.P.C. as tazir for the murder of his wife, which under provisions of S.345(2), Cr.P.C. could be compounded by all the legal heirs of the deceased with permission of the court; and until and unless all the walis/legal heirs would compound the offence, compromise could not be allowed---In the present case, there being no such request before the court, submission of accused being devoid of merits was rejected.

Khan Muhammad v. The State 2005 SCMR 599 and Manzoor Hussain and 4 others v. The State 1994 SCMR 1327 ref.

Shaukat Hayat for Appellant.

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

Dates of hearing: 11th and 24th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1407 #

2014 Y L R 1407

[Sindh]

Before Hasan Feroz, J

IFTIKHARULLAH KHAN and 8 others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.155 of 2013, decided on 8th November, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.561-A & 173---Sindh Enquiries and Anti-Corruption Rules, 1994, R.4(c)---Penal Code (XLV of 1860), Ss.217, 218, 409, 420, 468, 471 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Disobeying direction of law by public servant, framing incorrect record or writing by public servant, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery, using as genuine a forged document, common intention, corruption---Declining of the final report of prosecution for dropping the case---Quashing of order---Applicants/accused persons, had sought quashing of order whereby the Trial Court had declined the final report of prosecution under S.173, Cr.P.C. for dropping the criminal case against them---Fair assessment could not be made without considering the material available on record---Assessing the order passed by the Trial Court, required material which apparently had not come to the consideration of the court, which had declined the report under S.173, Cr.P.C. and ordered for issuance of process---Competent authority, had powers to drop the case after investigation on its own, or on the recommendation of Anti-Corruption Committee; in accordance with R.4(c) of Sindh Enquires and Anti-Corruption Rules, 1994---Recommendation seeking permission of competent authority to drop the case, seemed to have not been followed in the case---Since the material for dropping the case against accused persons, had not been fully brought before the Trial Court in the shape of final challan, in order to meet the ends of justice from being prejudiced, accused had prayed against order of registration of case against them---Powers though were vested with the competent authority to drop case, but it ought to be fair assessment and consideration of facts and evidence; and not in mechanical manner for which due diligence was prerequisite---Application was disposed of by the High Court with direction to Chief Secretary, being competent authority, to place material collect during investigation and re-investigation; and Trial Court was directed to pass order afresh on the basis of said recommendations.

PLD 2008 Kar. 567; 1997 SCMR 1503; PLD 2008 Kar. 310; 1996 PCr.LJ 1348; 2003 YLR 701; 2010 PCr.LJ 368; 1998 MLD 2094; 2007 PCr.LJ 1515; PLD 2009 Lah. 101; 1975 PCr.LJ 120 and 2002 PCr.LJ 310 ref.

Dr. Muhammad Farogh Naseem, Qazi Khalid Ali and Shaukat Hayat for Applicants.

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

Date of hearing: 8th October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1422 #

2014 Y L R 1422

[Sindh]

Before Farooq Ali Channa, J

ABDUL HAFEEZ ARAIN---Applicant

Versus

MUREED HUSSAIN and 6 others---Respondents

Civil Revision Application No.53 of 2013, decided on 11th November, 2013.

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

---S. 115--- Revision--- Limitation---Revision was filed after more than 90 days from the order of Appellate Court and same was time-barred---Revision was dismissed being time-barred and not maintainable.

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

----S. 115---Revisional jurisdiction of High Court--- Conditions--- Revisional jurisdiction of High Court could only be exercised if subordinate court had exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in it or acted in the exercise of its jurisdiction illegally or with material irregularity.

Rana Muhammad Siddique for Applicant.

Pirbhulal U. Goklani for Respondent No.1.

Allah Bachayo Soomro, Addl. A.G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 1426 #

2014 Y L R 1426

[Sindh]

Before Sadiq Hussain Bhatti, J

Mst. SARA---Petitioner

Versus

PROVINCE OF SINDH, through Home Secretary, Karachi and 3 others---Respondents

Constitutional Petition No.S-103 of 2013, and Criminal Revision Application No.S-86 of 2013, decided on 2nd August, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 22-B & 439---Constitution of Pakistan, Art.199---Constitutional petition--Revisional jurisdiction---Cognizable offences---F.I.R., registration of---Accused were police officials and allegation against them was that they had kept one person in illegal detention, who was recovered during raid---Sessions Judge after conducting of inquiry into the guilt directed for registration of criminal case against accused ---Validity---Registration of F.I.R. in respect of cognizable offence was right of aggrieved party given by law---Lodging of F.I.R. against a person meant that there were accusations and he had to clarify satisfactorily but in case such accusations were proved by way of evidence then he would be culprit---Order passed by Sessions Judge did not suffer from any legal infirmity---Revisional powers were supervisory powers given under Criminal Procedure Code, 1898, to ensure that no illegality was committed while passing any judicial order---High Court declined to interfere in the order passed by Sessions Judge as the same did not suffer from any illegality---Petition was dismissed in circumstances.

Sikandar Ali Khaskheli for Petitioner (in Constitutional Petition No.S-103 of 2013) and for Respondent No.1 (in Criminal Revision Application No.S-86 of 2013).

Ishrat Ali Lohar for Intervener (in Constitutional Petition No.S-103 of 2013) and for Applicants (in Criminal Revision Application No.S-86 of 2013).

Allah Bachayo Soomro, Additional A.G. for the State (in Constitutional Petition No.S-103 of 2013).

Muhammad Iqbal Kalhoro, A.P.-G. for the State (in Criminal Revision Application No.S-86 of 2013).

Date of hearing: 29th July, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1454 #

2014 Y L R 1454

[Sindh]

Before Aftab Ahmed Gorar, J

NADIR ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-314 of 2013, decided on 14th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-B, 376, 392, 452, 343, 147 & 148---Kidnapping, abducting or inducing woman to compel for marriage etc., rape, robbery, house-trespass after preparation for hurt, wrongful confinement for three or more days, rioting, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Delay in lodging F.I.R.---Implication on basis of supplementary statement recorded belatedly---Accused and co-accused persons allegedly entered into complainant's house unlawfully, took away his sister with the intention to commit zina with her and also robbed gold ornaments and cash---F.I.R. was delayed by about three days---Accused was not nominated in the F.I.R. and his name was introduced for the first time through statements of prosecution witnesses recorded under S. 161, Cr.P.C, which too were delayed by about 15 days without any explanation---Alleged abductee/victim did not take name of accused in her statement under S. 161, Cr.P.C---Alleged abductee was not recovered from the possession/ house of accused---Investigating agency did not believe version of complainant and placed name of accused in column No.2 of the challan---Case against accused was one of further inquiry---Accused was admitted to bail accordingly.

Safdar Ali G. Bhutto for Applicant.

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

YLR 2014 KARACHI HIGH COURT SINDH 1462 #

2014 Y L R 1462

[Sindh]

Before Salahuddin Panhwar, J

Mst. ANSA KANWAL and 4 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-541 of 2013, decided on12th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 371-A & 371-B---Qanun-e-Shahadat (10 of 1984), Art. 38---Selling person for purposes of prostitution etc., buying person for purposes of prostitution etc.---Bail, grant of---Further inquiry---Confession before police, admissibility of---Allegation against accused-female was that she ran a brothel and offered woman against money for prostitution---Accused and co-accused females were arrested from their vehicle by the police on the suspicion that they were involved in the business of selling and buying women for prostitution--Mere presence of women in a vehicle or place with men, could not be termed to be an offence unless they were found to be in a situation or position which turned such legal and lawful thing into an illegality or an offence---Prosecution had no evidence except alleged self-implicating words of accused to the effect that she offered women for prostitution---Such words were an alleged confession before police, which was not admissible under law---Investigating officer did not record statement of any person of the locality, where alleged brothel was being run by the accused---Accused and co-accused persons were females and they were no more required for further investigation---Case was one of further probe---Accused and co-accused females were released on bail accordingly.

Altaf Hussain Khokhar for Applicants.

Shahid Sheikh Shah D.P.G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 1479 #

2014 Y L R 1479

[Sindh]

Before Sadiq Husain Bhatti, J

ABDUL RAZZAQ and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-81, Criminal Appeal No.S-104 and Criminal Jail Appeal No.S-112 of 2012, decided on 4th February, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Qatl-e-amd, rioting, common object---Appreciation of evidence---Occurrence was a night time incident and there was no source of light---Place of incident was surrounded by Banana crops and houses, but Police did not record the statement of any person from the neighbourhood---Long-standing enmity existed between the parties, strong corroboration was needed to filter the evidence of interested and inimical witnesses---Witnesses had not given the actual time of lodging the F.I.R.---Complainant lodged the F.I.R. after postmortem examination and receiving the dead body, with the consultation of 3/4 Police Officials---Police did not record the statement from the persons who were present at the hotel where occurrence took place, which was most important---Prosecution did not examine the hotel keeper, whose statement was recorded by the Police---Prosecution witness, who was also the alleged eye-witness of incident, was given up at the behest of complainant--All had shown that trial had not been fairly conducted, and important evidence had been suppressed---Prosecution had not proved the motive of incident either orally or through documents---No recovery of crime weapon was made from any accused, simply empties allegedly recovered from place of incident, could not prove that those were fired by accused---Eighty seven empties were recovered by Police from place of vardat, but no ballistic report was produced by prosecution---No crime weapon having been recovered from any accused, it was not possible that empties were matched and report became positive---No other corroborative evidence was on record to support the testimony of two prosecution witnesses---Co-accused who had been shown as mastermind, was acquitted by the Trial Court on the same set of evidence, while other one was convicted---Possibility of mistaken identity coupled with major contradictions in the evidence of witnesses could not be excluded, which had made the case doubtful---Prosecution having failed to prove the case against accused persons beyond shadow of doubt, their conviction and sentences were set aside, they were acquitted of the charges and were set at liberty, in circumstances.

Fayyaz Ahmed Soomro and Ali Mutahir Shar for Appellants.

Zulfiqar Ali Jatoi, D.P.G. for the State.

Date of hearing: 24th January, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1539 #

2014 Y L R 1539

[Sindh]

Before Nazar Akbar, J

Mrs. PARVEEN AKHTAR and another---Plaintiffs

Versus

LUCKNOW COOPERATIVE HOUSING SOCIETY LTD. through President/ Chairman/Secretary and another---Defendants

Civil Suit No.846 and C.M.A. No.12158 of 2010, decided on 13th March, 2014.

Co-operative Societies Act (VII of 1925)---

----Ss. 54 & 70---Civil Procedure Code (V of 1908), O. VII, R. 11 & S. 9---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Notice---Requirement---Cancellation of allotment---Scope---Contention of defendant was that plaintiffs were bound to send notice to the Registrar before filing suit against the society--- Validity--- Plaintiffs were members of society and byelaws of the society were binding on them---Allotment of plots was cancelled on the basis of scrutiny of file by the society---Plaintiffs were at issue with the society and dispute was of civil nature with regard to business of society---Society had allotted plots to the plaintiffs and had cancelled the same by acting on its byelaws---If allotment of plots to its members was the business of society then cancellation of said allotment on scrutiny of files of its members on findings that allotments were in violation of byelaws or any other relevant rules and regulation was also business of society---Dispute should be referred to the Registrar for its resolution being a mandatory requirement of S. 54 of Co-operative Societies Act, 1925---Registrar of Society was empowered to decide even complicated question of law and facts---Plaintiffs should have taken their dispute with the society to the Registrar and if they were not willing to avail arbitration for redressal of their grievance then they were bound to send notice to Registrar before filing suit against the Society---Plaintiffs had not sent any notice to the Registrar, Co-operative Societies that they were aggrieved by action of the society and they proposed to take the Society to the court---Ss. 54 & 70 of Co-operative Societies Act, 1925 had provided first a statutory remedy of arbitration to the aggrieved party and then to avail jurisdiction of civil court to try such dispute of civil nature---Courts were not supposed to assume the jurisdiction of competent forum available within the statute governing the issues and relations between the parties---Civil court could not try and adjudicate the dispute with regard to business of a society---Civil court could not usurp the power of statutory forum to take cognizance of such dispute of civil nature in presence of such statutory forum---Plaint was rejected in circumstances.

Qadri Begum v. Province of Sindh 1999 CLC 2023; Darul Aman Cooperative Housing Society Ltd. v. Secretary, Govt. of Pakistan 1995 MLD 1553; Atia Khanum v. Saadadabad C.H.S. Ltd. 2002 MLD 209; Mehar Ali Memon v. Federation of Pakistan PLD 2012 Sindh 425; Defence Housing Authority v. Punjab Cooperative Housing Society Limited 2011 CLC 520; Mahboob v. Nafeesullah 1990 CLC 1452; Nizar Ali v. Noorabad C.H.S. Ltd. PLD 1987 Kar. 676; Delhi Mercantile Coop. Society Ltd. v. Registrar, Coop. Societies 2011 YLR 2121 and Attaullah v. Sanaullah PLD 2009 Kar. 38 ref.

Defence Housing Authority v. Punjab Cooperative Housing Society Limited 2011 CLC 520; Mahboob v. Nafeesullah 1990 CLC 1452; Nizar Ali v. Noorabad C.H.S. Ltd. PLD 1987 Kar. 676; Delhi Mercantile Coop. Society Ltd. v. Registrar, Coop. Societies 2011 YLR 2121 and Attaullah v. Sanaullah PLD 2009 Kar. 38 distinguished.

Imtiaz Hussain Gondal for Plaintiffs Nos.1 and 2.

Ch. Khalid Rahim Arain, for Defendant No.1.

Defendant in person.

Date of hearing: 24th October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1560 #

2014 Y L R 1560

[Sindh]

Before Shahnawaz Tariq, J

GHULAM MUSTAFA---Applicant

Versus

The STATE and another---Respondents

Criminal Bail Application No.S-799 of 2012, decided on 21st February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 504, 147, 148 &149---Qatl-e-amd, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Bail sought on ground of statutory delay in conclusion of trial---Manner and mode of offence---Pre-planned murder---Hardened and dangerous criminal---As per F.I.R., accused along with co-accused persons came to place of incident on motorcycles duly armed with deadly weapons and in prosecution of their common object made straight firing upon the deceased persons---Accused was nominated in the F.I.R. with specific role of firing upon the deceased persons---Manner in which accused and co-accused persona gathered at the place of incident indicated that they had pre-planned to commit murder of the deceased and their simultaneous firing reflected their common intention to commit murder--Question as to whose fire shot proved fatal was immaterial in such circumstances---Accused was alleged to be armed with a Kalashnikov, and twelve empties of the same were recovered from the place of incident, which prima facie established that accused was a hardened and dangerous criminal, and did not deserve the concession of bail on the ground of statutory delay in conclusion of his trial---F.I.R. was registered promptly---Delay of four hours in lodging of F.I.R. was natural as complainant appeared at police station after getting the post-mortem report---Accused was refused bail in circumstances with a direction to Trial Court to conclude the trial of accused within four months.

Sher Bahadur v. Haji Ghaffar Ali Khan and others 1999 PCr.LJ 403 rel.

Syed Ghulam Hyder Shah for Applicant.

Pervez Ahmed Pirzada for the Complainant.

Shahid Ahmed Shaikh Assistant P.G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 1573 #

2014 Y L R 1573

[Sindh]

Before Hasan Feroz, J

ANWAR KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1320 of 2013, decided on 25th November, 2013.

(a) Criminal trial---

----Benefit of doubt---Scope---For giving benefit of doubt to accused it was not necessary that there should be many circumstances creating doubts---If a simple circumstance would create reasonable doubt in the prudent mind about the guilt of accused, then he would be entitled to such benefit, not as a matter of grace and concession, but as a matter of right.

1995 SCMR 1345 ref.

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

----S. 497(2)---Sindh Arms Act (V of 2013), S.23(1)(a)---Possessing unlicensed arms---Bail, grant of---Further inquiry---Recovery of arms from accused had been put under doubt---Weapon used in the offence having not been sent to Forensic Science Laboratory for examination, the ingredients to attract S.23(1)(a) of Sindh Arms Act, 2013, required proof of recovery, which was a matter of further inquiry---Accused had been granted bail in main case under Ss.324, 353, 34, P.P.C. on the ground of further inquiry---In said case arm was involved---Recovery being shrouded under doubt, matter fell under the purview of further enquiry---Accused was admitted to bail, in circumstance.

1995 SCMR 1345 ref.

Abdul Karim Khan for Applicant.

Zahoor Shah, A.P.-G. for Respondent.

Date of hearing: 25th November, 2013.

2014 Y L R 1620

[Sindh]

Before Nadeem Akhtar, J

Syed MURSHAD ALI---Applicant

Versus

Syed AMJAD ALI and 3 others---Respondents

Civil Revision Application No.184 of 2013, decided on 31st March, 2014.

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

----O. VII, R. 11 & O. II, R. 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Scope---Defendant moved an application for rejection of plaint with the contention that during pendency of earlier suit present suit was not maintainable---Application for rejection of plaint was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Disputed gift had been admitted by the plaintiff and same was in his knowledge but was not challenged within three years---Plaintiff had waived and relinquished all his rights, title and interest in the property---Plaintiff had withdrawn his first suit and second suit had been filed with regard to the same property---Present suit had been filed after more than 17 years of execution and registration of said gift which was barred by limitation---Plaintiff was bound to include his entire claim in his earlier suit and second suit was barred under O.II, R.2, C.P.C.---Party seeking relief must have a cause of action not only when the transaction or the alleged act was done but also at the time of institution of suit and plaintiff was required to show not only a right had been infringed in a manner to entitle him to a relief but also that when he approached the court the right to seek relief for such infringement was in existence---Plaintiff had no cause of action to file the present suit---Plaint should be rejected in any of the four eventualities mentioned in O.VII, R.11, C.P.C. including where plaint did not disclose a cause of action or suit was barred by any law---Court was bound to reject the plaint even without any application from a party if same was hit by any of the clauses mentioned in O.VII, R.11, C.P.C.---Impugned judgment passed by the Appellate Court was result of misreading, non-reading of evidence and material available on record which was not sustainable in the eye of law---Trial Court had rightly rejected the plaint on the ground of limitation---Impugned judgment passed by the Appellate Court was set aside---Revision petition was accepted with costs of Rs. 10,000 payable by the plaintiff to the defendant.

Ilyas Ahmed v. Muhammad Munir and 10 others PLD 2012 Sindh 92; S. M. Shafi Ahmed Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs 2002 SCMR 338; Muhammad Akhtar and others v. Abdul Hadi etc. 1981 SCMR 878; Mir Sahib Jan v. Janan 2011 SCMR 27; Mian Muhammad Akram and others v. Muhammad Rafi 1989 CLC 15; Mst. Mazhar Khanum v. Sheikh Saleem Ali and 7 others 2004 CLC 799; Taj Muhammad Khan through L.Rs and another v. Mst. Munawar Jan and 2 others 2009 SCMR 593; Ghous Bux v. Muhammad Sulemanj and others 2001 MLD 1159; Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222 and Feroz Hussain and others v. Executive Engineer, Mithrao Division Mirpurkhas and 2 others 2009 CLC 529 ref.

Abdul Rehman v. Sher Zaman and another 2004 CLC 1340; Abdul Rehman v. Wahid Bakhsh and 9 others PLD 1977 Lah. 1243; Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371; Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Karim Bakhsh through L.Rs and others v. Jindwadda Shah and others, 2005 SCMR 1518 and Abdul Rashid v. Muhammad Yasin and another, 2010 SCMR 1871 rel.

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

----O. II, R. 2---Suit to include the whole claim---Scope---Every suit should include the whole of the claim which the plaintiff was entitled to make in respect of cause of action and where a plaintiff had omitted to sue in respect of or intentionally relinquished any portion of his claim then he should not afterwards sue in respect of the portion so omitted or relinquished and a person entitled to more than one relief in respect of same cause of action might sue for all or any of such reliefs but if he had omitted to sue for all such reliefs except with the leave of the court then he should not afterwards sue for any relief so omitted.

----"Cause of action"---Meaning---Cause of action would refer to every fact which if traversed it would become necessary for the plaintiff to prove in order to support his right.

Badar Alam Khan for Applicant.

Muhammad Naseem for Respondent No.1.

Muhammad Farooq for Respondent No.2

Respondent No.3 called absent.

Muhammad Muzaffar for Respondent No.4.

Date of hearing:6th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1633 #

2014 Y L R 1633

[Sindh]

Before Shahnawaz Tariq, J

GHULAM SHABIR---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-17 of 2014, decided on 14th March, 2014.

Penal Code (XLV of 1860)---

----S. 380---Theft in dwelling house---Appreciation of evidence---Benefit of doubt--- Statements of prosecution witnesses, were suffered from material contradictions, and glaring discrepancies which had shaken the entire structure of the prosecution story---Evidence adduced by the prosecution, had revealed the variations, dissimilarities and discrepancies in the statements of prosecution witnesses, which were self-contradictory, which could not be ignored in any manner; particularly fluctuating versions of the complainant, were fatal to the truthfulness of the prosecution case---Defence had successfully caused various dents in the entire prosecution story, which created serious doubts for consideration in favour of the defence---Prosecution having failed to bring guilt of accused at home, accused was acquitted from the charge, and was released, setting aside judgment passed by the Trial Court, extending accused benefit of doubt.

Abdul Sattar and others v. The State 2002 PCr.LJ 51 ref.

Zahid Mallah for Applicant.

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

Date of hearing: 21st February, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1654 #

2014 Y L R 1654

[Sindh]

Before Aqeel Ahmad Abbasi and Sadiq Hussain Bhatti, JJ

Pir OMAR KHAYYAM---Appellant

Versus

Mrs. RUBY HAMEEDULLAH and 7 others---Respondents

H. C. A. No.204 of 2010, decided on 29th January, 2013.

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

----O. XL, R.1---Arbitration Act (X of 1940), S. 34---Specific Relief Act (I of 1877), Ss.8, 42 & 54---Suit for declaration, possession, mesne profits and permanent injunction--- Receiver, appointment of---Scope---Subject-matter of suit being properties left by deceased parents of parties---Plaintiffs (sisters) claimed their sharia share in such properties, while defendant (brother) claimed to be sole owner thereof on basis of oral gift by his parents---Reference of dispute to arbitration during pendency of suit---Plaintiffs application to Arbitrator seeking restraining order against defendant not to collect rent from tenants without their consent---Arbitrators' directions to plaintiffs to approach court for such relief resulted into filing of second suit by plaintiffs---Defendant's application under S. 34 of Arbitration Act, 1940 seeking stay of second suit during pendency of arbitration proceedings---Order of Trial Court while staying second suit appointed Nazir as Receiver for collecting rents from tenants and restrained defendant from collecting future rent while directed him to submit to Nazir accounts of rent of suit properties received by him---Validity---Plaintiffs and defendant had asserted rival claims regarding suit properties, which were still standing in names of their parents---Plaintiffs' purpose to file second suit was to safeguard their interest with regard to rents received by defendant---Such rival claims of parties would be decided on basis of evidence to be adduced by them before Arbitrator -- Party seeking appointment of Receiver in respect of suit property would be bound to make out a prima facie title thereto---Bona fide dispute existed between parties---Plaintiffs had prima facie case at present stage---Appointment of Receiver till passing of award by Arbitrator would be in benefit of party who would succeed before Arbitrator---High Court dismissed defendant's appeal in circumstances.

Ishwara Joisha v. Saraswathi Amma and others AIR 1959 Maysore 35 (V 46 c 12) and Lala Rosha Lal and other's v. Ch. Muhammad Afzal and others PLD 1949 Lahore 60 ref.

Amarnath v. Mt. Tehal Kuar AIR 1922 Lah. 444; Mahendra H. Patel v. Ram Narayan Singh AIR 2000 SC 3569; Srinivasa Rao v. Baburao and another AIR 1970 (sic) 141; Subramania Odear and others v. Govindamal and another AIR 1994 NOC 213(Mad.); Salma Majhi and another v. Bija Majhi and others AIR 2004 Orissa 46 and Ishwara Joisha v. Saraswathi Amma and others AIR 1959 Maysore. 35 (V 46 c 12) rel.

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

----O. XL, R. 1---Receiver, appointment of---Principle---Party seeking appointment of receiver in respect of suit property would be bound to make out a prima facie title thereto.

Malik Naeem Iqbal for Appellant.

Ms. Sofia Saeed Shah and M. Hasan Akbar for Respondents Nos.1 to 4.

Date of hearing 4th December, 2012.

YLR 2014 KARACHI HIGH COURT SINDH 1665 #

2014 Y L R 1665

[Sindh]

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

MUHAMMAD YOUSIF TANIO and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-71 and Criminal Jail Appeal No.D-82 of 2011, decided on 17th December, 2013.

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

----S. 9(c)---Recovery of narcotic substance---Appreciation of evidence---Delay in sending samples---Police witnesses---Effect---Charas weighing 9 Maunds and 30 kilograms (390 kgs) was recovered from vehicle in which all three accused were present---Trial Court convicted all three accused and sentenced them to imprisonment for life---Plea raised by accused was that there was unexplained delay of four days in sending samples to laboratory and all recovery witnesses were police officials---Validity---Held, it was not requirement of law that whole contraband material should be sent for chemical examination for opinion of Chemical Examiner, only a portion was to be sent---Delay of four days in sending samples could not be treated as fatal in absence of objections regarding the same having been tampered with or manipulated---Sample was sent to Chemical Examiner after four days of recovery but from evidence of complainant and investigating officer no question was put to any of them as to where the sample was lying during those four days---Such delay in sending samples was immaterial and did not adversely affect prosecution case---Though prosecution witnesses had given different weight of allegedly recovered contraband material than the one disclosed in F.I.R. but on the basis of such difference in weight alone it could not be said that no recovery was effected from accused and they could not claim acquittal in such a heinous offence involving capital punishment---Evidence of police officials could not be disbelieved as a whole merely because of their being police officials until and unless some mala fide or enmity was brought on record to indicate false implication of accused in case, which factor was missing---Trial Court did not commit any illegality while convicting accused persons---High Court maintained conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Tariq Pervez v. The State 1995 SCMR 1345; Iltaf Hussain v. The State 1996 SCMR 167; Muhammad Ilyas v. The State 1997 SCMR 25; Muhammad Mansha v. The State 1997 SCMR 617; Jamil Shah v. The State 1997 SCMR 1494; Javed Akhtar v. The State 1998 PCr.LJ 1462; Allah Bakhsh v. Ghulam Rasool, 1999 SCMR 223; State v. Nazir Ahmad, 1999 SCMR 610; Jehangir v. Nazar Farid, 2002 SCMR 1986; Muhammad Saeed v. The State 2002 MLD 91; Muhammad Irshad v. The State 2002 PCr.LJ 1541; Muhammad Azad v. Ahmad Ali, PLD 2003 SC 14; Ghaus Bux v. The State PLD 2004 Kar. 201; Ansar-ul-Islam v. The State PLD 2005 Kar. 146; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Jamil v. The State 2010 MLD 1586; Muhammad Aslam v. The State 2011 SCMR 820 and Amjad Ali v. The State 2012 SCMR 577 distinguished.

Wasal Khan v. The State PLD 1994 (FSC) 37; Muhammad Akram Khan v. The State 1996 PCr.LJ 843; Ghaus Bux v. The State PLD 2004 Kar. 201; Muhammad Hashim v. The State PLD 2004 (SC) 856; Muhammad Younis Lakhani v. The State PLD 2006 Kar. 198; Niaz-ud-din v. The State 2007 SCMR 206; Mitha Khan v. The State 2007 PCr.LJ 426; Nazar Hussain v. The State 2007 YLR 1601; Muhammad Mushtaque v. The State 2008 SCMR 742; Eran Gul v. The State 2009 YLR 646; Ghulam Murtaza v. The State PLD 2009 Lah. 362; Shahzada v. The State 2010 SCMR 841; Muhammad Noor v. The State 2010 SCMR 927; Muhammad Janas v. The State 2010 SCMR 1016; Muhammad Aslam v. The State, 2011 SCMR 820; Meharban v. The State 2011 PCr.LJ 8; Amjad Ali v. The State 2012 SCMR 577 and Ameer Zeb v. The State PLD 2012 SC 380; Tariq Mehmood v. The State PLD 2009 SC 39 and Gul Alam v. The State through Advocate General, N.W.F.P. 2011 SCMR 624 ref.

Altaf Hussain Surahio for Appellants (in Criminal Appeal No.D-71 of 2011).

Abdul Baqi Jan Kakar for Appellant (in Criminal Jail Appeal No.D-82 of 2011).

Imtiaz Ali Jalbani, Assistant Prosecutor-General for Respondent.

Date of hearing: 11th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1679 #

2014 Y L R 1679

[Sindh]

Before Syed Muhammad Farooq Shah, J

RASOOL BUX and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-166 of 2009, decided on 31st January, 2014.

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

----Ss. 302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Material contradictions were noticed between ocular testimony and medical evidence---Counter-versions of motive were put forth from both the sides---Recovery witnesses of crime weapons were relatives of the deceased---Recovery of crime weapon, had not been established---Element of the requisite corroboration and nexus between accused and the crime, was lacking---Prosecution story was not trustworthy, and the deposition of alleged eye-witnesses were not beyond the shadow of reasonable doubt---Recovery of weapon of offence made on the pointation of accused, was held to be inconsequential as no positive report was from Forensic Science Laboratory---Evidence of prosecution witnesses had been recorded by the Police at belated stage without furnishing any plausible explanation---Prosecution without showing any explanation of non-availability of independent person of the locality, examined witness, who was inimical to accused---Benefit of all favourable instances in the prosecution evidence, must go to accused, regardless to the fact as to whether he had taken any such defence plea or not---Prosecution evidence appeared to be not trustworthy, nor consistent to establish accusation against accused---False implication of accused in the case due to their strained matrimonial relations with the deceased; and her parents, and their involvement in the case due to animosity with the complainant party, could not be brushed aside---Conviction could not be based on any other evidence, unless direct or substantive evidence was available, and the guilt of accused could not be based on high probability that could be inferred from evidence in a particular case---Accused were languished in jail since last more than 12 years period without remission period, if applicable---One of accused was of about 80 years of age---Both accused persons were found in merciful condition---Conviction and sentence awarded to accused persons, were set aside, extending them benefit of doubt, they were acquitted of the charges and were released, in circumstances.

Ghulam Shabbir and others v. The State 2008 PCr.LJ 1131; Faryad Ali v. The State 2008 SCMR 1086; Rahat Ali v. The State 2010 SCMR 584; Sultan and others v. The State 1987 SCMR 1177; PLD 1973 SC 418 and 2011 SCMR 664 ref.

(b) Criminal trial---

----Medical evidence--- scope--- Medical evidence was a type of supporting evidence, which could confirm the ocular account with regard to receipt of injury and nature of the injury, kind of weapon used in the occurrence.

PLD 2009 SC 53; 2008 SCMR 1103 and 2009 SCMR 1410 ref.

----Benefit of doubt---Entitlement---If a simple circumstance would create reasonable doubt in a prudent mind about the guilt of accused, he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Saeed v. The State 2008 PCr.LJ 1752; Ghulam Murtaza v. The State 2010 PCr.LJ 461 and Farzand Ali v. The State 2012 MLD 882 rel.

Amjad Ali Sahito for Appellants.

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

Date of hearing: 23rd January, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1689 #

2014 Y L R 1689

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

STANDARD CHARTERED BANK LIMITED through Attorney---Petitioner

Versus

KARACHI MUNICIPAL CORPORATION through Administrator, Karachi

and 7 others---Respondents

Constitutional Petition No.2402 of 2013, decided on 10th March, 2014.

(a) Pleadings---

----Pleadings---Scope---Party cannot be permitted to argue the case beyond its pleadings to disadvantage of other party.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Earlier decision of the High Court on same set of facts and legal controversy---Effect---Petitioner was a banking company and was aggrieved of construction of high-rise building having ground plus 17 stories---Points raised by petitioner had already been decided by Division Bench of High Court in an earlier petition filed by the petitioner---Effect---Judgment of Division Bench of High Court, wherein a question of law had been decided on the same set of facts, was binding on subsequent bench---Party to proceedings could not be allowed to re-open or re-agitate same legal controversy time and again in an attempt to have such settled legal issues, directly or indirectly altered or changed by another Division Bench of same High Court---Karachi Metropolitan Corporation was not lessor of plot in question and there had been no change or conversion of land use---Petition was dismissed in circumstances.

Zaheer Ahmed Chaudhry v. City District Government, Karachi 2006 YLR 2537; Mst. Ummatullah v. Province of Sindh PLD 2010 Kar. 236; Province of East Pakistan v. Nur Ahmed PLD 1964 SC 451; Nighat Jamal v. Province of Sindh 2010 YLR 2624; Farooq Hamid v. LDA and others 2008 SCMR 468; Shehri C.B.E. v. Government of Pakistan PLD 2007 Kar. 293; Standard Chartered Bank Limited v. Karachi Municipal Corporation in C.P. No. D-3851 of 2012; Ava Ardeshir Cowasjee and others v. Karachi Municipal Corporation and others C.P. No. D-3496 of 2013; Zaheer Ahmed Chaudhry v. City District Government, Karachi 2006 YLR 2537; R.G. Sehwani Co-operative Housing Society Ltd. v. Haji Ahmad and others PLD 1983 Kar. 11; Mir Sahib Jan v. Janan 2011 SCMR 86; Ardeshir Cowasjee and 7 others v. Karachi Building Control Authority (KBCA) through Chief Controller of Buildings, Karachi and 3 others PLD 2006 Kar. 63; Jawad Mir Muhammad and others v. Haroon Mirza and others PLD 2007 SC 472; Sheikh Naeem Ahmed and others v. Province of Sindh and others 2006 CLC 1231; Jawad Mir Muhammad and others v. Haroon Mirza and others PLD 2007 SC 472; Youth Enrichment Network (Pvt.) Limited v. Karachi Building Control Authority through Chief Controller of Buildings and another 2009 CLC 484; Ghulam Haider v. Muhammad Ayub 2001 SCMR 133; Nighat Jamal v. Province of Sindh and others 2010 YLR 2624; Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236; Abdul Wakeel v. EDO Revenue Karachi and others in C.P. No. D-216 of 2009; Sheri-C.B.E. and others v. Lahore Development Authority and others 2006 SCMR 1202; Clarissa James and another v. S.I.S. Builders and Developers and others C.P. No D-2924 of 2011; Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Kar. 498 and Salim Godil v. Province of Sindh in C.P. No. D-1272 of 2010 ref.

Abdur Rehman for Petitioner.

S. Sultan Ahmed for Respondent No. 1.

Ms. Afsheen Aman for Respondent No.2

Kazi Bashir, A.A.-G. for Respondent No. 3.

Ameer Hussain for Respondent No.4.

Habibur Rehman Solangi, Assistant Director Law for Respondent No. 7.

Khawaja Shamsul Islam for Respondent No. 8.

Ahmed Pirzada for Board of Revenue.

Date of hearing: 23rd December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1723 #

2014 Y L R 1723

[Sindh]

Before Muhammad Junaid Ghaffar, J

AHMED NAWAZ SOLANGI and another---Applicants

Versus

COURT OF SPECIAL JUDGE-ANTI-CORRUPTION (CENTRAL), HYDERABAD and another---Respondents

Criminal Bail Application No.S-258 of 2014, decided on 31st March, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss.409 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, abetment, criminal misconduct---Bail, grant of---Accused persons allegedly forced a contractor/complainant to pay them bribe for awarding government contracts---To support allegation of paying bribe, statements of two prosecution witnesses were recorded, however such statements were in contradiction to the version of the contractor/complainant inasmuch as place of incident as well as amount of alleged bribe were materially different---Said prosecution witnesses were either employees of the contractor and/or his friends, therefore they were not independent witnesses---Since offence alleged involved misappropriation of funds and award of contracts, therefore it was incumbent upon the prosecution to at least bring on record some documentary material to implicate accused persons---Prosecution, however, failed to bring on record any documentary evidence except oral statements of prosecution witnesses---Two persons who had allegedly encashed a cheque of the bribe amount were not implicated either as accused or as witness and no statements of said persons had been recorded under S. 161, Cr.P.C.---F.I.R. was lodged after a delay of about 5 years without any reason, hence case of prosecution became doubtful---Case against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused per-sons were admitted to bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Misappropriation and plunder of public money by accused-government servant--- Bail--- Scope---Sufficient material in evidence---Merely on basis of allegation of misappropriation and plunder of public money, bail could not be withheld as a punishment until and unless sufficient material was available on record, whereby the accused-government servant could prima facie be said to be involved in commission of such crime.

----S. 497(1)---Bail---Prohibitory clause of S.497(1), Cr.P.C.---Applicability---Offence providing alternative punishments---At bail stage, the lesser of the two (alternative) punishments was to be taken into consideration in applying the prohibitory clause under S.497(1), Cr.P.C.

Barrister Mohsin Shahwani alongwith Mumtaz Ali Soomro for Applicants.

Zahoor A. Baloch, D.A.G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 1736 #

2014 Y L R 1736

[Sindh]

Before Shahnawaz Tariq, J

SHAUKAT ALI MANGRIO---Applicant

Versus

CIVIL JUDGE AND JUDICIAL MAGISTRATE NO.VII, HYDERABAD and 2 others---Respondents

Criminal Miscellaneous Application No.S-470 of 2013, decided on 10th February, 2014.

Penal Code (XLV of 1860)---

----Ss. 175, 217 & 218---Sindh Arms Act (XX of 2013), S.23-A---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Criminal Procedure Code (V of 1898), Ss.561-A & 190---Omission to produce document to public servant by person legally bound to produce it, disobeying direction of law by public servant, framing incorrect record by public servant, possessing unlicensed arm, possessing and trafficking narcotics---Application for quashing of order---Applicant, (S.H.O.) had sought setting aside of order passed by Judicial Magistrate, whereby he had ordered for issuance of show-cause notice for contempt proceedings against applicant regarding non-submission of list of witnesses---Magistrate under S.190, Cr.P.C. was competent to take cognizance of an offence committed, brought to his knowledge in writing, or orally; and such complaint could be initiated against the respective accused---Present was a glaring case of neglect and failure of compliance of mandatory provisions of law to produce lists of witnesses in the cases as directed by concerned Magistrate---Deviation of applicant for non-compliance of subject order amounted to frustrate the foundation stone of the scheme of administration of criminal justice; which was based upon fair, impartial and transparent investigation of the offence, duly registered by the State functionaries; and it must be carried out strictly in accordance with the relevant provisions of law---Applicant/S.H.O. could not point out any kind of inimical attitude and personal grudge of Magistrate against him---Impugned order passed by the Magistrate against applicant could not be termed as non-speaking, perverse, or capricious order---Magistrate, however, would not conduct further proceedings in that context; and he could file direct complaint on the strength of entire available record, before the court of competent jurisdiction.

2007 PCr.LJ 1515; PLD 2007 Kar. 243; 2001 PCr.LJ.199; 2000 YLR 2857; 2000 PCr.LJ 43; Muhammad Akber v. The State 1972 SCMR 335; Falak Sher v. The State PLD 1967 SC 425; Ch. Muhammad Aslam v. C.P.O. Rawalpindi and others, 2011 PCr.LJ 1870; Zafarullah and another v. The State PLD 2012 Sindh 406 and Manzoor Akber Turk v. Raja Ashique Hussain and 6 others 2008 MLD 728 ref.

Ghulamullah Chang for Applicant.

Shahid Ahmed Shaikh, Assistant P.G. for Respondent.

Date of hearing: 20th January 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1754 #

2014 Y L R 1754

[Sindh]

Before Aziz-ur-Rehman, J

SHAHID ALI KHAN---Petitioner

Versus

HAMID SIDDIQUI and 2 others---Respondents

Constitutional Petition No.S-1395 of 2011, decided on 22nd November, 2013.

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

----S.18---Notice---Scope---Such notice by itself does not create tenancy between the parties.

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

----S.42---Mutation---Scope---Mutation is not a conclusive proof of title.

Tahir Ikramullah and 29 others v. Mst. Zubaida Khanum 2002 MLD 334 rel.

----S.15---Transfer of Property Act (IV of 1882), S.53-A---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment of tenant---Part performance, principle of---Applicability---Petitioner claimed to have purchased premises in question from its owner and sought ejectment of tenant---Validity---Merely by entering into agreement of sale, petitioner did not acquire any title to demised premises nor doctrine of part performance in terms of section 53-A of Transfer of Property Act, 1882, applied---Petitioner only could get a right to compel the other party to execute a "sale deed" in respect of property---Unless and until such "sale deed" was actually executed by owner, who had entered into such contract, petitioner could not be said to have acquired any ownership over the property---Petitioner failed and or avoided to produce alleged agreements of sale in evidence---Petitioner failed to point out any significant portion of evidence which was not considered by two Courts below---Question of non-reading and or mis-reading of evidence did not arise---Petitioner failed to prove his ownership or entitlement for receiving of rent---High Court declined to interfere in orders passed by two Courts below---Petition was dismissed in circumstances.

Baboo Din v. Nasroo 1995 MLD 1460; Rafiq Ahmad through General Attorney v. Rent Controller, Jacobabad and 3 others 2006 CLC 989; Mst. Surayia Begum v. Sardar Saeed Ullah 2006 CLC 994; Qaimuddin v. Ghulam Shah 1993 CLC 336; Messrs Habib Bank Ltd. v. Sultan Ahmed and another 2001 SCMR 678; Mehboob Akber Alvi v. Mst. Ayesha sultana 1998 CLC 894; Hameed and 3 others v. Jitendra and 2 others 2010 CLC 561; Habib Khan v. Haji Haroon-ur-Reshid 1989 CLC 783 and Qamar Zaman v. IInd Additional District Judge, Karachi and another 2008 CLC 431 distinguished.

Probodh Kumar Das and others v. Dantmara Tea Co. Ltd. and others AIR 1940 PC 1; Bachu Bai F.E. Dinshaw v. Commissioner of Income Tax PLD 1967 Kar. 372; Khawaja Amaar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Karachi 74 and T.V. Kochuvareed and another v. V.P. Mariappa Goundar and others AIR 1954 Travancore Cochin 10 rel.

Sohail H.K. Rana for Petitioner.

Rab Nawaz Qureshi for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 30th October, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1769 #

2014 Y L R 1769

[Sindh]

Before Shaukat Ali Memon, J

RAJAB---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.614 of 2013, decided on 16th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Sindh Arms Act ( V of 2013), Ss. 8 & 23(2)---Possession of firearm---Bail, grant of---Accused below 25 years of age---Effect---Mashirnama of arrest showed that accused was 20 years old---In such circumstances joint reading of Ss. 8 & 23 of Sindh Arms Act, 2013 showed that offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was granted bail accordingly.

Mir Naeem Talpur for Applicant.

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

Date of hearing: 6th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1776 #

2014 Y L R 1776

[Sindh]

Before Hasan Feroz, J

MUHAMMAD IQBAL---Petitioner

Versus

ABDUL HAFEEZ KHAN and 2 others---Respondents

Criminal Revision No.59 of 2013, decided on 28th March, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 10 & S. 92---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Return of plaint---Scope---Defendant moved an application for return of plaint which was dismissed with cost of Rs.10,000---Validity---Permission under S.92, C.P.C. had been granted by Advocate-General and no cause was in field as to the legality of institution of present suit by a religious trust---Party had right to move an application under the law and imposition of cost of Rs. 10,000 was liable to be waived---Revision petition was dismissed in circumstances.

SBLR 2003 Sindh 246 ref.

Taj Fareed Khan for Applicant.

Liaquat Ali Hamid for Respondents.

Date of hearing: 10th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1784 #

2014 Y L R 1784

[Sindh]

Before Abdul Maalik Gaddi, J

ASHIQUE MUHAMMAD alias ASHIQUE ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-414 of 2013, decided on 5th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.409, 34 & 477-A---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, common intention, falsification of accounts, criminal misconduct---Interim pre-arrest bail, confirmation of---Accused was an official of the education department and allegation against him was that he deposited salaries of his staff in his personal account and then misappropriated the same---F.I.R. was lodged after a delay of almost six years without any satisfactory explanation, therefore false implication of accused on such ground alone could not be ruled out---Accused was facing investigation for the last more than 2 months but no charge-sheet had been submitted in court---Offences alleged against accused were either bailable or their punishments did not fall within the prohibitory clause of S. 497, Cr.P.C. except S. 409, P.P.C., applicability of which would be determined at trial---Arrest of accused would cause him harassment and he would not only lose his liberty but also his service before conclusion of trial---No fruitful results could be achieved by refusing bail to accused---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

Muhammad Dilpazeer v. The State 1984 PCr.LJ 2400 rel.

Muhammad Ismail Chandio, for Applicant.

Zulifqar Ali Jatoi, D.P.G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 1787 #

2014 Y L R 1787

[Sindh]

Before Shahnawaz Tariq, J

FAKEER MUHAMMAD---Petitioner

Versus

ABDUL JABBAR and 2 others ---Respondents

Constitutional Petition No.S-34 of 2013 and M.A. No.266 of 2014, decided on 28th February, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Sindh Rented Premises Ordinance (XVII of 1979), S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Eviction order of tenant, setting aside of---Misrepresentation and fraud---Locus standi--- Aggrieved person--- Scope---Contention of applicant was that he was real son of tenant who was abnormal and was co-sharer in the demised premises but no notice was served upon him---Application was dismissed concurrently---Validity---No document was on record to establish that applicant (tenant) was co-sharer in the demised premises and was mentally disabled---Landlord being owner of suit property let out the same to the tenant through tenancy agreement and applicant being son of tenant was residing with him along with his mother and sisters---Relationship of landlord and tenant existed between both of them and applicant (son of tenant) in his personal capacity had no locus standi to file the present application under S.12(2), C.P.C.---Applicant had no cause of action during the life time of tenant with whom he was residing to agitate the impugned order passed by the competent court---Despite service of notice tenant did not appear before the Rent Controller and eviction application was accepted in his absence---Execution petition had been filed against the tenant in which notice had been issued but tenant had not challenged ejectment order before any forum till date---Section 12(2), C.P.C. had provided adequate remedy to an aggrieved person for setting aside judgment or order obtained through misrepresentation and fraud but such remedy was not open for the party which would neither fall within the ambit of an "aggrieved person" nor had any legal character and locus standi to step-in in the proceedings either pending or disposed of if judgment or order was not obtained by misrepresentation and fraud---Person who was neither a party to the earlier proceedings nor had any vested right in the dispute in question could not seek the remedy by invoking the jurisdiction of court under S. 12(2), C.P.C.---Applicant had neither any locus standi nor legal character to challenge the impugned eviction order as there was nothing on record to establish that by committing misrepresentation and fraud upon the court landlord had obtained the same---Constitutional petition was not maintainable which was dismissed in circumstances.

Muhammad Shafi Kashmiri for Petitioner.

Rana Suhail Mehmood for Respondent No.1.

Ch. Bashir Ahmed A.A.G. for the State.

Date of hearing: 31st January, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1791 #

2014 Y L R 1791

[Sindh]

Before Hasan Feroz, J

HASSAN---Applicant

Versus

GHULAM HUSSAIN and 9 others---Respondents

Criminal Revision Application No.250 of 2012, decided on 27th March, 2014.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5---Illegal possession of property---Cognizance of offence---Investigation and procedure---Provisions of Illegal Dispossession Act, 2005, being a special law, was only applicable in cases, wherein the person complained against was found to be not having title thereto (property); that he had taken possession by use of force; that he had taken over the property without due course of law; and that such person or persons belonged to group of land grabbers---Application/ complaint under Illegal Dispossession Act, 2005, could only be entertained, if there was prima facie material against nominated accused---Civil nature dispute, in no way could be allowed to be converted into criminal offence---Provision of S.3 of Illegal Dispossession Act, 2005, was applicable only to land grabbers---Court was required to examine as to whether case had been made out attracting the provision of the S.3 of the Act; that the property was movable property; that the person was the owner of the property, or same was in his lawful possession; that accused entered into or upon property unlawfully; and that such entry was with the intention to dispossess.

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

----Ss. 200, 202 & 203---Private complaint, recording of---Complaint was just a statement of allegation to set the law in motion---Failure to furnish details of the occurrence, would not by itself mean that what was stated at the trial subsequently was false or baseless---No specific form was prescribed in law so as to put in motion the criminal law through a complaint---Essential requirement of S.200, Cr.P.C., was that the substance of the complaint would be reduced to writing; and would be signed by the complainant---Section 200, Cr.P.C. had made it clear that the examination of the complainant could only succeed, and not precede the taking of cognizance, for it was an act to be done after taking of cognizance---Law did not require that the court on receipt of a direct complaint must hold preliminary inquiry---If a prima facie case was made out, court could take cognizance of the same after examination of the complainant on oath; and if no such case was made out, court was competent to dismiss the same---Private complaint could be dismissed at preliminary stage under Ss.203, 204, Cr.P.C.---Accused could also be acquitted, and private complaint could be dismissed by the Sessions Court at any stage of trial---Provisions of S.200, Cr.P.C., in no manner bind the court to record the evidence of complainant, despite the fact that the accusations made in the complaint, would not constitute an offence, or the act complained of was not an offence at the time of occurrence---Provisions of S.202, Cr.P.C. were enabling provisions and not obligatory---Court was competent to dismiss the complaint under S.203, Cr.P.C., if no sufficient grounds were available for proceedings by briefly recording the reason for doing so.

PLD 1960 Dacca 631; 2001 PCr.LJ 914; PLD 2006 Kar. 221; 2007 PCr.LJ 891; 2011 PCr.LJ Lah. 487 and Zahoor Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Samsam Ali Raza for Applicant.

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

Date of hearing: 14th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1803 #

2014 Y L R 1803

[Sindh]

Before Abdul Maalik Gaddi, J

HASSAN PERVEZ---Appellant

Versus

SHEHZAD AYUB and another---Respondents

Civil Appeal No.27 of 2013, decided on 3rd February, 2014.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount---Failure to fulfil the condition on which leave to defend was granted---Effect---Defendant failed to furnish security after leave to defend was granted conditionally---Application for extention of time was rejected and suit was decreed by Trial Court---Validity---Person who did not obey the lawful order of the court, had no right to contest the matter---Failure of defendant to comply with order of the Trial Court, justified the court to decree the suit---Defendant undertook to deposit the decretal amount with the Appellate Court but deposited indenture of the lease of a property instead---Appellant had filed appeal to prolong executions and obtain undue benefit of the money payable by the defendant---"One who seeks equity must do equity"---Equity moved to the aid of law and not to defeat law---Equitable relief could not be granted to the person whose claim rested upon illegality or mala fide---Appeal was dismissed for being devoid of merits. [pp. 1807, 1808] A & B

Sher Ali Akhtar v. Messrs Habib Bank Limited and another 1992 CLC 1964; Manzoor Ahmed v. Muhammad Iqbal 1994 SCMR 560; Agha Jee Cotton Factory v. Hakim Trading Company Rahimyar Khan 1995 CLC 302; Hazoor Bakhsh v. Ghulam Farid 1996 MLD 704; Syed Sharaf Ali Shah v. Syed Liaquat Ali Shah 2000 CLC 1646; Zahoor Ahmed v. Asif Hussain 2001 MLD 1759; Balooch Akbar Khan v. Muhammad Hussain and another 2004 CLC 356; Muhammad Ali Nawaz v. Sh. Muhammad Aslam PLD 2010 Lah. 219; Muhammad Ramzan and others v. Ghulam Qadir 2011 SCMR 659 and Messrs Industrial Air Control (Pak) (Pvt.) Limited, Karachi and 2 others v. Messrs Alpha Insurance Company Ltd. 1994 CLC 1526 ref.

Muhammad Jaffar v. The State PLD 1984 Kar. 127 and Iftikhar Ahmad v. Muhammad Younus Khan 1982 CLC 2114 rel

(b) Equity---

----Principle---One who seeks equity must do equity---Equity moved in the aid of law and not to defeat law---Equitable relief could not be granted to the person whose claim rested on illegality or mala fide.

Raja Masood Ahmed Qazi, for Appellant.

Ch. A. Rasheed for Respondent No.1.

YLR 2014 KARACHI HIGH COURT SINDH 1828 #

2014 Y L R 1828

[Sindh]

Before Abdul Rasool Memon, J

ZULFIQAR ALI---Appellant

Versus

Mrs. WAJIHA SALEEM---Respondent

F.R.A. No.23 of 2012, decided on 3rd July, 2013.

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

----Ss. 17 & 2 (g)---Ejectment petition---Competency---Contention of landlord was that premises was required for his personal bona fide need whereas tenant contended that attorney was not competent to apply for ejectment on the ground of personal need of the owner---Ejectment petition was accepted by the Rent Controller---Validity---Tenant had admitted that the applicant was landlady but was not owner of the demised premises---Tenancy agreement was signed by the landlady with the tenant---Tenant used to pay rent to the landlady and relationship of landlord and tenant existed between the parties---Tenant could not dispute the ownership of original owner and also the relationship of landlord and tenant with the present landlady---Landlord/landlady in order to prove the personal need could examine his attorney and there was no compulsion that he must appear in the witness box---Non-appearance of landlord/landlady and his representation through attorney was not fatal for him---Nothing had been brought on record by the tenant that due to non-appearance of owner of the property injustice had been done to him---No question was put during cross-examination to the landlady by the tenant with regard to execution of power-of-attorney and personal need of original owner---Where pivotal/specific portion of the evidence went unrebutted and unchallenged in cross-examination, the same was deemed to have been admitted---Landlady had succeeded in leading reliable and sufficient evidence to prove that demised premises was required in good faith for personal need of original owner---Appeal was dismissed in circumstances.

Mst. Noor Jehan Begum through L.Rs. v. Mujtaba Ali Naqvi 1991 SCMR 2300; Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 and Javed Ahmed v. Muhammad Imran Malik PLD 2011 Isb. 30 rel.

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

----S.2(g)---"Landlord"---Meaning---Person entitled to receive rent in respect of any building whether on his own account or for the benefit of another person for the time being deriving title from the landlord could be termed as "landlord".

M. Ilyas Khan Tanoli for Appellant.

Dildar M.S. Shaikh for Respondent.

Date of hearing: 20th May, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1840 #

2014 Y L R 1840

[Sindh]

Before Sadiq Hussain Bhatti, J

ZARDULLAH KHAN---Appellant

Versus

Mst. RUQIYYA HANIF MANIAR and 5 others---Respondents

IInd Appeal No.18 of 2010, decided on 25th November, 2013.

(a) Administration of Justice---

----Party has to succeed on the strength of his own case and not on the weakness of the other.

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

----O.IX, R.11---Ex parte proceedings---Duty of court---When a case is being decided ex parte, a duty is cast upon the Court to ensure that no injustice is done to such party due to his absence only.

----S.12---Civil Procedure Code (V of 1908), S.100---Suit for specific per-formance of agreement to sell---Possession in consequence of agreement---Effect---Plaintiff claimed to be in possession of suit property in consequence of agreement to sell but both the Courts below had dismissed the suit and appeal---Validity---Plaintiff claimed to be in possession of suit property after payment of Rs.400,000 to defendant and such aspect was not considered by Courts below and it was important to decide as to plaintiff was put in possession in consideration of payment of amount paid by plaintiff or was in possession on some other count---When a person was put in possession of some immovable property in consequence of a sale agreement, presumption would be that he had validly entered into such agreement---High Court directed that parties should be allowed to adduce evidence so that question of possession after payment of money could be answered properly---High Court set aside the judg-ments passed by two Courts below and case was remanded to Trial Court to decide the case afresh---Second appeal was allowed in circumstances.

Mrs. Naghma Nawab v. Waseem Nawab 2010 YLR 2372 ref.

Khaleeq Ahmed for Appellant.

Nemo for Respondent.

Date of hearing: 18th November, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1853 #

2014 Y L R 1853

[Sindh]

Before Farooq Ali Channa, J

Meer MUHAMMAD SHAFIQ---Petitioner

Versus

JAMIA MASJID HANFIA through Chairman and 2 others---Respondents

Constitutional Petition No.S-1079 of 2012, decided on 24th March, 2014.

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

----Ss. 8, 13, 16 & 21---Eviction petition---Relationship of landlord and tenant---Tenant contended that court was bound to determine the relationship of landlord and tenant before making order of eviction---Validity---Tenant having not disputed arrears of rent or withdrawal of rent by landlord, could not seek decision on question of relationship---Defence of tenant was struck off for non-compliance of S.16(1) of the Sindh Rented Premises Ordinance, 1979---Judgments of court below did not suffer from any illegality---Constitutional petition was dismissed.

Abdul Jabbar for Petitioner.

M. Rafi Kamboh for Respondent No.1.

Date of hearing: 24th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1901 #

2014 Y L R1901

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD ESSA GODIL through L.Rs. and 3 others--Petitioners

Versus

Mst. SITARA JAMIL and 2 others---Respondents

Constitution Petition No.809 of 2009, decided on 7th February, 2014.

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

---Ss. 15 & 18---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Eviction petition by the co-owner of the premises---Default in payment of rent---Bona fide personal need of landlady---Payment of Pagri by the tenant---Effect---Contention of tenants was that without permission/consent of other legal heirs of deceased landlord the ejectment petition was incompetent---Ejectment petition was accepted concurrently---Validity---Filing of ejectment case would amount to notice to the tenant---Tenants in the present case, despite change of ownership failed to pay rent to the new landlady and committed willful default---Constitutional jurisdiction of High Court was limited in rent cases---Demised premises was required by the landlady for personal accommodation---Demand of landlady for vacating the premises could not be called to be inequitable, unjust or otherwise not being bona fide---Concurrent findings of courts below with regard to personal bona fide need and willful default could not be interfered in exercise of constitutional jurisdiction---Admission made in the pleadings, evidence and/or in the cross-examination need not be proved---Such admission would be deemed to be proved and binding on the parties---Portion of statement/deposition of witness not challenged in the cross-examination would be deemed to have been accepted against whom the same was given---Witnesses of landlady were consistent with regard to default in payment of rent and her personal bona fide need---Such portion of deposition with regard to willful default and bona fide need had gone un-challenged during cross-examination---Person who was entitled to receive rent would become landlord and he could file ejectment petition---Relationship of landlord and tenant existed between the parties---Default in payment of rent and bona fide need had been proved by the landlady---Tenants had no right to demand title document from the landlady on receipt of notice under section 18 of Sindh Rented Premises Ordinance, 1979---Tenants were bound to accept new owner as their landlord on receipt of notice---If tenant did not pay rent to the new owner in case of change of ownership then he would be deemed to be defaulter and could be ejected---Findings of both the courts below were in accordance with law and based on evidence---No illegality or infirmity had been pointed out in the impugned judgment/order passed by the courts below---Landlord would also include co-owner and he would also be owner of each and every inch of the property until partition was effected---Co-owner was competent to file rent petition with regard to property jointly owned---Entitlement of landlord to receive rent by such owner could not be questioned after receiving intimation notice by the tenant---Tenants could not deny the ownership of new landlady and their obligation to pay rent to her---Tenants were precluded from denying the title of landlady as "once a tenant always a tenant"---Pagri had no legal sanctity under the law---Tenant could not claim benefit/premium on the basis of Pagri even if same was paid to the previous owner---Pagri was not an advance rent and same could neither be adjusted against the arrears of rent nor it would save the tenant from default in payment of rent---Payment of Pagri did not debar landlord/landlady from instituting rent proceedings on the ground of willful default or bona fide personal need---Tenants were bound to deliver possession of demised premises to the landlady without any objection on their part---Tenants were directed to hand over peaceful possession of demised premises to the landlady within one month---Constitutional petition was dismissed in circumstances.

Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5; Messrs Jodhpur Rajastan Cooperative Housing Society Ltd. v. Mst. Yasmeen Aziz 1997 AC 454; Muhammad Sharif and others v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Hafiz Shafatullah v. Mst. Shamim Johan and another PLD 2004 Kar. 205; Saifullah v. Muhammad Bux and 2 others 2003 MLD 480; Secretary to The Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 othrs PLD 2001 SC 415; Fateh Muhammad through L.Rs. and others v. Fida Hussain Shah through L.Rs. 2007 CLC 1885; Muhammad Hassan and another v. Liaqat Ali Khan 2001 CLC 1743; Nazir Ahmad Khan and 2 others v. Muhammad Ashraf Khan and 3 others PLD 1975 Kar. 598; Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429; Muhammad Ashraf v. Ismail 2000 SCMR 498; Barkat Masih v. Manzoor Ahmad through L.Rs. 2006 SCMR 1068; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 and Abbas Ali Shah and 5 others v. Ghulam Ali and another 2004 SCMR 1342 rel.

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

----S. 2 (f)---"Landlord"---"Landlord" was a person who was owner or entitled to receive the rent of the premises.

----Art. 100---Thirty years old document---Presumption of truth---Thirty years old document had presumption of truth.

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

---Art. 113---Facts admitted need not to be proved---Scope---Admission made by a party and/or his witness in pleadings and/or affidavit-in-evidence would be binding upon such party.

(f) Constitution of Pakistan---

---Art.199---Constitutional jurisdiction of High Court---Scope---Disputed questions of fact could not be gone through/considered by the High Court in exercise of its constitutional jurisdiction.

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

----Ss.15 & 18---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction petition in the grounds of personal bona fide need of landlady----Payment of pagri by tenant---Effect.

Zubeda Moton and Uzma Yousuf for Petitioners.

Muhammad Yaseen Azad for Respondent No.1.

N.R. for Respondents Nos. 2 and 3.

Date of hearing: 16th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1927 #

2014 Y L R 1927

[Sindh]

Before Nadeem Akhtar, J

Malik MUHAMMAD YASEEN---Appellant

Versus

Syed RAZA HYDER and 3 others---Respondents

IInd Civil Appeal No.9 of 2008, decided on 17th April, 2013.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art. 117---Suit for Specific performance of agreement of sale---Defendant's plea was that such agreement was liable for cancellation as plaintiff had violated terms and conditions thereof---Burden of proof Onus to prove such plea would lie on the defendant.

(b) Vested right---

----Merely on basis of presumption or inference, valuable and vested rights of a party could not be decided or taken away or decree validly passed in favour a party by a competent court could not be set aside.

----S. 12---Suit for specific performance of sale agreement---Suit filed two days prior to agreed date for payment of balance amount---Plaintiff's plea was that before agreed date defendant had refused to complete sale in his favour; and that he was apprehending creation of third party interest in property by defendant---Validity---Evidence on record showed that plaintiff had always been ready and willing to pay balance amount, which he had arranged ten days before agreed date and offered same to defendant on several occasions---Suit was decreed in circumstances.

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

----S.12---Contract Act (IX of 1872), S.55---Suit for Specific performance of agreement to sell---Defendant's plea that time was essence of the contract---Validity---Defendant had agreed to provide requisite documents to plaintiff before date specified for completion of sale---Relevant date with reference to which conduct of parties had to be judged in respect of their willingness or otherwise of proceedings with contract would be the date when plaintiff was informed by defendant that such documents had been obtained---Nothing on record to show that defendant had produced such documents or plaintiff had an opportunity of being satisfied that defendant had obtained such documents---Time was not essence of the contract---Suit was decreed in circumstances.

Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala PLD 1962 SC 1; Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952; Muhammad Ayyub Khan v. Ch. Muhammad Aslam and others 1984 CLC 2159; Messrs Pioneer Housing Society (Pvt.) Ltd. v. Messrs Babar and Company through Shakir Ali Khan and 2 others PLD 1999 Lah. 193; Inayat Ali and others v. Siraj Din 1997 SCMR 552; Muhammad Ayub through L.Rs. and others v. Sheikh Muhammad Bashir and others 2008 CLC 1704 and Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385 rel.

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

----S. 54---Sale agreement---Not revocable by vendor unilaterally---Principles.

Muhammad Ayyub Khan v. Ch. Muhammad Aslam and others 1984 CLC 2159 rel.

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

----O. XLI, R. 33---Duty of Appellate Court---Scope---Appellate Court for setting aside judgment and decree of lower court would have to give its own independent and logical reasons therefor.

Karim Bakhsh through L.Rs. and others v. Jindawadda Shah and others 2005 SCMR 1518 and Abbas Ali Shah and 5 others v. Ghulam Ali and another 2004 SCMR 1342 rel.

(g) Judgment---

----Judgment should be speaking and well-reasoned.

Qammer Mehmood Baig for Appellant.

Pirbhulal-U-Goklani for Respondents.

Date of hearing: 13th March, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1944 #

2014 Y L R 1944

[Sindh]

Before Abdul Maalik Gaddi, J

SAEED KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-140 of 2013, decided on 20th September, 2013.

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, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Accused along with the co-accused was alleged to have fired at the injured prosecution witness---Delay of one day in lodging of F.I.R. was explained satisfactorily by the fact that after the incident complainant took the injured persons, who were in serious condition, to the hospital for treatment and observed all legal formalities there before lodging the F.I.R.---Accused was nominated in the F.I.R. with specific allegation of making direct firing at the vital body parts of the injured witness, which was also supported by the medical evidence---Prosecution witnesses in their statements recorded under S.161, Cr.P.C also supported the prosecution case---Delay in recording statements of prosecution witnesses under S. 161, Cr.P.C was explained by the fact that they received serious injuries during the incident---Accused was refused bail in circumstances.

PLD 1989 SC 347; 1996 SCMR 1125; 2002 PCr.LJ 494; 2007 PCr.LJ 987; 2004 PCr.LJ 1785 and 1980 SCMR 784 distinguished.

Habibullah G. Ghouri for Applicant.

Aijaz Ahmed Bhatti for the Complainant.

Miss. Shamim for the State.

YLR 2014 KARACHI HIGH COURT SINDH 1960 #

2014 Y L R 1960

[Sindh]

Before Nazar Akbar, J

MUHAMMAD SHAFIQ through Legal Heirs---Appellants

Versus

MUHAMMAD SULEMAN JAMEEL and 8 others---Respondents

IInd Appeal No.13 of 2010, decided on 30th May, 2014.

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

----S. 21---Civil Procedure Code (V of 1908), 0.1, R. 10--- Ejectment proceedings against tenant---Remedies for a stranger against the order of Rent Controller---Principles---Plaintiff filed suit for declaration to the effect that order of Rent Controller declining his request in the case to become a party was wrong---Validity---Plaintiff preferred an application under 0.1, R. 10, C.P.C. before Rent Controller which was dismissed and no appeal or revision against the said order was filed--- Order passed by the court during civil litigation in exercise of original or appellate jurisdiction could be attacked alongwith final order in appeal---Plaintiff should have filed appeal after final ejectment order and impugned both the orders viz; order of dismissal of application under 0.1, R.10, C.P.C. and final ejectment order---Sindh Rented Premises Ordinance, 1979 was special law and plaintiff had no option except to find remedy under said law---Plaintiff should have instantly filed an appeal or revision or even constitutional petition to press his grievance against the dismissal of his application under 0. 1, R. 10, C.P.C. by Rent Controller---Stranger to the proceedings or third party against the order of Rent Controller might have two remedies open to him i.e. an application under S. 12(2), C.P.C. for recalling or review of the order based on fraud or filing a separate suit but he could only pursue one remedy he had initiated first or. earlier in point of time and having done so the other remedy should stand forfeited---Plaintiff had already entered into jurisdiction of Rent Controller and his right to avail other remedy of a separate suit was forfeited---Plaintiff had chosen wrong forum for filing a civil suit after final ejectment order---Plaintiff should have not abandoned the proceedings before the Rent Controller on dismissal of his application under 0.1, R.10, C.P.C.---Appeal was dismissed in circumstances.

Noor-ul-Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 distinguished.

Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 rel.

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

----0.1, R.10 & S. 12(2)---Remedies for a stranger to proceedings to become a party, where his such application was rejected---Scope---Stranger to the proceedings or third party against the order of Rent Controller might have two remedies open to him i.e. an application under S. 12(2), C.P.C. for recalling or review of the order based on fraud or filing a separate suit but he could only pursue the one remedy he had initiated first or earlier in point of time and having done so the other remedy should stand forfeited.

Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 rel.

Aamir Asher Azeem for Appellants.

Muhammad Younis Khan for Respondents.

Date of hearing: 8th May, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 1984 #

2014 Y L R 1984

[Sindh]

Before Hasan Feroz, J

MUHAMMAD HUSSAIN SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1278 of 2013, decided on 6th December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 34---Foreigners Act (XXXI of 1946), Ss.3(2), 9, 13 & 14--Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, common intention, illegal entry into Pakistan---Bail, grant of---Further inquiry---Double jeopardy---Scope---Allegation of being a foreign national---Accused in possession of Computerized National Identity Card (CNIC) and passport of Pakistan---Effect---Said documents belonging to accused were available on record and supported his contention that he was a national of Pakistan-Brother of accused i.e. co-accused had been involved in a similar case in the past but was ultimately , acquitted by Trial Court, thus family of accused had been involved in similar case on the same set of facts (and allegations)---Double jeopardy in rem would thus be attracted in the present case---Under S.9 of Foreigners Act, 1946 burden of proof shifted upon accused upon determination of nationality of foreign country, however in the present case accused could not be burdened as such in the presence of his CNIC and Passport of Pakistan---Case against accused fell within the purview of further inquiry---Offence alleged also did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was granted bail accordingly.

Naeem Qureshi and Muhammad Asif for Applicant.

Muhammad Ashraf Janjua, Standing Counsel.

Date of hearing: 6th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 1990 #

2014 Y L R 1990

[Sindh]

Before Ghulam Samar Korai and Naimatullah Phulpoto, JJ

GUL MUHAMMAD PALEJO---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, SINDH through Director-General, Sindh---Respondent

Constitutional Petitions Nos.D-3394, D-1548 and D-4418 of 2013 and D-370, D-371 and D-557 of 2014.decided on 26th February. 2014.

(a) Bail---

----Appreciation of evidence---Scope---Court has to tentatively look into facts and circumstances of case---Once Court comes to the conclusion that no reasonable ground exists for believing that accused has committed a non-bailable offence, it has discretion to release accused on bail--In order to ascertain whether reasonable grounds exist or not, the Court should not probe into merits of the case but restricts itself to material placed before it by prosecution to see whether some tangible evidence is available against accused which if itself left unrebutted, may lead to inference of guilt.

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

----S.9 (a) (vi) & (b)---Criminal Procedure Code (V of 1898), 5.497---Constitution of Pakistan, Art.199---Constitutional petition--Pre-arrest bail, refusal of---Prima facie case---Effect---Petitioners were facing trial before Accountability Court on the allegation of causing loss to Provincial Government by misuse of their authority---Validity---Prima facie, documentary evidence collected by National Accountability Bureau was sufficient to connect petitioners who had committed offences as alleged by prosecution---Petitioners failed to point out any mala fide/enmity of National Accountability Bureau with petitioners to falsely involve them in the case---High Court could exercise power for grant of bail before arrest in rare and exceptional circumstances---Deeper appreciation of evidence was not permissible at bail stage--Offences causing loss to government exchequer should not be tolerated---High Court declined to grant pre-arrest bail to petitioners---Petition was dismissed in circumstances.

Anwar Saifullah Khan v. The State and others 2001 SCMR 1040; Muzzamil Niazi and others v. The State PLD 2003 Kar. 526 and Ikram-ul-Haq v. Raja Naveed Sabir and others 2012 SCMR 1273 distinguished.

Faisal Hussain Butt v. The State and another 2009 SCMR 133 and The State v. Haji Kabeer Khan PLD 2005 SC 364 rel.

Abdullah Durani and others v. The State 2004 SCMR 1200; Noor Ali Shah v. Chairman, National Accountability Bureau (Pakistan), Karachi 2008 YLR 2217; Jaffer Hussain v. Khushi Muhammad and 4 others 2008 YLR 2220; Farida Rohail v. The State through Regional Director, National Accountability Bureau, Karachi 2007 MLD 347; Syed Mohsin Abbas Abidi v. National Accountability Bureau through Shafaat Nabi Khan Sherwani, Deputy Prosecutor General Accountability 2007 PCr.LJ 1094; Shahid Hassan Awan v. The State through Chairman, National Accountability Bureau, Islamabad and another 2008 YLR 1081 and Zubair Ali Khan v. The State and others 2008 MLD 1400 ref.

Abdul Mujeeb Pirzada for Petitioner (in Constitutional Petition No.D-3394 of 2013).

Sohail Muzaffar for Petitioner (in Constitutional Petition No.D-1548 of 2013).

Mukesh Kumar Khatri for Petitioner (in Constitutional Petition No.D-4418 of 2013).

Mukesh Kumar Khatri for Petitioner (in Constitutional PetitionNo.D-370 of 2014).

Hameedullah Dahri for Petitioner (in Constitutional Petition No. D-371 of 2014).

Arshad Khan Jadoon for Petitioner (in Constitutional Petition No. D-557 of 2014).

Noor Muhammad Dayo, Special Prosecutor, NAB for Respondent.

Date of hearing: 10th February, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2012 #

2014 Y L R 2012

[Sindh]

Before Nazar Akbar, J

HUSSAIN JAMAL---Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE, SOUTH KARACHI and 2 others---Respondents

Constitutional Petition No.S-563 of 2010, decided on 30th May, 2014.

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

---Ss. 16 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Tentative rent order, non-compliance of---Effect---Compromise between landlord and tenant before the court---Scope---Ownership of tenement in possession of tenant had not been conferred upon him---Mere taking plea of denial of tenancy was not enough to take away the jurisdiction of Rent Controller to pass tentative rent order---Tenant would continue to be tenant unless he established his ownership rights conferring title on him---Rent Controller had passed order for payment of arrears of rent and future rent that same would be subject to withdrawal after final judgment/order and interest of tenant had been secured---Tenant had willfully disobeyed the tentative rent order---Tenant knowing the penal consequences of non-compliance of tentative rent order should have deposited the rent in the court instead of putting his claim of ownership at risk and physical possession from the tenement---Compromise before Rent Controller could not be termed as absolute transfer of ownership right in favour of tenant nor terms of compromise could be enforced against landlord in a fresh round of litigation before Rent Controller---Compromise was not enforceable through Rent Controller and same could not be defence to deny payment of rent to the owner---Tenant should have file a suit for specific performance of contract/ compromise to enforce terms of the same---Compromise between the parties before the court was not more than a mere contract and a breach of the same would give rise to fresh cause of action and fresh suit could be filed by an aggrieved person for redressal of his grievance---Tenant could not be allowed to enjoy the tenement as an absolute owner pending the case on the grounds that landlord had promised to transfer the title in his favour---Constitutional petition was dismissed in circumstances.

Peer Dil v. Dad Muhammad 2009 SCMR 1268 rel.

Muhammad Akbar for Petitioner.

Nemo for Respondent No.3.

Date of hearing: 28th April, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2019 #

2014 Y L R 2019

[Sindh]

Before Shahnawaz Tariq, J

AYAZ ALI---Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE HYDERABAD and 3 others---Respondents

Constitutional Petition No.S-633 of 2013, decided on 17th February, 2014.

Constitution of Pakistan---

----Art. 199--- Constitutional petition---Registration of criminal case---Petitioner had alleged that respondent/Police Officials entered into his house and inquired about his brother, who was not available at that time---Respondents allegedly destroyed the household articles, took away cash and certain articles; respondents not only had committed a cognizable offence, but continued harassing the petitioner---Respondents, however, denied allegations of the petitioner and undertook that they would not harass the petitioner, and his family members, and would act in accordance with law---Purpose of petitioner had been achieved by undertaking given by respondents---Petitioner was at liberty to approach concurrent court/Justice of Peace for redressal of his grievance; and even the petitioner had also an alternate remedy of filing direct complaint, against the accused---Purpose of the petitioner having been served, keeping the petition pending would not yield any result---Petition was disposed of directing the respondents strictly not to cause any kind of harassment to the petitioner and his family, and would act strictly in accordance with law.

Ishrat Ali Lohar for Petitioner.

Choudhry Bashir Ahmed Gujar Asstt. A.G. for Respondent.

YLR 2014 KARACHI HIGH COURT SINDH 2025 #

2014 Y L R 2025

[Sindh]

Before Abdul Maalik Gaddi, J

AAMIR SAMI---Applicant

Versus

Mst. RUBY and another---Respondents

Criminal Miscellaneous Application No.43 of 2013, decided on 26th February, 2014.

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

----S. 497(5)---Bail, cancellation of---Grounds---Provisions of S. 497(5), Cr.P.C were not punitive in nature and there was no compulsion for cancelling bail, unless bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice, or where accused was found to be making efforts to misuse concession of bail by extending threats or tampering with the prosecution case.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 448, 457, 380 & 34---House-trespass, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, theft in dwelling house, common intention---Bail, cancellation of---Scope---Nothing on record suggested that accused had either misused the concession of bail or made an attempt to tamper with the prosecution evidence---Accused was granted bail after proper appreciation of evidence on record---No illegality was pointed out in the bail granting order---Application for cancellation of bail was dismissed accordingly.

Muhammad Arif for Applicant.

Babar Ali Shaikh for Respondent No.1.

Shahzad Saleem, A.P.-G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 2042 #

2014 Y L R 2042

[Sindh]

Before Nazar Akbar, J

HASSAN ABBAS---Appellant

Versus

IST ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others---Respondents

C.M.As. Nos.1625 and 1626 of 2013 and Ist Civil Appeal No.13 of 2013, decided on 10th May, 2014.

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

----O. VII, R. 11---West Pakistan (Board of Intermediate and Secondary Education Karachi) Ordinance (III of 1962), Ss.27 & 29---Specific Relief Act (I of 1877), S.42---Suit for declaration---Correction of father's name was sought by plaintiff---Rejection of plaint---Scope---Name of maternal grandfather was mistakenly mentioned in the school record as name of father of plaintiff and same had been disclosed by him which was also supported by affidavit of his mother---Record maintained by the Education Board was incorrect and father of plaintiff and that of his mother could not be one and the same---Trial Court was bound to reconcile the record of Education Board with that of the correct name of father of plaintiff in view of available record---Education Board had not applied mind to the request made by the plaintiff through a proper application wherein ingredients of plaint and circumstances mentioned in the same had been brought to the notice of Education Board but same had been declined without assigning a cogent reason---Education Board had not mentioned the rules before the Trial Court which restrained them from making correction in the record---Section 27 of Board of Intermediate and Secondary Education Ordinance, 1962 did not mean that Education Board was a final authority and order passed by the same was not subject to review by the courts---Section 29 of Board of Intermediate and Secondary Education Ordinance, 1962 stipulated that no suit for damages or other legal proceedings should be instituted against Government and any member of Education Board or Committee---No decision or order of Education Board was under challenge nor plaintiff had claimed any damages against controlling authority or member of Education Board in the present suit---Present was a suit for correction in the relevant record of Education Board---Education Board was bound to make necessary correction once there was a satisfactory proof of mistake on the record---Refusal of Education Board to rectify the mistake in the certificate issued by Board was without any lawful jurisdiction---Impugned order passed by the Education Board was without reasoning and same was not a speaking order---Trial Court had rejected the plaint without proper trial which was contrary to the requirement of law---Orders passed by the Trial Court and Appellate Court were set aside and case was remanded for decision on merits after recording of evidence in accordance with law.

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

----S. 5---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Appeal---Non-disclosure of dismissal of appeal by the counsel to the appellant---Professional misconduct of counsel---Condonation of delay---Scope---Application was supported with a complaint against the counsel who had been representing the appellant before the Trial Court and first Appellate Court---Details of professional misconduct of counsel had been given in the affidavit with regard to the fact that he (counsel) did not disclose about the dismissal of appeal---Circumstances were not within the control of appellant to file present appeal in time who had accounted for the delay---Application for condonation of delay was accepted in circumstances.

Syed Ali Kausar Shah for Appellant.

Syed Masroor Ahmed Alvi and Nazia Hanif for Respondent No.3.

YLR 2014 KARACHI HIGH COURT SINDH 2050 #

2014 Y L R 2050

[Sindh]

Before Ahmed Ali M. Sheikh and Syed Muhammad Farooq Shah, JJ

ABDUL MAJEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.44 of 2013, decided on 26th March, 2014.

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

----S. 9(b)---Possessing and trafficking narcotics---Appreciation of evidence---Recovered narcotic, was received by the office of Chemical Examiner after about four days from its recovery---Matter was shrouded in mystery as to during the intervening period in whose custody case property was lying---Tampering with the case property could not be brushed aside, when the person in whose custody the case property was lying during the intervening period had not been examined by the prosecution---Specific animosity and ill-will having been alleged against Police Officials, it was incumbent upon the prosecution to prove its case by examining independent person of the locality, but same had not been done in the case---Solitary marginal witness had not fully corroborated the deposition of his officer---Record did not reveal as to whether any efforts were made to persuade any person including the driver of vehicle to act as mashir of recovery---Flagrant violation of provisions of S.103, Cr.P.C. had taken place in the case---Conviction of accused recorded merely on probability by the Trial Court, was not sustainable in law---Impugned judgment of the Trial Court was set aside, in circumstances.

Ghulam Hussain v. The State 2003 PCr.LJ 7; Riaz Hussain Kalhoro v. The State 2004 PCr.LJ 90 and Muhammad Aziz v. The State PLD 1996 SC 67 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---For extending benefit of doubt, it was not necessary that there should be many circumstances creating doubt, if there was a circumstance which created reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit, not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Appellant present in person.

Ali Haidar Saleem, Assistant Prosecutor General for Respondent.

Date of hearing: 26th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2061 #

2014 Y L R 2061

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

Haji MUHAMMAD and 7 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-106 and Criminal Revision No.D-58 of 2010, decided on 27th May, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)/34--- Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence was not in consonance with ocular account of prosecution evidence---When deceased was attacked allegedly five prosecution witnesses were available together at the spot and were moving around the deceased, but they remained silent and neither they resisted accused party, nor rescued the deceased, and did not try to flee away from the spot and adopt any immediate defensive measures for protection of their lives, which was highly doubtful and did not appeal to any logic---Complainant had concealed the material facts in the case---Evidence adduced by the prosecution, which neither was trustworthy nor confidence inspiring, could no be relied upon---Defence plea seemed to be more attractive to the effect that complainant party along with many persons entered into the disputed land to take over its possession forcibly; and they first maltreated brother of deceased, fired gunshot which hit him who expired on the spot---Prosecution had examined only interested witnesses, who were harries and driver of the deceased, who had concealed and withheld important facts in the F.I.R. and their statements before Police---Prosecution having failed to adduce trustworthy and confidence inspiring evidence to bring home guilt of accused, beyond any shadow of doubt, false implication of ten accused persons could not be ignored in the peculiar circumstances---Slightest piece of doubt, was sufficient for acquittal of accused---Impugned judgment was set aside, all accused persons were acquitted of the charge extending them benefit of doubt and were directed to be released.

1969 SCMR 714; 2009 PCr.LJ 1266; 2005 PCr.LJ 172; 1984 PCr.LJ 100; 1997 SCMR 373; 2009 SCMR 825; 2009 SCMR 1133; 2002 SCMR 334; 2003 SCMR 1164; 2001 SCMR 199; PLD 2001 SC 458; Zaabdin v. The State PLD 1986 Pesh. 188; Akhter v. The State 2008 SCMR 6; Khalid Javaid v. The State 2003 SCMR 1419; Gul Bahar v. Ghulam Ali 2002 SCMR 224; Hadi Bux v. The Sttae PLD 1963 Kar 805; Noor Muhammad v. The State 2010 SCMR 97; Dr. Khalid Moin and others v. The State 2006 PCr.LJ 639; Mian Dad Leghari v. The State 2009 PCr.LJ 1226 and Master Muhammad Siddique v. The State another 2003 MLD 1774 ref.

Tahseen Ahmed Qureshi for Appellants.

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

Muhammad Hashim Memon for the Complainant.

Date of hearing: 27th February, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2083 #

2014 Y L R 2083

[Sindh]

Before Abdul Maalik Gaddi, J

ABDUL REHMAN---Applicant

Versus

The STATE---Respondent

Bail Application No.229 of 2014, decided on 10th March, 2014.

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

----S. 497(2)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Possession of unlicensed firearm---Bail, grant of---Further inquiry---Case had already been challaned---Accused was no more required for investigation---Prosecution case rested upon evidence of police officials, therefore question of accused tampering with prosecution evidence did not arise---Record did not show that accused was a previous convict or had been arrested in case similar to the present one---Accused was granted bail in circumstances.

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

----S. 497(1)--- Bail--- Scope--- Offence falling within prohibitory clause of S.497(1), Cr.P.C.---No legal or moral compulsion existed to keep people in jail merely on the allegation that they had committed offences punishable with death, transportation of life or ten years imprisonment unless reasonable grounds appeared which disclosed their complicity---Ultimate conviction and incarceration of a guilty person could repair the wrong caused by a mistaken relief of grant of bail but no satisfactory reparation could be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

Zulfiqar Ali Shaikh for Applicant.

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

YLR 2014 KARACHI HIGH COURT SINDH 2091 #

2014 Y L R 2091

[Sindh]

Before Shahnawaz Tariq and Nadeem Akhtar, JJ

GHULAM MUSTAFA---Appellant

Versus

The STATE another---Respondents

Criminal Appeal No.D-107 and Criminal Revision Application No.142 of 2013, decided on 3rd June, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-F(vi) & 34---Qatl-e-amd, attempt to commit qatl-e-amd, causing Manaqqilah, common intention---Appreciation of evidence---Prosecution witnesses had made deliberate improvements, glaring contradictions and a series of repudiations on their part, which had created serious doubt regarding the occurrence of incident as alleged by the prosecution---Prosecution having failed to bring home guilt of accused by adducing trustworthy evidence, appeal filed by accused was allowed as prayed on the principle of consistency---Accused was acquitted of charge and was directed to be released, in circumstances.

PLD 1953 FC 93; 2011 PCr.LJ 1801; 1992 PCr.LJ 2092; 1993 SCMR 550; 2007 SCMR 605; 2011 SCMR 629; 1995 SCMR 1345; 2008 SCMR 1572; PLD 1986 Pesh. 188; 2007 SCMR 1825; 1990 SCMR 158; 1998 PCr.LJ 779; 2011 SCMR 513; 2010 SCMR 97; 2003 SCMR 1374; 1970 PCr.LJ 652; 1991 PCr.LJ 2253; 1987 PCr.LJ 1502; 1994 SCMR 1928; 2004 PCr.LJ 942; 1998 PCr.LJ 1876; 2010 SCMR 1719; 2009 SCMR 99; 2011 SCMR 1148; 2000 YLR 65; 2010 SCMR 166; 1973 SCMR 219; 1988 SCMR 370; Akhter v. The State 2008 SCMR 6; Khalid Javaid v. The State 2003 SCMR 1419; Gul Bahar v. Ghulam Ali 2002 SCMR 224; Hadi Bux v. The State PLD 1963 Kar. 805; Dr. Khalid Moin and others v. The State 2006 PCr.LJ 639 and Mian Dad Leghari v. The State 2009 PCr.LJ 1226 ref.

Hidayatullah Abbasi for Appellant.

Shahid Ahmed Shaikh, A.P.-G. for the Respondent No.1.

Muhammad Aslam Bhatti for Respondent No.2.

Dates of hearing: 21st, 28th and 30th January and 13th, 26th February, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2128 #

2014 Y L R 2128

[Sindh]

Before Shaukat Ali Memon, J

SIKANDAR---Applicant

Versus

The STATE---Respondent

Bail Application No.S-593 of 2013, decided on 30th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), 337-A(iii), 337-F(i), 147, 148, 149, 114 & 504---Shajjah-i-khafifah, shajjah-i-hashimah, ghayr-jaifahdamiyah, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed, intentional insult with intent to provoke breach of peace---Bail, refusal of---Accused allegedly inflicted lathi blows to an injured victim---Prosecution contended that delay in lodging of F.I.R. was explained by the fact that complainant party instantly approached the police station for letter for medical treatment and certificate, while the F.I.R. was lodged the very next day without any delay; that accused was assigned specific role of causing lathi blows, which was reflected from the contents of medical certificate which showed that a hard and blunt substance had been used---Validity---Perusal of medical certificate, F.I.R. and statements of prosecution witnesses covered/explained the delay in lodging of F.I.R. and it prima facie reflected involvement of accused in the commission of a non-bailable offence falling within the prohibitory clause of S. 497(1), Cr.P.C.---No case for bail was made out---Accused was refused bail accordingly.

Rasool Bux Solangi for Applicant.

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

Date of hearing: 9th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 2134 #

2014 Y L R 2134

[Sindh]

Before Naimatullah Phulpoto and Muhammad Iqbal Kalhoro, JJ

RAZA MUHAMMAD SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.D-73 of 2014, decided on 25th June, 2014.

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

----Ss. 497(2) & 196---Penal Code (XLV of 1860), Ss. 295-A, 296, 298 & 341---Anti-Terrorism Act (XXVII of 1997), S. 9---West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance (II of 1965), Preamble---Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs, disturbing religious assembly, uttering words etc. with deliberate intent to wound religious feelings, wrongful restraint, acts intended or likely to stir up sectarian hatred, restriction on the use of load speaker etc.---Bail, grant of---Sanction under S. 196, Cr.P.C. not obtained for prosecution under S. 295-A, P.P.C.---Non-association of private witnesses---Accused was alleged to have erected a barrier on the way leading to a place of congregation and also installed a loud speaker upon which he was playing cassettes fomenting hatred against other sects---Except for S.295-A, P.P.C. punishment provided for the remaining offences was less than 7 years, thus they did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Prima facie requirement of S. 196, Cr.P.C. was not fulfilled by the police/complainant before registering F.I.R. under S. 295-A, P.P.C.---State counsel admitted that no sanction as envisaged under S. 196, Cr.P.C was obtained for the trial of present case under S. 295-A, P.P.C.---Despite having advance information about the incident, no effort was made on part of the complainant/ police to procure attendance of private persons to witness the incident---Accused was granted bail in circumstances.

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

----S. 497---Bail---Police witnesses---Case based upon evidence of police officials---Although police officials were as good witnesses as private ones, but when the whole case hinged upon the evidence of police officials without any independent corroboration, then due care and caution had to be taken to rule out the chances of false implication.

Zulfiqar Ali Sangi for Applicant.

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

YLR 2014 KARACHI HIGH COURT SINDH 2148 #

2014 Y L R 2148

[Sindh]

Before Hasan Feroz, J

LIAQUAT---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-1184 of 2013, decided on 30th April, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-e-amd. common intention---Bail, grant of---Further inquiry---Rule of consistency---Delay in recording statement of prosecution witnesses---Delay in lodging of FIR---Accused and co-accused persons allegedly caused hatchet injuries to the deceased---One of the co-accused who was ascribed a role similar to that of accused was let off by the police during course of investigation---Statements of first and second set of prosecution witnesses were recorded after a delay of 12 and 15 days respectively, without any explanation---Some discrepancies also existed between the statements of prosecution witnesses---Incident took place at 8:30 pm, whereas F.I.R. was lodged at 11 pm, when the police station was at a distance of about 15 to 16 kilometers, therefore deliberation and consultation could not be ruled out---Case against accused required further inquiry---Accused was granted bail accordingly.

Muhammad Khan v. Moula Bux, 1998 SCMR 570 and Syed Saeed Muhammad Shah v. State 1993 SCMR 550 rel.

(b) Criminal Procedure Code (V of 1898)

----Ss. 161 & 497---Delay in recording statements of prosecution witnesses---Effect---When a statement was recorded after sufficient delay without any explanation, then it affected the veracity of the witnesses and the prosecution case.

Muhammad Khan v. Moula Bux, 1998 SCMR 570 and Syed Saeed Muhammad Shah v. State 1993 SCMR 550 rel.

Abdul Sattar Kazi for Applicant.

Shahid Ahmed Shaikh Assistant P.G. for the State.

Date of hearing: 8th April, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2152 #

2014 Y L R 2152

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD ABID---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.427 of 2014, decided on 20th June, 2014.

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

----S. 154---F.I.R., registration of---Station House Officer (SHO), obligation of---Scope---When an informant brought forth an information disclosing commission of a cognizable offence to the SHO, he had to record the same in the relevant register---No authority was vested with the incharge of police station to indulge himself into examining the veracity or falsity of such information by conducting an enquiry before actually exercising the mandate provided to him under S. 154, Cr.P.C.---Words "every information" contained in S. 154, Cr.P.C. relating to the commission of a cognizable offence pertained only to the information supplied and did not speak of actual commission of the offence---Law did not require that an F.I.R. should be registered (only) if such information ultimately proved to be true---S.H.O. had to satisfy himself only to the extent that information was in respect of any offence which was cognizable.

PLD 2007 SC 539 and 2007 PCr.LJ 909 rel.

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

----S. 156---Investigation into cognizable offence---Person part of investigation---Arrest---Scope---Police was competent to investigate every allegation of a cognizable offence in terms of S. 156, Cr.P.C., however a person named in it could not be arrested unless some tangible and reliable evidence was found, which showed his nexus with the commission of the offence.

Rukhsar Ahmed M. Junejo for Applicant.

Parmanand for Respondent No.3.

Zulfiqar Ali Jatoi D.P.G. for the State.

YLR 2014 KARACHI HIGH COURT SINDH 2163 #

2014 Y L R 2163

[Sindh]

Before Hasan Feroz, J

ASIF ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-65 of 2014, decided on 30th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 311, 147, 148 & 149---Qatl-e-amd, ta'azir after waiver or compounding of right of qisas in qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Double murder case---Sharing common intention of murder---Accused and co-accused allegedly fired at one of the deceased and killed her---Accused and co-accused were nominated in the F.I.R. with the specific role of causing firearm shots on one of the deceased, thus accused shared the common object of murder---No material/grounds were presently available on record that could depart the accused from the offence alleged---Offence of murder carried capital punishment---Accused was refused bail in circumstances.

Ayaz Ali Gopang for Applicant.

Syed Meeral Shah Deputy Prosecutor General Sindh for the State.

Date of hearing: 7th April, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2176 #

2014 Y L R 2176

[Sindh]

Before Hasan Feroz, J

Dr. BABER YAQOOB SHEIKH---Applicant

Versus

HARIS HAFEEZ and 2 others---Respondents

Criminal Revision Application No.69 of 2013, decided on 27th March, 2014.

(a) Illegal Dispossession Act (XI of 2005)---

----Preamble, Ss.3, 4 & 5---Illegal Dispossession Act, 2005---Scope and applicability---Illegal Dispossession Act, 2005 being a special law was only applicable in cases wherein the person complained against was found to be not having title thereto; he had taken possession by use of force; he had taken over the property without due course of law; and such person or persons belonged to group of land grabbers---Application/ complaint under Illegal Dispossession Act, 2005 could only be entertained, if there was prima facie material against nominated accused; and case of civil nature in no way could be allowed to be converted into criminal offence---Provision of S.3 of Illegal Dispossession Act, 2005 was applicable only to land grabbers---For the purpose of determination, so as to appreciate as to whether case had been made out attracting the provision of S.3 of the Act, the court was required to examine; that the property was immovable property; that the person was owner of the property or same was in his lawful possession; that accused entered into or upon property unlawfully and that such entry was with the intention to dispossess---Under provision of S.4 of Illegal Dispossession Act, 2005, cognizance was to be taken directly by the Sessions Court on a complaint; there was no need to comply with the procedure laid down in S.190, Cr.P.C. by making complaint before Magistrate directly.

Abdul Latif v. Bagga Khan and another PLD 1996 SC 152; Abdur Rashid and others v. The State and others PLD 1962 SC 249 and PLD 2010 SC 661 ref.

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

----Ss. 4(h), 200, 203, 204(3), 265-H(1) & 265-K---Complaint---Scope---'Complaint', was a statement of accusation or allegation of fact or information put forth to a Magistrate informing commission of offence to be taken cognizance of---Complaint was just a statement of allegation to set the law in motion, and failure to furnish details of the occurrence, could not by itself mean that what was stated at the trial subsequently was false or baseless---No specific form was prescribed in law so as to put in motion the criminal law through a complaint---Essential requirement of S.200, Cr.P.C., was that the substance of the complaint would be reduced to writing and would be signed by the complainant---Section 200, Cr.P.C., had made it clear that the examination of the complainant could only succeed and not precede the taking of cognizance, for, it was the act to be done after the taking of cognizance, whatever might be the meaning of the word "cognizance" or whatever might amount to taking cognizance---Law did not require that the court on receipt of a direct complaint must hold preliminary inquiry---If a prima facie case was made out, court could take cognizance of the same after examination of the complainant on oath; and if no such case was made out, court was competent to dismiss the same---Private complaint could be dismissed at preliminary stage under Ss.203 & 204(3), Cr.P.C.---Accused could also be acquitted and private complaint could be dismissed by the Sessions Court at any stage of the trial under Ss.265-K & 265-H(1), Cr.P.C.---Provision of S.200, Cr.P.C., in no manner bound the court to record the evidence of complainant, despite the fact that the accusations made in the complaint, did not constitute the offence, or that act complained of was not an offence at the time of occurrence.

PLD 1960 Dacca 631; 2001 PCr.LJ 914; PLD 2006 Kar. 221; 2007 PCr.LJ 891; PLD 2008 Quetta 27; PLD 2008 Kar. 94; PLD 2011 SC 181, 2010 YLR 1982 and PLD 2011 Kar. 624 ref.

Mrs. Rifat Bano for Applicant.

Respondent No.1 present in person.

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

Date of hearing: 13th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2189 #

2014 Y L R 2189

[Sindh]

Before Hasan Feroz, J

FARZAN KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1614 of 2013, decided on 28th January, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Possession of unlicensed firearm---Bail, grant of---Further inquiry---Benefit of doubt---Memo. of recovery did not show any sketch of the recovered arm---Remand report prepared by police showed that accused was allegedly shown as an absconder in another F.I.R., however perusal of said F.I.R. showed that name of accused was not mentioned therein---Such circumstances cast heavy doubt upon the present case and gave room for further inquiry into guilt of accused---Record did not mention sealing of recovered weapon at the spot---Accused was granted bail in circumstances.

2013 YLR 110 rel.

M. Nadeem Khan for Applicant.

Shahzado Saleem, A.P.-G. for Respondent.

Date of hearing: 20th January, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2200 #

2014 Y L R 2200

[Sindh]

Before Farooq Ali Channa, J

SULTAN KHAN---Appellant

Versus

SOBDAR and another---Respondents

Criminal Acquittal Appeal No.S-47 of 2013, decided on 16th December, 2013.

Criminal Procedure Code (V of 1898)---

---S. 265-K---Power of Trial Court to acquit accused at any stage---Scope---Trial Court acquitting accused under S. 265-K, Cr.P.C. before framing of charge and recording of evidence---Validity---Trial Court itself took cognizance of offence upon complaint filed by complainant/ petitioner with observations that statement of complainant and prosecution witnesses revealed sufficient material against accused for bringing the case on regular file, whereas subsequently when accused was acquitted under S. 265-K, Cr.P.C., Trial Court observed that there were major contradictions between statements of complainant and prosecution witnesses, therefore there would be no probability of accused being convicted---Both said observations of Trial Court were contrary to each other and no truth could be made out from them---Observations of Trial Court at the time of acquitting accused under S. 265-K, Cr.P.C. were based on presumptions and not backed by any evidence---Proper and safe course would have been to record evidence of prosecution witnesses with an opportunity of cross-examination to accused and thereafter on the basis of said evidence, Trial Court should have ascertained the truth or falsity of the allegations/charge---Order of acquittal passed by Trial Court was set aside and case was remanded to Trial Court to frame charge, record evidence of prosecution witnesses with opportunity of cross-examination to accused and thereafter decide case afresh---Appeal was allowed accordingly.

Qalandar Bux Leghari for Appellant.

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

Mr. Mashooq Ali Bhurgri for Respondent No. 1.

YLR 2014 KARACHI HIGH COURT SINDH 2209 #

2014 Y L R 2209

[Sindh]

Before Aqeel Ahmed Abbasi and Aftab Ahmed Gorar, JJ

MANZOOR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-32 of 2007, decided on 15th January, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Sufficient material was available before the Trial Court in shape of unimpeachable ocular evidence of complainant, supported by Mashirs/witnesses on the point of recovery; coupled with mashirnama of arrest, recovery and positive report of Chemical Examiner for establishing the guilt of accused for the alleged recovery of charas---Trial Court, in circumstances, had rightly convicted accused---Conviction awarded to accused did not require any interference in appeal---Charas in shape of ten small and big pieces, in an envelope weighing 1400 grams, was found, out of which 20 grams of charas was sealed separately for chemical analysis, report whereof was in positive---Only 20 grams charas was taken out of 1400 grams from one packet only as sample, and from remaining 1380 grams, no sample was taken it would therefore, not be possible to hold that said remaining packets were the pieces of charas or otherwise---Maintaining conviction of accused, his sentence was reduced to one which he had already undergone.

Muhammad Hashim v. The State PLD 2004 SC 856; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

Asif Ali Abdul Razzak Soomro for Appellant.

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

Date of hearing: 15th January, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2218 #

2014 Y L R 2218

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD AKBAR---Plaintiff

Versus

MUHAMMAD TARIQ and 6 others---Defendants

Suit No.127 C.M.As. Nos. 1703 and 1039 of 2007, decided on 30th September, 2013.

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

----O. VII, R. 11 & S.11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Res judicata, principle of---Applicability---Rejection of plaint---Arbitration proceedings--- Scope---Defendant moved an application for rejection of plaint with the contention that plaintiff had no cause of action for filing the present suit as dispute had been directly and substantially decided in arbitration proceedings---Validity---Plaint, its accompaniments and other material available on record which on its own strength was sufficient to refute the claim of plaintiff could be looked into for the purpose of rejection of plaint---Dispute with regard to suit property was finally resolved through award which was made rule of court with the consent of parties---Matter directly and substantially in issue in the present suit was directly and substantially in issue in the arbitration proceedings between the parties---Present suit was barred under the principle of res judicata and under S. 42 of Specific Relief Act, 1877 as plaintiff ceased to have any legal character or right in the suit property which had been awarded to the defendant--Plaintiff had no cause of action against the defendant---Plaint should be rejected in any of the four eventualities mentioned in O. VII, R. 11, C.P.C.---Court should reject the plaint if plaintiff would not be entitled to the relief claimed if all the allegations made in the same were proved--Neither the main relief of declaration nor the consequential reliefs could be granted to the plaintiff in the present case---Plaint was rejected in circumstances.

Messrs Hasan Ali Rice Export Co. through Sole Proprietor v. Flame Maritime Ltd. and another, 2004 CLD 334; Muhammad Anwar v. Messrs Associates Trading Co. Ltd. and others, 1989 MLD 4750 and Abdul Karim v. Haji Ilyas and 4 others, 1986 CLC 1660 ref.

S.M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan 2002 SCMR 338; Abdul Nasir and another v. Haji Saeed Akbar 2010 SCMR 1770; Raja Ali Shah v. Messrs Essem Hotel Ltd. and others 2007 SCMR 741 and Pakistan Agricultural Storage and Services corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 rel.

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

----S. 11---Res judicata---Scope---Section 11, C.P.C. had barred the court to try any suit or issue in which the matter directly or substantially in issue had been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them had claimed or litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue had been substantially raised and had been heard and finally decided by such court.

Plaintiff and his counsel called absent.

Neel Keshav for Defendants Nos. 1 and 2.

Asadullah Khan holding brief for Mehfooz Yar Khan for Defendant No.5.

Ejaz Khattak for Defendant No. 6.

Qazi Majid Ali, Assistant Advocate General Sindh.

Date of hearing: 30th September, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 2241 #

2014 Y L R 2241

[Sindh]

Before Syed Muhammad Farooq Shah, J

SHAH FAHAD and another---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.S-400 of 2013, decided on 24th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.489-F, 420 & 406---Dishonestly issuing a cheque, cheating, criminal breach of trust---Quashing of proceedings---Cheque in question was not issued by accused persons, but was issued by some one else from his own account---Ingredients of S.489-F, P.P.C., or criminal breach of trust under S.406, P.P.C., were not attracted---Civil litigation with regard to sale transaction of agricultural land was sub judice before the proper forum---Object of S.489-F, P.P.C., was to curb the fraudulent or dishonest issuance of cheque; and to punish a person who dishonestly issued the same---In the absence of mens rea, criminal proceedings, ordinarily could not proceed---When cheque was bounced, prosecution had to establish as to who had issued the cheque; and whether such issuance was with dishonest intention---Said provision of law, further revealed that the purpose of issuance of cheque should be to repay a loan, or to fulfil an obligation---Civil litigation having been initiated prior to registration of F.I.R., to reach at the just and exact conclusion of the trial, it would be appropriate that such matter, be resolved/decided through civil litigation---Proceedings pending before the Trial Court against accused persons, being abuse of process of the court, same were quashed, in circumstances.

Allah Rakhio and others v. The State 2001 PCr.LJ 551; Shaikh Muhammad Taqi v. The State 1991 PCr.LJ 963; Muhammad Shafi v. The State 1985 PCr.LJ 540; State v. Muhammad Aslam Khan 2009 SCMR 294 and The State v. Raja Abdul Rehman 2005 SCMR 1544 ref.

Aijaz Shaikh for Applicants.

Jawaid Chaudhry for Complainant.

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

Date of hearing: 24th February, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2273 #

2014 Y L R 2273

[Sindh]

Before Hasan Feroz, J

Mst. AMINA---Petitioner

Versus

NADIR HUSSAIN and 2 others---Respondents

Constitutional Petition No.S-325 and M.A. No.3868 of 2011, decided on 28th May, 2014.

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

----S. 15---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Default in payment of rent and plea of bona fide personal need of landlord---Denial of relationship of landlord and tenant by the tenant---Rent Controller dismissed the rent application of the landlord holding that no relationship of landlord and tenant existed between the parties---Appellate Court accepted the appeal of the landlord and set aside the order of the Rent Controller---Tenant took a plea that filing of the rent application was without any cause of action and the same was not maintainable, as 10/11 years before the tenant had purchased the said tenement for the sum of Rs.50,000 as agreed on the strength of sale agreement and the tenant initially made advance payment of an amount of Rs.5000 while remaining amount was agreed to pay at the rate of Rs.1000 till such time the sale consideration of Rs.50,000 was completed---Landlord proved relationship with the tenant as landlord and tenant and the tenant had failed to make out any ground for interference in the judgment of the Appellate Court, which was based on sound reasons---Tenant had failed to point out any illegality or irregularity committed by the Appellate Court in its judgments and decree, which had been passed while appreciating the evidence available on record---Judgment and decree of the Appellate Court was maintained with modification that the tenant was allowed six months time to vacate the premises---Constitutional petition being devoid of merits was dismissed.

Syed Mehboob Hussain v. Raza Shah and 2 others 2006 CLC 629 and Hafeezuddin and 2 others v. Badaruddin and 2 others PLD 2003 Kar. 444 distinguished.

Muhammad Jabbar Sheikh for Petitioner.

Muhammad Saleem Hashmi for Respondent No.1.

Date of hearing: 14th May, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2282 #

2014 Y L R 2282

[Sindh]

Before Naimatullah Phulpoto, J

FAZAL MUHAMMAD DOMKI---Petitioner

Versus

LUTUFULLAH and another---Respondents

Criminal Transfer Application No.S-64 and M.A. No.2724 of 2013, decided on 14th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), Ss.302, 337-H(2), 148 & 149---Qatl-e-amd, rash or negligent act, rioting, common object---Application for transfer of case on the ground of lack of confidence in the trial Judge---Allegations made in the transfer application were vague and general in nature---Such type of allegations, could not be the ground of transfer---No specific date had been mentioned by the applicant/accused on which the Presiding Officer pressurized accused to compromise the matter with complainant---Justice required that Presiding Officer should equally be protected from frivolous transfer application in order to achieve transparent disposal of the case---Case being fixed for final arguments, could not be transferred as a matter of routine, or at the wish of any party, unless ground was fair and just---Self-procured mistrust, was no ground for transfer of the case---Transfer application being without merit, was dismissed, in circumstances.

Naushad Ali Tagar for Applicant.

Imtiaz Ali Jalbani, Assistant Prosecutor General for Respondent.

Faiz Muhammad Larik for the Complainant.

Date of hearing: 15th April, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2297 #

2014 Y L R 2297

[Sindh]

Before Abdul Rasool Memon, J

AHSAN AHMED MASTOI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-92 of 2011, decided on 20th September, 2013.

(a) Criminal trial---

----Witness---Related witness---Reliability--Closely related witnesses could be as reliable witnesses as a completely unknown and stranger witness---Credibility of a witness did not depend upon relationship, but it should flow from the statement which he deposed---Nature and the quality of the statement of a witness should evoke confidence and trust---No hard and fast rule that any person who was closely related with the complainant or deceased, would always be untrue and interested witness, nor could it be said with all force and universal application that any person who was stranger, and was not related to the deceased would always be true witness---When court had to appreciate evidence given by the witnesses, who were partisan or interested, it had to be very careful in weighing such evidence.

Sikandar v. The State PLD 1963 SC 17 rel.

(b) Criminal trial---

----Evidence---Conviction in a case inviting capital punishment---In order to sustain the conviction in a case inviting capital punishment, ocular evidence must come from an unimpeachable source, or if such a source be not available, it must be supported by strong evidence, such as, might serve to overcome the inherent doubt by which such evidence was necessarily affected.

Thoba and another v. The State PLD 1963 SC 40 rel.

----Ss. 302 & 148---Qatl-e-amd, rioting---Appreciation of evidence---Benefit of doubt---Ocular evidence did not coincide with the findings in medical evidence, and was directly in conflict with it---When such contradictions were brought on record it was the duty of the prosecution to explain it and not the accused, who must be given benefit of such contradictions---Evidence of alleged eye-witnesses was not consistent on important points---Contradictions in the statements of the eye-witnesses raised element of doubt that either said witnesses were not present with the deceased, or the offence was not committed as alleged by the prosecution---Enmity existed between the parties over a plot---No independent witness had been produced by the prosecution though as per F.I.R. other people standing in nearby lands came raising "Hackals" at place of occurrence and on seeing accused fled away from the wardat---No body was examined on behalf of the prosecution from amongst those who were independent witnesses; instead the persons who were closely related to the deceased had come forward as eye-witnesses---Court would not base conviction of an accused solely on the testimony of interested witnesses, unless such evidence would find corroboration by some other independent and unimpeachable piece of evidence, which was lacking in the present case---Evidence of said interested witnesses could not be relied upon, in circumstances---Delay of fifteen hours in lodging F.I.R. was not plausibly explained; it could be said that F.I.R. was lodged after due deliberation and consultation; and there was every possibility of the false implication of accused due to enmity between the parties---Alleged recovery of empty cartridge from the place of wardat and a gun allegedly produced by accused, was of no consequence as said recovery version was falsified by the memo of inspection of dead body and inquest report which were initial documents prepared on the spot after inspection of dead body---Evidence of remaining witnesses being formal in nature, was of no help to the prosecution in establishing the charge against accused--Prosecution having failed to prove its case beyond shadow of reasonable doubt against accused, impugned judgment was set aside, accused was acquitted after giving him benefit of doubt and he was released, in circumstances.

Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292 rel.

State v. Abdul Qadir and 2 others 1973 SCMR 312; Sarfraz alias SAPPI v. The

State 2000 SCMR 1758; 1998 SCMR 25 and PLD 2003 SC 644 ref.

Sharjeel Sattar Bhatti for Appellant.

Ali Raza Pathan for the Complainant.

Abdul Rasheed Soomro for the State.

Date of hearing: 20th August, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 2315 #

2014 Y L R 2315

[Sindh]

Before Muhammad Shaft Siddiqui, J

Ms. ROHEELA YASMIN---Plaintiff

Versus

Ms. NEELOFAR HASSAN and 6 others---Defendants

Suit No.1386 and C.M.As. Nos.10734, 10735 and 12120 of 2012, decided on 21st April, 2014.

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

----S. 7---Civil Procedure Code (V of 1908), O. XX, R. 13-Administration suit- Talaq-e-Bain- Effect--- Contention of plaintiff was that she being wife of deceased was entitled for deferred dower as well as share from his property whereas defendants contended that plaintiff had been divorced by the deceased and she was not legal heir to claim inheritance-Validity-Plaintiff was given Talaq-e-Bain and no question of reconciliation would arise---Such Talaq would become effective the moment same was pronounced-Plaintiff was not entitled for any inheritance however claim of dower amount was debt on the property of deceased which was to be paid first.

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

---S. 7---Divorce--- Effectiveness of--- Scope---Marriage could abe dissolved by husband at his will without intervention of the court-Man who wished to divorce his wife should as soon as might be after pronouncement of Talaq give the Chairman Union Council a notice in writing of his having done so and should supply a copy thereof to the wife---Talaq would not be effective until the expiry of 90 days unless same was revoked earlier expressly or otherwise.

----Talaq, Mubarat and Khula-Meaning-- -"Talaq" was divorce which was pronounced by the husband whereas "Mubarat" was Talaq effected by mutual consent of parties and "Khula" was dissolution of marriage through court.

(d) Islamic Law--

----Talaq, kinds of-Scope-Talaq would be of three kinds i.e. Talaq-e-Ahsan, Talaq-e-Hassan and Talaq-e-Bain-Talaq-e-Ahsan could be pronounced by single pronouncement during "Tuhrs" followed by abstinence from going to wife to establish marital relationship till Iddat period-Talaq-e-Hassan was pronounce-ment of divorce through successive three "Tuhrs" without establishing physical relationship with wife in any of the three "Tuhrs"---Talaq-e-Bain was the divorce by husband through pronouncement made through single "Tuhr" either in one sentence or in separate sentences---Talaq-e-Bain was irrevocable divorce whereas Talaq-e-Ahsan would become irrevocable on expiry of Iddat period and Talaq-e-Hassan on third pronouncement irrespective of Iddat period-Talaq-e-Bain would become irrevocable immediately on pronouncement of the same either uttered orally or written down on a piece of paper irrespective of Iddat period-Talaq-e-Bain did not provide any room for any reconciliation-Communication was not material ingredients or prerequisite for validity of Talaq.

Mst. Zarina Begum v. Major Azizul Haq and others 2006 CLC 1525; Mst. Maqbool Jan v. Arshad Hussain and another PLD 1975 Lah. 147 and Mst. Sakhina Khatun v. Ahmad Ali Mia PLD 1962 Dacca 630 rel.

Shoaib Rashid for Plaintiff.

Barrister Shabbir Shah and Sameer Ghazanfar for Defendants Nos. 1 to 4.

Yousuf Naseem for Defendants Nos. 5 and 6.

Date of hearing: 8th April, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2331 #

2014 Y L R 2331

[Sindh]

Before Nazar Akbar, J

Mrs. SAMINA ZAHEER ABBAS---Petitioner

Versus

HASSAN S. AKHTAR and 3 others---Respondents

Constitutional Petition No.S-575 of 2009, decided on 4th August, 2014.

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

----Ss. 16, 21 & 15---Constitution of Pakistan, Arts.199 & 4---Constitutional petition---Scope---Ejectment of tenant---Tentative rent order, non-compliance of---Effect---Landlords filed an ejectment petition wherein they moved an application under S. 16(1) of the Sindh Rented Premises Ordinance, 1979---Application for payment of arrears of rent was accepted and tenant was directed to deposit the same who failed and her defence was struck off---Eviction petition was accepted concurrently---Validity---Tenant had failed to comply with the tentative rent order and she was guilty of non-compliance of the direction to deposit monthly rent---Said findings were findings of facts and no evidence was required to come to such conclusion---Order passed by the Appellate Authority was final and same could not be challenged through constitutional petition on the ground that "no other adequate remedy" had been provided by law or said finality attached to the order had violated the constitutional guarantees provided under Art. 4 of the Constitution to the tenant---Constitutional petition was dismissed and tenant was directed to vacate the premises within specified period.

Muhammad Nawaz v. Muhammad Hayat 1996 MLD 1895; Habib Bank Ltd. v. Noor Ahmed 1990 CLC 1170; Zahid Hussain Rathore v. President, All Pakistan Women Association 2013 YLR 2247; Ahsan Ali v. Jaffar Ali PLD 1964 (W.P.) Kar. 418; Asad Brothers v. Ibadat Yar Khan 1991 SCMR 986; Zarina Khawaja v. Mahboob Shah PLD 1988 SC 190; Muhammad Aslam v. Muhammad Umar PLD 1982 Kar. 107; Rahimuddin v. Jalaluddin PLD 1991 SC 484; Zarina Khawaja v. Mahboob Shah PLD 1988 SC 190; Sultan Muhammad v. Saeed Ahmed PLD 1983 Lah. 27; Akhtar Jehan Begum v. Muhammad Azam Khan PLD 1983 SC 1; Muhammad Amin v. Ghulam Nabi PLD 1990 SC 1201; Muhammad Rafique v. Muhammad Rafique 2008 CLC 387 and Fazal Karim v. Muhammad Daud 1987 MLD 2741 ref.

Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 and Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246 rel.

Anwar Mansoor Khan for Petitioner.

Faisal Siddiqui for Respondents Nos. 1 and 2.

IXth Rent Controller (South) at Karachi, Respondent No.3.

Additional District Judge (II) South at Karachi, Respondent No.4.

Date of hearing: 23rd May, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2374 #

2014 Y L R 2374

[Sindh]

Before Naimatullah Phulpoto and Salahuddin Panhwar, JJ

MURK and others---Petitioners

Versus

SHAHEED MOHTARMA BENAZIR BHUTTO, MEDICAL UNIVERSITY through Vice-Chancellor and others---Respondents

Constitutional Petitions Nos. D-958, 1104, 1124, 1194, 1268, 1327 and M.As. Nos.5385 and 4526 of 2013, decided on 29th May, 2014.

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

----S. 11---Constitution of Pakistan, Art.199---Constitutional petition---Admis-sion in (evening classes) of M.B.B.S.---Scope---Contention of respondent was that Pakistan Medical and Dental Council Rules did not permit the evening classes of M. B. B. S---Validity---Pakistan Medical and Dental Council Rules did not permit the evening classes of M. B. B. S---No provision recognized/allowed the evening classes of M. B. B. S. in any medical college of the country---Vice-Chancellor, in the present case, had announced evening classes admission which was contrary to the law---Petitioners could not be admitted in morning classes as same would affect the academic career of regular students---Limited seats had been allocated to every institution by the Pakistan Medical and Dental Council and no college could exceed such limit---Constitutional petitions were dismissed in circumstances, however High Court observed that petitioners would be at liberty to sue Vice-Chancellor and other concerned officers in accordance with law before competent court having jurisdiction---High Court further directed that Pakistan Medical and Dental Council should also conduct probe and action should be taken against the delinquent officials as per law.

Chairman, Selection Committee v. Wasif Zamir Ahmed 1997 SCMR 15; Imdad Hussain v. Province of Sindh PLD 2007 Kar. 116 and Pakistan Medical and Dental Council v. Ziauddin Medical University PLD 2007 SC 323 distinguished.

Asif Ali Abdul Razak Soomro for Petitioners (in C.P. No.D-958 of 2013).

Safdar Ali Ghouri for Petitioners (in C. P. No.D-1104, 1268 and 1327 of 2013).

Inayatullah G. Morio for Petitioners (in C. P. No. D-1124 of 2013).

Akeel Ahmed Bhutto for Petitioners (in C. P. No.D-1124 & 1194 of 2013).

Faiz Muhammad Larik for Respondents Nos.1 and 2.

M. Sohail H. Rana and Riaz Ahmed Soomro for PM&DC.

Habibullah G. Ghouri for Principal, Chandka Medical College, Larkana.

Jai Jai Veshnu Mange Ram, Deputy Attorney General.

Naimatullah Bhurgri, State Counsel.

YLR 2014 KARACHI HIGH COURT SINDH 2398 #

2014 Y L R 2398

[Sindh]

Before Amer Raza Naqvi, J

IBRAHEEM---Applicant

Versus

The STATE---Respondent

Bail Application No.810 of 2014, decided on 9th July, 2014.

Criminal Procedure Code (V of 1898)---

----S.497---Sindh Arms Act (V of 2013), S.23 (i)-A---Penal Code (XLV of 1860), Ss.324 & 353---Recovery of illegal weapon---Bail, grant of---Bail in main case---Accused was facing attempt to murder trial and during investigation a revolver was allegedly recovered from him---Accused contended that he had already been granted bail in main case and no one was injured from police party and only accused was injured and arrested---Validity---Accused had already been granted bail in main cases and there was no contradiction in respect of recovery---Legal grounds urged had some substance and accused had made out a prima facie case for grant of bail---Bail was allowed in circumstances.

PLD 2014 Sindh 282 and 2014 YLR 1372 ref.

Muhammad Hanif for Applicant.

Saleem Akhtar, Additional Prosecutor General for Respondent.

Date of hearing: 9th July, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2412 #

2014 Y L R 2412

[Sindh]

Before Nazar Akbar, J

Mst. RUKHSANA TARIQ---Plaintiff

Versus

MUHAMMAD ISHAQ and 7 others---Defendants

Suit No.851 of 2012 and C.M.A No.7928 and Official Assignee References Nos.6 and 7 of 2014, decided on 13th June, 2014.

Partition Act (IV of 1893)---

----S. 3(1)---Suit for partition---Sharer undertook to buy---Procedure---Valuation of share--- Determination--- Defendants were running same business which their father was running from the same premises---Defendants had wilfully not attended the office of Official Assignee---Effect---High Court directed Official Assignee to seal godown immediately and ensure compliance of earlier order pending determination of right of plaintiffs in income generated from business of their deceased father---Compliance report of sealing godown in question should be submitted by Official Assignee---Application was disposed of accordingly.

Abdul Qadir Khan for Plaintiff.

Abbas Ali, for Defendants Nos.1, 2 and 5.

Muhammad Azhar Fareedi, for Auction Purchaser.

Qadir Bux Omerani, Official Assignee.

YLR 2014 KARACHI HIGH COURT SINDH 2417 #

2014 Y L R 2417

[Sindh]

Before Muhammad Iqbal Kalhoro, J

SHAH MUHAMMAD alias BABOO and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-713 of 2013, decided on 6th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-B & 34---Kidnapping, abduction or inducing woman to compel for marriage etc., common intention---Bail, refusal of---Incident took place at the house of complainant, which was witnessed by the relatives of the complainant available in the house---Presence of said relatives at the place of occurrence could not be looked into deeply at bail stage, as same would amount to deeper appreciation, which was not permissible under the law---Both accused had been specifically nominated to have committed the offence of abduction, punishable with imprisonment for life falling under prohibitory clause of S.497(1), Cr.P.C.---In such cases discretionary relief of granting bail to accused, could be favourbly considered only under strong exceptional circumstances nudging their case in the purview of further inquiry---Accused, had not been able to point out any such ground available in their favour---In absence of any strong motive to falsely implicate accused, which was discernible at tentative assessment of material available on record, accused could not claim bail as a matter of right---Alleged abductee in her statement recorded under S.164, Cr.P.C., had fully implicated accused; she prima facie had supported the prosecution case---Delay in lodging F.I.R. had reasonably been explained by the complainant---Even otherwise, delay per se was not to be considered to grant bail to accused involved in a case carrying capital punishment---Subsequent bail application could be filed on some fresh grounds which were not in existence at the time of moving first bail application---Examination of a free will allegedly exercised by the abductee for marriage in juxtaposition of her evidence recorded in the trial, required deeper probe, which the Trial Court was competent to undertake at the stage when all the prosecution witnesses had been examined, excepting Investigating Officer of the case---Court in such situation would stay its hands to either grant or refuse the bail when the trial had considerably progressed---Accused, having not been able to make out a case of further inquiry, their bail application was dismissed.

Mazhar Hussain v. State 2012 SCMR 887; Kashif Raza v. State 2012 YLR 633; Ghulam Hyder v. State 2011 YLR 2446; Nazir Ahmed v. The State PLD 2014 SC 241 and 2011 SCMR 1332 ref.

Ghulamullah Chang for Applicants.

Mushtaque Ahmed Abbasi, DDPP for the State.

YLR 2014 KARACHI HIGH COURT SINDH 2452 #

2014 Y L R 2452

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD ESSA---Applicant

Versus

GOVERNMENT OF SINDH through District Coordination Officer and 6 others---Respondents

Civil Revision No.348 of 2011, decided on 13th May, 2014.

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

----Ss. 42 & 12---Suit for declaration---Decree passed in favour of plaintiff, regarding suit-land in an earlier suit---Effect---Plaintiff contended that he had been forcibly dispossessed by defendant---Validity---Plaintiffs' suit against the original vendor/owner had been decreed, execution petition whereof was pending adjudication---Plaintiff's sale agreement with original vendor/owner stood proved after his suit for specific performance against said owner had been decreed---Decree in plaintiff's favour was still holding the field and had attained finality and had binding effect on suit-land and the parties to the suit---Concerned parties had failed to challenge the said decree---Plaintiff, therefore, was legal owner of the suit-land---Suit-land having been sold to the plaintiff, its subsequent transfer in the name of the defendant on the basis of sale statement in the Record-of-Rights was illegal and result of mala fide---Registered sale-deed in favour of defendant and its incorporation in Revenue Record was illegal and liable to be cancelled---Note of abeyance made by the Tapedar in entry register had no legal value, as Tapedar had no such legal authority---Where basic document of any transaction was found illegal, entire series of documents executed subsequently would also be deemed as illegal and void---Without setting aside decree in favour of plaintiff, operation of said decree could not be suspended through an order in another suit---Defendant had prior knowledge of the sale in favour of plaintiff and he knowingly and deliberately purchased the suit-land so he could not take benefit of the transaction---Defendant's plea of bona fide purchaser without notice was not tenable---Revision was dismissed.

Ghulam Fareed v. Muhammad Bakhsh 2008 SCMR 1201 rel.

(b) Decree---

----Decree passed in earlier suit---Binding effect---Scope---Order for suspension of operation of an earlier decree through any other suit was not permissible unless such decree had been set aside.

Muhammad Ishaque Khoso for Applicant.

Zain-ul-Abdin for Respondents.

Date of hearing: 10th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2473 #

2014 Y L R 2473

[Sindh]

Before Hasan Feroz, J

SAJJAD ALI and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No.S-181 of 2013, decided on 30th April, 2014.

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

----Ss. 435 & 439---Revision---Scope---Scope of revision was limited---Revisional Court, was not a 'toothless paper tiger', but could always exercise its power to correct manifest illegality, or prevent gross miscarriage of justice---Court was duty bound to exercise its power and authority when facts calling for its exercise, were brought to its notice, or came to its notice---Revisional court, had jurisdiction to correct the error, resulting from non-reading, misreading of evidence, or when the courts below failed to exercise jurisdiction vested in them.

Nur Elahi v. The State and 2 others, PLD 1966 SC 708; Pahalwan Machhi v. Abdul Wahid and another 1991 PCr.LJ 728; Patasho v. The State 1997 MLD 1689; Naveed and another v. The State 2014 PCr.LJ 250; PLD 1982 SC (AJ&K) 13; PLD 1983 SC 73; PLD 1981 SC 352; 2005 YLR 2325; PLD 1999 Kar. 144; 1993 PCr.LJ 1463; 1995 PCr.LJ 1835; 2000 SCMR 735 ref.

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

----Ss. 381-A & 34---Theft of motorcycle, common intention---Appreciation of evidence---Sufficient doubt existed in the prosecution case which had shrouded the very root cause of the case, as complainant had clearly stated that he had not witnessed the incident as far as the theft of motorcycle was concerned---Motorcycle was parked by the complainant without locking same---No registration number of said motorcycle was disclosed by the complainant in his evidence---Complainant had not produced any document to even remotely substantiate that said motorcycle was owned by him or it was in his name---Material contradictions in the case were not attached importance by the two courts below---Record showed that number of persons had gathered at the place of incident, and at the place of arrest, but no one was cited as witness---Mashirs cited by the complainant, were his relations belonging to his village---Story of incident was fabricated, and not confidence inspiring and same had cast serious doubts in the prosecution case---No points were framed for disposal of appeal nor importance was attached to material available on record---Decision in appeal was mainly based on the submissions made by counsel for appellants---Slipshod method adopted by Appellate Court, in no way could be appreciated, nor would amount to dispensation of fair justice adhering to due process of law---Impugned judgment passed by the two courts below, was set aside---Accused who had already suffered a lot by firstly remaining in Police custody, and then in custody during trial, as well as pursuant to their conviction, were set at liberty, in circum-stances.

----Benefit of doubt---Scope---Prosecution was to establish its case beyond any shadow of reasonable doubt; and for extending benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubt---If there appeared a single circumstance, which created reasonable doubt in a prudent mind about the guilt of accused, the accused was entitled to benefit of doubt, not as a matter of grace and concession, but as a matter of right.

2013 YLR 2600; Rehmatullah and others v. The State 2005 PCr.LJ 60 and Rabnawaz v. The State 2000 PCr.LJ 1036 ref.

Ms. Aliya Sahar Qaimkhani for Applicants.

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

Date of hearing: 23rd April, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2499 #

2014 Y L R 2499

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD ANWAR KHAN through Attorney---Appellant

Versus

Mst. BUSHRA SIDDIQUI and 3 others---Respondents

Revision Application No.184 of 2010, decided on 20th March, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of contract---Limitation---Oral agreement---Scope---Both the courts below had appreciated the material available on record in its true perspective---Findings recorded by the courts below were neither perverse nor against the evidence nor evidence was misread nor any material piece of evidence had been ignored---No infirmity or illegality had been pointed out in the impugned judgments and decrees passed by the courts below---Suit was filed after twenty (20) years from the alleged oral agreement and such delay had not been explained by the plaintiff---Suit was barred by time---Revision was dismissed in circumstances.

Raja H.R. Naurang for Applicant.

Nemo for Respondent No.1.

Mukhtiar Ahmed Khanzada for Respondent No.1.

State Counsel for Official Respondents.

Date of hearing: 20th March, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 2508 #

2014 Y L R 2508

[Sindh]

Before Muhammad Shafi Siddiqui, J

NANIK RAM and 3 others---Petitioners

Versus

JURIO MAL and 7 others---Respondents

Constitutional Petition No.S-1094 of 2010, decided on 14th March, 2013.

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

----S. 55(4)(b)---Failure to make complete payment of sale consideration---Effect---If the amount of the sale consideration had not been paid completely, the seller was entitled to a charge upon the property in hands of the buyer for the amount of purchase-money, any part thereof remaining unpaid and for interest on such amount or part---Rights of the seller and buyer were protected---Balance amount allegedly outstanding would not cause any effect on the registered sale-deed---Registered sale-deed would remain intact and would not be nullified on account of alleged non-payment of the balance amount for which rights of the seller were protected.

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

----Ss. 10(3) & 15---Ejectment of tenant---Bona fide personal need of landlord---Application for ejectment was dismissed---Landlord initially purchased the rented property for the extension of Mandir---No necessity was shown by the landlord to require the premises for personal bona fide need, nor any notice was stated to have been issued to establish personal requirement---Landlord suddenly planned to reside at the subject premises---Effect---No doubt it was the prerogative of the landlord to decide the suitability and choice but such prerogative could not be based on apparent mala fide.

----Art. 199---Constitutional petition---Laches--- Determination--- Discretionary powers---Lapse of time or question of laches in matter of filing of constitutional petition, was to be examined on equitable principle for the reason that exercise of constitutional jurisdiction was always discretionary---Equity leaned in favour of the petitioner, the court must exercise discretion in favour of such party---Issue of delay or laches was to be considered with reference to the facts of each case and no hard and fast rule could be laid down in that behalf.

Allah Din v. Habib PLD 1982 SC 465; Syed Arshad Ali Hashmi v. Khursheed Begum 2001 CLC 960; Muhammad Luqman Ahmad v. Munir Ahmad and another 1997 CLC 651; Hafeezullah v. Suhail Mahmood and 8 others PLD 2001 Kar. 165; Mst. Hajiyani Ayesha Bai v. Zahid Hussain PLD 2002 SC 388; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 and Sulleman Mala and others v. Khawaja Muhammad Ramzan and others 2003 YLR 226 ref.

Ghulam Dastagir A. Shahani for Petitioners.

Rehmat Allay Rajput for Respondents Nos. 1 and 2.

Date of hearing: 14th March, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 2528 #

2014 Y L R 2528

[Sindh]

Before Zafar Ahmed Rajput, J

Mst. RESHMAN through Attorney---Applicant

Versus

PROVINCE OF SINDH through Secretary, Board of Revenue, Karachi

and others---Respondents

Civil Revisions Nos.11 and 12 of 2009, heard on 18th November, 2013.

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

----O.XLI, R.31---"Judgment" in appeal---Points for determination---Scope---Provisions of O. XLI, R. 31, C.P.C. were mandatory in nature and same should be followed to decide the matter in accordance with law---Appellate Court, in the present case, had passed judgment ignoring the provisions of O. XLI, R. 31, C.P.C. as no point for determination was framed nor findings were given on such points---Impugned judgment could not be said to be a "judgment" of the Appellate Court within the meaning of O. XLI, R.31, C.P.C.---Where Appellate Court had over-looked, ignored and failed to consider evidence on record or order of said court was the result of lack of application of judicious mind then same would amount to failure to comply with the provisions of O. XLI, R. 31, C.P.C.---Impugned judgment and decree passed by the Appellate Court were set aside and case was remanded to the said court for passing a de novo judgment and decree after framing points for determination in appeal within a specified time---Revision was accepted in circumstances.

Juma Khan v. Mst. Shamim and others 1992 CLC 1022 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was meant to rectify the errors committed by the courts below.

Syed Jaffer Ali Shah for Applicant.

Respondent No.1(i) in person (in Civil Revision No.12 of 2009).

Imtiaz Ali Soomro Assistant A.G. for the Official Respondents.

Date of hearing: 18th November, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 2548 #

2014 Y L R 2548

[Sindh]

Before Sadiq Hussain Bhatti, J

MAZHAR BUTT---Appellant

Versus

UNITED BANK LTD. and another---Respondents

First Appeal No.119 of 2011 and C.M.A. No.561 of 2013, decided on 24th December, 2013.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Review application--- Scope--- Applicant sought review of impugned judgment on account of certain mistakes in the narration of facts and law---Validity---Applicant had failed to show anything that the conclusion arrived by the Court was wrong, therefore in the absence of any material defect, review application was dismissed.

Khairpur Textile Mills Ltd. and others v. National Bank of Pakistan and another 2003 CLD 326 distinguished.

Ghulam Mohiuddin, advocate for the Appellant.

S. A. Husny for Respondent No.1.

Abdul Sattar Lakhani for Respondent No.2.

Date of hearing: 16th December, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 2593 #

2014 Y L R 2593

[Sindh]

Before Syed Muhammad Farooq Shah, J

JETHANAND---Appellant

Versus

JUMOO and 18 others---Respondents

Criminal Acquittal Appeal No.S-13 of 2006, decided on 21st February, 2014.

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

----S. 417(2)---Appeal against acquittal---Interference--- Scope--- Identification parade was not conducted in accordance with law---Impugned judgment appeared to be elaborate and announced after appraisal of evidence; and placing reliance on the case-law of superior courts---Counsel for appellant, could not demonstrate any illegality, gross irregularity or infirmity in the impugned judgment---No occasion to set aside the impugned judgment, which was a speaking one---Appeal having no merits, was dismissed, in circumstances.

Advocate General Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1; Farman Ali v. The State 1997 SCMR 971; Rab Nawaz and others v. The State PLD 1994 SC 858 and Nadeem-ul-Haque Khan v. The State 1995 SCMR 510 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Each and every doubt arising out of the case of prosecution was to be resolved in favour of accused; and for extending benefit of doubt to an accused, multiple circumstances were not required---Only a single circumstance creating reasonable doubt in the prudent mind, would entitle accused to such benefit.

Tarique Perwaiz v. The State 1995 SCMR 1345 and Loung through Central Prison, Hyderabad v. The State 1999 PCr.LJ 595 rel.

----S. 417(2)---Appeal against acquittal---Interference---Scope---Order of acquittal, could only be interfered with when it was found on the face of it as capricious, perverse, arbitrary in nature, or based on misreading, non-appraisal of evidence; and was artificial, arbitrary and led to gross miscarriage of justice---Mere disregard of technicalities in a criminal trial without resulting injustice, was not enough for interference---Order/judgment of acquittal would give rise to strong presumption of innocence, rather double presumption of innocence was attached to such an order---While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower courts, whereby accused were exonerated from the commission of crime---Acquittal would be unquestionable when it could not be said that acquittal was either perverse, or that acquittal judgment was improper, or incorrect---Whenever there was doubt about guilt of accused, its benefit must go to accused, and court would never come to the rescue of prosecution to fill the lacuna appearing in evidence of prosecution as it would be against established principles of dispensation of criminal justice.

1998 PCr.LJ 1576; 1985 PCr.LJ 2973; 1991 SCMR 2220; 1993 SCMR 28; 1985 PCr.LJ 457; PLD 1966 SC 424; 1998 SCMR 1281 and 1997 PCr.LJ 477 ref.

Syed Tariq Shah for Appellant.

Syed Meeral Shah, D.P.G. for Respondents.

YLR 2014 KARACHI HIGH COURT SINDH 2600 #

2014 Y L R 2600

[Sindh]

Before Riazat Ali Sahar, J

MUHAMMAD NAWAZ---Applicant

Versus

ALTAF HUSSAIN and 8 others---Respondents

Civil Revision No.S-158 of 2010, decided on 7th April, 2014.

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

----S.161---Cancellation of grant of land---Jurisdiction of civil court---Bar---Points for determination---Scope---Contention of defendant was that Appellate Court had not formulated points for determination---Suit was decreed concurrently---Validity---Plaintiffs filed appeal against the impugned order which was dismissed by the Executive District Officer (Revenue)---Said order could further be assailed on the point of limitation but no such remedy was availed before the Revenue hierarchy---Jurisdiction of civil court was barred as remedies under Revenue Laws had to be exhausted in the first instance which had not been done in the present case---Civil court was court of ultimate jurisdiction and matter finalized by revenue forum was open to challenge before the same---Appellate Court was bound to formulate points for determination looking to the case of both the parties---Points for determination formulated by the Appellate Court were so exhaustive that those had covered the entire case---Trial Court had not indicated the record which was taken into consideration for the purpose of measurement of land in dispute---Courts could call for relevant record itself to administer justice and they were not supposed to blindly accept the reports---Both the courts below had acted in cursory manner---Impugned judgments and decrees passed by both the courts below were set aside---Revision was accepted in circumstances.

Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana (Barrage Mukhtiarkar) and others, 2007 CLC 1790 and Administrator, Thal Development through EACO Bhakkar and others v. Ali Ahmed, 2012 SCMR 730 rel.

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

----S. 115---Revision---Scope---Revision would lie on the point of jurisdiction, failure to exercise jurisdiction vested or exercise of jurisdiction not vested or exercise of jurisdiction with illegality or irregularity.

Mukhesh Kumar G. Karara for Applicant.

Mian Abud Salam Arain for Respondents Nos. 1 to 4.

Agha Athar Pathan, Assistant Advocate General for official Respondents.

Date of hearing: 17th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2628 #

2014 Y L R 2628

[Sindh]

Before Hasan Feroz, J

ABDUL REHMAN---Applicant

Versus

2ND ADDITIONAL SESSIONS JUDGE, BADIN and 2 others---Respondents

Criminal Miscellaneous Application No.S-386 of 2013, decided on 10th April, 2014.

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

----Ss. 22-A & 22-B---Applicant had impugned order passed by Ex-Officio Justice of Peace, whereby his application filed under Ss.22-A & 22-B, Cr.P.C. for registration of F.I.R. against proposed accused persons, was dismissed---Impugned order was passed after calling a report from concerned Police Station, and pendency of civil litigation between the parties, was also considered for declining registration of the F.I.R.---Powers under Ss.22-A, 22-B, Cr.P.C., were given to Justice of Peace to direct the Police Officers to record the statement in the register, if a cognizable offence was made out---Said powers, were administrative, which had been given to supervise and to aid the criminal justice system and were not of judicial nature, but administrative and ministerial in nature---While exercising such powers, Justice of Peace, had to form his opinion, whether a cognizable offence had been made out or not---Justice of Peace, in the present case, had concluded that there was a civil dispute between the parties in respect of agreement of sale, which according to applicant was fabricated document and best course for the applicant was to secure ends of justice by a private complaint; however, applicant could not be impeded to seek relief under Ss.22-A, 22-B, Cr.P.C.---Impugned order passed by Justice of Peace, was set aside; case was remanded to Justice of Peace, with direction to pass appropriate order in accordance with law.

Muhammad Bashir v. S.H.O. Police Station Okara Cantt. and others PLD 2007 SC 539 ref.

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

----Ss. 154 & 155---Entering information in cognizable cases---Statutory duty, under S.154, Cr.P.C. had been cast upon the officer incharge of Police Station to enter information regarding commission of any cognizable offence in a register, provided said information/complaint made by a person from its contents constitute a cognizable offence---If said information did not constitute cognizable offence, then such information be recorded in the station diary of Police Station under S.155, Cr.P.C.

Muhammad Sachal Awan for Applicant.

Shahid Ahmed Shaikh, A.P.-G. and Haji Muhammad Patafi, S.H.O. Police Station Khoski for Respondents.

Muhammad Nawaz Jamali for accused.

Date of hearing: 1st April, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2635 #

2014 Y L R 2635

[Sindh]

Before Abdul Rasool Memon and Riazat Ali Sahar, JJ

NISAR AHMED---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.D-76 of 2012, decided on 24th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss.365, 324, 342, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping, attempt to commit qatl-e-amd, wrongful confinement, rioting, common object, act of terrorism---Scope of S.514, Cr.P.C.---Failure of accused to appear in court---Cancellation of bail bond and attachment of immoveable property of surety---Accused for whom applicant stood surety, was on bail and remained absent on date when the matter was called; and Trial Court cancelled bail bond of accused and issued notice to the surety---Trial Court without forfeiting bond and giving reason thereof, ordered attachment of immovable property of surety and his crop of land---Under provisions of S.514, Cr.P.C., when a bond had been given by a person for appearance of accused before the court; and accused disappeared from the court, then the court had first to forfeit the bond and to record reasons thereof; thereafter to call the surety to show cause as to why the penalty should not be paid for such breach---If sufficient cause was not shown and the penalty was not paid, the court could proceed to recover the same by issuing of warrants for the attachment and sale of the movable property belonging to surety, and movable property did not include land---Order of attachment and sale of immovable property of surety, was found to be in violation of provisions of S.514, Cr.P.C.---Bond of surety having not been forfeited, show-cause notice was issued in violation of provision of S.514, Cr.P.C.; and attachment of property of the surety was in contravention of S.514(2), Cr.P.C.---Impugned orders were set aside, and case was remanded to the Trial Court with direction to proceed afresh after compliance of provisions of S.514, Cr.P.C.

Rana Masood Ahmed v. The State PLD 1992 Kar. 213; Naseer Muhammad v. The State 1996 PCr.LJ 860; Muhammad Ramzan v. Muhammad Alam and 3 others 2003 PCr.LJ 461 and Tassaduq Hussain Gillani v. The State through Advocate General and 3 others 2012 PCr.LJ 1108 ref.

Muhammad Iqbal Memon for Applicant.

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

Date of hearing: 27th March, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2644 #

2014 Y L R 2644

[Sindh]

Before Ahmed Ali M. Shaikh and Syed Muhammad Farooq Shah, JJ

MAQBOOL AHMED SHEIKH and others---Appellants

Versus

The STATE---Respondent

Criminal Accountability Appeal No.52 of 2001, Criminal Revision Applications Nos. 136 and 159 of 2001, 61, 62, 63, 64, 69, 70, 75, 76, 77, 78, 85 and 88 of 2002, decided on 1st July, 2014.

National Accountability Ordinance (XVIII of 1999)---

----Ss.18(a)(c)(g) & 32---Summoning of accused--- Accountability Court, jurisdiction of---Appellants were not arrayed as accused in Reference filed by National Accountability Bureau but Accountability Court summoned them as accused to face trial---Validity---No inquiry or investigation was ever conducted/initiated against appellants by National Accountability Bureau and in References/Supplementary References, filed by National Accountability Bureau after inquiry and investigation and names of appellants did not find place---Accountability Court had no power to either include new persons in list of accused or conduct its own investigation or substitute its own opinion with that of investigating officer authorized under National Accountability Ordinance, 1999---Before issuing non-bailable warrants against appellants no notices were issued by Accountability Court and the same was against principles of natural justice---When law requires a particular thing to be done in a particular manner, it must be done in that manner and in no other manner---High Court set aside orders passed by Accountability Court, as the same were contrary to provisions of Ss.18(a), (c) and (g) of National Accountability Ordinance, 1999, resultantly proceedings against appellant were quashed---Appeal was allowed in circumstances.

Kabir Khan v. The State 2003 YLR 1607 and Ahmed Siyal v. National Account-ability Bureau 2004 SCMR 265 ref.

Kamal Azfar, A.Q. Halepota, Abdul Hafeez Lakho, Muhammad Ashraf Kazi and Habib Ahmed for Appellants.

Noor Muhammad Dayo, ADPG, NAB for the State.

Date of hearing: 7th May, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2672 #

2014 Y L R 2672

[Sindh]

Before Hasan Feroz, J

JUNAID GHAFOOR and 5 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.897, 910 to 914 of 2014, decided on 10th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), Ss.23-A & 24---Bail, grant of---Further inquiry---Recovery from accused was shrouded in doubt as the same was based on joint mashirnamas---Arrest of the accused by Plain clothes police personnel two days before their formal arrest had been intimated to the Police Station which dented prosecution story and brought accused's case within ambit of further inquiry under S.497(2), Cr.P.C.---Each case had to be seen through its own facts and circumstances---Accused might not have committed the alleged offence---In the absence of mens rea, actus reus had not precipitated (into criminal liability)---Bail was granted.

Inayat Ali v. The State 2014 YLR 1372 ref.

Samiullah Soomro and Khawaja Naveed Ahmed for Applicants.

Abrar Ali Kitchi, A.P.-G. and Ms. Rohila Nazeer for the State.

Date of hearing: 10th June, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2685 #

2014 Y L R 2685

[Sindh]

Before Salahuddin Panhwar, J

ALI GHULAM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.S-43 and M.A. No.2247 of 2013, decided on 7th July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 497---Penal Code (XLV of 1860), Ss.302, 324, 114 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, common intention---Application for suspension of sentence---Powers under S.426, Cr.P.C. were not wider than powers under S.497, Cr.P.C.---Deeper appreciation was not permissible under the law, while suspending the sentence---In the case of suspension of sentence, only tentative assessment of available evidence was permissible, and detailed appraisal thereof was to be avoided---Applicant/ accused had been convicted to life imprisonment for his involvement in the offence of murder on the basis of sharing common intention with principal accused---Applicability of S.34, P.P.C., could not be ruled out, in circumstances---Applicant had failed to point out any patent illegality in the judgment recorded by the Trial Court---Application for suspension of sentence being devoid of merits was dismissed.

Muhammad Nawaz and others v. The State 1994 PCr.LJ 984; Muhammad Yasin v. The State and another 2007 MLD 1066; Jamshed Ali and another v. The State PLD 2008 Lah. 306; Siraj Din and another v. The State 2008 MLD 515; Azmatullah v. The State and another 2011 SCMR 1935; Ghulam Mujtaba Qadri v. The State and others 2012 SCMR 662; Shah Nawaz and another v. The State 2014 PCr.LJ 921 and Babar Ali v. Bashir Ahmed 2007 SCMR 185 ref.

Mazhar Ahmed v. The State 2012 SCMR 997 rel.

Altaf Hussain Khokhar for Appellant.

Syed Meeral Shah Bukhari D.P.G. Sindh for the State.

YLR 2014 KARACHI HIGH COURT SINDH 2703 #

2014 Y L R 2703

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. JAMILA---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Acquittal Appeal No.64 of 2012, decided on 28th May, 2014.

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

----Ss.506-B & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Criminal intimidation---Common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Contradictions were noticed in the statements of the prosecution witnesses---Complainant had not stated in the F.I.R. that accused kept pistol on her head, but alleged the same in her deposition---F.I.R., in the case was lodged after 23 days of the alleged incident, for which no plausible explanation had been furnished---Husband of the complainant, in his deposition had not said that accused persons attacked upon him; and that his wife/complainant was also beaten by female accused; and that accused kept pistol on the head of the complainant as alleged by her in her statement---In view of said glaring contradictions, in the evidence of the prosecution witnesses, serious doubts had developed in the prosecution case---Accused was entitled to be extended benefit of doubt as a matter of right, as there were many circumstances which had created doubt in the prosecution case---Accused could not be deprived of benefit of doubt, merely because there was only one circumstance which created doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

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

----S.417(2-A)---Appeal against acquittal---Scope---Approach for dealing with the appeal against acquittal would be different and distinguishable, from that of appeal against conviction, because in appeal against acquittal, presumption of double innocence of accused was attached to the order of acquittal---Order of acquittal, could only be interfered with, if the same, on the face of it appeared to be perverse, arbitrary, illegal, wholly illogical or unreasonable, or in case the reasons assigned by the Trial Court, for acquittal were speculative and of artificial nature, or the findings were base on no evidence.

Ms. Fareeda Motan for Appellant.

Tariq Bin Nazir for Respondents Nos. 2 to 5.

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

YLR 2014 KARACHI HIGH COURT SINDH 2714 #

2014 Y L R 2714

[Sindh]

Before Muhammad Ali Mazhar, J

ASIM RIZWANI and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.1126 to 1128 of 2013, decided on 10th September, 2014.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.409, 420, 468 & 471---Criminal breach of trust, cheating, forgery and use of forged document---Bail, grant of---Case of further inquiry---Benefit of doubt---Out of one and same inquiry, accused was implicated in more than 42 cases and the prosecution had collected the only evidence against accused which was highlighted and produced before the High Court---Validity---Strong piece of evidence, according to the prosecution, was copies of three cheques which were allegedly given to accused as his share in scam which required further inquiry to prove guilt of accused---Investigation was completed in all cases and no useful purpose would be served to retain accused behind the bars---Bail could not be withheld as punishment on the ground that offense with which accused was charged was non-bailable---Grant of bail or its refusal was a judicial exercise of discretion and it was incumbent upon Court to make tentative assessment of material collected by prosecution as well as defence---Benefit of doubt could be given to accused even at bail stage and law could not be stretched in favour of prosecution---Accused was ready to pay allegedly embezzled amount to complainant in view of evidence collected by investigating officer, so far against him which was subject to final outcome of cases pending in Trial Court---Bail was allowed accordingly.

Sardar Amin Farooqui's case 2014 SBLR 766 and Shamraiz Khan v. State 2000 SCMR 157 ref.

(b) Constitution of Pakistan---

----Art. 10-A---"Right of fair trial"---Object, scope and purpose---Object of trial is to make accused to face trial and not to punish under-trial prisoner---Basic idea is to enable accused to answer criminal prosecution against him rather than to rot him behind the bars---Accused is also entitled to expeditious access to justice, which includes right to fair and expeditious trial without any unreasonable delay.

Haseeb Jamali, Hassan Sabir and Ayaz Ansari for Applicants.

Muhammad Aslam Butt, D.A.G. for the State.

Israr Ahmed, Director Law, F.I.A

Ali Hassan Zardari, M. Sajjad Khan and Irfan Ahmed, Investigating Officers, F.I.A.

Date of hearing: 10th September, 2014.

YLR 2014 KARACHI HIGH COURT SINDH 2727 #

2014 Y L R 2727

[Sindh]

Before Syed Muhammad Farooq Shah, J

SHAKEEL AHMED---Petitioner

Versus

SENIOR CIVIL JUDGE AND RENT CONTROLLER and 2 others---Respondents

Constitutional Petitions Nos. S-495 and S-496 of 2009, decided on 15th January, 2014.

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

----Ss.2(g), 13 & 15---Constitution of Pakistan, Art.199---Constitutional petition--Eviction of tenant (petitioner)---Personal bona fide need of landlord (respondent)---Selection of tenement for personal need of landlord---Scope---Owner of the property had absolute right to deal with property, in the manner he/she liked and no disqualification or adverse inference could be recorded by the Rent Controller, nor could it be made a ground for refusal of ejectment on the plea of personal need---Section 15 of Sindh Rented Premises Ordinance, 1979 had provided ample safeguard to the interest of tenants in the rented shops in question but the tenants were not required to decide the suitability of the need of the landlord, which was the absolute choice and prerogative of landlord---Constitutional petition was dismissed.

Sabu Mul v. Kika Ram 1973 SCMR 185 and Messrs F.K. Irani and Co., v. Begum Feroze 1996 SCMR 1178 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Legislature in its wisdom had shortened the span of litigation in rent cases and in such circumstances, interference by High Court, in exercise of its constitutional jurisdiction would add to the misery of prolonged litigation in between the parties and surely would defeat the spirit and object of statute, as well as timely dispensation of justice---Scope of constitutional jurisdiction with regard to the concurrent findings arrived at by two courts below was very limited and such findings could be interfered in exceptional circumstances.

Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488 and Mazhar Hussain Shah through L.Rs. v. Member Board of Revenue Punjab Lahore and others 2006 SCMR 959 rel.

----S. 15---Constitution of Pakistan, Arts.23 & 199---Constitutional petition---Bona fide personal need of landlord---Imposing restriction on landlord on use of his property---Validity---When landlord had appeared in witness box and made statement on oath or in the form of affidavit in evidence as prescribed by law and it remained unshattered in cross examination, the same would be sufficient to prove the bona fide need of landlord---Landlord being owner of demised premises could not be deprived of his rights and interest to use his property, in a manner more suited to his requirement---No unreasonable restriction could be placed on exercise of right by landlord, which would offend the fundamental rights, guaranteed under Art. 23 of the Constitution.

Haji Muhammad Siddique v. District Court Peshawar and others 1990 SCMR 997; PLD 1977 SC 442; Abdul Latif v. Faqir Muhammad 1982 SCMR 1046; Waseem Ahmed v. Shaikh Karim Riazi 1996 SCMR 1055; Mst. Tauheed Khanum v. Muhammad Shamshad 1980 SCMR 593; Hassan Khan's case PLD 1976 Kar. 832; Jahangir Rustam Kakalia v. Hashwani Sales Services (Pvt.) Ltd. 2002 SCMR 241; Iqbal Book Depot v. Khateeb Ahmed 2001 SCMR 1197 and Messrs F.K. Irani v. Begum Feroze 1996 SCMR 1178 rel.

Juzer Q. Pishori for Petitioner.

Muhammad Rafi for Respondent No.3.

Date of hearing: 28th November, 2013.

YLR 2014 KARACHI HIGH COURT SINDH 2735 #

2014 Y L R 2735

[Sindh]

Before Riazat Ali Sahar, J

DUR MUHAMMAD alias HANEY---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.807 of 2013, decided on 28th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object---Application for quashing of order---F.I.R. was lodged on behalf of the State, after injured and his relatives refused to lodge F.I.R.---Plausible explanation for the delay was available---First Information Report showed that applicant along with co-accused had been assigned the role of committing murder of the deceased, and causing injuries to his son---F.I.R. was seconded by the statements of prosecution witnesses under S.161, Cr.P.C.---Question of plea of "alibi", required deeper appreciation, which would be determined by the Trial Court---Application for quashing of impugned order, was dismissed, in circumstances.

Muhammad Rehan Khan, Durani for Applicant.

Mohan Lal Ladhani, DDPP for the State.

Lahore High Court Lahore

YLR 2014 LAHORE HIGH COURT LAHORE 1 #

2014 Y L R 1

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD RIAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1393 and Murder Reference No.413 of 2007, heard on 4th April, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Complainant and other eye-witness were not residents of the village where incident took place, but of other village and could not assign any plausible reason for their being present at the spot at relevant time---Deceased had four children aging between 4 years to 17/18 years, but none of them was cited as a witness in the case; nothing was on record to show that they were not present in the house at the relevant time---Children of the deceased though were minors, but they were natural and competent witnesses of the occurrence---Husband of the deceased who was most natural witness of the occurrence, was not produced by the prosecution as witness, despite the fact that he was present there---Post-mortem examination on the dead body of the deceased was conducted with delay of 11 hours from the occurrence---Said delay was suggestive of the fact that the eye-witnesses were not present at the spot at the time of occurrence; and delay in the post mortem examination of the deceased was used by the prosecution in concocting a false story; and procuring false witnesses of the prosecution---Motive as alleged by the prosecution had not been proved in the case---Recovery of pistol and positive report of Forensic Science Laboratory, were the corroborative piece of evidence, and were relevant only if the primary evidence i.e. ocular account was confidence inspiring---Since primary evidence i.e. ocular account furnished by prosecution witnesses, was not believed, said pieces of evidence were not helpful to the prosecution---Prosecution having failed to prove its case against accused beyond the shadow of doubt, conviction and sentence of accused were set aside, he was acquitted of the charge by extending him the benefit of doubt and was released, in circumstances.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Riaz Ahmad v. The State 2010 SCMR 846; Irshad Ahmed v. The State 2011 SCMR 1190; Muhammad Ashraf v. The State 2012 SCMR 419; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Mursal Kazmi alias Qamar Shah v. The State 2009 SCMR 1410 ref.

Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Muhammad Yaqub v. The State 1971 SCMR 756; Nek Muhammad and another v. The State PLD SC 516; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(b) Criminal trial---

----Medical evidence---Medial evidence could confirm the ocular evidence with regard to the seat and nature of the injury, kind of weapon used in the occurrence, but it would not connect accused with the commission of the occurrence.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

----Benefit of doubt---If there was a single circumstance which created doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

Ch. Muhammad Ashraf Kamboh for Appellant.

Arshad Mehmood, Deputy Prosecutor-General for the State.

Rana Maqsood-ul-Haq for the Complainant.

Date of hearing: 4th April, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 15 #

2014 Y L R 15

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD TAHIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.867 and Murder Reference No.317 of 2008, heard on 8th March, 2013.

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

----S. 302(b)---Qatl-e-amd---Case of two versions, i.e. one put forth by the prosecution in the form of ocular account furnished by the complainant and prosecution witness, while the other had been brought on the record through the statement of accused recorded under Ss.342, 340(2), Cr.P.C., and suggestions put to the prosecution witnesses during their cross-examination---Prosecution was required to prove its case against accused beyond any shadow of doubt and the defence version was to be taken into consideration after evaluating the prosecution evidence to find out whether same inspired confidence or not.

Ashiq Hussain v. The State PLD 1994 SC 879 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---No delay in reporting the matter to the Police---Both the eye-witnesses had plausibly explained their presence at the spot at the relevant time----Presence of complainant and prosecution witness in the house of their sister and sister-in-law, respectively (place of incident), at the time of occurrence, was neither unnatural nor improbable---Complainant being real brother of the deceased, it was highly improbable that he would falsely implicate accused and would let off the real culprit---Substitution in such like cases was a rare phenomenon---Eye-witnesses were cross-examined at length, but their evidence could not be shaken during the process of cross-examination---Said witnesses corroborated each other on all material aspects of the case; their evidence was straight-forward and confidence-inspiring---Medical evidence had fully supported the ocular account furnished by the complainant and prosecution witness---Ocular account about the seat of injuries, the kind of weapon used during the occurrence and the time of incident as narrated by the eye-witnesses of the occurrence, had fully tallied with the medical evidence---Motive had been proved by the prosecution---Prosecution case against accused had also been corroborated by the recovery of pistol on his pointation and the positive report of Forensic Science Laboratory---Plea taken by accused in his defence that he had committed the murder of the deceased on the pretext of honour was not convincing due to number of reasons---Even if said plea of accused was accepted, even then the offence of qatl-e-amd of deceased had been established and proved against him---Question of grave and sudden provocation had not arisen in the case of accused---Prosecution having proved its case against accused through confidence-inspiring and reliable evidence, accused was rightly convicted and sentenced, in circumstances.

Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 and Haji v. The State 2010 SCMR 650 ref.

----S. 302(b)(c) [as amended by Criminal Law (Amendment) Act (I of 2005)], Ss.306, 307 & 308---Qatl-e-amd on account of 'Ghairat'---Counsel for accused had argued that at least it was not a case of capital punishment because accused had committed the murder of his deceased wife on account of 'Ghairat', therefore lenient view could be taken in case of accused---No lenient view could be taken in the present case on account of "Ghairat" (honour)---Counsel for accused had also argued that death sentence awarded to accused was not sustainable in view of provisions of Ss.306, 307 & 308, P.P.C., because accused being husband of deceased was also her legal heir---Contention of counsel was also without any substance because accused had been awarded death sentence by way of "Tazir" under S.302(b), P.P.C. and not as Qisas as provided under S.302(a), P.P.C.---Provisions of Ss.306, 307 & 308, P.P.C. were not applicable in the case.

Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 reviewed.

Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muhammad Akram v. The State 2003 SCMR 855 and Nasir Mehmood and another v. The State 2006 SCMR 204 ref.

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

----S. 302(b)---Qatl-e-amd---Quantum of punishment---Prosecution had proved its case against accused through confidence inspiring and reliable evidence---Accused had committed the murder of his wife by inflicting repeated firearm injuries on her person---No mitigating circumstance was available in favour of accused, as he had committed a shocking, callous and cold blooded murder of his wife---Accused, therefore, did not deserve any leniency and no extenuating circumstance was available in his favour for extending him any benefit regarding his sentence; his conviction and sentence under S.302(b), P.P.C. were maintained and his appeal was dismissed---Death sentence awarded to accused was confirmed and murder reference was answered in the affirmative.

Dawood Ahmad Khan and Mrs. Bushra Qamar for Appellant.

Arshad Mehmood, Deputy Prosecutor General for the State.

Zia-ur-Rehman Ch. for the Complainant.

Date of hearing: 8th March, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 48 #

2014 Y L R 48

[Lahore]

Before Abdul Sami Khan, J

NADEEM AKHTAR alias LOMRI---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.70 of 2011, heard on 13th March, 2013.

Penal Code (XLV of 1860)---

----Ss. 279, 320, 322 & 337-G---Rash driving, Qatl-e-Khata by rash or negligent driving, Qatl-bis-sabab, hurt by rash or negligent driving---Appreciation of evidence---Date, time, place and presence of accused at the place of incident at the relevant time, had been admitted at all hands---Prosecution witnesses (passengers of the van) were unanimous in stating that accused, in spite of their reprimand, was driving van in question in a very high speed rashly and negligently; that accused was trying to take over the other van with whom he intended to have a race and that he was also playing music in a very high-pitche, which diverted his attention and the van collided with the Bus by going on wrong direction---Factum of rash and negligent driving on the part of accused was established beyond any reasonable doubt---Element of negligence was also established not only from the conduct of accused, but from the reliable, trustworthy and confidence-inspiring evidence, produced by prosecution witnesses including injured witnesses---Said witnesses remained consistent on each and every material point---Minor contradictions in the statements of the prosecution witnesses, were not fatal enough to discard the same and to create any doubt in the prosecution story narrated in the F.I.R.---Accused remained unable to establish an element of mala fide on the part of injured witnesses from any material---Defence evidence, itself disproved the plea taken by accused, and same had also been established by both courts below---Courts below, in circumstances had rightly convicted and sentenced accused which was upheld, in circumstances.

1974 PCr.LJ 56; 1980 PCr.LJ 103; 1999 MLD 567; 2001 YLR 3313; 2007 PCr.LJ 1393; 2008 YLR 2571; 2009 PCr.LJ 292 and 2010 SCMR 748 ref.

Raja Habib-ur-Rehman for Petitioner.

Rana Kashif Saleem Arfa Law Officer for the State.

Muhammad Arshad Tabraiz for the Complainant.

Date of hearing: 13th March, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 61 #

2014 Y L R 61

[Lahore]

Before Abdul Sami Khan, J

ABID HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No.1034-Q of 2012, decided on 28th March, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 550---Constitution of Pakistan, Art.199---Constitutional petition---Application for cancellation of Superdari, dismissal of---Contention of the petitioner was that he obtained the car from the Bank on lease through respondent and he paid down payment and car remained in his possession and he paid all the instalments to the Bank---Application for Superdari of the petitioner was accepted by the Illaqa Magistrate but the same was dismissed by the Appellate Court---Car/vehicle was got on lease by the respondent and he paid all the instalments to the Bank---Registration Book reflected the name of the respondent that he was lawful owner of the vehicle/car---Contention of the petitioner that he was benamidar and he paid all the instalments including down payment could be decided by the civil court---High Court, while exercising its jurisdiction in constitutional petition, could not resolve factual controversy---Receipts confirmed that respondent had paid all the instalments to the Bank---No illegality or infirmity in the order passed by the Appellate Court was found---Constitutional petition was dismissed.

2005 SCMR 735; 2007 PCr.LJ 1552 and PLD 2009 Lah. 382 distinguished.

Syed Ali Shah Bokhari for Petitioner.

Nadeem Akhtar Bhatti Assistant Advocate General and Abdul Ghaffar, A.S.-I. for the State.

Muhammad Faisal Malik for Respondent No.2.

YLR 2014 LAHORE HIGH COURT LAHORE 69 #

2014 Y L R 69

[Lahore]

Before Shahid Waheed, J

SARDAR KHAN---Petitioner

Versus

NADIR ALI---Respondent

Civil Revision No.1904 of 2004, heard on 25th June, 2013.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Talbs, performance of---Requirements---Plaint was silent about the date, time, place and names of witnesses before whom the plaintiff declared his intention to exercise right of pre-emption---Requirement of mentioning date, time, place and names of witnesses was mandatory to all the pending matters of pre-emption---Omission qua non-mentioning of details of Talb-e-Muwathibat i.e. date, time, place and names of witnesses in the plaint was fatal---Plaintiff had not performed Talb-e-Muwathibat in accordance with law---Revision was dismissed.

Bashiran Begum v. Nazar Hussain PLD 2008 SC 559; Haji Muhammad Saleem v. Mst. Sahib Jamala and others PLD 2005 SC 977; Nazir Ahmed deceasd through L.Rs. and others v. Muhammad Hussain C.P. No.2307-L of 2012; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302; Haq Nawaz v. Muhamamd Kabeer 2009 SCMR 630; Ghafoor Khan through L.Rs v. Israr Ahmed 2011 SCMR 1545; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911 and Muhammad Ali and 7 others v. Mst. Humera Fatima and 2 others 2013 SCMR 178 rel.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal heirs and another 2000 SCMR 314 distinguished.

Mehdi Khan Chohan for Petitioner.

Naveed Shehryar Sheikh for Respondent.

Date of hearing: 25th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 87 #

2014 Y L R 87

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD AFZAL---Petitioner

Versus

ALI MUHAMMAD---Respondent

Civil Revision No.506 of 2004, heard on 2nd September, 2013.

Punjab Pre-emption Act (IX of 1991)---

---S. 13---Talbs, performance of---Story narrated by the plaintiff with regard to knowledge of sale was not believable---Informer did not mention date and place of performance of Talb-e-Muwathibat---Pleading and proving specific place of knowledge of sale was necessary to prove notice of Talb-e-Ishhad---House was not a specific place as same was a vast place---Scribe of notice of Talb-e-Ishhad was not produced by the plaintiff---Postman was not produced to prove the receipt of notice of Talb-e-Ishhad by the defendant---Findings of First Appellate Court that plaintiff had proved talbs were not in accordance with the evidence available on file---Plaintiff was bound to prove performance of talbs by producing postman to prove the receipt or refusal to receive notice of Talb-e-Ishhad---Pre-emptor had failed to prove notice of Talb-e-Ishhad in accordance with law---Plaintiff had to prove the sale of specific property by producing sale instrument and without producing the same he could not succeed in proving his superior right of pre-emption; he was required to produce sale mutation as well as Register Haqdaran Zamin to establish his right of pre-emption at the time of sale in the impugned khatas, at the time of filing of suit and at the time of decree---Plaintiff had failed to prove his right of pre-emption on the impugned land---Revision was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

Malik Muhammad Kabir for Petitioner.

Muhammad Atif Farzauq Raja for Respondent.

Date of hearing: 2nd September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 113 #

2014 Y L R 113

[Lahore]

Before Muhammad Qasim Khan, J

AHSAN ULLAH---Petitioner

Versus

ILLAQA MAGISTRATE and 5 others---Respondents

Writ Petition No.6576 of 2013, decided on 6th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.173 & 204---Penal Code (XLV of 1860), Ss.337-A (i)/337-F (iii) / 354/148/ 149---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Summoning of accused--- Judicial/ administrative order--- Determination---Petitioner was accused of Shajjah-i-khafifah, Mutafahimah, assault or use of criminal force to woman with intent to outrage her modesty and rioting armed with deadly weapon---After investigation, police recommended cancellation of case but Magistrate disagreed with the report and summoned accused to face trial---Validity---While dealing with cancellation report submitted by police, Magistrate acted in his administrative capacity and order passed by him while agreeing or concurring with cancellation report was an executive order---Magistrate, if had disagreed with cancellation report and directed police to file report under S.173, Cr.P.C. on prescribed form, directed submission of calendar of witnesses or directed investigation agency for further investigation into the matter, all such order would be the acts performed by Magistrate in his administrative capacity and could be questioned only though Constitutional jurisdiction of High Court---While dealing with cancellation report, when Magistrate disagreed with cancellation report and by the same had ordered summoning of accused persons to face trial, then his first step of disagreeing with cancellation report was administrative in nature and the same would merge in his simultaneous order regarding summoning of accused passed under S.204, Cr.P.C., which was squarely a judicial order---Due to merger of disagreeing order of Magistrate into ultimate and simultaneous order of summoning of accused, the entire exercise by Magistrate would become judicial action---Such kind of order could be assailed through criminal revision and not under Constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

Bahadur and another v. The State and another PLD 1985 SC 62 ref.

Manzoor Ahmad v. Ahmad Yar and others 1996 MLD 1867 and Haji Jamil Hussain v. Illaqa Magistratrate Section 30, Multan and others 2012 PCr.LJ 159 rel.

Abdul Rehman Khan Laskani for Petitioner.

Malik Muhammad Jaffar, Deputy Prosecutor-General for Respondents.

YLR 2014 LAHORE HIGH COURT LAHORE 125 #

2014 Y L R 125

[Lahore]

Before Amin-ud-Din Khan and Shahid Waheed, JJ

MEHMOOD UL HASSAN and others---Appellants

Versus

SIKANDAR HAYAT---Respondent

R.F.As. Nos. 278 and 662 of 2010, heard on 19th June, 2013.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Talbs, performance of---Talb-e-Muwathibat and Talb-e-Ishhad---Jumping demand---Proof---Non-mentioning of date, time and place of knowledge of sale and date of issuance of talbs in plaint---Effect---Held, plaintiffs were required to perform Talb-e-Muwathibat and Talb-e-Ishhad in accordance with law---For proving Talb-e-Muwathibat plaintiffs were required to state exact date, time and place of gaining knowledge because without proving the specific time, date and place of knowledge the plaintiffs could not prove jumping demand---When the plaintiffs prove that on such date at such specific time and place they gained knowledge only then they could prove that they announced their intention forthwith to file the suit for pre-emption which was called jumping demand---In the present case, there was difference of at least one hour as pleaded by the plaintiffs themselves with regard to gaining knowledge of the impugned sale and same was the position of Talb-e-Muwathibat---When the time was not specific the demand could not be said to be jumping demand as there was difference of one hour in the timing stated by the plaintiffs themselves---Plaintiffs had failed to plead and prove the specific time of gaining knowledge and jumping demand and had not proved Talb-e-Muwathibat in accordance with law---Appeal was dismissed.

Mian Peer Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Qanun-e-Shahdat (10 of 1984), Art. 71---Performance of Talbs---Talb-e-Muwathibat and Talb-e-Ishhad---Personal appearance of pre-emptor before court---Requirement---Announcement of intention to pre-empt the sale was a personal act and the same could be proved only if each and every plaintiff appeared before the court or one of the plaintiffs appeared and made statement on his behalf and if he was attorney of the other plaintiffs only then he could prove jumping demand on behalf of other plaintiffs.

Tahir Munir Malik for Appellants.

Rana Nasrullah Khan for Respondent.

Date of hearing: 19th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 133 #

2014 Y L R 133

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ZULFIQAR ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3453-B of 2013, decided on 6th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 365-A & 201---Qatl-e-amd, abduction for ransom, causing disappearance of evidence of offence---Bail, refusal of---Accused was named in the crime report with specific allegation of abducting son of the complainant for ransom---Dead body of the deceased was recovered on the pointation of accused---Mobile phone, motorcycle and handkerchief used during the occurrence had been recovered from accused---Accused was found guilty during the course of investigation, and his name had been placed in Column No.3 of report under S.173, Cr.P.C.---Prima facie accused was sufficiently connected with the commission of the offence alleged against him---Court was supposed to make tentative assessment of the material available on the records, and not deeper appreciation of evidence/material---Bulk of prosecution evidence had already been recorded by the Trial Court and there was likelihood of conclusion of the trial in near future---Accused, in circumstances, was not entitled to the relief sought for---Bail petition was dismissed, in circumstances.

Muhammad Sadik and others v. The State 1980 SCMR 203; Allah Ditta and others v. The State 1990 SCMR 307; Gul Akbar v. The State 2007 SCMR 1798 and Muhammad Hanif v. Shafqat Nazir and others 2007 SCMR 1857 rel.

Farman Ahmed Bhatti for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Ch. Abdul Qadeer Kamboh for the Complainant.

Majid, S.I. with record.

YLR 2014 LAHORE HIGH COURT LAHORE 143 #

2014 Y L R 143

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

AZAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.19-J and Murder Reference No.39 of 2009, heard on 30th May, 2013.

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

----Ss. 302(b), 149, 324, 353, 186 & 148---Qatl-e-amd, common object, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, rioting---Appreciation of evidence---Accused was not named in the F.I.R.---No role having been attributed to accused at the time of his identification parade, it could not be held with certainty that as to whether accused was among those two unknown accused persons who ran away from the spot, or he was among those three accused who made ineffective firing at the Police Party at the time of occurrence; or it was accused who made the fatal fire shot, on the head of deceased---Complainant did not take part in the proceedings of identification parade of accused---Accused being not earlier known to complainant, it was mandatory for him to take part in the proceedings of identification parade in order to identify accused, it was therefore, not safe to rely upon the evidence of complainant---Story of circumstantial evidence and extra-judicial confession furnished by prosecution witness, was not worthy of reliance---Alleged recovery of rifle was of no avail in absence of wedding report of any empty with the rifle---Prosecution having not been able to prove its case against accused, beyond shadow of doubt, impugned judgment passed by the Trial Court was set aside---Conviction and sentence awarded to accused were set aside and he was acquitted from the charge and was released, in circumstances.

Sabir Ali alias Fauji v. The State 2011 SCMR 563 ref.

(b) Criminal trial---

----Medical evidence---Medical evidence could confirm the ocular evidence with regard to the seat of injury, the nature of injury, the kind of weapon used in the occurrence, but it would not identify the accused.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

Haider Rasool Mirza for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Nemo for the Complainant.

Date of hearing: 30th May, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 158 #

2014 Y L R 158

[Lahore]

Before Altaf Ibrahim Qureshi and Shahid Bilal Hassan, JJ

Mst. PATHANI BIBI and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.897-B of 2013/ BWP, decided on 11th June, 2013.

Criminal Procedure Code (V of 1898)---

----S.497(1), first proviso---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Woman with suckling baby---Accused were females and contended that they were neither named in F.I.R. nor any role had been assigned to them so as to connect them with commission of offence---Validity---Both accused were females and their case was covered by first proviso to section 497(1), Cr.P.C.---One of the accused lady was in jail with her suckling baby aged about 7-8 months---Prosecution failed to point out any exceptional ground to keep both the accused who had been behind the bars since 12-3-2013, particularly when accused were not named in F.I.R. and were previously non-convict---Challan of case was not submitted to Court of competent jurisdiction---Accused were not required by prosecution side for any further investigation---Accused could not be kept behind the bars for indefinite period---Bail was allowed in circumstances.

Mst. Nusrat v. The State 1996 SCMR 973; Ghulam Sakina and others v. The State 1991 PCr.LJ 1316; Mst. Irshad alias Mst. Waziran v. The State 2006 PCr.LJ 251; The State v. Farzana Kausar 2008 YLR 2600; Nasreen Bibi v. The State 2011 YLR 1028; Mst. Kabela v. The State 2011 YLR 2975; Mst. Hurriya Naveed v. The State and another 2011 MLD 1292; Liaqat Ali v. Mst. Bashiran Bibi 1994 SCMR 1729; 2013 PCr.LJ 48, 2012 YLR 745, 2012 PCr.LJ 841, PLD 2005 Lah. 352, 1983 PCr.LJ 1787, 1989 PCr.LJ 179, 1991 PCr.LJ 1; 2007 YLR 3132; 2005 PCr.LJ 164; 2003 YLR 3031; 2002 MLD 1071; 2002 MLD 1026; 2008 YLR 2600; 2006 YLR 1403; 1991 MLD 1814 and 1984 PCr.LJ 129 rel.

Syed Zeshan Haider for Petitioner.

Muhammad Ayaz Kulyar for the Complainant.

Khalid Pervaiz Uppal, D.P.G. and Meraj S.I. for the State.

YLR 2014 LAHORE HIGH COURT LAHORE 171 #

2014 Y L R 171

[Lahore]

Before Muhammad Anwaarul Haq and Shahid Bilal Hassan, JJ

ABDUL WAHAB---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.367 of 2011/BWP, decided on 28th May, 2013.

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

----S.9(c)---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---Identification of accused---Charas weighing 80 Kilograms was recovered from a truck---Three prosecution witnesses stated that there were only four accused at the time of raid and not eight---Accused was not known to a single prosecution witness at the time of raid or prior to that---Whole prosecution evidence was silent on such issue and not a single witness uttered a word as to how he came to identify accused or with regard to the effect as to the source of identification---Prosecution witnesses stated that prior to the time of raid they did not know accused and had not met him, rather he was stranger to accused---Mukhber/spy was not present at the spot at the time of raid---Truck alleged to have been recovered was not in working condition and there was no evidence to link accused with the truck in any manner---Prosecution failed to prove the charge against accused and High Court set aside the conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Hassan Raza alias Taidi v. The State 2006 YLR 2668; Dr. Emmanuel Onuwabuchi Keke v. The State and others 2006 YLR 1834; Muhammad Abbas v. The State 2006 YLR 2378; Umer Rehman v. The State PLD 2009 Kar. 284; Joseph Sunday v. The State 2010 YLR 1335; Fazal and 2 others v. The State 2010 PCr.LJ 360; Meharban and 2 others v. The State 2011 PCr.LJ 8; Ghulam Hussain and 9 others v. The State 2011 PCr.LJ 72; Bakhti Jan v. The State 2011 YLR 134; Tariq Mehmood v. State through Deputy Attorney General PLD 2009 SC 39; Nasrullah v. The State 2011 PCr.LJ 277 and Mushtaq v. The State 2002 PCr.LJ 1312 ref.

Malik Sadiq Mahmud Khurram for Appellants

Khalid Pervaiz Uppal, Deputy Prosecutor-General for Respondents.

Date of hearing: 28th May, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 187 #

2014 Y L R 187

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD SHABBIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5149-B of 2013, decided on 15th May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), (iii), 337-F(i), 337-L(2), 354, 147 & 149---Causing Shajjah-i-Khafifah, Shajjah-i-Hashimah, Damiyah, Badi'ah---Anticipatory bail, refusal of---Contention of accused was that as case was of two versions, and the complainant party had suppressed the injuries while reporting the matter to the Police, accused was entitled for the benefit of concession of bail---Held, contention was untenable for the reason that in cross-version, simple injuries were attributed to the complainant side; and subsequently that cross-version was not accepted by the Investigating Agency, and same was cancelled---Accused remained unable to point out any mala fide on the part of the complainant to falsely implicate him in the case---Allegation against accused was that of fracturing the head bone of father of the complainant---Person of accused, in circumstances, was required for further investigation---Accused was not entitled for the concession of bail.

Tariq Mehmod for Petitioner.

Muhammad Ishaq, Deputy Prosecutor-General for the State.

Mian Pervaiz Hussain for the Complainant.

Muhammad Hanif, S.I. with record.

YLR 2014 LAHORE HIGH COURT LAHORE 191 #

2014 Y L R 191

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUNIR AHMAD---Petitioner

Versus

MUHAMMAD RAMZAN SHEIKH and another---Respondents

Civil Revision No.294 of 2005, decided on 8th July, 2013.

Specific Relief Act (I of 1877)---

---S. 12---Suit for specific performance---Oral agreement to sell---Limitation---Plaintiff filed suit for specific performance of agreement to sell which was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Contract might be in writing or oral---Oral agreement would be valid and enforceable as a written agreement provided it fulfilled all the requirements of a valid contract---Neither plaintiff nor his witnesses uttered even a single word regarding date, time and place of agreement to sell and contents of plaint were also silent in such regard---Oral agreement should have been established by producing convincing evidence with regard to date, time and place of the same---Suit for specific performance though could have been instituted within three years from the date of agreement but it was not understandable why plaintiff awaited for a period of more than one year to get specific performance of agreement---Person seeking benefit of oral agreement to sell was obliged to establish that he was offered by the proposed vendor and same was accepted by him---No evidence was led with regard to acceptance of offer by the plaintiff---Payment of earnest money could not be considered acceptance of said offer---Said agreement was a unilateral agreement and same could not have been specifically enforced---Plaintiff had failed to prove the execution of oral agreement---Findings of the Appellate Court were based on erroneous assumption and conjectural presumption and non-reading of evidence which were liable to be set aside---Impugned judgment and decree of the Appellate Court were set aside and that of Trial Court were restored---Revision was accepted in circumstances.

Bashir Ahmad v. Muhammad Yosuaf through Legal Heir 1993 SCMR 183; Ch. Muhammad Hussain and another v. Hidayat Ali and 6 others NLR 1981 SCJ 460; Kamal Din v. Muhammad Sharif 2006 YLR 1200 and Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 rel.

Ahmad Awais Khurram for Petitioner.

Mian Muhammad Nawaz for Respondent No.1.

YLR 2014 LAHORE HIGH COURT LAHORE 200 #

2014 Y L R 200

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD IQBAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.7636-B of 2013, decided on 4th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Contention that the "Lalkara" in the case was commanding in nature, and co-accused while acting upon the same had killed the deceased, was the question which could not be determined at bail stage as same needed detailed evidence---Calls allegedly made by accused prior to the occurrence and also thereafter, was an evidence which could be thrashed and scrutinized by the court of competent jurisdiction in appropriate proceedings---Accused, in the present case, was simply blamed for raising 'Lalkara' for killing the deceased, and in that connection, he had not been ascribed with any role of fire upon the deceased---F.I.R. had not revealed that accused was armed with any weapon at relevant time---Case of accused fell within the purview of S.497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

Ch. Abdul Ghaffar for Petitioner.

Muhammad Ishaq, Deputy Prosecutor General for the State.

Muhammad Tanveer Chaudhry for the Complainant.

Muhammad Panah, A.S.-I. with record.

YLR 2014 LAHORE HIGH COURT LAHORE 201 #

2014 Y L R 201

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

Syed GHULAM ABBAS BOKHARI and others---Appellants

Versus

Raja MUSHTAQ AHMAD and others---Respondents

Criminal Appeals Nos.78 of 2007, 1938 and 1933 of 2006, decided on 20th September, 2013.

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

----Ss. 119, 302, 324 & 342--- Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Criminal Procedure Code (V of 1898), S.417(2A)---Public servant concealing design to commit offence which it is his duty to prevent; qatl-e-amd; attempt to commit qatl-e-amd; wrongful confinement; acts of terrorism---Appeal against acquittal---Appreciation of evidence---Prosecution giving divergent versions of the occurrence--- Effect--- Murderous assault made upon Judicial Officers by prisoners during a jail visit---Twelve (12) Judicial Officers along with other persons were taken hostage by prisoners inside jail premises whereafter police conducted an operation, which resulted in death of four (4) Judicial Officers and caused injuries to several others---Trial Court acquitted accused persons, including the Deputy Inspector-General of Police who gave orders for the operation; acquitted police officials connected with the operation; acquitted the Jail Superintendents, and the surgeon who treated one of the Judicial Officers, who later succumbed to his injuries---Plea of complainant that police operation was carried out in haste on the orders of acquitted-Deputy Inspector-General of Police, ignoring instructions of concerned authorities; that the operation carried out by police was not a "rescue operation but a "killing operation"; that murderous assault on Judicial Officers was a result of conspiracy devised by the Superintendent Jail and Jail employees, and that the surgeon who treated one of the deceased Judicial Officers did not intentionally provide proper medical aid---Validity---First Information Report showed that responsibility of the incident was reposed upon the shoulders of Jail authorities, but thereafter with the delay of two days a new version was introduced by complainant through his supplementary statement by stating that in fact the incident had taken place on account of res integra attitude of the Deputy Inspector-General of Police, who commanded the operation--- Complainant took a complete "U" turn in his supplemental statement and all responsibilities and liabilities of the incident were reposed upon the operational force, without attributing any specific role to any of the members of the operational force qua any of the deceased or injured persons---Complainant made his supplementary statement on the 3rd day of the incident---Judicial officers who were injured during the incident did not make any statement before the Investigating Officer during the said three days; notwithstanding, that they were in a position to do so---None of them of their own accord submitted any application before any competent authority about the actual facts and circumstances of the happening of the incident---Record established that the Investigating Officer had been visiting injured Judicial Officers for recording their statements but they did not do so for one or the other reasons---Concerned District and Sessions Judge, who also appeared as a prosecution witness, took the deceased and injured Judicial Officers along with him for a jail visit on the day of the incident ---Injured Judicial Officers were subordinate to the District and Sessions Judge, therefore circumstances, accumulatively gave an impression that written statements produced by them before the Investigating Officer might have been prepared through a joint venture by due deliberations and consultations---Prosecution had given diverse versions of the occurrence, i.e. the version mentioned in the F.I.R.; version brought on surface through supplementary statement of the complainant; version contained in signed written statements of prosecution witnesses produced before the Investigating Officer, and the version contained in statements made by the prosecution witnesses before Trial Court---Judicial officers who had been appointed to supervise the investigations never complained that same were not carried out impartially and unbiasedly---Prosecution witnesses did not accept their statements translated by police in Urdu from English for the first time before Trial Court, and they had made statements different to the copies supplied to accused persons under S. 265-C, Cr.P.C., and in such circumstances how could the version introduced for the first time before Trial Court be believed, moreso, contradicted/confronted---Record revealed that the operational force was invited inside jail by the complainant telephonically on account of ineluctable circumstances---Total of 52 persons were taken hostage by the prisoners/captors including 12 Judicial Officers out of whom, three Judicial Officers lost their lives in the operation, four were injured, whereas five captors/prisoners were also killed ---One of the Judicial Officers died later after succumbing to his injuries---Forty eight (48) captives were released in the operation and in this way, maximum human lives were saved through the police operation---Operational force could not have possibly achieved 100% result of rescuing captive Judicial Officers as the force had no source of identity of Judicial Officers vis-à-vis the captors as captors had already inter changed their uniforms with the dresses of Judicial Officers---Acquitted Deputy Inspector-General of Police, who was incharge of the operation, time and again asked the Sessions Judge that if the operation was not needed, then he might be permitted by writing to leave jail premises along with his forces, but the Sessions Judge remained unresolved over it---Acquitted Deputy Inspector-General of Police was ready to leave jail premises without any proceedings but he was not permitted so in black and white by the Sessions Judge, and no other person was prepared/ready to take any responsibility for the release of hostages---During the occurrence, instructions were issued by the High Court that an operation, if needed, should be carried out by Army Commandoes, therefore maximum efforts were undertaken to invite them but they remained unheeded---Police force on account of emergent situation was invited inside jail by the complainant himself, and it took about seven hours to defuse the situation but as per evidence when a fire shot was reported from inside the jail barrack, then there was no option with the Deputy Inspector-General of Police except to order carrying out the operation---Captors instigated the police for commencement of the police operation---If the operation was not ordered, then there was prospect of more loss of lives of captive Judicial Officers at the hands of prisoners/captors---If the operation was not carried out, then the Deputy Inspector-General of Police or other responsible police officers present at the spot would have been made responsible for the loss on account of their non-fulfilment of statutory duty---All available circumstances of the incident accumulatively justified proceedings of the police force as "rescual operation" and not a "killing operation"---No malice or spite could be attributed to the operational force because no element of enmity, wroth or aforethought had been brought on record by prosecution---Injuries sustained by deceased Judicial Officers were indicative of the fact that they were fired at from very close range and there was every probability that their death was caused by the captors who were staying close by them whereas police force, at that time was present at a quite distance---On the day of incident acquitted Jail Superintendent was on leave, which was proved documentarily---Prosecution failed to establish the charge of conspiracy/ abetment against the jail employees---Finding of Trial Court in acquitting the accused persons were not alien to the record, based upon extraneous material, suffering from misreading and non-reading of evidence---Appeal against acquittal was dismissed in circumstances.

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

---Ss. 161 & 154 ---Supplementary statement of complainant making additions/ omissions to the F.I.R.---Such a statement carried no legal value---When a complainant/witness had the knowledge of all circumstances of an incident, and he brought them on record in a piecemeal way, then they should necessarily be regarded as doubtful.

Khalid Javaid and another v. The State 2003 SCMR 1419; Mushtaq Hussain v. The State 2011 SCMR 45 and Falak Sher alias Sheru v. The State 1995 SCMR 1350 ref.

---Ss. 161 & 162---Qanun-e-Shahadat (10 of 1984), Art. 153---Prosecution witnesses deviating/making improvements to his previous statement---Effect---If any prosecution witness made statement before the court by deviating from his former statements and then the statements were duly confronted with court statements under Art. 153 of Qanun-e-Shahadat, 1984, as well as S. 162 Cr.P.C. then obviously law required that such-like statements could be thrown out of consideration, if some material as well as dishonest or crafty improvements were made---Such statements had to be excluded from appreciation.

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

----Ss. 76, 79, 80 & 81---Anti-Terrorism Act (XXVII of 1997), S. 5---Protection available to law-enforcing agencies for using force in performing official duties---Scope---In order to maintain the law and order situation, law-enforcing agencies had been protected and S. 5 of the Anti-Terrorism Act, 1997 empowered forces to prevent acts of terrorism by applying force---Even otherwise, actions of forces in performing official duties were protected by the general exceptions available in Ss.76, 79, 80 and 81 of Penal Code, 1860, however interpretations of said legal provisions might not be permitted to be made liberally in favour of forces so that innocent people were not be killed by gun plays because forces were constitutionally and legally mandated to jealously safeguard the lives, liberty and property of the subjects.

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

----Ss. 119, 302, 324 & 342 ---Anti-Terrorism Act (XXVII of 1997), S. 7(a) ---Public servant concealing design to commit offence which it is his duty to prevent, qatl-e-amd, attempt to commit qatl-e-amd; wrongful confinement; acts of terrorism ---Appreciation of evidence---Murderous assault made upon Judicial Officers by prisoners during a jail visit---Twelve (12) Judicial Officers along with other persons were taken hostage by prisoners inside jail premises whereafter police conducted an operation resulting in death of four (4) Judicial Officers and caused injuries to several others---Trial Court convicted and sentenced Assistant Superintendent Jail and Head Warden of Jail under Ss. 119, 302, 324 and 342, P.P.C. for their criminal negligence, which facilitated the captors for launching their murderous assault---Validity---Judgment of Trial Court whereby accused persons were convicted did not clearly show as to what offences had been proved against them and under which offence they were convicted and sentenced---Even otherwise, no permissible evidence had been found on the record to prove the charges against them, therefore, in absence of any permissible evidence, their convictions and sentences could not be upheld---Convictions and sentences of accused persons were set aside in circumstances and they were acquitted---Appeal was allowed accordingly.

(f) Criminal trial---

----Conviction---Convicting accused on basis of his failure to prove a specific plea taken by him---Legality---Burden of proof remained with the prosecution even in case of any specific plea taken by the defence and in case of its failure to prove the same, accused could not be convicted and sentenced because it was mandatory for prosecution to prove its case beyond any shadow of reasonable doubt upto its hilt.

Azhar Iqbal v. The State 2013 SCMR 383 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.

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

----S. 417---Appeal against acquittal---Presumption---"Double presumption of innocence in favour of accused"---Scope---If an accused was acquitted after "due process of law", then double presumption of innocence was attached to him as the same provided him valuable legal right, which could not be withdrawn off hand, unless the judgment of acquittal was considered utterly perverse, against facts as well as the law applicable to the circumstances of the case and if same was found unpalatable, unsavoury, invidious to notoriety to miscarriage of justice. [p. 285] W

Ghulam Sikandar and others v. Mamaraz Khan and others PLD 1985 SC 11 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 ref.

Mian Ismail Thaheem, Nasir Javaid Ghumman, and Ch. Liaqat Ali Sindhu for Appellants with Complainants in person (in Criminal Appeal No.78 of 2007). (against acquittal)

Dr. A. Basit assisted by Suqrat Basit, for Appellant (in Criminal Appeal No.1938 of 2006). (against conviction)

Aftab Ahmad Bajwah and Najeeb Faisal Ch. for Appellant (in Criminal Appeal No.1933 of 2006). (against conviction)

Khawaja Haris Ahmad, Aftab Ahmad Bajwah, Sher Afgan Asadi and Saleem Akhtar Sh. for Respondents (in Criminal Appeal No.78 of 2007).

Dr. A. Basit and Suqrat Basit for Respondent (in Criminal Appeal No.78 of 2007).

Shahid Mozaffar Khan for Respondents.

Malik Amjad Pervaiz for Respondents.

M. Irshad Ch. For Respondent.

Sadaqat Ali Khan, Prosecutor-General, Punjab, Abdul Samad, Addl. Prosecutor-General and Tariq Javaid DDPP and Hamayun Aslam, D.P.G. for the State.

Dates of hearing: 28th, 29th February, 1st March, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, 12th, 16th, 17th, 18th, 19th, 23rd, 24th, 25th, 26th, April, 8th, 9th, 10th, May, 12th, 19th, 28th, September, 5th, 12th, October, 4th, 6th, 12th, 17th, 18th, 19th, December, 2012, 15th, 16th, January, 20th, 27th, February, 27th, 28th, March, 1st, 3rd, 15th, 23rd, 24th, 25th, 29th and 30th, April and 16th, May, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 301 #

2014 Y L R 301

[Lahore]

Before Shujaat Ali Khan, J

JAMSHAID ALI KHAN and another---Petitioners

Versus

GHULAM SAYED and another---Respondents

Civil Revision No.142 of 2013/BWP, decided on 10th September, 2013.

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

----S. 42---Muslim Family Laws Ordinance (VIII of 1961), S. 4---Suit for declara-tion---Mutation attested on 5-4-1986 regarding legacy of predecessor-in-interest of parties challenged by plaintiffs claiming to be legal heirs of his pre-deceased son/daughter---Suit decreed concurrently by Courts below declaring plaintiffs to be entitled to inherit estate left by deceased---Defendant's plea that judgment of Federal Shariat Court reported as PLD 2000 FSC 1 declaring S. 4 of Muslim Family Laws Ordinance, 1961 to be un-Islamic was challenged before Shariat Appellate Bench of Supreme Court, thus, impugned judgments/decrees could not be passed---Validity---Federal Shariat Court had passed such judgment in year 1991, whereas S. 4 of Muslim Family Laws Ordinance, 1961 was applicable law at the relevant time---Suspension of operation of such judgment of Federal Shariat Court by Shariat Appellate Bench of Supreme Court could not be made ground to set aside impugned judgments/decrees---High Court dismissed revision petition in circumstances.

Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1 and Muhammad Farooq through L.Rs. and others v. Muhammad Hussain and others 2013 SCMR 225 rel.

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

----S. 115---Revision---Concurrent findings of facts by Courts below---Interference in such findings by High Court in revisional jurisdiction---Scope.

Concurrent findings of facts cannot be upset by High Court in its revisional jurisdiction in a casual manner, rather it has to be proved that the same are perverse or arbitrary or the same are based on misreading or non-reading of evidence.

Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Malik Muhammad Aslam for Petitioners.

Mian Faiz ul Hassan for Respondent.

YLR 2014 LAHORE HIGH COURT LAHORE 306 #

2014 Y L R 306

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

The STATE---Petitioner

Versus

MUHAMMAD BOOTA---Respondent

Murder Reference No.778 of 2006, heard on 19th January, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---F.I.R. having been lodged promptly, chances of concoction and deliberations, had been ruled out---One of the prosecution witnesses who was real daughter of accused was resident of the house where the occurrence had taken place, her presence at the spot was quite natural---Said witness was cross-examined at length, but her evidence could not be shattered during the process of cross-examination, her evidence was further corroborated by circumstantial evidence---Evidence of other prosecution witnesses, was straightforward and confidence inspiring---Manner in which deceased was done to death and the time of her death was supported by medical evidence---Case of the prosecution was further corroborated by circumstantial evidence---Prosecution witnesses not only were relatives of the deceased, but were also closely related to accused, as well---No reason existed for the complainant to falsely implicate accused in the case---Evidence of prosecution witnesses, could not be discarded on the sole ground of their relationship with the deceased---Delay in recording statement of one prosecution witness under S.161, Cr.P.C. by Investigating Officer was not significant, as name of said witness was mentioned in promptly lodged F.I.R.---Plea of accused was that the deceased had committed suicide, and that he had been falsely implicated in the case---Said plea had not been taken by accused during the investigating of that case before the Investigating Officer, but was an afterthought---Motive, mentioned in the F.I.R., was not stated by the complainant and prosecution witnesses in the court---In absence of any evidence with regard to motive, same could not be believed---Nothing was recovered from the possession of accused during his physical remand---Ocular account and circumstantial evidence of the prosecution witnesses, was fully supported by medical evidence---Prosecution, in circumstances, had proved its case against accused beyond the shadow of any doubt---Conviction of accused was maintained, but in view of certain mitigat-ing circumstances, his sentence was altered from death to imprisonment for life, with benefit of S.382-B, Cr.P.C.

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

----Art. 3---Statement of child witness---Admissibility---No age limit of a witness had been prescribed under Art.3 of Qanun-e-Shahadat, 1984---Statement of a child witness was admissible in evidence, unless the court considered that a witness was prevented from understanding the question put to him or from giving rational answers---Trial Court was to determine as to whether or not a witness was prevented from understanding question put to him because of his tender age---Child witness was quite competent to give evidence in court provided he or she understood the question put to him and give rational answers to the said questions---No legal compulsion existed to check the intellect of a child witness in a written form---Only requirement was the satisfaction of the court.

Mst. Razia alias Jia v The State 2009 SCMR 1428; Amjad Javed v. The State 2007 SCMR 1247; Muhammad Jamal and others v. The State 1997 SCMR 1595; Abdul Majeed v. The State 2002 PCr.LJ 41 and Qadeer Hussain v. The State through Advocate-General, Azad Jammu and Kashmir Government, Muzaffarabad 1995 PCr.LJ 803 rel.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Prosecution had alleged a specific motive in F.I.R., but same was not proved during the trial---Prosecution witnesses, did not utter a single word regarding the motive part of the prosecution---Co-accused, in the case, had been acquitted by the Trial Court by extending him benefit of doubt---Acquittal of co-accused having not been challenged, either by the complainant or by the State, same had attained finality---As to how the occurrence had started, and what had actually happened between the deceased and accused, immediately before the occurrence, which had resulted into the death of the deceased was not determinable---Sentence of death awarded to accused, in circumstances, was harsh---In view of facts of the case and safe administration of justice, conviction of accused under S.302(b), P.P.C. awarded to accused by the Trial Court, was maintained, but his sentence was altered from death to imprisonment for life.

(d) Criminal trial---

----Motive---Proof---Non-proof of motive, effect---If a specific motive had been alleged by the prosecution then, it was duty of the prosecution to establish motive beyond any shadow of doubt and non-proof of motive could be considered a mitigating circumstance in favour of an accused.

Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

Maqbool Ahmad Qureshi and Ijaz Bajwa for the Convict.

Chaudhary Muhammad Mustafa Deputy Prosecutor-General for the State.

Chaudhary Riaz Ahmad Kataria for the Complainant.

Date of hearing: 19th January, 2012.

YLR 2014 LAHORE HIGH COURT LAHORE 325 #

2014 Y L R 325

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

RASHID alias RASHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.353-J and Murder Reference No.160 of 2009, heard on 5th June, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Delay of nine hours was taken in reporting the matter to the Police, whereas distance between the place of occurrence and the Police Station as per F.I.R. and statement of complainant was three or four kilometers, which according to the complainant could be covered in thirty minutes---F.I.R. lodged with inordinate and implausible delay, would lose its sanctity; and possibility of concoction and deliberation, could not be ruled out---Conduct of complainant in not reporting the crime promptly, had created serious doubts about his presence at the scene of crime---Complainant was a chance witness, being resident of other place and his explanation for being present at the place of occurrence, could not be accepted---No source of light had been mentioned in the F.I.R.---Identification of accused, in circumstances, was highly doubtful---Quality and not the quantity of evidence would settle the guilt or innocence of accused---Accused had no motive at all, to kill the deceased---Three co-accused, who were charged and tried along with accused, were acquitted, while extending them benefit of doubt, and said acquittal was not assailed by the complainant or the State---Testimony of a witness would be acceptable against one set of accused, though same had been rejected qua another set of accused, facing the same trial, provided, it would get some independent corroboration on material particulars of the case---In absence of any independent corroboration qua the role attributed to accused he would be entitled to acquittal---Since the place of recovery of 30 bore pistol allegedly effected at the instance of accused, was not in the exclusive possession of accused, no reliance could be placed on said recovery in order to connect accused with commission of crime---No crime empty was taken into possession from the spot---Report of Forensic Science Laboratory was only to the effect that the pistol was in working order---Prosecution had failed to connect accused with the commission of crime---Conviction and sentence awarded to accused for the murder of deceased person, passed by the Trial Court, was set aside---Extending him benefit of doubt, accused was acquitted of the charges framed against him and was released, in circumstances.

Iftikhar Hussain and another v. State 2004 SCMR 1185; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----S. 342---Examination of accused---Piece of evidence not put to accused, while examining him under S.342, Cr.P.C., could not be relied to maintain conviction.

----S. 173---Opinion of Police---Admissibility of---Opinion of Police qua innocence or guilt of an accused was inadmissible in evidence---Accused could not be convicted, merely on the ground that he was declared guilty by the Police during the course of investigation.

Ms. Nighat Saeed Mughal for Appellant.

Mirza Abid Majeed Deputy Prosecutor General for the State.

Ch. Anwar ul Haq Pannun for the Complainant.

Date of hearing: 5th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 378 #

2014 Y L R 378

[Lahore]

Before Amin-ud-Din Khan, J

SHAUKAT ALI---Petitioner

Versus

Mst. AMEENA BEGUM and others---Respondents

Civil Revision No.2027-D of 1996, decided on 11th November, 2013.

Specific Relief Act (I of 1877)---

----S.8---Suit for possession of immovable property---Contention of plaintiffs was that disputed house was rented out to the defendant but he had failed to pay the rent while defendant contended that he was owner of said house---Suit was decreed concurrently---Validity---Plaintiffs were bound to prove the case pleaded by them---Plaintiffs had not mentioned the month of tenancy or whether same was oral---No receipt with regard to payment of rent was on record---Trial Court made comparison of signatures on the document which was not permissible under the law---Ownership of both the parties was not in dispute but matter in issue was as to upon which property suit house was constructed---Copy of rapt roznamcha was not per se admissible in evidence without producing the original record---Trial Court had recorded wrong conclusion---Judgments and decrees passed by both the courts below were nullity in the eye of law---Suit stood dismissed with costs throughout.

Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361 rel.

Malik Yousaf Farooq for Petitioner.

Malik Amjad Pervez for Respondents.

Date of hearing: 11th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 383 #

2014 Y L R 383

[Lahore]

Before Altaf Ibrahim Qureshi and Shahid Bilal Hassan, JJ

MUHAMMAD SAJID alias SHAHID---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.349-B of 2013/BWP, decided on 11th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(2)---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry---Accused who was behind the bars for the last eight and a half months, was not required by the prosecution side for further recovery or investigation---Witnesses were summoned, after framing charge in the case, but no prosecution witness was in attendance---After several adjournments two prosecution witnesses, who were Police Officials were present, but their statements could not be recorded as the Lawyers were observing strike on said date---Ever since the presentation of challan before the Trial Court, the trial was lingering on the basis of one pretext or the other, and the guilt of accused was yet to be determined---Prosecution was not pursuing the case vigilantly, and its witnesses were not in attendance before the Trial Court, which they otherwise ought to have bound under the law---Trial in the case was likely to consume a reasonable time---No useful purpose would be served by keeping accused behind bars for an indefinite period---Was yet to be determined by the Trial Court, after recording the evidence of the parties that alleged recovered substance was narcotic substance within the meaning of Control of Narcotic Substances Act, 1997---Till that time case of accused was covered under S.51(2) of Control of Narcotic Substances Act, 1997 calling for further inquiry into his guilt---Accused, was admitted to post-arrest bail, in circumstances.

Masud Ahmad v. The State 2008 YLR 1784 rel.

Imran Khan Bhadera for Petitioner.

Khalid Pervaiz Oppal, D.P.G. and Asghar A.S.-I. for Respondent.

YLR 2014 LAHORE HIGH COURT LAHORE 390 #

2014 Y L R 390

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD HAYAT KHAN---Petitioner

Versus

The STATE and another---Respondents

Writ Petitions Nos. 963 and 1050 of 2013, heard on 4th November, 2013.

Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 4---Constitution of Pakistan, Art.199---Constitutional petition---"Illegal dispossession" and "Qabza group"---Proof---Trial Court convicted and sentenced petitioner for dispossessing respondent illegally from house in question---Validity---Complainant was not present at place of occurrence at the relevant time and he himself had not seen petitioner breaking locks of house and occupying the same---Complainant failed to produce any evidence regarding petitioner belonging to "Qabza group" or "property grabbers"---Complainant admitted that he did not know whether he had any previous record of grabbing lands illegally---Dispute between parties was of title and case did not fall under S. 3 of Illegal Dispossession Act, 2005---Trial Court illegally connected petitioner with offence falling under Ss. 3 & 4 of Illegal Dispossession Act, 2005, which had been made for special purposes and objects---High Court set aside the conviction and sentence awarded by Trial Court to petitioner and acquitted him of the charge---Petition was allowed accordingly.

Habibullah and others v. Abdul Manan and others 2012 SCMR 1533 rel.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Muhammad Bakhsh v. Additional Sessions Judge and others 2010 PCr.LJ 268 ref.

Sardar Muhammad Ishaq for Petitioner (in Writ Petition No.963 of 2013) and for Respondent No.2 (in Writ Petition No.1050 of 2013).

Muhammad Nawaz Bhatti for Respondent No.2 (in Writ Petition No. 963 of 2013) and for Petitioner (in Writ Petition No.1050 of 2013).

Date of hearing: 4th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 401 #

2014 Y L R 401

[Lahore]

Before Muhammad Anwaarul Haq and Shahid Bilal Hassan, JJ

MUHAMMAD SAJID---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.335-B of 2013, decided on 21st May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-A--- Abduction/kidnapping for ransom---Bail, refusal of---Accused, though was not named in the F.I.R., but when alleged abductee was recovered, he made a statement under S.161, Cr.P.C. before the Police in which he nominated the accused specifically by name---Accused was arrested from the place where accused and co-accused had detained the abductee; and during said process 12-bore gun, was also recovered from the possession of accused---Car which was got from "Rent-A-Car" company in the name of accused, was used for commission of offence---Prosecution witnesses in their statements before the Police, while supporting the prosecution story, involved accused with the commission of offence levelled against him, which offence fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Trial of the case was in progress, in which charge had been framed and case was fixed for evidence of prosecution---Reasons were available to believe that accused had committed offence levelled against him, as the whole prosecution evidence, oral as well as documentary was against the accused---Accused being not entitled to grant of bail, his bail application was dismissed.

Zafar Iqbal Awan for Petitioner.

Asghar Ali Gill, D.P.G. with Mansoor S.I. for the State.

Malik Saeed Ejaz for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 422 #

2014 Y L R 422

[Lahore]

Before Shehzada Mazhar, J

SUFYAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.7036-B of 2013, decided on 21st June, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 148, 149 & 109---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)--Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abetment---Bail, grant of---Juvenile-accused---Delay in conclusion of trial within the statutory period---Effect---Although accused was named in the F.I.R. with specific allegation of killing the deceased, but he was a juvenile and was behind bars for more than 3 ½ years---Accused had committed the alleged offence by way of instant reaction, which was not serious, heinous, gruesome, brutal or shocking to public morality---No motive was attributed to accused---Accused was granted bail in circumstances.

Siraj Din v. Saghir-ud-Din alias Goga and another 1970 SCMR 30 ref.

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

---Preamble---Scope---Juvenile Justice System Ordinance, 2000 was promulgated to safeguard the rights of minors who deserved special protection in view of tenderness of their age.

Afsar Zaman v. The State PLD 2002 Kar. 18 ref.

Rana Maqsood ul Haq for Petitioner.

Shahid Muzaffar Khan for the Complainant.

Nasir Mahmood Sial, DDPP for the State.

Afzal A.S.-I. with Police Record.

YLR 2014 LAHORE HIGH COURT LAHORE 432 #

2014 Y L R 432

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Abdul Sami Khan, JJ

AYAZ KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.483, Murder Reference No.78-W and Criminal Revision No.227 of 2009, decided on 9th September, 2013.

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

----S. 302(b)/34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-e-amd, common intention---Appreciation of evidence---Withholding evidence of most natural witness---Benefit of doubt---Occurrence had taken place at 12.00 a.m. (mid-night) i.e. odd hours of night at a roadside, and presence of no proper source of light had been given in the crime report---Presence of complainant and prosecution witnesses, at the relevant time, in the odd hours of night, was a question, which required serious consideration, when both of them were residents of 5 Kms and 1-1/2 Kms away from the place of occurrence---Complainant had stated that he along with the prosecution witness, had witnessed the occurrence and fleeing away the accused in their view, but, while making complaint, he did not specifically name accused persons---Even glimpses of body structures of accused persons were not mentioned in the complaint which aspect could not be lost sight off easily---Prosecution version with regard to identity of accused, therefore, was fluctuating, and the prosecution was not sure about the characteristics of accused---Identification of accused, as disclosed in the statement of the complainant, carried no authenticity, because the dead bodies were found from scattered places; in absence of any corroborating evidence on that point, in isolation, the statement of the complainant on that score could not be given any credence, especially in the case involving capital punishment---Holding of test identification parade, in circumstances, was of pivotal importance, but same was not done without any reason---Most natural evidence of independent witnesses who had no relationship with either side, were withheld by the prosecution---Prosecution case, in circumstances, was hit by Art.129(g) of Qanun-e-Shahadat, 1984; and negative inference would be drawn to the effect that, had they appeared before the Trial Court, they ought not have supported the prosecution version---Prosecution version showed that at the time of spot inspection, the Investigating Officer had collected four crime empties of pistol .30 bore and two crime empties of gun .12 bore but same was contrary to the contents of crime report, wherein specification of weapon, was not mentioned---Nothing was recovered from either of accused persons to establish their link with the commission of offence---Such fact had created serious dents in the prosecution version, which went to the root of the case---Prosecution having failed to substantiate its case against accused persons, medical evidence would not come forward to rescue the prosecution case---Recovery of mobile phones and the data allegedly collected by the prosecution, being that of corroborative nature, could not be termed as an incriminating material---Prosecution had not set any specific motive against accused persons and had failed to establish its case against accused persons to the hilt---Trial Court was not justified in convicting the accused, while basing upon such untrustworthy/ uncorroborated evidence, which even otherwise was full of material contradictions---Accused were ordered to be acquitted of the charge and were released, in circumstances.

Muhammad Rafique and others v. The State and others 2010 SCMR 385; Saeed Ahmed Shah v. The State 1993 SCMR 550; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Abid Ali and 2 others v. The State 2011 SCMR 208 and Muhammad Ashraf v. The State 2012 SCMR 419 ref.

Lal Khan v. The State 2006 SCMR 1846; Akhtar Ali and others v. The State 2008 SCMR 6; Sheral alias Sher Muhammad's case 1999 SCMR 697 and Sher Bahadur's case 1972 SCMR 651 rel.

(b) Criminal trial---

----Benefit of doubt---Benefit of every doubt, was to be extended in favour of accused---Court could err in letting off 100 guilty, but should not convict one innocent person on the basis of suspicion.

Malik Waheed for Appellants.

Rana Kashif Saleem Arfaa, Law Officer for the State.

Tanveer Iqbal Khan for the Complainant (in Criminal Revision No.227 of 2009).

Date of hearing: 9th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 450 #

2014 Y L R 450

[Lahore]

Before Amin-ud-Din Khan, J

RAMZAN and others---Petitioners

Versus

Mst. KANEEZAN---Respondent

Civil Revision No.491 of 2005, decided on 13th November, 2013.

Islamic Law---

----Gift---Proof---Gift of inherited property on behalf of sister in favour of her brothers without partition of the same---Scope---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Defendants being beneficiary were bound to prove valid gift through independent transaction and then attestation of gift mutation---When a lady challenged the validity of oral transaction on her behalf and appeared in the witness box then onus would shift upon the other side to prove the transaction and also valid attestation of mutation---Defendants had not pleaded in their written statement with regard to factum of gift prior to entry or attestation of mutation---Plaintiff had specifically pleaded with regard to knowledge of impugned mutation in her plaint and objections with regard to limitation were not sustainable---Findings of Appellate Court were unexceptionable.

Khaliq Dad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370 rel.

Hafiz Khalil Ahmad for Petitioners.

Nemo for Respondent.

Date of hearing: 13th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 465 #

2014 Y L R 465

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

SHAFIQUE AHMAD---Petitioner

Versus

PUBLIC AT LARGE and 4 others---Respondents

Civil Revision No.119 of 2012, decided on 5th June, 2013.

Succession Act (XXXIX of 1925)---

----Ss. 373 & 372----Grant of succession certificate----Succession proceedings, scope of---Real brother of deceased intervened in succession proceedings putting his claim against the property and National Saving Certificates of the deceased---Objections of the intervener were overruled and succession certificate was granted in favour of legal heirs of deceased---- Validity--- Objector/intervener was not a legal heir of the deceased and provisions of the Succession Act, 1925 would therefore not be helpful to such a person----Objector, in the present case, although was the real brother of the deceased, however he was considered a stranger in the proceedings for grant of succession certificate to the legal heirs of the deceased and would have no locus standi to join the proceedings since succession proceedings were limited in nature to the extent of determination of the rights of legal heirs of the deceased inter se and scope of such proceedings could not be enlarged to include settlement of disputed claims and determination of liabilities of legal heirs of the deceased---Revision was dismissed.

Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR 965 and Mst. Jameela Akhtar v. Public-at-Large and others 2002 SCMR 1544 rel.

Muhammad Ali Siddiqui for Petitioner.

Mian Ahmad Mehmood for Respondents Nos. 2 and 3.

M. Aftab Alam Yasir for Respondents Nos. 4.a to 4.f.

Mumtaz Hassan Awan for Respondent No.5.

YLR 2014 LAHORE HIGH COURT LAHORE 475 #

2014 Y L R 475

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SAIRA RANA---Petitioner

Versus

UNIVERSITY OF CENTRAL PUNJAB and 4 others---Respondents

Writ Petition No.8452 of 2013, decided on 25th June, 2013.

(a) Constitution of Pakistan---

----Art.199---Infringement of fundamental right of a person---Constitutional jurisdiction of High Court---Scope---High Court would come for rescue of such person.

(b) University of Central Punjab, Lahore, Ordinance (XXIV of 2002)---

----Ss.6 & 16---Constitution of Pakistan, Arts. 9, 14, 18, 20, 37(c) & 199---Constitutional petition---B.S. (Applied Accounting) Honors Degree Course---Plaintiff's promotion to 6th semester after successfully completing five semesters out of eight semesters of the course---Failure of petition to deposit course-fee within stipulated time due to financial restraints---Refusal of University to issue Challan Form to petitioner for depositing first instalment of course-fee after cut-off date---Validity---Public at large must be given opportunity of education for same being ultimate of any nation regarding character building---Basic object of establishment of a University would be to provide opportunity to public at large to acquire knowledge---Education of a woman would be instrumental in growth and nourishment of a nation---Petitioner being a female student had been made to suffer due to financial restraints---Petitioner having passed five semesters could not be ordered to be reverted back and lose golden time of her life, which could not be compensated---Such refusal of University was violative of fundamental rights guaranteed under Arts. 9, 14, 18 & 20 read with Art.37(c) of the Constitution---High Court directed University to restore enrolment of petitioner and receive course-fee from her and provide her equal opportunity in examination.

Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd., and another 2008 SCMR 1148; Province of Punjab through District Coordination Officer, Okara and others 2011 SCMR 1856; Muhammad Siddique v. Market Committee Tandlianwala 1983 5CMR 785; Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal heirs and others 1991 SCMR 2180 and Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 ref.

Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others PLD 2007 Kar. 116; Muhammad Iqbal Khan Niazi v. Vice Chancellor University of Punjab PLD 1979 SC 1; Ahmed Abdullah and 62 others v. Government of Punjab and 3 others PLD 2003 Lah. 752; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 rel.

----Arts. 9 & 20---Word "life" as used in Art. 9 of the Constitution---Scope---Such word would include knowledge in reference to a human being---Acquisition of knowledge by a Muslim (male/female) being obligatory according to Qur'an and teachings of Holy Prophet (P.B.U.H.)---Role of education in Islam for successful life and progress of society stated.

Ali Rana for Petitioner.

Khawaja Waseem Abbas and Imran Humayoun Cheema for Petitioners Nos.1 to 4.

YLR 2014 LAHORE HIGH COURT LAHORE 491 #

2014 Y L R 491

[Lahore]

Before Abdul Sami Khan, J

SHAHBAZ HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.143 and Criminal Revision No.75 of 2009, heard on 20th September, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 367-A, 377 & 336---Qatl-e-amd, kidnapping or abducting in order to subject a person to unnatural lust, sodomy, Itlaf-i-Salahiyyat-i-Udw---Appreciation of evidence---Matter was reported to the Police with sufficient promptitude without deliberation or consultation by the complainant---Both prosecution witnesses had sufficiently explained the mode and manner of the occurrence, place of occurrence, locale of injury sustained by the deceased---Prosecution witnesses had stated before the court that it was only the accused who first committed sodomy with the deceased, cut his penis, and then throttled him to conceal evidence against him and that only the accused was responsible for committing qatl-e-amd of the deceased---Said witnesses remained consistent on all material aspects and successfully given answers to all questions raised by defence in cross-examination---Presence of prosecution witnesses at the place of occurrence at the relevant time was proved from trustworthy and reliable evidence---Parties to the case were resident of same locality, and being known to each other, there was no question of mistaken identity of accused---Alleged improvements in the statements of eye-witnesses, had no vital effect on the case of prosecution, because accused had duly been witnessed by them pressing the throat of the deceased---Both the eye-witnesses had described each and every circumstance, which they had seen at the place of occurrence; and they exaggerated the matter to take any benefit---Prosecution had proved the ocular account through sound, cogent, trustworthy and confidence inspiring eye-witness account---Medical evidence was absolutely in-line with the ocular account---Post-mortem examination report, had fully corroborated the ocular account---Act of sodomy had also been established from the report of Chemical Examiner, which was positive---Mere delay in conducting post-mortem examination of the deceased, would not by itself demolish the whole structure of evidence---Medical evidence, in circumstances, had provided full support to the ocular account---Report of Serologist showed that chhuri allegedly recovered on the pointation of accused, was stained with human blood---Case being of single accused, substitution was a rare phenomenon---Accused being juvenile, Trial Court had rightly awarded him life imprisonment, which could not be differed with---Trial Court having already taken a lenient view in passing sentence against accused, conviction and sentence passed by the Trial Court against accused was upheld, in circumstances.

2003 MLD 1316; 2010 SCMR 374; 2010 YLR 303 and 2011 SCMR 208 ref.

Khizar Hayat v. The State 2011 SCMR 429 and Khalid Saif Ullah v. The State 2008 SCMR 688 rel.

Abrar Ahmed Qureshi for Appellant.

Mirza Muhammad Usman, Deputy Prosecutor-General for the State.

Zulfiqar Abbas Naqvi for the Complainant.

Date of hearing: 26th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 514 #

2014 Y L R 514

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ATIF FARID and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.1358 of 2008 and Murder Reference No.12 of 2009, heard on 30th May, 2013.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---F.I.R. was registered more than 2 hours after the occurrence---Post-mortem examination on the dead body of deceased was conducted with a delay of 18-1/2 hours from the occurrence without any plausible explanation for such delay---Occurrence was unseen and said delay was consumed in concocting a false and fabricated story of the prosecution to procure the attendance of eye-witnesses; and the F.I.R. was not lodged at the time mentioned therein---Both, the complainant and other eye-witness were chance witnesses as both of them were residents of area different to area where occurrence had taken place---Story narrated by said eye-witnesses regarding their presence at the spot did not appeal to common sense---Inherent defects existed in the prosecution case---Motive as alleged by the prosecution, had not been proved against accused---Alleged recovery of pistol on the pointation of accused, was of no avail to the prosecution, because the Forensic Science Laboratory report was only to the extent of working order of the said pistol---In absence of matching report of empty with the said pistol, the alleged recovery of pistol on the pointation of accused was immaterial---Present case was replete with number of circumstances, which had created serious doubt about the prosecution story---Prosecution having failed to prove its case against accused persons beyond any shadow of doubt, conviction and sentence recorded by Trial Court against accused were set aside; he was acquitted of the charge extending him benefit of doubt and was released, in circumstances.

Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Ashraf v. The State 2012 SCMR 419 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 ref.

(b) Criminal trial---

----Medical evidence---Medical evidence was a type of supporting evidence, which could confirm the ocular account with regard to the receipt of injury, nature of injury, kind of weapon used in the occurrence, but it would not identify the assailant.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 ref.

----Benefit of doubt---If there was a single circumstance which would create doubt regarding the prosecution case same was sufficient to give benefit of doubt to accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Shahzad Ahmad Bajwa for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Rana Munir Ahmad for the Complainant.

Date of hearing: 30th May, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 529 #

2014 Y L R 529

[Lahore]

Before Shehzada Mazhar, J

JAVED IQBAL and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.542 of 2009, decided on 9th October, 2013.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Complainant and prosecution witness, though were related inter se and with both the deceased closely, but mere relationship alone was not sufficient to discard their evidence; or to term them as interested witnesses---If such witnesses would fail to prove that they had witnessed the incident and that they were present at the spot, then their statements could be discarded; and it was not binding on the court to rely upon the statements of even disinterested witnesses, if otherwise, they were not found trustworthy---No empty of .30 bore pistol had been collected by the Investigating Officer from the point where accused were present and from where they had fired at both the deceased, whereas the empties had been recovered from inside the courtyard which had made the case of the prosecution doubtful---Occurrence took place at night time, but the eye-witnesses had not disclosed any source of light in which they had seen the occurrence---In absence of any source of light it was not possible for the eye-witnesses to see accused persons while committing the occurrence---Contradiction existed between statement of the complainant and medical evidence with regard to place of injuries on the person of the deceased---Eye-witnesses had made dishonest improvements in their statements while appearing in the court in order to fill up lacunas; it was not safe, in circumstances, to rely upon their statements for maintaining the conviction and sentence---Recovery of empties of rifle and pistol from the place of occurrence, was not helpful to the prosecution case, as accused remained on physical remand for thirteen days, but despite that nothing incriminating could be recovered from their possession during their physical remand---Accused had no direct motive against the complainant party, and no documentary evidence in support of the motive---Prosecution, in circumstances, had failed to prove the motive set up by it---Accused remained proclaimed offenders for a period of more than one month, but mere absconsion was not conclusive proof of guilt of accused persons a ground for maintaining conviction and sentence---If there was a single circumstance which created doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused, whereas the present case was replete with number of circumstances which had created serious doubts about the prosecution story---Prosecution having failed to prove its case against accused persons beyond the shadow of doubt, conviction and sentence recorded against accused persons by the Trial Court, were set aside and they were acquitted of the charge by extending them the benefit of doubt and were released, in circumstances.

Noor Muhammad's case 2010 SCMR 97; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Muhammad Khan and another v. The Sttae 1999 SCMR 1220; Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373; Muhammad Noor and another v. Member-I Board of Revenue, Balochistan and others 1991 SCMR 643; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence could confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence, but it would not connect accused with the commission of the occurrence.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Mursal Kazmi alias Qamar Shah v. The State 2009 SCMR 1410 rel.

----Motive---Scope---Motive could be a corroborative piece of evidence to the other evidence, but it alone was not sufficient to hold accused guilty with all improbability.

Ch. Naseer Ahmad Tahir for Appellant.

Basharat Ullah Khan for the Complainant.

Qaisar Mushtaq, ADPP for the State.

Date of hearing: 26th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 545 #

2014 Y L R 545

[Lahore]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

MUHAMMAD YOUNAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4802-B of 2012, decided on 7th January, 2013.

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

----S. 497---Drugs Act 1976 (XXXI of 1976), Ss. 7, 23 & 30---Sale of spurious and unregistered drugs---Bail, refusal of---Allegation against the accused was that he was selling spurious and unregistered drugs, and some of the drugs seized from his shop were without warranty and had expired---Drugs/medicines were recovered from the business place of accused in his presence, and he was caught red-handed---Samples of recovered medicines were sent for analysis and most of them were found substandard and spurious---Accused had prima facie committed an offence which had a direct impact on the public at large---Bail petition of accused was dismissed in circumstances with the observations that a person dealing in spurious drugs choose such business knowing that the same would directly affect the health of the public, and he sold spurious drugs just for getting monetary benefit through an easy way in a short period of time, and that sale of spurious drugs had to be dealt with iron hands in order to save innocent victims.

Mrs. Jumana Khursheed v. Ist A.D.J. Karachi East and 2 others 2007 YLR 363 and The State v. Iqbal Khan 1996 SCMR 767 distinguished.

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

----Ss. 497& 103---Drugs Act, 1976 (XXXI of 1976), Ss. 7, 23 & 30---Sale of spurious and unregistered drugs---Bail, refusal of---Raid proceedings---Police officials as recovery witnesses---Legality---Plea that no person from the public witnesses was joined at the time of alleged recovery of spurious drugs from the shop---Validity---Police personnel were as good witnesses as persons from the public unless mala fide was established against them---Persons from public were normally reluctant to offer themselves as witnesses in order to avoid animosity---Bail was refused to accused accordingly.

Mian Ahmad Mehmood for Petitioner.

Hassan Mehmood, D.P.-G., Rehman Ali, A.S.-I. and Dr. Muhammad Kaleem Bhutta, Drug Inspector for Respondents.

YLR 2014 LAHORE HIGH COURT LAHORE 567 #

2014 Y L R 567

[Lahore]

Before Abdul Sami Khan, J

RIZWAN ALI KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5676-B of 2013, decided on 20th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Delay of six months in registration of F.I.R., had not been explained thus showing that same was recorded after due deliberation and consultation---Accused was previous non-convict and never involved in any other case---Offence with which accused was charged did not fall under the prohibitory clause of S.497, Cr.P.C.---Accused was behind the bars since 7-2-2013---Investigation of the case was complete, and accused being no more required for further investigation, his further incarceration in jail would not serve any useful purpose---Section 489-F, P.P.C., was not a mechanism for the recovery of amount, but it was just a penal section and carried punishment of three years only---Complainant, ultimately had to file suit in the civil court under Order XXXVII, C.P.C. for the recovery of his amount---Accused was admitted to bail, in circumstances.

2011 SCMR 1708 rel.

Hammad Akbar Wallana for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State along with Zulqurnain A.S.-I. with record.

Hassan Sarfraz Bhalli for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 571 #

2014 Y L R 571

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ABDULLAH through L. Rs. and others---Petitioners

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Revision No.1437 of 2005, heard on 13th May, 2013.

Civil Procedure Code (V of 1908)---

----S.115---Revision---Findings recorded by court below being against unrebutted evidence of plaintiff---Validity---Such findings were result of misreading and non-reading of evidence---High Court set aside impugned judgments in circumstances.

Langar and others v. Ch. Muhammad Shafi and others 1994 MLD 2169 ref.

Shahid Iqbal Mian for Petitioner.

Mian Shah Abbas for Respondents Nos. 1 to 8.

Zulfiqar Ali, A.A.-G. for Respondents Nos. 9 to 12 with Basharat Ali, Head Clerk.

Date of hearing: 13th May, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 581 #

2014 Y L R 581

[Lahore]

Before M. Sohail Iqbal Bhatti, J

MUHAMMAD SHABBIR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 7 others---Respondents

Writ Petition No.490 of 2013, heard on 12th November, 2013.

Punjab Rented Premises Act (VII of 2009) ---

----Ss. 15 & 19---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction petition, filing of---Maintainability--- Requirements--- Non-submission of affidavit with the ejectment petition---Effect---Contention of tenant was that landlords had not submitted affidavit with the eviction petition---Ejectment application was accepted concurrently--- Validity--- Where law required an act to be done or performed in a particular manner, same had to be accordingly done/performed--- Where application should be submitted with affidavit under statutory provision, then application without such affidavit should not be maintainable---Defect for not filing affidavit with ejectment petition was curable but only in such cases where sufficient and reasonable explanation was given---Eviction petition had not been accompanied with the affidavits of landlords and two witnesses---Departure from statutory procedure had not been sufficiently explained which had rendered ejectment petition not maintainable in the eye of law---Landlords had not deposited 10% penalty of annual value of rent---Judgments/orders passed by both the courts below were set aside, however High Court observed that landlords might file fresh eviction petition in accordance with law---Constitutional petition was accepted in circumstances.

Khalil ur Rehman and another v. Manzoor Ahmad and others PLD 2011 SC 512 and Muhammad Saleem Nawaz v. Addl. District Judge, Chishtian and 2 others PLD 2012 Lah. 217 rel.

Malik Ata Rasool Joya for Petitioner.

Raja Muhammad Aslam for Respondents Nos.3 to 8.

Date of hearing: 12th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 590 #

2014 Y L R 590

[Lahore]

Before Ali Baqar Najafi, J

KALEEMULLAH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.2921 of 2010/BWP, decided on 22th July, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dowry articles---Contention of husband was that wife had brought dowry articles with gold ornaments but had taken back in his absence, however, in presence of his mother---Trial Court decreed the suit which was maintained by the Appellate Court with certain modifications---Husband contested to the extent of grant of amount of gold ornaments as well as cash amount---Mother of husband-defendant did not appear before the Trial Court to prove that plaintiff-wife took away dowry articles along with gold ornaments with her---Plaintiff-wife was required to prove not only the bringing of gold ornaments to the house of defendant-husband but also leaving the same at the time of her desertion which onus she had failed to discharge---Plaintiff-wife had to prove her case rather to take the benefit of defendant's omission/admission--- No receipt of goldsmith was produced to prove the purchase of gold ornaments---Maternal uncle of plaintiff-wife prepared the list of dowry articles and mentioned gold ornaments in the same---Plaintiff-wife had entered with third Nikah with the defendant-husband and it was important for her to retain the gold ornaments which she had---Seven tolas of gold ornaments along with 25 tolas of silver were written in the list of dowry articles without any receipt from the shop---Appellate Court had not recorded convincing reasons while setting aside the judgment of the Family Court---Constitutional petition was partly accepted, in circumstances.

Muhammad Tayyab Zameer Khan for Petitioner.

Muhammad Asim Khan for Respondents.

Date of hearing: 22nd July, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 599 #

2013 Y L R 599

[Lahore]

Before Ijaz Ahmad, J

KHURRAM SHAHZAD---Appellant

Versus

Mst. SHAHIDA NASREEN and another---Respondents

Criminal Appeal No.236 of 2013, heard on 21st October, 2013.

(a) Illegal Dispossession Act (XI of 2005)---

----S. 3---Illegal dispossession of owner of property---Possession, Scope---Complainant/owner of property in question, had claimed that she rented out her house to the tenant, and emigrated to U.K. and appointed a person to take care of her house and receive the rent in her absence---Complainant alleged that accused along with co-accused in collusion with the tenant, illegally possessed her house and accused illegally occupied the attached shops---Contention of accused that the complainant residing in U.K., could not be said to be possessing the property, and there was no question of dispossession---Contention was repelled---"Possession" was not an act of clinching or having tenacity over the property---"Possession" was a relative term and state of being in possession, differed from case to case---Principles---In the present case, if the complainant, was receiving the rent through a Manager, or even had the property under her lock and key, would be considered to be in her possession.

(b) Illegal Dispossession Act (XI of 2005)---

----S. 3---Illegal dispossession of owner of property---Appreciation of evidence---Complainant in her preliminary statement referred the disputed property (house and shops) falling in specified Khasra number and claimed to have been transferred to her by her predecessor with possession thereof---Complainant could not claim ownership and possession over other khasra number through her subsequent statement recorded after framing of the charge---Manager and the rent collector of the complainant, and three tenants of the shops, had not been produced in the court---Best evidence having been withheld, an adverse presumption, could be drawn against the complainant---Complainant having failed to establish her case of illegal dispossession against accused beyond any shadow of doubt, conviction ordered and the sentence passed through impugned judgment, rendered by the Trial Court, was declared contrary to law and was set aside.

Mirza Umar Asadullah for Appellant.

Malik Shahaid Zafar, ADPP for Respondents.

Date of hearing: 21st October, 2013.

2014 Y L R 646

[Lahore]

Before Muhammad Anwaarul Haq and Shahid Bilal Hassan, JJ

LIAQAT ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.974-B of 2013, decided on 28th May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Pre-arrest bail, confirmation of---F.I.R., in the case was lodged against accused after unexplained delay of approximately 24-days---Prosecution had put forward two stances, firstly, 1240 grams of charas was recovered from the secret cavity of the van, secondly, 1100 grams charas was recovered---Contraband was not recovered from the possession of accused---Complainant was real brother of a Police Officer, with whom accused had strained relations---Mala fide on the part of complainant, in circumstances, could not be ruled out---Accused was no more required by prosecution side for any further investigation and recovery---Ordinarily accused under S.9(c) of the Control of Narcotic Substances Act, 1997, did not deserve the right for the grant of pre-arrest bail, but facts of each and every case were to be seen independently---case of accused being fit one for grant of pre-arrest bail, bail granted to accused, was confirmed, in circumstances.

Muhammad Umair Mohsin for Petitioner.

Khalid Pervaiz Opel, D.P.G. with Raees S.I. for the State.

Ch. Ahmad Mehmood Goraya for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 672 #

2014 Y L R 672

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD AMIN and 3 others---Petitioners

Versus

The STATE---Respondent

Criminal Appeals Nos.1195 and 1196 and Murder Reference No.512 of 2007, heard on 24th September, 2013.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt---Contention of counsel for accused was that as two accused persons were declared innocent during course of investigation by the Police, other accused persons, could be acquitted on that ground---Validity---Contention was misconceived because it was not the duty of Investigating Officer to decide the innocence or guilt of accused---Opinion of the Police Officer was inadmissible in evidence---Accused person could not be acquitted merely on the basis of Police Investigation---Gross delay of about twenty-eight hours in conducting the postmortem examination of the dead-bodies of deceased persons had created serious doubt about the truthfulness of the prosecution story; as said delay was suggestive of the fact that the delay was consumed in concocting prosecution story and procuring the attendance of eye-witnesses---Both the complainant and other eye-witness who furnished ocular account of the prosecution, were not the residents of the place where occurrence took place, they had not given any plausible explanation for their presence at the spot at the relevant time, such persons, in circumstances were chance witnesses---Said witnesses had also made dishonest improvements in their statements as recorded by the Trial Court, such dishonest improvements in statements, was not worthy of reliance---Eye-witness of the occurrence, was not injured due to the firing of any of accused persons, but he received the injuries as the car of the deceased persons collided with a tree at the time of occurrence---Case of prosecution was that accused were armed with .244 bore rifles at the time of occurrence, but nothing was recovered from the possession of accused persons---Crime empties recovered from the spot were not found to have been fired from said rifle---Said recovery was of no avail to the prosecution---Motive for the murder of the deceased was not alleged against present accused persons, but was alleged against the accused who had died---Evidence of prosecution qua the motive had become irrelevant, in circumstances---Present case was replete with number of circumstances, which had created serious doubts about the prosecution story---Prosecution having failed to prove its case against accused persons beyond the shadow of doubt, their conviction and sentence were set aside, and they were acquitted of the charges by extending them benefit of doubt.

Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660; Irshad Ahmed v. The State 2011 SCMR 1190; Muhammad Ashraf v. The State 2012 SCMR 419 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 ref.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(b) Criminal trial---

----Motive---Scope---Motive was a double edged weapon; and if it could be a reason for commission of crime, then at the same time, it could be a reason for false implication of an accused in the case---Accused could not be convicted merely on the basis of evidence of motive in absence of convincing and reliable direct or circumstantial evidence.

----Medical evidence---Scope---Medical evidence could confirm the ocular evidence with regard to the seat of injury, the nature of injury, the kind of weapon used in the occurrence, but it could not identify the accused.

Muhammad Tasawere v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

Muhammad Akram Qureshi for Appellants (in Criminal Appeal No.1195 of 2007).

Syed Ehtesham Qadir Shah for the Appellant (in Criminal Appeal No.1196 of 2007).

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Munir Ahmad Bhatti for the Complainant.

Date of hearing: 24th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 686 #

2014 Y L R 686

[Lahore]

Before Shezada Mazhar, J

Messrs CHAKWAL CEMENT COMPANY LTD.---Petitioner

Versus

DISTRICT COLLECTOR, CHAKWAL and 4 others---Respondents

Writ Petition No.2645 and Civil Revision No.566-D of 2000, decided on 13th November, 2013.

(a) Stamp Act (II of 1899)---

----Ss.48, 40, 56, 57, 33, 35, 36, Sched. I, Art.40 & Preamble---Constitution of Pakistan, Art.199---Constitutional petition--Object of Stamp Act, 1899---Recovery of stamp duty on account of deficiency of the same and penalty---Agreement for financial accommodation of loan---Registration of mortgage deed---Notice for evading stamp duty on registration of mortgage deed---Reference in case of doubt with regard to amount of stamp duty---Scope---Neither the Collector nor the Chief Revenue Authority were in doubt with regard to amount of stamp duty with which mortgage deed was to be charged---Document and not the transaction was determinative of payable stamp duty---Stamp Act, 1899 did not deal with the bargain but the instrument which would record the bargain---Amount secured plus interest, default interest by way of liquidated damages, commitment charges, front end fees and all other moneys were payable under the agreement---Amount secured by the petitioner through mortgage deed was more than two billion Japanese Yen---When amount secured was not in dispute then there was no need for a reference under S. 56 or 57 of Stamp Act, 1899---Object of Stamp Act, 1899 was to realize and safeguard the public revenue---Petitioner had tried to avoid payment of due stamp duty on the technical ground which could not be allowed to go scot-free---Government could not be deprived of its revenue on technical basis---Short-paid stamp duty was recoverable under S. 48 of Stamp Act, 1899---Orders passed by the Collector for recovery of stamp duty were in accordance with law and facts---Constitutional petition was dismissed in circumstances.

Mst. Shamim Akhtar v. Najma Baqai 1977 SCMR 409; Muhammad Furqan v. Speaker National Assembly and 4 others 2010 PLC (C.S.) 1013 and Rousch (Pakistan) Power Limited v. Federation of Pakistan through Chief Commissioner and 4 others PLD 2012 Islamabad 1 rel.

(b) Stamp Act (II of 1899)---

----Ss. 56 & 57---Reference in case of doubt with regard to amount of stamp duty---Scope---If Collector had doubt with regard to amount of stamp duty with which instrument was chargeable then he was required to draw up a statement and refer the same for an opinion of the Chief Revenue Authority---Chief Revenue Authority might refer such matter to the High Court.

----S.2(17)---"Mortgage deed"---Meaning---"Mortgage deed" was an instrument which would transfer or create to transfer a right over a specified property for securing money advanced or to be advanced.

Malik Qamar Afzal for Petitioner.

Saif-ur-Rehman, A.A.-G. for Respondents.

Date of hearing: 31st October, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 710 #

2014 Y L R 710

[Lahore]

Before Sardar Tariq Masood and Miss Aaalia Neelum, JJ

MUHAMMAD AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.398-J of 2010, heard on 10th September, 2013.

Penal Code (XLV of 1860)---

----Ss. 324, 353, 186 & 34---Pakistan Arms Ordinance (XX of 1965), S.11-B---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Complainant as well as other prosecution witness of ocular account, admitted that prior to the occurrence, accused were not known to them and name of accused was disclosed by his co-accused---Statement of one accused, could not be read against other co-accused, unless the same was based upon incriminating material finding full corroboration from independent circumstances---Presence of accused at the place of occurrence at the relevant time, was based on evidence of Official Tracker, but said witness could not appear before the Trial Court---Non-production of the Official Tracker was beyond the control of the prosecution as he died before recording his statement---Prosecution in circumstances, was under the bounden duty to adduce secondary evidence in the shape of a person acquainted with the handwriting of deceased official tracker, but same was not done without any reason---Prosecution had not opted to get exhibited memo of identification of footprints of accused---Non-production of evidence with regard to identity of footprints of accused, itself had created material flaw in the prosecution version---Complainant had named accused as one of the assailants, but neither his body structures were mentioned therein, nor the same contained other features from where even any glimpse could be taken that as to what height, age, volume and physique, accused was having---None of the prosecution witnesses of ocular account had ever opted to give the details of the features of the body of accused---Accused being not previously known to the prosecution witnesses, his test identification parade was of pivotal importance, which was not done by the prosecution, which had created serious dents in the prosecution version---No one from the Police party had received even a scratch due to firing allegedly made by accused and his co-accused---In the absence of any direct role qua inflicting any injury on the person of the members of Law Enforcing Agency, medical evidence was of no avail to the prosecution to saddle the accused with the commission of offence---Report of Forensic Science Laboratory qua matching of the allegedly recovered pistol .30 bore from accused with the crime empties collected from the place of occurrence was not available---Such circumstance, itself created flaw in the prosecution version---Investigating Officer had not declared absconding accused fugitive from law while carrying out proceedings in terms of Ss.87/88, Cr.P.C.---No incriminating/overwhelming/ interlinking evidence was available to saddle accused with any liability---Merely on the basis of suspicion, innocent persons must not be convicted and punished---Court could err in letting off hundred guilty, but should not convict one innocent person---Prosecution case was full of material contradictions/discrepancies---Prosecution had failed to bring home the guilt of accused beyond shadow of reasonable doubt---Trial Court was not justified in convicting accused while basing upon such uncorroborated evidence, which even otherwise was full of contradictions---Conviction ordered by the Trial Court, in circumstances was against all canons of law---Benefit of every doubt was to be extended in favour of accused---Accused was acquitted of the charge and was ordered to be released, in circumstances.

Nadir Khan v. The State PLD 1993 FSC 390; Muhammad Sarfraz Khan v. The Crown PLD 1953 F.C. 317; Siraj v. The State 1984 SCMR 1238; Zafar Hayat v. The State 1995 SCMR 896; Mst. Dur Naz v. Yousaf and another 2005 SCMR 1906; Idris Ali and 7 others v. The State PLD 1971 Dacca 254 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Mian Maqsood Ahmad for Appellant.

Tariq Javed, Deputy Prosecutor-General for Respondent.

Date of hearing: 10th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 738 #

2014 Y L R 738

[Lahore]

Before M. Sohail Iqbal Bhatti, J

GHAZNI KHAN---Petitioner

Versus

XEN (E), RURAL ELECTRIFICATION IESCO and 5 others---Respondents

Writ Petition No.1613 of 2011, heard on 7th November, 2013.

Constitution of Pakistan---

----Arts.25 & 199---Constitutional petition--Electricity connection---Discrimination---Scope---Grievance of petitioner was that he and two respondents had been denied facility of electricity---Validity---Where a person was subjected to discriminatory treatment, there must be an intelligible differntia which subjected person or things that were grouped together from those who had been left out, failing which the act of Authority would come within the mischief of Art. 25 of the Constitution and was always be subjected to judicial scrutiny by High Court under Art. 199 of the Constitution---High Court found it incomprehensible that electricity was provided to the entire vicinity except petitioner and two respondents which action of authorities could not be allowed---High Court directed the authorities to provide electricity to petitioner and two respondents immediately on receiving of their applications---Petition was allowed in circumstances.

Dr. Noor Muhammad Raja v. Deputy Manager, FESCO and others 2003 CLC 1874 and Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 ref.

Malik Muhammad Kabir for Petitioner.

Ms. Nadia Hayat for Respondents.

Date of hearing: 7th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 749 #

2014 Y L R 749

[Lahore]

Before Atir Mahmood, J

JAMIL HUSSAIN SHAH and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.2281 of 2010/BWP, heard on 29th October, 2013.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Limitation Act (IX of 1908), S.18---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration on the basis of agreement to sell---Application for setting aside decree on the basis of fraud---Limitation---Contention of applicants was that fraud had been committed while obtaining the impugned judgment and decree---Said application was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Application under Order I, Rule 10, C.P.C., was filed to implead counsel who got recorded his conceding statement in the suit but same was opposed by the decree-holder and was turned down---Applicants discharged their onus to prove that counsel was never appointed in the suit through their attorney---Onus would shift on the decree-holder to rebut the same through production of her evidence by summoning the said counsel through the court to establish that he was appointed counsel for the judgment-debtor---Said counsel was appointed by the decree-holder in another suit who got recorded his conceding statement on her behalf in the said suit---Evidence produced by the applicants had not been rebutted by production of any credible evidence by the respondent---Application under S. 12(2), C.P.C. could be filed within three years from the date of knowledge---Revisional Court committed error while ignoring the provisions of S.18 of Limitation Act, 1908---Judgment passed by the Revisional Court was not maintainable---Material illegality and irregularity had been committed by the said court---Impugned judgment passed by the Revisional Court was set aside and order passed by the Trial Court was restored---Constitutional petition was accepted in circumstances.

Mst. Rasool Bibi through Legal Heirs v. Additional District Judge Silakot and another PLD 2006 Lah. 181 and Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12 rel.

Malik Waqar Haider Awan and Muhammad Ali Siddiqui for Petitioners.

Athar Rehman Khan for Respondents.

Date of hearing: 29th October, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 767 #

2014 Y L R 767

[Lahore]

Before Amin-ud-Din Khan and Shoaib Saeed, JJ

MUHAMMAD ASHIQ KHAN---Appellant

Versus

MUHAMMAD SHARIF and 5 others---Respondents

R.F.A. No.132 of 2007, heard on 22nd April, 2013.

Specific Relief Act (I of 1877)---

---S. 12---Civil Procedure Code (V of 1908), O. XII, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 84---Suit for specific performance of contract---Application for comparison of signature---Plaintiffs proved the execution of agreement to sell and receipt of earnest money and produced the scribe and two marginal witnesses of agreement to sell---One of the plaintiffs appeared in the witness box and there was no defect in the evidence produced by the plaintiffs---Contention of defendant was that specific issue with regard to execution of agreement to sell was not framed and application for comparison of signature was not decided---Framing or non-framing of an issue was not fatal---Defendant had not highlighted any prejudice caused to him for non-framing of specific issue---Decision of application at the time of final decision of the suit was not contrary to law---Defendant failed to cross-examine the material facts narrated in the examination-in-chief by the witnesses of the plaintiffs---Witness which had not been cross-examined on material points, his statement to such extent was presumed to have been admitted---Appeal was dismissed.

Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4 and Muhammad Akram alias Raja v. Muhammad Ishaque 2004 SCMR 1130 rel.

Naveed Hashmi for Appellant.

Ch. Abdul Ghani, Ch. Muhammad Siddique Gujjar, Sh. Tanzeel-ur-Rehman Ashraf and Abdul Samad Ali for Respondents.

Date of hearing: 22nd April, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 774 #

2014 Y L R 774

[Lahore]

Before Abdus Sattar Asghar, J

GHULAM MUHAMMAD and another---Petitioners

Versus

Mian ABDUL KARIM through L.Rs.---Respondent

Civil Revision No.18 of 2010, decided on 12th September, 2013.

(a) Words and phrases---

----"Meeting"---Definition.

Oxford Advanced Learner's Dictionary New 8th Edition rel.

(b) Words and phrases---

----"Sitting"---Definition.

Oxford Advanced Learner's Dictionary New 8th Edition rel.

----S.13 (1) & (2)---Talb-e-Muwathibat, performance of--- Proof--- Talb-e-muwathibat was made in the presence of informer only---Effect---Pre-emption suit was decreed in favour of the pre-emptor and Appellate Court upheld the judgment and decree passed by trial Court---Contention of the petitioner was that talb-e-muwathibat was made by the pre-emptor in the presence of informer only and no third person in the said meeting was present, which did not constitute lawful sitting of meeting, therefore talb-e-muwathibat was not made in accordance with law---Validity---Law did not require physical presence of any witness besides the informer and the pre-emptor at the time of performance of talb-e-muwathibat---Meeting of informer and pre-emptor comprising two persons was sufficient within the meaning of sitting or meeting (majlis) to perform talb-e-muwathibat---Requirement of talb-e-muwathibat was immediate (jumping) demand by the pre-emptor without delay on receiving information of the impugned sale and did not require assembling or gathering of more than two persons---Pre-emptor was not required to make any resort to collect a group of more than two persons to make talb-e-muwathibat after receiving knowledge of the impugned sale from the informer---Presence of two truthful witnesses at the stage of making of talb-i-ishhad was required by law and not at the stage of making talb-e-muwathibat---Courts below rightly decreed the suit in favour of pre-emptor---Civil revision was dismissed.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of two courts below---Concurrent findings of facts recorded by the Courts below on the basis of salutary appreciation of evidence did not call for any interference by High Court in exercise of its revisional jurisdiction---Revision was dismissed.

Muhammad Saleem Akhtar for Petitioners.

Abdul Wahid Chaudhry for Respondent.

YLR 2014 LAHORE HIGH COURT LAHORE 781 #

2014 Y L R 781

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD SHAHZAD HUSSAIN---Petitioner

Versus

ZUNAIRA JABBAR---Respondent

Writ Petition No.18973 of 2013, decided on 10th October, 2013.

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

----S. 5, Sched.---West Pakistan Family Courts Rules, 1965, R. 22---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance for minor child decreed---Contention of petitioner/father was that he could not file appeal against such decree in time before the lower appellate court on account of his illness---No medical certificate with regard to illness was accompanied with the application for condonation of delay---Petitioner-father had been playing hide and seek with the court and his conduct was contumacious---Decree for recovery of maintenance allowance of minor son having been passed against the father, he was bound to maintain the minor but was trying to avoid his such responsibility on one pretext or the other---Person having such irresponsible attitude towards his minor child was not entitled for any equitable relief---Appellate Court had rightly declined to condone the delay---Constitutional petition was dismissed in circumstances.

Tajmmal Abbas Rao for Petitioner.

Syed Taqi Raza Akbari for Respondent No.1.

YLR 2014 LAHORE HIGH COURT LAHORE 791 #

2014 Y L R 791

[Lahore]

Before Abid Aziz Sheikh, J

ARIF MAHMOOD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.4840 of 2012, decided on 30th July, 2013.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Application for ejectment of tenant---Default in payment of rent---Contention of tenant was that he was co-owner of the property---Ejectment application was accepted concurrently---Validity---Tenancy had been admitted by the tenant---Tenant had not produced any document to prove that he had paid rent from November, 2007 onward---No rent receipt was produced by the tenant in the court---Documents which were not part of record and had not been exhibited could not be considered---Concurrent findings recorded by both the courts below were neither perverse nor were result of any misreading or non-reading of evidence---Tenant had failed to prove title of some part of property in his favour---Suit for removal of encroachment did not entitle the tenant to retain the rented property without payment of rent---High Court could not act as a court of appeal while deciding constitutional petition---Concurrent findings of courts below could not be interfered by the High Court in constitutional jurisdiction unless there was misreading or non-reading of evidence or findings were based on no evidence or patent illegality or jurisdictional defect had been committed by the courts below---No such defect was found in the impugned orders---Constitutional petition was dismissed in circumstances.

Mst. Sanobar Sultan and others v. Obaid Ullah Khan and others PLD 2009 SC 71 and Syed Izhar ul Hassan Rizvi v. Mian Abdul Rahman and others 1992 SCMR 1352 distinguished.

Muhammad Ramzan and 12 others v. The Member (Revenue), Board of Revenue Punjab, Lahore and 7 others 1994 SCMR 55 and Shajar Islam v. Muhammad Siddique PLD 2007 SC 45 rel.

Ghulam Farid Sanotra for Petitioner.

Hammad Akbar Walana for Respondent No.3.

YLR 2014 LAHORE HIGH COURT LAHORE 805 #

2014 Y L R 805

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ISHTIAQ AHMAD alias TAK---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.268 and Murder Reference No.105 of 2009, heard on 3rd June, 2013.

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

----Ss. 302(b), 337-F(i)(ii)(iv) & 34---Qatl-e-amd, causing Damiyah, Badi'ah, Madihah, common intention---Appreciation of evidence---No deliberate or conscious delay in reporting matter to the Police---Presence of complainant, her son and 'Bhanjha', in the house of the complainant at odd hours of the night, was quite probable and natural specially when all said three witnesses of the occurrence; had stamp of injuries on their person---Though no source of light had been mentioned, but there was some moonlight, and electric light was also on at that time---Both parties being residents of the same vicinity and known to each other, question of misidentification of accused, would not arise at all---One of the prosecution witnesses, who was dumb, his evidence was not believed by the Trial Court, qua the injuries sustained by him, and he was straightway excluded from consideration against accused---Quality, and not the quantity of the evidence, which would settle the guilt or innocence of accused---Even after excluding evidence of said witness, there left testimonies of complainant and other prosecution witnesses---Medical evidence, was exactly in line with the ocular account---Recovery of dagger at the instance of accused, was immaterial, because, in the recovery memo, it was nowhere mentioned that same was stained with blood, and no report of Serologist qua said dagger was available on record---Prosecution had failed to establish the motive part of the occurrence---No injury to the deceased or anybody else was attributed to acquitted co-accused, whereas accused was attributed successive dagger blows to deceased, complainant and other prosecution witnesses---Straightforward and confidence-inspiring ocular account, was fully supported by medical evidence---Conviction of accused under Ss.302(b), 337-F(i)(ii)(iv), P.P.C. was maintained, in circumstances.

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

----Ss. 302(b) & 337-F(i)(ii)(iv)---Qatl-e-amd, causing Damiyah, Badi'ah, Madihah---Quantum of sentence---Accused had committed cold-blooded murder of young son of the complainant aged 24 years by causing eleven incised dagger blows, besides causing injuries to the complainant and other prosecution witnesses---No mitigating circumstance was in favour of accused---Trial Court had rightly awarded the normal penalty of qatl-e-amd to accused, who deserved nothing lesser than death sentence---Prosecution having fully proved its case against accused beyond any shadow of doubt, appeal against judgment of Trial Court was dismissed, and Murder Reference, was answered in the affirmative and sentence of death was confirmed, in circumstances.

Asad Mahmood v. Akhlaq Ahmed and another 2010 SCMR 868 rel.

Rana Javed Anwar Khan for Appellant.

Mirza Abid Majeed, Deputy Prosecutor for the State.

Khalid Masood Chaudhry for the Complainant.

Date of hearing: 3rd June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 822 #

2014 Y L R 822

[Lahore]

Before Malik Shahzad Ahmad Khan and Arshad Mahmood Tabassum, JJ

SARDAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.483 of 2013, heard on 16th January, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Recovery memo, did not bear the signature of prosecution witness produced to prove said recovery memo, which had made the prosecution case doubtful---Recovery of charas from accused as alleged by the prosecution, lacked proof, in circumstances---Other prosecution witness who was not produced by the prosecution, was given up by the prosecution---Conviction recorded by the Trial Court against accused appearing to be based on misreading and non-reading of evidence available on the record, could not sustain---Impugned conviction and sentence of accused, were set aside, and he was released from jail, in circumstances.

Hassan Raza Pasha for Appellant.

Qaiser Mushtaq ADPP for the State.

Date of hearing: 16th January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 851 #

2014 Y L R 851

[Lahore]

Before M. Sohail Iqbal Bhatti, J

Ch. RIAZ AHMED---Petitioner

Versus

MUHAMMAD QAISAR ABBAS---Respondent

Civil Revision No.263 of 2005, heard on 19th November, 2013.

Punjab Pre-emption Act (IX of 1991)---

---S. 13---Talbs, performance of---Requirements---Right to pre-empt the sale was a feeble right and a delay of 1 ½ hour in performing Talb-e-Muwathibat was fatal---Performance of talbs was sine qua non for filing a suit for possession through pre-emption---Material contradictions in the statements made by the witnesses of plaintiff were on record which could not be termed as variation---Plaintiff was in prior knowledge of sale---Postman was not produced by the pre-emptor and he had failed to prove Talb-e-Muwathibat and Talb-e-Ishhad to pre-empt the sale---Revision was dismissed in circumstances.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

Hifz Ur Rehman Syed and Ch. Haider Ali Khan for Petitioner.

M. Ali Tariq and Rizwan Haider Bhatti for Respondent.

Date of hearing: 19th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 865 #

2014 Y L R 865

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, J

MUHAMMAD RAFIQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.374-J and Murder Reference No.454 of 2009, heard on 12th June, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---As to why 'Wajtakkar' remained mum for a period of 25 days was not known---Evidence of Wajtakkar, did not advance the case of prosecution---No specific date of confession, allegedly made by accused before two prosecution witnesses, was mentioned in the statements of said witnesses---Extra judicial confession was not worthy of reliance in circumstances, Recoveries of blood-stained chhurri, electric iron and blood-stained clothes, were not helpful for the prosecution, as same were taken into possession from the spot, and nothing was recovered at the instance of accused---Accused, who absconded, was arrested just after one month and seven days of occurrence---Evidence of abscondance, advanced by the prosecution, was hit by the statutory provisions contained in S.87, Cr.P.C.---Prosecution case being doubtful, in nature, accused was entitled to the benefit of doubt, not as a matter of grace, but as of right---Conviction and sentence awarded to accused vide judgment passed by the Trial Court, were set aside, accused was acquitted of the charge of murder of the deceased, and was released, in circum-stances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

(b) Criminal trial---

----Medical evidence---Evidentiary value---Medical evidence was only a supporting piece of evidence---Conviction could not be maintained merely on the basis of medical evidence---Medical evidence could only be helpful if other evidence inspired confidence.

----Motive--- Evidentiary value--- Motive was a corroborative piece of evidence, and conviction could not be maintained only on the basis of motive.

Mrs. Bushra Qamar Defence Counsel at State expense for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Naseer Ahmed Jaura for the Complainant.

Date of hearing: 12th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 877 #

2014 Y L R 877

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

NOSHER ALI---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No.5986-B of 2013, decided on 7th January, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qanun-e-Shahadat (10 of 1984), Art. 38---Qatl-e-amd, common intention---Bail, grant of---Further inquiry--- Blind murder---Belated implication---Prosecution report stated that present case was one of blind murder, and the complainant who was a passerby found body of deceased and reported such matter to the police---After almost one month of the registration of F.I.R., an alleged eye-witness of the occurrence came forward and implicated accused for the murder---Strangely alleged eye-witness of the occurrence remained silent and never disclosed fact of seeing accused commit the murder to the police for almost a month---Question as to what prompted the alleged eye-witness to disclose such fact to the police was still a mystery---Alleged confession of accused during police investigation while in custody had no evidentiary value and same could not be used against him---Prosecution had a heavy responsibility to discharge the onus of involvement of accused in the alleged crime---Present case was a classic example of a case of further inquiry---Accused was admitted to bail in circumstances.

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

---Art. 38---Confession before police---Admissibility as evidence---Alleged confession of accused during police investigation while in custody had no evidentiary value and same could not be used against him.

Prince Rehan Iftikhar Sheikh for Petitioner.

Malik Saeed Mumtaz, Deputy Prosecutor-General with Naseem S.I. for the State.

YLR 2014 LAHORE HIGH COURT LAHORE 882 #

2014 Y L R 882

[Lahore]

Before Sh. Najam-ul-Hasan, J

Syed SHAN ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4766-B of 2013, decided on 27th May, 2013.

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

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Ad-interim pre-arrest bail, confirmation of---Dishonoured cheque handed over/ given by accused but not issued by him---Complainant alleged that he purchased a plot from a company run by the accused; that said plot was neither transferred in his name nor possession of same was delivered to him; that the matter was settled between the parties as a result whereof accused "handed" him a cheque, "issued" by some other person, which cheque was dishonoured on presentation---To constitute an offence under S. 489-F, P.P.C it was mandatory to prove that accused himself "issued "the cheque---Complainant had only stated that accused gave him a cheque issued by some other person---Although accused might have cheated/defrauded the complainant or committed breach of trust, but S. 489-F, P.P.C was not attracted in circumstances of the present case----Ad-interim pre-arrest bail already allowed to accused was con-firmed in circumstances.

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Dishonoured cheque handed over/given by accused but not issued by him---Question as to whether S.489-F, P.P.C would be attracted where dishonoured cheque was merely handed over by accused but was issued by some other person (i.e. from someone else's account)---Section 489-F, P.P.C applied to those cases only where cheque was issued by the accused himself and not in any other case.

Zubair Afzal Rana for Petitioner.

Rana Tassawar Ali Khan, D.P.G. with Sakawat Ullah A.S.-I. for the State.

Iqbal Ahmad Dhudhi for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 894 #

2014 Y L R 894

[Lahore]

Before Shahid Hameed Dar, J

EHSAN alias SANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6895-B of 2013, decided on 20th June, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.355, 452, 337-A(ii), 337-F(i), 337-F(iii), 337-F(v), 337-L(2), 148 &149---Assault or criminal force with intent to dishonour person, otherwise than on grave provocation, house-trespass after preparation for hurt, assault or wrongful restraint, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, ghayr-jaifah-hashimah, punishment for other hurt, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Accused along with co-accused persons was alleged to have trespassed into house of complainant, whereafter they beat to the injured witness and inflicted various injuries upon him---Injured witness joined investigation belatedly without offering any explanation--Statement of injured witness under S.161, Cr.P.C. was inconsistent with the story of F.I.R., inasmuch as, he did not contend therein to have been beaten inside the house of complainant, as claimed by the complainant in the F.I.R.---Allegation against accused was of collective and general nature and it could not be seen from the contents of F.I.R. as to which injury on person of injured had been inflicted by whom---Danda allegedly recovered at the instance of accused did not corroborate the F.I.R. or statement of injured witness, who categorically alleged that accused was armed with an iron rod at the time of the occurrence---None of the offences alleged against accused fell within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was no more required for purpose of any recovery or discovery of any other act---Accused was granted bail in circumstances.

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

----S. 497(1)---Bail---Offence not falling within the prohibitory clause of S. 497(1), Cr.P.C.---For such offences grant of bail was a rule and rejection thereof an exception.

Rana Muhammad Aslam Nadeem for Petitioner.

Mrs. Muqadass Tahira, Addl: Prosecutor-General Punjab, Sabir S.-I. with record.

YLR 2014 LAHORE HIGH COURT LAHORE 908 #

2014 Y L R 908

[Lahore]

Before Abdul Sami Khan, J

MUZZAFAR HUSSAIN---Appellant

Versus

The STATE and others---Respondents

Criminal Revisions Nos.184, 255 and Writ Petition No.2230 of 2012, heard on 19th April, 2013.

Penal Code (XLV of 1860)---

----Ss. 337-A(ii), 148, 149 & 337-F(vi)---Causing Shajjah-i-Mudihah, rioting, common object, causing Munaqqilah---Appreciation of evidence---Benefit of doubt---Complainant booked in F.I.R. four persons allegedly armed with different kinds of weapons, inflicted injuries on the persons of complainant party---One of the accused in the said case lodged a cross-version during investigation of F.I.R., wherein he booked ten persons from complainant side, alleging that said persons had inflicted injuries on accused party---Manner and mode in which both parties had adduced evidence, had shown that occurrence was the result of sudden free-fight over land dispute---Time, date, happening of incident and presence as well as participation/involvement of the parties in the occurrence were all admitted facts---Manner and mode of taking place of occurrence was suppressed by both the parties and their respective roles in the incident---Both the sides had also tried to magnify the role of their rivals and also exaggerated the matter in order to save themselves from criminal prosecution; and to tie the rope of prosecution around the necks of their opponents---Out of four accused persons in the complaint case, three had finally been acquitted and no appeal against their acquittal had been filed by the complainant---Fourth accused was alleged to have inflicted three injuries on person of complainant and two other persons of complainant side---Complainant who allegedly sustained injuries, having not appeared before the Radiologist, no final opinion with regard to the injuries sustained by the complainant was available on record to conclusively determine the nature of said injuries---Injuries attributed to accused on two injured from complainant side, was caused by him by sharp edged weapon, which fell under S.337-A(ii), P.P.C.---Weapon of offence had also been recovered from said accused---Medical evidence had also provided full support to the ocular account qua the injuries of the victims of the complainant side---Said accused was rightly convicted and sentenced by the courts below and same could not be interfered with by High Court---Complainant of cross-version though had allegedly sustained five injuries, but according to Doctor, out of said five injuries, in the case of three there was swelling and remaining two were feeling pain only---Complainant in cross-version had also failed to appear before the radiologist to get the nature of said injuries specifically declared---Possibility could not be ruled out that said injuries were self-inflicted ones---Injuries, had been attributed to accused of cross-version on person of a female of accused party, which was declared to be under S.337-F(vi), P.P.C. which found full support from medical evidence---Trial Court, in circumstances, had rightly convicted and sentenced accused of cross-version and conviction had correctly been modified by the Appellate Court below---Rest of accused of cross-version had rightly been acquitted of the charge by extending them benefit of doubt---Provisions of Ss.148 & 149, P.P.C., were invoked against the parties, in both the F.I.Rs., but no witness from either side had uttered even a single word regarding sharing of common intention---Courts below, in circumstances had rightly left said offences as un-attended---No illegality was found in conclusion arrived at by the Appellate Court to interfere in the impugned judgments separately passed in both cases, i.e. in F.I.R. and in cross-version case---Interference was declined by High Court.

Khadim Hussain v. The State 2010 SCMR 1090; PLD 2009 Lah. 312; 2009 PLR (Lah.) 870(d); Ali Muhammad v. The State PLD 2009 Lah. 312 and 2012 PCr.LJ 104 ref.

Pirzada Noor Ali Shakoori for Petitioner (in Criminal Revision No.184 of 2012 and in Writ Petition No.2230 of 2012).

Khawaja Khalid Farooq for Petitioner (in Criminal Revision No.255 of 2012).

Mirza Muhammad Usman, Deputy Prosecutor-General for the State.

Nadeem Akhtar Bhatti, Assistant Advocate General for Respondents Nos. 1 to 3 (in Writ Petition No.2230 of 2012).

Date of hearing: 19th April, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 928 #

2014 Y L R 928

[Lahore]

Before Shahid Hameed Dar, J

Rana MUHAMMAD SOHAIL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.18686/B of 2012, decided on 19th February, 2013.

(a) 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, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Accused allegedly fired at the complainant party which resulted in firearm injuries to four persons and also caused the death of the deceased---First bail application of accused before High Court was dismissed as withdrawn, while the second one was dismissed due to non-prosecution---Plea of accused that present (i.e. third) bail application had been filed on basis of the fresh grounds that complainant party had also been summoned as accused in a private complaint, and that trial had not concluded despite a lapse of more than two years---Validity---All injured witnesses except one joined investigation and fully corroborated story of the F.I.R. in their statements under S. 161, Cr.P.C.---One of the injured witnesses burdened the complainant party for the offence and thus set-up a cross case by way of a private complaint---Said private complaint was filed more than a year after the alleged occurrence and by that time prosecution witnesses had resiled from their previous statements and changed their loyalties---Said private complaint could hardly be a fresh ground for filing present bail application---Delay in conclusion of trial was occasioned by the accused side as complainant, prosecution witnesses and eye-witnesses kept appearing before the Trial Court but they could not be recorded due to stubbornness of the accused---Two of the eye-witnesses had not been cross-examined by defense side despite a lapse of about 17 months---Bail application was dismissed in circumstances.

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

----S. 497---Second bail application, filing of---Fresh grounds---Scope---Dismissal of first bail application on merits or as withdrawn synchronized with exhaustion of all grounds available, whether pressed or not, and subsequent/second bail application would lie only on a fresh ground, which arose after dismissal of first/previous bail application.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 rel.

Muhammad Taqi Khan and Sardar Akbar Ali Dogar for Petitioners.

Mrs. Muqadass Tahira, Addl: Prosecutor-General Punjab for Respondents.

Rana Safdar Hussain for the Complainant.

Abdul Hameed A.S.-I. with record.

YLR 2014 LAHORE HIGH COURT LAHORE 933 #

2014 Y L R 933

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ABDUR RAUF and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 1107 of 2008, Criminal Appeal No.637 of 2009, Criminal Revision No.732 of 2008 and Murder Reference No.9 of 2009, heard on 6th June, 2013.

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

----S. 302(c)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---No injury on the person of the deceased was attributed to accused persons---One of the accused persons was alleged to be armed with .222 bore rifle, while the other was alleged to be armed with Mauser at the time of occurrence; and were resorted to arial firing, but no weapon of offence was recovered from both of them during investigation---Sixteen crime empties were secured from the spot and all said crime empties were of 7.62 MM bore---No crime empty of .222 bore rifle or Mauser was secured from the spot---No motive was alleged against said accused persons---Possibility of false implication of the accused persons by the complainant by using wider net, could not be ruled out---Appeal to the extent of said two accused persons, was allowed, and judgment of the Trial Court to their extent was set aside; they were acquitted of the charge, extending them benefit of doubt, and their bail bonds stood discharged, their sureties, were released, in circumstances.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---No conscious or deliberate delay took place in reporting the matter to the Police and F.I.R. was lodged with promptitude---Ocular account of the prosecution was furnished by complainant and prosecution witnesses, who had plausibly explained their presence at the spot at the time of occurrence---Occurrence took place in the broad-daylight---Both accused persons were assigned the specific role of making firing with Kalashnikov on the person of the deceased---Said witnesses, though were related to the deceased, but their evidence could not be discarded merely on the basis of their relationship with the deceased or their enmity with accused persons provided the same was confidence-inspiring---Both said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be shaken to the extent of role played by accused persons---Evidence of said witnesses was trustworthy and reliable qua the role of accused persons---Time of occurrence, nature of injuries, the kind of weapon used by accused persons, as stated by eye-witnesses, had tallied with the medical evidence furnished by the doctor---Objection of counsel for accused with regard to delay of about eleven hours in conducting of post-mortem examination on the dead body of the deceased, was misconceived---Motive as alleged by the prosecution, had fully been proved against accused persons---Nothing was recovered from one of said accused persons, whereas Kalashnikov along with ten live bullets were recovered from other accused, but said recovery was inconsequential, since according to the report of Forensic Science Laboratory, crime empties were not found to have been fired from said Kalashnikov---One of said accused persons, could not prove (as stated) that at the time of occurrence he was either on physical remand or in judicial lock-up in other case---Prosecution case was proved against accused persons through evidence of eye-witnesses, which was fully supported by medical evidence---Prosecution, in circumstances, had proved its case against said accused beyond any shadow of any doubt---Certain mitigating circumstances were present in favour of accused persons, firstly no weapon of offence was recovered from possession of one accused, whereas recovery of Kalashnikov along with ten bullets allegedly recovered from other accused, had been disbelieved; secondly, that a joint role of firing at deceased was attributed to both accused persons and no specific injury was assigned to them in F.I.R., in the private complaint or in statement of eye-witnesses, there were total seven firearm entry wounds on the person of the deceased, and cause of death was three injuries---Said three injuries were not specifically attributed to either of accused persons and thirdly that complainant implicated seven persons in the case, out of whom, three had been acquitted, by the Trial Court, whereas two had been acquitted by High Court---Accused were entitled to the benefit of doubt as an extenuating circumstance, while deciding question of sentence as well--- Convicted accused, in circumstances, deserved the benefit of doubt to the extent of their sentences out of two provided under S.302(b), P.P.C.---While treating the case of mitigation, maintaining conviction of accused persons under S.302(b), P.P.C., their sentence was altered from death to imprisonment for life---Accused were also awarded the benefit of S.382-B, Cr.P.C.

Ellahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842 and Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

Syed Zahid Hussain Bokhari, Ms. Khalida Parveen and Hussain Qayyum for Appellants.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Abid Saqi for the Complainant.

Date of hearing: 6th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 954 #

2014 Y L R 954

[Lahore]

Before Abdul Sami Khan, J

ASHFAQ AHMED alias GOGA and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6585-B of 2013, decided on 11th June, 2013.

(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, unlawful assembly---Bail, grant of---Further inquiry---Rule of consistency---Accused was alleged to have held the legs of the deceased during the occurrence---One of the co-accused with a role similar to that of accused had already been allowed bail by the High Court, and such order had not been challenged by the complainant, therefore, accused also deserved the same concession on the rule of consistency---Case against accused was one of further inquiry---Accused was allowed bail in circumstances.

1982 SCMR 909 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, unlawful assembly---Bail, grant of---Further inquiry---Accused was alleged to have caused firearm injury on the head of the injured witness---Injury attributed to accused was declared as 337-A(ii), P.P.C., and he had not repeated fire, therefore, question of applicability of S. 324, P.P.C. was to be determined by the Trial Court after recording of evidence---Accused had not caused any injury to the deceased so the question of vicarious liability of accused was to be determined by Trial Court after recording of evidence---Nothing was recovered from accused during his physical remand, and investigation of the case was also complete---Accused was also a previous non-convict---Case against accused was one of further inquiry, and he was released on bail accordingly.

1981 SCMR 1082 rel.

Muzaffar Hussain Basra for Petitioners.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State along with Mohsin Rana A.S.-I. with record.

Complainant in person.

YLR 2014 LAHORE HIGH COURT LAHORE 958 #

2014 Y L R 958

[Lahore]

Before Amin-ud-Din Khan, J

Mst. MUMTAZ GULSHAN---Petitioner

Versus

PROVINCE OF PUNJAB through Deputy Commissioner/DOR, Sargodha and others---Respondents

Civil Revision No.594 of 2012, decided on 17th June, 2013.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Limitation--Concurrent findings of fact by two courts below---Admission---Plaintiff assailed sale of land in favour of defendants on the plea that she was daughter of previous owner of suit property and her brother had deprived her from her share---Validity---Plaintiff admitted that she had received land allotted against claim of her father in inheritance and she did not rebut right of her brother with regard to allotment of land against claims, therefore, plaintiff failed to prove her case---Consenting written statement filed by brother of plaintiff did not strengthen case of plaintiff, rather it showed connivance of both the parties---Suit-land was sold through registered sale-deeds in years 1963 and 1965 by brother of plaintiff who had received consideration and delivered possession to vendees---Plaintiff also failed to prove that land was actually allotted against claim of her father and suit had been filed with unexplained delay after the prescribed period of limitation---Plaintiff also failed to show that allotment in favour of her brother was fraudulent, therefore, purchase of suit-land by defendants was valid one, who were not required to prove plea of bona fide---Seller was recorded owner of land at the time of sale---Plaintiff was not able to highlight any material irregularity or infirmity and misreading or non-reading of evidence on the part of two courts below while recording concurrent findings of facts in the matter---High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments passed by two courts below---Revision was dismissed in circumstances.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; Manzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027; Gul Muhammad and others v. The Additional Settlement Commissioner and others 1985 SCMR 491; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Province of The Punjab through Member Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147; Sagheer Muhammad Khan and 5 others v. Member (Judicial-V) Board of Revenue, Punjab and 4 others 2009 YLR 1255; International Multi Leasing Company v. Capital Assets Leasing Corporation Limited and another 2004 CLD 1 and Allah Bakhsh and others v. Member Board of Revenue and others 1997 MLD 1779 ref.

S.M. Tayyab and Abdul Khaliq Safrani for Petitioner.

Naveed Sheharyar Sheikh and Ch. Muhammad Masood Jahangir for Respondents.

Dates of hearing: 13th and 17th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 967 #

2014 Y L R 967

[Lahore]

Before Sardar Tariq Masood and Abdul Sami Khan, JJ

ZAHEER AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.202-J of 2011 and Murder Reference No.53 of 2010, heard on 13th December, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Reduction in sentence---Mitigating circumstances---Eye-witness account was furnished by the complainant and other prosecution witnesses, who had rendered full support to the case of prosecution---Incident was a broad-daylight occurrence, and prosecution witnesses had explained each and every segment of occurrence in the most scrupulous way during their statements---Said witnesses had also explained the mode and manner of the taking place of occurrence---Prosecution witnesses were ready to swear on Holy Quran that accused was the actual accused; they had sufficiently proved their presence at the place of occurrence at relevant time; and witnessing the occurrence, vis-à-vis the culpability of accused in the case---Minor contradictions, in the statement of the prosecution witnesses, was not fatal to prosecution case---Discrepancies in the medical evidence, and the ocular account, did not carry much weight, especially in the circumstances when otherwise the ocular account was proved through trustworthy and confidence inspiring evidence---Matter was reported to the Police, with sufficient promptitude; and no unconscionable or inexcusable delay had taken place in registration of the F.I.R.---Delay, if any in conducting the post mortem of the deceased, was on the part of Doctor; and delay alone could not destroy the prosecution case in presence of the confidence inspiring evidence---Parties to the case, were known to each other, and being closely related to each other, there was no chance of mistaken identity or substitution of accused with real culprit---Bald plea taken by accused that the deceased was murdered by someone else, was an afterthought, taken at belated stage, just to save his skin---Medical evidence had provided full support to the prosecution version---Forensic Science Laboratory's report was positive; and motive set up by prosecution in the F.I.R., was not proved---Prosecution, in circumstances, had proved its case against accused beyond any reasonable doubt---Case, however carried some exceptional/ mitigating circumstances in favour of accused---Sentence of death awarded to accused was not justified, but appeared to be harsh one in circumstances; accused was entitled to benefit of doubt as extenuating circumstance, in the matter of sentence---Capital punishment of death, which would not serve the interest of justice, was converted into life imprisonment---Conviction of accused to the extent of payment of compensation to the legal heirs of deceased, was maintained and upheld; and benefit of S.382-B, Cr.P.C. was extended to him.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Sharafat Ali Khan v. The State 2010 SCMR 1205 rel.

(b) Criminal trial---

----Witness---Relative and interested witness---Placing reliance on the testimony of interested witness---Fact of relationship of the witnesses with the complainant, or with the deceased, and their inimical behaviour towards accused, if any, alone would not be sufficient to smash the evidence adduced by such witnesses---Such prosecution witnesses could be believed, if intrinsic worth of their testimony inspired confidence of the court; and the same led to an inference that the witnesses were present at the scene of the crime at relevant time; and they had seen the occurrence---Rule requiring independent corroboration of testimony of interested witnesses, was a rule of prudence, which was not to be applied rigidly in each case---Implicit reliance could be placed on the testimony of an interested witness, if it otherwise inspired confidence.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 rel.

----Arts. 117 & 118---Burden of proof---When a particular plea was taken by an accused in his defence, the burden of proof, would shift on his shoulders to prove the same through reliable oral as well as documentary evidence.

(d) Criminal trial---

----Motive---Proof and consideration to determine the quantum of sentence of accused---Scope---Once motive was set forth by the prosecution, then the prosecution was duty bound to prove the same---Motive part of the prosecution story could be considered to determine the quantum of sentence of an accused in a murder case---If motive was not proved, then that fact would be taken as mitigating circumstances.

Muhammad Yaseen v. The State 2011 SCMR 905; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165 and Hasil Khan v. The State 2012 SCMR 1936 rel.

Ms. Faiqa Mirza assisted by Ms. Saiqa Javed and Ms. Sanah Ashraf for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Ch. M.S. Shad for the Complainant.

Date of hearing: 13th December, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 980 #

2014 Y L R 980

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Miss Aalia Neelum, JJ

IMRAN HAIDER and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals No.1672, 1674 and Capital Sentence Reference No.42-T of 2010, heard on 28th October, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 34, 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-e-amd, common intention, kidnapping or abduction for extorting property, valuable security, etc., causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Recovery of dead-body allegedly was effected on the pointation of accused persons, but nothing was on record to show as to whether dead body was recovered on the joint pointation of accused persons, and that the story of the Investigating Officer, was truthful---Memo of recovery of dead body was not available on record, which created cracks in the prosecution version---Dead body, not only was not identifiable with certainty, rather rest of the superstructure raised on it would fall on the ground, especially when the other aspects of the case, were of the nature, which could be architected very easily---Recovery of service card, key of motorcycle and shoes of the deceased were not incriminating material to connect accused persons with the commission of offence, as those were recovered after almost one month of the occurrence---Prosecution witness who claimed to have lastly seen the deceased in the company of accused persons, had appeared before the Investigating Officer, with a delay of forty days---Last seen evidence, in circumstances, had straightway become inconsequential---Complainant had produced before the Investigating Officer the audio-cassette pertaining to calls allegedly made by accused, demanding ransom---Investigating Officer was not informed about the calls on specific dates, nor during the course of investigation, data was collected with regard to mobile numbers belonging to accused persons in order to strengthen the prosecution case---Confessional statement recorded on oath was not admissible and not put to accused while recording his statement in terms of S.342, Cr.P.C., nor to any of his co-accused---Such confession could not have been used against co-accused---Whole prosecution case was based upon circumstantial evidence and for basing conviction on circumstantial evidence, there should be interlinking chain of credible and cogent corroborative evidence available on record, which was missing in the present case---Prosecution case was also lacking sufficient incriminating evidence---Prosecution having failed to bring home the guilt of accused persons beyond shadow of reasonable doubt, conviction and sentence recorded by the Trial Court against accused persons, were set aside; they were acquitted of the charge, and were released, in circumstances.

Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Shafi Ullah and another v. Muhammad Saeed and 3 others PLD 2005 Pesh. 46; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Raja Mushtaque alias Raja Younish v. The State 2007 PCr.LJ 276; Shabiul Hassan v. The State PLD 1991 SC 898; King Emperor v. Kasim Walad Mohamed Saffer AIR 1925 Sind 188 and Karamat Hussain v. The State 1972 SCMR 15 rel.

Mian Irfan Akram and Nasir Mehboob Tiwana for Appellants.

Tairq Javed, DDPP for the State.

Syed Amjad Ali Kazmi, Ch. Naseer Ahmed Cheema and Asif Imran Ahmed Awan for the Complainant.

Date of hearing: 28th October, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1005 #

2014 Y L R 1005

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ALI MUMTAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.657 and Murder Reference No.213 of 2010, heard on 29th October, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Story of the prosecution as mentioned in the F.I.R. did not appeal to common sense---Accused was not alleged to have used any sharp-edged weapon, but according to medical evidence, two injuries on the person of the deceased caused by sharp-edged weapon were attributed to accused---Both eye-witnesses made dishonest improvements in their statements on material particulars of the case---Witness who would make dishonest improvements on material aspects of the case was not worthy of reliance and it was not safe to rely upon the evidence of said witnesses---Pistol .30 bore, was recovered from the possession of accused after 6 days from his arrest and as per report of Forensic Science Laboratory, crime empties were deposited in the office of Forensic Science Laboratory, after 10 days of recovery of pistol---Pistol and crime weapon were kept together at the Police Station---Chances of fabrication of empties from the said pistol, could not be ruled out---Alleged recovery of pistol from possession of accused and positive report of Forensic Science Laboratory could not be relied upon---Recovery memo did not show that 'sabbal' (iron rod), allegedly recovered was stained with blood---Recovery of "sabbal" was inconsequential, in circumstances---Story narrated by prosecution witnesses about the motive, was altogether different from the one which was mentioned in the F.I.R. and it was not safe, to rely upon the evidence of prosecution witnesses qua the motive part of the occurrence---Prosecution, could not prove its case against accused, beyond shadow of doubt, if there was a single circumstance which would create doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused---Conviction and sentence recorded by the Trial Court against accused were set aside; he was acquitted of the charge by extending him the benefit of doubt.

Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Yar Khan Daha for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Muhammad Akram Qureshi for the Complainant.

Date of hearing: 29th October, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1025 #

2014 Y L R 1025

[Lahore]

Before M. Sohail Iqbal Bhatti, J

KHURRAM ALI SHAH and 2 others---Petitioners

Versus

BAHADAR KHAN---Respondent

Civil Revision No.66 of 2014, decided on 22nd January, 2014.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 1---Summoning of witnesses through court whose names had not been included in the list of witnesses---Scope---Good cause---Bar contained in O. XVI, R. 1, C.P.C.---Scope---Plaintiffs filed application for summoning of witnesses which was dismissed by the Trial Court---Validity---List of witnesses was to be submitted within seven days after settlement of issues---Court was bound to record statement of witness who was present before it on the date fixed for evidence---Party to the suit could produce witness of its own notwithstanding the name of same was not mentioned in the list of witnesses---Sub-Rule (2) of R. 1 of O. XVI, C.P.C. had placed a fetter on summoning of witnesses through process of court if the name of that witness was not mentioned in the list of witnesses submitted by the party---Name of witness was not mentioned in the list of witnesses submitted by the plaintiffs after framing of issues---Bar contained in O. XVI, R. 1, C.P.C. would be an absolute bar and would be operative where a party had sought production of witnesses through the process of court---Witness whose name was not included in the list of witnesses could not be called except with the permission of court and after showing good cause for the omission of including the said witness in the list of witnesses---Party could get a private witness summoned through the process of court if it had shown its inability to the court from producing such witness---Court was bound to procure the attendance of such private witness by coercive measures in the interest of justice---No illegality had been committed by the Trial Court while passing the impugned order---Revision was dismissed in limine.

2011 YLR 2393; 1988 CLC 2218; 2012 MLD 922 and 2005 MLD 688 distinguished.

Syed Mumtaz Hussain Sherazi for Petitioners.

YLR 2014 LAHORE HIGH COURT LAHORE 1034 #

2014 Y L R 1034

[Lahore]

Before Shezada Mazhar, J

ATTA ULLAH and 2 others---Petitioners

Versus

AKBAR---Respondent

Civil Revision No.1728 of 2010, heard on 17th September, 2013.

Limitation Act (IX of 1908)---

----Art. 181---Civil Procedure Code (V of 1908), S. 48---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Execution petition---Limitation---Execution petition was dismissed being time-barred concurrently---Validity---Limitation for filing execution petition was not provided in Law of limitation and in such like cases Art. 181, Limitation Act, 1908 would become applicable---Under Art. 181 Limitation Act, 1908 read with S. 48, C.P.C. limitation for filing first application for execution of decree would be three years and any subsequent application would be governed by the limitation provided in S. 48, C.P.C.---Possession of the property was with the applicants and they had already paid the consideration of sale---Applicants were not supposed to file execution petition in such circumstances---Revision was accepted and judgments/orders of both the courts below were set aside and case was remanded to the Executing Court for decision in accordance with law.

Mubarik Ali Farooqi and another v. Circle Officer, Police Station Anti-Corruption, Faisalabad and 3 others PLD 2010 Lah. 42; Toor v. Abdul Qadir 2001 CLC 108; Nazir Ahmad and others v. Muhammad Saleem and others 2004 CLC 1482; Habib Bank Limited v. Messrs Five Star Travels and 2 others 2006 CLD 1396; National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others 1996 SCMR 759; Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 and House Building Finance Corporation of Pakistan v. Rana Muhammad Iqbal through L.Rs. 2007 SCMR 1929 distinguished.

Mst. Hakam Bibi through L.Rs. Khushi Muhammad (decd.) through L.Rs.) C.P.L.A. No. 3262-L of 2003; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Muhammad Wazir v. Ch. Jahangiri Mal and others PLD 1949 Lah. 1; Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051 and Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 rel.

Sh. Naveed Shahryar for Petitioners.

Mian Muhammad Ismail Thaheem for Respondent.

Date of hearing: 17th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1046 #

2014 Y L R 1046

[Lahore]

Before Abid Aziz Sheikh, J

MUSHTAQ AHMAD---Petitioner

Versus

MUHAMMAD AFZAL and others---Respondents

Civil Revision No.2566 of 2005, decided on 13th September, 2013.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Arts. 71, 164 & 129(g)---Talbs, performance of---Requirements---"Fact of sale" and "through any source"---Scope---Suit for pre-emption---Contention of defendant was that all the pre-emptors did not appear in the witness box and information with regard to sale of property came through telephone but no talb was performed at that time---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Right of pre-emption was a feeble right and formalities required for its enforcement must be observed---Talbs were necessary ingredients to establish right of pre-emption and must be proved---One of the plaintiffs appeared in the witness box whereas two pre-emptors did not opt to appear in the court---Where a fact was required to be proved through oral evidence, such evidence must be direct and from primary source---Proof of talbs in the present case was "fact" which could be proved by the person who made the same---Non-appearance of pre-emptors in the witness box to discharge onus of Talb-e-Muwathibat would amount to withhold the best evidence available and the inference should be drawn against them---Suit of pre-emption to the extent of such pre-emptors was liable to be dismissed on that score alone---Material contradictions between the statements of witnesses and pleadings with regard to performance of talbs were on record---Statements of witnesses of plaintiff were not truthful to place reliance on their testimony with regard to requirements of talbs---Pre-emptors were informed with regard to sale of suit property telephonically but no Talb-e-Muwathibat was performed by them at that time---Pre-emptor should perform Talb-e-Muwathibat when the "fact of sale" came in his knowledge "through any source"---Modern devices or techniques were admissible in evidence---Information with regard to sale of property through any source must be received in presence of at least two truthful witnesses to constitute Talb-e-Muwathibat---Date of notice of Talb-e-Ishhad was not mentioned in the plaint which was fatal to the suit of plaintiffs and same was not maintainable---Notice of Talb-e-Ishhad was not served on the defendant---Mere sending of notice of Talb-e-Ishhad was not sufficient but it must be proved that same was served upon the defendant or he refused to accept the service of notice which was sent at his correct address---Pre-emptors had failed to perform talbs in accordance with law---Trial Court had correctly appreciated the evidence and order of Appellate Court being result of misreading and non-reading of evidence was not sustainable---Revision was accepted and judgment and decree of Appellate Court was set aside and that of Trial Court were restored and suit was dismissed.

Syed Ghulam Abbas Shirazi v. Ghulam Hussain Sindhu 2011 MLD 1330; Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others 2007 SCMR 870; Ghafoor Khan v. Israr Ahmad 2011 SCMR 1545; Mian Pir Muhammad and others v. Faqir Muhammad PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Bashir Ahmad v. Ghulam Ahmad 2011 SCMR 762; Muhammad Rafique v. Ghulam Murtaza 1997 MLD 2376; Razia Begum v. Abdul Aziz 2006 CLC 772 and Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105 rel.

(b) Words and Phrases---

---"Fact"---Meaning.

Black's Law Dictionary and Collins Dictionary rel.

----S. 2 (d)---"Fact of sale"---Meaning---"Fact of sale" was knowledge with regard to transfer of ownership of immovable property in exchange for valuable consideration.

(d) Words and phrases---

---"Source"---Meaning.

Black's Law Dictionary rel.

(e) Punjab Pre-emption Act (IX of 1991)---

----S. 13---"Through any source" occurring in S.13, Punjab Pre-emption Act, 1991---Scope---Word "through any source" would include telephonic information.

Salman Mansoor for Petitioner.

Adnan Tariq for Respondents.

Date of hearing: 13th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1060 #

2014 Y L R 1060

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD ARSHAD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.1034 and 840 and Murder Reference No.187 of 2008, heard on 4th April, 2013.

(a) Criminal trial---

----Appreciation of evidence---Prosecution was required to prove its case against accused beyond any shadow of doubt and the defence version was to be taken into consideration after evaluating the prose-cution evidence to find out, whether same inspired confidence or not.

Ashiq Hussain v. The State PLD 1994 SC 879 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302(b) & 100---Qatl-e-amd---Right of private defence---Appreciation of evidence---Story of prosecution mentioned in F.I.R., was highly improbable and it did not appeal to common sense that when an altercation had taken place between the deceased and co-accused, few days prior to the occurrence, then why the deceased accompanied accused at night time on summoning of said co-accused---Prosecution eye-witnesses, could not explain as to how deceased entered into the room of the house of accused at the odd hours of night---Case of prosecution was that accused inflicted a hatchet blow near the right eye of deceased, but no hatchet was recovered from accused, or from the possession of any co-accused during the investigation---Conflict existed between the medical evidence and the prosecution case as set forth in the F.I.R.---Prosecution witnesses, while making their statements before the Trial Court, did not attribute any specific injury to accused; and they had simply stated that accused had caused hatchet blow on the deceased---Allegedly, blood-stained 'Kassi' and 'bat' were recovered from accused after 29 days of the occurrence, and same were deposited in the office of Chemical Examiner, after more than one month from the occurrence---Case of prosecution was not that accused had used three different weapons, 'Kassi', 'bat' and 'gun', but there were positive reports of Forensic Science Laboratory, Chemical Examiner and that of Serologist, in respect of said alleged weapons of offence which had spoken volumes against the truthfulness of prosecution case---Said positive reports, were of no avail to the prosecution---Prosecution could not prove any motive against accused---Case against accused was replete with number of doubts---Accused while exercising his right of self-defence, fired with his gun which hit the deceased who was present near the bed of his niece---Case of accused, in circumstances, fell within the four corners of general exceptions as provided under S.100, P.P.C.---Prosecution having failed to prove the case against accused, conviction and sentence of accused passed by the Trial Court was set aside and , he was acquitted of the charge and was released, in circumstances.

Basharat and another v. The State 1995 SCMR 1735; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 and Muhammad Akram v. The State 2009 SCMR 230 ref.

----Medical evidence---Medical evidence, could only indicate that the deceased had lost his life due to certain injuries, but it would not lead to the culprit.

Mursal Kazmi alias Qamar Shah v. The State 2009 SCMR 1410 ref.

(d) Criminal trial---

----Benefit of doubt---If there was a single circumstance which created doubt, regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

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

----S. 100---Right of private defence of the body---Extent of---Right of private defence of the body, would extend to the voluntary causing the death of assailant, if assailant would launch an assault, which could reasonably cause the apprehension that grievous hurt would be the consequence of such assault.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd---Appeal against acquittal---Appreciation of evidence---One of acquitted co-accused was attributed the role of causing fire arm injury on the person of the deceased, whereas other acquitted co-accused, was assigned the role of inflicting hatchet blows on the person of the deceased, but neither any fire-arm was recovered from the possession of co-accused nor any hatchet was recovered from the other co-accused during the investigation of the case---Prosecution evidence had already been disbelieved by the Trial Court in the case of main accused---High Court while deciding the appeal filed by main accused held that the prosecution story was replete with number of doubts---Question of awarding any conviction and sentence to said acquitted co-accused, would not arise---Appeal against acquittal, was dismissed, in circumstances.

Rana Ijaz Ahmad Khan and Munir Ahmad Khan for Appellant.

Arshad Mehmood, D.P.G. for the State.

Muhammad Ameer Ali for the Complainant.

Date of hearing: 4th April, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1082 #

2014 Y L R 1082

[Lahore]

Before Amin-ud-Din Khan, J

SIRBULAND KHAN and 16 others---Petitioners

Versus

RUQAIA KHANUM and 2 others---Respondents

Civil Revision No.38 of 2007, heard on 16th May, 2013.

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

---S.42---Civil Procedure Code (V of 1908), O.VII, Rr.11 & 13---Qanun-e-Shahadat (10 of 1984), Arts. 123 & 124---Suit for declaration---Rejection of plaint---Fresh suit, filing of---Res judicata, principle of---Scope---Contention of the defendants was that plaint of the first suit was rejected and present suit was not competent---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Trial Court while rejecting the plaint had given findings of facts and same were hurdle in proceeding of the present suit and were hit by principle of res judicata---Plaintiffs were bound to challenge such findings but they had opted not to do the same and filed second suit which was also dismissed as withdrawn and present suit had been filed---Factual findings were binding upon the plaintiffs unless those were set aside---Proceedings initiated by the plaintiffs were based upon mala fide---Plaintiffs were to prove the case in accordance with Arts. 123 and 124 of the Qanun-e-Shahadat, 1984---Photocopy of the order produced could be considered---No need existed to summon the official record---Defendants as well as the court were satisfied and notice could be taken of photocopy the same was an admitted one and was on the file--- Plaintiffs having failed to prove that the attorney of the plaintiffs had not been heard for a period of 10 years' they had no right to challenge the transaction of sale---Attorney was alive and nothing had been brought on the record against such findings---Findings of the Appellate Court were not sustainable---Revision was accepted.

Begum Masooda Abdul Haque v. Messrs Shan-e-Mustafa Production and another 1985 CLC 671; Hayat (represented by his heir) v. Mst. Niamat Bibi and 2 others PLD 1978 Lah. 245; Balwant Rao and others v. Kerba and another AIR 1953 Hyd. 185; Nathe Khan v. Mst. Rahmat Bibi and others PLD 1961 (W.P.) Baghdad-ul-Jadid 96 and Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137 rel.

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

----O.VII, Rr.11, 13 & S.11---Rejection of plaint---Scope---Fresh suit, filing of---Scope---After rejection of plaint of the first suit, second suit could be filed on the basis of same cause of action---Factual findings while rejecting the plaint were hit by principle of res judicata.

----Inheritance---Estate would devolve upon the legal heirs only in case of death of the owner of the property.

Muhammad Law by Mulla ref.

Jahangir A. Jhoja for Petitioners.

Samar Hussain for Respondents.

Date of hearing: 16th May, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1093 #

2014 Y L R 1093

[Lahore]

Before Shahid Hameed Dar, J

MANASAB ALI alias KALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.797-B of 2013, decided on 29th January, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 34 & 109---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, abetment---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Case of mere abetment---Date and time of abetment not disclosed---Probability of false implication due to malice---Inordinate delay in implicating accused for the offence---Effect---Allegation against accused was that few days prior to the occurrence he induced/abetted the co-accused persons to kill the deceased, which abetment was heard by two witnesses---Allegation against accused was of mere abetment, which surfaced for the first time when complainant rendered a written supplementary statement before the investigating officer---During investigation witnesses of abetment claimed to have witnessed the occurrence but they did not utter a single word against accused about the allegation of abetment---Said witnesses and complainant recorded their supplementary statements with an inordinate delay, wherein they nominated the accused as an abettor of the offence-Date and time of the alleged abetment/ conspiracy by the accused had not been disclosed by any of the witnesses---Question as to how many days before the occurrence, accused and co-accused persons plotted to murder the deceased, remained shrouded in mystery---Probability could not be ruled out that accused had been falsely implicated in the present case due to malice and ulterior motives of the complainant---Case was one of further inquiry---Ad-interim pre-arrest bail already granted to accused was confirmed in circumstances.

Arshad Ali Chohan for Petitioner.

Mrs. Maqadass Tahira, Addl: Prosecutor-General Punjab for the State.

Ghulam Raza S.I. with record.

YLR 2014 LAHORE HIGH COURT LAHORE 1102 #

2014 Y L R 1102

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD SHEHZAD alias SAHIBA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.310-J and 311-J of 2007, and Murder Reference No.14 of 2008, heard on 28th May, 2013.

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

----Ss. 302(b), 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were not named in the F.I.R.---Sufficient description of the unknown accused persons who committed the offence were neither mentioned in the F.I.R. nor in the supplementary statement of the complainant---No role whatsoever during the occurrence was attributed to accused persons by the eye-witnesses which was serious defect in the prosecution case---Eye-witnesses were not residents of the village where occurrence had taken place, but were residents of different village; both were chance witnesses---Star witness of the prosecution, who was injured during the occurrence, did not identify accused persons during identification parades--- Identification parade of accused persons was held 12 days after occurrence---Identification of accused persons through identification parade by witnesses, was not worthy of reliance, in circumstances---Intrinsic value of the evidence of an injured eye-witness was to be seen, and mere injuries on the person of a witness, did not mean that he was telling the whole truth---Witnesses who identified accused persons had brought accused persons to the place of occurrence on a motorcycle---Said witnesses did not nominate accused persons in their statements recorded by the Police and did not take part in the proceedings of identification parade---Accused persons being completely strangers to said witnesses, their identification in the court by said witnesses, was of no avail to prosecution---Evidence of Foot Tracker was a weak type of evidence---Story regarding snatching of cash amount and mobile phones by accused persons was introduced by the complainant through his supplementary statement---No denomination or any specific identification mark on the currency notes, or on the mobile phones which were allegedly looted during the occurrence, were mentioned in the supplementary statement---Alleged recoveries of mobile phone and cash amount from the possession of accused persons, was of no avail to the prosecution, in circumstances---Empties were sent to the office of Forensic Science Laboratory after about 15 days from the arrest of accused persons---Possibility could not be ruled out that false empties were prepared from pistols and were sent to the Office of Forensic Science Laboratory for their comparison with the said pistols; and Police had fictitiously shown the recoveries of pistols to strengthen the prosecution case---Prosecution evidence qua recoveries of pistol and positive report of Forensic Science Laboratory was not safe to rely, in circumstances and accused could not be convicted merely on the basis of evidence of alleged recoveries---Prosecution having failed to prove its case against accused persons beyond shadow of doubt, convictions and sentences recorded by the Trial Court against accused persons, were set aside---Accused were acquitted of the charge by extending them the benefit of doubt and were released, in circumstances.

State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Muhammad Yaqub v. The State 1971 SCMR 756; Nek Muhammad and another v. The State PLD 1995 SC 516; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

(b) Criminal trial---

----Medical evidence---Medical evidence was a type of supporting evidence, which could confirm the ocular account with regard to the receipt of injuries, nature of injuries, kind of weapons used in the occurrence, but would not identify the assailants.

----Benefit of doubt---If there was a single circumstance which created doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

Tariq Pervez v. The State 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Haider Rasool Mirza for Appellants.

Mirza Abid Majeed, D.P.G. for the State.

Muhammad Afzal Shad for the Complainant.

Date of hearing: 28th May, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1120 #

2014 Y L R 1120

[Lahore]

Before Miss Aalia Neelum, J

RIAZ HUSSAIN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos.12535-B and 11463-B of 2013, decided on 1st October, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.337-A(ii), 337-L(2) & 337-F(i)---Causing Shajjah-i-Mudihah, hurt and damiyah---Pre-arrest bail, confirmation of---Further inquiry---All the accused persons, allegedly had caused injuries upon prosecution witnesses---Whether the occurrence had taken place in the same manner as alleged in the F.I.R. or not, was a question, which would be seen at the time of trial after appraisal of the evidence by the Trial Court---Question of vicarious liability would also be determined at the time of trial---Injuries attributed to both sides had been suppressed---Section 337-A(ii), P.P.C., did not fall within prohibitory clause of S.497, Cr.P.C.---Sending accused persons of both sides behind the bars, would be a futile exercise; as it would not advance the prosecution case any more---Accused persons joined the investigation; and Investigating Officer had opined that both the parties had participated in the incident---Case, in circumstances, was of further inquiry covered by S.497(2), Cr.P.C.---Interim pre-arrest bail already granted to accused persons, was confirmed, in circumstances.

Faisal Goraya for Petitioners and Petitioners in person.

Ch. Muhammad Jahangir, Deputy Prosecutor General and Ijaz Afzal, A.S.-I. with record for the State.

Muhammad Shoaib Khokhar for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 1133 #

2014 Y L R 1133

[Lahore]

Before Sh. Najam ul Hasan, J

GHULAM QADIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.11625-B of 2013, decided on 22nd October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Qatl-e-amd, abetment, rioting---Bail, grant of---Further inquiry---Out of eleven persons implicated by accused in the case, seven of them were declared innocent---Three others who were assigned specific role of firing at the deceased, were later on found innocent by the Investigating Agency---Another accused was assigned the role of causing fatal injury to the deceased, and during investigation was found innocent, had been released---Accused was assigned the role of causing single firearm injury on the left foot of the deceased which was non-vital part of the body---Crime empties were recovered from the place of occurrence, but no comparison report of firearm expert was on record, despite passage of more than a year---Case of accused was distinguishable from the other accused; and matter regarding his involvement and the extent to which he was liable, could be seen only after recording of evidence---Case of accused being that of further inquiry, his further detention, would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Shah Nawaz and others v. The State and another 2008 SCMR 1436 rel.

Abdul Khaliq Safrani for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor-General with Sabir Hussain, A.S.-I. for Respondents.

Tahir Iqbal Tarar for the Complainant.

2014 Y L R 1171

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD ASHRAF CHOUDHRY---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.3169-B of 2014, decided on 14th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---F.I.R. was lodged after inordinate delay of five months, without assigning any sufficient reason for such delay---Complainant, prior to registration of present case had also got recorded a case under S.489-F, P.P.C. against accused with the same allegation, but the complainant had concealed that fact---Plea of accused that cheques were given to complainant as guarantee, could not be discarded outright---Dishonest intention in issuing the cheque was sine qua non to attract the offence under S.489-F, P.P.C., which was yet to be established during course of evidence---Alleged guilt of accused, in circumstances was necessarily a matter of further probe---No recovery was pending against accused---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C.---Investigation of the case was complete and accused was behind the bars since 22-1-2014, and accused was no more required by the Police for further investigation---No progress in the trial, despite submission of challan---Accused's incarceration, was not likely to serve any cause of justice---Bail could not be refused, in such like cases, as a matter of punishment---Prosecution had not produced any material with regard to accused's conviction in any of other criminal cases allegedly registered against him---Mere pendency of any other criminal case, was no hindrance for grant of post-arrest bail to accused, who otherwise was entitled to the relief on merits---Accused was admitted to bail, in circumstances.

Ch. Saif Ullah Warriach for Petitioner.

Ch. Ahmed Raza, A.P.-G. for the State with Muhammad Aslam A.S.-I.

Sardar Muhammad Khalil for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 1174 #

2014 Y L R 1174

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD SARWAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 4 others---Respondents

Writ Petition No.22688 of 2013, decided on 5th November, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of F.I.R.---Ex-Officio Justice of Peace, directed S.H.O. concerned to register F.I.R. on the complaint of the complainant---Validity---When a cognizable offence was reported by a person the S.H.O. of the concerned Police Station was bound to register F.I.R. under the mandatory provisions of S.154, Cr.P.C.---Police was under a statutory duty under S.154, Cr.P.C. to register a case, where a cognizable offence appeared to have been committed; and was statutorily bound to investigate a cognizable offence---No illegality or defect was found by High Court in the exercise of jurisdiction by Ex-Officio Justice of Peace while passing the impugned order---Constitutional petition was dismissed.

Jamal Khan's case PLD 2009 SC 102 and Muhammad Bashir's case PLD 2007 SC 539 ref.

Muhammad Tanveer Chaudhry for Petitioner.

Ch. Muhammad Shabbir Gujjar, A.A.-G. for the State.

Aamir Zubair Rai assisted by Ch. Muhammad Imran Khan for Respondent No.4.

YLR 2014 LAHORE HIGH COURT LAHORE 1188 #

2014 Y L R 1188

[Lahore]

Before Shahid Waheed, J

KHADIM HUSSAIN---Petitioner

Versus

MUSHTAQ HUSSAIN through Legal Representatives and others---Respondents

Writ Petition No.14022 of 2013, heard on 24th January, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for specific performance of contract---Application for setting aside ex parte decree---Fraud and misrepresentation---Contention of petitioner-defendant was that wrong address was mentioned in the plaint and ex parte decree was obtained through fraud and misrepresentation---Application for setting aside ex parte decree was accepted concurrently---Validity---Respondent-plaintiff could not lead any confidence inspiring evidence in support of his claim---Address of petitioner-defendant in the plaint was not correct and ex parte decree was obtained through fraud and misrepresentation---No misreading and non-reading of evidence had been pointed by the respondent-plaintiff--- Petitioner-defendant was justified in saying that he was not aware of the decree as same was obtained by mentioning his incorrect address---Present application was filed within time---Constitutional petition was dismissed in circumstances.

Abdul Qadoos v. Additional District Judge, Rawalpindi and others 2005 SCMR 1428 and Mst. Rasool Bibi through Legal Heirs v. Additional District Judge, Sialkot and another PLD 2006 Lah. 181 rel.

Naveed Shehryar Sheikh for Petitioner.

Mian Tariq Hussain for Respondents.

Date of hearing: 24th January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1199 #

2014 Y L R 1199

[Lahore]

Before Amin-ud-Din Khan, J

AUTOTECHNIK (PVT.) LTD.---Appellant

Versus

Syed ABUZAR BOKHARI and others---Respondents

F.A.O. No.285 of 2013, heard on 3rd February, 2014.

Civil Procedure Code (V of 1908)---

----O. XL, R.1---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, permanent injunction and rendition of accounts---Appointment of Receiver---Letter of Intent (LOI), significance of---Plaintiff-company had filed suit contending inter alia, that the defendants, who were founders and shareholders of the company, had incorporated another company with the illegal object of diversion of business of plaintiff-company---Plaintiff further contended that it had letter of intent from a foreign car manufacturer to sell its vehicles in Pakistan, and the defendants had illegally started doing the business with the foreign car manufacturer---Plaintiff's application for appointment of Receiver for defendants' company was dismissed by Trial Court---Validity---Question for determination was whether a company could pray for appointment of Receiver for another company, and the plaintiff, could not satisfy the court on said question---Letter of intent in favour of plaintiff-company had expired, and even otherwise a letter of intent was not a concluded contract, and was just an offer---Conditions for appointment of Receiver, therefore, did not exist, and there was no defect in the impugned order---Appeal was dismissed, in circumstances.

Gower's Principles of Modern Company Law, Sixth Edition Printed by Sweet and Maxwell, page 618 ref.

Salman Mansoor for Appellant.

Ghulam Ali Raza for Respondents Nos. 1 to 3.

Asad Javed and Hassan Ali Raza for Respondents Nos. 4 to 6.

Date of hearing: 3rd February, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1215 #

2014 Y L R 1215

[Lahore]

Before Mahmood Ahmad Bhatti, J

Sheikh ATTIQ-UR-REHMAN---Petitioner

Versus

Syed ALI MURTAZA and another---Respondents

Criminal Original No.811-W of 2013 in Writ Petition No.14062 of 2013, , decided on 26th December, 2013.

Contempt of Court Ordinance (IV of 2003)---

----Ss.3 & 4---Constitution of Pakistan, Art.204---Contempt of Court---Scope---When a lawful order was passed by High Court, all authorities, how highsoever, were bound to respect it and to implement it in letter and spirit---Orders passed by High Court could not be allowed to be trifled with and put on the back burner on one pretext or another---High Court declined to initiate contempt proceedings against respondents as petitioner did not want to proceed against them---High Court directed the respondents to give effect to order passed by it in letter and spirit, irrespective of its fall out or consequences--Petition was disposed of accordingly.

Muhammad Ghias-ul-Haq Sheikh for Petitioner.

Mirza Muhammad Saleem Baig, A.A.-G., Muhammad Javed Saeed Prizada, A.A.-G., Zahid Saleem Gondal, DCO and Ahmad Bhatti, Assistant Commissioner for Respondents.

Haji Muhammad Aslam Malik, Advocate/Legal Advisor for City District Government.

YLR 2014 LAHORE HIGH COURT LAHORE 1222 #

2014 Y L R 1222

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

MUHAMMAD NAWAZ KHAN through Legal heirs and others---Applicants

Versus

PROVINCE OF PUNJAB through Collector and others---Respondents

Review Application No.4-C of 1987 in Civil Revision No.907 of 1986, heard on 7th October, 2013.

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

----S.114 & O.XLVII, R.1---Specific Relief Act (I of 1877), S.42---Punjab Tenancy Act (VI of 1887), S.77---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.6 & 36---Review---Suit for declaration---Return of plaint for presentation before the revenue court---Scope---Jurisdiction of revenue court---Plaint was returned by the Trial Court for presentation of same before the revenue court---Revision filed against the said order was also dismissed by the High Court---Validity---Land in question was situated in colony area and S. 77 of Punjab Tenancy Act, 1887 was not applicable---Whole prayer of suit was with regard to the rights determinable by the civil court---Actions of Colony Department had been challenged in the present case---Civil court was a court of plenary jurisdiction and was competent to scrutinize the acts of Authority or department if same were without jurisdiction but could not scrutinize the said acts if same were in accordance with the powers conferred upon the department---Procedure was laid down for administration of justice and same could not be used as a hurdle in the way of justice---Plaint had been returned for presentation of same before the revenue court without proceeding on merits---Order passed by the Trial Court was not sustainable under the law---Judgment passed by the Single Judge of High Court was reviewed and judgments and decrees passed by the courts below were set aside and case was remanded to the Trial Court for decision in accordance with law---Review was accepted in circumstances.

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

----O. VII, Rr. 10 & 11---Return or rejection of plaint---Scope---Prayer of a plaint and facts pleaded were to be considered while applying O. VII, Rr. 10 and 11, C.P.C.---Plaint could not be rejected partially or partially returned---Plaint in which there was a small point determinable by the civil court and major portion of cause of action or prayer was not within the jurisdiction of civil court, plaint could not be partially returned.

Sheikh Naveed Shehryar for Petitioner.

Malik Sir Buland, for the Petitioners (in R.A.No.5-C-87).

Muhammad Yousaf Farooq, for Petitioners (in Criminal Original Nos.21-C and 29-C of 2007 43-C and 45-C of 2003).

Mr. Abdul Hameed, for Petitioners.

Raja Muhammad Arif, A.A.-G. for Respondents.

Date of hearing: 7th October, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1233 #

2014 Y L R 1233

[Lahore]

Before Shahid Hameed Dar, J

RAJAB ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6278-B of 2013, decided on 17th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd, common intention--Bail, grant of---Further inquiry---Murder committed in compelling circumstances---Generalized and collective allegations---Effect---Deceased boy and girl had developed an illicit liaison between them---Accused and co-accused persons allegedly caught the two deceased in the room of a house and inflicted multiple injuries on their bodies, which resulted in their death---Allegation against accused was collective and generalized---Mode of occurrence indicated that it was not a premeditated crime---Post-mortem examination of both the deceased showed that they received a number of sharp-edged weapon injuries, which spoke volumes of the fact that they were done to death in a frenzy by the accused and co-accused persons, who after seeing both the deceased together in a room turned furious and emotionally wild---Circumstances showed that accused and co-accused committed the offence under compelling circumstances---Present case did not appear to be case wherein the offence had been committed in the name of "Ghairat" or family honour, which terms had to be differentiated from grave and sudden provocation---Investigating officer absolved accused from the liability of causing any injury to the deceased persons by opining that accused was guilty only to the extent of summoning co-accused at the scene of occurrence, besides exhorting a lalkara after the co-accused had already murdered the deceased persons---Nothing was recovered at the instance of accused during investigation---Case was one of further inquiry---Accused was granted bail in circumstances.

Rai Muhammad Hussain Kharl for Petitioner.

Mrs. Muqadass Tahira, Addl: Prosecutor General Punjab for the State.

Muhammad Inayatullah Cheema for the Complainant.

Muhammad Iqbal S.I./I.O. with record.

YLR 2014 LAHORE HIGH COURT LAHORE 1242 #

2014 Y L R 1242

[Lahore]

Before Abdul Sami Khan, J

TAHIR ABBAS---Petitioner

Versus

The STATE and others---Respondent

Criminal Miscellaneous No.5405-B of 2013, decided on 24th May, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Qatl-e-amd, common intention, abetment---Bail, grant of---Further inquiry---Although accused was named in the F.I.R. but no injury was attributed to him---Only allegation against accused was that he caught hold of the deceased at the time when co-accused made the fatal fire shots---Such allegation against accused did not appeal to a prudent mind as he would also be putting his own life at stake by catching hold of the deceased at a time when the co-accused was inflicting fire-shot injuries---Such type of allegation was very easy to level but difficult to prove-Nothing was recovered from accused during his physical remand---Investigation of case revealed that accused was merely present at the place of occurrence---Vicarious liability of accused was to be determined by Trial Court after recording of evidence---Investigation of case was complete and accused was no more required for further investigation---Case against accused was one of further inquiry---Accused was granted bail in circumstances.

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

----S. 497---Bail, refusal of---Ground---Commencement of trial---Mere commencement of trial was no ground to refuse bail, if otherwise accused became entitled to bail.

2013 SCMR 49 rel.

Sardar Muhammad Ramzan for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State along with Zulfiqar A.S.-I.

Mian Muhammad Sikandar Hayat for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 1266 #

2014 Y L R 1266

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Miss Aalia Neelum, JJ

TALIB HUSSAIN---Petitioner

Versus

AZMAT ALI and others---Respondents

Criminal Appeal No.1471 of 2001, heard on 6th June, 2013.

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

----Ss.302, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, rioting, common object---Appeal against acquittal---Appreciation of evidence---Medical evidence had contradicted the ocular account, which had created serious dents in the prosecution version going to its roots---During the course of investigation, it came into limelight, that none of respondents/ accused persons had committed the offence but two other persons were real culprits---Statement of the complainant, could not be taken as a gospel truth without independent corroboration---One guest of the complainant, who had reached the house of complainant in order to attend marriage ceremony, was quite independent witness, but was not produced during the course of trial in support of the prosecution version, but was given up for the reasons best known to the prosecution---Scaled site plan, was at variance with the stance, advanced by the complainant in the crime report with regard to distance between accused and the deceased---Accused persons remained on physical remand for full period, but nothing was recovered from their possession---Not only accused persons, were found innocent during the course of successive investigations, but Investigating Officer had also prepared discharge report in that regard---Trial Court had not committed any misreading or non-reading of evidence available on record---Conclusion drawn by the Trial Court was just and proper, which needed no interference by High Court---Counsel for appellant/complainant, had failed to point out any evidence on record, which was required to convict a person on the charge of capital sentence---Whole prosecution case was full of conjectures, surmises and suspicions, which could not be made basis for conviction in a case of murder; and what to talk of appeal against acquittal, when the presumption of innocence, would become double in such like cases---Acquittal judgment of the Trial Court, was upheld, in circumstances.

Muhammad Tufail v. The State PLD 2002 SC 786; Muhammad Safdar v. The State PLD 2002 SC 781 and Ghulam Mustafa and another v. Mamraz Khan and others PLD 1985 SC 11 rel.

(b) Criminal trial---

----Appreciation of evidence---If there were two possible interpretations of evidence, the one favouring accused, would be interpreted.

Muhammad Younas v. The State 1992 SCMR 1592 and Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31 rel.

Nusrat Javed Bajwa Chaudhry for Appellant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Ch. Ghulam Murtaza Bhatti for Respondents.

Date of hearing: 6th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1278 #

2014 Y L R 1278

[Lahore]

Before Arshad Mehmood Tabassum, J

ABDUL RASHEED---Petitioner

Versus

SECRETARY, MINISTRY OF MINORITIES AFFAIRS DIVISION, GOVERNMENT OF PAKISTAN and 4 others---Respondents

Writ Petition No.259 of 2008, heard on 15th January, 2014.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8, 10 & 17---Constitution of Pakistan, Art. 199--- Constitutional petition---Evacuee Trust property---Declaration---Shop in question was originally transferred to respondent as evacuee property and Permanent Transfer Deed was issued to him by Settlement Department on 24-4-1972---Petitioner purchased the shop from respondent on 14-12-1978, through registered sale-deed, without having knowledge that the property was a Trust property---Department remained sleeping over the matter for 20 years when in year 1991, reference under Ss. 8 and 10(2) of Evacuee Trust Properties (Management and Disposal) Act, 1975, was instituted---Validity---Inaction on Evacuee Trust Properties Board for such a long time disentitled it for any relief, as it was nowhere mentioned in Permanent Transfer Deed that shop in question was Trust property---Both forums below misconstrued material available on record and had illegally declared shop in question as a trust property without there being any basis for so holding---High Court declared order passed by Evacuee Trust Properties Board to have been passed on wrong presumption of law and facts of the case hence of no legal effect and the same was quashed---Petition was allowed in circumstances.

Govt. of Pakistan through Secretary Religious and Minority Affairs Islamabad and another v. Nizamuddin through legal heirs and another 1994 SCMR 1908; Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others 1970 SCMR 503; Naik Muhammad v. Bagh Ali PLD 1987 Lah. 208 and Zahida Khatoon's case 1999 YLR 2564 ref.

Hafiz Saeed Ahmad Sheikh for Petitioner.

Sh. Iftikhar Ahmad for Respondents.

Date of hearing: 15th January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1283 #

2014 Y L R 1283

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

GHULAM YASIN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.185-J, 534, P.S.L.A. No.71, Criminal Revision No.407 and Murder Reference No.177 of 2009, heard on 10th July, 2013.

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

----Ss. 302(b), 324, 337-A(i),(ii), 337-F(i) & 337-L(2)---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah-i-Khafifah, Shajjah-i-Mudihah, causing damiyah, causing hurt---Appreciation of evidence---Case of two versions---Inordinate delay of fourteen hours in reporting the crime, had created serious dents in the prosecution story and had shattered the presence of the complainant at the place of occurrence---Doctor had stated that all injuries were caused by blunt weapons--- Both prosecution witnesses of ocular account, had made dishonest improvements before the Trial Court, in order to bring the ocular account in line with medical evidence---Prosecution witness, though was injured witness, but the injuries on his person would not mean that he uttered the whole truth---Said dishonest improvements made by the complainant and injured eye-witness, had created doubt qua the veracity of witnesses of the ocular account---When a witness improved his statement to strengthen the prosecution case; and the moment it was concluded that the improvement was made deliberately and with mala fide intention, the testimonies of such witness would not remain reliable---Medical evidence damaged the prosecution case, instead of advancing it---Recovery of hatchet at the instance of accused, was inconsequential, as no report of Chemical Examiner or Serologist qua the same was available on the file; and no evidence had been brought on record to the effect that the hatchet was ever deposited with the Moharrar of Police Station for its safe custody in the Malkhana---No specific motive was alleged by the complainant, in the F.I.R., private complaint or before the Trial Court---Prosecution had failed to connect accused persons with the commission of crime---Case being of two versions, court was to analyze the version put forth by prosecution first---Since, the prosecution evidence was doubtful in nature, there was no need to discuss defence plea taken by accused, as same was exculpatory in nature---Conviction and sentence awarded to accused persons vide impugned judgment passed by the Trial Court, were set aside, accused were acquitted of the charge framed against them and were released, in circumstances.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Amin Ali and another v. The State 2011 SCMR 323 ref.

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

----S. 173--- Opinion of Police---Evidentiary value---Opinion of Police qua innocence or guilt of accused, was inadmissible in evidence.

Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660 rel.

----Motive---Motive was a double edged weapon, and in the peculiar circumstances, motive alleged by prosecution could be a reason for false involvement of accused due to previous enmity between the parties.

(d) Criminal Trial---

----Case of two versions---Court was to analyze the version put forth by the prosecution first.

Ashiq Hussain v. State PLD 1994 SC 879 and Amin Ali v. The State 2011 SCMR 323 rel.

Syed Ejaz Qutab for Appellant (in Criminal Appeal No.185-J of 2009).

Zafar Iqbal Chohan for Appellant with Appellant in person (in Criminal Appeal No.534 of 2009).

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Naseer-ud-Din Khan Nayyar and Sharafat Khan for the Complainant.

Naseer-ud-Din Khan Nayyar and Sharafat Khan for Petitioner (in Criminal Revision No.407 of 2009).

Naseer-ud-Din Khan Nayyar and Sharafat Kan for Petitioner (in P.S.L.A. No.71 of 2009).

Date of hearing: 10th July, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1316 #

2014 Y L R 1316

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD IFTIKHAR and others---Petitioners

Versus

ABDUL WAHAB and others---Respondents

Writ Petition No.26023 of 2012, decided on 6th November, 2013.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Application for ejectment of tenant---Default in payment of rent---Denial of relationship of landlord and tenant by the tenants---Contention of tenants was that they were owners of demised premises---Ejectment application was accepted concurrently---Validity---Possession of demised premises remained with the tenants whereby same was alienated to the landlord through registered sale deed---Suit of tenants for cancellation of sale deed had been dismissed---Rent deed was executed by the tenants in favour of landlord on the stamp paper which was attested by two independent and unbiased witnesses---Tenants had failed to pay rent of demised premises---Tenants could not substantiate their claim of being owners of disputed property after dismissal of their suit---Landlord had established that rent deed was validly executed through production of two marginal witnesses of the same---Tenants were liable to pay arrears of rent to the landlord---No illegality or jurisdictional defect was found in the impugned judgments passed by the courts below---Constitutional petition was dismissed with cost.

Baleeg uz Zaman for Petitioners.

Malik Zahid Hussain for Respondents.

YLR 2014 LAHORE HIGH COURT LAHORE 1329 #

2014 Y L R 1329

[Lahore]

Before Miss Aalia Neelum, J

Malik AKHTAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/ JUSTICE OF PEACE, LAHORE

and others---Respondents

Writ Petition No.14248 of 2013, heard on 21st August, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Constitution of Pakistan, Art.199---Constitutional petition--Allegation of stealing and forging cheque and presenting for encashment---Registration of F.I.R.---Accused was aggrieved of the order passed by Ex-Officio Justice of Peace, whereby Station House Officer was directed to record statement of complainant under S. 154, Cr.P.C. and lodge F.I.R. in accordance with law---Validity---Investigating Officer could arrest accused when there was sufficient incriminating evidence brought on record after obtaining expert opinion of Forensic Science Laboratory---If question of genuineness of signatures of the drawer of cheque arose the same should be proved first and till such time arrest of accused should be deferred, if F.I.R. was got registered against accused in compliance of order passed by Ex-Officio Justice of Peace---Accused failed to point out any illegality or irregularity in the order and the same did not call for any interference---Petition was disposed of accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Madawa through President v. Inspector-General of Police, Punjab and 15 others PLD 2013 Lah. 442 rel.

Ms. Fatima Malik for Petitioner.

Maqsood-ul-Hassan, Assistant Advocate General for Respondent.

Date of hearing: 21st August, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1350 #

2014 Y L R 1350

[Lahore]

Before Mehmood Maqbool Bajwa, J

Mst. NAZIRAN and 2 others---Petitioners

Versus

MUHAMMAD IQBAL and 2 others---Respondents

Civil Revision No.1170 of 2002, heard on 28th November, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Production of additional evidence before the Appellate Court---Scope---Justice at no cost and at no stage would be allowed to fall prey of technicalities which might be ignored if they would tend to create hurdles in the same---Discretion exercised by the Appellate Court was according to settled provisions of law which was neither perverse nor arbitrary---Revision was not maintainable which was dismissed in circumstances---Appellate Court was directed to decide the appeal after requisitioning the relevant record.

Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Mustafa Kamal and others v. Daud Khan and others 2009 SCMR 221; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another PLD 2008 SC 564 ref.

Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Malik Khuda Bakhsh and another v. Syed Hamid Ali Shah 1981 SCMR 196 rel.

Arab Hussain for Petitioners.

Ghulam Sarwar Awan and M. Qalib Naveed Hashmi for Respondents.

YLR 2014 LAHORE HIGH COURT LAHORE 1356 #

2014 Y L R 1356

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

ABDUL SAMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.38-J of 2010, heard on 30th January, 2014.

Penal Code (XLV of 1860)---

----Ss. 365, 337-F(i) & 337-L(2)---Kidnapping or abducting with intent secretly and wrongfully to confine person, causing damiyah, and other hurt---Appreciation of evidence---Complainant failed to nominate any of the abductors of his son, except for alleging that his son was abducted by three unknown young armed men---Elements of deliberation and consultation, could not be ruled out in respect of involvement of accused in the present case---Complainant failed to highlight the circumstance in his testimony through which he involved accused in the case, nor he burdened him anywhere in his testimony, if the accused ever demanded any ransom amount from him, either telephonically or otherwise---Nomination of accused in the case, was enveloped in a thick layer of haze, which had eclipsed the veracity of the case, set up by the prosecution against accused---No corroboration was available to the claim of alleged abductee, according to which he burdened accused and his co-accused to have fired at the Police party; and ran away from the hot-spot under the sheath of darkness, by leaving behind the dead body of their crime partner---Testimony of the abductee for want of corroboration, was unbelievable and untrustworthy---Ocular account, in circumstance was brushed aside being a hollow and incredible affair---Unexhibited report of Forensic Science Laboratory with regard to recovery of pistol .30 bore along with five live bullets was of no consequence as Investigating Officer failed to collect any crime empty from the place of occurrence at the time of spot inspection---Recovery of car bearing registration number was inconsequential as complainant did not mention any such Registration number in the F.I.R.; and both prosecution witnesses also failed to mention the same---Evidence of recoveries of noted-articles burdened by prosecution witnesses, did not convey any sense and meant less than nothing---Medical evidence could provide all the necessary information about the bodily injuries of a living or a dead person, but it could not identify as to who inflicted them---Medical evidence in the case was inconsequential like rest of the prosecution evidence---Prosecution having failed to bring home the guilt of accused beyond reasonable doubt; impugned judgment passed by the Trial Court, suffered from misreading, non-reading and misunder-standing the evidence---Conviction and sentence of accused were set aside, he was acquitted of the charge and was released, in circumstances.

Mirza Abdul Khaliq-I for Appellant.

Hamayun Aslam, Deputy Prosecutor-General for the State.

Ch. Aamir Rehman for the Complainant.

Date of hearing: 30th January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1374 #

2014 Y L R 1374

[Lahore]

Before Syed Iftikhar Hussain Shah, J

SHAHBAZ AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.25394 of 2011, decided on 15th January, 2014.

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

---S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Application for custody of minor---Welfare of minor---Scope---Father filed application for custody of minor daughter on the ground that welfare of minor was her custody with him and mother of the minor had contracted second marriage with a person who was not related to the minor within the prohibited degree---Application for custody of minor was dismissed concurrently---Validity---Mother of minor daughter had contracted second marriage and father-petitioner had also contracted second marriage and had got two daughters from second wife---No evidence was on record that second husband of mother of minor was not from the brotherhood of minor and did not fall within the prohibited degree---Minor was enjoying good health and she was being brought up and educated properly---Step-mother could not be a substitute for real mother---Welfare of minor was with her custody with mother---High Court did not interfere with the findings of facts recorded by the courts below when such findings were reasonable and were not arrived at by disregarding any provisions of law or any accepted principle concerning appreciation of evidence---Constitutional jurisdiction was discretionary in nature and who sought equity must come with clean hands---No infirmity or illegality had been pointed out in the impugned judgments---Constitutional petition was dismissed in circumstances.

Mst. Ayisha Bibi v. Safdar Ali Shah and another 2005 CLC 894; Mst. Shumaila Akhtar and 2 others v. Abdur Rauf and 2 others 2004 YLR 1913, Mst. Amir Ali and another v. Ahmad Ali 1998 CLC 846; Faiz Bakhsh v. Mst. Sakina 1980 CLC 1989; Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200; Mst. Ruqayya Bibi v. Noor Akbar and 3 others PLJ 1984 Lah. 322 and Mst. Parveen Akhtar v. Muhammad Ashraf 1986 SCMR 1944 ref.

Mst. Ayisha Bibi v. Safdar Ali Shah and another 2005 CLC 894; Mst. Shumaila Akhtar and 2 others v. Abdur Rauf and 2 others 2004 YLR 1913, Mst. Amir Ali and another v. Ahmad Ali 1998 CLC 846; Faiz Bakhsh v. Mst. Sakina 1980 CLC 1989 and Mst. Ruqayya Bibi v. Noor Akbar and 3 others PLJ 1984 Lah. 322 distinguished.

Waqar Haider Butt v. Judge Family Court and others 2009 SCMR 1243 rel.

(b) Islamic Law---

----Custody of minor---Right of custody (Hizanat) of mother---Scope---Mother was entitled to the custody (Hizanat) of her male child until he had completed the age of seven years and of her female child until she had attained puberty---Such right of mother would continue though she was divorced by the father of child unless she had married a second husband in which case the custody would go to the father---Mother who was otherwise entitled to the custody of female child would lose such right if she had married a person not related to the child within the prohibited degree, a stranger but such right would revive on the dissolution of marriage by death or divorce; or if she had gone and started to reside during the subsistence of marriage at a distance from the father's place of residence; or if she was leading an immoral life as when she was a prostitute; or if she had neglected to take care of the child.

Mahomendan Law by Mulla, Paras 352 and 354 quoted.

Muhammad Zaman for Petitioner.

YLR 2014 LAHORE HIGH COURT LAHORE 1381 #

2014 Y L R 1381

[Lahore]

Before Amin-ud-Din Khan, J

NOOR MUHAMMAD SULTAN---Petitioner

Versus

Hafiz ALLAH BAKHSH---Respondent

Civil Revision No.1725 of 2007 and Civil Revision No.233 of 2008, heard on 30th May, 2013.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs, performance of---Requirements---Place of gaining knowledge and announcement of Talb-i-Muwathibat were not specifically mentioned in the plaint as well as in the notice of Talb-i-Ishhad---Pleading a general and big place of a house without specifying the specific place was not the compliance of S.13 of the Punjab Pre-emption Act, 1991--Gaining knowledge and jumping demand both were the facts which plaintiff was required to prove and without pleading specific date, time and place, the plaintiff could not prove the same---For proving the jumping demand it was necessary to prove first the gaining of knowledge of sale at specific time, place and date---Plaintiff had failed to plead the specific place, which was fatal defect in performance of Talb-i-Muwathibat---Receipts through which registered post notices for Talb-i-Ishhad were sent had been produced by the counsel in his statement---Record-keeper from the post office as well as postman had not been produced to prove the receipts of notices---No record of receipt of notices was available and original envelopes were also not on record---Delivery of notice had not been proved---Plaintiff had failed to prove Talb-i-Muwathibat and Talb-i-Ishhad in circum-stances.

Pervaiz Hussain and another v. Arabian Sea Enterprises Ltd. 2007 SCMR 1105 and Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for possession through pre-emption---Prerequisites---Performance of talbs---Before filing suit to pre-empt the sale, prerequisites were that the plaintiff must perform Talb-i-Muwathibat and Talb-i-Ishhad and thereafter plead the same in the plaint referring therein the notice of Talb-i-Ishhad.

----S. 15---Divisibility of sale---Scope---Sinker, principle of---Conditions---If specific land purchased by each of the vendee was mentioned in the sale document or mutation and also the specific price paid by each of the vendee only then the sale could be termed as "divisible"---If one of the conditions was missing the sale could not be termed as "divisible"---In the present case, there were six vendees, no specific land had been mentioned in the impugned mutation purchased by each of the vendees, though share purchased by each vendee had been mentioned, but the total sale consideration paid by all the vendees had been mentioned, therefore, sale in the case could not be termed as "divisible".

Allah Wasaya Malik for Petitioner.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 30th May, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1412 #

2014 Y L R 1412

[Lahore]

Before Sardar Tariq Masood and Abdul Sami Khan, JJ

MUHAMMAD YAQOOB alias GOSHI---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.2179 of 2009, Criminal Appeal No.31 of 2010, Criminal Revision No.48 of 2010 and Murder Reference No.28 of 2010, heard on 19th November, 2013.

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

----Ss. 302(b), 324 & 337-D---Qatl-e-amd, attempt to commit qatl-e-amd, Jaifah---Appreciation of evidence---Benefit of doubt---Accused persons were not named in the F.I.R., by the complainant, but had been involved after one month of the occurrence---No supplementary statement of the complainant was recorded by the Investigating Officer separately; and only application of the complainant in which he had named accused persons with specific role, was on record, which had been considered as supplementary statement by the Trial Court---Such supplementary statement had no value in the eyes of law---Complainant being not an eye-witness of the occurrence, his statement had to be corroborated by the statement of eye-witness---Eye-witness who was an injured witness, had not named any of accused persons in her statement recorded under S.161, Cr.P.C.---Said witness made lot of improvements in order to bring her statement in line with the supplementary statement of her father/complainant---Said fact had created doubts qua the veracity of witness of the ocular account---Incident was night occurrence which took place at 10.00 p.m.---Identification of accused in circumstances, was mandatory but same had not been conducted in the present case---Co-accused/approver made two statements, one was recorded under S.342, Cr.P.C., prior to giving him the status of approver; and the other after he was made approver---So many discrepancies were found between said both statements---No reliance could be placed on recovery of .12 bore gun and report of the Forensic Science Laboratory, as said recovery was made after about ten days of the arrest of accused; and said gun and empties were received by office of Forensic Science Laboratory together after about fifteen days of recovery---When empties and weapon of offence were sent to the Forensic Science Laboratory together, positive report of the Forensic Science Laboratory would become inconsequential and could not be relied upon---Prosecution having failed to prove its case against accused persons beyond any shadow of doubt, convictions and sentences awarded to them by impugned judgments were set aside and they were acquitted from the charge by extending them benefit of doubt---Benefit of present judgment would also be given to co-accused who had not preferred appeal against his conviction and sentence was awarded to him by the Trial Court.

PLD 2009 SC 814 and PLD 1997 SC 447 ref.

Falak Sher alias Sheroo v. The State 1995 SCMR 1350; Farman Ali v. The State 1997 SCMR 971 and Amin Ali and another v. The State 2011 SCMR 323 rel.

(b) Criminal trial---

----Witness---Improvements in the statement of witness---When a witness would improve his/her statement to strengthen the prosecution case, the moment it was concluded that improvement was made deliberately, and with mala fide intention, the testimony of such witness would not remain reliable.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

----Art.22---Identification parade---Scope---Holding of identification parade, was not only a check against false implication, but was a good piece of evidence against genuine culprits.

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

----Ss.337 & 338---Testimony of approver---Testimony of approver, was to be scrutinized with care and caution and could not be acted upon without corroboration in material particulars by reliable evidence---Mandatory upon the Trial Court that when an accused had been made approver, his trial was to be separated from rest of accused.

Chaudhary Muhammad Yaqoob v. The State and others 1992 SCMR 1983 rel.

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

----S. 342---Examination of accused---Evidence which was not put to an accused in his statement under S.342, Cr.P.C., could not be used against him.

(f) Criminal trial---

----Benefit of doubt---Conviction of accused, basis of---Conviction could only be based upon unimpeachable evidence, and certainty of guilt; and any doubt arising in the prosecution case must be resolved in favour of accused, not as a matter of grace, but of right---Mistake of Qazi (Judge) in releasing a criminal, was better than his mistake in punishing an innocent; it was better that ten guilty persons be acquitted, rather than one innocent person be convicted.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Naveed Inayat Malik for Appellant (in Criminal Appeal No.2179 of 2009).

Zia-ud-Din Kasuri for Appellant (in Criminal Appeal No.31 of 2010).

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Mrs. Erum Sajjad Gull for the Complainant.

Date of hearing: 19th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1429 #

2014 Y L R 1429

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Abdul Sami Khan, JJ

ALTAF HUSSAIN SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.176 and Murder Reference No.35/RWP of 2009, heard on 10th September, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Case being of promptly lodged F.I.R., there was no chance of false implication of accused---Complainant and prosecution witness were consistent on material points---Presence of complainant and prosecution witness seemed to be material one being working in the fields nearby the place of occurrence, and their presence on the spot could not be doubted---Both the eye-witnesses had fully supported the prosecution version---Despite said witnesses were subjected to lengthy cross-examination, nothing could be brought out nor any doubt could be created in their evidence---Said witnesses stood firm and their veracity could not be shaken---Names of the eye-witnesses and role of accused for causing injuries to the deceased, had been mentioned in the F.I.R., which got support from the medical evidence furnished by the Doctor---Nothing was extracted from eye-witnesses to create doubt regarding their presence on the spot---Accused, complainant and eye-witness being residents of one and the same vicinity, and accused being known to them, there was no possibility of mistaken identity of accused---Accused was named in the F.I.R. with a specific role of causing injuries with Chhuri, and that role was borne out from the postmortem examination report of the deceased---No infirmity, inconsistency and material contradiction was found in the statements of the complainant and prosecution witness---Both were unison on material points i.e. time, date and place of occurrence---Prosecution witnesses being found present at the place of incident, their testimony was believed, because the same was not tainted and they had no motive to falsely implicate accused---Accused had not been able to bring on record any previous enmity between him and the eye-witnesses for his false implication---No plausible reason had been established by the defence to indicate that complainant and eye-witness had substituted accused by leaving the real culprit---Testimony of eye-witnesses was natural and convincing, which found ample corroboration from other evidence---Discrepancies between the statements of complainant and prosecution witness, could crop up with the passage of time and same were not material---Chhuri recovered at the instant of accused was stained with human blood and positive report of Serologist had further strengthened the prosecution case---Prosecution had not been able to prove the motive as alleged by the complainant---Occurrence, had happened at the place where accused was already present, and it was established that deceased had come to the place of occurrence---Possibility could not be ruled out that some sort of hot words were exchanged between the deceased and accused---Occurrence, in circumstance, took place at the spur of moment, and there was no premeditation on the part of accused---Case was not of capital punishment---Where some extenuating circumstances were available, the court had the discretion to award lesser punishment---In the present case there were circumstances which could be taken as extenuating/mitigating circumstances for the purpose of awarding lesser sentence---While maintaining conviction of accused, his sentence of death was converted into imprisonment for life as Tazir, in circumstances.

Mir Muhammad alias Miro v. The State 2009 SCMR 118 rel.

(b) Criminal trial---

----Evidence---Interested witness---Scope---Interested witness was the one who had animosity with the accused and had a motive to falsely implicate a person---Mere relationship of witness with the deceased was not enough to discard the testimony, because such witness was necessarily not the interested witness in true sense of the term---Statement of a witness could not be disbelieved solely on the plea that he was related to the deceased.

Malik Abdul Qayyum Khan for Appellant at State expense.

Kashif Saleem Arfa, Law Officer for the State.

Date of hearing: 10th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1445 #

2014 Y L R 1445

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Abdul Sami Khan, JJ

MUHAMMAD SAFDAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.36 and Murder Reference No.8/RWP of 2010, heard on 19th September, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused named in the crime report was husband of the deceased; and it was a daylight occurrence---Complainant and prosecution witness, being previously known to accused, it could safely be held that no chance was of misidentification of assailant---Both prosecution witnesses had fully established their receiving the information qua quarrel between the spouses; and also substantiated their proceeding to the place of occurrence---Pen-picture of the occurrence adduced in the statements of the prosecution witnesses of ocular account was straightforward---It could not be said that said witnesses had made dishonest statements---Both said prosecution witnesses had corroborated each other on salient features of occurrence, with regard to inflicting injuries by accused upon the person of deceased; and despite lengthy cross-examination, their testimony could not be shattered---Delay of one day in recording statements of prosecution witnesses under S.161, Cr.P.C., which otherwise was fully explained, could be termed as trivial in nature creating no dent on the testimony of ocular account, which seemed to be straightforward and confidence-inspiring---Complainant and prosecution witness, though were inter se related, and also happened to be closely related to the deceased, but mere such close relationship, could not discard the testimony, if otherwise same was trustworthy, appealing to reason, and corroborated by independent circumstance---Defence advanced by accused, could only be termed as an afterthought story---Prosecution version of the ocular account found full support from the medical evidence available on record---Blood-stained hatchet recovered on the pointation of accused, and as per his report same was stained with human blood---Blood stained earth collected from the spot was also sent to Chemical Examiner and Serologist, who straightaway supported the prosecution case---Accusations levelled against accused in the crime report were found correct---Prosecution witnesses having not been tested on the touchstone of 'Tazki-tul-Shahood', Trial Court was justified to convict accused under S.302(b), P.P.C. and sentenced him to death as Tazir---Prosecution had substantiated its case through leading evidence by the most natural witnesses of the occurrence, who remained coherent on salient features of the prosecution version---Nothing was on record to show even a glimpse in order to arrive at the conclusion that it was a case of substitution---Prosecution case having fully been proved beyond reasonable doubt, Trial Court was well-justified in passing conviction against accused and sentencing him to death.

Ijaz Ahmad v. The State 2009 SCMR 99 and Talib Hussain and others v. The State and others 2009 SCMR 825 rel.

(b) Criminal trial---

----Motive, duty to prove---In ordinary cases once any motive was set forth in the crime report, the prosecution was under bounden duty to prove the same, but if the case of the prosecution was proved from direct evidence of ocular account finding full corroboration from medical evidence; and other independent/attending circumstances, the conviction could be recorded.

Musa v. The State 2008 SCMR 997; Raza Khan v. The State 1998 PCr.LJ 530 and Muhammad Asif alias Assa v. The State 2009 YLR 498 rel.

Raja Ghaneem Aabir Khan for Appellant.

Rana Kashif Saleem Arfaa, Law Officer for the State.

Nemo for the Complainant.

Date of hearing: 19th September, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1456 #

2014 Y L R 1456

[Lahore]

Before Ch. Muhammad Masood Jehangir, J

Mst. KUBRA BEGUM and others---Petitioners

Versus

SHAMS DIN and another---Respondents

Civil Revision No.1983 of 2002, heard on 18th November, 2013.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2---Qanun-e-Shahdat (10 of 1984), Art. 129 (g)---Suit for declaration and permanent injunction---Evacuee property--- Settlement authorities, jurisdiction of---Evidence, withholding of---Presumption---Settlement authorities on 20-9-1976 declared that property owned by plaintiff was in fact part of property purchased by defendant in auction---Trial Court and Lower Appellate Court concurrently dismissed the suit and appeal filed by plaintiff---Validity---On promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, entire rural and urban evacuee properties vested in Provincial Government by operation of law---Except to the extent of pending matters specified in Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, no property was available to Settlement or Rehabilitation authorities for disposal in any manner---Neither disputed property was pending for disposal nor was the matter regarding such property remanded by superior Court to Settlement authorities, as there was no such entity as Deputy Settlement Commissioner under any of the statutory laws in force after repeal of Settlement Laws---Defendant did not produce in his evidence record keeper of Settlement authorities to prove genuineness of disputed documents---Defendant withheld the best evidence, if any, for reasons best known to him, therefore, High Court derived inference against defendant---Settlement authorities were not competent to pass order dated 20-9-1976 and issue Transfer Order in favour of defendant---High Court, in exercise of revisional jurisdiction, set aside findings of two Courts below, as after repeal of Settlement Laws ultimate jurisdiction only vested with Civil Court and plaintiff had rightly challenged Transfer Order before Civil Court having been passed by Deputy Settlement Commissioner without jurisdiction---Suit filed by plaintiff was not only competent but Civil Court had also jurisdiction---High Court set aside judgments and decrees passed by both the Courts below and suit was decreed in favour of plaintiff---Revision was allowed in circumstances.

Sher Zaman Khan for Petitioners.

Dr. Muhammad Irtaza Awan, Nauman Maqbool, Senior Clerk with original record for Respondent No.2.

Respondent No.1 proceeded ex parte on 7-3-2013.

Date of hearing: 18th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1467 #

2014 Y L R 1467

[Lahore]

Before M. Sohail Iqbal Bhatti, J

Subedar (Retd.) MUHAMMAD KHAN---Petitioner

Versus

Messrs MURREE BREWERY COMPANY LTD. and others---Respondents

Civil Revision No.333 of 2005, decided on 20th February, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 55---Civil Procedure Code (V of 1908), O. XVIII, R. 18---Easements Act (V of 1882), S.15---Suit for declaration and mandatory injunction---Right of easement, claim of---Contention of plaintiff was that he was entitled to use the passage situated in the property of defendants on the basis of easement---Suit was dismissed concurrently--- Validity---Civil Judge himself visited the site and there were more than one passages available to the plaintiff---Plaintiff was bound to prove that no other passage was available to him to establish a right of easement on the basis of necessity---Concurrent findings of facts based upon proper appreciation of evidence were on record which could not be disturbed in revisional jurisdiction---Right of easement on the basis of prescription could not be claimed by the plaintiff---No illegality or material irregularity was pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Raja Sajid Mahmood for Petitioner.

Muhammad Ansar Awan for Respondents.

Date of hearing: 20th February, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1489 #

2014 Y L R 1489

[Lahore]

Before Shah Khawar, J

SHAH MUHAMMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.4957 of 2014, decided on 16th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 154---F.I.R., registration of---Station House Officer (S.H.O.), obligation of---Scope---When an information regarding cognizable offence was made before the Station House Officer either verbally or in writing, it was binding upon the Station House Officer to incorporate the same in the register kept in the police station for registration of F.I.R.---Station House Officer could not sit over the information due to the reason that he may check the authenticity of the allegations---Such an exercise would be in complete determent to the spirit of S.154, Cr.P.C.---After registration of F.I.R. if the police came to the conclusion that the allegations levelled in the F.I.R. were ill founded and not supported by some cogent evidence, the police could even discharge the accused from the offence after getting concurrence from the concerned Magistrate.

Muhammad Bashir v. Station House Officer and others PLD 2007 SC 539 rel.

Rana A.D. Kantran for Petitioner.

YLR 2014 LAHORE HIGH COURT LAHORE 1493 #

2014 Y L R 1493

[Lahore]

Before Muhammad Anwaarul Haq, J

BABAR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.7652-B of 2013, decided on 19th July, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Business deal---Disputed cheque was given in the backdrop of a business deal between the parties---Validity---Question that disputed cheque was issued dishonestly was a matter to be determined by Trial Court after recording of some evidence---Accused had been behind the bars since, 10-2-2013, without any substantive progress in his trial---Maximum punishment provided for the offence under S. 489-F, P.P.C. was imprisonment for three years and the same did not fall within the prohibitory clause of S. 497, Cr.P.C.---Grant of bail in such like cases was a rule and refusal an exception---Bail was allowed in circumstances.

Mitho Pitafi v. The State 2009 SCMR 299; Qamar alias Mitho v. The State and others PLD 2012 SC 222 and Ikram-ul-Haq v. Raja Naveed Sabir and others 2012 SCMR 1273 rel.

Mian Muhammad Rashid for Petitioner.

Muhammad Nawaz Shahid, Deputy District Public Prosecutor for the State.

Fazal-ur-Rehman Khilji for the Complainant.

Muhammad Imran, A.S.I, with record.

2014 Y L R 1534

[Lahore]

Before Muhammad Ameer Bhatti, J

NAZIR AHMED and others---Petitioners

Versus

MUHAMMAD TUFAIL---Respondent

Civil Revisions Nos.163 and 164 of 2012, decided on 24th September, 2012.

Civil Procedure Code (V of 1908)---

----S.107(2) & O. XLI, R. 23---Remand of case---Necessity---Scope---Suit filed by the plaintiff/respondent was dismissed by trial court---Plaintiff/respondent filed first appeal, whereby first appellate court found that the trial court while dictating the judgment mistakenly mentioned the wrong names of defence witnesses, therefore the wrong cases was remanded back to the trial court on the ground that it had not decided the suit after applying its mind---Contention of the petitioner/defendant was that first appellate court fell in error by remanding the case on the basis of technicalities---Validity---Trial court while dictating the judgment inadvertently/ wrongly mentioned the name of defense witnesses but the said names had been corrected by himself which were apparent in judgment--Inadvertent mistake committed in the judgment had been correctly made by the learned trial court---First appellate court had failed to advert to such points while remanding the case---Judgment of first appellate court was not tenable in the eye of law, as it was the duty of the first appellate court to decide the matter itself instead of remanding the case to the trial court inasmuch as mere wrong mentioning the names of defence witnesses had not rendered the judgment illegal or based on misreading and non-reading of evidence---Trial court after considering all the material available on the record had decided the matter in accordance with law---First appellate court ought to have decided the appeal after hearing the parties and going through the record of the case but while remanding the case, first appellate court had travelled beyond its jurisdiction---Appellate court had committed material illegality and irregularity while remanding the case to the trial court for its decision afresh---Order passed by the first appellate court was set aside---First appellate court was directed to decide the appeal in accordance with law---Revision petition was allowed.

Abdul Wahab and others v. Ghulam. Muhammad 2004 MLD 293; Province of Punjab through Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and another v. Raoof Corporation (Pvt.) Ltd. 2004 CLC 1438; Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10; Rozi Khan and others v. Nasir and others 1997 SCMR 1849; Chairman, WAPDA, Lahore and another v. Gulbat Khan 1996 SCMR 230; Arshad Ameen v. Messers Swiss Bakery and others 1993 SCMR 216; Sher Muhammad and another v. Jamadar Ghulam Ghaus (Represented by heirs) 1983 SCMR 133; Nasir Ahmad and another v. Khuda Bakhsh and another 1976 SCMR 388; Fateh Ali v. Pir Muhammad and another 1975 SCMR 221; Muhammad Qasim and 6 others v. Muhammad Huyssain and 8 others PLD 2001 Lah. 9; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 and Bashiruddin Qureshi v. Major (Rtd.) Aminullah Khawaja 1985 CLC 316 ref.

Rustam Khan Padhiar for Petitioners.

Muhammad Rafique Chaudhry for Respondent.

YLR 2014 LAHORE HIGH COURT LAHORE 1537 #

2014 Y L R 1537

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

Mst. ABIDA BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3134-B of 2014, decided on 25th March, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic---Ad-interim pre-arrest bail, confirmation of---Further inquiry--- Female accused--- Separate F.I.Rs. for the same occurrence---Effect---Doubt regarding culpability of accused---Police allegedly conducted a raid during which accused-female threw away a bag containing narcotic and fled to her father's house---Plea of accused that a separate F.I.R. for the same occurrence had also been lodged against her husband, and that she was only implicated in the present F.I.R. for being wife of the accused of the other F.I.R. ---Validity---Separate F.I.R. was lodged against husband of accused by the same complainant, for the same occurrence under S. 9(c) of Control of Narcotic Substances Act, 1997---Said separate F.I.R. created doubt about culpability of accused---Fact that accused-lady fled away from the scene in the presence of four police officials made the present case one of further inquiry---Nothing was to be recovered from the possession of the accused---Accused did not have a previous criminal record---Sending accused behind bars only to oblige her to come out of jail after a few days on post-arrest bail would amount to mockery of law---Ad-interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

Muhammad Kamran Butt, for Petitioner.

Ch. Muhammad Mustafa, D.P.G. for the State.

Muhammad Asghar, S.I. along with the record.

YLR 2014 LAHORE HIGH COURT LAHORE 1553 #

2014 Y L R 1553

[Lahore]

Before Ijaz Ahmad and Shezada Mazhar, JJ

Dr. SAFDAR HUSSAIN and another---Appellants

Versus

Flt. Lt. NADIA LATIF and 5 others---Respondents

R.F.A. No. 195 of 2012, decided on 29th October, 2013.

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

----S. 42---Suit for declaration---Tarka/estate of deceased---Scope---Group Welfare Scheme of Employees---Deceased was employee of Air Force and died during service---Controversy was with regard to distribution of movable and immovable properties left by the deceased to all the legal heirs---Held, tarka/estate of deceased would consist of immovable or movable properties, money and all other articles which he owned and over which he had control and dominion---Amount which had accrued to an employee during his lifetime whether he had received the same or not before his death should become part of estate and such amount had to be distributed among the legal heirs---If amount accrued was "grant" or "concession" then same would be payable to the nominee of the deceased---Amount of Group Welfare Scheme could not be claimed by the deceased during his lifetime nor deceased could ask for payment of the same which would become due and payable to him after his death---Said amount was nothing but an insurance scheme which was payable to an employee in case of his death during service---Amount of Group Welfare Scheme was not part of tarka/estate and same would not be divided among the legal heirs of the deceased---House was given free of cost to the deceased and same was neither money nor monetary allowance but same could be given as compensation or monetary allowance---Deceased had knowledge that house would be allotted to him either on payment or free of cost in case of death during service being member of Housing Society---Said house was awarded to the nominee in exclusion of other legal heirs as a compensation---Nomination could not be treated as a valid transfer of house from the deceased to the nominee---Nomination was neither "will" nor "gift" and same could not be treated as a transfer of immovable property---No question of delivery of possession of plot at the time of nomination was made as at that time no plot had been allotted to him---House in question, in circumstances, was to be devolved upon the legal heirs of the deceased---Appeal was partly accepted in circumstances.

Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731; Succession of the Assets, Securities, Properties and Accounts of Late Javaid Iqbal Ghazanvi PLD 2010 Kar. 153; Zaheer Abbas v. Pir Asif & 6 others 2011 CLC 1528; Messrs Pakistan International Airlines Corporation v. Mst. Alia Siddiqa and 3 others 2001 MLD 1; Mst. Amtul Habib and others v. Mst Musarrat Parveen and others PLD 1974 SC 185; Muqaddar Khan v. Burmah Shell Oil Storage and Distributing Co. Ltd., Karachi and another PLD 1968 Kar. 523 and Malik Safdar Ali Khan and another v. Public at Large and others 2004 SCMR 1219 rel.

(b) Words and Phrases---

----"Compensation"---Meaning--- Compen-sation, typically was money awarded to someone in recognition of loss, suffering or injury.

Oxford English Dictionary rel.

Zafarullah Khan for Appellants.

Agha Muhammad Ali Khan for Respondents.

Date of hearing: 9th October, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1569 #

2014 Y L R 1569

[Lahore]

Before Atir Mahmood, J

MUHAMMAD AFZAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, Faisalabad and 2 others---Respondents

Writ Petition No. 16244 of 2012, heard on 10th March, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower, maintenance allowance and restitution of conjugal rights---Deferred dower, claim of---Scope---Wife filed suit for recovery of dower and maintenance allowance whereas husband filed suit for restitution of conjugal rights---Both the suits were consolidated and Trial Court decreed suit of wife whereas suit of husband was dismissed but Appellate Court dismissed suit of wife to the extent of recovery of dower and decreed the suit for restitution of conjugal rights subject to payment of dower as well as maintenance allowance with certain modifications---Validity---No dispute existed with regard to the amount fixed as deferred dower---Husband could not be allowed to aprobate and reprobate at the same time---Deferred dower could only be claimed after dissolution of marriage or in case of death of husband---Impugned judgments and decrees to the extent of grant of dower amount were not sustainable in the eye of law---Husband was liable to maintain his wife according to his means and keeping in view the expenditures which were normally incurred in everyday life---Husband was man of means and was in a position to maintain his wife by making the payment of Rs. 2000 per month---Impugned judgments and decrees to the extent of dower amount and condition to pay the same were set aside---Constitutional petition was accepted in circumstances.

Para 290 of Muhammad Law and Saadia Usman and another v. Muhammad Usman Iqbal Jadoon and another 2009 SCMR 1458 rel.

M. Irshad Chaudhry for Petitioner.

Sardar Mashkoor Ahmed for Respondents.

Date hearing: 10th March, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1583 #

2014 Y L R 1583

[Lahore]

Before Abid Aziz Sheikh, J

GHULAM MUSTAFA and 5 others---Petitioners

Versus

COMMISSIONER/DELIMITATION AUTHORITY, D.G. KHAN DIVISION, DERA GHAZI KHAN and 5 others---Respondents

Writ Petitions Nos. 14024, 14023 and 14757 of 2013, decided on 19th December, 2013.

Punjab Local Government Act (XVIII of 2013)---

----Ss.8, 10-A & 11---Punjab Local Governments (Delimitation) Rules, 2013, Rr.5 & 6---Constitution of Pakistan, Art. 199--- Constitutional petition---Delimitation of union councils---Finality of delimitation---Principle---Petitioner was aggrieved of notification issued by authorities regarding delimitation of constituencies in question---Validity---Delimitation Officer had jurisdiction to carry out delimitation of Union Councils and wards or even for its revision whereas under R. 6 of Punjab Local Governments (Delimitation) Rules, 2013, Delimitation Officer would call for proposals, objections, suggestions and recommendations and Delimitation Authority could make further changes in delimitation of union councils and wards---Functionaries including Delimitation Officer and Delimitation Authority had no jurisdiction to include certain Mauzas (villages) in Municipal Committee concerned---High Court declined to interfere in delimitation process of union councils and wards at such stage when entire process of delimitation was already finalized by competent authorities and election schedule had been announced---Delimitation of constituencies based on geographical compactness and equal distribution of population was the function of Delimitation Authority and unless there was jurisdictional defect, High Court could not embark upon factual inquiry on such issues---Petition was dismissed in circumstances.

Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Syed Hassan Mehdi and others v. Province of Punjab and others PLD 2011 SC 916; Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority and others 2007 SCMR 1126; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914; Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; Raja Muhammad Dad Khan, Advocate v. West Pakistan Bar Council, Lahore and another PLD 1975 SC 469; Mehr Din and 7 others v. Border Area Committee, Bahawalnagar and another PLD 1970 SC 311; High Court Bar Association and others v. Government of Balochistan through Secretary, Home and Tribal Affairs Department and 6 others PLD 2013 Balochistan 75; Muzaffar Ahmed v. Pakistan through Secretary and others 1991 MLD 1142; Khizar Hayat v. The Delimitation Authority and others ICA No.349 of 2013; Shahbaz Khan v. Election Commission of Pakistan through Election Commissioner Islamabad PLD 2003 Lah. 125; Syed Maqbool Hussain Shah v. Punjab Local Councils Authority and others 1999 MLD 2813 and Amir Nawab v. Election Commissioner and others 1990 CLC 749 rel.

Haji Muhammad Tariq Aziz Khokhar for Petitioners (in Writ Petition No.14024 of 2013).

M. Aftab Alam Yasir and Kamal Farid Malik for Petitioners (in Writ Petition. No.14023 and 14757 of 2013).

Rana Muhammad Hussain, A.A.-G. along with Syed Masood Ahmad Shah, Law Officer for Respondents Nos.1 to 3.

Sardar Sami-ud-Din Mazari for Private Respondents.

YLR 2014 LAHORE HIGH COURT LAHORE 1605 #

2014 Y L R 1605

[Lahore]

Before Zafarullah Khan Khakwani, J

ABID HUSSAIN---Petitioner

Versus

NAZAR MUHAMMAD and another---Respondents

Civil Revision No.3051 of 2013, decided on 1st April, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Talb-i-Muwathibat, performance of---Requirements---Pre-emptor did not make immediate demand while sitting with the informer when he was told about the sale of land and he remained busy with him in talking for half an hour and after that he left the place/meeting (Majlis) and announced his intention to exercise his right of pre-emption---If pre-emptor did not disclose his intention to exercise his right of pre-emption in the same meeting then he would be driven out as having not fulfilled the requirement of immediate demand as pre-emptor had to act forthwith and not wait for a moment and without slightest loss of time while making immediate demand after attaining knowledge of sale to which he wished to pre-empt---Conversation between plaintiff and informer would constitute a consultation which was negation of Talb-i-Muwathibat as same was a jumping demand---Plaintiff was not sure about the source of knowledge of sale of suit-land---Major discrepancies were noticed on record which were against the mandatory requirements of law---Revision was dismissed in limine.

Mian Pir Muhammad and another v. Faqir Muhammad through LRs and others PLD 2007 SC 302 and Rana Muhammad Tufail v. Munir Ahmad and another PLD 2001 SC 13 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-i-Muwathibat---Meaning---Talb-i-Muwathibat was immediate demand (jumping demand) by pre-emptor in the same sitting or meeting (Majlis) in which he had come to know about the sale declaring his intention to exercise right of pre-emption.

----S. 115---Revisional jurisdiction of High Court--- Concurrent finding--- Scope---Revisional jurisdiction of High Court was meant for correction of jurisdictional errors and material illegalities/ irregularities and in absence thereof the concurrent findings of courts below could not be interfered with in a routine mode unless same were shown to be arbitrary, despotic, fanciful or were result of mis-reading and non-reading of evidence---Concurrent findings were not open to challenge on the sole ground that some other inference could be drawn in the matter.

Maulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817 and Riaz Muhammad and another v. Khadim Muhammad and 2 others PLD 2014 Pesh 21 rel.

(d) Words and Phrases---

----"Immediate"---Meaning---"Immediate" meant occurring without delay or instant.

Black's Law Dictionary rel.

S. M. Tayyab for Petitioner.

YLR 2014 LAHORE HIGH COURT LAHORE 1616 #

2014 Y L R 1616

[Lahore]

Before Mahmood Ahmad Bhatti, J

BASHIR AHMAD---Petitioner

Versus

JUSTICE OF PEACE/A.S.J., MUZAFFARGARH and 2 others---Respondents

Writ Petition No.14322 of 2013, decided on 27th December, 2013.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan, Art.199---Constitutional petition--Dishonesty issuing a cheque----Application for registration of case to Justice of Peace---Conducting of inquiry by Justice of Peace before issuing order---Scope---Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace whereby he conducted inquiry into the matter and then ordered Station House Officer to proceed in accordance with law---Validity---Petitioner admitted to have made out cheque in question and also admitted his thumb-impression on it, which was handed over to complainant---Controversy with regard to return of entire amount by petitioner and nothing to be outstanding against him could not be resolved by Ex-Officio Justice of Peace while exercising his powers under S. 22-A, Cr.P.C.---Inquiry into the fact was to be undertaken subsequent to registration of F.I.R. and was not to be conducted before passing any order under S. 22-A, Cr.P.C.---High Court declined to interfere in the order passed by Ex-Officio Justice of Peace---Petition was dismissed in circumstances.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

Sh. Abdul Samad for Petitioner.

Messer Tahir Mehmood and Malik Bakhat Yar Mehdi, for Respondent No.3.

YLR 2014 LAHORE HIGH COURT LAHORE 1628 #

2014 Y L R 1628

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. DAULAN BIBI and 6 others---Petitioners

Versus

Mst. AISHA BIBI and 3 others---Respondents

Civil Revision No.2742 of 2013, decided on 29th November, 2013.

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

----Ss. 11 & 17---Qanun-e-Shahadat (10 of 1984), Art. 129 (g)---Application for making award as rule of court---Contention of respondents was that disputed award was result of misconduct and arbitrator had travelled beyond his authority---Application for making award as rule of court was dismissed concurrently---Validity---Parties appointed arbitrator to resolve dispute with regard to agricultural property---Arbitrator had declared that deceased was Sunni---Sect of deceased was not to be resolved by the arbitrator as there was no dispute on the issue---Arbitrator had announced his award after a lapse of more than three years and had travelled beyond the reference by not deciding the dispute which was referred to him---Revenue authorities had attested inheritance mutation by considering deceased as Shia and same was still intact and respondents were declared to be legal heirs of the deceased---Dispute with regard to sect of deceased had already been decided not only by the revenue courts but also by the civil court---Applicants neither produced witnesses of agreement for appointment of arbitrator nor arbitrator had been produced in the witness box---Applicants themselves had withheld the best evidence for reason known to them and inference was to be drawn against them---Record of proceedings conducted by the arbitrator had not been produced before the court---Arbitration proceedings were considered to be sacred and sanctity had been given to said proceedings but arbitrator did not take care of his jurisdiction while making award---Arbitrator did not decide the dispute fairly and justly and committed misconduct---Both the courts below had decided the matter eminently---Applicants had failed to point out any perversity or illegality in the impugned judgments---Revision was dismissed in circumstances.

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

----S. 2 (a)---"Arbitration agreement"---Meaning---"Arbitration agreement" was a written agreement to submit, present or future differences to arbitration, whether an arbitrator was named therein or not.

----Preamble--- Arbitration--- Essence---Scope---Arbitration was an arrangement for the determination of a dispute between the parties by a person chosen by them---Essence of arbitration was the resolution of dispute by a decision through a person acting as an arbitrator and not by the court---Concept of arbitration was based upon withdrawing dispute from the ambit of courts and providing a remedy to the parties to get their disputes settled through a person of their own choice---Arbitrator only and solely derived his jurisdiction and powers from the reference/agreement which the parties specifically referred to him---Arbitrator had an arbitrary power to decide the sole referred dispute by the parties after conducting proceeding as envisaged in the Arbitration Act, 1940 and there must be an arbitration agreement; and that there was a dispute under agreement and that proceedings were conducted by the arbitrator.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction was meant to correct the errors apparent on the face of record and scope of such jurisdiction was narrower.

Sultan Mehmood Dar, for Petitioners.

YLR 2014 LAHORE HIGH COURT LAHORE 1639 #

2014 Y L R 1639

[Lahore]

Before Shoaib Saeed, J

IMAM BAKHSH---Petitioner

Versus

Mst. AMEERAN MAI and 3 others---Respondents

Writ Petition No.4440 of 2011, heard on 3rd December, 2013.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 1---Constitution of Pakistan, Art. 199---Constitutional petition---Production of additional evidence---Scope---Witnesses who were required to be produced were material witnesses with regard to the document under challenge---Deposition of said witnesses were essential for a just and proper decision in resolving real controversy between the parties---No illegality or infirmity had been pointed out in the impugned orders passed by the courts below---Constitutional petition was dismissed in circumstances.

Messrs Bata Shoe Company and 2 others v. Muhammad Arshad Siddiqui and another 1991 SCMR 1775; Rahim Bakhsh and another v. Civil Judge Lodhran and 3 others 1985 CLC 387; and Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Mst. Balqees Akhtar v. Additional District Judge and others 2013 MLD 1686 ref.

Messrs Bata Shoe Company and 2 others v. Muhammad Arshad Siddiqui and another 1991 SCMR 1775; Rahim Bakhsh and another v. Civil Judge Lodhran and 3 others 1985 CLC 387 and Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 distinguished.

Mian Muhammad Jamal for Petitioner.

Mian Muhammad Asif for Respondent.

Date of hearing: 3rd December, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1663 #

2014 Y L R 1663

[Lahore]

Before Mahmood Ahmad Bhatti, J

ABDUL RASHEED---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION BAIT MEER HAZAR, DISTRICT MUZAFARGARH---Respondent

Writ Petition No.13262/H of 2013, decided on 6th November, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 491, 498 & 561-A---Penal Code (XLV of 1860), S.342---Police Order (22 of 2002), Art.155---Constitution of Pakistan, Arts.9 & 199---Constitutional petition---Habeas corpus---Recovery of detenue---Bail, grant of---Registration of case---Both the detenus were recovered by bailiff appointed by High Court from illegal custody of police---Plea raised by authorities was that detenus were required in an already registered criminal case---Validity---No person, under the provision of Art.9 of the Constitution, could be deprived of life or liberty, saved in accordance with law---Arrest of one detenu and confinement of other were tainted with mala fides---High Court in exercise of powers under Art.199 of the Constitution, as well as under Ss.498 & 561-A, Cr.P.C. admitted arrested detenu to bail in the case registered with police station concerned---High Court directed District Police Officer to register case under S.342, P.P.C. and under S.155 of Police Order, 2002, against delinquent police officials and set both the detenus at liberty---High Court further directed to ensure that delinquent police officials would not coerce petitioner either to make a compromise or to do anything giving impression that he was being forced to withdraw the F.I.R.---Petition was allowed accordingly.

Mr. Mumtaz Hussain Malik for Petitioner.

Zafarullah Khan Khakwani, A.A.-G., Shaukat Ali, Inspector/S.H.O., Muhammad Tanvir, ASI/I.O. and Imran 1808-C, Police Station Bait Meer Hazar with Muhammad Rafique, detenu for the Respondent.

Sana Ullah, Bailiff.

YLR 2014 LAHORE HIGH COURT LAHORE 1675 #

2014 Y L R 1675

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL RASHEED and others---Appellants

Versus

KHIZAR HAYAT and others---Respondents

R.S.A. No.29 of 2001, decided on 21st November, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Cancellation of sale deed by the revenue hierarchy---Scope---Contention of defendants was that agreement to sell was not signed by the vendee---Suit was decreed concurrently---Validity---Registered sale deed for the sale and grant of land by the Collector was in favour of defendant---Cancellation of sale deed was not within the jurisdiction of revenue hierarchy---Plaintiffs had performed their part while making payment---Irrevocable registered power of attorney by the defendant in favour of attorney was on record---Registered agreement to sell by the attorney in favour of plaintiffs existed---No suit had been filed by the defendants for cancellation of such documents---No defect in the findings of facts recorded by the courts below was found---Appeal was dismissed in circumstances.

Province of the Punjab through District Officer, Toba Tek Singh and others' case 2008 SCMR 749 and Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 rel.

Malik Amjad Pervaiz for Appellants.

Malik Muhammad Akram Khan Awan for Respondents.

Dates of hearing: 20th and 21st November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1686 #

2014 Y L R 1686

[Lahore]

Before Arshad Mahmood Tabbasum, J

MUHAMMAD ARSHAD---Petitioner

Versus

JUDGE FAMILY COURT, KOT ADDU and another---Respondents

Writ Petition No.5647 of 2011, heard on 21st November, 2013.

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

----Ss. 10 (4) & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Dissolution of marriage on the basis of khula---Scope---Contention of husband was that Family Court was bound to pass decree for dissolution of marriage on the basis of khula directing the wife to return the benefits she had derived in lieu of said decree---Validity---Decree for dissolution of marriage on the basis of khula was passed in lieu of dower with the observation that parties were at variance with regard to dower and same would be resolved after recording evidence of both the parties---Issues were framed and parties had been put to trial---Dispute with regard to dower would be resolved in due course of time and decree passed in favour of wife had neither any legal infirmity nor was violative of any law---Constitutional petition was dismissed in circumstances.

Aqeel Akhtar Zaidi for Petitioner.

Khadim Nadeem Malik for Respondents.

Date of hearing: 21st November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1726 #

2014 Y L R 1726

[Lahore]

Before Umar Ata Bandial, C J and Shezada Mazhar, J

Mian PARVAIZ RAFI and 6 others---Appellants

Versus

ABDUL AZIZ through L.Rs. and others---Respondents

Regular First Appeal No.171 of 1990, decided on 15th January, 2014.

Partnership Act (IX of 1932)---

----S. 14---Specific Relief Act (I of 1877), S.8---Suit for possession of immovable property---Contention of plaintiff was that suit property was obtained by him through lease deed whereas defendants contended that same was vested in the partnership firm and plaintiff was agent of the same---Suit was dismissed by the Trial Court---Validity---Plaintiff had failed to produce evidence on record with regard to business and any source of income for payment of lease money as well as construction cost of suit property---No document had been placed on record to establish independent business---Lease money as well as construction cost was met by the firm---Property acquired with the money of firm would become the property of the firm---Partnership firm itself was not a legal entity---Suit property was to be leased in the name of either one or all of the partners and same was in the name of plaintiff as agent of firm---Plaintiff had admitted the possession of defendants---Suit filed by the plaintiff was rightly dismissed by the Trial Court---Appeal was dismissed in circumstances.

2001 CLC 1332; 1989 CLC 2070; 1989 MLD 4633; PLD 1986 SC 519; PLD 1968 Kar. 657; 2002 YLR 2723; PLD 1998 Kar. 348; PLD 1966 (WP) Karachi 52; AIR 1952 Pun. 284; PLD 1973 Lah. 356; PLD 1957 (WP) Karachi 557; AIR 1935 Lah. 350; AIR 1959 Rajasthan 140; PLD 1972 SC 25; 2007 YLR 2689 and PLD 1973 SC 214 ref.

Sayed Hassanally Shah v. Messrs Engineering & Co., Hyderabad and others PLD 1966 (WP) Kar. 52; Debi Parshad v. Jai Ram Dass and others AIR 1952 Pun. 284; Commissioner of Income Tax, Lahore Zone (West Pakistan), Lahore v. Messrs Jamal ICE Factory, Multan PLD 1973 Lah. 356; Motal Bai v. Abdul Aziz and others PLD 1968 Kar. 635 rel.

Maqbool Elahi Malik, and Umer Riaz for Appellants.

Muhammad Saleem Shahnazi for Respondents Nos. 1 to 5.

Date of hearing: 4th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1748 #

2014 Y L R 1748

[Lahore]

Before Shujaat Ali Khan, J

RASHID AHMAD and others---Petitioners

Versus

ALLAH DITTA and others---Respondents

Civil Revision No.724-D of 2013/BWP, decided on 1st October, 2013.

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

----S. 42---Suit for declaration---Limitation---Gift deed---Plaintiff alleged that gift deed in favour of defendants was result of fraud and forgery---Validity---Mere assertion of fraud or forgery was not sufficient, plaintiff should be specific (in his averments)---Suit property was admittedly in possession of defendants but plaintiff did not seek possession as consequential relief---Beneficiary of a document was bound to establish its execution but burden to prove shifted to the other side (party) who alleged fraud or forgery---Plaintiffs filed suit 35 years and 27 years after impugned mutations were sanctioned---Suit was barred by limitation---Donor and mother (prede-cessor) of plaintiffs lived long after impugned gift mutation but none of them challenged mutation in favour of defendants; it was incumbent on plaintiffs to establish fraud---Long-standing entries in revenue record carried presumption of correctness unless proved otherwise---Defendants had been in possession of suit-land for four decades---Concurrent findings could not be disturbed in casual manner---Revision was dismissed.

Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497; Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849; Barkat Ali through L.Rs. and others v. Muhammad Ismail through L.Rs. 2002 SCMR 1938; Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281 and Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386 distinguished.

Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Guldar Khan v. Isa Khan through L.Rs and others 1993 SCMR 2099; Aadut v. Noor Ahmad 2012 MLD 802; Mukhtar Ahmad and 4 others v. Taj Din and others 2012 MILD 873; Muhammad Bakhsh and 15 others v. Allah Wasayia and 2 others PLD 2007 Lah. 185; Muhammad Hassan and others v. Dur Marjan and 14 others 2005 CLC 118; Muhammad Mian v. Syed Shamimullah and 2 others PLD 1993 Karachi 146 and Said Rasool v. Muhammad Tufail 1989 MLD 165 ref.

Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222; Muhammad Miskeen and others v. Noor Muhammad and others 2011 SCMR 808; Lal Khan through L.Rs v. Muhammad Yousaf through L.Rs. PLD 2011 SC 657; Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

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

----Art. 117---Allegation of fraud---Burden of proof---Shifting of---Beneficiary of a document was bound to establish its execution but burden to prove shifted to the other side (party) who alleged fraud or forgery.

Mazloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571 rel.

Ch. Naseer Ahmad for Petitioners.

Ahmad Mansoor Chishti for Respondents Nos.1 and 2.

Respondent No.3 ex parte.

Muhammad Mushtaq Aazami for Respondents Nos. 4-a to 4-f.

YLR 2014 LAHORE HIGH COURT LAHORE 1779 #

2014 Y L R 1779

[Lahore]

Before Rauf Ahmad Sheikh, J

KHUSHI MUHAMMAD---Petitioner

Versus

MUZAMMAL KHATOON and 10 others---Respondents

Civil Revision No.884 of 2012, decided on 18th March, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2, 3 & Appendix B, Form No. 4---Limitation Act (IX of 1908), Art.159---Penal Code (XLV of 1860), S.489-F---Institution of summary suit on negotiable instrument---Dishonouring of cheque issued as guarantee---Suit for recovery of money---Application for leave to appear and defend the suit---Limitation--Plaintiffs-respondents filed suit for recovery of money wherein an application for permission to appear and defend the suit was moved by the defendant-petitioner which was dismissed by the Trial Court---Contention of defendant-petitioner was that he was not served in accordance with law---Validity---Report of the Process Server did not show that he delivered the copy of the plaint and other documents appended therewith---In a suit under O. XXXVII, R.2, C.P.C., the summons was to be issued on Form IV of Appendix-B and it was imperative that the copy of the plaint with annexures should be sent under O. XXXVII, R. 2(1), C.P.C. along with the summons and without fulfillment of that legal requirement, the service was not complete and the period of limitation did not start---Copy of the plaint did not appear to have been sent along with the summons, the period of ten days prescribed for submission of the application for leave to appear and defend the suit under Art. 159 of the Limitation Act, 1908 did not start---Defendant-petitioner did not owe any amount directly and he had issued the cheque as surety for his son, who was involved in a case under S.489-F, P.P.C. and according to the agreement deed executed between the parties, the cheque was issued as guarantee and the predecessor of the plaintiffs-respondents also reserved the right to move an application for cancellation of the bail granted to son of the defendant-petitioner---Whether the suit under O. XXXVII, R. 2, C.P.C. was maintainable and the defendant-petitioner was in fact liable to make the payment required adjudication and verdict of the Trial Court and such aspect of the matter alone was sufficient to allow the application submitted by the defendant-petitioner---When important questions of fact and law emerged, then the court must exercise its jurisdiction under O. XXXVII, R. 3, C.P.C. and should not hesitate in granting the leave to appear and defend the suit---Trial Court erred in dismissing the application by ignoring the important legal aspects of the matter and committed material irregularity causing gross miscarriage of justice---Impugned order was not sustainable under the law---Revision petition was accepted and impugned order was set aside and leave to appear and defend the suit was granted accordingly.

Asad Mahmood Abbasi for Petitioner.

Raja Tahir Masood for Respondents.

YLR 2014 LAHORE HIGH COURT LAHORE 1797 #

2014 Y L R 1797

[Lahore]

Before Mehmood Maqbool Bajwa, J

INAYAT BEGUM and 9 others---Petitioners

Versus

SHAH MUHAMMAD and others---Respondents

Writ Petition No.21633 of 2012, decided on 21st November, 2012.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 115--Constitutional jurisdiction of High Court to interfere with order of revisional court---Scope---High Court would not examine legality and validity of such order except if found same to be without jurisdiction, nullity in eye of law or illegal patently.

Hafiz Muhammad Qasim v. Mst. Soorat Bibi and others 2000 YLR 2606 rel.

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

----O. XVII, R. 3---Failure of defendant to cross-examine plaintiff's witnesses---Order of Trial Court closing defendant's right to cross-examine witnesses---Validity---Record showed that adjournment on previous date had not been granted at instance of defendant, but had been granted at plaintiff's request due to absence of his witnesses---Provisions of O.XVII, R. 3, C.P.C. would not apply in circumstances.

Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361 rel.

----O. XVII, Rr. 1(3) & 3---Provisions of O. XVII, Rr. 1(3) & 3---Applicability---Scope---Parameters for application of R.1(3) & R. 3 of O. XVII, C.P.C. were entirely different---Principles.

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

----O. XVII, Rr. 1(3) & 3---Constitution of Pakistan, Art. 199---Constitutional petition---Closure of defendant's right to cross-examine plaintiff's witnesses---Defendant's plea was that provisions of O.XVII, R. 3, C.P.C. were not applicable as adjournment on previous date (prior to date on which impugned order was passed) was not granted at his instance---Order of Trial Court upheld by revisional court---Validity---Record showed that plaintiff's witnesses remained in attendance on each date of hearing, but each time defendant got adjournments on one pretext or other---Defendant on previous date of hearing had paid partial diyat money to witnesses---Trial Court in impugned order had noted down conduct of defendant and his counsel and had closed his right to cross-examine witnesses on his failure to do so---Defendant during arguments could not show any reason to justify repeated omission and refusal of his counsel to cross-examine witnesses---Defendant by his words and conduct had made impossible for Trial Court to proceed with trial of suit---Provisions of O. XVII, R.1(3), C.P.C. fully attracted to the present case, thus, impugned order would be deemed to have been passed thereunder---Defendant on relevant date had filed application under O. VII, R. 11, C.P.C. with intent to avoid consequences on account of his refusal to cross-examine witnesses---Defendant had not approached High Court with clean hands, thus, was entitled to its indulgence---Constitutional petition was dismissed in circumstances.

Pirzada Amir Hussain and others v. Mrs. Shamim Shah Nawaz and others 1987 SCMR 249; Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others 2002 CLC 1111; Raja Binyamin v. District and Sessions Judge, Lahore with Powers of Election Tribunal Sheikhupura and 7 others 2003 YLR 1217 and Asim Butt v. Additional District and Sessions Judge Ferozewala and 11 others 2003 MLD 1168 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction was discretionary and equitable---Exercise of such jurisdiction was governed by maxim "he who seeks equity must come with clean hands".

Raja Binyamin v. District And Sessions Judge, Lahore With Powers of Election Tribunal Sheikhupura And 7 Others 2003 YLR 1217 rel.

Najaf Muzammil Khan for Petitioners.

Abdul Rasheed Qureshi, Advocate for Respondent No.1.

YLR 2014 LAHORE HIGH COURT LAHORE 1811 #

2014 Y L R 1811

[Lahore]

Before Sh. Najam-ul-Hasan, J

Ms. FARRAH NOOR and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos. 4256-B and 4255-B of 2013, decided on 14th June, 2013.

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

----S. 498---Customs Act (IV of 1969), Ss.2(s), 16, 18, 32(1) & (2), 156(1), (9), (14), & (82) & 178---Ad interim pre-arrest bail, confirmation of---Preparing false inspection report--- Female customs inspector accused of preparing a false inspection report of a container regarding its contents, causing huge loss to the Government exchequer--- Customs department and investigating officer were unable to produce any original documents/report containing signatures of accused---Accused was a lady and a government servant having service record of 25 years and apparently there was no criminal case against her except the present one---Offence alleged against accused was punishable with imprisonment of up to three years or fine or both, as such it did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was also not required for any further investigation---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

----S. 498---Customs Act (IV of 1969), Ss.2(s), 16, 18, 32(1) & (2), 156(1), (9), (14), & (82) & 178---Ad interim pre-arrest bail, confirmation of---Evasion of customs duty---Company belonging to accused lady allegedly cleared a container from Customs in connivance with a customs inspector causing a huge loss to the Government Exchequer--- Accused subsequently paid the relevant duty, penalty and even the fine and her container had been released by Customs department---Clearing agent who had submitted documents in place of accused was still at large---Offence alleged against accused was punishable with imprisonment of up to three years or fine or both, as such it did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was also not required for any further investigation---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

Muhammad Inayat Ullah Cheema for Petitioner with Petitioner in

person

Mian Abdul Ghaffar for Petitioner with Petitioner in person. (in Criminal Miscellaneous No.4255-B of 2013).

Nadeem Mahmood Mian, Legal Advisor for Customs Department with Iftikhar Ali Shah Inspector/Investigator for Respondents.

YLR 2014 LAHORE HIGH COURT LAHORE 1814 #

2014 Y L R 1814

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

ABDUS SATTAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.2320, 2338 and Capital Sentence Reference No.65-T of 2010, heard on 28th January, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 353---Anti-Terrorism Act (XXVII of 1997), Ss.7, 21(L) & 34---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism, common intention---Appreciation of evidence---Benefit of doubt---Matter was reported to the Police without any loss of time---Occurrence had taken place at night time, but prosecution had not been able to prove the source of light at the time of occurrence---Presence of the eye-witnesses at the place of occurrence at the relevant time, was highly doubtful---Testimony of prosecution witness caused doubt in the prosecution version, when he deposed before the court that acquitted accused persons admitted their participation in the alleged occurrence through extra-judicial confession along with accused persons---Medical evidence had not been found in line with the ocular account in toto---Such fact had caused doubt in the prosecution case---Presence of the prosecution witnesses, also caused doubt as to their conduct at the place of occurrence---Delayed dispatching of the empties as well as the crime weapons, had made the credibility of the positive report of the Ballistic Expert dubious---Recovery of motorcycle, allegedly being driven by accused at the time of his arrest, carried no value, because the whole record, except the memo did not convey/prove the same to have been used in the commission of crime---Prosecution having failed to prove its case against accused persons beyond shadow of reasonable doubt, impugned judgment of conviction and sentence, passed by the Trial Court, were set aside; they were acquitted of the charges imputed against them, by extending them benefit of doubt, and were set at liberty, in circumstances.

Saindad and others v. State 1972 SCMR 74; Nawaz Ali and others v. The State 1981 SCMR 132; Tariq Pervaiz v. The State 1996 SCMR 1345; Sherral alias Sher Muhammad v. The State 1999 SCMR 697, Muhammad Aslam Khan v. The State 1999 SCMR 172; Ali Sher v. The State 2008 SCMR 707 and Talib Hussain v. The State 2009 SCMR 825 ref.

Mian Muhammad Sikandar Hayat for Appellant No.1.

Munir Ahmad Bhatti for Appellant No.2.

Ehtisham Qadir Shah for the Complainant.

Khurram Khan, Deputy Prosecutor General for the State.

Date of hearing: 28th January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1847 #

2014 Y L R 1847

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

KHALID MAHMOOD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4157-B of 2013, decided on 22nd January, 2014.

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, grant of---Deeper appreciation of evidence---Technical grounds---Accused sought bail on the ground that there was negative report of Arms Expert and crime weapon was recovered at his instance from house of co-accused---Validity---Accused was principal accused and he could not be let off on technical grounds like negative report of Arms Expert and recovery of crime weapon at his instance from house of co-accused---Such were pieces of corroborative evidence, connected with material evidence and had no legal effect, if considered independently, from eye witnesses account and medical evidence---Statement of prosecution witness recorded under section 161, Cr.P.C. was available on record which supported allegations contained in F.I.R.---Allegations were further supported by postmortem of deceased---Bail was refused in circumstances.

Amir Masih's case 2013 SCMR 1524 ref.

Rizwan Ali v. State and others PLJ 2013 SC 762 rel.

Syed Badar Raza Gillani for Petitioner.

Ch. Muhammad Akbar, Deputy Prosecutor General with Nazar Abbas, S.I. for Respondent.

Sh. Muhammad Faheem for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 1857 #

2014 Y L R 1857

[Lahore]

Before Mazhar Iqbal Sidhu and Sayyed Mazahar Ali Akbar Naqvi, JJ

KAMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.239 of 2007 and Murder Reference No.166 of 2007, heard on 25th September, 2012.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Name of accused figured with the role of inflicting firearm injury with pistol .30-bore at the deceased in promptly lodged F.I.R.---Parties being known to each other; and occurrence having taken place in the evening when ordinarily in the hot days of June, the sun set at 7.15 P.M., therefore, there was no possibility of mis-identification---Both the prosecution witnesses had remained coherent with each other on salient features of the prosecution version; they were subjected to lengthy cross-examination, but defence had failed to shatter their testimony---Pen-picture of the incident, with regard to its time and manner put forth by prosecution witnesses, straightway appealed to reasons---Prosecution witness, was proved to be present at the place of occurrence at the relevant time---Nature and dimension of injury inflicted upon the deceased lent support to the prosecution case with regard to weapon of offence---Defence version, advanced by accused that, the deceased and the complainant had tried to commit dacoity, and that accused had received injury at the hands of deceased, was equivocal---Prosecution version of the ocular account, found full support from medical evidence with regard to time of occurrence and locale/seat of injury---Evidence on record had proved that accused was previously involved in three criminal cases---Weapon of offence i.e. pistol .30-bore, used by accused, was a lethal weapon, and one shot made by such gun was sufficient to cause death in ordinary course of nature, which had happened in the present case---Chemical Examiner report showed that earth collected by Investigating Officer, was stained with blood, which had straightway supported the prosecution case---No overt act was ascribed to acquittal of co-accused---Trial Court while extending benefit of doubt to said co-accused, had acquitted them of the charge, their acquittal, in no way would favour case of accused---Normal sentence for culpable homicide amounting to murder, was sentence of death---Prosecution witnesses having not been tested on the touchstone of "Tazkia-tul-Shahood", Trial Court was justified to convict accused under S.302(b), P.P.C. as Tazir---Prosecution case having fully been proved against accused, Trial Court was well-justified in passing conviction against accused and sentencing him to death as he had deprived the complainant from their young lad.

(b) Criminal trial---

----Relationship of prosecution witness with deceased---Effect---Mere close relationship of the prosecution witness with deceased, could not discard his testimony, if even otherwise, same was trustworthy appealing to reason; and corroborated by any independent circumstance.

----Recovery of offensive weapon---Evidentiary value---Recovery of offensive weapon, was a corroborative piece of evidence; and it was never considered as mainstay of prosecution for conviction or acquittal of any person, in isolation; and conviction could be passed, provided ocular account would leave no room for doubt about involvement of the culprit in commission of offence, and medical evidence, fully corroborated the same.

Abdul Ghaffar v. The State 2000 SCMR 919 and Raja Sarfraz Azam's case 2002 YLR 1932 rel.

Zafar Iqbal Bhatti-A for Appellant.

Tariq Javed, DDPP for the State.

Sheraz Mahmood for the Complainant.

Date of hearing: 25th September, 2012.

YLR 2014 LAHORE HIGH COURT LAHORE 1881 #

2014 Y L R 1881

[Lahore]

Before Sadaqat Ali Khan, J

MANSOOR AHMAD alias PAPPI---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No.210 of 2013, heard on 12th December, 2013.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Co-accused had been declared proclaimed offender by the Trial Court, as during the trial he remained absent---Prosecution had failed to prove the motive against accused---Ariel firing was made in the marriage party; no enmity and dispute of civil or criminal nature was pending between the parties; and nothing was on record that any quarrel or hot words were exchanged between accused and the deceased before occurrence---Recovery of pistol .30 bore was not proved as prosecution did not produce report of Forensic Science Laboratory---According to doctor deceased in injured condition was not able to make statement as he was in a coma---Statement of prosecution witness with regard to dying declaration of deceased, was a concocted story manoeuvred by the prosecution to strengthen its case---Prosecution having failed to bring home guilt of accused to the hilt, Trial court was not justified in convicting accused while basing upon untrustworthy/uncorroborated evidence produced by interested witnesses, which even otherwise was weakest type of evidence, especially when unreliable story was deposed by prosecution witnesses---Prosecution had failed to bring on record confidence-inspiring evidence against accused; and conviction passed by Trial Court was against all canons of law recognized for dispensation of criminal justice---Benefit of doubt was extended in favour of accused, conviction and sentence recorded by the Trial Court, were set aside, and accused was acquitted of the charge, and was directed to be released, in circumstances.

Tahir Khan v. The State 2011 SCMR 646; Farman Ahmed v. Muhammad Anayat 2007 SCMR 1825; Muhammad Ameen v. The State PLD 2003 Lah. 270 and Muhammad Shah v. The State 2010 SCMR 1009 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of every doubt was to be extended in favour of accused---Courts ought to let off 100 guilty, but should not convict one innocent person.

Hafiz Shahid Nadeem Kaloon for Appellant.

Muhammad Umair Mohsin for Respondents.

Khalid Pervaiz Opal, D.P.G. for the State.

Date of hearing: 12th December, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 1898 #

2014 Y L R 1898

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.409 of 2013 and Criminal Miscellaneous No.1 of 2012, decided on 21st October, 2014.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.337-A(ii)---Causing Shajjah-i-Mudihah---Suspension of sentence---Accused who was convicted under S.337-A(II), P.P.C., was sentenced to three years' R.I. with Arsh of five pre cent of Diyat---Sentence awarded to accused was short, hearing of appeal filed by accused against his conviction and sentence, in the near future was not insight; and the possibility of serving the whole sentence by accused during pendency of appeal, could not be ruled out---Petition filed by accused for suspension of sentence during pendency of his appeal, was allowed and sentence imposed on accused, was suspended till final decision of his appeal; and he was admitted to bail, in circumstances.

Manzoor Ahmed v. Fazal Ahmed and 3 others 2013 SCMR 1403 distinguished.

Abdul Hameed v. Muhammad Abdullah 1999 SCMR 2589 and Nazeer Ali alias Nazeer v. The State 2011 YLR 403 rel.

Ch. Muhammad Akhtar Minhas, for Petitioner.

Qazi Ibrar Hassan, for the Complainant.

Ch. Qaisar Mushtaq, ADDPP with Muhammad Tavir A.S.-I. for the State.

YLR 2014 LAHORE HIGH COURT LAHORE 1921 #

2014 Y L R 1921

[Lahore]

Before Muhammad Tariq Abbasi, J

GULZAR HUSSAIN SHAH and others---Petitioners

Versus

Mst. BIBI CHANGI and others---Respondents

Civil Revision No.531-D of 2003, heard on 8th May, 2014.

Islamic Law---

----Gift---Essentials---Declaration of gift by donor, acceptance by donee and delivery of possession were three essentials of gift---All elements of a valid gift had been proved in the present case, in favour of defendant through confidence-inspiring evidence---Donor remained alive for 12 years after execution of gift deed and never challenged the same in his life time---No evidence existed to indicate that donor was a sick or infirm person at the time of execution of gift deed or that such deed had been obtained through fraud, coercion or undue pressure---Donor did not revoke the gift either---Fraud could easily be asserted but to prove the same was very difficult---Both gift deeds were registered documents, presumption of truth was attached to such documents unless such presumption was rebutted through strong and cogent evidence---Plaintiffs failed to bring cogent evidence---Concurrent findings of courts below did not warrant interference---Revision was dismissed.

Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Ghulam Ghous v. Muhammad Yasin and another 2009 SCMR 70; Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462; Abbas Ali Shah and 5 others v. Ghulam Ali and another 2004 SCMR 1342 and Muhammad Ali Khan v. Muhammad Ashraf 1989 SCMR 1415 rel.

Shaki Muhammad Kahut for Petitioners.

Ch. Imran Hassan Ali for Respondents.

Date of hearing: 8th May, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1947 #

2014 Y L R 1947

[Lahore]

Before Abdus Sattar Asghar and Muhammad Tariq Abbasi, JJ

NISAR AHMAD alias SARU---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.76-J and Murder Reference No.117-RWP of 2009, heard on 15th May, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Incident was a broad daylight occurrence, which had taken place on the road side, and was witnessed by prosecution witnesses who had established their presence at the spot; to whom no enmity or grudge against accused had been suggested---Was not believable nor expected that actual and real culprit had been let off and accused had been substituted without any reason or cause---Matter having been reported to the Police there was promptly, there was no chance of any deliberation or consultation---Accused was a desperate criminal---Presence and availability of both the complainant and prosecution witness in the bus in question and at the spot, which was natural, could not be held objectionable---Complainant being real brother, and prosecution witness being real mother of deceased, were closely related to each other and the deceased, but the defence had failed to suggest any enmity or grudge against accused---Due to mere relationship, their evidence could not be discarded, which otherwise was trustworthy and confidence-inspiring---Injuries on the body of the deceased had been found to be of same description and locale as narrated in the F.I.R., and the statements of prosecution witnesses---Defence version that medical evidence and ocular account contradicted each other had no weight---Empties recovered from the spot and recovery of Kalashnikov from accused were sealed and were sent to Forensic Science Laboratory, report of which was positive---Accused after commission of offence fled away, and was arrested after two months and ten days---Statements of the prosecution witnesses, especially eye-witnesses were concurrent, corroborated and confidence-inspiring---Minor discrepancies being casual in nature and sign of natural deposition, were ignorable---Defence had itself discarded its defence version---Impugned judgment, not suffering from any legal infirmity, warranted no interference---Desperate behaviour and act of accused, which resulted into death of two innocent persons, without any fault, did not entitle accused for any leniency or concession in sentence.

Saeed and 2 others v. The State and another 2003 SCMR 747; Haji v. The State 2010 SCMR 650; Farooq Shah v. The State 2013 PCr.LJ 688; Muhammad Aslam and others v. The State and another PLD 2009 SC 777; Muhammad Javaid v. The State 2007 SCMR 324 and Khurram Malik and others v. The State and others PLD 2006 S C 354 and Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660 rel.

Basharat Ullah Khan and Syeda B.H. Shan for Appellant.

Raja Shakeel Ahmad for the Complainant.

Mirza Muhammad Usman, D.P.G. for the State.

Date of hearing: 15th May, 204.

YLR 2014 LAHORE HIGH COURT LAHORE 1955 #

2014 Y L R 1955

[Lahore]

Before Arshad Mahmood Tabassum, J

AHMAD YAR KHAN and 3 others-Appellants

Versus

Hafiz MEHBOOB AHMAD---Respondent

Second Appeal against Orders Nos.20 to 63 of 2009. heard on 25th February, 2014.

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

----Ss. 13 & 15(6)---Limitation Act (IX of 1908), S.5---Ejectment of tenant---Appeal---Limitation---Condonation of delay---Fixation of fair rent with the concurrence of parties---Effect---Default in payment of rent---Scope---Contention of tenants was that they themselves had constructed disputed shops out of their own resources---Ejectment petitions were dismissed concurrently--- Validity--- Period of limitation would run from the date of preparation of copy and not from the date of delivery of the saute---Benefit of S.5 of Limitation Act, 1908 could not be extended as said provision of law was not applicable under S. 15(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 and period of limitation i.e. 30 days from the date of order appealed against had been provided under said section, delay could not be condoned in such appeals which were liable to be dismissed on such score alone---Disputed shops were constructed by the tenants from their own pockets---New tenancy was created rendering ejectment petition as infructuous due to fixation of fair rent with the concurrence of both the parties and no ejectment order could be passed---Both the courts below had correctly evaluated and appreciated evidence produced by the parties and correctly applied the law applicable thereto---Appeals were dismissed in circumstances.

Allah Dino's case 2010 SCMR 285; Ghulam Muhammad's case 2002 CLC 295; Muhammad Iqbal's case 2010 CLC 1493 and Messrs Mahmood Ahmad and sons PLD 1983 Quetta 36 rel.

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

----S. 15---Civil Procedure Code (V of 1908), S.100----Second appeal---Scope---Scope of second appeal was limited and High Court had to see whether the impugned judgment was contrary to law or usage having the force of law or that courts below had failed to determine some material question of law or usage having the force of law or had committed a substantial error or defect in the procedure prescribed by the law in force for time being.

Mirza Aziz Akbar Baig for Appellants.

Zahid Iqbal Kamboh for Respondent.

Date of hearing: 25th February, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 1967 #

2014 Y L R 1967

[Lahore]

Before Abdus Sattar Asghar, JJ

NATIONAL COLLEGE OF BUSINESS ADMINISTRATION AND ECONOMICS, LAHORE---Petitioner

Versus

HIGHER EDUCATION COMMISSION OF PAKISTAN and 2 others---Respondent

Writ Petitions Nos. 33634 of 2013 and 3113 of 2014, decided on 14th April, 2014.

(a) Interpretation of statutes---

----Harmonious construction, principle of---Applicability---Intention of law-maker is always gathered by reading the statute as a whole and meanings are given to each and every word of the whole statute by adopting a harmonious construction---While interpreting a particular provision of law, the Court should take into consideration the object for which it has been enacted---Interpretation of law should be made in the manner which may advance object and suppress the mischief, for law in question might have been enacted and not to construe in a manner which may defeat the object of law---Mere technicalities unless offering any insurmountable hurdle should ., not be allowed to defeat ends of justice---Interpretation whereby any portion of an enactment is rendered ineffective is not to be adopted when clear meaning can be given to such provision in harmonious manner.

Shahid Nabi Malik and another v. Chief Education Commissioner Islamabad and 7 others PLD 1997 SC 32; Muhammad Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225; Hafiz Abdul Waheed v. Mrs. Asma Jahangir PLD 2004 SC 219; D.G. Khan Cement Company Ltd. and others v. Federation of Pakistan and others 2004 SCMR 456 and Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 rel.

(b) Constitution of Pakistan---

----Arts.10-A & 199---Constitutional petition---Principles of natural justice---Due process of law---Condemned unheard---Petitioner institute was aggrieved of order passed by Higher Education Commission whereby permission to affiliate educational institutes had been withdrawn---Validity---Before issuing letter in question by Higher Education Commission neither any notice was issued to petitioner institute or affiliated educational institutions nor provided any opportunity of hearing to them and the same was violative of the principles of natural justice---Right of due process was a fundamental right of a person guaranteed under Art. 10-A of the Constitution---Letter issued by Higher Education Commission was illegal, contrary to principles of natural justice and violative of Art. 10-A of the Constitution, therefore, was untenable and liable to set aside---High Court directed that Higher Education Commission might take any legal action within its jurisdiction strictly observing due process of law and letter issued by the Commission was set aside---Petition was allowed in circumstances.

Syed Reza Ali, Sardar Taimoor Ali and Sardar Muhammad Ali for Petitioners (in Writ Petition No.33634 of 2013).

Barrister Muhammad Umar, Mufti Ahtesham-ud-Din Haider and Ms. Maria Chaudhry for Petitioners (in Writ Petition No.3113 of 2014).

Sajid Ijaz Hotiana for HEC.

Mian Irfan Akram Deputy Attorney General.

YLR 2014 LAHORE HIGH COURT LAHORE 1975 #

2014 Y L R 1975

[Lahore]

Before Shahid Jamil Khan, J

SAJID ZAIB---Petitioner

Versus

HARM ANEEQA and others---Respondents

Writ Petition No.2945 of 2013, decided on 23rd April, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and gold ornaments---Issue with regard to gold ornaments was not framed properly and evidence led by the parties was not focused on the dispute with regard to quantity and possession of the same---Findings recorded on the basis of available evidence and pleadings were at variance and incorrect--Jurisdiction exercised by the courts below suffered from incurable jurisdictional defects---Orders passed by the courts below on the issue of gold ornaments were set aside and case was remanded to the Trial Court with the direction to reframe the issue with regard to gold ornaments---Defendant-husband had failed to point out that findings recorded by the courts below with regard to recovery of maintenance allowance were against evidence---No jurisdictional defect was pointed out with regard to findings on maintenance allowance---Constitutional petition was dismissed to the extent of issue of maintenance allowance.

Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore v. Secretary, Ministry of Religious Zakat, Ushr and Minorities Affairs Government of Pakistan, Islamabad and 3 others 2009 SCMR 210 rel.

Muhammad Faisal Butt for Petitioner.

Ch. Muhammad Uffan Iftikhar for Respondent No.1.

YLR 2014 LAHORE HIGH COURT LAHORE 1986 #

2014 Y L R 1986

[Lahore]

Before Shoaib Saeed J

AMIR GHAUS---Petitioner

Versus

MUHAMMAD JAHANGIR IQBAL and 2 others---Respondents

R.S.A. No.21 of 2011, decided on 21st January, 2014.

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

----S.12---Civil Procedure Code (V of 1908), O. VI, R.1 & 5.100---Suit for specific performance of contract---Second appeal---Competency---Compromise by attorney on behalf of principal-Scope--Contention of defendant was that no power to compromise was delegated to the attorney and statement recorded on his behalf did not have any legal value---Suit was decreed concurrently on the basis of compromising statement recorded by the agent on behalf of principal---Validity---General power of attorney on the basis of which statement was recorded resulting into impugned judgments and decrees was valid and subsisting at the time when statement was made by the attorney-Plea that defendant was not aware with regard to statement recorded by the attorney was not raised in the pleadings-Party could plead a case if same had been made out by him in its pleadings---No evidence could be-led or looked into in support of plea which had not been taken in pleadings---Variation in pleadings and proof was not permissible in law---Principal could institute a suit to proceed against the delinquent . or through criminal proceedings agitate his grievance if fraud or misrepresentation was committed with him by the agent---Defendant did not append general power of attorney with the appeal and in absence of same no perverse findings could be given---Second appeal was only permissible if impugned decision was contrary to law or same had been rendered without deciding some material issue of law or there had been any error of procedure provided by law---None of such plea had been raised in the second appeal which was not maintainable---Scope of second appeal was limited---Value of 'subject matter was Rs. 5,00,000 only and second appeal was not competent---No uncertainty, vagueness or inconclusiveness was pointed out in the impugned judgments rendered by the courts below--Impugned judgments and decrees were well reasoned and in accordance with law---Second appeal was dismissed in circumstances.

Umair Ali Khan and others v. Raiz Rasool and others PLD ' 2013 SC 190; Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs and others PLD 2005 SC 705; Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and another PLD 2002 SC 71; Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341; Abdul Razzak v. Muhammad Yusuf and 3others 1984 CLC 1673; Messrs Doha Bank Limited v. Pangrio Sugar Mills Limited and 2 others 2003 CLD 661; Javed Igbal, and others v. Bashiran Begum, and others 2013 CLR 224; Mst. Mumtaz Danish v. .khtar Bibi and another 1988 CLC 2134; Mst. Shabana Irfan v. Muhammad Shafi Khan and others 2009 SCMR 40 and Pakistan Industrial Credit and Investment Corporation Ltd. v. Messrs Khairpur Sugar. Mills Limited and another PLD 2012 Sindh 324 ref.

Binyameen and 3 others v. Chaudhary Hakim and another 1996 SCMR 336; Mst. Shabana Irfan v. Muhammad Shafi Khan and others 2009 SCMR 40 ana Muhammad Yousaf v. Jalaluddin and another 1986 CLC 363 rel.

Umair Ali Khan and others v. Raiz Rasool and others PLD 2013 SC 190; Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs and others PLD 2005 SC 705; Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and another PLD 2002 SC 71; Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341; Abdul Razzak v. Muhammad Yusuf and 3 others 1984 CLC 1673; Messrs Doha Bank Limited v. Pangrio Sugar Mills Limited and 2 others 2003 CLD 661; Javed Igbal, and others v. Bashiran Begum, and others 2013 CLR 224 and Mst. Mumtaz Danish v. Akhtar Bibi and another 1988 CLC 2134 distinguished.

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

----S. 100---Second appeal---Scope---Scope of second appeal was limited---Second appeal was only permissible if impugned decision was contrary to law or same had been rendered without deciding some material issue of law or there had been any error of procedure provided by law.

Rana Shahzad Hussain Noon for Appellant.

Syed Muhammad Ali Gillani for Respondent No.1.

Ch. Muhammad Hussain Jahanian for Respondent No.2.

Farrukh Nasim Vice Chairman Market Committee.

Date of hearing: 21st January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2000 #

2014 Y L R 2000

[Lahore]

Before Mahmood Ahmad Bhatti, J

UZMA RANI---Petitioner

Versus

REGISTRAR, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 2 others---Respondents

Writ Petition No.6065 of 2013, decided on 11th February, 2014.

Constitution of Pakistan---

----Art. 199--- Constitutional petition---Equivalence of qualification---Qualification of Ashahadat-ul-Alimmiya Fil Aloom-ul-Islamia Wal Arabia from Wafaqul-Madaris (AI-Arabia)---Requirement to pass English as subject of B.A. level in order to avail the benefit of equivalence---Scope---Petitioner (candidate) qualified Ashahadat-ul-Alimmiya Fil Aloom-ul-Islamia Wal Arabia from Wafaq-ul-Madaris (Al-Arabia)---Petitioner (candidate) on the basis of such qualification was granted equivalence certificate and her qualification was declared equivalent, to M.A. Arabic/Islamic Studies subject to passing two additional subjects other than Arabic and Islamic Studies at the level of B.A.---Petitioner (candidate) qualified the additional subjects of Punjabi and Education and thereafter enrolled herself in M.A. (Urdu)---While appearing in the examination of M.A. (Urdu), her roll number was withheld on account of the fact that she had not passed the English paper at B.A. Level---Validity---Petitioner (candidate) had embarked upon the journey suggested in the equivalence certificate and had successfully qualified in Punjabi, Education, Islamic Studies and Pakistan Studies in the examination, result card in such respect had also been issued---Petitioner had already crossed the rubicon, therefore the University could not impose a new conditionality---Respondent officials had attempted to place curbs and fetters on the right of the petitioner (candidate) to study further in order to better/improve her prospects in life---Condition of passing English subject was intended for the holders of Shahadatul San via Sanad only--Such condition could by any stretch of imagination be read into the equivalence certificate regarding the holders of Ashahadat-ul-Alimmiya Fil Aloom-ul-Islamia Wal Arabia Sanad---Actions of the respondent-University to withhold the roll number of the petitioner (candidate) and prevent her from appearing in M.A. Urdu examination amounted to sitting over and holding back her result card---Impugned actions were declared illegal, unlawful, without lawful authority and of no legal effect---Respondent-University was directed to issue result card to the petitioner (candidate) forthwith---Constitutional petition was allowed.

Muhammad Younis Iqbal and another v. District Returning Officer, (District and Sessions Judge), Gujranwala and 9 others PLD 2005 Lah. 695; Naeem Ullah Khalid and another v. Dr.Hafiz Mushtaq Ahmad and 3 others 2007 YLR 1418 and Miss Sidra Naeem v. Vice-Chancellor, Bahauddin Zakariya University Multan and 4 others 2012 MLD 1824 distinguished.

Khurshid Ahmad Khan for Petitioner.

Malik Muhammad Tariq Rajwana, Advocate/Legal Advisor of the Respondent.

YLR 2014 LAHORE HIGH COURT LAHORE 2021 #

2014 Y L R 2021

[Lahore]

Before Shahid Jamil Khan, J

MUHAMMAD ASAD---Petitioner

Versus

ABDULLAH TAHIR and others---Respondents

Civil Revision No.300 of 2014, decided on 1st April, 2014.

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

---O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 42---Transfer of Property Act (IV of 1882), S. 52---Suit for declaration---Application for grant of temporary injunction---Ingredients---Lis pendence, doctrine of---Applicability---Scope---Applicability of doctrine of 'lis pendence' was not directly relevant for granting or refusing an interim injunction---Rejection or grant of interim injunction could not affect the applicability of doctrine of 'lis pendence'---Principle of 'lis pendence' would carry the nature of status quo with regard to the properties which were in litigation to save the rights of plaintiff---Plaintiff had to make out that prima facie case existed at the time of hearing an application, balance of convenience was in his favour and he would suffer an irreparable loss on refusal of the injunction---Plaintiff was not in possession of suit properties---Power of attorney was not misused to transfer the suit properties in the name of defendant---No documentary proof was available on record to show that plaintiff had paid any amount to purchase suit properties in the name of defendant---Mere payment of tax was not sufficient to make the case of plaintiff as prima facie arguable---Defendant would suffer an irreparable loss if temporary injunction was granted---Balance of convenience was also in favour of defendant---Rights of plaintiff would be protected under the doctrine of 'lis pendence' despite rejection of temporary injunction---Ingredients of grant of temporary injunction i.e. prima facie case, balance of convenience and irreparable loss were not available in favour of plaintiff from the facts and evidence on record---Absence of even one ingredient might not justify the grant of temporary injunction---No irregularity in the exercise of jurisdiction while passing the impugned orders was pointed out---Revision was dismissed in limine.

Mst. Nazir Begum and 2 others v. Muhammad Tahir and another 2005 CLC 925; Fateh Muhammad v. Muhammad Hanif and another PLD 1990 Lah. 82 and Rana Imran and another v. Fahad Noor Khan and 2 others 2011 CLC 933 ref.

Muhammad Bakhsh v. Hakim and others 2008 YLR 277; M.Y. Corporation (Private) Ltd. v. Messrs Erum Developers and 2 others PLD 2003 Kar. 222 and Munawar Hussain and others v. Messrs Nisar & Co. and others 1976 SCMR 239 rel.

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

----S. 115---Revision---Scope---Interlocu-tory order---Powers under S.115, C.P.C. were supervisory and interference could be made where interlocutory order was arbitrary, capricious and against well settled principles of law---Revisional jurisdiction could not be invoked against conclusions of law or facts not affecting the jurisdiction of courts.

Mustafa Nawaz Khokhar v. Federal Board of Intermediate and Secondary Education, Islamabad PLD 2003 SC 154 and Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161 rel.

----S.52---'Lis pendence' doctrine of---Applicability--- Conditions--- Condition precedent to attract the principle of 'lis pendence' were that the suit or proceedings should be in a court of law; that the court must have the jurisdiction over the person or property; that the property must be specifically described and should be affected by termination of the suit or proceedings; that the right to property should directly and specifically be in question in the suit or proceedings; that an alienation of such immovable property was without the permission or order of the court and that the alienation should be during the pendency of such suit or proceedings.

Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 rel.

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

---S. 52---'Lis pendence' doctrine of---Meaning.

Shahid Mehmood for Petitioner.

YLR 2014 LAHORE HIGH COURT LAHORE 2046 #

2014 Y L R 2046

[Lahore]

Before Amin-ud-Din Khan, J

MAHMOOD AHMAD---Petitioner

Versus

ABDUL GHAFOOR and others---Respondents

Civil Revision No.1720 of 2007, heard on 10th March, 2014.

Specific Relief Act (I of 1877)---

----Ss. 8 & 9---Concurrent findings of courts below---Revisional jurisdiction of High Court---Co-sharer/petitioner was dispossessed from joint property in his possession by another co-sharer/ respondent---Remedy---Only remedy for such co-sharer who had been dispossessed from the property in his possession by another co-sharer to regain his possession was either by way of a suit under S.9 of Specific Relief Act, 1877 or by way of a suit for partition---Co-sharer had taken possession of the suit property admittedly in November 1999, whereas suit under S.8 of the Specific Relief Act, 1877 filed by the other co-sharer in 2001 was held not competent---Judgments and decrees passed by both the courts below ignoring the legal position involved in that case were held not sustainable under the law---Civil revision was allowed in circumstances and judgments and decrees passed by the courts below were set aside.

Miss Kishawar Naheed for Petitioner No.1.

Ch. Masood Ahmad Zafar for Respondent.

Respondent No.1 in person.

Ch. Abdus Sattar, for Respondents Nos.2 and 3.

Date of hearing: 10th March, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2053 #

2014 Y L R 2053

[Lahore]

Before M. Sohail Iqbal Bhatti, J

Mst. LALAN and others---Petitioners

Versus

Mst. MAQSOOD MAI and others---Respondents

Civil Revision No.220-D of 2014, decided on 11th April, 2014.

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

----S.42---Specific Relief Act (I of 1877), S.42---Suit for declaration---Gift/Tamleek--Proof--- Ingredients--- Sanction of mutation---Procedure---Plaintiff assailed mutations of gift/Tamleeks in favour of defendants on the basis of forgery and fraud---Trial Court decreed the suit in favour of the plaintiff and Lower Appellate Court dismissed the appeal of the defendants---Concurrent findings of facts---Validity---Every mutation entry was to be recorded in presence of the person whose right had been acquired and that if said person had been identified by two respectable persons; Signature/thumb impressions of identifying witnesses shall also be obtained by the revenue officer on register of mutation---If at the time of sanction of mutations, the parties had not appeared, that would shatter the entire case of defendants---To prove valid gift/ Tamleek three ingredients viz. offer, acceptance and handing over of possession were sine qua non---Defendants in their written statements had not provided necessary details as to where and how the transactions of gift/Tamleek had taken place; there was no detail about the offer of sale or payment of consideration nor was there any detail as to how donor had made an offer of gift to the donees/defendants and as to when donees had accepted that offer and how the physical possession was given to the donees---Defendants/beneficiaries failed to establish the transaction of sale and Tamleek respectively---Beneficiaries had to prove the factum of Tamleek in their favour especially in the circumstances where some of the legal heirs had been deprived from their lawful right of inheritance---Contention of the defendants was that the plaintiff was deprived of her right of inheritance owing to her marriage with her choice---Validity---Plaintiff/legal heir could not be deprived of her right of inheritance merely for the reason of entering into a contract of marriage with her own free will which was otherwise a legal right of every Muslim girl---High Court upheld the concurrent findings of fact by two courts below and dismissed the civil revision in limine.

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

----O.II, R.2---Suit could not proceed on the basis of misjoinder and non-joinder of causes of action---Mutations of sale and Tamleek in the present case, were passed in a single course of transaction and both the mutations deprived the plaintiff from her lawful share of inheritance in the property left by her predecessor-in-interest---Provisions of O. II, R. 2, C.P.C. did not come to the rescue of the defendants.

----Inheritance--- Upon death of predecessor, the inheritance automatically opened and devolution of property took place through inheritance immediately without any other intervention---Iqrarnama which remained unproved would have no bearing upon the legal right of inheritance as the legal heir was to be considered in constructive possession of the property.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact---High Court while exercising its revisional jurisdiction was to satisfy itself upon three matters; (i) that the order of the subordinate court was within its jurisdiction; (ii) that the case was one in which the court ought to exercise jurisdiction; and (iii) that in exercising jurisdiction, the court had not acted illegally, i.e. in breach of some provision of law, or with material irregularity, i.e. by committing some error of procedure in the course of trial which was material and might have affected the ultimate decision---If the High Court was satisfied upon said three matters, High Court had no power to interfere because it differed with the conclusion of subordinate courts upon question of fact and law---High Court did not find any illegality, material irregularity, jurisdictional defect or misreading and non-reading in the judgments and decrees of courts below---Civil Revision was dismissed in limine.

Mst. Tayyaba Khanam and others versus Chairman, Federal Land Commission and others 1984 SCMR 1110 distinguished.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others 2007 SCMR 870 rel.

Malik Abdul Ghafoor Awan for Petitioners.

YLR 2014 LAHORE HIGH COURT LAHORE 2074 #

2014 Y L R 2074

[Lahore]

Before Altaf Ibrahim Qureshi and Sadaqat Ali Khan, JJ

GHULAM ALI and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.169 and Murder Reference No.16 of 2010, heard on 12th February, 2014.

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

----Ss.302(b), 324, 337-F(iii), 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, causing Mutalahimah, rioting, common object---Appreciation of evidence---Prosecution witnesses, specifically stated in their statements before the Trial Court that co-accused made straight fire which hit prosecution witnesses---Medical Officer stated that injured prosecution witnesses received no firearm injury---Prosecution neither made any request for re-examination of Medical Officer on that fact, nor during investigation medico-legal certificate was challenged by prosecution---No crime empty was recovered from the place of occurrence, on the pointation of co-accused---When there was a conflict between medical and ocular evidence, preference was to be given to medical evidence, than to ocular evidence---Case of prosecution to the extent of co-accused, was not free from doubt---Conviction and sentence recorded against co-accused by the Trial Court, through impugned judgment were set aside, he was ordered to be acquitted and he being on bail, his surety was discharged.

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

----Ss. 302(b), 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused was nominated in the promptly lodged F.I.R., with specific attribution of fatal fire-arm injury to the deceased, duly verified by post-mortem report; furnishing full corroboration to the ocular account of prosecution witnesses, who were natural witnesses---Prosecution witnesses had furnished reasonable and probable cause of their presence at the time and place of occurrence; their testimony was corroborated by medical evidence---Both prosecution witnesses were subjected to lengthy cross-examination, but their credibility could not be shaken, as they not only corroborated each other, but also remained consistent on all material particulars of the prosecution case---Non-production of the inmates of the house as a witness, would not erode the credibility of the remaining evidence, if it inspired confidence---No crime empty had been recovered from the place of occurrence, and recovery witnesses of recovered rifle on the pointation of accused, were not appearing before the Trial Court to support the recovery proceedings---Recovery evidence in the case, was inconsequential, which could not be used as a corroborative piece of evidence to the ocular account---Motive was not attributed to accused; it was not sufficient to discard the prosecution version straightforward, as weakness of motive or even its conspicuous absence might not be helpful to accused, when unimpeachable ocular evidence was available---Prosecution had succeeded to prove the charge of qatl-e-amd of the deceased against accused beyond any shadow of doubt, through the ocular account of unimpeachable character, supported by medical evidence---Conviction recorded by the Trial Court against accused under S.302(b), P.P.C. was maintained---Motive having not been attributed to accused against the deceased, there was no reason why deceased should have been victim of the motive part of the prosecution story---Recovery was also not proved---Accused made only one fire upon the deceased, and had not repeated the same---Accused, in circumstances, was able to show that mitigating circumstance, did exist for commuting the death sentence awarded to him by the Trial Court into that of imprisonment for life---Death sentence awarded to accused under S.302(b), P.P.C., was converted into that of life imprisonment with benefit of S.382-B, Cr.P.C.

Hasil Khan v. The State 2012 SCMR 1936 rel.

----Witness---Relationship of the witness with the deceased---Effect---Mere relationship of the witnesses with the deceased would not make a witness unworthy of reliance, if his testimony was corroborated by the independent evidence of circumstances appearing on record.

Hasil Khan v. The State 2012 SCMR 1936 rel.

Mian Muhammad Afzal Watoo and Muhammad Shamoon Bhatti, for Appellants.

Rehan Zafar for the Complainant.

Asghar Ali Gill, D.P.G. for the State.

Date of hearing: 12th February, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2087 #

2014 Y L R 2087

[Lahore]

Before M. Sohail Iqbal Bhatti, J

ABDUL SATTAR---Appellant

Versus

MUDASSAR ALI---Respondent

F.A.O. No.20 of 2014, decided on 31st March, 2014.

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

----O. XXXVII, R.4---Application for leave to defend the suit filed by the defendant was accepted by the trial court---After framing of issues, evidence of plaintiff was recorded---Despite availing numerous opportunities, defendant did not produce any evidence, rather absented himself from the court, which culminated into passing of ex parte judgment and decree---Defendant filed an application under O. XXXVII, R. 4 of Civil Procedure Code on issuance of his warrants of arrest---Scope---After passing of decree, the court may under special circumstances set aside the decree and may grant leave to defendant to appear to the summons and to defend the suit which primarily showed that the provisions of O. XXXVII, R. 4, C.P.C. came into force only when the defendant was not granted leave to appear and defend the suit earlier and after grant of leave to appear and defend the suit, the provisions of O. XXXVII, R. 4, C.P.C. became redundant---Words mentioned in the said Rule "and may give leave to appear to the summons and to defend the suit" clearly revealed the intention of legislature that the said Rule was framed for the person who had failed to appear in response to the summons and to file application for grant of leave to appear and defend the suit---Plain reading of the provisions of O. XXXVII, R. 4, C.P.C. required from a defendant to establish special circumstances and more particularly to demonstrate facts constituting a plausible defence in order to enable the Court to set aside the ex parte decree and further to grant him leave to appear and defend the case---When question of leave to appear and defend the suit was not pending before that court then provisions of O. XXXVII R. 4 of C.P.C. could not be applied---Suit under O.XXXVII, R.2 of C.P.C. became a normal suit after grant of leave to defend the suit and special provisions under O.XXXVII, R. 4 of C.P.C. could not be applied to a normal suit; in that case, the defendant had been granted leave to appear and defend the suit and rest of the proceedings of suit were to be carried out under the relevant provisions of C.P.C.---Appeal was dismissed in limine.

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

----O. XXXVII, R.4---Limitation Act (IX of 1908), Arts. 5, 164 & 181---Application for leave to defend was barred under the Limitation Act, 1908 and court rejected the plea that period of limitation for filing the application would not be governed by Art.181 of the Limitation Act, 1908---Once the application for leave to defend the suit was accepted and issues were framed, then the procedure provided in O.XXXVII, R.4, of C.P.C. shall not be operative and in case of passing of ex parte judgment and decree on account of non-appearance of the defendant, the period of limitation for filing of an application for setting aside the judgment and decree would be governed by Article 164 of the Limitation Act, 1908 which was 30 days---According to S. 5 of the Limitation Act, 1908, defendant had to show a sufficient cause for not preferring the application within the stipulated period---Person seeking condonation of delay must explain delay of each and every day to the satisfaction of the court and should also establish that the delay had been caused due to reasons beyond his control---Defendant had failed to give a sufficient cause for the delay filing of in application, which had created a valuable right in favour of other party---Principal object behind all legal formalities was to safeguard the paramount interest but equally important was the well known maxim that "equity follows the law" which applied to cases where the law clearly applied and the maxim be given full effect howsoever harsh that might appear to be---Legal technicalities should not be allowed to stand in the way of justice unless they present a hurdle brushing aside of which might lead to unsettlement and uncertainty of law.

----Principal object behind all legal formalities was to safeguard the paramount interest but it was equally important to bear in mind the well known maxim which was that equity follows the law, which applied to cases where the law clearly applied and the maxim had to be given full effect howsoever harsh that might appear to be---Legal technicalities should not be allowed to stand in the way of justice unless they present a hurdle brushing aside of which might lead to unsettlement and uncertainty of law.

M. Fayyaz Hanif Rahi for Appellant.

YLR 2014 LAHORE HIGH COURT LAHORE 2120 #

2014 Y L R 2120

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

KHAWAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 294-J of 2011, Criminal Revision No.317 of 2010 and Murder Reference No.161 of 2010, heard on 5th November, 2011.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was not named in the F.I.R., which was lodged against two unknown accused persons---No description, like, heights, colours, ages etc. of said accused persons were mentioned in the F.I.R.---Accused was implicated in the case by the complainant through his written application filed 20/25 days after the occurrence---No source of information, as to how the complainant came to know about the names and roles of accused and his co-accused during the occurrence was mentioned in the said application---No identification parade of accused, or his co-accused was held in the case---Accused, having not been named by the prosecution witnesses in the F.I.R., holding of identification parade, was necessary---Complainant and other prosecution witness, were residents of other village, which was situated at a distance of 12/13 kilometers from the place of occurrence---Both said witnesses, in circumstances, were chance witnesses---No reason of their presence at the spot, at the relevant time was mentioned in F.I.R.---Presence of said eye-witnesses at the spot at the time of occurrence, was also belied from the evidence of court witness---Case of prosecution was that accused were armed with firearm weapons at the time of occurrence, and they reached at the place of occurrence on a motorcycle, but neither any firearm weapon, nor any motorcycle was recovered from the possession of accused persons during the investigation---Prosecution could not prove any motive---Prosecution having failed to prove its case against accused beyond the shadow of doubt, conviction and sentence recorded by the Trial Court against accused, were set aside and he was acquitted of the charges by extending him benefit of doubt and was released, in circumstances.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence was a type of supporting evidence, which could confirm the ocular account with regard to the receipt of injury, nature of injury, kind of weapon used in the occurrence, but would not identify the assailant.

----Benefit of doubt---If there was a single circumstance which would create doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Hamad Akbar Wallana for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Zahid Iqbal for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 2137 #

2014 Y L R 2137

[Lahore]

Before Sikandar Zulqarnain Saleem, J

MUHAMMAD MADNI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2199-B of 2014, decided on 5th June, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Bail, grant of---Further inquiry---Delay in lodging F.I.R.---Abductee/victim making contradictory statements---Accused was alleged to have kidnapped the alleged abductee in order to commit zina with her and thereafter forcibly contracted nikah with her---F.I.R. was registered after a delay of 16 months---Hand of alleged abductee had been given in marriage to the accused with her free will and consent---Witness of Nikah was also present in court---Copy of Nikanama was available on police file and thumb impressions on the same were not denied by the alleged abductee---Initially alleged abductee had filed a complaint before the Magistrate wherein she stated that being sui juris she had contracted marriage with accused with her free will and consent---Subsequently she gave an opposite version in her statement under S. 164, Cr.P.C by implicating the accused for commission of zina with her---False implication of accused by way of an exaggerated story coupled with ulterior motives could not be ruled out---Accused had filed a suit for restitution of conjugal rights which was pending adjudication before the Family Court---Nothing was to be recovered from the accused---Case was one of further inquiry into guilt of accused---Accused was granted bail accordingly.

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

----S. 497---Bail---Scope---Bail could not be withheld as a matter of punishment.

----S. 497(2)---Bail---Case of further inquiry---When case of an accused was found to be covered by S. 497(2), Cr.P.C, he would be entitled to claim bail as of right and could not be detained in jail.

Muhammad Saleem v. The State PLD 1989 Lah. 233 rel.

Makhdoom Mashooq Hussain Shah for Petitioner.

Ahmad Raza Chaudhary, A.P.-G. and Asif, S.I. for the State.

Maulvi Zahoor ud Din Tahir for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 2146 #

2014 Y L R 2146

[Lahore]

Before Muhammad Anwaarul Haq, J

NASEER AHMED---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.3923-B of 2014, decided on 21st May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Bail, grant of---Implication on basis of statement of deceased---Such statement not implicating the accused---Accused was not named in the F.I.R. and was subsequently involved on the basis of statement of deceased made 15 days after the occurrence---Initially accused was shown as an eye-witness of the occurrence, and he voluntarily appeared before the investigating officer to record his statement under S. 161, Cr.P.C.---Before dying, deceased made a statement to the effect that he took a lift from the accused on his motorcycle, whereafter some unknown person fired at him---Accused was implicated for the offence due to such statement---Such statement of deceased was yet to be scrutinized as to whether the same was recorded by the deceased himself and whether it could be used as a dying declaration---Even otherwise, prima facie such statement did not incriminate the accused for the occurrence in any manner whatsoever because some unknown person had fired at the deceased---Additionally deceased was brought to hospital in a very serious condition and according to the doctor he was unfit to make any statement at that time---Accused was a previous non-convict---Accused was granted bail in circumstances.

Imran Asmat Chaudhry for Petitioner.

Mr. Muhammad Nawaz Shahid, Deputy District Public-Prosecutor for the State with Nawazish Ali S.I. for the State.

2014 Y L R 2185

[Lahore]

Before Mahmood Ahmad Bhatti, J

ATTA MUHAMMAD and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, TOUNSA SHARIF and others---Respondents

Writ Petition No.6157 of 2013, decided on 17th April, 2014.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 26 & 13---Civil Procedure Code (V of 1908), O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration---Consolidation of holdings---Bar on civil court to entertain suit against consolidation proceedings---Rejection of plaint---Scope---Civil courts were courts of ultimate and plenary jurisdiction and they had jurisdiction to see whether any Authority or Tribunal had exceeded or overstepped the authority of the same or whether actions of the same were ultra vires the statute under which said Tribunal or Authority had passed the order impugned before the civil courts---When there were allegations that an order was obtained by fraud and misrepresentation then not only the said Tribunal or Authority had inherent jurisdiction to recall or set aside the same but also civil courts would step in to undo the fraud and right the wrong---Civil courts should not assume jurisdiction unless case of a person did fall within the ambit of mala fide, fraud or misrepresentation---Plaintiffs filed revision before Board of Revenue which was dismissed and they also moved review petition which was also turned down and both the said orders had been challenged by filing civil suit---Revisional Court had debarred Trial Court to assume jurisdiction under S. 26 of West Pakistan Consolidation of Holdings Ordinance,1960---No infirmity was pointed out in the impugned order---Civil court should refuse to proceed further with the lis unless same was vested with the jurisdiction---Trial Court should first advert to the question whether the plaint was competently filed or not and if said court did not have jurisdiction either pecuniary, territorial or that of subject matter then same would have no option but to stay hands from the matter---Suit instituted by the plaintiffs would fall within the purview and mischief of S. 26 of West Pakistan Consolidation of Holdings Ordinance,1960---Constitutional petition was dismissed in circumstances.

Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Hamid Husain v. Government of West Pakistan and others 1974 SCMR 356; Usman Punjwani and another v. Government of Sindh and another 1996 CLC 311 and Zaheer Ahmad and 6 others v. Allah Ditta and 15 others PLD 1983 Lahore 256 ref.

Mst. Roshan Bibi v. Member, Board of Revenue (Consolidation), Lahore and 2 others 1994 MLD 1513 and Sanjha and another v. Elahi Bakhsh 2006 YLR 1931 rel.

Syed Tajammal Hussain Bukhari for Petitioners.

Mahar Ashfaq Ahmad Utra for Respondents Nos. 3 to 7.

YLR 2014 LAHORE HIGH COURT LAHORE 2197 #

2014 Y L R 2197

[Lahore]

Before Ali Baqar Najafi, J

ASIF SOHAIL---Petitioner

Versus

Mst. SADAF RAZZAQ and others---Respondents

Writ Petition No.16549 of 2013, decided on 8th November, 2013.

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

----Ss. 17-A & 5, Sched.---Constitution of Pakistan, Arts. 199 & 10-A---Constitutional petition---Suit for recovery of maintenance allowance and dowry articles---Striking off right of defence under S. 17-A of West Pakistan Family Courts Act, 1964---Scope---Contention of husband was that right of defence under S.17-A of West Pakistan Family Courts Act, 1964 could only be struck off to the extent of maintenance but not to the extent of recovery of dowry articles---Validity---Husband had not complied with the order for payment of interim maintenance allowance---Such non-compliance would deprive him from his right to defend the claim of maintenance allowance---No illegality or jurisdictional defect was pointed out in striking off right of defence of husband to the extent of recovery of maintenance allowance under S. 17-A of West Pakistan Courts Family Act, 1964---Section 17-A of West Pakistan Family Courts Act, 1964 was specifically enacted for the purpose of granting interim maintenance allowance and same was not applicable to the suit for recovery of dowry articles---Both the courts below had misapplied the law and non-suited husband with regard to claim of dowry articles by applying provisions of S. 17-A of West Pakistan Family Courts Act, 1964---Husband could not defend the claim for recovery of dowry articles which was violation of Art.10-A of the Constitution---Impugned decree to the extent of dowry articles was passed without fair opportunity of hearing to the husband to defend the claim---Law envisaged decisions on merits but such right had been denied to the husband in the present case---Impugned judgment and decree passed by both the courts below to the extent of dowry articles were set aside and to the extent of recovery of maintenance allowance were upheld---Case was remanded to the Trial Court to decide the same to the extent of claim of dowry articles in accordance with law---Constitutional petition was partially allowed in circumstances.

Shahzad Hussain v. Judge Family Court, Lahore and 2 others 2011 CLC 820 and Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 ref.

Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 rel.

Rana Muhammad Aslam Nadeem for Petitioner.

Khalid Bashir for Respondents Nos. 1 to 3.

YLR 2014 LAHORE HIGH COURT LAHORE 2207 #

2014 Y L R 2207

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ms. Aalia Neelum, JJ

MUHAMMAD AMIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.921 of 2013, heard on 3rd December, 2013.

Penal Code (XLV of 1860)---

----Ss.186 & 506---Drugs Act (XXXI of 1976), Ss. 27 (3) & (4)---Criminal Procedure Code (V of 1898), Ss.227 & 243---Obstructing public servant in discharge of public functions and criminal intimidation---Appreciation of evidence---Alteration of charge---Conviction on confession---Principle---Initially, when charge was framed, accused pleaded not guilty but after eight months charge was altered then accused pleaded guilty and he was convicted by Trial Court on his confession---Validity---Even if accused had pleaded guilty during the course of trial, in addition to his plea, independent evidence should have been gathered by the Court to arrive at just conclusion---High Court set aside conviction and sentence awarded by Trial Court and remanded the matter to Trial Court for decision afresh after recording of evidence---Appeal was allowed in circumstances.

King Emperor v. Kasim Walad Mohamed Saffer AIR 1925 Sind 188; Atif Abaidullah v. State 2010 MLD 599 and Farrukh Shehzad v. The State 2012 PCr.LJ 352 rel.

Tahir Mehmood Sandhu for Appellant.

Tariq Javed, DDPP for the State.

Date of hearing: 3rd December, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 2214 #

2014 Y L R 2214

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

STATE LIFE INSURANCE CORPORATION---Petitioner

Versus

CO-OPERATIVE INSURANCE SOCIETY OF PAKISTAN---Respondent

Civil Revision No.2401 of 2013, decided on 12th February, 2014.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---Specific Relief Act (I of 1877), S.8---Suit for possession of immovable property---Amendment in pleadings---Principle---Plaintiff company sought amendment in its plaint, after framing of issues, which application was disallowed by Trial Court---Validity---Plaintiff company was required to indicate in clear terms as to at which part of pleadings, it intended to add or delete some version and in case of addition, the proposed addition must be provided in unequivocal terms---Proposed amendment was not to be vague or evasive---Application moved by plaintiff company was lacking completely in such regard---Nowhere in the application any proposed amendment in clear terms had been provided and similarly it was nowhere mentioned as to at which part of already filed plaint, the proposed amendment was to be added or altered---Plaintiff failed to make out a case for amendment in already filed plaint and also failed to point out as to how financial statements of defendant society would be relevant with regard to issues involved in the suit, seeking declaration as to the title of property and recovery of damages---Order passed by Trial Court did not suffer from any illegality or irregularity so as to warrant interference by High Court in its revisional jurisdiction---Revision was dismissed in circumstances.

Matwali Khan v. Shah Zaman and others PLD 1965 AJ&K 26 and Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 rel.

Syed Naveed Abbas for Petitioner.

Muhammad Hanif Niazi for Respondent.

YLR 2014 LAHORE HIGH COURT LAHORE 2227 #

2014 Y L R 2227

[Lahore]

Before Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

HAZAR KHAN alias BAGGI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1405 and Murder Reference No.420 of 2010, heard on 28th February, 2014.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---F.I.R., in the case was recorded one hour after the occurrence, and postmortem examination on the dead body of the deceased was conducted after about eleven hours after the occurrence, in such a situation, possibility of preliminary inquiry and consultation prior to the reporting of the matter to the Police, could not be ruled out---Complainant and prosecution witnesses had made improvements in their statements---Witness of ocular account had not disclosed any plausible reason for his presence at the spot at relevant time---Abscondence of accused, had not been proved in accordance with law---No order in writing was available on the record by the court issuing proclamation which under S.87, Cr.P.C. was mandatory---Alleged abscondence of accused, could not be used against him---When as per own version of the complainant the earlier matter was patched up, then no reason or occasion was left for accused to commit murder---Abscondence and motive, at the most being corroborative pieces of evidence, and relevant only if primary evidence i.e. ocular account was confidence inspiring, which was not the situation in the present case---Recovery of .8 MM rifle, allegedly effected at the instance of accused, was inconsequential as no empty was recovered from the spot and no report of Forensic Science Laboratory was available on the record---Prosecution case being of doubtful nature, there was no need to discuss the version of accused recorded under S.342, Cr.P.C.---Prosecution having failed to connect accused with the commission of crime, conviction and sentence awarded to accused by the Trial Court, were set aside---Accused was acquitted of the charge levelled against him, extending him benefit of doubt and was ordered to be released, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

(b) Criminal trial---

----Witness---Improvement made by witness in his statement---Effect---When a witness would improve his statement to strengthen the prosecution case; and the moment it was concluded that the improvements were made deliberately and with mala fide, the testimony of such witness, would not remain reliable.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

----Motive---Scope---Motive was double edged weapon, if it could be a reason for commission of offence for accused, at the same time, motive could be a reason for false implication of accused by the prosecution.

(d) Criminal trial---

----Medical evidence---Medical evidence was a supporting piece of evidence, because it could confirm the ocular evidence, with regard to receipt of the injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death, but it would not tell the name of accused.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

Barrister Muhammad Yar Khan Daha for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Saif Ullah Khan for the Complainant.

Date of hearing: 28th February, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2266 #

2014 Y L R 2266

[Lahore]

Before Shezada Mazhar, J

AISH BAHADAR and others---Petitioners

Versus

DISTRICT COLLECTOR, SAHIWAL and others---Respondents

Writ Petitions Nos.3465-Q and 2234 of 2014, heard on 20th June, 2014.

Constitution of Pakistan---

----Arts. 199 & 24---Land Acquisition Act (I of 1894), Ss.18 & 23---Constitutional petition--- Scope--- Alternate remedy---Land acquisition---Enhancement in compensation---Scope---Government had power to acquire land of any person subject to compensation and law---High Court could not adjudicate upon disputed facts under constitutional jurisdiction---Petitioners could seek alternate remedy of enhancement in compensation by moving Collector and Reference Court under S.18 of Land Acquisition Act, 1894---Constitutional petition was dismissed in circumstances.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655; Muhammad Saqib Abbasi v. Province of Punjab and others 2013 CLC 158; Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others PLD 2012 Lah. 440; Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532; Muhammad Afzal and 27 others v. Pakistan, through Secretary Defence, Islamabad and 4 others 2011 YLR 1710; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Messrs Muhammad Ali and brothers and another v. Director-General, L.D.A. and 3 others 2005 MLD 768 and Muhammad Rafiq and others v. Umar Din and others 2007 CLC 1729 rel.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Ikramul Haq and 11 others v. Province of Sindh through Secretary, Revenue Department and 3 others 2012 CLC 655; Muhammad Saqib Abbasi v. Province of Punjab and others 2013 CLC 158; Amir Aftab Hussain v. Land Acquisition Collector, Punjab Provincial Highway Department, Rawalpindi and 4 others PLD 2012 Lah. 440; Allah Razi v. Islamic Republic of Pakistan and others 2011 CLC 532 and Muhammad Afzal and 27 others v. Pakistan, through Secretary Defence, Islamabad and 4 others 2011 YLR 1710 distinguished.

Tariq Zulfiqar Ahmad and Muhammad Iqbal Khan for Petitioners.

Rana Muhammad Hussain A.A.-G., Faheem Baig, Additional Advocate General for Respondents.

Ch. Muhammad Rafique, for Respondent No.1.

Mushtaq Naich, C.A. Sahiwal.

Tahira Akram, A.C. Sahiwal.

Date of hearing: 20th June, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2279 #

2014 Y L R 2279

[Lahore]

Before Umar Ata Bandial, C J

KHIZAR HAYAT---Petitioner

Versus

SECRETARY COOPERATIVES and others---Respondents

Writ Petition No.3350 of 2014, decided on 14th February, 2014.

Cooperative Society---

----Election of Co-operative society---Eligibility---Voting rights---Respondent was co-owner of plot situated in society in question and possessed rights of membership---Authorities allowed respondent to contest election for Executive Committee of the society---Validity---Requirement of exclusive ownership for such candidacy would permit eligibility to person who were either original members or purchasers of property in one name---Price of urban land had gone high and requirement of exclusive ownership would block resident members who were co-owners from contesting in management of society---Public policy nor public interest favoured that wealth of a member should outweigh other qualities of representation, including leadership and public service profile of candidates---In the interest of justice, nominee co-owner was permitted to contest election of society---High Court declined to interfere in the order passed by authorities---Constitutional petition was dismissed in circumstances.

Iftikhar Ahmad Mian for Petitioner.

M. Javaid Iqbal Qureshi for Respondent.

M. Sarfraz Ahmad, Assistant Registrar Cooperative Housing-III, on behalf of Cooperative Department.

YLR 2014 LAHORE HIGH COURT LAHORE 2283 #

2014 Y L R 2283

[Lahore]

Before Muhammad Yawar Ali, J

MUSHTAQ AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2004-B of 2013, decided on 11th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395 & 412---Dacoity, dishonestly receiving property stolen in the commission of a dacoity---Bail, grant of---F.I.R., had been lodged with an inordinate delay of about 15 days for which no plausible explanation was forthcoming---Co-accused with a similar role had earlier been allowed bail after a compromise had been effected between co-accused and the complainant---If the complainant had entered into a compromise with co-accused to whom a similar role had been attributed, then accused would also be entitled to the benefit of grant of bail---Assertion made by the counsel for accused that accused was a previous non-convict, had not been negated by Deputy Prosecutor General---As challan had been submitted before the Trial Court, it could be inferred that accused was no more required for further investigation of the case---Accused was admitted to bail, in circumstances.

Muhammad Ijaz v. The State 2008 YLR 2585 rel.

Malik Muhammad Siddique Kamboh for Petitioner.

Ch. Muhammad Akbar, D.P.G. and Nazim Ali S.I. for the State.

Nemo for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 2288 #

2014 Y L R 2288

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

MUHAMMAD ARSHAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 1243 of 2012, 2088 of 2010 and Capital Sentence Reference No.55-T of 2010, heard on 31st January, 2014.

Penal Code (XLV of 1860)---

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Complainant, was not the eye-witness of the kidnapping of his minor daughter---Both eye-witnesses, resiled from their previous statements while rendering testimonies before the Trial Court and stated that alleged abductee, had been kidnapped by some unknown persons, and they were declared hostile---Alleged abductee, who was star witness of the prosecution case, her statement suffered from inherent contradictions and number of loopholes; her statement stood contradicted by her real grand father and other prosecution witness---Deposition of the child-witness/ alleged abductee, was self-contradictory and was hard to believe---Abductee had not stated even a word that she had been kidnapped by accused on way to her house from school and did not mention about the motorcycle used in the occurrence---Testimony of alleged abductee did not provide any clue as to demand of ransom, or its payment by her father to accused persons; and her release as a matter of bargain, between them and her father, nor she mentioned that she had been rescued by the Police, her statement could not be relied upon---Innocence of the child-witness could not be allowed to exceed limits so as to abridge the inconsistencies and pitfalls, caused by her in the case; her testimony as a prosecution witness had changed the tenor of F.I.R.---Prosecution produced no evidence regarding telephone linkage between accused and the complainant at any stage---Testimonies of the prosecution witnesses did not inspire confidence due to inherent contradictions, inconsistencies---No evidence was on record, which could connect accused persons with the commission of alleged crime---Case appeared to be a badly investigated one, which had shown mindlessness and incompetence of the Investigating Officers---Participation of accused persons, having not been established beyond a reasonable doubt, conviction and sentence recorded against accused persons by the Trial Court, were set aside, they were acquitted and released, in circumstances.

Rai Bashir Ahmed Assisted by Rana Maqsood-ul-Haq for Appellant.

Khurram Khan, Deputy Prosecutor General Punjab for Respondents.

Date of hearing: 31st January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2309 #

2014 Y L R 2309

[Lahore]

Before Shahid Waheed, J

MUHAMMAD SHAHID---Applicant

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and 6 others---Respondents

C.Ms. Nos. 2449 and 2450 of 2013 in Writ Petition No.13696 of 2010, C. Ms. Nos.2451 and 2452 of 2013 in W.P. No.13697 of 2010, C.Ms. Nos. 2453 and 2454 of 2013 in W.P. No.13698 of 2010, C.Ms. Nos. 2455 and 2456 of 2013 in W.P. No.13699 of 2010, C.Ms. Nos. 2457 and 2458 of 2013 in W.P. No.13700 of 2010, C.Ms. Nos. 2459 and 2460 of 2013 in W.P. No.13701 of 2010, C.Ms. Nos.2461 and 2462 of 2013 in W.P. No.13702 of 2010, C.Ms. Nos. 2463 and 2464 of 2013 in W.P. No.13703 of 2010, decided on 29th April, 2013.

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

----O. R. 4, Ss. 12 (2) & 151-Punjab Rented Premises Act (VII of 2009), S.19---

Application for eviction of tenant-Default in payment of rent---Appointment of pleader--- Misrepresentation--- Scope--- Tenant moved application for leave to contest but the same was declined-- Application for ejectment was accepted concurrently-Constitutional petition of tenant wherein ejectment order was challenged was dismissed in limine by the High Court against which appeal was filed before the Supreme Court and matter was remanded to the High Court for decision afresh after summoning the record of the Rent Tribunal as well as the Appellate Court-Constitutional petition was again dismissed by the High Court against which application under S. 12(2), C.P.C. read with S. 151, C.P.C. was moved by the tenant on the ground that neither he nor his counsel authorized the other counsel who argued the case and no opportunity of hearing was given to him and he was misrepresented--- Validity- Tenant-petitioner for pleading his cause before the High Court had engaged his counsel but on the date of hearing another counsel appeared on behalf of the tenant-petitioner and argued the case which was dismissed-Tenant-petitioner while appointing his counsel had authorized him to engage other counsel to act in his place or in collaboration with him and had authorized such other counsel to exercise the same authority which had been conferred on his counsel-Construction of document appointing agent was different from the construction of Wakalatnama appointing counsel and in the case of agent the document would be construed strictly and the agent would have only such powers as were conferred expressly or by necessary implication-No bar existed on pleader duly authorized by the party under "Wakalatnama" to engage another pleader without any written instrument to plead the case on his behalf---Power to "plead" would include within its scope and ambit, the right to examine witness, to conduct admission and denial, to seek adjournments and address arguments, etc as might be authorized and such pleader however would not have the power to compromise case, withdraw case or do any other act which might compromise the interest of his client---Tenant-petitioner had failed to bring on record the affidavit/certificate of his counsel denying his association with the other counsel and it would be presumed that the other counsel in view of Order III, Rule 4, C.P.C. and power conferred on the principal counsel through "Wakalatnama" being authorized was competent to appear before the High Court and plead the cause of the tenant-petitioner---Bald assertions in the application could not be accepted as otherwise such would jeopardize the system of administration of justice and when counsel had been authorized under Wakalatnama to present his client, the junior or associate of the said counsel could be permitted without any authority in writing to appear on behalf of the counsel representing the said client as and when the counsel himself was not in a position to appear---Other counsel had contested the case on behalf of the tenant-petitioner and pleaded all the grounds which were available to him for assailing the vires of ejectment order---Tenant-petitioner had not urged any ground of mala fide or collusion or fraud against the other counsel and had not questioned the legal acumen or competency of the other counsel in pleading his cause before the High Court and such was not "misrepresentation" within the contemplation of S.12(2), ,C%P.C.--Application was dismissed.

Matthews v. Munster (1887) 20 QB 141; Chendgan Souri Nayakam v. A.N. Menon AIR 1968 Ker 213 and Rondel's case (1967) 1 Q.B. 443 rel.

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

----O.III, R. 4---Appointment of pleader--- Scope--- Applicability-- Word "act" occurring in sub-rule (1) to R. 4 of O. III, C.P.C. referred to the taking of steps to lay the case before the court, as making application or presentation of suit or appeal, however, under sub-rule (5) of Rule 4, it was provided that pleader who had been engaged for the purpose of pleading only shall not plead unless he had filed in court a memorandum of appearance signed by himself and stating the names of the parties etc. but under the proviso the filing in the court a memorandunt of appearance was not - required, if any pleader engaged to plead on behalf of any party by any other pleader who had been appointed to act in court on behalf of such party.

Mst.Nawaz Bibi and 3 others v. Ch. Allah Ditta and others 1998 SCMR 2381 and Sakrappa Neelappa v. Shidramappa Gangappa Katti and others AIR 1960 Mys 217 rel.

Syed Muhammad Ali Gillani for Applicant.

YLR 2014 LAHORE HIGH COURT LAHORE 2321 #

2014 Y L R 2321

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

KHUDA BAKHSH---Petitioner

Versus

ZAKIA KHATOON and others---Respondents

Civil Revision No.874 of 2004, decided on 22nd April, 2014.

Specific Relief Act (I of 1877)---

----Ss. 12 & 22---Suit for specific performance of contract---Both plaintiff and defendants filed suit for specific performance of contract regarding the same land and same owners---Trial Court dismissed the suit of plaintiff and suit of defendants was decreed to the effect that they were entitled to get double of the earnest money as specific performance of agreement to sell was not possible---Appellate court, however, decreed the suit of defendants---Validity---Plaintiff became absolute owner of suit property after admission of agreement to sell and sale-deed by the owners of the land in his favour---Sale-deed was executed by all the owners in favour of plaintiff and they also admitted the receipt of consideration amount---Defendants had failed to bring on record any evidence that sale-deed was not executed by the owners of suit property in favour of plaintiff---Agreement to sell allegedly executed in favour of defendants did not contain their signatures---Out of two marginal witnesses of agreement to sell only one had been produced in the court---Agreement to sell in favour of defendants had not been proved---Plaintiff was in possession of the suit-land and agreement to sell in favour of defendants was not executable and they were entitled double of the amount paid to the owners of the land---Trial Court had exercised the discretion judiciously and properly---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was accepted in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal heirs and others PLD 2011 SC 241; Zafar Iqbal and others v. Mst. Nasim Akhtar and others PLD 2012 Lah. 386; Muhammad Yousaf v. Muhammad Ramzan and another 2010 YLR 3222; Iftikhar Saleem v. Shafa-ul-Haq 2013 YLR 2345; Mst. Safia Begum v. Muhammad Ajmal 2007 YLR 3030; Tahir Hussain Malik v. Mst. Najma Rafi 1995 SCMR 1407; Abdul Hameed Khan and 2 others v. Mst. Fateh Bibi and 6 others 2003 MLD 410; Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392; Province of Punjab through Collector Toba Tek Singh and others 2012 SCMR 1942; Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400; Basharat Ali and others v. Muhammad Anwar and others 2010 SCMR 1210; Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137; Kareeman through L.Rs. and others v. Sher Muhammad through L.Rs. and others 2006 CLC 1165; Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363; Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532; Rasool Bakhsh Naich through L.Rs. and others v. Syed Rasool Bakhsh Shah through L.Rs. and others 2010 SCMR 988; Muhammad and others v. Muhammad Hussain Shah and another 1994 MLD 1182; Mst. Barkat Bibi and others v. Muhammad Rafique and others 1990 SCMR 28; Messrs Jamal Jute Baling and Co., Dacca v. Messrs M. Sarkies and Sons, Dacca PLD 1971 SC 784; Ch. Allah Bakhsh v. Karam Ellahi and 4 others PLD 1988 Lah. 419; Abdul Ghafoor and another v. Zahoor Ahmad through legal heirs and 10 others 2011 YLR 2718; Atta-ur-Rehman v. Muhammad Anwar Khan and others 2012 MLD 1282; Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387; Sadiq Shah v. Ghulam Nabi 2012 YLR 2564; Mehndia v. Juma through L.Rs. 2011 MLD 1081 and Capt. Shahid Saleem Lone and others v. Ata-ur-Rahman and others 1985 CLC 2555 ref.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and othes PLD 2011 SC 241; Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363 and Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532 rel.

Imran Muhammad Sarwar for Petitioner.

Muhammad Shahzad Shaukat for Respondent No.6.

Muhammad Arif Awan for Respondent No.1.

Date of hearing: 14th April, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2347 #

2014 Y L R 2347

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

KARAM ELAHI through L.Rs.---Petitioner

Versus

MUHAMMAD ASHRAF and others---Respondents

Civil Revision No.2766 of 2012, heard on 19th May, 2014.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs, performance of---Requirements---Death of original pre-emptor---Legal heirs of pre-emptor (deceased)---Status---Plaintiff (pre-emptor) and informer had tried to improve the case against the version narrated in the plaint---No person could be allowed to prove his case beyond his pleadings---Name of one of the plaintiff was not mentioned in the plaint nor he was signatory of notices of Talb-i-Ishhad who introduced himself to be present at a later stage---Statement of son of deceased pre-emptor had no evidentiary value as he was not present at the time of performance of Talb-i-Muwathibat by his deceased father who filed the suit and his statement was beyond pleadings---Version set up against the pleadings of the plaint could not be considered---Statement of one pre-emptor could not be considered on behalf of other pre-emptors to prove the performance of requisite talbs---Non-appearance of other plaintiffs before the Trial Court in a suit for pre-emption was fatal with regard to performance of talbs and said suit could not succeed---Evidence led by the plaintiffs was out of scope of their pleadings which had rightly been ignored by the courts below---Suit was dismissed by the courts below while rendering sound reasons---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Muzaffar Hussain v. Mst. Bivi and 7 others PLD 2012 Lah. 12 and Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others 2007 CLC 819 rel.

Muhammad Ahsan Bhoon, Mubee-ud-Din Qazi and Iftikhar Ahmed Rajput for Petitioners.

Jari Ullah Khan for Respondents.

Date of hearing: 19th May, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2370 #

2014 Y L R 2370

[Lahore]

Before Atir Mahmood, J

MUHAMMAD NAEEM and 7 others---Appellants

Versus

Khawaja MUHAMMAD AKBAR and 2 others---Respondents

S.A.O. No.144 of 2010, heard on 7th March, 2014.

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

----Ss.10, 13 & 15---Second appeal against order---Rent Controller allowed the application of the landlord on the grounds of default in payment of rent and personal bona fide need of landlord---First appeal filed by the tenant was allowed by the appellate court---Concurrent findings---Invocation of S. 10 of the West Pakistan Urban Rent Restriction Ordinance, 1959---Easement right of way was granted by the First Appellate Court irrespective of the fact that there existed no more the relationship of landlord and tenant between the parties and that the tenant was in the tenancy of other landlord---Non-framing of issue in such regard by both the courts below---Effect---Provisions of S.10 of the Ordinance were applicable where the relationship of landlord and tenant existed---After the ejectment order passed by the Rent Controller, which was upheld by the lower Appellate Court, respondents were no more tenants under the landlord rather they were, at present, tenants in the premises falling under the share of another landlord---When the tenants were not in the tenancy of the landlord, S.10 could not be applied in case of the landlord to provide passage to the tenants, which was being used by them previously---Easement right of passage in absence of relationship of landlord and tenant was held to be unjustified---Appeal of the landlords was allowed.

Ahmed Waheed Khan for Appellants.

Abdul Ghafoor Sheikh and Usman Sarwar for Respondents.

Date of hearing: 7th March, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2381 #

2014 Y L R 2381

[Lahore]

Before Shoaib Saeed, J

WARIS ALI ZAHID---Petitioner

Versus

MEMBER BOARD OF JUDICIAL (II), BOARD OF REVENUE PUNJAB LAHORE and 3 others---Respondents

Writ Petition No.11205 of 2012, decided on 14th February, 2014.

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

----S. 10---Civil Procedure Code (V of 1908), O. I. R. 10---Punjab Government Notification No. 222-2010/117-CLI dated 13-1-2010--- Punjab Government Notification No.223-2010/118-CLI dated 13-1-2010---Constitution of Pakistan, Art.199---Constitutional petition---Lease of State land---Respondents were given charagaah/State land in 1984 on lease which was extended subsequently but resumed later---DDO (R) directed Tehsildar to put the crops of the resumed land to open auction in 2009---Petitioner purchased said crops for Rs.1,85,000---Appeals of respondents against order of auction and that of their ejectment (resumption) were dismissed by EDO (R)---Board of Revenue accepted ROR filed by respondents and remanded the case to DDO (R)---Petitioner's application under O.I, R.10, C.P.C. or impleadment was also rejected---DDO (R) on remand extended lease of respondents---Petitioner's appeal against extention order was accepted by Additional Commissioner (Revenue)---Member, Board of Revenue accepted revision filed by respondents and restored the extention order of DDO (R)---Petitioner contended that extention could not be granted in lease of land which had already been resumed in terms of Notification No.223-2010/118-CLI dated 13-1-2010; that respondents were not eligible firstly because respondents owned more than four acres of land, secondly, they were not residents of the relevant 'Chak' under Notification No.222-2010/ 117-CLI dated 13-1-2010---Respondents contended that petitioner was not an aggrieved party---Validity---Disputed land could not be put to restricted auction---Petitioner based his right on purchase of crops which were put to auction---Land in question was never leased out to petitioner at any stage which remained on lease with respondents who were still in its possession---Respondents did not own land when the disputed land was leased out to them---Land presently owned by respondents was purchased long after leasing of the disputed land---Petitioner, in circumstances, had no locus standi and was not an "aggrieved person"---Constitutional petition was dismissed.

Ch. Muhammad Hussain Jehania for Petitioner.

Mirza Muhammad Saleem Baig, A.A.-G., Wasim Sarwar Khan and Rana Nazir Saeed for Respondents.

Date of hearing: 13th February, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2407 #

2014 Y L R 2407

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD ASIF---Petitioner

Versus

MUHAMMAD SADIQUE and 6 others---Respondents

Civil Revision No.80-D of 2014, decided on 18th March, 2014.

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

----O. VII, R. 11 & S. 9---Specific Relief Act (I of 1877), S. 42---Proceedings conducted by the revenue authorities with regard to demarcation/partition---Suit for declaration---Rejection of plaint---Scope---Plaintiff had assailed the validity of proceedings conducted by the revenue authorities with regard to demarcation/partition of suit property and order passed by the Tehsildar---Plaintiff had already availed the remedy of appeal before the revenue hierarchy---Civil courts were considered as courts of ultimate jurisdiction and they could adjudge veracity of order passed by the revenue authorities irrespective of availability of remedy of appeal or revision before higher forum but when a person had chosen to avail the remedy of appeal/revision in accordance with law then he could not be allowed to invoke the jurisdiction of civil court simultaneously against the same order---Both the plaintiff and defendant were co-sharers in the suit property and civil court was not competent to render decree in favour of plaintiff declaring that he was exclusive owner of the same as until and unless property was formally partitioned every co-sharer was considered as owner of every inch of the land---No mis-reading or non-reading of evidence was pointed out in the impugned orders passed by the courts below---Revision was dismissed in circumstances and Deputy District Officer Revenue was directed to decide the matter pending before him within a period of three months.

Province of Punjab through Collector District Khushab Jauharabad and others v. Haji Yaqoob Khan and others 2007 SCMR 554; Sher Muhammad v. Muhammad and others 2006 PSC 516; Ghulam Ali v. Asmat Ullah and another 1990 SCMR 1630; Mehram Khan and others v. Fateh Khan and others 1983 SCMR 366; Mir Liaq Khan v. Sarfraz Khan 2013 MLD 1449; Dr. Jalal Khan v. Qazi Naseer Ahmed and 6 others 2005 MLD 814; Pervez Ahmad Khan Burki and 3 others v. Assistant Commissioner, Lahore Cantt. and 2 others PLD 1991 Lah. 31; Abdul Khaliq (deceased) through L.Rs. and others v. Ch. Rehmat Ali (deceased) through L.Rs. and others 2012 SCMR 508 and Administrator, Thal Development through LACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 ref.

Mir Liaq Khan v. Sarfraz Jehan 2013 MLD 1449 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts could not be upset by the High Court in revisional jurisdiction unless same were perverse or arbitrary or were based on mis-reading or non-reading of evidence.

Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Arab Hassan Asif for Petitioner.

Rana Muhammad Aslam for Respondent No.1.

Muhammad Aurangzeb Khan, Assistant Advocate General for Respondents Nos. 2 to 7.

YLR 2014 LAHORE HIGH COURT LAHORE 2421 #

2014 Y L R 2421

[Lahore]

Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ

IBRAHEEM and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.437 of 2010, Criminal Miscellaneous Nos. 3166-M, 3172-M of 2013, Criminal Miscellaneous No.2976-M of 2014 in Criminal Appeal No.626 of 2010 and Murder Reference No.106 of 2010, heard on 17th June, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 381-A, 109 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-e-amd, theft of a car or other motor vehicle, abetment, acts done by several persons in furtherance of common intention---Appreciation of evidence---Benefit of doubt---Prosecution witnesses kept changing their stance to bring their statements in line with the medical evidence; they made contradictory statements regarding weapons and roles of accused persons and tried to implicate natural witnesses being residents of place of occurrence who were not ready to support prosecution story but Trial Court acquitted the said witnesses---Evidence of such witnesses could not be made basis for conviction in cases of capital punishment---Trial Court had disbelieved both eye-witnesses while acquitting co-accused so convicting accused persons on same evidence without strong and independent corroboration would not be safe---Both eye-witnesses made dishonest improvements in their statements (to Police)---Improvement once found deliberate and dishonest casts serious doubt on veracity of witnesses---No independent evidence was produced---Delay of 22-24 hours in post-mortem examination was sufficient to create suspicion about registration of F.I.R. at the given time and presence of witnesses at the place of occurrence---Ocular account was inconsistent with medical evidence---Scaled site-plan showed distance of 28 feet between the accused and deceased but injury on the person of deceased had burnt margins---F.I.R. attributed injuries on the neck and chest of deceased to accused but postmortem examination showed no such injuries---Medical evidence would only show nature of injury and the weapon used but such evidence could not identify the faces of culprits---No crime empty was taken into possession from place of occurrence---No report of Forensic Science Laboratory regarding comparison of crime weapon was available on record---Recovery of rifle was of no consequence---Even otherwise, recovery effected after four years of occurrence could not be believed---Evidence of abscondence having not been put to accused in his statement under S.342, Cr.P.C. could not be used against him---Prosecution could not prove its case beyond shadow of doubt---Prosecution had to prove its case against accused by standing on its own legs and could not take benefit from weaknesses of the case of the defence---Benefit of doubt had to be extended to the accused as a matter of right---Accused were acquitted---Murder Reference was answered in the negative.

Ibrar Hussain and others v. The State and another 2007 SCMR 605; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Riaz v. The State 2009 PCr.LJ 1022; Irshad Ahmed v. The State 2011 SCMR 1190; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Oamar Shah and another v. The State 2009 SCMR 1410 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Malik Saeed Hassan assisted by Iffat Saif for Appellants.

Ch. Muhammad Mustafa, Deputy Prosecutor General for the State.

Shahzad Saleem Bhatti and Allah Rakha Saifee for the Complainant.

Date of hearing: 17th June, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2450 #

2014 Y L R 2450

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD JAVAID IQBAL---Petitioner

Versus

STATE BANK OF PAKISTAN through Governor and others---Respondents

Writ Petition No.2047 of 2014, decided on 10th April, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversies---Petitioner had availed the "yellow-cab scheme" of the Provincial Government and after balloting, a vehicle was handed over to the petitioner conditional upon petitioner making monthly payments to the bank---Said vehicle was subsequently repossessed by the bank upon default of payment by the petitioner---Petitioner sought release of the vehicle---Held, that petitioner had committed default in his fulfilment of contractual obligations and vehicle was repossessed after his persistent defaults---Person who violated any contractual obligation had no right to take fruit from using the same in its true perspective---No illegality in the repossession of vehicle had been pointed out---Factual controversies could not be resolved in the Constitutional jurisdiction of High Court---High Court observed that the petitioner could approach a proper forum for redressal of his grievance in accordance with law---Constitutional petition was dismissed, in circumstances.

Syed Nisar Hussain Shah for Petitioner.

Muhammad Saleem Iqbal for Respondent No.1.

YLR 2014 LAHORE HIGH COURT LAHORE 2468 #

2014 Y L R 2468

[Lahore]

Before Arshad Mahmood Tabassum, J

LIAQAT ALI KHAN and another---Petitioners

Versus

AHMED HASSAN SIDDIQUI and 5 others---Respondents

Civil Revision No.652-D of 2013, heard on 13th January, 2014.

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

----S. 8---Limitation Act (IX of 1908), Art.144---Qanun-e-Shahadat (10 of 1984), Art.129---Civil Procedure Code (V of 1908), O. XIII, R.4---Suit for possession of immovable property---Limitation---Oral evidence against documentary evidence---Scope---Contention of plaintiffs was that defendants had forcibly occupied the suit property---Suit was decreed concurrently---Validity---Claim of plaintiffs was based upon sale-deed execution and presentation of which for registration had not been denied by the defendants---Sale-deed being a registered document had presumption of truth---Oral evidence could not take preference over the documentary evidence---Said sale-deed had not been challenged or got set aside by the defendants from any forum---Disputed house was transferred in favour of plaintiffs in the record of Cantonment Board---Act which was performed in the ordinary course of business had presumption of correctness---Defendants had decision of Jirga in their favour but same had no weight as neither scribe nor members of said Jirga appeared before the court to prove said document---Presence of parties had not been marked in the decision of Jirga nor their signatures appeared on the same---Defendants had not produced anybody who was conversant with the hand writing or signatures of members of Jirga to prove said document---Exhibition of document was one thing and its proof was another---Exhibition of document did not mean that same stood proved rather the party relying upon such document was supposed to prove the same in accordance with law---Suit was filed after 9 years and same was not barred by time---Defendants had not raised plea of adverse possession in their written statement---Period of 12 years had been provided for such suit which would start from the date when the possession of plaintiffs had become adverse to the defendants---Both the courts below had properly and lawfully appreciated the evidence available on record---Revision was dismissed in circumstances.

Noor Muhammad's case 2012 SCMR 1373 and Muhammad Anwar and another's case 2007 SCMR 1510 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings---Revisional jurisdiction of High Court was narrow and concurrent findings of facts could not be disturbed unless High Court had come to the conclusion that such findings were result of mis-reading or non-reading of evidence available on record or contrary to the law.

Sarfraz Ali Khan for Petitioners.

Syed Akhlaq Ahmad for Respondents.

Date of hearing: 13th January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2493 #

2014 Y L R 2493

[Lahore]

Before Mahmood Ahmad Bhatti, J

UMAR HAYAT---Petitioner

Versus

MUHAMMAD AKBAR and others---Respondents

Writ Petition No.848 of 2010, heard on 18th December, 2013.

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

----S. 13---Constitution of Pakistan, Art. 199--- Constitutional petition---Application for ejectment of tenant---Dispute with regard to title of property---Rent Controller, jurisdiction of---Scope---Contention of tenant was that there was dispute with regard to title of demised premises which could be resolved only by the civil court---Eviction petition was accepted concurrently---Validity---Issue of title was on record between the parties---Civil court had jurisdiction to adjudicate upon the question of title and fraud, if any, having been perpetrated in securing the sale-deed---Rent Controller was not vested with the power to go into the question of title of property---Rent Controller could assume jurisdiction only in cases where tenancy was admitted---Both the courts below had overstepped their jurisdiction and orders passed by them were not sustainable---Impugned orders had been passed without lawful authority having no legal effect which were set aside---Constitutional petition was accepted in circumstances.

Rehmat Ullah v. Ali Muhammad and another 1983 SCMR 1064; Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; Junaid Rasheed and others v. Sultan Muhammad and others 2000 SCMR 1525; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 and Sheikh Muhammad Khalid v. Muhammad Rafiq Anwar 2012 CLC 51 ref.

Sheikh Muhammad Rafiq Goreja for Petitioner.

Mirza Aziz Akbar Baig for Respondent No.1.

Remaining respondents (L.Rs. of respondent No.2) as respondents Nos.2-A to 2-D, who were proceeded against ex parte by the order dated 18-3-2010.

Date of hearing: 18th December, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 2506 #

2014 Y L R 2506

[Lahore]

Before Atir Mahmood, J

Malik GULZAR MEHMOOD---Appellant

Versus

MUHAMMAD SALEEM FARUKH---Respondent

F.A.O. No.100 of 2009, heard on 11th November, 2013.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2 & O. XX, R. 16---Suit for rendition of account---Grant of temporary injunction--- Ingredients---Plaintiff had sought rendition of account with regard to "Jharu (sweeping) fund", which was allegedly being collected and misappropriated by the defendants---Plaintiff had prayed injunctive order for restraining the defendants from collection of sweep/jharu fund---Allegations against the defendants were yet to be established by the plaintiff by production of evidence in the suit---Mere levelling allegation would not create any right in favour of a party---Ingredients for grant of temporary injunction i.e. prima facie case, balance of inconvenience and irreparable loss were missing in the present case---Plaintiff would not suffer any irreparable loss if stay order was not granted as if suit was decreed and he was found entitled to any relief then he could be compensated subsequently---No illegality or irregularity had been pointed out by the plaintiff---Order passed by the court below was in accordance with law---Appeal was dismissed in circumstances.

Messrs U. K. International Proprietorship concern through sole Proprietor v. Trading Corporation of Pakistan 2006 CLC 679; Abdul Mannan Fakir v. Province of East Pakistan and others PLD 1965 Dacca 361; Pakistan International Airlines Corporation v. Karachi Municipal Corporation through Chairman/Administrator Karachi and another PLD 1994 Kar. 343; Ch. Muhammad Ali v. Govt. of West Pakistan and others PLD 1966 (W.P.) Lah. 335; Dewan Chand and others v. Balochistan Local Council Election Authority 2000 MLD 1415 and Julius Salik v. Returning Officer and 27 others 1989 CLC 2499 ref.

Mian Hafeez ur Rahman for Appellant.

Muhammad Iqbal Khan for Respondents Nos.1 to 4.

Mujahid Rafique Qureshi for Respondent No.5.

Date of hearing: 11th November, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 2527 #

2014 Y L R 2527

[Lahore]

Before Ali Baqar Najafi, J

LIAQUAT ALI---Petitioner

Versus

DISTRICT POLICE OFFICER, LAYYAH and 2 others---Respondents

Criminal Miscellaneous No.278-HB of 2014, decided on 29th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Bailiff, who had produced both detenus before the court, had reported that said detenus were found in the lock up, and were also tortured---Muharrar of Police Station concerned informed the bailiff that detenus were arrested in criminal case and F.I.R. registered at Police Station under Ss.381-A & 225, P.P.C.---Police file was not made available to bailiff---Alleged F.I.R. was registered two days after detenus were apprehended---Arrest of detenus appeared to be fake one and manipulated after bailiff had conducted raid---Petition was allowed and detenus were ordered to be set at liberty, in circumstances.

Makhdoom Mashooq Hussain Shah for Petitioner.

Malik Shahnawaz Khokhar for the Complainant.

Hassan Mahmood Khan Tareen, D.P.G. with Mahar Qayyum, Inspector and Muhammad Tahir, A.S.-I. for the State.

Detenus in Police Custody.

Zubair Ahmed, Bailiff.

YLR 2014 LAHORE HIGH COURT LAHORE 2534 #

2014 Y L R 2534

[Lahore]

Before Shahid Hameed Dar and Sardar Muhammad Shamim Khan, JJ

ATIF ALI---Petitioner

Versus

SPECIAL JUDGE OF ATC-IV, LAHORE and 4 others---Respondents

Writ Petition No.7996 of 2012, heard on 28th May, 2014.

Penal Code (XLV of 1860)---

----Ss.302, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23---Qatl-e-amd, rioting armed with deadly weapon, every member of unlawful assembly guilty of offence committed in prosecution of common object---Cognizance of cases by Anti-Terrorism Court---Determining factors---Demanding Bhatta---Transfer of accused's case from Anti-Terrorism Court to court of ordinary jurisdiction---Validity---Accused demanded Bhatta from deceased and on refusal murdered his father thereby conveying message to complainant and people living in the area that if anyone refused accused's demand would suffer the fate of deceased---Occurrence was bound to spread panic and feeling of insecurity---Under S.6(k) of the Anti-Terrorism Act, 1997 demanding Bhatta was offence punishable under S.7 of the Anti-Terrorism Act, 1997---Demanding Bhatta constituted a scheduled offence which was triable by Anti-Terrorism Court constituted under Anti-Terrorism Act, 1997---Cumulative effect of the contents of F.I.R., attending circumstances and record of case would determine whether alleged offence fell within purview of any of the provisions of Anti-Terrorism Act, 1997---Act done by accused created a sense of insecurity among people and was covered by Ss.6 & 7 of the Anti-Terrorism Act, 1997---Trial Court's order transferring accused's case to regular court having no cogent and plausible reasons, was set aside.

Nazir Ahmad and others v. Nooruddin and another 2012 SCMR 517 and Mst.Raheela Nasreen v. The State and another 2002 SCMR 908 rel.

Ch. Muhammad Farooq Ahmad for Petitioner.

Sittar Sahil A.A.-G. with Umar Farooq S.I. for the State.

Ch. Muhammad Shaukat for Respondents Nos. 2 to 4.

Date of hearing: 28th May, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2554 #

2014 Y L R 2554

[Lahore]

Before Altaf Ibrahim Qureshi and Sadaqat Ali Khan, JJ

ASHIQ HUSSAIN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.199 and Murder Reference No.36 of 2012, heard on 11th March, 2014.

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

----Ss. 302(b), 379, 148 & 149---Qatl-e-amd, theft, rioting, common object---Appreciation of evidence---Benefit of doubt---Delay of 1-1/2 hours in lodging F.I.R., was not plausibly explained, which had created serious doubt regarding the truthfulness of prosecution story, especially when five nominated co-accused had been acquitted---Said delay was result of consultation, deliberation for roping the innocent persons in the case---Prosecution witness having not seen the occurrence, his credibility, had become doubtful---Prosecution witness, who claimed to be eye-witness, did not make locale of injury, and simply stated that accused made a fire, and did not state that whether fire of accused hit the deceased or not---Conflict between ocular and medical evidence, was not ignorable---Presence of prosecution witness at the spot at the relevant time, became doubtful---Motive was not proved against accused---Criminal litigation between complainant party and family of accused was admitted---Alleged recovery of pistol from accused was legally inconsequential as no crime empty had been recovered from the place of occurrence---Pistol allegedly recovered from the possession of accused could not be connected with the alleged crime---Prosecution having failed to bring home guilt of accused to the hilt; Trial Court was not justified in convicting accused while basing upon untrustworthy/ uncorroborated evidence deposed by interested witnesses, which even otherwise were full of material contradictions, especially unreliable story deposed by prosecution witnesses---Accused was acquitted of the charge, extending him benefit of doubt---Accused was directed to be released, in circumstances.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 rel.

(b) Criminal trial---

----Evidence---Improvements in prosecution evidence---Improvements, once found deliberate and dishonest, would cast serious doubts on the veracity of the witness.

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

----Motive---Scope---Motive was double edge weapon in criminal case, as it could cut both ways.

Malik Saeed Ijaz for Appellants.

Nadeem Iqbal Ch. Sardar Muhammad Abbas Khan and Rana Rizwan for Respondents.

Asghar Ali Gill, D.P.G. for the State.

Date of hearing: 11th March, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2570 #

2014 Y L R 2570

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD JAMSHAID---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE/ ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and 2 others---Respondents

Writ Petition No.9812 of 2013, decided on 13th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Registration of case---Respondent had secured a direction from Justice of Peace for registration of case against the petitioner on various grounds---Police had reported that occurrence alleged in the application filed by respondent under S.22-A, Cr.P.C. had not taken place---Justice of Peace despite that vide impugned order issued direction to the petitioner to make statement before the S.H.O.---Validity---Justice of Peace, did not disclose the commission of any cognizable offence against the petitioner---Justice of Peace, while passing impugned order, had not examined the Police report---Keeping the order of Justice of Peace in field, when application filed by respondent had been consigned, would amount to misuse of process of law---Impugned order passed by Justice of Peace was set aside, resulting into the dismissal of application filed by respondent under S.22-A, Cr.P.C.

Muhammad Shoaib Khokhar for Petitioner.

Wali Muhammad Khan, A.A.-G. and Aulad Hussain, S.I. for the State.

Mehmood Khan for Respondent No.3.

YLR 2014 LAHORE HIGH COURT LAHORE 2598 #

2014 Y L R 2598

[Lahore]

Before Amin-ud-Din Khan, J

JAVED IQBAL---Petitioner

Versus

Malik KHURRAM JAHANGIR and 2 others---Respondents

Writ Petition No.2898 of 2011, decided on 29th August, 2013.

Punjab Rented Premises Act (VII of 2009)---

----S.15--Constitution of Pakistan, Art.199--Constitutional petition---Ejectment of tenant---Landlord filed eviction petition which was accepted by the Rent Tribunal but same was dismissed by the Appellate Court---Validity---Application for eviction was filed against sole tenant who was dead at the time of filing of application which was not proceedable and such defect was not curable---Eviction petition was incompetent and order passed by the Rent Tribunal was nullity in the eye of law---Landlord had come before the High Court in extra ordinary constitutional jurisdiction and for invoking such jurisdiction, he was bound to show some jurisdictional defect---Applicant had failed to point out any such defect in the impugned judgment---Appellate Court had minutely gone through the evidence and reached to a right conclusion---Landlord had made contradictory claims during proceedings of ejectment petition which disentitled him for exercise of such jurisdiction in his favour---Constitutional petition was dismissed in circumstances.

Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs. and others 2013 SCMR 464 rel.

Mian Khurram Shehzad for Petitioner.

Ziafat Hussain Cheema for Respondent.

Date of hearing: 29th August, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 2623 #

2014 Y L R 2623

[Lahore]

Before Muhammad Tariq Abbasi, J

ZULFIQAR ALI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.357 of 2009, heard on 16th April, 2014.

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

----Ss. 302, 337-H(2) & 34---Qatl-e-amd, hurt by rash or negligent act, common intention---Appreciation of evidence---Benefit of doubt---Injured-victim deposing in favour of accused---Effect---No injury on the person of deceased was attributed to the accused---Accused was only alleged to have inflicted a club blow on the jaw of the injured-victim during the occurrence---Said injured-victim was not examined as a prosecution witness but was given up as being won-over---Said injured victim in fact made a statement in defence of accused by stating that no injury was caused to him; that accused reached the spot empty handed, after the occurrence; that accused was involved in the case as he was closely related to the co-accused persons, and also because his father was a rich person---Investigating Officer admitted in his cross-examination that many persons appeared before him to state that accused only tried to rescue/ intervene during the occurrence, and was empty-handed and did not cause any injury to anyone---Prosecution witnesses did not utter a single word to the effect that accused and co-accused persons arrived at the spot with pre-planning and pre-meditation or after sharing a common intention---Accused was acquitted of the charge in such circumstances, while giving him benefit of doubt---Appeal was allowed accordingly.

(b) Criminal trial---

----Evidence---Standard of proof---Prosecution should prove its case against accused beyond shadow of all reasonable doubts---Decision of criminal cases on the basis of presumptions was not allowed at all.

Ch. Faqir Muhammad for Appellant.

Mian Abdul Qayyum, A.P.-G. for the State.

Sardar Usman Sharif Khosa for Complainant.

Date of hearing: 16th April, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2634 #

2014 Y L R 2634

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD SARDAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.8843-B of 2013, decided on 11th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 109 & 34---Qatl-e-amd, abetment, common intention---Bail, refusal of---Accused had allegedly murdered his daughter-in-law in his house---Blood stained earth was recovered from the place of occurrence---Accused was named with specific role for causing fatal injuries to the deceased---Witnesses in their statements under S.161, Cr.P.C., had supported the version of complainant---According to postmortem report, deceased received four injuries, including entry and exit wounds; and all of them were on vital parts; two injuries caused death of the deceased---Four empties recovered from the place of occurrence, had corroborated the version of complainant and witnesses---Plea of accused, that complainant had filed private complaint by improving his stance, which had made case of accused that of further inquiry, had no substance as specific role was assigned for causing death; and mere filing of private complaint could not be a ground for concession of bail; as same role was attributed in private complaint to the accused.

Muhammad Tanveer Chaudhary for Petitioner.

Hafiz Ghulam Shabbir for the Complainant.

Ch. Muhammad Akram Tahir, DDPP and Muhammad Asim, A.S.-I. for the State.

YLR 2014 LAHORE HIGH COURT LAHORE 2642 #

2014 Y L R 2642

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD NAWAZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5119-B of 2013, decided on 12th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.376 & 496-A---Abduction to commit rape---Pre-arrest bail, grant of---Accused not named in F.I.R.---Abductee was produced by complainant before investigating officer---Accused persons raised the plea that they were not involved in abduction---Validity---When complainant knew name of real brother of one of the accused persons and implicated him by name, what prevented him from making mention of accused persons in F.I.R.---Complainant had cast the net wide to implicate as many persons of the very same family as possible---Mala fide of complainant floated on the surface of the record---Pre-arrest bail was confirmed in circumstances.

Malik Muhammad Ijaz Khokhar for Petitioners.

Mian Abdul Qayyum, A.P.-G. with Naveed, S.I. and Iqbal, A.S.-I. with record for the State.

Mehr Abdul Majeed for the Complainant.

YLR 2014 LAHORE HIGH COURT LAHORE 2647 #

2014 Y L R 2647

[Lahore]

Before Sikandar Zulqarnain Saleem, J

SHAHID NAWAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3257-B of 2014, decided on 21st July, 2014.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.376---Rape---Bail, grant of---Direct evidence---Medical and ocular account---Accused was arrested for committing rape of minor girl---Validity---Accused acted in like a beast and deflowered innocent baby girl aged about 5-6 years and on arrival of witnesses fled away from the scene after leaving the minor as living corpse---Direct allegation of Zina (rape) was available against accused, which fact was fully supported by medical evidence---Prima facie, there existed sufficient evidence on the record connecting accused with commission of crime---Bail was refused in circumstances.

Mian Faiz Hussain for Petitioner.

Ch. Muhammad Akbar D.P.G. for the State with Khalid, A.S.-I.

Ch. Shakeel Ahmad, for Respondents No.2.

YLR 2014 LAHORE HIGH COURT LAHORE 2665 #

2014 Y L R 2665

[Lahore]

Before Arshad Mahmood Tabassum, J

MAZHAR ALI QURESHI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others---Respondents

Writ Petition No.12516-A of 2010, heard on 13th February, 2014.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Constitution of Pakistan, Art. 199--- Constitutional petition---Application for eviction of tenant---Landlord moved an application for ejectment of tenant wherein an application for leave to defend was filed which was dismissed concurrently---Contention of tenant was that he had purchased the suit house---Validity---Relationship of landlord and tenant between the parties had been denied---No written tenancy agreement was on record and landlord was to establish the said relationship---Rent Tribunal was to allow the application for leave to defend and frame issue with regard to existence of relationship of landlord and tenant and then to decide application for ejectment after recording of evidence---Appellate Court had committed illegality while passing the impugned judgment which was based on mis-reading and mis-construction of pleadings of the parties---Impugned judgment passed by the Appellate Court and order passed by the Rent Tribunal were not tenable and same were passed in violation of law and without lawful authority which were set aside---Case was remanded to the Rent Tribunal with the direction to frame issue with regard to existence of relationship of landlord and tenant and then decide the same in accordance with law---Constitutional petition was accepted in circumstances.

Muhammad Naeem Kareemi for Petitioner.

Khawaja Ijaz Hussain Siddiqui for Respondents.

Date of hearing: 13th February, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2676 #

2014 Y L R 2676

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

MUHAMMAD SHAHBAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 1069, 1126 and Capital Sentence Reference No.29/T of 2010, heard on 22nd January, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(a) & 7(a)---Qatl-e-amd, kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Both the witnesses had not only rendered discrepant statements inter se, but also made some self-contradictory depositions---Witnesses of last seen had made certain improvements in their statements, for which they were duly confronted with their previous statements under S.161, Cr.P.C.---Evidence of last seen had been fabricated by the Police so as to involve accused persons in the case, and create a linkage between them and the crime committed---Discrepancies and self-contradictory depositions of both the prosecution witnesses, had rendered their statement worthless and incredible, which could not be given any weight---Evidence of last seen, was the weakest type of circumstance, which could easily be manoeuvred by the prosecution, wherever direct connecting evidence against an accused, did not come in their way---Law required unimpeachable corroboration of such like evidence, but such particular piece of evidence alone was untrustworthy and unreliable---Continuous chain of events, without any breach could, establish the guilt of accused, based on circumstantial evidence, but in the present case, it appeared to be a ragged, shaken and shabby situation which had dwindled the idea of building an uninterrupted chain by the prosecution---Medical evidence hardly advanced the prosecution case in plausible terms---Prosecution, in circumstances, had failed to prove the charge against accused persons beyond reasonable shadow of doubt---Impugned judgment being unsustainable was annulled and conviction and sentence of accused persons were set aside, they were acquitted of the charge and were directed to be released, in circumstances.

Naqibullah and another v. The State PLD 1978 SC 21; Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515; Fazal Elahi alias Sajawal v. The State PLD 1953 FC 214; Allah Ditta v. The State 1980 PCr.LJ 163 and 1977 SCMR 20 rel.

Azam Nazeer Tarar for Appellant.

Khurram Khan, Deputy Prosecutor General Punjab for the State.

Mian Muhammad Rauf Ahmad for the Complainant.

Date of hearing: 22nd January, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2688 #

2014 Y L R 2688

[Lahore]

Before Sadaqat Ali Khan and James Joseph, JJ

MUHAMMAD AJMAL alias AJI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.116 and Murder Reference No.54 of 2010, heard on 25th March, 2014.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd, common intention---Appreciation of evidence---Compromise arrived at between co-accused and legal heirs of the deceased was found genuine, appeal to the extent of co-accused was accepted on the basis of compromise---Conviction and sentence recorded by the Trial Court against co-accused, were set aside and he was acquitted---F.I.R. was registered with un-explained delay of six hours---Prosecution witness who was a chance witness, could not establish his presence at the place of occurrence at relevant time---Said witness had not seen the occurrence, and he deposed falsely being real Bhanja (nephew) of the deceased; his evidence was disbelieved in circumstances---Eye-witness who was independent witness, was not produced without any reason---Presumption could fairly be drawn that had said witness been examined in the court, he would have deposed against the prosecution---Occurrence took place in the dark hour of night and no source of light was given in the F.I.R. or in the statement of prosecution witness---Identification of accused in the darkness of the night, was not free from doubt, in circumstances---Motive was not proved in the case---Mere absconsion of accused was not sufficient to prove his guilt---Rifle .7 MM allegedly recovered from accused, was not sealed at the spot, and there being no report of Forensic Science Laboratory, said recovery had become inconsequential---Alleged dying declaration was a concocted story, which had been procured by the prosecution through concoction, as deceased was not in a position to make statement; and statement was not verified by any member of the hospital staff to the effect that statement was actually made by the deceased---Prosecution had failed to bring home guilt of accused to the hilt, and the Trial Court was not justified in convicting accused while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses, which even otherwise was full of material contradictions---Conviction and sentence awarded to accused by the Trial Court, were set aside, accused was acquitted of the charge and was released, in circumstances.

Jaffar Ali alias Jafari v. The State 2012 SCMR 606; Mst. Zahida Bibi v. The State PLD 2006 SC 255; Riaz Ahmed v. State 2010 SCMR 846; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Muhammad Payyaz v. The State 2012 SCMR 522 rel.

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

----Art. 46---Dying declaration---Scope---Dying declaration, was a statement of a person without test of cross-examination and was a weak type of evidence---Credibility of dying declaration depended upon the authenticity of the record and the circumstances under which it was recorded---Rule of criminal administration of justice was that the dying declaration like the statement of an interested witness required close scrutiny; and was not to be believed merely for the reason that dying person was not expected to tell a lie.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 and Tahir Khan v. The State 2011 SCMR 646 rel.

Muhammad Umair Mohsin for Appellants.

Raja Muhammad Sohail Iftikhar for the Complainant.

Asghar Ali Gill, D.P.G. for the State.

Date of hearing: 25th March, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2706 #

2014 Y L R 2706

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Muhammad Kazim Raza

Shamsi, JJ

SAIF ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.93-J and Murder Reference No.198 of 2010, heard on 9th April, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about 8/9 hours in lodging crime report, was not plausibly explained---Medical evidence was contradicted by ocular account---Accused was stated to be armed with hatchet, but said weapon was changed during course of cross-examination by the complainant to the effect that accused was armed with Kassi---Prosecution had changed its stance and had tried to bring the case in line, but failed to do so---Recovery in the case was of no consequence, because same was effected from an open place lying under the cluster of wood---Co-accused who had actively participated in the occurrence, were acquitted by the Trial Court while extending them benefit of doubt, while disbelieving bulk of the prosecution version, on the same set of evidence---Acquittal of said co-accused had not been assailed by prosecution before any forum---If evidence of the prosecution was disbelieved qua certain accused, it could not be believed qua the other, in absence of very strong corroboration---Reasoning advanced by the Trial Court while recording guilt of accused were based upon inculpatory part of statement of accused recorded in terms of S.342, Cr.P.C.---Prosecution had to stand on its own legs and weaknesses of the defence, could not be made basis for recording conviction in any manner---Prosecution had miserably failed to establish its case against accused beyond reasonable doubt---Statement of accused either had to be accepted in toto or discarded in its entirety unless there existed other independent/reliable evidence which supplemented prosecution case, which was not so, in the present case---Trial Court was not justified in convicting accused while basing upon untrustworthy/ uncorroborated evidence, which even otherwise was full of material contradictions---Conviction passed by Trial Court, in circumstances, was against all canons of law recognized for the dispensation of criminal justice---Benefit of doubt was to be extended in favour of accused---Conviction and sentence recorded by the Trial Court against accused, were set aside; he was acquitted of the charge and was released, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6; Sheral alias Sher Muhammad's case 1999 SCMR 697; Sher Bahadur's case 1972 SCMR 651; Iftikhar Ahmed v. The State and others 2014 SCMR 7 and Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---For extending the benefit of doubt in favour of accused, so many circumstances were not required, rather one circumstance which would create reasonable doubt in the veracity of prosecution version, could be taken into consideration for the purpose, not as a matter of grace, but as a matter of right---Court could err in letting off 100 guilty, but should not convict one innocent person on the basis of suspicion.

Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ms. Bushra Qamar for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Zaka ur Rehman Awan for the Complainant.

Date of hearing: 9th April, 2014.

YLR 2014 LAHORE HIGH COURT LAHORE 2724 #

2014 Y L R 2724

[Lahore]

Before Amin-ud-Din Khan, J

GAHNA through L.Rs. and others---Petitioners

Versus

KHAN MUHAMMAD and others---Respondents

Civil Revision No.2382 of 2003, heard on 4th June, 2013.

(a) Custom (Punjab)---

----Limited owner---Scope---Contention of plaintiffs was that they being legal heirs of deceased (son of pre-deceased son's son) were entitled to inherit from the property left by him---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Half property was inherited by son of the deceased and half gone to his pre-deceased son's son who was not entitled for the same under the Shariah but he inherited under the custom---Said property was to revert back at the time of death of pre-deceased son's son to the legal heirs of the propositus---Widow, her legal heirs or sister of pre-deceased son's son were not entitled to inherit as he was not full owner---Property was transferred in the name of widow as limited owner under custom till her death or her second marriage---Widow contracted second marriage, property reverted back and mutation was attested validly in favour of sons of propositus---Plaintiff born after 10 years from the death of father of pre-deceased son's son and she could not be his real sister---Findings recorded by the First Appellate Court were against the law as well as facts of the case---Suit was filed after 52 years and same was time-barred---Revision was accepted and judgment and decree passed by the First Appellate Court were set aside.

(b) Co-sharer---

----Legal heir would become co-sharer with others at the time of death of the propositus and no formal attestation of mutation was required.

Abrar Hasan for Petitioners.

Muhammad Farooq Qureshi Chishti for Respondents.

Date of hearing: 4th June, 2013.

YLR 2014 LAHORE HIGH COURT LAHORE 2734 #

2014 Y L R 2734

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

Mst. ROSHAN ARA BEGUM---Petitioner

Versus

Sayed HAMID ALI and 5 others---Respondents

Civil Revision No.600-P and Criminal Miscellaneous No.727-P of 2013, decided on 28th August, 2013.

Civil Procedure Code (V of 1908)---

----S. 12 (2) & O. XXIII, R. 3---Specific Relief Act (I of 1877), Ss. 42 & 8---Suit for declaration and possession---Application under S. 12(2), C.P.C.---Compromise decree---Application for setting aside compromise decree was accepted concurrently--- Validity---Applicant had neither been personally served in the suit nor she had knowledge about its pendency and she had never given any power-of-attorney to the alleged attorney---Impugned judgment and decree passed on the basis of compromise was the result of fraud and misrepresentation and same was rightly set aside by the courts below---Respondent had failed to point out any illegality or irregularity in the concurrent findings of the courts below which had neither exercised jurisdiction not vested in them nor had failed to exercise jurisdiction so vested nor had acted illegally or with material irregularity---Judgments and decrees of both the courts below were well-founded and needed no interference by the High Court---Revision was dismissed in limine.

Sardar Ali Khan for Petitioner.

Nemo being motion case for Respondent.

Date of hearing: 28th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 73 #

2014 Y L R 73

[Peshawar]

Before Waqar Ahmad Seth, J

Malik UMER FAROOQ---Petitioner

Versus

FEDERATION and others---Respondents

Writ Petition No.224 of 2006, decided on 19th September, 2013.

Cantonments Act (II of 1924)---

----Ss. 3 & 4(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Inclusion of certain private lands into limits of Cantonment Board through Notification (No. 787(I)/2002, dated 2-10-2002)---Validity---Petitioners had not challenged vires of Cantonments Act, 1924 and/or basic Notification No. 220, dated 18-7-1909---Petitioners for having got approved their site plans from Cantonment Board were estopped by their conduct and law of acquiescence---Similar constitutional petition filed earlier had been withdrawn with permission to file fresh one vide order dated 18-5-2006, thus, present petition was time-barred---Notifications dated 16-6-1961, 2-10-2002 and 15-2-1952 had been published at relevant time in three different newspapers---High Court dismissed constitutional petition while directing Authority to provide all basic facilities to inhabitants of Cantonment Board.

Tehsil Municipal Officer, Abbottabad v. Government of Pakistan, Ministry of Defence and others 2007 SCMR 478 rel.

Ghulam Younis Tanoli for Petitioner.

D.A.G. for the State.

Haji Muhammad Yousaf for Cantonment Board.

Date of hearing: 19th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 90 #

2014 Y L R 90

[Peshawar]

Before Abdul Latif Khan, J

RAZA KHAN---Petitioner

Versus

M. ABID KHAN and another---Respondents

Criminal Miscellaneous B.C.A. No.170 of 2013, decided on 12th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, cancellation of---Petition for---Cheque in question was dishonoured three days after its issuance, but complainant waited for about 7/8 months and lodged report after more than 8 months from dishonouring of the cheque, and no plausible explanation had been furnished for such delay---Punishment for the offence with which accused was charged, did not fall within prohibitory clause of S.497, Cr.P.C., where bail was a rule and refusal an exception---Accused had not denied the issuance of cheque, but had stated that same was issued for security purpose---Whether the handing over of a cheque for security purpose, would constitute an offence under S.489-F, P.P.C., or not was to be seen---Element of dishonesty to constitute an offence under S.489-F, P.P.C. was the basic requirement in the case where cheque had been given for the adjustment/repayment of loan, and not in case where it was given as security---Cheque dishonoured in every eventuality could not constitute an offence under S.489-F, P.P.C.

Mian Allah Ditta's case 2013 SCMR 51 rel.

Muhammad Ghazanfar Ali for Petitioner.

Muhammad Waheed Anjum for Respondent No.1.

Khan Wali Khan Mahsud Addl: A.G. for the State.

Date of hearing: 12th July, 2013.

YLR 2014 PESHAWAR HIGH COURT 110 #

2014 Y L R 110

[Peshawar]

Before Lal Jan Khattak, J

GOVERNMENT POLY TECHNICAL INSTITUTE (Female) and 3 others---Petitioners

Versus

MUHAMMAD BAKHSH and 2 others---Respondents

Civil Revision No.44 of 2013, decided on 25th July, 2013.

Specific Relief Act (I of 1877)---

---S. 8---Suit for possession of immovable property---Contention of plaintiffs was that defendants acquired land measuring 22-kanals but they had illegally included 7-marlas land in their institute for which neither any award had been issued nor any compensation amount had been paid---Suit was decreed concurrently---Validity---Defendants initially acquired 22 kanals of land and prior to said land there was no other land in the same vicinity or khata belonging to them nor they acquired some additional land from the plaintiffs or other landowners---Inside area of the Institute was measured and total area was 22 kanals and 17 marlas---Defendants were in possession of excess land (more than 22 kanals) than their entitlement for which they had no explanation---Local Commissioner was not an ordinary person but was expert on the subject of measurement being Naib Tehsildar and there was no question of any wrong and false calculation of the area inspected and measured by him---Trial Court instead of passing a decree for possession of excess land of 7 marlas ordered the defendants to pay its compensation to the landowners which was just decision and had fixed market value which was fixed by the Supreme Court in an earlier round of litigation---Both the courts below had assessed and appreciated evidence and material on record correctly and properly and had rightly granted relief to the plaintiffs---No illegality or infirmity in the concurrent findings of the two courts below was found which were maintained---Revision was dismissed in circumstances.

Khan Wali Khan Mehsud, A.A.-G. for Petitioners.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 25th July, 2013.

YLR 2014 PESHAWAR HIGH COURT 120 #

2014 Y L R 120

[Peshawar]

Before Muhammad Daud Khan and Assadullah Khan Chamkani, JJ

SHAH JAHAN KHAN---Petitioner

Versus

STATE BANK OF PAKISTAN through Governor and 5 others---Respondents

Writ Petition No.116-M of 2012, decided on 4th July, 2013.

(a) Constitution of Pakistan---

----Art.25---Equal protection of law---Reasonable classification---Scope---All citizens are equal before law and are entitled to equal protection of law which should not be allowed to be withheld---Person or class of persons placed in different circumstances and in different set of facts could be treated differently and any classification which was reasonable, proper on solid basis, must always rest upon some differences---Persons placed in different circumstances and in different set of facts, if given different treatment, would not be treated as unreasonable classification.

Shehzad Riaz v. Federation of Pakistan through Secretary Cabinet Division and 3 others 2006 YLR 229 rel.

(b) Constitution of Pakistan---

----Art.25---Equal protection of law---Scope---Equal protection of law does not mean that every citizen, no matter what his condition, must be treated in the same manner---Phrase 'equal protection' of law means that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other class of persons in like circumstances---Persons, similarly situated or in similar circumstances, would be treated in same manner---All law implies classification for, when it applied to a set of circumstances, it created thereby a class and equal protection meant that classification should be reasonable.

Brig: (Rtd.) F.B. Ali and another v. The State PLD 1975 SC 506 rel.

----Arts.25 & 199---Constitutional petition--Equal protection of law---Discrimination---Relief package meant for general customers/borrowers of the Bank---Entitlement of Bank employees for such relief--- Scope--- Petitioners' being employees of the Bank, got loan on a non-interest basis---Federal government announced relief package for the borrowers of Malakand Division through which their loans were written off---Petitioners/employees of the Bank being borrowers like other domiciled of Malakand Division claimed benefit of said relief package---Bank refused the claim of petitioners as they were not general customers of the Bank, they were employees and their arrangements of credits/advances/finances availed were regulated by the rules of the Bank---Contention of the petitioners was that Bank had already written off the loans of borrowers having domicile of Malakand Division but the petitioners' who also belonged to the same division were discriminated against---Validity---Case of petitioners was not covered by the scheme/ packages approved/launched either by the Government or by the State Bank of Pakistan and the respondent-Bank---Staff loans or the advances given to the employees of the Bank was an arrangement between the Bank and its employees covered by their own service rules/scheme and were not treated at par with the finances advanced to general customers on commercial basis---Finances advanced to the petitioners/bank employees were not covered by any of the scheme/package of remission given as relief packages sanctioned/launched by the government and State Bank of Pakistan---Constitutional petition was dismissed.

Mian Iqbal Hussain for Petitioner.

Zafar Ali, Faroukh Adam Khan, Hidayatullah and Mukaram Shah, D.A.-G. for Respondents.

Date of hearing: 4th July, 2013.

YLR 2014 PESHAWAR HIGH COURT 139 #

2014 Y L R 139

[Peshawar]

Before Abdul Latif Khan, J

KHUDA BAKHSH---Petitioner

Versus

FAZALUR REHMAN---Respondent

Civil Revisions Nos.544, 517 and 528 of 2011, decided on 1st July, 2013.

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

----Ss. 12 & 42---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell---Limitation---Suit for declaration---Plaintiffs filed suit to the effect that they had purchased suit property through sale-deed from the defendant---Suit was decreed concurrently---Validity---Suit had been filed after about 14/15 years and there was no explanation as to why plaintiffs had filed the same so much delay---Period for filing suit on the basis of agreement to sell was three years from denial of defendant---No evidence was on file as to when denial was made by the defendant lastly and suit being time-barred was liable to be dismissed---Agreement to sell on the basis of which suit had been filed was not proved---No receipt with regard to payment of sale consideration was on record---Sale consideration which was prime factor had not been proved---Revenue Record spoke about the ownership of the defendant and there was no entry in the same in respect of change of possession which was necessary for the proof of purchase of land by dint of unregistered deed---Property having value of more than Rs. 100 could be transferred only through registered instrument and without such no valid and legal title vested in the purchaser---Purchaser of property could not claim any title as an owner of the same on the basis of unregistered document---Plaintiffs had not proved that they were inducted into possession of suit property under the impugned sale by the vendor---Provision of limitation was meant to eliminate fraud committed by efflux of time---Evidence of plaintiffs was silent as to why mutation or registered sale-deed was not got attested in their favour---Agreement to sell, under S.54, Transfer of Property Act, 1882 would not create or propose to create any right or interest in the property---No right of ownership vested in favour of plaintiffs---No proper evaluation of evidence had been made in true perspective by the courts below---Appellate Court was bound to thrash the evidence and record its own findings but said court had simply endorsed the findings of the Trial Court---Dismissal of appeal mainly depending upon the findings of the Trial Court was not judgment in the eye of law---Revision was accepted and impugned judgments and decrees passed by the courts below were set aside and suit was dismissed.

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

----S. 54---Sale---Scope---Property having value of more than Rs. 100 could be transferred only through registered instrument and without the same no valid and legal title vested in the purchaser---Purchaser of property could not claim any title as a owner of the property on the basis of unregistered document---Agreement to sell did not create or propose to create any right or interest in the property.

Rustam Khan Kundi, S. Mastan Ali Zaidi and Miss Farhana Jabeen for Petitioners.

Salahuddin Khan Gandapur for Respondent.

Date of hearing: 1st July, 2013.

YLR 2014 PESHAWAR HIGH COURT 154 #

2014 Y L R 154

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

BAKHTIAR KHAN and 5 others---Petitioners

Versus

QASIM JAN and 14 others---Respondents

Civil Revision No.1220 of 2011, decided on 20th September, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for specific performance of contract---Rejection of plaint---Scope---Contention of defendants was that suit being time-barred was not maintainable---Application for rejection of plaint was dismissed---Validity---Averments made in the plaint were of prime consideration for determining the disclosure of cause of action but same alone was not the sole criteria for such purpose---Written statement and documents available with the plaint could be looked into for determining the disclosure of cause of action---Question of rejection of plaint could be considered at any stage of proceedings of the case---Plaint should be rejected when cause for rejection of the same appeared and even same could be rejected at appellate and revisional stage---Scope of O. VII, R. 11, C.P.C. was limited---Purpose behind the rejection of plaint was to protect the defending party from the agonies of the protracted trial in the civil matters and such would save the time of the court---Such provision of law should be exercised only when the courts came to the conclusion that even if the averments made in the plaint were proved, the plaintiff would not be able to get any relief or no useful purpose would be achieved by keeping the suit pending---Question of limitation was considered as a mixed question of law and fact and its determination would require recording of evidence but not in all cases---Question of limitation was clear in the present case and same would call for no evidence---Plaintiffs had filed suit for specific performance after 12/13 years after filing of application for partition by the defendants which was time-barred---Both the parties were co-sharers and plaintiffs were enjoying the possession of joint property---Order passed by the Trial Court was not in accordance with law---Trial Court had failed to exercise its jurisdiction in accordance with law which was amenable to the revisional jurisdiction---High Court could grant relief of rejection of plaint---Plaint was rejected.

Nazeer Ahmad and others v. Ghulam Mehdi and others 1988 SCMR 824; Ghulam Sarwar v. Mst. Sultan Bibi and others 1989 MLD 4873; Muhammad Ali and another v. Naziran Bibi and others 2002 YLR 1463; Port Services Company Ltd. v. Port Services (Pvt.) Ltd. through Chief Executive and others 2006 CLC 303; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 and S.M. Shafi Ahmad Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs 2002 SCMR 338 rel.

Shahbaz Khan for Petitioner.

Ghani-ur-Rehman for Respondents.

Date of hearing: 20th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 178 #

2014 Y L R 178

[Peshawar]

Before Mrs. Irshad Qaiser, J

ABU BAKAR and others---Petitioners

Versus

Mst. KHAYBER JAN and others---Respondents

Civil Revision No.378 of 2012, decided on 15th July, 2013.

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

----S. 42---Suit for declaration---Sale mutation---Burden of proof---Sale transaction by a pardanashin lady---Precautions---Paradanashin lady---Scope--Plaintiff filed suit to the effect that she was owner in possession of suit property---Contention of defendant was that he had purchased the said land through sale mutation---Suit was dismissed by the Trial Court but same was remanded by the Appellate Court---Validity---Wherever an illiterate, old-age person, pardanasheen lady or female issue of a Muslim was deprived of her property through sale, exchange, gift, inheritance etc., then beneficiary of the transaction would be required to prove its genuineness---Beneficiary would be required to prove with confidence-inspiring evidence that same was the result of free and independent advice of the person parting with the property---Factum of fraud was to be proved by the person alleging the same but in such-like circumstances mere assertion in pleading and evidence were sufficient to discharge their burden---Defendant who alleged sale mutation in his favour was required to strengthen the sale transaction to defeat the claim of plaintiff---Defendant did not appear in the witness box to prove the execution of mutation and payment of sale consideration---Tehsildar and Patwari halqa were not produced to prove that they prepared and attested the same at the instance of plaintiff and she had received sale consideration---Defendant was bound to produce the marginal witnesses of the mutation to prove that same was executed in their presence---Son of defendant appeared in the witness box as attorney of his father but he had not stated about the inability of his father to appear in the witness box---Trial Court had not considered such facts at the time of decision of the case---Appellate Court had rightly found that findings of Trial Court were ambiguous and evidence and material highlighted on record were not discussed---Custom of year 1964 regarding obtaining of signature/thumb-mark on the mutation required comprehensive discussion---Defendant had failed to point out any illegality or irregularity in the impugned judgment---No jurisdictional defect by the Appellate Court was pointed out---Resolution of disputed issue on merit was the goal of administration of justice---Revision petition was dismissed in circumstances.

Muhammad Iqbal v. Mukhtar Ahmed 2008 SCMR 855; Muhammad Akram and another v. Altaf Ahmed PLD 2003 SC 688; Masood Akhtar v. Manzoor Ahmed 2005 CLC 1651; 2005 MLD 1013; 1990 CLC 1968; 1986 CLC 545; Mst. Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Badshah Begum v. Ghulam Rasool and others PLD 1991 SC 1140; Ghulam Ali and 2 others v. Ghulam Sarwar Naqvi PLD 1990 SC 1; PLD 2011 Pesh. 10; 1993 SCMR 6187; 1994 CLC 1774 and 2000 SCMR 346 rel.

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

---S.54---Sale---Ingredients---Ingredients of sale transaction to be proved were; sale by seller in favour of purchaser, fixation of sale consideration as well as receipt of the same, delivery of possession of transferred property to the purchaser and marginal witnesses.

----Resolution of disputed issue on merit was the goal of administration of justice.

Babar Khan for Petitioners.

Ghulam Jelani for Respondents.

Date of hearing: 15th July, 2013.

YLR 2014 PESHAWAR HIGH COURT 196 #

2014 Y L R 196

[Peshawar]

Before Syed Afsar Shah, J

Sir IQBAL KHAN---Petitioner

Versus

HAMED IQBAL KHAN---Respondent

Civil Revision No.222-B of 2012, decided on 27th August, 2013.

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

----O. VII, R. 11---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), Ss. 13, 31 & 5---Suit for possession through pre-emption---Application for rejection of plaint---Plaintiff filed pre-emption suit wherein defendant moved application under O. VII, Rule 11, C.P.C. on the grounds that suit was barred by law, that pre-emptor had failed to deposit 1/3rd of the pre-emption amount within time and impugned transaction had been cancelled---Application was accepted concurrently---Validity---Suit was dismissed on the ground of limitation but both the courts below had not attended the remaining two grounds taken in the application---Nothing was on record which could show about the attestation of impugned mutation---Statements of some of the vendors were recorded but neither the entry of mutation nor the recording of such statements were sufficient to close the proceedings of sale which required the attestation by the revenue officer in the form of an order---Both the courts below had committed illegality while computing the period of limitation from the date of entry of mutation---Revision was accepted and impugned orders of both the courts below were set aside and case was remitted back with the direction to the Trial Court to see that sale had been completed and remaining grounds taken in the application be looked into.

Gharib Shah and others v. Razam Gul PLD 1984 SC 188 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 31---Suit for possession through pre-emption---Commencement of limitation---Limitation for pre-emption suit had to be computed from the date of registration of sale deed or attestation of mutation or taking over physical possession of the land in question by the vendee or of the knowledge of the pre-emptor if the transaction was not covered under paragraphs (a), (b) and (c) of S.31 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

Fazl-e-Hadi for Petitioner.

Bashir-ur-Rehman Burki for Respondent.

Date of hearing: 27th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 288 #

2014 Y L R 288

[Peshawar]

Before Mrs. Irshad Qaiser, J

SAJID and 2 others---Appellants

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.54 of 2010, decided on 12th June, 2013.

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

----Ss. 17(4) & 24---Penal Code (XLV of 1860), Ss.302(b), 324 & 337-A(iv)---Constitution of Pakistan, Art.203-DD---Haraabah, qatl-e-amd, attempt to commit qatl-e-amd, causing Shajja-i-Munaqqalah---Forum of appeal, determination of---Jurisdiction of Federal Shariat Court to entertain and hear the murder reference, appeal and revision---Scope---Accusation and the nature of offence committed by accused for which he/she initially was tried and charged would determine the forum of appeal; and not the outcome of trial because forum of appeal would not change with the result of the trial---High Court, in the present case, had no jurisdiction to hear the appeal against the order passed by the Trial Court---Present reference, appeal and revision, were completely misconceived and not maintainable before the High Court---Registrar of the High Court, was directed to send the appeal, murder reference and revision petition to Federal Shariat Court for further necessary action.

2000 PCr.LJ 1155; 2004 PCr.LJ 430; PLD 1999 SC 1063; 2004 SCMR 207; PLD 1983 FSC 33; 1984 SCMR 129 and 2007 PCr.LJ 295 ref.

Falak Sher v. State 1996 PCr.LJ 804; PLD 2011 FSC 1; Ghazafar Ali v. State 2010 YLR 657; Advocate General Sindh v. Munir Ahmed and 2 others PLD 2007 Kar. 184; Muhammad Sharif v. State PLD 1999 SC 1063; State v. Parik 1997 PCr.LJ 1900; Qurban Ali v. State Criminal Appeal No.14 of 1998 and Fayyaz Ahmed v. State PLD 2003 Kar. 441 rel.

Haji Faridoon Khan Jadoon for Appellant.

M. Nawaz Khan Swati A.A.-G. for the State.

Shad Muhammad Khan for the Complainant.

Date of hearing: 12th June, 2013.

YLR 2014 PESHAWAR HIGH COURT 323 #

2014 Y L R 323

[Peshawar]

Before Dost Muhammad Khan, C J

FARAZ ANWAR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous (B.A.) Nos. 301-P to 306-P and 269-P of 2013, decided on 1st April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Forgery for purpose of cheating, using as genuine a forged document, abetment receiving illegal gratification---Bail, grant of---Further inquiry---No material or any evidence was on record to show that accused persons were paid illegal gratification, for showing illegal favour to suspects, to whom computerized National Identity Cards were issued---When a criminal case was based on presumption, it would become a borderline case---If such a situation would arise, then accused could not be kept in prison on the basis of inference, to be drawn on presumption, unless there was evidence connecting neck of accused person with the commission of the crime; which was not in the present case---Case of accused was one of further inquiry, because the forged documents, were not of handwriting of accused---Offences under Ss.468, 471, 109, were not attracted, in circumstances---Accused were admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioners.

Muhammad Jamil Khan Warsak Standing Counsel and Amjad Ali, Inspector FIA/ACC for the State.

Date of hearing: 1st April, 2013.

YLR 2014 PESHAWAR HIGH COURT 350 #

2014 Y L R 350

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

KHALID MUSHARAF HUSSAIN ZUBAIRI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.1058-P of 2013, decided on 20th August, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---National Database and Registration Authorities Ordinance (VIII of 2000), S.30---Foreigners Act (XXXI of 1946), S.14---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, concealing and refusing to furnish information which a person ought to disclose or furnish etc., contravention of provisions of law or any order made thereunder, corruption---Bail, grant of---Further inquiry---Punishment for most of the offences with which accused was charged, was not more than seven years and not covering by prohibitory clause of S.497, Cr.P.C.---Name of accused did not figure in the F.I.R., but he was subsequently arrayed as an accused in the statements of his co-accused in their statements recorded under S.161, Cr.P.C., which had no evidentiary value---Most of co-accused who had made confessional statements, had been released on bail---Justice, demanded the same treatment with the accused as well---Prosecution had not placed on record any reasonable/sufficient material on basis whereof, one could believe that there appeared reasonable grounds for believing that accused was connected with the offence charged with, and there were grounds for further probe into the guilt of accused---Case of accused, in circumstances, fell within the purview of further inquiry as envisaged in subsection (2) of S.497, Cr.P.C. which entitled accused to the concession of bail---Case was fit for grant of bail to accused.

Arshad Hussain Yousafzai for Petitioner.

Iqbal Muhammad by A.G. for the State.

Date of hearing: 20th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 359 #

2014 Y L R 359

[Peshawar]

Before Abdul Latif Khan, J

Syed IQBAL HUSSAIN SHAH---Petitioner

Versus

Mst. KALSOOM BIBI through LRs. and others---Respondents

Civil Revision Petition No. 19-D of 2013, decided on 9th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Suit for declaration---Burden of proof---Sale mutation---Contention of plaintiffs was that mutation was fictitious, bogus and without consideration---Suit was decreed concurrently---Validity---Payment of sale consideration as well as valid attestation of mutation had been proved through examination of one of the vendor, marginal witnesses and revenue officials including Patwari halqa, Tehsildar, and Girdawar circle---Marginal witnesses had identified transferors and had suggested that transaction took place properly and mutation was validly attested---Attesting officer of mutation had supported the marginal witnesses---Defendant had proved the mutation through independent evidence and same could not be annulled on the mere allegations---Mere assertion that beneficiary had to prove the mutation would in no case exonerate the plaintiff from initial burden which lay upon him to the allegation of fraud---Entries in the mutations register, though were not conclusive, but the evidence produced in support of the same would amount to discharge the burden which lay upon beneficiary---Sole statement of attorney of the plaintiff departing from the pleadings would not be sufficient to prove fraud---Plaintiff must plead fraud in the pleadings and same should be proved through reliable evidence which was lacking in the present case---Plaintiff had failed to prove the case---Both the courts below had wrongly scanned and evaluated the evidence on record---Findings of courts below suffered from infirmity and were perverse in nature---Revision was accepted and judgments and decrees of both the courts below were set aside and suit of plaintiff was dismissed.

Rustam Khan Kundi for Petitioner.

Ahmad Ali Khan for Respondents.

Date of hearing: 9th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 372 #

2014 Y L R 372

[Peshawar]

Before Lal Jan Khattak, J

QISMATULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No.213-D of 2013, decided on 26th August, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Exception---Dis-honouring of check in question, prima facie had established a fact that accused had committed offence under S.489-F, P.P.C.---Contention that the matter agitated by the complainant was of a civil nature, had no force, as no material was on the file which could suggest and indicate that the matter was out of the ambit of S.489-F, P.P.C. and was of a civil nature---Offence under S.489-F, P.P.C., was punishable upto a maximum period of three years, and same did not fall within the restrictive clause of S.497, Cr.P.C.---High Court, in the present case, refused bail to accused, on the ground that accused had not honoured his commitment, which he made with the complainant before the court to pay the complainant the amount in question, and accused deceived the court by issuing a cheque to the complainant, knowing well that amount in question was not in his account---Such attitude of accused was sufficient to bring his case within an exception justifying refusal of bail to accused---Case of accused though did not come within the restrictive clause of S.497, Cr.P.C., but conduct of accused showed disrespect to the commitment made before court of law, which had confirmed his bail before arrest on the strength of the cheque, which later on was dishonoured---Accused, in circumstances, had no right to be released on bail---Bail petition was dismissed, in circumstances.

2012 SCMR 573; PLJ 2012 SC 776; 2010 MLD 1063 and 2012 PCr.LJ 1956 ref.

Ghulam Hur Khan Baloch for Petitioner.

Sanaullah Khan Shamim, A.A.-G. for the State.

Date of hearing: 26th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 381 #

2014 Y L R 381

[Peshawar]

Before Lal Jan Khattak, J

MUHAMMAD YAMEEN---Petitioner

Versus

DISTRICT EXECUTIVE OFFICER SCHOOLS AND LITERACY, D.I. KHAN---Respondent

Civil Revision No.88-D of 2013, decided on 31st July, 2013.

Limitation Act (IX of 1908)---

----S. 5---Limitation---Condonation of delay---Principles---Dismissal of appeal being time barred---Condonation of delay on account of illness of appellant---Scope---Appellant had averred that he was unable to file appeal within time as he was hospitalized due to illness---Validity---In order to prove illness, the petitioner had not annexed any document showing that either he was ill or was admitted at hospital for his medical treatment---Mere bald and oral statement that the petitioner could not prefer appeal within time due to his indisposition could not be a sufficient ground to condone the delay caused in filing the appeal---In order to seek condonation of delay caused in filing of a lis, litigant must explain the delay of each and every day which the petitioner had not so explained---Revision petition was dismissed.

Sh. Iftikhar-ul-Haq for Appellant.

Khan Wali Khan Mehsud, A.A.-G. for Respondent.

Date of hearing: 31st July, 2013.

YLR 2014 PESHAWAR HIGH COURT 399 #

2014 Y L R 399

[Peshawar]

Before Qaiser Rashid Khan and Lal Jan Khattak, JJ

Messrs GANDAPUR CONSTRUCTION COMPANY---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary (C&W) and 3 others---Respondents

Writ Petition No.423 of 2012, decided on 7th May, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability--- Alternate remedy---Contractual obligation--- Petitioner-company obtained contract through tender---Prayer of petitioner was for payment of escalation amount as per clause of agreement which he suffered due to price-hike in the construction material and increase in carriage charges---Validity---Arbitration clause existed in the agreement with regard to referring matters to the Superintending Engineer in case of any disagreement arising out of the contract and Superintending Engineer was to give his decision in writing not later than three months after reference was made to him---Said clause of agreement had provided forum to the parties to settle their disputes out of court through process of arbitration---Such was a forum where all the disputed matters would be discussed by recording pro and contra evidence by the experts---When agreement itself had provided forum for resolving a dispute, without availing such forum disputed questions of fact could not be placed before the High Court under its constitutional jurisdiction---High Court might issue writ only when facts were admitted and there was no alternate remedy to the aggrieved person---Neither facts of present case were admitted nor petitioner was divested of alternate forum for resolution of his grievance---Constitutional petition was not maintainable in circumstances---Petitioner might approach the department for arbitration as per clause of the agreement and if he opted for the same then Authorities were directed to proceed as per arbitration clause in accordance with law and merit---Constitutional petition was dismissed in circumstances.

Haji Salim Jan for Petitioner.

Khan Wali Khan Mehsud, A.A.-G. for Respondents.

Date of hearing: 7th May, 2013.

YLR 2014 PESHAWAR HIGH COURT 425 #

2014 Y L R 425

[Peshawar]

Before Abdul Latif Khan, J

HAYATULLAH---Petitioner

Versus

Mst. AASHU MAI through Legal Heirs---Respondent

Civil Revision No.33 of 2012, decided on 22nd August, 2013.

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

----O.V, Rr.17, 20 & O.IX, Rr.6 & 13---Limitation Act (IX of 1908), Art.164---Ex parte decree, setting aside of---Time barred application---Effect---Period of limitation started from the date of knowledge---Scope---Ex parte decree was passed against the petitioner/defendant---Application for setting aside ex parte decree was dismissed by trial and appellate Courts being time barred---Contention of the petitioner was that he was not served with the notice of Court and ex parte proceedings were initiated without observing legal requirements provided for passing ex parte decree---Validity---Perusal of the order sheet of trial Court revealed that summons was not returned either served or unserved, but instead of issuing fresh notice for personal service or service through male member of petitioner/defendant's family, the Trial Court had ordered for service through affixation of summons on conspicuous place with boundaries---Trial Court had ordered service by affixation at pre-mature stage, as the legal requirement prior to the same was not complied with and even the service by affixation was not proved on the record---Trial Court had not examined the process server who had affixed the notice on conspicuous place and as such on the first date of hearing, the petitioner/defendant was placed ex parte which culminated into ex parte decree---Limitation for filing application seeking setting aside ex parte decree was thirty days---Limitation has to be reckoned from the date of decree but where summons was not duly served, the Limitation would start from knowledge of the defendant---Service of petitioner/defendant was not effected and service through affixation at conspicuous place was also effected at pre-mature stage and as such the petitioner/ defendant was not duly served, therefore the limitation commenced only from the knowledge of the petitioner/defendant and not from the decree---Courts below had not adhered to legal aspect of the case and opted to pass the orders in routine matter which were not warranted by law---Ex parte decree was set aside and the case was remanded to the trial Court for decision afresh---Revision petition was accepted.

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

----O.IX, R.6 & O.XX, Rr. 4, 5---Ex parte decree/judgment---Contents/findings of judgment---Scope---Trial Court had passed an ex parte order in an omnibus manner and no findings were given on issues involved in the case---Validity---Defendant had been placed ex parte, therefore the trial Court was required to pronounce the judgment in accordance with law with regard to the issue involved in the case with all the clarity in findings, supported by reasons upon any one or more issues, sufficient for the decision of case but in no eventuality, shall pass an order in an omnibus manner by holding that as there was nothing in rebuttal due to the reason that the defendant had been placed ex parte---Ex parte decree which was alien to law had been discouraged---Ex parte decree was set aside---Revision petition was allowed.

Malik Muhammad Bilal for Petitioner.

Abdullah Khan Gandapur for Respondents.

Date of hearing: 22nd August, 2013.

YLR 2014 PESHAWAR HIGH COURT 468 #

2014 Y L R 468

[Peshawar]

Before Ikramullah Khan, J

NOOR MAIDAR---Petitioner

Versus

ALTAF AHMAD KHAN---Respondent

Civil Revision No.852 of 2008, decided on 1st July, 2013.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----Ss. 4 & 5---Transfer of Property Act (IV of 1882), S.41---Qanun-e-Shahadat (10 of 1984), Arts. 77, 79, 102, 117 & 118---Civil Procedure Code (V of 1908), S.79, O. XXVII & O. I, R. 10---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Unregistered deed---Notice to produce secondary evidence---Occupancy tenancy---Proprietary rights---Burden of proof---Effect---Plaintiffs filed suit for declaration to the effect that they were owners in possession of suit property---Contention of the defendant was that he had purchased suit land through unregistered deed---Suit was decreed concurrently---Validity---Neither original deed was exhibited nor scribe and attesting witnesses of the said deed had been produced before the Trial Court---Defendant had neither given any notice with regard to produce secondary evidence of unregistered deed nor he had obtained any permission for the same---Burden of proof was on the defendant to prove that he had purchased the property in question from a lawful owner and transaction of the same thereof but he had failed to prove the same---Defendant could not be permitted to raise inconsistent plea with regard to possession of the land without paying rent and acquiring proprietary rights over the same due to adverse possession---Defendant had failed to prove unregistered deed for purchase of suit land---Acquiring proprietary rights over the land by efflux of time due to adverse possession had been declared against the Injunction of Islam and no such plea was available to any person after the year 1990---Possession over the suit land might be ascertained from the revenue record but neither the defendant nor the Trial Court tried to place on record the Khasra Girdawari---Fard jamabandi produced and exhibited during course of trial had negated version of the defendant that he was in possession of the suit property---Provincial Government was owner of the suit property and plaintiffs were entered as "Dakhal Karaan" in the column of tenancy---Mere late proof of mutation did not confer ownership rights in landed property without proof of the real transaction with regard to change of ownership or for the purpose of acquisition of proprietary rights over the same---Plaintiffs were under obligation to produce the order/decision passed by the Deputy Commissioner which allegedly had conferred proprietary right upon them but they failed to produce the same---No one should be deprived of his proprietary rights except with his consent---Plaintiffs could not be conferred proprietary rights over the suit property without impleading the Provincial Government as a party---Courts below were under obligation to summon the Provincial Government as a party to the suit---No one could acquire proprietary rights in any land being the occupancy tenant after the target date i.e. 23-3-1990---Plaintiffs acquired the proprietary rights in the suit land through the attestation of mutation which was attested without jurisdiction by the revenue officials---When basic order was found to be without lawful authority, then all the superstructure built on such order would fall on the ground automatically---Burden of proof would lie on the person not in possession of a particular or disputed land as to how the person in possession of said land had occupied the same---Trial Court failed to frame issues as to whether the property of Provincial Government could be mutated under the annulled law of Khyber Pakhtunkhwa Tenancy Act, after the target date of 23-3-1990 and whether the Government was not necessary party to the suit as well as how the defendant was in possession of the suit property---Such questions of law and facts were not properly analyzed by the courts below---Impugned judgments passed by both the courts below were set aside and case was remanded to the Trial Court with the direction to summon the record of order of Deputy Commissioner and Provincial Government be impleaded as a defendant and case be decided after ascertainment of actual position of suit land as to who was in possession of the same.

Fida Hussain v. Murid Sakina 2004 SCMR 1043; Fida Hussain v. Abdul Aziz 2005 CLC 1801; Aurangzeb v. Muhammad Jaffar 2007 SCMR 236; Mst. Noor Fatima 1990 SCMR 629; Ghulam Rasool PLD 1971 SC 376 and Muhammad Yousaf v. Hukomat Pakistan PLD 1990 SC 760(sic) rel.

Azghar Ali for Petitioner.

Atlas Khan Dazai for Respondent.

Date of hearing: 1st July, 2013.

YLR 2014 PESHAWAR HIGH COURT 482 #

2014 Y L R 482

[Peshawar]

Before Mrs. Irshad Qaiser, J

MUHAMMAD IBRAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.614-A of 2013, decided on 21st October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.336 & 34---Itlaf-i-Salahiyyat-i-Udw---Bail, grant of---Further inquiry---Injury was alleged to have been caused with fist blow on lips and upper tooth of the injured---Nature of injury, would be determined during the trial after placing both the reports, i.e. medico-legal report and report of dental surgeon in juxtaposition with the ocular account---Case of 'further inquiry as envisaged in S.497(2), Cr.P.C. has been made out---Accused was admitted to bail, in circumstances.

Zahoor alias Jara v. State 2005 YLR 1664 and Shuaib Mehmood Butt's case 1996 SCMR 1854 rel.

Fazal-i-Haq Abbasi for Petitioner.

Raja Zubair, D.A.G. and Muhammad Khurram Khan for Respondents.

Date of hearing: 21st October, 2013.

YLR 2014 PESHAWAR HIGH COURT 485 #

2014 Y L R 485

[Peshawar]

Before Ikramullah Khan, J

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Petitioners

Versus

MUHAMMAD ANWAR KHAN---Respondent

Civil Revision No.1758 of 2010, decided on 3rd October, 2013.

Civil Procedure Code (V of 1908)---

---O. IX, R. 13, O. XXVII, R. 1, O. I, R. 10 & S. 79---Limitation Act (IX of 1908), Arts. 164 & 181---Specific Relief Act (I of 1877), S. 8---Suit for possession of immovable property in possession of government---Ex parte decree, setting aside of---Limitation---Decree passed ex parte might be set aside if summons was not duly served or defendant was prevented by sufficient cause from appearing when suit was called on for hearing---Period for setting aside ex parte decree was 30-days from the date of the same or where summons was not duly served when defendant acquired knowledge of the decree---Neither the original report endorsed upon the notice had been exhibited nor statement of court official had been recorded by the Trial Court to ascertain the factum of service of summons---Written statement submitted by the Government Pleader had not been verified by any person duly authorized by the Government or defendants---Government Pleader might sign and verify any pleadings on behalf of the Government, but in the present case, Provincial Government had not been made party to the suit---Government had not sanctioned defence of the suit through proper notification---Government Pleader was not authorized to submit written statement on behalf of defendants---Such kind of pleadings signed or verified by Special Public Pleader without expressed authorization by the concerned Government should not be treated as pleadings on behalf of the Government---Judgment, order or decree passed with regard to any property owned or possessed by the Provincial or Central Government without making them as a party into suit should be void ab initio and should not be allowed to be executed against the said Government---Government should be made party to the lis where the interest of the same was under challenge---Government was not made party specifically as per mandatory provisions of law in the present case---No proof was on record as to whether the Administrative Head of the Department had been served with any notice in the suit---Suit property was in the ownership of Government and Trial Court was bound to implead the same while exercising its suo motu power---No ex parte proceeding should be ordered when case was not fixed for hearing---Defendants were placed ex parte in the suit on the date which was not fixed for hearing---Subsequent proceeding conducted against the defendants which culminated into ex parte decree was nullity in the eye of law in its very inception---Trial Court had ignored the mandatory provisions of law while placing the defendants ex parte and passed an ex parte decree against them---No limitation was provided for setting aside void order---Ex parte decree could be challenged within a period of 3 years in view of circumstances of present case---Impugned judgments passed by the courts below were not sustainable having been rendered in a cursory manner---Ex parte decree passed by the Trial Court was set aside---Revision was accepted in circumstances.

Government of Balochistan and others v. Nawab Zada Mir Tariq Hussain Magsi and others 2010 SCMR 115 and Wali Khan v. Mst. Khush Begum 2011 CLC 421 rel.

Arshad Ahmad Khan D.A.G. for Petitioners.

Muhammad Ajmal Khan for Respondent.

Date of hearing: 3rd October, 2013.

YLR 2014 PESHAWAR HIGH COURT 500 #

2014 Y L R 500

[Peshawar]

Before Qaiser Rashid Khan and Lal Jan Khattak, JJ

MEHARBAN---Appellant

Versus

AJAB NOOR and another---Respondents

Criminal Appeal No.126 of 2011, decided on 15th May, 2013.

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

----S. 154---F.I.R.---Evidentiary value---F.I.R. was not a substantive piece of evidence and its contents could not be used against accused, unless and until same were proved in the court by its maker.

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

----Art. 34---Admission, proof of---Admission could be proved by, or on behalf of the person making it, if it was relevant otherwise than as an admission.

----Ss. 302(b) & 337-F(vi)---Qatl-e-amd, causing Munaqqilah to any person---Appreciation of evidence---Investigating Officer recovered various incriminating articles from the spot vide recovery memo, which memo stood proved as same was not disputed by the defence---Site plan had shown that occurrence had taken place in the house of accused---Contents of said document, having not been controverted by the defence, same stood proved---Site plan and recovery memo, showed that apart from the F.I.R., their contents could be relied upon, which had been duly proved---Further corroboration of involvement of accused was sought from the deposition of prosecution witness, who deposed that, the deceased travelled with him, and that on the very next morning he heard about the murder of the deceased---Another corroborating factor lending support to the guilt of accused to the commission of the offence, was his abscondence---Mere recovery of dead body from the house, though did not connect the dweller of a house with the commission of an offence, but in the present case it was not a mere recovery of dead body from his house, but his brother-in-law also sustained injury from his fire shot---Prosecution having succeeded in bringing home guilt to accused, he was rightly convicted and sentenced by the Trial Court.

1992 SCMR 2037; 1991 SCMR 241; 1992 SCMR 2088; 2008 SCMR 1221 and PLJ 1974 Cr.C. (Lah.) 640 ref.

Abdul Latif Baloch, Ghulam Hur Khan Baloch and Ghulam Muhammad Sappal for Appellant.

Khan Wali Khan Mehsud, A.A.-G. for the State.

Bahadur Khan Marwat for the Complainant.

Date of hearing: 15th May, 2013.

YLR 2014 PESHAWAR HIGH COURT 510 #

2014 Y L R 510

[Peshawar]

Before Ikramullah Khan, J

NAJEEBULLAH and 25 others---Petitioners

Versus

AMIN-UR-REHMAN---Respondent

Civil Revision No.398 of 2010, decided on 30th September, 2013.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----S.4---Specific Relief Act (I of 1877), S.42---Occupancy tenants, rights of ownership---Scope---Declaratory suit instituted by the petitioner against the respondents in respect of suit-land was dismissed---Appeal filed by petitioner was also dismissed by Appellate Court---Contention of the petitioners was that they were the original owners of the suit-land, while respondents were their tenants and could not acquire proprietary rights in suit land---Validity---Revenue record produced and duly exhibited by the Revenue official during the course of trial without any objection by either party had fully supported the stance taken by the respondents in regard to acquisition of the proprietary rights in the suit property---Petitioners had not proved that at the time of promulgation of the Khyber Pakhtunkhwa Tenancy Act, 1950, respondents or their predecessor had been paying any rent in cash or in kind in regard to the suit property---Respondents had acquired the status of full owners of the suit-land without payment of any compensation---Revision was dismissed.

Qazalbash Waqf v. Chief Land Commissioner, Lahore 1989 SCMR 2012 distinguished.

Misbahullah for Appellants.

Hussain Ali for Respondent.

Date of hearing: 30th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 537 #

2014 Y L R 537

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

MUHAMMAD ABRAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos.347-P, 363-P and Muhammad Reference No. 14 of 2012, decided on 10th October, 2013.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-A, 337-F & 337-Y---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah, punishment of Ghayr-Jaifah, arsh for heir---Appreciation of evidence---Complainant and other eye-witnesses, did not specifically charge any of the accused person for specific role of effective firing upon the deceased or the injured; only a general assertion of firing was alleged at the complainant party---Accused persons were reported to have started indiscriminate firing upon eye-witnesses; and because of said firing, the deceased was hit and died, and complainant and other were injured, but none of said witnesses, was specific about as to whose fire shots resulted in causing injuries to the deceased and the injured---Benefit of such serious omission on the part of the prosecution would go in favour of accused; and it would not be safe to saddle the capital charge upon him---Testimony of prosecution witnesses, was a repetition of each other, and they did not state any special or distinct testimony attributing any special role to accused persons---Retracted confessional statements of accused persons, would do little to advance the case of prosecution, as same did not fulfil the legal threshold of reliability in the touchstone of being a truthful, voluntary and inculpatory---Accused persons had fired at complainant party only in retaliation, whereas 'site plan' prepared on the pointation of the complainant, was in conflict with said version---No empties were recovered from the spot, whereat the complainant party was stated to have been present---Confessional statements of accused persons, which were not corroborated with other evidence, could not be safely stated to be truthful---Accused persons after rendering their confession before the Magistrate, having been handed over to Police, their confessional statements could not be said to have been recorded in accordance with the requirements of law---Omission to put corroboratory evidence to accused during his evidence under S.342, Cr.P.C., would benefit accused as same could not be used against him---When the ocular evidence of the two eye-witnesses, lacked the crucial attribute of being specific in its charge, then to award conviction basing same even on the strongest circumstantial evidence, would not be in accord with the safe dispensation of justice in criminal cases---Omission on the part of the prosecution to produce injured independent eye-witness, would go in favour of accused persons, and would have a strong presumption against the prosecution---Prosecution having failed to prove its case beyond any shadow of reasonable doubt, impugned conviction and sentences recorded against accused persons by the Trial Court, were set aside---Accused persons were acquitted of the charges and were set free, in circumstances.

Farman Ali's case PLD 1980 SC 201; Manzoor's case 1992 SCMR 2037 and Niaz Muhammad alias Niazi v. The State 1996 PCr.LJ 394 ref.

Barrister Muhammad Zahurul Haq for Appellant.

Muhammad Saeed Khan for the Complainant.

Mian Arshad Jan, A.A.-G. for the State.

Date of hearing: 10th October, 2013.

2014 Y L R 606

[Peshawar]

Before Lal Jan Khattak, J

KHUDA BAKHSH through Legal heirs---Petitioner

Versus

JALIL-UR-RAHMAN and others---Respondents

Civil Revision No.58 of 2010, decided on 29th August, 2013.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession of immovable property---Contention of plaintiff was that defendants had constructed house on suit-land which was owned by him whereas defendants contended that they had purchased the same from the plaintiff---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Constructed house was built upon Khasra numbers other than those sold by the plaintiff to the defendants---Appellate Court had not considered such aspect qua the construction of the house over an area other than one claimed by the plaintiff---Affirmative onus was on the plaintiff to prove that the entire area of land underneath the house of the defendants belonged to him which had allegedly been occupied by the defendants---Such onus had not been discharged by the plaintiff through convincing and reliable evidence---Plaintiff had sold out his entire land---Plaintiff was bound to prove his case by showing that in the joint khata he was owner to certain extent and after selling out specified share he still owned some further share in the said khata---Defendants had purchased the suit area and had constructed house over it along with other people---Roads and streets were also on the suit-land and it was difficult to hold that the encroached and excess area occupied by the defendants actually belonged to the plaintiff---Judgment and decree of the Appellate Court was not based on correct appreciation of evidence---Revision was accepted and judgment and decree of the Appellate Court was reversed and that of Trial Court was maintained and suit was dismissed.

Noor Gul Khan Marwat for Petitioner.

Muhammad Wahid Anjum for Respondents.

Date of hearing: 29th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 615 #

2014 Y L R 615

[Peshawar]

Before Abdul Latif Khan, J

QUTAB DIN---Petitioner

Versus

RASHIDAN BIBI and 6 others---Respondents

Civil Revision No.21 of 2012, decided on 20th September, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. XVIII, R. 1 & O. XII, R. 6---Qanun-e-Shahadat (10 of 1984), Art.113---Suit for specific performance of contract---Limitation---Judgment on admission---Suit was dismissed on the ground of failure of the plaintiff to prove execution of agreement to sell and payment of sale consideration---Validity---Attorney for one of the defendants had admitted the claim of the plaintiff who was not cross-examined by the contesting defendants---Sale consideration had not been proved---Plaintiff remained silent for considerable long period and his suit was beyond the period of limitation---Agreement to sell could not be relied upon without proof of sale consideration---Alleged sale had been made through an unregistered document for which tangible evidence was required but such evidence had not been produced---Decree should have been granted to the extent of defendant who had admitted the claim of plaintiff---No issue existed between the plaintiff and those who had admitted his claim---Plaintiff was not bound to adduce evidence against the defendant who had admitted his claim---Court had power to grant decree at any stage where admission of fact had been made either in pleadings or otherwise---Facts admitted need not to be proved---Judgments and decrees of courts below were modified to the extent of defendant who had admitted the claim of the plaintiff and decree was granted to such extent and to the extent of remaining defendants the same were kept intact.

Muhammad Waheed Anjum and M. Khurshid Qureshi for Petitioner.

Abdullah Khan Gandapur for Respondents.

Date of hearing: 20th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 628 #

2014 Y L R 628

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

KHAN BAHADUR KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.66-B of 2010, decided on 13th June, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 427 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, mischief, common intention---Appreciation of evidence---Both the deceased and two eye-witnesses were fired at by four accused, who were armed with rifles of 7.62 bore; the deceased received the bullets, but two prosecution witnesses escaped unhurt, which on the face of it, was not appealable to the prudent mind---Only inference, that one could draw from such course of events, was that eye-witnesses were not present at the spot---Ocular account was inconsistent with the medical evidence and the version of two eye-witnesses was belied by the medical evidence---Prosecution had not been able to prove its version with regard to motive---Actual motive for the occurrence seemed to be obscure and shrouded in mystery the benefit of which, must go to accused---Complainant and other eye-witness had furnished the ocular account, but on material points they were not consistent with each other---Both said eye-witnesses had made certain improvements in their court statements; S.324, P.P.C. was inserted in the F.I.R., but Trial Court had acquitted accused from said charge, which would mean that Trial Court was also not sure about their presence---Presence of said two eye-witnesses, appeared to be doubtful---Impugned judgment of the Trial Court, was set aside, accused was acquitted of the charge under Ss.302(b), 424, 427 & 34, P.P.C., and was set at liberty.

Islam Badshah and 2 others v. The State PLD 1993 Pesh. 7; Muhammad Zamman and others v. The State PLD 1993 Pesh. 13; Sikandar v. The State PLD 1963 SC 17; Shahbaz Khan Jakhrani v. Lal Baig Jakhrani 1984 SCMR 42; Aurangzeb v. The State and another 2010 YLR 1439 and Tariq Parvez v. The State 1995 SCMR 1345 rel.

Sultan Sheryar Khan Marwat for Appellant.

Ahmed Farooq Khattak A.A.-G. for the State.

Muhammad Farid Khan Maidad Khel for Respondent No.2.

Date of hearing: 13th June, 2013.

YLR 2014 PESHAWAR HIGH COURT 640 #

2014 Y L R 640

[Peshawar]

Before Malik Manzoor Hussain, J

JOHAR---Petitioner

Versus

The STATE and another---Respondents

Bail Cancellation Application No.433-A of 203, decided on 7th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, cancellation of---Principles---Civil suits were pending regarding the same dispute when the F.I.R. was filed---Question as to whether a cheque issued to 'self' and dishonoured on presentation, could be said to be issued with dishonest intention, or towards payment of loan, or fulfilment of an obligation, would seriously need consideration at trial---Case, in circumstances, would come within the ambit of "further inquiry", as envisaged under S.497(2), Cr.P.C.---Investigation of present case had already been finalized, and the challan had been submitted---Physical custody of accused, in circumstances, was not required at that stage for the purpose of investigation---No allegation had been levelled before the court, nor any material had been brought on record by the complainant regarding any misuse or abuse of the concession of bail by accused---Petition for cancellation of bail being devoid of merits, was dismissed, in circumstances.

Umar Hayat v. The State 2008 SCMR 1621; Mst.Noor Habib v. Saleem Raza 2009 SCMR 786; Muhammad Imran v. Gohar Rehman 1982 SCMR 1068 and Shahid Arshad v. Muhammad Naqi Butt 1976 SCMR 360 rel.

YLR 2014 PESHAWAR HIGH COURT 657 #

2014 Y L R 657

[Peshawar]

Before Abdul Latif Khan, J

MULLAZIM HUSSAIN alias MULLAZIM---Petitioner

Versus

DISTRICT OFFICER REVENUE/ COLLECTOR and 10 others---Respondents

Civil Revision No.107-D of 2012, decided on 9th September, 2013.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 26---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Bar on civil court to entertain suit against consolidation proceedings---Scope--- Procedure--- Inheri-tance mutation---Contention of plaintiff was that suit property was devolved upon him through inheritance mutation but same was not incorporated in the revenue record---Suit was dismissed concurrently---Validity---Plaintiff became owner of suit-land through inheritance mutation but same had not been incorporated in the revenue record---Plea of the plaintiff to such effect was well founded---Courts below were unable to evaluate the evidence in accordance with law---Names of defendants were wrongly entered in the revenue record which were liable to be deleted---Defendants had no nexus with the suit property---Appellate Court had wrongly concluded about the jurisdiction of the civil court---Prayer of plaintiff had not been considered by the Appellate Court which spoke about the entries to be incorporated on the basis of inheritance mutation---Plaintiff had never challenged the consolidation proceedings---Observations of the Appellate Court were misconceived---No bar existed to file declaratory suit challenging the entries in the revenue record before the civil court---Civil court had ample powers to adjudicate the matter unless expressly or impliedly barred---Appellate Court had recorded no reason and appeal had been dismissed being meritless which was alien to law---Appeal/suit had to be returned to the plaintiff for presentation before the proper forum in case of lack of jurisdiction instead of dismissing the same on merits---Revision was accepted and judgments and decrees of both the courts below were set aside and suit was decreed.

Mansoor Abbas for Petitioner.

Sanaullah Shamim A.A.-G. and Rehmatullah Khan for Respondents.

Date of hearing: 9th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 663 #

2014 Y L R 663

[Peshawar]

Before Muhammad Daud Khan, J

Mst. MUHMADIA---Petitioner

Versus

The STATE through A.A.-G. and another---Respondents

Criminal Bail Application No.376-M of 2013, decided on 29th August, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.496-A & 496-B---Enticing, or taking away, or detaining with criminal intent a woman, fornication---Bail, grant of---Case was one of moral turpitude and conduct of accused was undesirable for the society, especially in the area of Pakhtunkhwa culture, where Injunctions of Religion were strictly followed---Statement of accused under S.164, Cr.P.C., the proceedings under S.156(3), Cr.P.C., medical report, recoveries of Cellular Phones, and statements of independent witnesses, suggested reasonable ground for the accusation---Section 496-A, P.P.C. however, being not applicable to the case of accused, and S.496-B, P.P.C. was bailable offence, accused, in circumstances, was entitled for the grant of bail---Accused was directed to be released on bail.

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

----Ss. 497, 498 & 499---Bail, grant of---Sureties, type of---Duty of Court---Court accepting the bail application of an accused, was to prescribe conditions about the type of sureties, and the satisfaction of the officer accepting the surety bond---Even a routine bail order would contain certain conditions between the lines---Such imposition of condition, was not an illegality, but it was a practice and a requirement of the administration of justice---If an accused was unable to furnish the sureties of the type required by the court, he could presume that his request for grant of bail had been declined---Court could not pass bail orders mechanically, but it had to take into stock the status of the sureties, their availability in case, their presence was needed by the court, their capability of having access to accused; as well as the circumstances which provide a satisfaction to the court that the order would not be misused for the continuation of the illegality.

Mst. Shehnaz Bibi v. The State 2005 MLD 922 rel.

Abdul Jalal and Saeed Ahmed for Petitioner.

Haleem Khan for the Complainant.

Muhammad Javid A.A.-G. for the State.

Date of hearing: 29th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 707 #

2014 Y L R 707

[Peshawar]

Before Assadullah Khan Chamkani, J

UBAID AHMAD---Petitioner

Versus

The STATE---Respondent

Quashment Petition No.99-P and 107-P of 2012, decided on 25th October, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 523 & 550---Penal Code (XLV of 1860), Ss.419, 420, 468, 471, 411 & 216---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, dishonestly receiving stolen property, harbouring offender---Petition for quashing of order---Police seized vehicles, and criminal case was registered against accused persons---Trial Court not only acquitted accused persons facing the trial, but also acquitted the accused who were obsconding---Vehicles in questions were ordered to be confiscated in favour of the State---One of accused, had failed to provide any valid documents regarding his ownership of respective vehicle---Even the Registration Book of said vehicle produced by him, was found bogus---Said accused could not produce the person from whom he had allegedly purchased said vehicle---Accused, in circumstances, was not entitled for the return of vehicle in question, his petition for quashing of order was dismissed---Original Registration Book produced by second accused in respect of his vehicle, had shown that he was the actual owner of said vehicle and same was recorded in his name---Said accused was entitled for the return of vehicle in question, his petition for quashing the order, was allowed.

Fida Muhammad Afridi for Petitioner.

Muhammad Sohail, Dy. A.G. for the State.

Date of hearing: 25th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 736 #

2014 Y L R 736

[Peshawar]

Before Assadullah Khan Chamkani, J

SAEED ANEES---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.281-P of 2013, decided on 26th March, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Further inquiry---Accused was implicated in the present case after his mobile phone calls were traced---Questions as to whether complainant was the eye-witness of the occurrence; whether the occurrence had been witnessed by anyone; whether statements of any private witnesses under Ss. 161 and 164, Cr.P.C. had been recorded; whether empties recovered from the spot matched with the weapon recovered from the accused; whether there was any motive; whether the complainant charged the accused after his satisfaction or at the instance of the police, and whether there were some other allegations against the accused except for mobile phone calls, were questions calling for further inquiry---Accused was granted bail in circumstances.

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

----S. 497(2)---Bail---Case of further inquiry---Normal practice of courts in granting/refusing bail---When an accused became entitled to bail as of right under S.497(2), Cr.P.C., then the same could not be withheld on the ground of normal practice of the court, because the latter was relatable to exercise of discretion while the former was relatable to the exercise and grant of a right.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585 rel.

Naeem Khan for Petitioner.

Sabzada Assadullah for the Complainant.

Muhammad Imran for the State.

Date of hearing: 26th March, 2013.

YLR 2014 PESHAWAR HIGH COURT 740 #

2014 Y L R 740

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

QAISAR SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.332-P of 2013, decided on 11th April, 2013.

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

----S. 497---Penal Code (XLV of 1860), S.365-A---Kidnapping or abduction for extorting property, valuable security etc.---Bail, refusal of---Accused and his co-accused allegedly kidnapped the abductee for ransom and released him only after ransom had been paid---Statement of alleged abductee clearly suggested that accused had a clear-cut hand in the offence---Abductee had identified the accused along with the co-accused in a proper identification parade and ransom amount had also been recovered from him---Offence alleged fell within the prohibitory clause of S. 497(1), Cr.P.C.---Reasonable grounds existed to believe that accused was connected with the alleged offence---Accused was refused bail accordingly.

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

----S. 497(1)---Bail---Prohibitory clause of S.497(1), Cr.P.C.---Scope---Bail should be granted as a rule in cases which did not fall within the prohibitory clause of S.497(1), Cr.P.C., and should be refused in exceptional cases---For cases which fell within the prohibitory clause of S. 497(1), Cr.P.C., the court had to be more vigilant and slow in granting discretionary relief of bail.

Sohail Akhtar for Petitioner.

Arif Ullah Khan and Mehar Gul for Respondents.

Date of hearing: 11th April, 2013.

YLR 2014 PESHAWAR HIGH COURT 746 #

2014 Y L R 746

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

AMJAD ALI SHAH---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.38-B of 2012, decided on 12th September, 2013.

Penal Code (XLV of 1860)---

----Ss.324 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Attempt to commit qatl-e-amd, common intention---Appeal against acquittal---Appreciation of evidence---Abnormal delay in lodging F.I.R. and explanation furnished in that regard had no sound reason, which had made the prosecution version doubtful---Complainant and prosecution witness had alleged that they were fired at by accused persons who at that time were armed with rifles of 7.62 bore, but according to Medico-legal Report, weapon used in the commission of offence was blunt and injury was simple---According to Medical Officer, small abrasions were found on the right arm of the complainant---Ocular account, in circumstances, was belied by the medical evidence, which fact cast a serious doubt on the account furnished by the complainant and eye-witness---Neither the crime empty nor blood, were recovered from the spot, which had also made the case of prosecution doubtful---Upholding judgment of the Trial Court whereby accused were acquitted, acquittal of accused was maintained and appeal against acquittal was dismissed, in circumstances.

Muhammad Asif v. The State 2008 SCMR 1001; Islam Badshah and others v. The State PLD 1993 Pesh. 7; Hanifullah alias Hanif v. The State and another 2009 PCr.LJ 1414; Faryad Ali v. The State 2008 SCMR 1086; Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985; Raheem Khan v. The State 2012 MLD 309 and Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 rel.

Muhammad Rashid Khan Dirma Khel for Appellant.

Saifur Rehman Khattak A.A.-G. for the State.

Iftikhar Ahmad Khan Durrani for Respondent No.2.

Date of hearing: 12th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 772 #

2014 Y L R 772

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

AKHTAR---Petitioner

Versus

The STATE---Respondent

Bail Application No.1561-P of 2013, decided on 2nd December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Quantity of contraband and the expected quantum of punishment to be awarded to accused at the trial, had to be taken into account while allowing bail to accused---Punishment for less than ten Kilograms of alleged narcotic was up to fourteen years, whereas two kilograms of contraband charas had allegedly been recovered from the possession of accused---Accused was not likely to be awarded punishment for more than two years---Accused who had joined the investigation, was no more required to the Investigating Agency---Accused was neither a previous convict, nor involved in such like offences---Accused was allowed bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Arshad Ahmad Khan D.A.G. for the State.

Date of hearing: 2nd December, 2013.

YLR 2014 PESHAWAR HIGH COURT 803 #

2014 Y L R 803

[Peshawar]

Before Syed Afsar Shah, J

ZAHIR UD DIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Cancellation Criminal Application No.1800-P of 2013, decided on 15th January, 2014.

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

----Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 &149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Petition for cancellation of bail, dismissal of---Non-attribution of motive---Case of further inquiry---Deceased was allegedly killed as he was suspected of having an affair with the sister of one of the co-accused---Complainant alleged that on the day of occurrence one of the co-accused made a call on the cell phone of deceased and asked him to come to a place, where after deceased proceeded to such place and was murdered---Admittedly call made to deceased was by a co-accused---Motive was also attributed to a co-accused, with whose sister deceased was suspected of having an affair---According to firearm expert report empties recovered from the scene of occurrence were fired from the same weapon, and as against that six persons in total were charged in the F.I.R., therefore questions as to who had the weapon and who used it for committing the crime could be resolved at the trial---Wide scope of further inquiry existed into guilt of accused---Nothing existed on record to show that accused after his release on bail had misused or abused the concession of bail---Petition for cancellation of bail was dismissed accordingly.

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

----Ss. 497 & 497(5)---Grant of bail and cancellation of bail---Grounds---Grounds for cancellation of bail were altogether different from that for grant of bail---Once bail was granted by a court of competent jurisdiction, it was rarely interfered with, unless the impugned order was palpably illegal, arbitrary, perverse or against the record.

Hidayatullah Afridi for Petitioner.

Namo for Respondents.

Date of hearing: 15th January, 2014.

YLR 2014 PESHAWAR HIGH COURT 820 #

2014 Y L R 820

[Peshawar]

Before Syed Afsar Shah, J

INAYATULLAH and another---Petitioners

Versus

WAHIDULLAH and 5 others---Respondents

Criminal Miscellaneous Bail Petition No.136 of 2013, decided on 21st August, 2013.

(a) 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, common intention---Bail, refusal of---Appreciation of evidence at bail stage---Scope---Promptly lodged F.I.R.---Identification in moonlight---Allegation against accused persons was that they launched an attack on the complainant party killing 2 persons, while complainant and prosecution witnesses escaped the attack---Contention of accused persons that neither the complainant nor prosecution witnesses received even a single scratch despite being in firing range, therefore their presence at the scene of occurrence was highly doubtful---Validity---Such contention could not be gone into, as at bail stage, deep appreciation of evidence was totally unwarranted---F.I.R. was lodged about an hour after the occurrence---Although occurrence took place at night, but complainant statedly identified the accused persons in the light of moon---Considering material brought on record by the prosecution, including F.I.R., statements of eye-witnesses coupled with incriminating/circumstantial evidence, bail petition of accused persons was dismissed.

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

----S. 497---Bail---Appreciation of evidence at bail stage---Scope---Contentions regarding mistaken identity and inconsistency between the ocular account and site plan could safely be appreciated by the Trial Court---Deep appreciation of evidence was totally unwarranted at bail stage.

Muhammad Abbasi v. The State and another 2011 SCMR 1606 and Rab Nawaz and another v. The State and another 2005 PCr.LJ 13 rel.

Jehanzeb Khan Marwat for Petitioners.

Faridullah Khan D.A.G. for the State.

Hamayun Khan Wazir for the Complainant.

Date of hearing: 21st August, 2013.

YLR 2014 PESHAWAR HIGH COURT 849 #

2014 Y L R 849

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

SHEHZAD KHEZAR HAYAT---Petitioner

Versus

The STATE---Respondent

Bail Application No.467-P of 2013, decided on 6th May, 2013.

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---Narcotic allegedly recovered from the secret cavities of a vehicle---Non-availability of Forensic Science Laboratory report in respect of recovered narcotic---Effect---Non-availability of such report made the case against accused one of further inquiry---High Court observed that present case was not the first case in which report of Forensic Science Laboratory was missing or still awaited, and due to such omission and negligence of investigating officer the accused were released on bail by the courts on such ground alone---High Court directed the concerned Advocate-General to issue directions in such respect to the prosecuting agencies to do the needful in time---Accused was granted bail accordingly.

M. Salim Shakir for Petitioner.

Alamgir Khan Durrani Dy. A.G. for the State.

Date of hearing: 6th May, 2013.

YLR 2014 PESHAWAR HIGH COURT 879 #

2014 Y L R 879

[Peshawar]

Before Waqar Ahmad Seth, J

The STATE through Regional Director ANF through Deputy Attorney General

of Pakistan---Petitioner

Versus

AZIZ-UR-REHMAN---Respondent

Criminal Miscellaneous No.948-P of 2012, decided on 5th October, 2012.

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

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Maxim: "in favorem vitae, libertatis, et innocientiae, omnia praesumuntur"---Applicability---Petition for cancellation of bail, dismissal of---Bail was granted to accused (respondent) on medical grounds as he had allegedly suffered heart problem twice while in prison---Record confirmed that accused had been treated twice at a hospital due to serious cardiac problem---Medical documents showed that Angiography was conducted on the accused and that he would be operated for his heart disease in the near future---Illness of accused, in the present circumstances of the case, could not be doubted in view of the legal maxim "in favorem vitae, libertatis, et innocientiae, omnia praesumuntur" (all presumptions are in favour of life, liberty and innocence)---Strong and cogent reasons required for cancellation of bail were lacking in the present case---Complainant (petitioner) had not produced any record or document showing that accused had misused the concession of bail or that he did not have a heart disease---Accused was regularly attending Trial Court proceedings and he was not required for purposes of investigation---Petition for cancellation of bail was dismissed in circumstances.

Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231; 2009 SCMR 786 and 2008 SCMR 1715 ref.

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

----S. 497(5)---Cancellation of bail---Grounds and principles stated.

Shakeel Ahmad for the State.

Farhan Marwat for Respondent.

Date of hearing: 5th October, 2012.

YLR 2014 PESHAWAR HIGH COURT 892 #

2014 Y L R 892

[Peshawar]

Before Mrs. Irshad Qaiser, J

IMTIAZ---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No.1446-P of 2012, decided on 3rd December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession and trafficking of narcotic---Bail, grant of---Narcotic present in boot (diggi) of vehicle---Conscious knowledge of passenger in vehicle of the presence of the narcotic---Scope---Charas weighing 19 kilograms was recovered from the boot (diggi) of a vehicle and accused was allegedly sitting on the front seat of the said vehicle, which was being driven by the co-accused---Accused was neither driver nor owner of vehicle but was alleged to be a mere passenger---Nothing was recovered from immediate possession of the accused---Neither any evidence showed that accused was in conscious knowledge of the presence of contraband in the boot (diggi) of the vehicle nor anything on record showed that he was convicted or involved in cases similar to the present one---Accused was released on bail in circumstances.

Bail Petition No.1091 of 2011, decided on 1-8-2011 rel.

Noor Alam Khan for Petitioner.

Matiullah Balooch for the State.

Date of hearing: 3rd December, 2012.

YLR 2014 PESHAWAR HIGH COURT 896 #

2014 Y L R 896

[Peshawar]

Before Assadullah Khan Chamkani, J

AMIR alias AMIR SULTAN and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.378 of 2012, decided on 3rd September, 2012.

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

---S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Accused and co-accused persons were alleged to have fired at the complainant party---Accused was not charged in the F.I.R. but was implicated on basis of subsequent statement recorded under S. 164, Cr.P.C. by a female relative of the complainant---Name of said female had neither been mentioned in the F.I.R. as a victim nor as witness of occurrence but when the site plan was prepared by Investigation officer, she was shown as an injured of the occurrence---Perusal of site plan revealed that no blood was recovered from place of presence of said female and in any case she had received an injury on non-vital part of her body---Mere abscondment of accused would not create any hurdle in the way of bail, if otherwise, he was entitled to concession of bail---Mere commencement of trial or submission of challan before the court was no ground for refusal of bail if case of accused otherwise was one of further inquiry---Accused was released on bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 148 & 149--Attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Accused persons were alleged to have fired at the complainant---Accused persons attributed role of ineffective firing---Effective firing had been attributed to one of the co-accused---No empty shells or spent bullets were recovered from the spot---No supporting evidence to show participation of each and every accused in the commission of the alleged offence---Mere abscondment of accused persons would not create any hurdle in the way of bail, if otherwise, they were entitled to concession of bail---Mere commencement of trial or submission of challan before the court was no ground for refusal of bail if case of accused persons otherwise was one of further inquiry---Accused persons was released on bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

----S. 149---Unlawful assembly---Participation of an accused person---Burden of proof---Duty of prosecution to prove the participation of each and every accused in the commission of the offence.

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

----S. 497---Bail---Abscondment of accused---Effect---Mere abscondment of accused would not create any hurdle in the way of bail, if otherwise, he was entitled to concession of bail.

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

----S. 497(2)---Bail---Further inquiry---Submission of challan before court---Commencement of trial---Effect---Mere commencement of trial before court or submission of challan before the court was no ground for refusal of bail if case of accused was otherwise one of further inquiry within the ambit of S. 497(2), Cr.P.C.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Muqadar Khan for Petitioners

Muhammad Nisar for the State.

Date of hearing: 3rd September, 2012.

YLR 2014 PESHAWAR HIGH COURT 922 #

2014 Y L R 922

[Peshawar]

Before Ikramullah Khan, J

FARIDULLAH KHAN and 2 others---Petitioners

Versus

ABDUL GHANI and 2 others---Respondents

Civil Revision No.444 of 2005, decided on 25th September, 2013.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S. 11---Suit for possession of immovable property---Res judicata, principle of---Applicability---Contention of plaintiff was that possession of suit property was given to the defendants being tenants and agreement to sell in their favour was forged document whereas defendants contended that they were owners of suit property to the extent of 72 kanals through agreement to sell---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Cause of action between the parties in the previous suit was not same as in the subsequent one---Previous suit was with regard to specific performance of agreement to sell while present one was regarding mesne profit which could not be termed to be a decided issue---No issue with regard to usufruct was framed in the previous suit and no evidence with that regard was produced by the parties---Previous suit was with regard to 72 kanals while present one was regarding 179 kanals of land---Decree of specific performance to the extent of 72 kanals of land had been passed in favour of defendants but none of the courts had adjudicated upon the issue with regard to rest of property---Appellate Court was bound to give findings with regard to rest of suit property which was claimed by the plaintiff and was decreed by the Trial Court---Said court had failed to frame issue with regard to plea of res judicata which was raised before it---Impugned judgment of Appellate Court was set aside and case was remanded for decision afresh---Revision was accepted partially in circumstances.

Muhammad Saleem Ullah v. Additional District Judge Gujranwala and others PLD 2005 SC 511 rel.

Khalid Mehmood for Petitioners.

Asghar Ali for Respondents.

Date of hearing: 25th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 931 #

2014 Y L R 931

[Peshawar]

Before Malik Manzoor Hussain, J

MUHAMMAD AMIR KHAN and others---Petitioners

Versus

MUSHARAF KHAN and others---Respondents

Civil Revision No.15 of 2013, decided on 21st November, 2013.

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

----S.115---New ground raised at revision stage for the first time---Validity---Plea neither raised in the written statement nor taken before trial Court, could not be entertained or considered in the revisional jurisdiction of High Court.

Khan and others v. Province of Punjab and others 2005 SCMR 1135 rel.

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

----O.VI, R.7---Departure from pleadings---Validity---Parties cannot go beyond its pleadings and could not make a departure therefrom.

Khan and others v. Province of Punjab and others 2005 SCMR 1135 rel.

Abdul Wali Khan for Petitioners.

Gul Hayat Khan for Respondents.

Date of hearing: 21st November, 2013.

YLR 2014 PESHAWAR HIGH COURT 956 #

2014 Y L R 956

[Peshawar]

Before Malik Manzoor Hussain, J

LUTFULLAH and 20 others---Petitioners

Versus

MUBARAK SHAH and 11 others---Respondents

Civil Revision No.941-P of 2012, decided on 7th June, 2013.

Specific Relief Act (I of 1877)---

---S.42---Suit for declaration---Limitation---Sale mutation---Plaintiffs were never put in possession of property which they had claimed to have purchased in the year 1935---Predecessors of plaintiffs never filed any suit in their life-time---Partition proceedings of total khata were conducted and on the basis of the same mutation was attested in favour of defendants---Plaintiffs never challenged partition proceedings in the revenue hierarchy---Present suit was filed in the year 2007 and that too when property was transferred to another person---Plaintiffs could not offer plausible explanation for not filing suit against said owner who was in possession---Plaintiffs had failed to justify as to why they were out of possession from 1935 till filing of suit and what was khata number or Khasra number of property which had been transferred through sale mutation---Plaintiffs and their predecessors remained satisfied and silent for 72 years and they could not avoid the bar of limitation---Remedy in time-barred matters could not be granted---Findings of Trial Court and Appellate Court were based on correct appreciation of the material brought on record---Revision was dismissed.

Muhammad Ali v. Hassan Muhammad PLD 1994 SC 245; Noor Bibi v. Fazal Hussain 1998 SCMR 230; Nazar Gul v. Islam and others 2008 SCMR 877 and Jamila Khatoon v. Aish Muhammad 2011 SCMR 222 rel.

Muhammad Ibrahim Khan for Petitioners.

Javed-A-Khan for Respondents.

Date of hearing: 7th June, 2013.

YLR 2014 PESHAWAR HIGH COURT 964 #

2014 Y L R 964

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MUHAMMADULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.275-P of 2012, decided on 3rd May, 2013.

Penal Code (XLV of 1860)---

----Ss. 193 & 302---Criminal Procedure Code (V of 1898), S. 195---Giving false evidence, prosecution for---Procedure---Trial Court was competent to file complaint and by not doing so, no cognizance of offence could have been taken by the same---Impugned judgment was not sustainable in the eye of law and Trial Court had committed an illegality/ irregularity to try the accused by deviating from the relevant provisions of law---Appeal was allowed in circumstances and conviction and sentence was set aside and case was remanded to the Trial Court with the direction to proceed with the same in accordance with the relevant provisions of Criminal Procedure Code, 1898.

Amanulah and 4 others v. The State 1984 PCr.LJ 2798 and Shereen v. The State 2002 PCr.LJ 1427 rel.

Yousaf Shah Mohmand for Appellant.

Alamgir Khan Durrani, Deputy Advocate-General for the State.

Date of hearing: 3rd May, 2013.

YLR 2014 PESHAWAR HIGH COURT 978 #

2014 Y L R 978

[Peshawar]

Before Lal Jan Khattak, J

ALLAH WASAYA---Petitioner

Versus

ABDUR RASHEED---Respondent

Civil Revision Petition No.74-D of 2013, decided on 1st July, 2013.

Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----S. 13---Performance of Talb-e-Muwathibat and Talb-e-Ishhad---Proof---Suit for pre-emption filed by petitioner was dismissed by trial Court on account of failure to prove performance of talbs---Judgment and decree passed by trial Court was upheld by appellate court---Contention of the pre-emptor was that two courts below had illegally non-suited the petitioner as he performed the talbs according to provisions of Khyber Pakhtunkhawa Pre-emption Act, 1987---Validity--- Petitioner/pre-emptor had neither given any location of the place where he received information about the sale transaction nor had mentioned the place where he performed his talb-e-muwathibat---Petitioner/pre-emptor had failed to depose before the Court about the performance of talb-e-muwathibat---In order to succeed in the enforcement of right of pre-emption, it was binding on a pre-emptor/petitioner to perform all the requisite talbs strictly in accordance with law---Petitioner/pre-emptor had failed in the performance of talbs---Courts below had rightly non-suited the petitioner/pre-emptor---Revision petition was dismissed.

Rustam Khan Kundi for Petitioner.

Zain-ul-Aabidin for Respondent.

Date of hearing: 1st July, 2013.

YLR 2014 PESHAWAR HIGH COURT 989 #

2014 Y L R 989

[Peshawar]

Before Mrs. Irshad Qaiser, J

MEHBOOB alias BOOBA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.24-A of 2008 and Murder Reference No.1 of 2009, decided on 2nd October, 2013.

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

----S. 265-K---Penal Code (XLV of 1860), Ss.302(b), 324, 337-F(ii), 34, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, causing badi,ah, common intention, rioting---Acquittal of co-accused---Acquittal of one set of co-accused by the Trial Court, had attained finality as no appeal had been filed against said acquittal order by the complainant party---High Court had issued suo motu notice to said acquitted accused---In such circumstances, the courts had to be cautious and prudent---Court had to be dynamic and see whether the testimony of two eye-witnesses was corroborated by other evidence, emanating from an independent source or otherwise.

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

----Ss. 302(b), 324, 337-F(ii), 34, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, causing badi,ah, common intention, rioting--- Appreciation of evidence---Presence of injured witness at the spot though could not be doubted, but her presence at the spot was not a proof of the fact that she had deposed true facts---Credence of said crucial star witness of the prosecution, was highly doubtful which led to a conclusion that occurrence had not taken place in the mode and manner as alleged by the complainant in the F.I.R.; and narrated in their court statements, which created serious doubt in the prosecution case, benefit of which should have been given to accused---Defence plea, in the present case was more probable and convincing that all injured and deceased were hit by the deceased as he took up Kalashnikov and same was accidently/ abruptly went off---Plea favourable to defence would prevail---Recovery of spent bullet and blood of the deceased from the place of occurrence had indicated that offence had taken place, but the manner and mode thereof remained shrouded in mystery---Effect---Opinion of the Medical Officer, was contrary to the testimony of the two eye-witnesses---Abscondence could constitute corroborative evidence against a person accused for an offence, but when there was no direct evidence against an accused, or the evidence produced was not reliable, or trustworthy to convict a person for a capital charge; then abscondence, even if for a prolonged period, would be of no legal avail to the prosecution's case, as people do abscond whether they were charged falsely or otherwise---Delay of twenty four hours in lodging the report, was not explained---Said delay could not be ignored in the peculiar facts and circumstances of the case---It appeared that the case was registered after consultation, deliberation and preliminary investigation on the spot---Eye-witnesses had been unable to convince regarding their veracity and truthfulness as to the mode and manner and how the offence took place which resulted in loss of three valuable and precious lives---Failure to prove the motive, would be of no avail to the prosecution, in circumstances---Evidence against accused being identical and not distinguishable in any manner, rule of consistency required that accused should have similar treatment by allowing him same benefit, as extended to the acquitted accused persons---Besides ocular account, motive was also common to accused, and case of accused was same---Conviction of accused, could not be sustained in circumstances---Conviction and sentences, recorded against accused by the Trial Court, were set aside, he was acquitted of the charges levelled against him and was set free, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323; 1972 SCMR 644; Muhammad Sharif and another v. The State 1997 SCMR 866; Shah Baksh and another v. The State and others 1990 SCMR 158; Muhammad Anwar v. The State 1976 PCr.LJ 1117; 1993 SCMR 417; 2013 PCr.LJ 864; 2013 PCr.LJ 492; 2009 SCMR 585; 2012 YLR 1026; 2012 MLD 1274; 2008 SCMR 1082; 2009 MLD 793; 2006 SCMR 672; 2002 SCMR 786; PLD 2005 SC 484; 1998 MLD 1090; 2013 YLR 1344 and PLD 2013 SC 472 ref.

Amin Ali's case 2011 SCMR 323 and Muhammad Sharif's case 1997 SCMR 866 rel.

----Medical evidence---Variation in ocular and medical evidence---Effect---Ocular evidence had to be believed, but when the ocular account itself was inconsistent, contradictory, and not confidence-inspiring, then no reliance could be placed thereupon.

Sardar Muhammad Asif and Yasir Zahoor Abbasi for Appellants.

Ashfaq Haider for Respondents.

Date of hearing: 2nd October, 2013.

YLR 2014 PESHAWAR HIGH COURT 1015 #

2014 Y L R 1015

[Peshawar]

Before Muhammad Daud Khan, J

Haji ZABTA KHAN---Appellant

Versus

Dr. AHMAD ALI SIRAJ and others---Respondents

R.F.A. No.111-D of 2012, decided on 14th October, 2013.

Limitation Act (IX of 1908)---

----Ss.14 & 5---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Appeal---Filing in wrong forum---Effect---Exclusion of time of proceedings in court without jurisdiction---Scope---Time spent in pursuing proceedings before appellate forum could not be excluded as suit did not include appeal or application---Benefit of S.14 of Limitation Act, 1908 could not be extended to exclude time consumed in prosecuting an appeal before wrong forum for the purpose of filing the same before proper forum---Provisions of S. 5 of Limitation Act, 1908 could only be invoked by showing sufficient cause for filing an appeal which was barred by time---Expression "due diligence" and "good faith" did not occur in S.5 of Limitation Act, 1908 which enjoined only "sufficient cause"---Expressions given in both the sections could not be equated with each other---Power to condone delay and grant extension in time under S.5 of Limitation Act, 1908 was discretionary---Condition prescribed in S.5 of Limitation Act, 1908 for its applicability was "sufficient cause"---Capability of counsel and conduct of party during proceedings was the material to determine "sufficient cause"---Present suit was for recovery of Rs.12,00,000 and appeal would lie before the High Court---If the appellant proved that he filed appeal in a wrong forum despite due care and attention, presentation of appeal in wrong forum, in circumstances, was on account of situation beyond his control---Presentation of appeal in a District court was an act of gross negligence---Appeal was preferred before the District Judge on 16-5-2012 and same was returned on 2-10-2012 but same had been preferred before the High Court after delay of seven days---Said seven days were neither mentioned nor explained by the plaintiff---Plaintiff was required to explain each day to condone delay in filing appeal---Plaintiff had failed to prove that he had been prosecuting his remedy before wrong forum in good faith and due diligence---Plaintiff had failed to explain sufficient cause for condonation of delay in filing time barred appeal before the High Court---Appeal was dismissed in circumstances.

1999 SCMR 1892 and 2012 SCMR 377 rel.

Rustam Khan Kundi for Appellant.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 14th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 1023 #

2014 Y L R 1023

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

BAKHTAWAR SHAH---Petitioner

Versus

ABDUL WADUD and others---Respondents

Civil Revision No.356-P of 2013, decided on 5th July, 2013.

Civil Procedure Code (V of 1908)---

----S.115---Specific Relief Act (I of 1877), S.9---Revision---Scope---Suit for possession---Findings of two courts below were in consonance with the evidence on record and no prejudice seemed to have been caused to the plaintiff---Plaintiff had failed to substantiate his claim through convincing, reliable and conclusive evidence while defendants had satisfactorily rebutted his claim---Both the courts below had rightly clinched the factual controversy and had dealt with the matter in a thread-bare manner and had come to the concurrent conclusion after due application of independent mind---Plaintiff had failed to point out any illegality by way of misreading and non-reading of evidence by the courts below---Trial Court as well as the Appellate Court had elaborately discussed every aspect of the case and had dealt with the same in detail leaving no room for further consideration---Findings on question of fact or law recorded by the court of competent jurisdiction could not be interfered in revisional jurisdiction unless those findings suffered from jurisdictional defect, illegality or material irregularity---Jurisdiction of High Court to interfere with the concurrent findings of fact in revisional jurisdiction was very limited---Process of examination of evidence for upsetting the concurrent findings of fact in exercise of revisional jurisdiction was neither permissible nor warranted by law---High Court while examining concurrent findings of fact in exercise of its revisional jurisdiction had to attend the reasons in support of such findings and misreading, non-reading or perverse appreciation of evidence had to be discovered in reasoning to justify interference---Trial Court as well as Appellate Court had passed well reasoned judgments and decrees after proper appraisal of evidence on file---Impugned judgments and decrees did not seem to have been tainted with any illegality or irregularity or jurisdictional error---Revision was dismissed.

Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813; Rashid Ahmad v. Said Ahmad 2007 SCMR 926 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Malik Mairaj Raees for Petitioner.

Nemo for Respondent being motion case.

Date of hearing: 5th July, 2013.

YLR 2014 PESHAWAR HIGH COURT 1033 #

2014 Y L R 1033

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

SAJAD HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.218-P, decided on 12th April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Further inquiry---Star prosecution witness not supporting the prosecution case and submitting affidavit in favour of accused in the Trial Court---Effect---Accused's sister had married the deceased, which allegedly annoyed the accused as a result of which he murdered the deceased---Except for an allegation against the accused that he murdered deceased due to his annoyance, there was nothing on record to show that accused was connected with the commission of the offence---One of the prosecution witnesses who allegedly recorded his statement under S. 161, Cr.P.C. to the effect that he saw accused murdering the deceased in front of his shop, was not ready to support the prosecution case and furnished an affidavit in the Trial Court, wherein he denied having charged the accused for the murder of deceased---Affidavit submitted by said prosecution witness showing his ignorance regarding murder of deceased by the accused, made the present case one of further inquiry----Accused was granted bail accordingly.

Hussain Ali for Petitioner.

Hashtangar for the State.

Complainant in person.

Date of hearing: 12th April, 2013.

YLR 2014 PESHAWAR HIGH COURT 1044 #

2014 Y L R 1044

[Peshawar]

Before Muhammad Daud Khan, J

SHERAZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.551-M and Criminal Miscellaneous Bail C.A. No.67-M of 2013, decided on 23rd December, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 114 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, common intention---Bail, refusal of---Accused persons had been directly charged in the F.I.R. with specific role of firing at the complainant party, as a result of which two brothers had lost their lives, while complainant and a passerby sustained injuries on their persons---No delay in lodging of the report---Occurrence had been witnessed by eye-witnesses---Story of prosecution was further supported by recoveries effected by the Investigating Officer from the place of occurrence and Medico-legal evidence---Tentative assessment of the material available on the file showed reasonable grounds to believe that accused persons were linked with the commission of offence---Accused were not entitled to the concession of bail, which was refused, in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 324, 114 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, common intention---Bail, grant of---Co-accused who had been granted bail, was only charged for 'Lalkara', but nothing was on record in support thereof---Nothing was on record to suggest that accused had ever misused the concession of bail, or had tampered with the evidence during investigation---Impugned order had been passed strictly in accordance with law; and jurisdiction exercised by lower court was within its competence---Bail granting order was neither perverse, arbitrary or whimsical, and had been passed on sound reasons---Consideration for cancellation of bail were altogether different from those required for grant of bail---Once an accused was admitted to bail by a competent court, then extraordinary circumstances were required to interfere with the said order---Application for cancellation of bail, being without force, was dismissed.

M. Saleem and Mardan-e-Said Hakim for Petitioners.

Umar Zaman Khan and Fazal Ahmad for the Complainant.

Khwaja Salahuddin for the State.

Date of hearing: 23rd December, 2013.

YLR 2014 PESHAWAR HIGH COURT 1058 #

2014 Y L R 1058

[Peshawar]

Before Malik Manzoor Hussain, J

MUHAMMAD WAZIR KHAN and another---Appellants

Versus

SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, GOVT. OF KHYBER PAKHTUNKHWA PESHAWAR and 4 others---Respondents

R.F.A. No.8 and C. M. No.86 of 2013, decided on 22nd November, 2013.

Land Acquisition Act (I of 1894)---

----S.18---Civil Procedure Code (V of 1908), S.144---Land Acquisition---Reference to court---Application for return of land acquired by the department---Scope---Contention of applicant was that department was not interested in utilizing the acquired land---Application for return of land was dismissed by the Executing Court---Validity---Scheme for construction of houses and offices of Public Health Engineering Department was sent to the concerned quarters to be included in the Annual Development Program---Evaluation and feasibility reports were made wherein funds were approved for the project---Work order had been issued and work was in progress of which details were provided to the Executing Court---Government department could not sanction and complete their projects overnight---Scheme of such projects had to be approved and included in Annual Development Program and after approval the tenders were to be flouted---Delay in commencing of project would not mean that acquiring department was not interested in the scheme---Appeal was dismissed in limine.

M. Azim Baig for Petitioner.

YLR 2014 PESHAWAR HIGH COURT 1081 #

2014 Y L R 1081

[Peshawar]

Before Nisar Hussain Khan and Malik Manzoor Hussain, JJ

WAJID ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.200-P of 2013, decided on 28th October, 2013.

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

----Ss. 9(c), 33 & 48---Possessing and trafficking of narcotics---Confiscation of vehicle allegedly involved in offence---Special court having confiscated the vehicle being involved in the crime, appellant had sought return of the same claiming to be last purchaser of vehicle in question---Appellant neither during investigation nor during trial, bothered to apply to the concerned quarters for return of the vehicle; and it was exactly after one year of the custody of the vehicle, that appellant applied for return of the same, and that too by filing appeal---Original owners had also not applied for return of vehicle and were not aggrieved of the impugned order of confiscation---When the vehicle was taken into possession, no registration book or valid documents were produced or recovered from accused, and neither same were exhibited during trial---Appeal claiming the return of vehicle in question being without any merits was dismissed, in circumstances.

2010 PCr.LJ 1145 ref.

Farhana Marwat for Appellant.

Waqar Ahmad A.A.-G. for the State.

Date of hearing: 28th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 1095 #

2014 Y L R 1095

[Peshawar]

Before Rooh-ul-Amin Khan, J

Mst. BIBI KHWAZADA and others---Petitioners

Versus

HABIB UR REHMAN and others---Respondents

Civil Revision No. 104-B of 2011, decided on 18th November, 2013.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Application for setting aside of decree---Contention of applicants was that they were owners in possession of suit property to the extent of their shares but they had not been arrayed as party in the suit and fraud had been committed by the respondents in obtaining the impugned decree which had no effect upon their rights---Application for setting aside of decree was dismissed concurrently---Validity---Applicants were having knowledge of suit as same was against their father and brothers who were dwelling jointly in one house---Present application had been filed at the behest of brothers of applicants---Impugned decree did not affect the rights of applicants as same was with regard to source of irrigation of suit property and wrong entry had been corrected---No evidence was on record to establish fraud on the part of respondents---Both the courts below had properly appreciated the evidence on record and the revenue record and had reached to right conclusion---No illegality or irregularity or any misreading or non-reading of evidence in the concurrent findings of facts recorded by the courts below had been pointed out by the applicants---Revision was dismissed in circumstances.

Farooq Alam Wazir for Petitioners.

H.M. Fayaz Khan for Respondents.

Date of hearing: 18th November, 2013.

YLR 2014 PESHAWAR HIGH COURT 1122 #

2014 Y L R 1122

[Peshawar]

Before Abdul Latif Khan, J

KHAN BADSAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.184 of 2013, decided on 15th August, 2013.

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

----S. 497---'Reasonable grounds for believing' used in S.497(1), Cr.P.C.---Importance---"Expression" reasonable grounds for believing used by Legislature, were of vital importance; and same could not be dealt with lightly in an omnibus manner, rather spirit of the law was to be followed strictly with special reference to the words used therein.

(b) 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, common intention---Bail, grant of---Further inquiry---F.I.R., was silent about the kind and nature of weapon used in the commission of offence---Two persons, were charged for the commission of offence, but no specific role had been attributed to any one including the accused---Complainant had introduced .30 bore pistol and china rifle, but in the site-plan two empties of .30 bore pistol were recovered, whereas in recovery memo, recovery of one empty of .30 bore pistol, was shown---Statement of eye-witness was recorded after 11 days without any explanation---Recording of the statement of alleged sole eye-witness with such a delay made a case of serious doubt, as the conduct of the prosecution witness to remain silent for such a long period made his worth and value as questionable---Tentative evidence available on the file would make a case of further inquiry---Mere heinousness of offence could not be made a ground for refusal to bail---Though accused was directly charged in the F.I.R., but no specific role had been given---No reasonable ground for believing existed in the instant case for refusal of bail in the light of available record, tentatively---Bail could not be refused to accused, if no sufficient material had been brought on record showing reasonable grounds to believe that accused was guilty of offence and the offence charged with was punishable for death or life imprisonment or imprisonment for ten years---In case of non-presence of reasonable grounds to believe, bail could not be conveniently refused in routine as liberty of a citizen was involved, and the same could not be subjected to the heinousness of the offence, or charge of an accused directly in F.I.R.---Mere absconsion, in the absence of any incriminating piece of evidence, would not disentitle accused for grant of bail, if good ground for bail on merit existed in the case; and accused could be released on bail on the basis of available record; and absconsion, would not come in the way of accused for the purpose of bail---Accused, was released on bail, in circumstances.

Muhammad Abdullah Baloch for Petitioner.

Sanaullah Shamim D.A.G. for the State.

Muhammad Yousaf Khan for the Complainant.

Date of hearing: 18th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 1130 #

2014 Y L R 1130

[Peshawar]

Before Mian Fasih-ul-Mulk, J

ABDUL KARIM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.222-P of 2014 and Criminal Miscellaneous No.881-P of 2013, decided on 17th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406, 409, 420 & 471---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, using as genuine a forged document---Bail, grant of---No doubt, huge loss to the Government Exchequer had been caused in the present case, but as to who had actually committed the fraud, was yet to be established by the prosecution at trial---Main character in the case had been granted bail, and State had not questioned his release on bail by filing bail cancelling application before High Court---Accused, who had not pin-pointed the alleged embezzlement, were responsible for their negligence in the performance of their duties---Prosecution, in circumstances had yet to establish its charge against accused persons under the relevant section of law---Offences with which accused persons were charged, except S.409, P.P.C., did not fall within the prohibitory clause of S.497, Cr.P.C.---Case entirely being depended on documentary evidence in possession of prosecution, there was no possibility of tampering with such evidence, if accused were bailed out---Accused, were allowed bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Manzoor Khan Khalil, D.A.G. for Respondent.

Ghulam Mohyuddin Malik and Abdul Latif Afridi for Appellants.

Manzoor Khan Khalil, D.A.G. for Respondent.

Date of hearing: 17th February, 2014.

YLR 2014 PESHAWAR HIGH COURT 1136 #

2014 Y L R 1136

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

GUL HABIB---Appellant

Versus

ZAMRUD KHAN and another---Respondents

Criminal Appeal No.1-B of 2003, decided on 26th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Appeal against acquittal---Two co-accused, were convicted and sentenced by the Trial Court, but Appellate Court below acquitted them and their acquittal was upheld up to Supreme Court---Court, in circumstances, would have to see the role of accused, with those, whose acquittal had been maintained up to the apex court---Role of accused was very much at par with acquitted co-accused---Impugned judgment, in circumstances was not open to any interference---Abscondence of accused for a sufficient long time, per se, was not proof of his guilt---No conclusion, different from what the Trial Court had drawn, could be drawn---Acquittal of accused, was upheld and maintained, in circumstances.

Rehmat alias Rehma Masih v. The State 1995 SCMR 733; Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373; Murad Khan and another v. The State 2003 PCr.LJ 1295; Mir Khan v. The State 2002 PCr.LJ 1914 and Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 rel.

Muhammad Amin Khattak Lachi for Appellant.

Faridullah Khan, D.A.G. for the State.

Arif Awan for the Complainant.

Date of hearing: 26th June, 2013.

YLR 2014 PESHAWAR HIGH COURT 1161 #

2014 Y L R 1161

[Peshawar]

Before Rooh-ul-Amin Khan, J

MUHAMMAD YOUNAS and another---Petitioners

Versus

MUHAMMAD HANIF KHAN and another---Respondents

Criminal Miscellaneous Bail Petition No.63-B of 2013, decided on 30th April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 164---Penal Code (XLV of 1860), Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc. and Rape---Bail, grant of---Further inquiry---Allegations against the accused persons were that they abducted the daughter of the complainant and committed zina with her---Accused had not been charged directly by the complainant---Mode of occurrence was indicative of the fact that abductee herself left the house---Neither abductee nor case property had been recovered from the accused---S. 365-B, P.P.C. signified the carrying away of woman with an aim that she might be compelled to marriage or forced or made to illicit intercourse, against her will---Components and ingredients of the offence must be with intent that she might be compelled to marriage or be forced or seduced to illicit intercourse which were missing in the present case---Mere fact that accused were charged for heinous offence would not hamper in the way of bail if otherwise they had made out a case of bail---Case required further probe into the guilt of accused---No one could be refused to be enlarged on bail as a punishment---Case of accused was arguable for the purpose of bail---Accused were granted bail in circumstances.

Muhammad Ashraf Khan Marwat for Petitioners.

Ahmad Farooq Khattak, A.A.-G. for Respondents.

Date of hearing: 30th April, 2013.

YLR 2014 PESHAWAR HIGH COURT 1166 #

2014 Y L R 1166

[Peshawar]

Before Ikramullah Khan, J

ASSISTANT MANAGER OPERATION PESCO and 6 others---Petitioners

Versus

MINA FLOUR MILLS (PVT.) LTD. through Muhammad Shafique---Respondent

Civil Revision No.1090-P of 2012, decided on 4th November, 2013.

Electricity Act (IX of 1910)---

----Ss. 26 (6) & 26-A---Detection bill---Jurisdiction of civil court---Scope---Contention of consumer was that matter was with regard to the defect detected in the meter---Suit was decreed concurrently---Validity---Consumer had challenged the validity and correctness of detection bill which was issued on the basis of laboratory report---Meter was checked in presence of consumer and he was charged for aggregate units corresponding to previous months for consumption as per Electricity Rules due to theft of energy---Dispute was not an extraneous one but same pertained to theft of energy committed by the plaintiff---Jurisdiction of Meter Inspector was confined to the controversy relating to the matters falling under S. 26 (6) of Electricity Act, 1910 when same were with regard to the correctness of meter, maximum demand indicator or other measuring apparatus---Dispute for consumption of electricity should be referred to the Electric Inspector---Dispute between the parties was with regard to the defect caused in the meter which was detected by the test of laboratory---Provisions of S. 26(6) of Electricity Act, 1910 was attracted and civil court was out of jurisdiction to give findings on the matter which was determinable by the Electric Inspector---Both the courts below exercised jurisdiction not vested in them and impugned judgments were without jurisdiction---Impugned judgments passed by both the courts below were set aside and plaint was returned to the plaintiff to seek remedy from proper forum---Revision was accepted in circumstances.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56; Colony Textile Mills Limited, Multan v. Chief Executive MEPCO 2004 SCMR 1679; Multan Electric Power Company Limited v. Muhammad Ashiq PLD 2006 SC 328 and WAPDA and others v. Muhammad Javid and others PLD 2006 Lah. 555 rel.

Muhammad Zaman Lineman, Sub-Division Ghari Kapora for Petitioners.

Kashif Ali Shah for Respondent.

YLR 2014 PESHAWAR HIGH COURT 1180 #

2014 Y L R 1180

[Peshawar]

Before Mazhar Alam Khan Miankhel and Ikramullah Khan, JJ

HUNAR SHAH alias ANAR SHAH and another---Appellants

Versus

KHAN ZAD GUL and another---Respondents

Criminal Appeal No.145 of 2011, decided on 19th November, 2013.

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

----Ss. 302(b), 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Only one eye-witness, who was complainant, being relative of the deceased and having direct motive against accused party, appeared to be an interested witness---Driver of a Pick-up, who was the only independent eye-witness of the occurrence and could have provided the true and correct version of the occurrence; as to what actually happened at the spot, was not produced by the prosecution---Non-production of said witness would lead to the presumption that had he been produced, he might have told the truth which would not have been favourable to the prosecution---Other eye-witness, who claimed to have seen the occurrence, was not only the relative of the deceased party, but had also motive against accused party---Unexplained delay of three hours in lodging the report by the complainant in the hospital, had made his presence at the spot doubtful, when the dead body was brought to the hospital by the Local Police---Presumption would be that F.I.R. was lodged after due deliberation and consultation---Delay of 4 to 8 hours between death of deceased and post mortem of his dead body remained unexplained---Occurrence had not taken place in the manner and mode as alleged by the complainant; and story so appearing on the surface of the record, had become unbelievable---Benefit of such doubt would go to accused persons---Motive in the case, could be the reason for false implication of accused, as the prosecution had failed to prove case against accused; and the complainant party had a cause for false implication---Seven empties of 7.62 bore gun taken into possession by the Investigating Officer from the spot, were never sent to the expert to ascertain the fact whether those were fired from more than one firearm---Accused persons had failed to establish their plea of alibi---Conviction and sentence recorded by the Trial Court against accused persons, were set aside, and they were set free, in circumstances.

Lal Khan v. The State 2006 SCMR 1846; Muhammad Rafique and others v. The State and others 2010 SCMR 385; PLD 2011 SC 554; Sajjad Hussain v. The State PLD 1996 Lah. 286; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Sharif v. The State 1980 SCMR 231; Lajbar Khan v. The State 2012 MLD 152; Tahir Khan v. The State 2011 SCMR 646; Khadim Hussain v. The State 2010 SCMR 1090; Muhammad Hayat v. Abdus Salam and another 2001 PCr.LJ 557; Sahib Khan v. The State 2008 SCMR 1049; Mukhtar Ahmad v. The State 2004 SCMR 220; Saeed and 2 others v. The State 2003 SCMR 947; Noor Zaman v. The State 2005 PCr.LJ 2016; Sharafat Ali v. The State 1999 SCMR 329 and Noor Muhammad v. The State and another 2005 SCMR 1958 ref.

Lal Khan v. The State 2006 SCMR 1846; The State and others v. Abdul Kahliq and others PLD 2011 SC 554 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

(b) Criminal trial---

----Motive---Scope---Motive was normally a reason for an offence, but it could as well be a reason for false implication of an innocent person---Motive was normally called as double-edged weapon.

Allah Bakhsh and another v. The State PLD 1978 SC 171 and Ali Raza v. Fazal Wahid PLD 2004 Pesh. 20; Tahir Khan v. The State 2011 SCMR 646 rel.

----Benefit of doubt---Scope---Benefit of doubt arising out of the prosecution evidence, could not be refused to accused; and accused could be acquitted of the charges levelled against him, if he would succeed in creating even a single doubt in prosecution evidence.

State through Advocate General N.W.F.P., Peshawar v. Mumtaz alias Taj Muhammad 2002 PCr.LJ 264; Ashiq Hussain v. The State 1993 SCMR 417 and Hakim Ali and others v. The State 1971 SCMR 432 ref.

Nek Nawaz Khan for Appellants.

Hussain Ali for Respondent No.1.

Amarullah Chamkani for the State.

Date of hearing: 19th November, 2013.

YLR 2014 PESHAWAR HIGH COURT 1193 #

2014 Y L R 1193

[Peshawar]

Before Muhammad Daud Khan, J

Mst. SHAH ROOM and 5 others---Petitioners

Versus

Mst. KHAISTA BIBI and 5 others---Respondents

Civil Revision No.5941-M of 2004, decided on 2nd December, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11, Ss. 12(2) & 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Inheritance, right of---Such right could not be defeated by limitation and res judicata---Rejection of plaint---Scope---Contention of defendants was that ex parte decree was passed in their favour against which application under S. 12(2), C.P.C. had been dismissed while plaintiffs had contended that application under S.12(2), C.P.C. was not filed by them---Application for rejection of plaint was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Parties were brothers and sisters inter se and they were entitled in the legacy of their predecessor---Ex parte decree was obtained collusively and same was the result of misrepresentation and concealment of facts to grab the share of plaintiffs---Concocted and fake application under S.12(2), C.P.C. was filed with ulterior motive to fortify the collusive decree through an attorney who was son of defendant---Trial Court was bound to consider the actual facts of original previous suit against which said application was submitted---Right of inheritance would not be defeated by law of limitation or principle of res judicata---No law or judgment could override the Law of Shariah which was superior law---Dismissal of suit by the Trial Court was the result of mis appreciation of law---Pro and against evidence was required to resolve the controversy---Appellate Court was justified to set aside the judgment of Trial Court and case was rightly remanded for decision afresh in accordance with law---Revision was dismissed in circumstances.

Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Rasool Bibi v. Waryam and 22 others 1992 SCMR 1520 rel.

Muhammad Arshad Khan Yousafzai for Petitioner.

Sabir Shah for Respondent No.3.

Nemo for other Respondents.

Date of hearing: 2nd December, 2013.

YLR 2014 PESHAWAR HIGH COURT 1218 #

2014 Y L R 1218

[Peshawar]

Before Malik Manzoor Hussain, J

NISAR MUHAMMAD KHAN and 5 others---Petitioners

Versus

SAEEDULLAH KHAN and 16 others---Respondents

Civil Revision No.1496 of 2006, decided on 4th November, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), S.6---Suit for declaration---Correction of entries in the revenue record by the revenue officer---Limitation---Scope---Plaintiff purchased suit property but names of his brothers and nephew were got entered in the sale mutation---Suit was filed by the plaintiff on the basis of the decree under which the mutation was attested in his favour---Plaintiff was owner in possession of suit-land for the last 40 years---Entries in the Jamabandi remained in favour of plaintiff which were challenged by filing application before the revenue officer---Revenue officer made alteration in the entries in a mechanical manner---Long standing entries in the revenue record involving determination of rights could be challenged only through a civil suit and same could not be changed by a revenue officer on the basis of miscellaneous application---Such correction of entries in the revenue record was not sustainable due to jurisdictional defect---Minor could challenge wrong entries or even the decree within three years of attaining of majority---Application for correction of entries was made after 17 years of attaining of majority which was time-barred---Both the courts below had failed to follow the law correctly which resulted into miscarriage of justice---Impugned judgments and decrees passed by both the courts below were set aside and suit of plaintiff was decreed---Revision was accepted in circumstances.

Jan Muhammad and others v. Nazir Ahmad and others 2004 SCMR 1612; Muhammad Aslam v. Abdul Jabbar and others 1992 CLC 1360; Muhammad Ishaq v. Member of Board of Revenue, Punjab and 18 others 1994 MLD 2254; Nawab Ali and others v. Bajwan Singh 1995 CLC 1823; Mst. Surayya Bano v. Mst.Nazia Bano 1996 CLC 1690; Muhammad Usman v. Province of Punjab 2002 CLC 1980; Muhammad Nawaz and 19 others v. Provincial Government and 4 others PLD 1997 (Pesh) 1; Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245; Muhammad Mehmood Khan v. Muhammad Hassan and 7 others 1991 SCMR 1566 and Mst.Maqsood Bibi v. Ghulam Bahoo 1989 MLD 1990 rel.

Iftikhar Ali for Petitioners.

Ajmal Khan for Respondents.

Date of hearing: 4th November, 2013.

YLR 2014 PESHAWAR HIGH COURT 1231 #

2014 Y L R 1231

[Peshawar]

Before Lal Jan Khattak, J

UMAR DARAZ and another---Petitioners

Versus

The STATE and 5 others---Respondents

Criminal Miscellaneous Quashment Petition No.167-D of 2013, decided on 2nd January, 2014.

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

----Ss. 561-A & 154---Penal Code (XLV of 1860), S. 365-A---Kidnapping or abduction for extorting property, valuable security etc.---Quashing of F.I.R. by High Court in its inherent power under S. 561-A, Cr.P.C.---Scope---Petition for quashing of F.I.R., dismissal of---Accused and his co-accused persons were alleged to have abducted the abductee for ransom---Plea of accused that he was innocent and had been implicated in the F.I.R. due to ulterior motive and personal grudge of complainant; that present F.I.R. was an abuse of process of the court---Validity---Incident of missing of abductee was reported by complainant to the police without any amount of delay---Subsequently abductee reached his house on his own and recorded a statement before the Magistrate under S. 164, Cr.P.C., wherein he charged accused along with co-accused persons for his abduction for ransom---Abductee also stated before Magistrate that his brother/complainant had also paid the ransom---Similar statement was also recorded by the complainant before the Magistrate---Plea raised by accused in support of quashing of F.I.R. could not be looked into at present stage by the High Court while exercising its inherent jurisdiction under S. 561-A, Cr.P.C.---On one hand there was a timely lodged F.I.R. coupled with statements of abductee and complainant before Magistrate, wherein accused had been charged for the offence, while on the other hand there was bald assertion by accused pleading his innocence, therefore invoking jurisdiction of High Court under S. 561-A, Cr.P.C at present stage was neither legal nor proper---Quashment petition was dismissed accordingly.

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

----Ss. 561-A & 154---Quashing of F.I.R. by High Court under its inherent power under S. 561-A, Cr.P.C.---Competency---High Court in exercise of its power under S. 561-A, Cr.P.C. was not competent to quash an F.I.R.

Muhammad Wahid Anjum for Petitioners.

Sanaullah Khan Shamim A.A.-G. for the State.

Saif-ur-Rehman Khan for the Complainant.

Date of hearing: 2nd January, 2014.

YLR 2014 PESHAWAR HIGH COURT 1248 #

2014 Y L R 1248

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

AMEER HASSAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.83-B, 85-B and 86-B of 2011, decided on 4th December, 2013.

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

----S.9(c)---Control of Narcotic Substances (Government Analysts), Rules, 2001---Recovery of narcotic substance---Re-appraisal of evidence---Delay in dispatching samples---Charas Garda weighing 58 kilograms was recovered from gas cylinders fixed in vehicle which was being driven by one accused while remaining two were also travelling in it---Trial Court convicted all three accused and sentenced them to imprisonment for life---Plea raised by accused was that Investigating Officer had sent samples to government analysts beyond 72 hours of seizure---Validity---Failure to follow Control of Narcotic Substances (Government Analysts) Rules, 2001, could not render search, seizure and arrest under Control of Narcotic Substances Act, 1997, an absolute nullity and could not make entire prosecution case doubtful, except for the consequences provided in Rules---Provisions of Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory and not mandatory so could not control substantive provisions of Control of Narcotic Substances Act, 1997---Belated dispatch of samples was not fatal to prosecution case, in absence of any objection regarding the same having been tampered or manipulated---Charge against accused persons was proved beyond any shadow of doubt and they had been rightly convicted and sentenced by Trial Court---Appeal was dismissed in circumstances.

Hayat Bakhsh and others v. The State PLD 1981 SC 265 ref.

Gul Alam v. The State 2011 SCMR 624 and Ali Muhammad and another v. The State 2003 SCMR 54 rel.

Fida Muhammad Afridi and Riaz-ul-Haq for Appellants.

Qudratullah Khan Gandapur, D.A.-G. for the State.

Date of hearing: 4th December, 2013.

YLR 2014 PESHAWAR HIGH COURT 1253 #

2014 Y L R 1253

[Peshawar]

Before Abdul Latif Khan, J

GHULAM JILLANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.316-D of 2013, decided on 24th December, 2013.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Habitual offender---Accused allegedly issued a cheque to the complainant, which was dishonoured on presentation as accused gave "stop payment" instruction to the bank---Contention of accused that he lost his bag containing the signed cheque book , which promoted him to inform the bank to stop payments, did not stand to reason since question was as to why entire cheque book was duly signed by accused---Subsequent issuance of second cheque by accused to the complainant negated the contention of accused that cheque book duly signed by him was lost---Accused was involved in other cases of similar nature by issuing cheques and defaulting in payment---As there was a monetary dispute between the parties, thus, possibility of issuance of cheque with dishonest intention could not be ruled out---Delay in lodging of F.I.R. was due to ongoing arbitration between the parties---Bail petition of accused was dismissed in circumstances.

Makhdoomzada Abdul Karim v. The State and another 2012 PCr.LJ 1956 rel.

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

----S. 497(1)---Bail-Offence not falling within prohibitory clause of S. 497(1), Cr.P.C.---Scope---Grant of bail in cases not falling within prohibitory clause of S.497(1), Cr.P.C., was not a rule of universal application, as each case had to be decided on its own merits.

Saleemullah Khan Ranazai for Petitioner.

Sanaullah Shamim A.A.-G. for the State.

Haji Muhammad Shakeel for the Complainant.

Date of hearing: 24th December, 2013.

YLR 2014 PESHAWAR HIGH COURT 1310 #

2014 Y L R 1310

[Peshawar]

Before Fasih-ul-Mulk and Muhammad Daud Khan, JJ

SHAH ZARIN---Appellant

Versus

GUL ZAMIN and another---Respondents

Criminal Appeal No.506-P of 2010, decided on 24th October, 2013.

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

----S.302 (b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-e-amd---Appreciation of evidence---Information received from accused---Proof---Accused was convicted by Trial Court and sentenced to imprisonment for life---Validity---Ocular account and confessional statement were in consonance with medical evidence, which was further corroborated by recovery of blood-stained articles and positive Forensic Science Laboratory report---Story of prosecution was also corroborated by discovery/recovery of "Churi", the weapon of offence, and the same was an admission under Art. 40 of Qanun-e-Shahadat, 1984, as the place, where accused concealed the same was in exclusive knowledge of accused---Motive advanced by prosecution had also been corroborated by statement of one prosecution witness---Conclusion drawn by Trial Court regarding guilt of accused in commission of offence was based on sound and cogent reasoning and the same was maintained---Appeal was dismissed in circumstances.

Sharafat Ali v. The State 1999 SCMR 329; Mulla Riaz Ahmed v. The State 2002 SCMR 626; Muhammad Ismail and another v. The State 1995 SCMR 1615 and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 ref.

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

----S. 302(b)--- Qatl-e-amd--- Sentence, enhancement of---Principles---Accused was convicted by Trial Court and sentenced to imprisonment for life---Complainant sought enhancement of sentence on the plea that accused was directly charged in F.I.R. for brutal murder and the same was proved during trial---Validity---No previous enmity existed between parties and occurrence took place at the spur of the moment---Circumstances were present which could be taken as extenuating/mitigating circumstances for the purpose of awarding lesser sentence---Trial Court rightly attended to all such circumstances while imposing quantum of sentence---Accused was entitled to benefit of any doubt as an extenuating circumstance, while deciding question of sentence---High Court declined to interfere in sentence awarded to accused by Trial Court---Revision was dismissed in circumstances.

----S. 302 (b)---Criminal Procedure Code (V of 1898), Ss. 87, 204 & 561-A---Qatl-e-amd---Acquittal in absentia---Principles---Inherent jurisdiction of High Court---Trial Court after conclusion of trial convicted one accused and sentenced him to imprisonment for life, whereas accused who had been declared Proclaimed Offender was acquitted of the charge---Validity---Judicial discretion could not be exercised in favour of a person who was fugitive from law, particularly when proceedings under Ss. 204 & 87 Cr.P.C. had been carried out against him---Trial Court violated relevant procedure while acquitting absconding accused in absentia---Illegal exercise of jurisdiction was committed by Trial Court while acquitting absconding accused---High Court in exercise of powers available under S. 561-A, Cr.P.C. set aside the judgment to the extent of absconding accused---High Court directed Trial Court to reconsider case of absconding accused---Case was remanded in circumstances.

Fazli Ghaffor for Appellant.

Amir Amanullah Khan Chamkani for Respondent No.1

Muhammad Javid A.A.G. for the State.

Date of hearing: 24th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 1322 #

2014 Y L R 1322

[Peshawar]

Before Mazhar Alam Khan Miankhel and Musarrat Hilali, JJ

Dr. ABID ALI and 5 others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Health Peshawar and 3 others---Respondents

Writ Petitions Nos.1918-P and 1975-P of 2013, decided on 25th July, 2013.

(a) Pakistan Medical and Dental Council (Postgraduate Education) Regulations, 2011---

----Relgn. 17---Constitution of Pakistan, Arts. 4, 25, 37(c) & 199---Constitutional petition---Admission in Fellowship of College of Physicians and Surgeons (FCPS)---Criteria of selection of candidates as provided in prospectus---Subsequent change in procedure of induction/selection of candidates---Effect---Deviation of prescribed criteria of merit---Scope---Applications for FCPS seats were called by the Postgraduate Medical Institute---Petitioners/candidates applied for the same on the basis of criteria provided in prospectus---Merit list according to aggregate percentage was prepared---Petitioners/candidates were called for interview on the basis of merit---Dean of Postgraduate Medical Institute, in the meanwhile, changed the criteria of induction/selection of candidates by issuing impugned notification---Interview of the candidates came on merit was postponed---As per new criteria seniority of prospective TMOs was to be considered for the purpose of induction/selection---Petitioners contended that if the matter of seniority of prospective TMOs was considered, specially when there were no additional seats, then the petitioners/ candidates who had attained a position on the merit on the basis of prescribed criteria would suffer and that criteria of induction/selection of candidates prescribed in prospectus could not be changed/overlooked--- Validity--- Sudden somersault, having no back of the statute by introducing entirely new criteria alien to the Rules/Prospectus could not be allowed to be adopted just on the whims and caprices of few persons---Attempt of changing criteria was not supported by any law and the same was based on mala fide, just to accommodate the loved ones of persons having a pivotal role in the system---Protection of law, and to be treated in accordance with law, was in an inalienable right of every citizen as provided in Art. 4 of the Constitution---Art. 25 of the Constitution ensured the equality of all the citizens before the law and entitled them to be equally protected---Art. 37(c) of the Constitution provided accessibility to all for professional and higher education on the basis of merit---Deviation, in the present case, from the prescribed criteria was disallowed---Constitution petition was allowed.

(b) Pakistan Medical and Dental Council (Postgraduate Education) Regulations, 2011---

----Regln.17---Constitution of Pakistan, Art. 199---Constitutional petition---Admission in Fellowship of College of Physicians and Surgeons (FCPS)---Criteria of selection of candidates provided in prospectus---Subsequent change in procedure of induction/selection of candidates---Change of criteria by the Dean of Postgraduate Medical Institute---Earlier selection criteria was made by the duly constituted Committee---Competence of Dean of Institute to change the selection criteria of candidates---Scope---Dean of Postgraduate Medical Institute had no authority to introduce a totally new and alien criteria to the procedure laid down in the prospectus, formulated by a Committee of three Professors, one Chairman and two Members and an Associate Professor as its Secretary---Deviation from the prescribed criteria was without jurisdiction and against the law---Dean of Postgraduate Medical Institute had violated the law in vogue and there was no room for the old students to be inducted by bypassing the qualified and legible candidates, who stood on merit---Impugned notification for change of criteria was declared as illegal---Constitutional petition was allowed.

Syed Muhammad Attique Shah for Petitioners.

Malik Mujtaba Ahmad, Addl. A.G. and Shakeel Ahmad along with Dr. Akhtar Ali Khan Dean for Respondents.

Date of hearing: 25th, July, 2013.

YLR 2014 PESHAWAR HIGH COURT 1338 #

2014 Y L R 1338

[Peshawar]

Before Mrs. Irshad Qaiser, J

ABDUL WAHAB---Petitioner

Versus

SARBAZ---Respondent

Civil Revision No.691 of 2011, decided on 20th September, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Talbs, performance of---Requirements---Demand of talbs by attorney and non-appearance of pre-emptor---Effect---Suit was concurrently decreed---Contention of defendant was that plaintiff had not got recorded his statement to prove talbs---Validity---Best evidence with regard to performance of Talb-i-Muwathibat was the person who made the said talb---Non-appearance of pre-emptor would be fatal for the right of pre-emption---Plaintiff had not appeared in the court which had created doubt with regard to performance of talbs---Best evidence, in circumstances, was withheld and was not produced---Pre-emptor in special circumstances could appoint attorney for performance of talbs---Neither attorney nor any witness of plaintiff had given any reason as to why he did not appear in witness box---Power of attorney did not mention reason for non-appearance of pre-emptor---Attorney was not authorized to perform Talb-i-Muwathibat on behalf of plaintiff---Provision of S. 14 of Khyber Pakhtunkhwa Pre-emption Act, 1987 would be available only if pre-emptor was unable to make demand and had valid reason for non-appearance---Said reason could be minority, sickness or any other disability but same had to be pleaded---Concurrent findings on point of fact or law could be upset if order suffered from jurisdictional defect, illegality or irregularity---Judgments and decrees of both the courts below were set aside and suit was dismissed---Revision was accepted in circumstances.

Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106; Mst. Hussan Bano v. Vali-ur-Rehman 2007 SCMR 1344; Mst. Lalan Bibi v. Muhammad Khan 2007 SCMR 1193; Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 325 and Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 rel.

Sajjad Ahmad for Petitioner.

Ilyas Khan for Respondent.

Date of hearing: 20th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 1353 #

2014 Y L R 1353

[Peshawar]

Before Abdul Latif Khan, J

Mst. SHADO BIBI and another---Petitioners

Versus

RASHEED and 9 others---Respondents

Civil Revision Petition No.396 of 2011, decided on 9th September, 2013.

Civil Procedure Code (V of 1908)---

----S. 107---Specific Relief Act (I of 1877), S.42---Suit for declaration---Remand by appellate Court---Scope---Powers of---Suit was dismissed by the Trial Court but same was remanded by the Appellate Court---Validity---Appellate Court had recorded no findings upon merits of the case---No directions were given as to which of the issue was lacking which was to be framed---Appellate Court had simply remanded the case by observing that Trial Court should frame proper issues---Remand order should be in clear terms and task---Suit had to be entrusted to the Trial Court for re-decision with clarity so as to avoid ambiguity---Direction given by the Appellate Court, in the present case, had already been dealt with by the Trial Court---Remand order was not warranted by law---Appellate Court was bound to recast the issue necessary in its opinion for the just decision of the matter and then remand the case for decision in the light of issues so framed---Appellate Court had been empowered with same power as court of original jurisdiction---Said court should perform the same duties as were conferred and imposed by the Civil Procedure Code, 1908 on the courts of original jurisdiction---Revision was accepted and judgment and decree of the Appellate Court were set aside and case was remanded by the High Court to the Appellate Court for decision on merits.

Muhammad Ghazanfar Ali for Petitioners.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 9th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 1366 #

2014 Y L R 1366

[Peshawar]

Before Yahya Afridi, J

Syed MEHBOOB SHAH---Petitioner

Versus

DISTRICT OFFICER REVENUE AND ESTATE/COLLECTOR HARIPUR and others---Respondents

Civil Revision No.638-A of 2009, decided on 1st February, 2013.

Land Acquisition Act (I of 1894)---

----S.4---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiff being aggrieved of proposed acquisition of his land alleging same not to be for "public purpose", thus, prayed to restrain the Authority from issuing notification under S.4 of Land Acquisition Act, 1894---Issuance of such notification and construction of road on suit-land by the Authority during pendency of suit---Order of Trial Court rejecting plaint under O.VII, R.11, C.P.C. for want of jurisdiction upheld by Appellate Court---Validity---Landowner, if aggrieved of acquisition of his land by Government on ground of mala fides or illegalities and that too prior to issuance of such notification, might avail different remedies provided by Land Acquisition Act, 1894---Exclusion of jurisdiction of civil court in such matter must either be expressly provided in clear terms or be clear by implied terms of Land Acquisition Act, 1894---Nothing in the Act to oust jurisdiction of civil court to redress such grievance of landowner---Plaintiff had challenged the very identification and purpose of land being acquired by authority on ground of mala fide before issuance of such notification---High Court set aside impugned judgments/decrees and remanded case to Trial Court to decide questions as to whether suit-land had been acquired and actually utilized for "public purpose" and whether plaintiff had invoked provisions of Land Acquisition Act, 1894 for enhancement of compensation of acquired land, if so, its effect on the present suit.

Noor Avenue Cooperative Housing Society, Hanjarwal Lahore v. Lahore Development Authority and others 2008 CLC 200 and Provincial Government Northern Areas v. Safar Khan and others 2007 CLC 1587 rel.

Abdul Latif Khan and Qazi Muhammad Arshad for Petitioner.

Abbas Khan Sangeen, Deputy Advocate General for Respondents.

Date of hearing: 1st February, 2013.

YLR 2014 PESHAWAR HIGH COURT 1378 #

2014 Y L R 1378

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. ZAKIA BEGUM and others---Petitioners

Versus

Mian ABDULLAH SHAH and others---Respondents

Civil Revision No.1713 of 2010 with C.O.C. No. 52-P of 2012, decided on 7th October, 2013.

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

----Arts. 100 & 101---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation---Presumption attached to certified copies---Scope---Contention of plaintiffs was that they were owners of suit property on the basis of compromise decree passed in pre-emption suit---Suit was decreed concurrently---Validity---Certified copies of document had the same presumption as attached to thirty years old document---Pre-emption suit was dismissed on account of compromise and same was not of title---Agreement was thirty years old document but was not public document---Presumption of genuineness could not be extended to a document which was not free from suspicion and same was rebuttable---Mere age of document was no yardstick for its genuineness---Proper custody of document and signature upon it should have been established---Contents of such document would require evidence for its proof---Defendants had been recorded in the column of ownership whereas plaintiffs had been shown as tenant-at-will of suit property---Suit was barred by law of limitation---Judgments and decrees of both the courts below being against the law and record were not sustainable---Suit of plaintiffs was dismissed and judgments and decrees of both the courts below were set aside---Revision was accepted in circumstances.

Muhammad Asghar Khan Kundi for Petitioners.

Mian Qamar Gul Kaka Khel for Respondents.

Date of hearing: 7th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 1388 #

2014 Y L R 1388

[Peshawar]

Before Ikramullah Khan, J

NAJAM IQBAL---Petitioner

Versus

Mst. NASEEM AKHTAR---Respondent

Civil Revision No.402 of 2012, decided on 14th June, 2013.

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

----O.IX, R.8 & O.XVII, Rr.2 & 3---Dismissal of suit for default---Date of hearing---Suit had been dismissed for default of appearance on a date not fixed for hearing but for attendance of plaintiff or his counsel---Order of dismissal---Validity---Court could dismiss a case for non-prosecution when, the case was fixed for hearing---Case fixed for any other collateral purposes other than hearing could not be dismissed---Provision of O.XVII, Rr.2 & 3, C.P.C. would come into play, in circumstances.

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

----O.XVII, Rr.2 & 3---Date of hearing---"Hearing", was the date at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it.

Manohar Dass v. Birandari Sheikhupurian AIR 1936 Lah. 280; Mst. Barkat Ali v. Fateh Ali PLD 1949 Lah. 432; Balmokand Marwari v. Luxmi Narain Marwari 57 I.C. 748 and Mst. Akhtar Begum v. Muhammad Hussain and another 1981 CLC 146 rel.

----O.IX, R.8---Constitution of Pakistan, Art.10-A---Dismissal of suit for default of appearance---Right of fair trial---Scope---Order passed in violation of due process of law---Effect---Though no provision of prior notice in case of default to dismiss the suit was provided under R. 8 of O. IX, C.P.C., yet the court in a case, where valuable rights in property were the subject matter having been accrued to party, was not to dismiss the suit without giving a prior notice in that respect to fulfil the commands of the Constitution, by giving opportunity of fair trial as enshrined under Art. 10-A of the Constitution.

Babar Hussain Shah v. Mujeb Ahmad Khan 2012 SCMR 1235 rel.

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

----S.5---Limitation---Void order---Verbal request for condonation of delay---Effect---Impugned order was void ab initio---Provisions of proper written application in regard to condonation of delay could be dispensed with---Verbal prayer for condondation of delay be given effect for safe dispensation of justice.

Makhdum Raju Shah v. Member Board of Revenue 2011 YLR 1724 rel.

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

----S.5---Limitation---Verbal prayer for condonation of delay without written application---Effect---Discretionary powers of Court---Scope---When court arrived to the conclusion that justice demanded condonation of delay in a given case, then formal written application for condonation of delay was not sine qua non for exercising the discretion in this behalf.

Syed Nasir Ali v. Syed Ibne Ali and others 1981 SCMR 239 rel.

(f) Locus Poenitentiae, Principle of--

----Applicability---Scope---Once an order was passed and some steps were taken in pursuance of the order, then the principle of locus Poenitentiae would be applicable---Court, whose actions were expected to be within accordance with law, should adhere to all the applicable principles of law in dispensation of justice.

Farmanullah Khattak for Petitioner.

Ali Abbas Kazmi for Respondent.

Date of hearing: 14th June, 2013.

YLR 2014 PESHAWAR HIGH COURT 1424 #

2014 Y L R 1424

[Peshawar]

Before Musarrat Hilali, J

FARMAN ALI---Appellant

Versus

ANAR GUL---Respondent

F.A.O. No.66-P of 2013, decided on 22nd November, 2013.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XX, R.11(2) & XXI, R.1---Suit for specific performance of agreement to sell---Execution of decree---Payment of decretal amount in instalments---Withdrawal of such concession---During execution of decree, judgment-debtor was allowed to make payment of decretal amount in instalments---Judgment-debtor failed to appear before Executing Court on one date, resulting into withdrawal of concession of instalments---Validity---In order to secure regular payment, penal clause or conditions should have been incorporated in order for allowing payment in instalments, such as in case of failure to pay one or more instalments, the whole amount of decree would become payable at once---Courts were bound in the event of such failure to execute decrees in accordance with its terms---Executing Court had the powers to withdraw its orders but such powers must be exercised judicially and not arbitrarily---High Court directed Executing Court to reschedule its earlier order and set aside the order withdrawing concession of instalments---Appeal was allowed accordingly.

Anwar Shamim Mohmand for Appellant.

Younas Khan Utmankhel for Respondent.

Date of hearing: 22nd November, 2013.

YLR 2014 PESHAWAR HIGH COURT 1441 #

2014 Y L R 1441

[Peshawar]

Before Abdul Latif Khan, J

AHMAD NAWAZ and another---Petitioners

Versus

RABNAWAZ and 16 others---Respondents

Civil Revision No.524 of 2011, decided on 4th November, 2013.

Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935) ---

----S. 3(2)--- Succession--- Limitation---Custom---Retrospective effect---Acquisance, principles of--- Applicability--- Scope---Predecessor-in-interest of plaintiff died in the year 1910 and his legacy devolved upon his daughter according to custom but she was deprived from the same on her marriage---Said property was transferred in favour of defendants in toto which was against the mandate of Shariah as same had to be devolved on the plaintiff and defendants as per their shares in accordance with Shariah---Appellate Court had not considered such aspect of the case and its judgment and decree were nullity in the eye of law---No limitation would run against a person in possession of property as a legal heir---Plaintiff being legal heir of deceased had become co-owner of the property and she would be considered in possession along with defendants as mutation attested under custom had no legal effect on promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 which had been given retrospective effect---Plaintiff would be deemed to have inherited the suit property in the year 1910 at the time of death of male muslim owner and since then she would be presumed in possession of property---Bar of limitation would not be applicable in case of inheritance---Plaintiff was given her due share and she had no knowledge of transfer of property on the promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 and her entitlement to inheritance stood established right from the year 1910---Plaintiff could not be said to have estopped by her own conduct---Principle of acquisance would not be applicable in the present case---Succession would open on the death of a muslim and his property would automatically vest in the legal heirs and no intervention of State agencies or revenue authorities would require for the same---Efflux of time did not extinguish any right of inheritance of legal heir as on the death of owner of property he would become co-owner in the same---Limitation would run not from the date of death or attestation of mutation but when the right of successor was denied---No limitation would arise in the matter of inheritance---Suit was within time as same was with regard to matter of inheritance---Revision was accepted and judgment and decree of Appellate Court were set aside and those of Trial Court were restored.

Mst. Subhan's case 2007 SCMR 635; Ghulam Ali's case PLD 1990 SC 1 and Mst. Namadar's case 1998 SCMR 996 rel.

Muhammad Sajid Awan for Petitioners.

Muhammad Ayaz Khan Qasuria for Respondents.

Date of hearing: 4th November, 2013.

YLR 2014 PESHAWAR HIGH COURT 1464 #

2014 Y L R 1464

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

IFTEKHAR ALI---Petitioner

Versus

The STATE and others---Respondents

Quashment Petition No.256-P of 2012, decided on 19th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 523 & 550---Superdari of vehicle confiscated to State---Failure to establish ownership of vehicle---Effect---Vehicle in question was taken into possession by police under Ss. 523 & 550, Cr.P.C. as the petitioner who was driving the same, failed to produce any valid documents regarding its ownership---Police registered a case against petitioner, and after conclusion of trial, he was acquitted of the charge but vehicle in question was confiscated to the State---Petitioner contended that he was bona fide purchaser of the vehicle in question for consideration through a stamp paper/sale-deed, therefore the same should be handed over to him on superdari---Validity---During investigation of the case petitioner failed to produce the person from whom he had allegedly purchased the vehicle, and also the stamp vendor, scribe and other marginal witnesses of the alleged sale-deed---Report of Forensic Science Laboratory stated that chassis number of vehicle in question was tampered, for which petitioner provided no plausible explanation or reliable evidence---Registration book of the vehicle was sent to relevant Motor Registration Authority, however said Authority stated that it had not issued the same---No open transfer letter or original registration book or any other valid document of the vehicle in the name of petitioner existed, therefore, vehicle was rightly confiscated to the State and courts below were justified in dismissing application of petitioner for return of vehicle---Petition was dismissed accordingly.

Jawad Haider for Petitioner.

YLR 2014 PESHAWAR HIGH COURT 1469 #

2014 Y L R 1469

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

NOOR-UL-HAQ and others---Petitioners

Versus

LIAQAT SHAH---Respondent

Civil Revision No.340-P with Civil Miscellaneous No.383-P of 2013, decided on 21st May, 2013.

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

----S.54---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for permanent injunction---Sale-deed, execution of---Proof---Plaintiff claimed to be owner of suit property and sought permanent injunction against defendants from interference into their possession---Defendants claimed to be owners on the basis of registered sale-deed executed in their favour by the owner of suit property---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court modified the judgment---Validity---One of the defendants was marginal witness of sale-deed in question who deposed that deed correctly bore his thumb-impression as well as thumb-impression of other marginal witness and signature of owner of suit property---Execution of sale-deed in favour of defendants was established from statements of two witnesses that defendants had purchased the property on the basis of sale-deed in question---Lower Appellate Court after proper appreciation of evidence on record had rightly resolved controversy between the parties in shape of modifying findings of Trial Court and holding defendants as owners of suit property through registered sale-deed---High Court in exercise of revisional jurisdiction declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

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

----S.115---Revisional jurisdiction of High Court---Findings of lower courts---Scope---High Court as a rule should give due weight and consideration to opinion of courts below and in particular to opinion of court of first instance which had advantage of hearing parties, witnesses and watching their demeanor---High Court, generally, does not interfere with findings of fact reached by primary courts when it is satisfied that findings of courts below were as a whole reasonable and were not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence.

Sahibzada Ahmadyar Khan for Petitioners.

YLR 2014 PESHAWAR HIGH COURT 1491 #

2014 Y L R 1491

[Peshawar]

Before Waqar Ahmed Seth, J

NOSHAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.606-A of 2013, decided on 21st October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(ii) & 337-N(2)---Attempt to commit qatl-e-amd, causing badi'ah, payment of 'arsh' Daman and awarding Tazir---Bail, grant of---Further inquiry---Accused though had been assigned a specific role, but the injuries sustained by the complainant were on his right side of hip which fell under S.337-F(ii), P.P.C., entailing punishment of payment of 'Daman' and imprisonment which might extend to three years as Tazir---Sections 324, 337-F(ii), 337-N(2), P.P.C., did not supplement each other, but were at variance from each other---Delay of five hours in lodging the F.I.R. was without any explanation---Other co-accused had already been acquitted---Investigation in the case was complete and accused was no more required for the purpose of investigation---Accused no doubt remained absconder for a much longer period, but where a case called for further inquiry into the guilt of accused, bail was to be allowed to accused as a matter of right and not by way of grace or concession---Accused neither was a previous convict nor habitual or hardened or dangerous criminal---Accused was behind the bars since 5-12-2010, the date of his arrest---Accused having made out a case for further inquiry, he was allowed bail, in circumstances.

Ikram-ul-Haq v. Raja Naveed Sabir and others 2012 SCMR 1273

rel.

Abdul Saboor Khan for Petitioner.

A.A.-G. for the State.

Malik Majid Ali for the Complainant.

Date of hearing: 21st October, 2013.

YLR 2014 PESHAWAR HIGH COURT 1494 #

2014 Y L R 1494

[Peshawar]

Before Ikramullah Khan, J

Mst. NOOR BIBI---Petitioner

Versus

Mst. MUKARAMA BIBI---Respondent

Civil Revision No.606-P of 2012, decided on 28th October, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---"Cause of action"---Documents to be considered by the court---Scope---Plaintiff filed suit wherein defendant moved an application for rejection of plaint which was accepted concurrently---Validity---No evidence had been led by either of the party nor any document even the impugned sale mutation was brought on record and exhibited---No reference could be given with regard to the legality or validity of such documents---Findings of Appellate Court on merit of sale mutation and power of attorney were not more or less but abuse of jurisdiction which could not be sustained---Challenging the original sale mutation and first entry therein the revenue record effected there through the impugned sale mutation was sufficient and it was not necessary to challenge subsequent periodical record of rights---Only averments of plaint were to be looked into for the purpose of rejection of plaint---Further probe through recording of evidence and considering of other material available on record was required as plaintiff had alleged that sale mutation was result of fraud---Dispute between the parties was mixed question of law and facts which would require evidence and unless same was recorded same could not be resolved---Plaintiff had properly pleaded the "cause of action" in the plaint and if same was taken to be true and correct then suit was not devoid of "cause of action"---Provisions of O. VII, R. 11, C.P.C. could not be invoked rather proper course for the court was to frame issues and decide the same on merits in the light of evidence where controversial questions of facts or law existed in the suit---Impugned judgments of both the courts below were set aside and case was remanded to the Trial Court to proceed from the stage whereof it was discontinued on rejection of plaint---Revision was accepted in circumstances.

Mst. Bano alias Gul Bano and others v. Begum Dilshad Alam and 4 others 2001 CLC 88; Haji Abdul Karim and 4 others v. Messrs Florida Builders (Pvt.) Ltd., Karachi, reported 2009 YLR 451 and Muhammad Rahim v. Malik Daud Khan and 6 others 2011 CLC 490 rel.

Abdul Sattar Khan for Petitioner.

2014 Y L R 1563

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

Mst. SHAZIA and another---Petitioners

Versus

MUHAMMAD NASIR and 2 others---Respondents

Writ Petition No.492-B, 2012, decided on 11th December, 2013.

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

----S. 5---Constitution of Pakistan, Art. 199--- Constitutional petition---Restitution of conjugal right---Non-payment of dower---Maintenance of wife---Quantum---Wife left her husband and refused to perform her marital obligation on the ground that he failed to pay her dower amount---Suit filed by husband for restitution of conjugal rights was decreed in his favour by both the Courts below subject to payment of dower amount and maintenance to wife---Validity---Where husband had refused to pay dower to wife on demand, essential legal implication for such non-payment was that wife would cease to have obligation to live with her husband but husband was duty bound to maintain her during the period of separation---Social status of husband and level of legitimate financial sources were imminent factors for deciding quantum of maintenance and the same could not be ignored---Both the Courts below had rightly appreciated evidence and thereby passed a decree of restitution of conjugal rights in favour of husband subject to payment of dower and past maintenance---Petition was dismissed in circumstances.

(b) Islamic Law---

----Dower---Defined---Dower or Mehr is a sum of money or other property which wife is entitled to receive from husband in consideration of marriage---Dower is the consideration agreed between the parties which husband has to pay to wife either promptly or subsequently in accordance with terms of agreement.

----Maintenance to wife---Scope---In Islam husband is bound to maintain his wife throughout the period she remains in matrimonial bonds with him---Maintenance is neither nature of gift nor a benefit but is an undeniable legal obligation of husband to provide maintenance to his wife---When a woman surrenders herself into the custody of her husband, it is incumbent upon husband thenceforth to supply her with food, clothing and lodging, whether she be a Muslim or an infidel because such is the precept in the Holy Quran---Maintenance is considered a debt upon husband in conformity with his tenet---Maintenance is an obligation which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances.

Holy Quran rel.

(d) Islamic Law---

----Maintenance to children---Principle---Father is bound to maintain his sons until they have attained the age of puberty and to maintain his daughters until their marriage---So long as children are with mother and unless their custody is disturbed in result of proper legal proceedings, liability of father to provide them adequate maintenance is absolute and is not dependent or affected by their residence.

Hafiz M. Hanif for Petitioners.

M. Zafar Nawaz Khan Sikandri for Respondents.

Date of hearing: 11th December, 2013.

YLR 2014 PESHAWAR HIGH COURT 1579 #

2014 Y L R 1579

[Peshawar]

Before Abdul Latif Khan, J

GHULAM FARID---Petitioner

Versus

Mst. ZOHRA KHATOON---Respondent

Civil Revision No. 485 of 2006, decided on 14th October, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---No material contradiction existed in the statements of witnesses of plaintiff---Minor contradictions pointed out by the Trial Court were not of pivotal nature when evidence was recorded after a period of more than two years---Normal variations were in accordance with human nature---Notice of Talb-i-Ishhad was to be sent on ordinary address under registered cover acknowledgement due and same would amount to sufficient compliance of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Notice of Talb-i-Ishhad was served upon the defendant at her given address which was received by her attorney---Knowledge of contents of document could not be attributed to the attesting witness rather execution of the same and its attestation had to be confirmed---Testimony of witness could not be discarded for his failure to explain the contents of document nor document could be held inadmissible in evidence solely on such ground---Market value of suit-land had been entered in the deed bonafidely by the defendant and same had been paid by her---Defendant was entitled for the amount of expenses incurred upon the stamp paper used for the sale-deed---Suit of plaintiff was decreed and judgments and decrees of both the courts below were set aside---Revision was accepted in circumstances.

Pervaiz's case 2006 SCMR 4; Nawab Khan's case 2000 YLR 621 and Muhammad Rashid Ahmad's case PLD 2002 SC 293 rel.

Muhammad Ali Khan Jadoon for Petitioner.

Mehboob Ahmad for Respondent.

Date of hearing: 14th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 1595 #

2014 Y L R 1595

[Peshawar]

Before Rooh-ul-Amin Khan, J

ALAM ZAR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.99-B of 2013, decided on 30th July, 2013.

(a) 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, and common intention---Bail, refusal of---Accused along with absconding co-accused, had been directly charged for the commission of offence in a daylight occurrence; which had been reported with promptitude i.e. within 25 minutes by the complainant who himself was injured---Prompt report, and factum of knowing each other well by the parties before the occurrence, had totally eliminated the possibility of consultation, deliberation, substitution, manipulation, or false implication of accused on the part of the complainant---Version of the complainant was fully supported by eye-witnesses of the incident---Blood-stained earth and motorcycle having pellets mark, had been taken into possession by the Investigating Officer---Four crime empties of .12 bore had also been recovered and taken into possession, giving fresh smell of discharge---Report of Forensic Science Laboratory qua the blood-stained articles, was in positive, which had corroborated the version of the prosecution---Report of Forensic Science Laboratory revealed that recovered crime empties were fired from different .12 bore weapons---Reasonable grounds existed, which prima facie connected accused with the commission of offence entailing capital punishment falling within the prohibitory clause of S.497, Cr.P.C.---Accused could not get the premium of single injury on the persons of the complainant---Accused was the only person having direct motive with the deceased---Material circumstances, had prima facie connected accused with vicarious liability of sharing common intention with absconding co-accused, that the offence had been committed in furtherance of their common intention---Accused having failed to make out a case of bail, his application was dismissed, in circumstances.

Ghulam Nabi v. The State 1996 SCMR 1023 and Nazar Muhammad v. The State and another |PLD 1978 SC 236 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.34 & 149---Common intention, common object---Consideration for deciding bail applications in offence under Ss.34 & 149, P.P.C.---Paramount considerations, while deciding bail application in offence under Ss.34 & 149, P.P.C. were the determination, as to whether accused was a member of an unlawful assembly; and whether the offence had been committed in furtherance of common intention---If accused appeared to be knowing that the offence would be committed in furtherance of common object of the unlawful assembly, then every member of the said assembly, would be responsible for the act committed by anyone of them; and if the offence committed would fall within the prohibitory clause of S.497, Cr.P.C., bail would be refused to each of them---Main ingredients of S.34, P.P.C., were that a criminal act must be done by several persons; that criminal acts must be done in furtherance of common intention of all; and that there must be participation of all persons in furthering the common intention---Common intention, generally involved element of common motive, pre-planned preparation, and actual pursue of such plan---Sometimes common intention was developed at the spur of the moment, or during commission of offence---Section 34, P.P.C., was applicable to sharing of knowledge as well as intention---Intention was a mental condition and was to be determined from the facts and surrounding circumstances of the case---Direct evidence in that respect, could not be expected in each case; and in order to determine the common intention, regard must be given to all the acts done by accused---Court on the basis of material placed, such as F.I.R. and statements recorded by the Police, even at bail stage, could consider the question, whether the case of constructive liability was made out or not.

Baboo v. The State 1981 SCMR 849 rel.

----S.324---Attempt to commit qatl-e-amd---Section 324, P.P.C., consisted of two parts i.e. commission of an act with intention or knowledge to commit qatl-e-amd; and in the second part there was effect of the act done---Where the intention of accused qua commission of an act was evident, the provision of S.324, P.P.C., would at once be applicable---Second part of said section was the effect for which the offender would be liable to punishment in addition to the hurt caused.

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

----Ss. 497, 74, 161, 164, 526 & 539-A---Bail---Filing of affidavit by complainant regarding non-presence of accused at the spot at bail stage---Affidavit submitted by the complainant regarding non-presence of accused at the spot, was of no consequence at bail stage; and could not be given the status of evidence---Affidavits were neither statement under S.161 nor 164, Cr.P.C.---Criminal Procedure Code, 1898 contained only three sections 74, 526 & 539-A, according to which a fact could be got proved by affidavit, otherwise any affidavit would not be treated as legal evidence---Court at the time of hearing of bail application, was supposed to do tentative assessment of the material available on the record---Trend that eye-witnesses take a somersault and give statements which were different from prosecution case and file affidavit at the stage of hearing of bail application with the intention of creating doubt in the prosecution case to enable accused to get the bail, was deprecated---Court, had to be very careful in such cases; and see that bail applications were disposed of strictly according to law on merits, keeping in view the distinction between tentative assessment and actual evaluation of evidence by the Trial Court---Mind of the court had to be satisfied where about turn of some of the eye-witnesses in such a manner, would shake up the whole prosecution case from the point of view of credibility of the remaining material---Each case in such a situation had to be decided on its own merits.

Naseer Ahmad v. The State PLD 1997 SC 347 and Mst. Basheran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83 rel.

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

----S. 497---Bail in non-bailable offence---Considerations---Bail in non-bailable offence had always been considered by the courts, where case for bail was made out---While considering the bail matter of an accused involved in a non-bailable offence, if there appeared reasonable grounds for believing that he was guilty of an offence punishable with death or imprisonment for life, he would not be released on bail, unless case was covered by any of the provisions of subsection (1) of S.497, Cr.P.C.---Bail in case of commission of non-bailable offences and particularly falling in the prohibitory clause of S.497(1), Cr.P.C., was not to be granted as a matter of course with a simple sentence that it was a case of further inquiry, without keeping in view the entire provisions of S.497, Cr.P.C.---If bail was to be granted to every accused, even if, charged with a non-bailable offence without considering the merits of the case, merely on the plea that every accused was presumed to be innocent, unless proved otherwise, the very concept and purpose of drawing a line between bailable and non-bailable offences; and various kinds of punishments, would stand frustrated---Discretion vested in the court, was to be exercised in a judicial fashion, in the light of the facts of each case---Where the prosecution would collect enough material to constitute reasonable grounds connecting accused with the alleged offence, courts were always slow to accede to the request for bail.

Qaid ullah Khan and M. Amin Khattak (??) for Petitioner.

Faridullah Khan, D.A.-G. for the State.

Pir Liaqat Ali Shah and Shauqat Ali for the Complainant.

Date of hearing: 30th July, 2013.

YLR 2014 PESHAWAR HIGH COURT 1608 #

2014 Y L R 1608

[Peshawar]

Before Ikramullah Khan, J

FATEH KHAN---Petitioner

Versus

NASEEB GUL---Respondent

Civil Revision No.1125-P of 2012, decided on 26th April, 2013.

(a) Maxim---

----"Secundum allegata et probata": No one would be permitted to lead evidence in respect of facts not alleged in his plead-ings---Applicability---Scope.

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

----Arts. 113, 117 & 118---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Burden of proof in a suit or proceedings---Scope---Suit was decreed in favour of plaintiff---Defendant categorically admitted in his written statement, that he had received earnest money however, stated that the earnest money received by him had been returned to the plaintiff---Onus of proof in such a situation, would shift on defendant to prove that he had returned the earnest money to plaintiff.

----Art. 31---Admission---Question of fact having been expressly and unequivocally admitted in the pleadings, would not require any proof.

Daulat Khan v. Ahmad PLD 2000 SC 792 and Messrs Muhammad Amin v. Pakistan through Secretary Ministry of Communication and 5 others 2000 CLC 1559 rel.

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

----S. 115---Revisional jurisdiction of High Court--- Scope--- While exercising revisional jurisdiction, High Court could not dilate upon the controversial facts as it was the sole responsibility of courts below---High Court had to adjudge as to whether any irregularity, illegality had been occasioned by the lower courts or whether proper jurisdiction was exercised by courts below or exercised jurisdiction not vested in them---High Court could not go beyond the mandate of revisional jurisdiction---Revision petition was dismissed.

Sher Haider Kohat for Petitioner.

Altaf Hussain for Respondent.

Date hearing: 26th April, 2013.

YLR 2014 PESHAWAR HIGH COURT 1712 #

2014 Y L R 1712

[Peshawar]

Before Mian Fasih-ul-Mulk, J

Haji SAR BILAND KHAN and others---Petitioners

Versus

Haji FAZAL MUHAMMAD and another---Respondents

Civil Revision No.879 of 2007, decided on 22nd October, 2012

(a) Islamic Law---

----Gift/Hiba--- Validity--- Essentials----Essentials to the validity of a gift were that there should be declaration of gift by the donor, and acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession of the subject of the gift by the donor to the donee; and if said three conditions were complied with, the gift was complete.

Mohamedan Law, 16th Edn., in section 149 at page 141 rel.

(b) Land Records Manual

----Chap 7, Para 7.4----West Pakistan Land Revenue Act (XVII of 1967), S.42---Specific Relief Act (I of 1877), S.42---Suit for declaration impugning validity of mutation of suit-land in favour of defendants---Signature/thumb impressions on mutations---Contention of the plaintiffs was that Tehsildar did not obtain signature of donor of land, on the mutation in question---Validity----As per Chapter 7, paragraph 7.4 of the Land Records Manual, signature/thumb-impressions of parties on mutations were not necessary but were rather prohibited and non-obtaining of signature/thumb-impressions on impugned mutation was therefore of no help to the plaintiffs.

Manzoor Hussain v. Raja Shah and others 1992 CLC 602 and Bani Begum and others v. Muhammad Azam Khan and others PLD 2003 SC 235 rel.

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 129(e)--- Mutations----Presumption of truth---When entries of mutation were incorporated in the record of rights, the same would carry a presumption of truth.

Bani Begum and others v. Muhammad Azam Khan and others PLD 2003 SC 235; Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614 and Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 rel.

Jan Muhammad and Asif Nawaz for Petitioners.

Abdul Sattar Khan for Respondents.

Date of hearing: 22nd October, 2012.

YLR 2014 PESHAWAR HIGH COURT 1743 #

2014 Y L R 1743

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

GUL HASSAN---Petitioner

Versus

Mst. NASREEN AKHTAR and 2 others---Respondents

Writ Petition No.242-D of 2010 and Writ Petition No.598D of 2011, decided on 13th November, 2012.

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

----S.5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.5---Constitution of Pakistan, Art, 199---Constitutional petition---Dissolution of marriage---Concurrent findings of fact by two courts below---Family Court and Lower Appellate Court concurrently dissolved marriage between parties---Validity---Both the courts below concurrently arrived at a conclusion that husband failed to fulfil his liability---Marriage debt was still outstanding against husband and he was ready to divorce his wife provided she would forgo her dower and maintenance amount---Written statement and evidence of husband were sufficient to prove that he was mostly interested in waiver of dower amount rather than in his wife---No misreading and non-reading of evidence or any illegality or irregularity was pointed out, which could warrant interference of High Court---Petition was dismissed in circumstances.

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

----S.5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.5---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Non-payment of dower---Effect---Non-payment of dower by husband makes wife entitled to live apart from her husband till her dower is paid and during such period, husband becomes bound to pay her maintenance, even though she is living apart from him---When wife succeeds to establish ground of cruelty and non-maintenance for sufficient long time during subsistence of marriage, she becomes entitled to dissolution of marriage.

----S.5, Sched.---Dower and maintenance---Entitlement---Once it is found that aversion was result of maltreatment of husband; non-payment of dower; or any other genuine ground provided in law, wife cannot be deprived of her dower and maintenance.

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

----S.7---Dissolution of marriage---Khula---Principle---Marriage should be dissolved on the basis of Khula, when wife is determined not to live with her husband because of her hatred for him and without any fault on the part of husband.

Nauman Gul and Muhammad Anwar Awan for Petitioner.

S. Mastan Ali Zaidi and Ahmad Ali Khan Marwat for Respondents.

Date of hearing: 13th November, 2012.

YLR 2014 PESHAWAR HIGH COURT 1782 #

2014 Y L R 1782

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

KHALIL AHMAD and others---Petitioners

Versus

Mst. AZMAT ARA (Widow) and others---Respondents

Civil Revision No.1561 of 2006, decided on 25th March, 2013.

Civil Procedure Code (V of 1908)---

----O.VII, R.11, O.II, R.2 & S.11---Specific Relief Act (I of 1877) S.42 & 54---Rejection of plaint---Scope---Res judicata, principle of---Applicability---Scope---Suit for declaration to the effect that plaintiffs were owners of suit property with the prayer that defendants be restrained from interfering in the same---Plaint was rejected on the ground of res judicata on application filed under O. VII, R. 11 C.P.C. by the defendants contending that a previous suit in respect of suit property was filed by the predecessor of the plaintiffs---Contention of the plaintiffs was that previous suit was in respect of a part of the whole of joint property and present suit could not be rejected without recording evidence---Validity---Trial Court had not provided opportunity of recording pro and contra evidence to the parties for establishing claims for resolving the matter and non-providing of such opportunity to both parties to produce evidence of their choice was not sustainable in the eye of the law---High Court set aside impugned order of Trial Court and directed the Trial Court to record pro and contra evidence in respect of res judicata and controversy of the suit and decide the application under Order VII, R. 11, C.P.C. on merits---Revision was allowed accordingly.

Zia-ur-Rahman for Petitioner.

Asghar Ali for Respondent.

Date of hearing 25th March, 2013.

YLR 2014 PESHAWAR HIGH COURT 1786 #

2014 Y L R 1786

[Peshawar]

Before Qaiser Rashid Khan and Shah Jehan Khan Akhundzada, JJ

Mst. SAADIA TABASSUM---Petitioner

Versus

Malik MURTAZA and another---Respondents

Writ Petition No.869 with C.M. No.678 of 2011, decided on 6th February, 2013.

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

----S. 4---Constitution of Pakistan, Art. 199--- Constitutional petition---Determination of rent---Rent Controller determined the rent of shop by relying on rent deeds of the adjacent shops---Validity---Each place has its own potential value---Rent deeded of the adjacent shops supported that the rent of the suit shop as determined through the impugned order was in consonance with the market rates---Order of Rent Controller was based on correct legal footings and needs no interference---Constitutional petition was dismissed.

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

----S. 4---Constitution of Pakistan, Art.199--- Constitutional petition---Maintainability---Interim order---Factual controversy---Interim order of Rent Controller regarding determination of rent was challenged in constitutional petition---Effect---Issue related to the facts of the case which required pro and contra evidence of the parties and could not be determined in exercise of its extraordinary constitutional jurisdiction---Impugned order being interim in nature having been passed on an interlocutory application was not open to challenge through a constitutional petition.

Muhammad Saeed Shah v. Mst. Philpana and another 2012 MLD 783 rel.

Noor Gul Khan Marwat, for Petitioner.

Zain-ul-Abideen Khan, for Respondent No.1.

2014 Y L R 1939

[Peshawar]

Before Mazhar Alam Khan Mian Khel, J

JEHANZEB and others---Petitioners

Versus

MUHAMMAD ISRAR and others---Respondents

Civil Revision No.1211 of 2011, decided on 27th May, 2013.

(a) Administration of Justice---

----Fact regarding which material is available on file can be taken notice of by Court.

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

----Arts.72 & 100---Registration Act (XVI of 1908), S.17---Specific Relief Act (I of 1877), S.42---Suit for declaration---Thirty years old document---Presumption---Registered document---Proof---House in question was claimed to be owned by widow of previous owner, on the basis of dower deed executed in her favour and widow was maternal grandmother of plaintiff---Plaintiff claimed to be owner on the basis of registered gift deed executed by his grandmother---Defendants were successors-in-interest of deceased owner of the house who had denied dower and gift deeds---Trial Court dismissed suit of plaintiff but Lower Appellate Court reversed the findings and decreed the suit in favour of plaintiff---Validity---Dower deed was more than 30 years old but mere such fact alone was not sufficient to grace a document with presumption of correctness as provided in Art. 100 of Qanun-e-Shahadat, 1984---Age of a document alone would not amount to a proof about correct of contents of such document nor would dispense with formal proof---If genuineness of a document was susceptible to suspicion, the Court could refuse to raise presumption and could ask for the proof of its contents---Findings of Lower Appellate Court in such regard were not based on proper appraisal of law on the subject---Basic presumption of correctness was attached to registered document but when execution of the same was under fire, then beneficiary of such registered deed was legally bound not only to prove execution of the same but also contents of the same---Evidence of plaintiff was deficient on the question of offer, acceptance and delivery of possession under gift, irrespective of the fact that plaintiff had been in possession of suit house since his birth---Trial Court rightly granted decree to defendants by dismissing suit of plaintiff, whereas findings of Lower Appellate Court were against the law and could not be left to remain in field---Findings of Lower Appellate Court were result of misreading and non-reading of material evidence on the record and jurisdiction so exercised was against the law and could not be sustained---Revision was allowed in circumstances.

Fida Hussain and others v. Abdul Aziz 2005 CLC 180; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Badar Zaman v. Sultan 1996 CLC 202 and Allah Ditta v. Aimna Bibi 2001 SCMR 1483 rel.

Mst. Azmat-e-Bibi v. Noor Muhammad and 3 others 2012 YLR 1765; Hidayatullah Khan v. Ajmal Khan 2006 CLC 35; Allah Ditta v. Aimna Bibi 2011 SCMR 1483; Noor Din and others v. Khushi Muhammad and another 2000 MLD 1427; Muhammad Arif v. Malik Muhammad Farooq and 4 others 2002 CLC 1361; Muhammad Bashir and 6 others v. Muhammad Ashraf and 26 others 2004 CLC 1180; State Life Insurance Corporation of Pakistan through Chairman and 3 others v. Safia Begum 2001 CLC 408; Badar Zaman v. Sultan 1996 CLC 202 and Noor Elahi v. The State PLD 1966 SC 708 distinguished.

Ahmad Shah for Petitioner.

Sardar Ali, Arbab ul Haq and Abdur Rehman Khan for Respondents.

Date of hearing: 27th May, 2013.

YLR 2014 PESHAWAR HIGH COURT 1964 #

2014 Y L R 1964

[Peshawar]

Before Nisar Hussain Khan, J

GHULAM MOHUDDIN---Petitioner

Versus

ALAUDDIN and 5 others---Respondents

Civil Miscellaneous No.502-P of 2012 in Regular First Appeal No.369 of 2010, decided on 7th October, 2013.

Civil Procedure Code (V of 1908)---

S.144---Qanun-e-Shahadat (10 of 1984), Art. 36---Specific Relief Act (I of 1877), S.8---Suit for recovery of possession of immovable property and mesne profit---Admission---Scope---Restoration of party to its pre-decree position---Scope---During the proceedings, defendant made a statement before Trial Court wherein he stated to hand over possession and pay due amount---Trial Court considered such statement as admission of defendant and passed decree in favour of plaintiffs---Contention of plaintiffs was that judgment and decree passed by Trial Court had executed and possession was taken over by plaintiffs---Validity---Legally admission was not conclusive proof of matter admitted and an admission which was wrong on the point of facts and was made in ignorance of legal rights had no binding effect on the person making it---Only exception to such admission for becoming conclusive and binding on party making it was when in consequence of such admission, other party had altered his position---Such admission acted as estoppel against party making the same---Stance of plaintiffs was misconceived, as such situation was covered by S.144, C.P.C. according to which when decree of Trial Court / Appellate Court was reversed by higher forum, the party against whom decree was executed, could be restituted / restored to its original position of prior to passing the decree, hence contention of plaintiffs was not tenable---High Court set aside judgment and decree passed by Trial Court and remanded the matter for decision afresh on merits after recording full evidence---Appeal was allowed in circumstances.

Arshad Jamal Qureshi for Appellant.

Zafar Ahmad Awan for Respondents.

Date of hearing: 7th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 1978 #

2014 Y L R 1978

[Peshawar]

Before Ikramullah Khan, J

INAYAT-UR-REHMAN and others---Petitioners

Versus

SHAH JEHAN and others---Respondents

Civil Revision No.1524 of 2010, decided on 17th March, 2014.

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

----Ss. 42 & 39---Registration Act (XVI of 1908), Ss.49 & 50(1)---Transfer of Property Act (IV of 1882), S.53-A---Counter suits for declaration by the parties for the same (disputed) property---Petitioners instituted suit for declaration and cancellation of mutation, while respondent instituted suit for declaration---Suit of the petitioners was dismissed and that of respondent was decreed--Contention of respondent was that unregistered sale-deed/ contract was inadmissible in evidence and had no force at all---Contention of the petitioners was that on the touchstone of the provisions of S.50 of the Registration Act, 1908 and principle of equity as contained in S. 53-A of the Transfer of Property Act, 1882, petitioners being in possession of the suit property could claim over the suit property on the basis of unregistered sale-deed---Validity---Provisions of S. 50 of the Registration Act, 1908 and principle of equity as contained in S. 53-A of the Transfer of Property Act, 1882 in unequivocal terms conferred right upon any vendee, who had possession of the property in pursuance of contract for sale for consideration, which had been reduced into writing and signed by the vendor or any person on his behalf, which could be ascertained with reasonable certainty and the transferee was ready to perform or willing to perform his part of the contract, to retain possession over the immovable property, came into his shoes, through covenant of sale under the established principles of equity---First proviso to S. 50 of the Registration Act, 1908 clearly enumerated that a person who was in possession of the property under unregistered document prior to date, would be entitled to claim rights under S. 53-A of the Transfer of Property Act, 1882 provided that he fulfilled all the conditions laid down in the said section---Provisions contained in S. 49 of the Registration Act, 1908 were general in character and were excluded all kind of unregistered documents from consideration, so far the title or interest in any immovable property was concerned, but the proviso annexed to S.50 of the said Act, had made an exception and had saved such unregistered sale-deed in pursuance of which, as part performance of contract, the possession of the property or part thereof was delivered---Revision petition was partially allowed and the impugned judgments of both the courts below were accordingly set aside.

(b) Registration Act (XVI of 1908)---

----Ss:49 & 50---Person in possession of the property on the basis of an unregistered document prior in date---Entitlement---First proviso to S. 50 of the Registration Act, 1908 clearly provided that a person who was in possession of the property under an unregistered document prior to date, would be entitled to claim rights under S. 53-A of the Transfer of Property Act, 1882 provided that he fulfilled all the conditions laid down in the said Section---Provisions contained in S.49 of the Registration Act, 1908 were general in character and had excluded all kinds of unregistered documents from consideration, so far the title or interest in any immovable property was concerned, but the proviso annexed to S.50 of the said Act, had made an exception and had saved such unregistered sale-deed in pursuance of which, as part performance of contract, the possession of the property or part thereof was delivered.

----S.53-A---Vendee in possession of a property under unregistered sale-deed---Right of---Principle of equity as contained in S. 53-A of the Transfer of Property Act, 1882 in unequivocal terms conferred right upon any vendee, who had possession of the property in pursuance of contract for sale for consideration, which had been reduced into writing and signed by the vendor or any person on his behalf, which could be ascertained with reasonable certainty and the transferee was ready to perform or willing to perform his part of the contract, to retain possession over the immovable property, came into his shoes, through covenant of sale under the established principles of equity.

Fazla v. Mehr Din and 2 others 1997 SCMR 837 rel.

Gul Sadbar Khan for Petitioners.

Jan Muhammad Khan for Respondents.

Date of hearing: 17th March, 2014.

YLR 2014 PESHAWAR HIGH COURT 2005 #

2014 Y L R 2005

[Peshawar]

Before Yahya Afridi, J

MUHAMMAD SHAH---Petitioner

Versus

Agha SEEMAB ALI---Respondent

Civil Revision Petition No.201 of 2012, decided on 8th November, 2013.

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

----S. 12--Registration Act (XVI of 1908), Ss.17 & 50---Transfer of Property Act (IV of 1882), S.53-A---Qanun-e-Shahadat (10 of 1984), Arts.115, 118, 119, 126 & 129(g)---Suit for specific performance---Prior unregistered contract of sale with transfer of possession---Conditions for entitlement to protection of bona fide purchaser without notice---Onus of proof---Courts below decreed suit in favour of subsequent buyer/plaintiff with registered sale-deed---Validity---Written contract of sale, though unregistered, had been proved in favour of defendant who was admittedly in possession of the suit property---Plaintiff neither mentioned the name of vendor, who was his uncle, in the list of witnesses nor produced him as witness-In view of Art.129(g) of the Qanun-e-Shahadat, 1984, non production of vendor would draw adverse inference against plaintiff---Plaintiff could not be believed to have no notice of the deed in favour of defendant, therefore, he could not seek protection of bona fide purchaser under S.53-A of the Transfer of Property Act, 1882---Admission of defendant's witness was not conclusive proof (of the fact that defendant was in possession as tenant)---Initial burden of proof was on the party claiming title to property in possession of another but onus of proof could shift during the proceedings depending upon circumstances---Preponderance of evidence ruled the scale of relief---Where court was unable to decide the matter on the basis of evidence produced by the parties, onus of proof would govern the decision---Preponderance of evidence was in favour of petitioner/defendant---Petition was accepted.

Fazla's case 1997 SCMR 837; Ahmad Khan v. Rasool Khan PLD 1975 SC 311 and Mst. Qaisar Khatoon v. Molvi Abdul Khaliq PLD 1971 SC 334 rel.

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

---Arts. 118, 119 & 126---Dispute as to property---Onus of proof---Application and significance---Initial burden of proof was on the party claiming title to property in possession of another---Onus of proof could shift during the proceedings depending upon circumstances---Preponderance of evidence ruled the scale of relief---Where court was unable to decide the case on the basis of evidence produced by the parties, onus of proof would govern the decision.

Mst. Qaisar Khatoon v. Molvi Abdul Khaliq PLD 1971 SC 334 rel.

Abdul Sattar Khan for Petitioner. Tariq Javed for Respondent.

Date of hearing: 8th November, 2013.

YLR 2014 PESHAWAR HIGH COURT 2016 #

2014 Y L R 2016

[Peshawar]

Before Malik Manzoor Hussain, J

ASKAR ALI---Petitioner

Versus

GHULAM NABI and 4 others---Respondents

Civil Revision No.1235-P of 2012, decided on 9th June, 2013.

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

----S.11---Res judicata---Applicability---Scope---Parties to earlier lis and the present suit were the same, the property was also the same---Mutation with regard to which earlier suit was decided upto High Court was also the same---Held, claim of the plaintiff, directly and substantially was the same, that had been raised and decided---Principle of constructive res judicata was fully applicable to the circumstances of the case.

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

----O.II, R.2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Suit to include the whole claim---Omission to sue portion of claim---Cause of action was earlier available but not challenged in previous suit---Effect---Suit for declaration for the same property was dismissed by trial court and appellate court upheld the order of dismissal of suit---"Iqrar Namas" executed relating to the same suit property had not been questioned in the earlier suit---Effect---"Iqrar Namas" had been executed before institution of the earlier suit, cause of action thus was available to the plaintiff and he could agitate the "Iqrar Namas" in the earlier round of litigation---Bar contained under Order II, Rule 2 should come into play against the plaintiff---Revision petition was dismissed.

----O.VII, R.11---Rejection of plaint---Scope---Inherent powers of Court---Scope---Suit which on the face of it, was barred because of an express or implied embargo imposed upon it under the law should not be allowed to further proceed and court should reject the plaint under its inherent power---Still born suit should be properly buried, at its inception---Plaint having been being found to be barred by law, attracting the principle of res-judicata as well as estoppel, by conduct had rightly been rejected.

Haji M. Zahir Shah for Petitioner.

YLR 2014 PESHAWAR HIGH COURT 2036 #

2014 Y L R 2036

[Peshawar]

Before Mrs. Irshad Qaiser, J

AMIN-UL-HAQ---Petitioner

Versus

SAID ANWAR and 7 others---Respondents

Civil Revision No. 57 of 2012, decided on 18th January, 2013.

(a) Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----S.13---Talb-i-Muwathibat---Non-production of informer---Time, date and place of Talb-i-Muwathibat---Scope---Pre-emptor did not produce informer of sale as witness before Trial Court but suit filed by pre-emptor was concurrently decreed by Trial Court as well as by Lower Appellate Court in his favour---Validity---Talb-i-Muwathibat was to be made as soon as pre-emptor got knowledge of transaction of sale---Factum of Talb-i-Muwathibat being question of fact, it had to be proved through evidence in court---Pre-emptor was required to mention date, time and place in plaint, which he had done similarly, he was required to mention the same in his evidence before Trial Court---Talb-i-Muwathibat should be taken seriously as required by law and should not be considered as mere technicality---Pre-emptor failed to produce material witness i.e. the informer who allegedly first informed him about disputed transaction---Pre-emptor did not give any reason as to why he was unable to produce the witness who first informed him about the sale---Non-production of informer was fatal to the suit of pre-emptor---Both the Courts below i.e. Trial Court and Lower Appellate Court committed material irregularity by misreading and non-reading of record, therefore, their judgments were set aside and suit filed by pre-emptor was dismissed as he failed to prove Talb---Revision was allowed in circumstances.

2007 SCMR 1830; 1995 MLD 1061; PLD 2006 Lah. 37; 2007 SCMR 401 and 2011 CLC 903 ref.

2003 CLC 1775; 2002 SCMR 235; 1999 CLC 1735; 1998 CLC 1190 and 2007 SCMR 401 rel.

(b) Pleadings---

----Piece of evidence---Scope---Pleadings of parties are not substitute of evidence and it being not substantive evidence---Averments made in pleadings would carry no weight unless proved from evidence in court or admitted by other party.

2007 SCMR 1719; 2007 SCMR 870; 1986 CLC 288; 1992 MLD 1879; 1991 CLC 1937 and PLD 2003 SC 594 rel.

----S.13---Provisions of section 13 of Khyber Pakhtunkhawa Pre-emption Act, 1987, can only be regarded to have been complied with when all steps of performance of Talb preceding filing of suit are duly performed.

Haji Muhammad Saleem v. Khuda Bakht PLD 2003 SC 315 rel.

(d) Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----S.13---Talb-i-Ishhad---Service of notice---Proof---Photo copy of such notice, even if produced would not be an evidence of service of notice.

2005 SCMR 1231 and Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762 rel.

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

----S.115---Revisional jurisdiction of High Court---Scope---Findings of fact and law---Such findings, however, erroneous, the same recorded by court of competent jurisdiction cannot be interfered with by High Court in exercise of revisional jurisdiction under section 115 C.P.C. unless such finding suffers from jurisdiction defect, illegality or material irregularity.

Manzoor Khan Khalil for Petitioner.

Muhammad Riaz Mohmand for Respondent.

Date of hearing: 18th January, 2013.

YLR 2014 PESHAWAR HIGH COURT 2048 #

2014 Y L R 2048

[Peshawar]

Before Malik Manzoor Hussain, J

NIAZ MUHAMMAD and others---Petitioners

Versus

Syed ZAHIR SHAH and others---Respondents

Civil Revision No.585-P of 2013, decided on 30th August, 2013.

Civil Procedure Code (V of 1908)---

---S. 47---Partition Act (IV of 1893), S. 4---Suit for partition---Suit was finally decreed wherein objection petition was submitted which was dismissed---Validity---No controversy existed with regard to share of plaintiffs---Final decree was passed in the year 1989 and same could not be satisfied or had achieved its object due to unnecessary filing of objection petition---Executing Court proceeded with the matter in accordance with law---Preliminary decree was passed in the year 1968 which could not be concluded even after passing of more than four decades---Decree-holders had been involved in a prolonged unnecessary litigation on one pretext or the other---Claim of defendants seemed to be for ulterior consideration---Executing Court had handed over possession to the decree-holders after considering the objections taken by the defendants with regard to their share---No infirmity or irregularity had been found in the impugned orders of both the courts below; there should be an end to the litigation but defendants had continued to abuse and misuse the process of the courts with impunity---Defendants had no case on merits and deserved no leniency and were liable to be burdened with costs which would minimize the agonies of the decree-holders and also the back-log crises for the courts---Revision was dismissed with costs of Rs. 15,000 which should be paid by the defendants to the decree-holders.

Nawab Zada Jan for Appellant.

Nemo for Respondent.

Date of hearing: 30th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 2058 #

2014 Y L R 2058

[Peshawar]

Before Abdul Latif Khan, J

Mst. FAUZIA BIBI---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Quashment Petition No.150-A of 2013, decided on 25th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Petition for quashing of F.I.R.---Agreement/sale deed was executed in between complainant and husband of the petitioner in respect of vehicle sold by the complainant in favour of the husband of the petitioner---Vehicle was handed over to husband of the petitioner who in turn issued two cheques, which allegedly were dishonoured---Petitioner figured nowhere in the said deed in any capacity---Complainant and petitioner were not directly in transaction to each other at any stage, they were not known to each other, and hailed from different areas and had no concern-interest in any manner---Complainant had got no locus standi to get the case registered against the petitioner, as neither he had handed over the vehicle to the petitioner nor she had made partial payment---If the complainant had made a case out, same would be against the husband of the petitioner not the petitioner---All necessary ingredients to constitute an offence under S.489-F, P.P.C. were missing in the case as petitioner had never issued any cheque in favour of the complainant---Parties to the alleged agreement; being involved in litigation before civil court, fate of the same would be determined by the competent court---Entire transaction did not form any liability against the petitioner---No criminal liability/case having been made out against the petitioner, F.I.R. registered against her under S.489-F, P.P.C., was quashed, in circumstances.

Muhammad Idrees Khan for Petitioner.

Sanaullah Shamim A.A.-G. for the State.

Sanaullah Khan Gandapur for Respondent No.3.

Date of hearing: 25th November, 2013.

YLR 2014 PESHAWAR HIGH COURT 2085 #

2014 Y L R 2085

[Peshawar]

Before Nisar Hussain Khan, J

UNIVERSITY OF ENGINEERING AND TECHNOLOGY, PESHAWAR through Registrar UET, Peshawar---Appellant

Versus

Qazi RAZA-UR-REHMAN and 2 others---Respondents

F.A.O. No.32 of 2013, decided on 13th December, 2013.

(a) Administration of justice---

----Procedural laws are enacted to advance the cause of justice and not to thwart the same.

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

----O.VII, R. 18---Dismissal of suit on account of defective plaint---Validity---O.VII, R.18, C.P.C. had provided a limitation for filing amended plaint within the prescribed limit, but it nowhere empowered the court to dismiss the suit---Trial court should have proceeded with the original plaint but the trial court dismissed the suit on the ground of defective plaint, for which no provision in the Code of Civil Procedure was provided---Impugned order was not sustainable, therefore the same was set aside, the matter was remanded to trial court to proceed with the matter in accordance with law---Appeal was allowed.

Shahbaz Khan for Appellant.

Arshad Jamal Qureshi for Respondents.

Date of hearing: 13th December, 2013.

YLR 2014 PESHAWAR HIGH COURT 2109 #

2014 Y L R 2109

[Peshawar]

Before Mian Fasih-ul-Mulk and Yahya Afridi, JJ

FAZAL HAQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.472-P of 2012, decided on 21st November, 2013.

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

----Ss. 365 & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S.164---Qanun-e-Shahadat (10 of 1984), Art. 129(a)---Act of terrorism and kidnapping or abduction with intent secretly or wrongfully to confine a person---Appreciation of evidence---Charge, alteration of---Sentence, reduction of---Confession---Scope---No admission of guilt or conspiracy or intention to abduct any person was on record---No demand made or receipt of ransom by the accused or on his behalf was available---Prosecution witnesses had admitted that abduction took place while accused was driving vehicle---Statement of accused recorded under S. 164, Cr.P.C. was in fact an admission of facts---Accused had witnessed abduction in the same transaction and allowed abductee to be seated in the vehicle while accused was driving the said vehicle---Such admission of facts by the accused were relevant facts which would constitute the offence of abduction chargeable under S. 365, P.P.C.---Statement of accused recorded under S. 164, Cr.P.C. was retracted by him---Retracted confession should be voluntary, inculpatory and truthful---Defence was unable to point out any striking evidence to damage or diminish the effect of retracted confession with regard to voluntariness and inculpatory of the same---Statement of accused recorded under S. 164, Cr.P.C. was also corroborated by other direct or circumstantial evidence on material particulars and same could be relied upon---Time and place of arrest of accused along with vehicle which was identified by the eye witness of the crime and recorded in the 'Murasila' would lead to an adverse presumption against the accused when he was unable to explain his presence in the vehicle at the time of his arrest---Prosecution had failed to prove that any ransom was demanded by the accused party and same was paid for release of abductee---Prosecution had been unable to prove a case against the accused committing the offence carrying capital punishment under S. 365-A, P.P.C.---Prosecution evidence was clear with regard to factum of abduction of abductee by the accused party corroborated by the statement of accused recorded under S.164, Cr.P.C and his arrest while driving vehicle soon after commission of offence---Offence of kidnapping had been committed by the accused punishable under S. 365, P.P.C.---Punishment for kidnapping as provided under S.365 P.P.C. was imprisonment which might extend to seven years but same would be rather harsh and disproportionate to sentence accused for maximum period of seven years---Accused had been behind the bars for the last more than two years and such period was proportionate to the criminal culpability of the accused---Charge was altered for the commission of offence under S. 365-A, P.P.C. to that of S. 365, P.P.C. and while maintaining the conviction of accused sentence awarded to him was reduced from life imprisonment under S. 365-A, P.P.C. to that already undergone and also burden with a fine of Rs. 5000 and in case of failure to pay the same to undergo six months rigorous imprisonment under S.365, P.P.C.---Appeal was partially accepted in circumstances.

Bahadur Khan's case PLD 1995 SC 336 rel.

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

----Arts. 30, 39 & 40---"Admission"---Meaning.

----S.164---"Confession"---Meaning---"Confession" was an admission of guilt of a person for an offence committed.

Black's Law Dictionary (8th Edition) rel.

(d) Criminal trial---

----"Confession and admission"---Difference.

Principles and Digest of the Law of Evidence by M. Munir rel.

Khawaja Muhammad Khan Gara, Muhammad Saeed Khan and Kifaitullah for Appellant.

Mian Arshad Jan, A.A.-G. for the State.

Arbab Shabir Ahmad for the Complainant.

Date of hearing: 21st November, 2013.

YLR 2014 PESHAWAR HIGH COURT 2130 #

2014 Y L R 2130

[Peshawar]

Before Ikram Ullah Khan, J

WAHAB GUL---Petitioner

Versus

SIKANDAR ALI and 7 others---Respondents

Civil Revision No.767 of 2008, decided on 28th October, 2013.

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

----O. VII, R. 11, Ss. 9 & 115---West Pakistan Land Revenue Act (XVII of 1967), Ss. 53 & 172---Specific Relief Act (I of 1877), S. 42---Suit for declaration for correction of Khasra Girdawari---Rejection of plaint---Revision---Maintainability---Scope---Plaintiffs filed suit wherein defendant moved an application for rejection of plaint which was dismissed concurrently---Contention of defendant was that matter had already been adjudicated upon by the revenue hierarchy---Validity---Grievance of plaintiffs before the revenue authorities was with regard to correction of Khasra Girdawari and when they found not satisfied from the orders of revenue hierarchy, they instituted civil suit under S. 53 of West Pakistan Land Revenue Act, 1967---Dispute with regard to ownership over the suit property was between the parties---Revenue authority directed plaintiff to seek his remedy from civil court when question of ownership was agitated by the defendant---Simple question with regard to correction of undisputed entries would fall within the jurisdiction of revenue authorities under S. 172 of West Pakistan Land Revenue Act, 1967---Complicated and intrinsic question with regard to such entries which would interfere with the rights of a person could be agitated before the civil court under S. 53 of West Pakistan Land Revenue Act, 1967---Subject matter of dispute between the parties was not a simple question of correction of entries in the present case but same was with regard to claim of ownership over the disputed property which would fall within the exclusive jurisdiction of civil court under S. 9, C.P.C.---Present revision against the impugned order was not maintainable as same remedy had already been availed from the Lower Appellate Court---No illegality or irregularity had been pointed out in the impugned judgment---Revision was dismissed in circumstances.

Rastamal Khan v. Nabi Sarwar Khan 1996 SCMR 78 and Mst. Bano alias Gul Bano v. Begum Dilshad Alam 2011 CLC 88 rel.

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

----O.XLIII, R.1, Ss.104, 115 & O. VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Rejection of plaint---Appeal---Scope---Order dismissing an application filed under Order VII, Rule 11, C.P.C. was not appealable but revision against the same was competent.

Abdul Lateef Afridi for Petitioner.

Gul Sadbar Khan for Respondent.

Date of hearing: 28th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 2141 #

2014 Y L R 2141

[Peshawar]

Before Rooh-ul-Amin Khan, J

NOOR MUHEET---Petitioner

Versus

ATTAULLAH and others---Respondents

Civil Revision No.65-B of 2009, decided on 19th June, 2013.

(a) Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----S.13---Right of pre-emption, exercise of---Procedure---Performance of Talb-e-Muwathibat and Talb-e-Ishhad---Scope---For successful exercise of right of pre-emption it was essential that as soon as the pre-emptor acquired knowledge of sale of pre-empted property, he should make immediate demand for his intention to assert his right of pre-emption without slightest loss of time---After performance of the first requisite Talb i.e. talab-i-Muwathibat, the pre-emptor had another legal obligation to perform i.e. making of Talb-i-Ishhad, soon after the making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat---Mandatory to mention in the plaint the date, place and time of performance of Talb-i-Muwathibat and thereafter to prove the same through cogent and coherent evidence---For successful exercise of right of pre-emption, performance of talbs in their respective chronological order, were sine qua non.

(b) Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----S.13---Qanun-e-Shahadat (10 of 1984), Art.117---Pre-emption suit---Pleadings---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Requirement of mentioning of details of Talbs in plaint---Principles---Failure to fortify the averments made in plaint in respect of Talbs---Effect---Suit for pre-emption was dismissed by Trial Court---Appellate Court upheld the judgment and decree passed by Trial Court---Validity---No doubt the petitioner/pre-emptor had given detail about the date, day, time and place of performance of the first requisite talb viz Talb-i-Muwathibat, but mere mentioning of all these details in the plaint would not be sufficient to prove the stance of the petitioner unless proved through cogent, coherent and confidence inspiring evidence---Performance and proof of Talb-i-Muwathibat was not a mere technicality---Right of pre-emption was not activated unless Talb-i-Muwathibat was performed---Requirement of mentioning all the details in the plaint was imperative, so that the pre-emptor could not improve his case during the trial, or make a departure from his pleadings---Right of pre-emption being a feeble right was to be proved strictly in accordance with law, with cogent, coherent and trustworthy evidence.

Mian Pir Muhammad's case PLD 2007 SC 302 rel.

----S. 13---Talb-e-muwathibat---Proof---Plaintiff had failed to prove performance of Talb-e-muwathibat---Effect---Suit for pre-emption filed by plaintiff was dismissed and Appellate Court upheld the decree passed by Trial Court---Validity---Talb-i-muwathibat played a role of ignition in process of pre-emption and on failure of the pre-emptor to prove the performance of talb-e-muwathibat, the court was not required to move a step ahead, because discussing the other factors like talb-i-ishhad, talb-e-khasoomat and superior right of preemption, etc. would be a futile effort.

(d) Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----S.13---Qanun-e-Shahadat (10 of 1984), Art.117---Pre-emption suit---Talb-e-muwathibat and Talb-i-Ishhad---Object and scope---Plaint containing plea as to plaintiff's superior right of pre-emption---Onus to prove---Non-production of witnesses of talb-i-muwathibat as well as notice of talb-i-ishhad in evidence---Effect--Where pre-emptor had made Talb-i-Muwathibat, he shall thereafter as soon as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre-emption---Non-production of witnesses of Talb-i-Muwathibat as well as notice of Talb-i-Ishhad would certainly damage the case of the pre-emptor---Both the talbs could not be deemed to have been proved, in circumstances.

(e) Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----S.13---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 129(e)---Notice of Talb-e-ishhad---Service to addressee---Proof---Failure to produce postman as witness---Effect---Vendee had specifically denied the receipt of notice talb-i-ishhad in his statement---Pre-emptor failed to produce post man who delivered the said registered letter to the vendee---Trial Court dismissed the suit---Validity---Imperative for the pre-emptor to produce post man qua proof of notice talb-i-ishhad---Pre-emptor shall prove the service of notice of talb-i-ishhad, by producing the concerned post man, when receipt of notice, was denied by the vendee---Petitioner did not perform mandatory obligation and as such had failed to prove performance of talb-i-ishhad---Trial Court had rightly dismissed the suit for pre-emption---Revision was dismissed.

Muhammad Bashir and others' case 2007 SCMR 1105 and Bashir Ahmed's case 2011 SCMR 762 rel.

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

----S.115---Revisional jurisdiction of High Court---Scope---Findings by Court of competent jurisdiction---Concurrent findings of courts below---Scope of revisional jurisdiction was very limited in which the Court could not set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it could upset the same, even if, on appreciation of evidence a different view could be formed, unless these findings were shown patently illegal, without jurisdiction or the result of bare misreading and non-reading of material evidence, based on conjectural presumptions or erroneous assumption.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346; Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Abdul Jabar Khan for Petitioner.

Arsala Khan for Respondents.

Date of hearing: 19th June, 2013.

YLR 2014 PESHAWAR HIGH COURT 2156 #

2014 Y L R 2156

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

Pir SUMMAR SHAH---Appellant

Versus

I.G.P. and others---Respondents

R.F.A. No.8 of 2009, decided on 19th June, 2013.

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

----O. XVI, R. 1---Limitation Act (IX of 1908), S.14---Non-filing of list of witnesses and non-deposit of "diet" money for official witnesses---Effect---Suit for damages---Application for withdrawing revision petition, which was filed in wrong forum---Appeal filed after more than two months of the withdrawal of revision petition---Validity---Appellant was directed to deposit "diet" money and list of witnesses within seven days, but he did not appear before the Trial Court and failed to submit list of witnesses and deposit "diet" money for official witnesses, therefore, the Trial Court invoked the provisions of O.XVI, R. 1, C.P.C.---Appellant, in circumstances, could not take the advantage of S. 14 of the Limitation Act, 1908 as the conduct of the appellant was negligent---Appellant after withdrawing the revision petition had kept himself mum for a period of more than two months without any reasonable explanation in respect of non-filing of appeal within time before the High Court, which showed the lukewarm attitude of the appellant towards the proceedings---Appeal was dismissed in the circumstances.

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

----S.14---Filing of appeal in wrong forum---Limitation---Scope---Negligence of appellant---Effect---Exclusion of time of proceedings in court without jurisdiction---Scope---Appellant had failed to prove that he had been prosecuting his remedy before wrong forum in good faith and due diligence---Appellant could not take the advantage of S. 14 of the Limitation Act, 1908 as the conduct of the appellant was negligent---Appeal was dismissed in the circumstances.

Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 rel.

Saleemullah Khan Ranazai for Appellant.

Sanaullah Shamim D.A.-G. for Respondents.

Date of hearing: 19th June, 2013.

YLR 2014 PESHAWAR HIGH COURT 2164 #

2014 Y L R 2164

[Peshawar]

Before Waqar Ahmed Seth, J

MASOOD ANWAR---Petitioner

Versus

The STATE---Respondent

Writ Petitions Nos.501-A 557-A, 558-A, 550-A, 880-A and 881-A of 2013, decided on 29th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406, 419, 420, 489-F & 34---Criminal breach of trust, cheating by personation, cheating and dishonestly inducing delivery of property, dishonestly issuing a cheque, common intention---Bail, grant of---Accused party though had intentionally defrauded the complainant under the garb of paying of high rate of profit, which offence was heinous in nature and none was allowed to loot the innocent people of the country fraudulently or through deceitful manner, but it was also expected by the Public at large to remain vigilant from the chronic and deceitful person---People were not so illiterate and foolish to throw their hard earnings on the attraction of gaining of high profit to the limbs of accused/criminals, rather they should remain vigilant about their fraudulent activities---Petitioners/accused persons, were behind the bars since February 2013, the date of their arrest; and investigation was in progress, and no useful purpose would be served by detaining accused in jail for indefinite period---Co-accused, had been enlarged on bail---On the principle of consistency, accused persons deserved to the concession of bail also---In case of conviction, accused would be taken into custody to serve out the terms of imprisonment---Accused were directed to be released on bail, in circumstances.

Nadeem Khan for Petitioner.

Abdus Quddus for the State.

Jamil Khan for NAB.

Date of hearing: 29th April, 2014.

YLR 2014 PESHAWAR HIGH COURT 2183 #

2014 Y L R 2183

[Peshawar]

Before Musarrat Hilali, J

SARDAR ALI---Petitioner

Versus

Mst. YASMIN and 3 others---Respondents

Civil Revision No.1225 with C.M. No.1051 of 2011, decided on 14th October, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 6---Right of pre-emption---Scope---Contention of plaintiff was that he was co-sharer in the suit property and had got superior right of pre-emption---Suit was dismissed concurrently--- Validity---Plaintiff was not co-owner in the suit property after partition of the same---Pre-emptor had failed to prove his right of pre-emption in the disputed property---Both the courts below had recorded concurrent findings of law and facts after appraisal of evidence available on record and same were neither perverse nor arbitrary---No illegality, irregularity or jurisdictional defect had been pointed out in the impugned judgments and decrees passed by the courts below---No misreading or non-reading of evidence had been pointed out by the plaintiff---Interference was declined in circumstances.

Manzoor Khan Khalil for Petitioner.

Naveed-ur-Rehman for Respondents.

YLR 2014 PESHAWAR HIGH COURT 2191 #

2014 Y L R 2191

[Peshawar]

Before Assadullah Khan Chamkani, J

QABIL BAD SHAH---Appellant

Versus

HAZRAT BILAL and others---Respondents

Criminal Appeal No.192-B of 2013, decided on 24th March, 2014.

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

----Ss.324 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Attempt to commit qatl-e-amd, common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Matter was reported after a delay of 17 hours, and no plausible explanation was furnished for such delay---In view of such delay in lodging report, coupled with specific motive between the parties, it could be said that the time inter se the alleged incident and report, had been consumed by the complainant in deliberation and consultation---Complainant in his statement, had totally negated his earlier version furnished by him in his report---Best available evidence having been withheld, adverse inference under Art.129(g) of the Qanun-e-Shahadat, 1984 would be drawn that had the said witness been produced, he would not have supported the prosecution case---Injured prosecution witness had admitted that occurrence had taken place in the dark hours of the night, but not a single word had been stated about the source of light at the time of occurrence, nor the Investigating Officer had collected any instrument of light---Identification of accused, in circumstances was highly doubtful---Investigating Officer, examined as prosecution witness, had admitted that during investigation of the case, he found accused innocent---Ocular account furnished by injured complainant was inconsistent and incompatible with other circumstances of the occurrence---Trial Court had rightly acquitted accused by extending him benefit of doubt, after proper appraisal of evidence to which no exception could be taken in absence of any misreading, non-reading of material evidence and any infirmity in impugned judgment.

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

----S.324 & 34---Attempt to comit qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Scope---Statement of injured witnesses, supported by medical evidence, was sufficient for recording conviction, in hurt cases, provided it rang true and was trustworthy, in view of its intrinsic worth---Mere stamp of injuries on the person of a witness, would not be a proof of the fact that whatever he deposed, would be the truthful account of the events---Veracity of injured witness was to be tested from the circumstances of the case; and his own statement, whether it fitted in the circumstances of the case, or otherwise---For recording conviction, strong and corroborative evidence of unimpeachable character was required---Finding of guilt against accused, must not be based on probabilities to be inferred from evidence--Such finding must rest surely and firmly on the evidence of unimpeachable character, otherwise the golden rule of benefit of doubt, would be reduced to naught---Absolute certainty was seldom available in forming an opinion qua guilt or innocence of a person---Courts by means of proper appraisal of evidence, must be vigilant to dig out truth of the matter to ensure that no injustice was caused to either party---Man could tell a lie, but the circumstances would never---Every human narration, was always susceptible to be checked on the touchstone of circumstances, as well as with reference to a normal human conduct.

----Benefit of doubt---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt would arise in the prosecution case, the benefit of the same must be extended to accused, not as a grace or concession, but as a matter of right---Many doubts in the prosecution case were not needed, any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind, was sufficient for acquittal of accused.

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

----S.417(2-A)---Appeal against acquittal---Acquittal, effect---Double presumption of innocence was acquired by accused after earning the acquittal from the Trial Court---Court, while sitting in appeal against acquittal, must be slow in reversing the judgment of acquittal, unless found to be arbitrary, fanciful and capricious on the face of it, or was the result of bare misreading or non-reading of any material evidence.

Malak Afsar Khan for Appellant.

YLR 2014 PESHAWAR HIGH COURT 2203 #

2014 Y L R 2203

[Peshawar]

Before Lal Jan Khattak, J

MUHAMMAD HANIF KHAN and 7 others---Appellants

Versus

WATER AND POWER DEVELOPMENT AUTHORITY OF PAKISTAN through Chairman, WAPDA, Lahore and 4 others---Respondents

Regular First Appeal No.123 of 2010, decided on 9th October, 2013.

Land Acquisition Act (I of 1894)---

----Ss. 18, 4 & 17---Fair Compensation---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount from Rs. 4,440.40 per Kanal to Rs. 8,000 per Kanal---Validity---Collector announced award on the basis of "Osat Yaksala" based on sales through mutations executed prior to date of issuance of notification under S. 4 of Land Acquisition Act, 1894---Such compensation could not be termed as correct and actual value of acquired land---Neither location of the acquired land was ascertained nor any local commission for ascertaining the potentiality of such land was appointed by the Trial Court---Increase in the price of real estate was to be considered as potential value of a land which should be considered while determining fair compensation of acquired land---Acquired land was situated at the extreme edge of highway and University---Such location of acquired land would speak for potentiality of the same which should be taken into account while determining correct market value---Neither the compensation fixed by the Collector nor enhanced by the Referee Court could be termed as "fair value"---Bald statement of witness could not be accepted---High Court enhanced compensation amount to the extent of Rs.75,000 per kanal alongwith 15% compulsory charges and 6% simple interest from the date of possession of acquired land till payment of such amount keeping in view potential value, upward trend in the prices of real estate, devaluation of national currency and delay in issuing award---Appeal of landowners was accepted whereas that of concerned department was dismissed in circum-stances.

Shaukat Hayat Khan Khakwani for Appellants.

Shakir Ullah Khan Afridi for Respondents.

Date of hearing: 9th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 2212 #

2014 Y L R 2212

[Peshawar]

Before Muhammad Daud Khan, J

WALI RAZA---Petitioner

Versus

SAIFULLAH KHAN---Respondent

Civil Revision No.39-B of 2009, decided on 21st March, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Plea of having superior right by pre-emptor---Non-mentioning of name of informer in the plaint---Effect---Plaintiff had failed to mention the name of informer in the plaint and in order to meet the deficiency he made improvement in his statement which was not permissible under the law---Pre-emptor had not fulfilled the requirements of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Plaintiff was neither co-sharer nor owner of adjacent land and he had got no superior right of pre-emption---Proof of superior right of pre-emption, performance of Talb-e-Muwathibat and then Talb-i-Ishhad in chronological order was necessary for successful exercise of right of pre-emption---Any deficiency in such requirements would render a pre-emption suit liable to be dismissed---Pre-emptor had failed to perform Talb-e-Muwathibat in accordance with S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Trial Court had properly appreciated the legal and factual position of the case whereas Appellate Court had erred in law by decreeing the suit of plaintiff---Impugned judgment and decree passed by the Appellate Court was not sustainable which was set aside and suit was dismissed---Revision was accepted in circumstances.

2007 SCMR 1143, 2007 SCMR 895; 2006 YLR 1143; 2009 MLD 558 and 2008 CLC 1126 rel.

Haji Zafar Iqbal for Petitioner.

Abdul Qayyum Qureshi for Respondent.

Date of hearing: 21st March, 2014.

YLR 2014 PESHAWAR HIGH COURT 2223 #

2014 Y L R 2223

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

DARWESH and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.261-M of 2013, decided on 18th April, 2014.

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

----S.365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Criminal Procedure Code (V of 1898), S.164---Kidnapping or abduction for extorting property, valuable security etc.---Act of terrorism---Appreciation of evidence---Benefit of doubt---Alleged abductee, neither had been recovered from the custody of accused persons, nor there was evidence regarding payment of ransom amount by the complainant, or any other person to accused persons---Prosecution had not produced the complainant nor the alleged abductee before the Trial Court for recording of their statements---By abandoning the complainant, prosecution had withheld its best evidence, which had made the story of prosecution dubious---If a best piece of evidence was available with a party and same was withheld by him, then, it would be presumed that the party had some evil motive behind same in not producing the said evidence---Presumption under illustration (g) to Art.129 of Qanun-e-Shahadat, 1984, could fairly be drawn in the matter---Only incriminating evidence against accused persons, was the retracted judicial confession---Both accused persons remained in Police custody for about eight days before recording their confessional statements, and there was no explanation of such delay---Court had to examine, as to whether confessional statement was made voluntary, free from coercion, and torture and also examine the circumstances under which it was made and retracted---Accused persons remained in Police custody for eight days, there was every possibility of having been persuaded by the Police by coercion, inducement or torture to give the confessional statement---Confession could not be made basis for conviction---Conviction could be based on the retracted confession alone, but if it was found voluntary, true and confidence inspiring---Very voluntary nature and truthfulness of the retracted confession, in the case were under cloud, and same were also not supported by other evidence---No reliance could be placed on the same---Evidence available on record were not of such a character which could be relied upon to convict accused, as the testimony of elders was having material contradictions and doubts, and benefit of such contradictions and doubts would go to accused persons---Prosecution having failed to prove the guilt against accused persons beyond any shadow of doubt, their conviction and sentence, were set aside they were acquitted of the charge levelled against them.

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

----S. 164---Judicial confession, scope---Judicial confession, could be made basis for conviction, if it was actually made before a competent forum and made voluntary and true even if it was retracted at a later stage, provided that the other attending circumstances brought on file would corroborate the same on material particulars.

Aala Muhammad and another's case 2008 SCMR 649 and Arabistan and others v. The State 1992 SCMR 754 ref.

----Benefit of doubt---Scope---For giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt was sufficient for the acquittal of an accused.

Said Hakim for Appellants.

Muhammad Rafiq D.A.G. for Respondents.

Date of hearing: 18th April, 2014.

YLR 2014 PESHAWAR HIGH COURT 2244 #

2014 Y L R 2244

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD ANWAR KHAN---Petitioner

Versus

GHULAM FARID and others---Respondents

Civil Revision No.202 of 2009, decided on 16th June, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 42 & 8---Suit for declaration, permanent junction and possession requiring property---Rejection of plaint---Scope---Defendants moved an application for rejection of plaint on the grounds of res judicata and limitation which was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Suit was at initial stage and defendants had filed their joint written statement---Recording of pro and contra evidence for just and proper decision of the suit was required---Every fresh Jamabandi would give a fresh cause of action---Plaint was disclosing a cause of action---Question of limitation was a mixed question of law and facts requiring evidence---Mechanism for rejection of plaint on the ground of limitation was not provided in O. VII, R. 11, C.P.C.---Limitation could be a valid ground for dismissal of suit qua evidence recorded in the trial by the parties---Rejection of plaint at pre-trial stage on the ground of limitation would not come within the ambit of O. VII, R. 11, C.P.C.---Said provisions could only be attracted when plaint did not disclose any cause of action if same was taken as correct or same was barred by law---Suit filed after prescribed period of limitation would not empower the court to reject the same rather same had to be dismissed on the basis of limitation alongwith other ground if any after recording of evidence---No provision in Limitation Act, 1908 or any other law existed to dismiss the suit prima facie time barred---Law would favour decision of cases on merits and not on the basis of technicalities---Appellate Court had rightly remanded the case for decision afresh after recording pro and contra evidence in accordance with law---Revision was dismissed in circumstances.

Managing Director Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724 rel.

S. Mehboob Shah for Petitioner.

Nemo for Respondents.

Date of hearing: 16th June, 2014.

YLR 2014 PESHAWAR HIGH COURT 2284 #

2014 Y L R 2284

[Peshawar]

Before Muhammad Daud Khan, J

JUMA KHAN and another---Petitioners

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Bail Application No.35-B of 2014, decided on 14th April, 2014.

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

----S. 497--- Bail--- Appreciation of evidence---Deeper appreciation of evidence was unwarranted at bail stage.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 201, 202, 148, 149---Qatl-e-amd, causing disappearance of evidence of offence, intentional omission to give information of offence by a person bound to inform, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Probability of false implication---No independent witnesses---Different versions of the same occurrence---Rule of consistency---Effect---Dead body of deceased-lady was found from the house of the accused, who was her real uncle---Two sisters of deceased were already residing with the accused---Deceased had allegedly also received firearm injuries but no one from the locality neighbourhood came forward to depose about the occurrence, thus there was no independent witness---Inimical terms between the parties were admitted, hence false implication of accused could not be ruled out---Three versions of the occurrence were put forward, one by the accused side, one by the complainant side and one by the investigation officer---Question as to which version was correct was to be answered by the Trial Court---Co-accused had already been released on bail, and she was alleged the same role as the accused---Case was one of further inquiry---Accused was admitted to bail in circumstances.

----S. 497---Bail---Grant/refusal of---Grounds---Offence of heinous nature entailing capital punishment---Effect---Such ground alone shall not be considered as an impediment in the grant of bail---Key test was that on basis of other attending circumstances, a good case was prima facie made out.

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

----S. 497--- Bail--- Accused apparently entitled to bail, refused such concession---Effect---Refusal in granting bail to such an accused would amount to unjustified incarceration with no proper reparation.

Tarim Bashier and 5 others v. The State PLD 1995 SC 34 and Riaz Jafar Natiq v. The State 2011 SCMR 1708 rel.

Muhammad Rasheed Khan Dirma Khel for Petitioners.

Qudratullah Khan Gandapur A.A.-G. for the State.

Faqir Mehboobul Hameed for the Complainant.

Date of hearing: 14th April, 2014.

YLR 2014 PESHAWAR HIGH COURT 2305 #

2014 Y L R 2305

[Peshawar]

Before Rooh-ul-Amin Khan, J

MUJEEB ULLAH---etitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.72-B of 2013, decided on 21st May, 2013.

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

----Ss. 497 & 498-A---Penal Code (XLV of 1860), Ss.302, 324, 353, 148 & 149---Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (VI of 1908), S.5---Anti-Terrorism Act (XXVII of 1997), S.7---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, common object, possessing unlicensed arms, explosion, act of terrorism, and Haraabah-- Refusal of bail to a person not in custody, in court or against whom no case was registered etc.---Nobody had been nominated as accused, directly by the complainant---During investigation five persons were found involved in the case, out of whom, two were tried after their arrest, and acquitted by the Judge Anti-Terrorism Court; while rest of the three were fugitive from law---Accused's name was not mentioned in the record as accused; and he was not arrested by the Police in the present case; he was behind bars in certain other cases, but in the present case, he had neither been nominated/charged nor arrested---Prayer of said accused for his release on bail, would not be entertainable---Judge Anti-Terrorism Court, in circumstances had not dismissed bail petition of accused on merits---Section 498-A, Cr.P.C., was a disabling section, whereby the court had been unauthorized to release a person on bail or direct him to be admitted to bail, who was not in custody, or was not present in court; or against whom no case stood registered for the time being-Order for the release of a person on bail, or such direction, would be effective only in respect of the case that stood register& and specified in bail granting order---Nothing in Ss.496, 497 and 498; Cr.P.C., had authorized the court to release on bail or direct admission to bail of any person, who was not in custody or against whom, no case was registered---In the present case, counsel for accused had failed to show the implication of accused or his arrest, or detention in the case---No question of release of accused on bail, would arise, in circumstances---Any decision on the application of accused, in absence of his arrest, would be a step not justified in law---Bail petition of accused, was dismissed, in circumstances.

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

----Ss. 496, 497, 498 & 498-A---Bail application--- Entertainment of--Ingredients---Before entertaining the bail application, the court had to see; firstly, that whether the person/accused seeking bail, was implicated/nominated or charged for commission on bailable, or non-bailable offence; secondly, whether he had been arrested or detained, or in custody of Police; and thirdly, whether be felt apprehension of his arrest at the hands of Police in some case---Determination of all those ingredients for the court, were sine qua non, while entertaining bail application-Before seeking relief under Chapter XXXIX, (Ss.496 to 502, Cr.P.C.,) accused must satisfy the two tests i.e. "charge for an offence", and his "arrest in a criminal case".

----Ss. 497, 498 & 498-A---Constitution of Pakistan, Arts.4(2)(a) & 10---Bail--- Me aping and concept--- Where conflict between the Police powers to restrict the liberty of a person, would arise, the concept of bail would emerge; and it was the responsibility of the State to protect the right of liberty of citizens being guardian of their fundamental rights---Bail would mean to procure, release of one, charged with an offence by ensuring his future appearance in the court; and compelling him to remain within the hands of the court through sureties---Bail was the release of person from the custody of Police, and delivery into the hands of sureties, would undertake to produce him in court, whenever, required to do so---If a person was not detained by Police, and his attendance was not required to the court, there was no need to burden the sureties for procurement of attendance of such person---Bail, would avoid punishing someone in advance and ensure liberty, until, a case was duly enquired into and adjudged---To enjoy the protection of law, and to be treated in accordance with law, was the inalienable right of every citizen, under Art.4 of the Constitution---No action detrimental to the life, liberty, body, reputation or property of any person would be taken, except in accordance with law--- Article 10 of the Constitution, was meant to provide safeguard to every person against arbitrary arrest or detention---Every person, who was arrested and detained in custody, would be produced before the Magistrate, within 24 hours, and detention beyond the prescribed time, would be in violation and contravention of the Constitution.

Khush Amir Khattak for Petitioner.

Ahmed Farooq Khattak, A.A.-G. for the State.

Date of hearing: 21st May, 2013.

YLR 2014 PESHAWAR HIGH COURT 2341 #

2014 Y L R 2341

[Peshawar]

Before Rooh-ul-Amin Khan, J

MUHAMMAD JAMIL and 5 others---Petitioners

Versus

HAZRAT NABI and 3 others---Respondents

Civil Revision No.52 of 2009, decided on 21st January, 2013.

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

----Art.117---Power of attorney---Transfer of suit property by defendant on basis of general power of attorney alleged to have been executed in his favour by its real owner---Plaintiffs being legal heirs of real owner of suit property alleged such transfer by defendant to be fraudulent---Burden of proof---Defendant for being beneficiary of such power of attorney was legally obliged to have proved its genuineness at initial stage.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S.10---Evacuee land allotted to displaced person in lieu of his verified claim---Validity---Such land would not be returnable to Central Government, which had neither contested such allotment nor denied claim of such person---Illustration.

Ghulam Hur Khan Baloch for Petitioners.

Ahmad Ali Khan for Respondents.

Date of hearing: 21st January, 2013.

YLR 2014 PESHAWAR HIGH COURT 2367 #

2014 Y L R 2367

[Peshawar]

Before Muhammad Daud Khan, J

AZIZ-UR-REHMAN---Petitioner

Versus

DIN BIBI and 5 others---Respondents

Criminal Miscellaneous Bail Petition No.79-B of 2014, decided on19th May, 2014.

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

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of---Promptly lodged F.I.R.---No question of misidentification---Long abscondment of accused---Accused was alleged to have killed the deceased in front of his mother/complainant---Complainant had directly charged a single accused for the murder of her son---Substitution by a mother leaving the actual culprit was a rare phenomenon---F.I.R. was lodged with a delay of (only) one hour due to rain because of which the dead body had to be shifted from the scene of occurrence, in such circumstances there was no room for consultations or deliberations by the complainant---Occurrence was a daylight occurrence and parties were co-villagers known to each other and had a previous blood feud, hence there was no question of misidentification---Recovery of an empty and blood-stained earth and garments from the scene gave further support to the complainant's version---Accused was arrested after a lengthy absconsion of more than a year---Accused was prima facie connected with the commission of the offence, which fell under the prohibitory clause of S. 497(1), Cr.P.C.---Accused was refused bail accordingly.

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

----S. 497---Bail application---Prosecution evidence--- Assessment of--- Scope---Evidence of prosecution could not be tested in depth at bail stage, and only tentative assessment was to be made.

----Ss. 173 & 497---Bail---Police opinion---Whether binding on court---Courts were not bound by the ipse dixit of police, rather court had to formulate its own opinion in light of the evidence available on record.

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

----S. 497---Bail, refusal of---Absconsion of accused---Effect---Fugitive from law lost some of his normal rights, such as procedural as well as substantial rights---Bail may be declined on the basis of abscondence, irrespective of the merits of the case.

Hamyun Khan Wazir and Abdur Rasheed Khan Marwat for Petitioner.

Faqir Mahboob-ul-Hameed for Respondents.

Qudratullah Gandapur Assistant Advocate General for the State.

Date of hearing: 19th May, 2014.

YLR 2014 PESHAWAR HIGH COURT 2379 #

2014 Y L R 2379

[Peshawar]

Before Musarrat Hilali, J

Mst. ZUBAIDA---Petitioner

Versus

Mst. HUSSAIN BIBI and 4 others---Respondents

Civil Revision No.773-P of 2013, decided on 12th December, 2013.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Decree, setting aside of---Fraud and misrepresentation---Scope---Contention of applicant was that she was not made party in the case and Trial Court dismissed application without framing of issues and recording of evidence---Validity---No procedure had been provided in the C.P.C. for proceedings under S.12(2), C.P.C.---Trial Court had to regulate its proceedings keeping in view the nature of allegations in the application---Trial Court might adopt any mode for disposal of application filed under S. 12(2), C.P.C.---No fraud and misrepresentation of fact was apparent on record in the present case---Respondent was held entitled to her shari share by the Trial Court after recording of evidence---Suit remained pending for more than three years and applicant was in the knowledge of the matter as she was real mother of respondents---Present application had been filed with mala fide on the part of applicant as she had no concern with the share of respondent---Trial Court had rightly dismissed the application of the applicant---Revision was dismissed in circumstances.

M.Amin Khattak Lachi for Petitioner.

YLR 2014 PESHAWAR HIGH COURT 2400 #

2014 Y L R 2400

[Peshawar]

Before Malik Manzoor Hussain and Ikramullah Khan, J

SAID QAMASH---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 5 others---Respondents

Writ Petition No.2161-P of 2013, decided on 19th August, 2013.

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

----Ss. 4, 6, 11, 18, 54 & 48---Constitution of Pakistan, Art. 199---Constitutional petition---Acquisition of land---Public purpose---Publication of notification---Scope---Procedure---Government issued notification for acquisition of land for housing scheme for government servants and general public---Contention of petitioners, inhabitants of the area, was that said land was previously notified for acquisition, but same was denotified---Validity---Publication of notification was a preliminary step to acquire land proposed by the concerned government department---Notification issued under S. 4 of the Land Acquisition Act, 1894 might not be declared void or same could not be directed to be withdrawn at initial stage---Government had to decide whether the proposed land be acquired and if satisfied in such regard then a declaration would be made---On such declaration notification would be published and thereafter acquiring official had to take order of acquisition from the concerned Government---Notices in such regard would be served on effected persons who would have their rights to raise objections and after inquiry the acquiring agency had to pass an award---Person not satisfied from the compensation might prefer objection which would be referred to court as a reference---Interested person had right of appeal against the judgment of Referee Court before the High Court and might also approach the Supreme Court if remained unsatisfied---Government might withdraw from the acquisition of land of which possession had not been taken---Collector should determine the amount of compensation in consequences of the notice or of any proceeding---Collector should pay such amount to the person interested together with cost incurred by him in the prosecution of the proceedings to the said land---Petitioners if considered themselves to have suffered any loss or damage by withdrawal of subsequent notification might seek their relief---Withdrawal of earlier notification did not entitle petitioner to challenge the impugned notification on the ground that previously such another notification of same kind was withdrawn---No restriction could be placed on the power of Collector to issue notification, powers having been conferred on such official under the provisions of Land Acquisition Act, 1894---Department having issued fresh notification, the petitioner had the right to file objection---Authorities had not declared to take possession of the land and had not passed an award---High Court refused to intervene at preliminary stage of the proceedings under Land Acquisition Act, 1894 as petitioner had appropriate and adequate remedy before the competent forum---Construction of houses for general public including civil servants was a public purpose---Petitioner was at liberty to prove before the competent authority that the purpose for which the land was proposed to be acquired was against the tenets of Islam---Questions raised by the petitioners would be decided by the Collector Land Acquisition as he was the person well-acquainted with the ground realities and proposed purpose of Govern-ment---Collector Land Acquisition had the jurisdiction to decide whether monitory compensation was not an appropriate redressal of the petitioner's grievance---Constitutional petition was dismissed, in circumstances.

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

----S.23---Constitution of Pakistan, Art.24--Acquisition of land---Compensation---Public purpose---Article 24 of the Constitution empowered Government to acquire any suitable land for "public purpose" subject to law with such regard---Land Acquisition Act, 1894 conferred jurisdiction on revenue officer to acquire any land for public purpose and for companies subject to payment of compensation with compulsory acquisition charges in addition to various kinds of interests.

----Ss. 11, 5 & 5-A---Inquiry and award by collector---Objections---Scope---Acquiring agency had to prepare full survey report wherein said agency was bound to describe and determine all kinds of damages caused or likely to cause to any person in process of such acquisition of land---Said agency had to inquire the market price etc. of the land and on the conclusion of such mandatory requirement had to pass an award---Every interested person who would be affected or those whose land had to be acquired would be at liberty to file objections before the acquiring agency---Said agency was bound to redress grievances in accordance with the provisions of Land Acquisition Act, 1894.

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

----S. 3(f)---"Public purpose"---Meaning---Public purpose included any land required for any purpose which the Government considered same a public purpose except a purpose which was against the tenets of Islam.

Zafar Gul v. N.W.F.P. Province 2001 CLC 1853 and Administrative Municipal Committee Kotli and another v. Muhammad Abdullah and 3 others 2001 YLR 3367 rel.

Yousaf Ali for Petitioner.

Nemo for Respondents.

Date of hearing: 19th August, 2013.

YLR 2014 PESHAWAR HIGH COURT 2448 #

2014 Y L R 2448

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

EXECUTIVE ENGINEER and another---Appellants

Versus

BACHA ZARIN and 14 others---Respondents

R.F.A. No.81 of 2008, decided on 28th October, 2013.

Land Acquisition Act (I of 1894)---

----S. 18---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount from Rs. 823 per Marla to Rs. 5000 per Marla along with 15% compulsory acquisition charges---Validity---Referee Court appointed local commission to inspect the spot in presence of parties---Local commission submitted his report determining the rate of compensation per Marla as Rs. 5000--Referee Court relied upon the report of local commission which was not objected to by the defendant-Government---Rate of compensation calculated by the local commission was adequate and just---Impugned judgment of Referee Court was well founded and well reasoned---Appeal was dismissed in circumstances.

Qaisar Ali Shah Addl: A.G. for Appellants.

Babar Khan Yousafzai for Respondents.

Date of hearing: 28th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 2460 #

2014 Y L R 2460

[Peshawar]

Before Mrs. Irshad Qaiser, J

Mst. ZEENAT-UN-NISA---Petitioner

Versus

DEPUTY COMMISSIONER and others---Respondent

Civil Revision No.373 of 2007, decided on 21st April, 2014.

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

----S.39---Wajib-ul-Arz---Scope---Presump-tion of truth is attached to Wajib-ul-Arz and rights of parties are always controlled by its entries prepared at last settlement, which forms part of standing record prepared under S. 39 of West Pakistan Land Revenue Act, 1967.

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

----Ss.42 & 54---Suit for declaration and permanent injunction---Waqf land---Plaintiffs claimed to be owners in possession of suit-land in their capacity of "Seri Khors" and assailed order passed by authorities declaring the land as Waqf land---Suit and appeal filed by plaintiffs were dismissed by Trial Court and Appellate Court respectively---Validity---Suit property was rightly declared to be 'Waqf' created in favour of mosque with permissible possession of predecessor-in-interest of plaintiffs and thereafter all plaintiffs were entitled of usufruct in lieu of Imamat---Office of Imamat was not being enjoyed by plaintiffs, therefore, Trial Court had rightly non-suited them through well-reasoned judgment and decree which was upheld---Suit property was in the ownership of mosque and whosoever was Imam of Mosque would enjoy usufruct in lieu of services related to Imamat and enumerated in Wajib-ul-Arz---Both the Courts below correctly appreciated facts and law applicable thereto---High Court declined to take any exception to decisions of courts below as same were not arbitrary, capricious or outrightly absurd---Revision was dismissed in circumstances.

Aziz-ur-Rehman and another v. Atai Khan and 6 others PLD 1976 Pesh. 60; Shad Muhammad v. Khanpur PLD 1979 Pesh. 93; Haji Naimatullah Khan and another v. Government of Pakistan (PLD 1979 Pesh. 104; Shad Muhammad v. Khan Poor PLD 1986 SC 91; Makhni Bi v. Muhammad Yasin and others PLD 1986 SC 94; Azam Khan v. Azad Khan and 6 others PLD 1986 Lah. 275; Nazeer Ahmed v. Mst. Hussain Bibi and 7 others PLD 1986 Lah. 279; Muhammad Khizar Hayat Khan v. Chief Land Commissioners and others PLD 1968 Lah. 1145; Government of West Pakistan v. The Kallar Syedan Ex-servicemen PLD 1968 Lah. 1151; Muhammad Yousaf and 3 others v. Khan Bahadur 1992 SCMR 2334; Mian Muhammad Latif v. Province of West Pakistan and others PLD 1970 SC 180; Abdul Mataleb v. Mst Rezia Begum PLD 1970 SC 185; Abdul Karim Khan v. Mst. Bibi Fatima and 5 others 1989 CLC 2424; Sheen Gul and 6 others v. Secretary (revenue, Board of Revenue Baluchistan and 3 others 1989 CLC 2431; Muhammad Atiq and others. v. Tayubuddin and others PLD 1998 Pesh. 47; Mst Khairul Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Muhammad Ishaq and others v. Falak Sher and another 1988 SCMR 853; Sahb Khan v. Muhammad Pannah PLD 1994 SC 162; Liaqat Ali v. The State PLD 1994 SC 172; Mian Tayyib-ud-Din and others v. Muhammad Atiq PLD 2004 SC 321; Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; Hakim Shah and 16 others v. Sawab Khan and 17 others PLD 2002 SC 200; Mst Bushra Bibi and 2 others v. Muhammad Sharif and 23 others 2002 CLC 587; Pervez Alam Khan and 15 others v. Muhammad Mukhtiar Khan 2001 CLC 1489; Said Amir and others v. Ashraf Khan and others PLD 1986 SC 113; Mst. Allah Rakhi, v. N/Sub. (Retd) Muhammad Iqbal 2002 MLD 145; Noor Salam and others v. Gul Badshah and others PLD 2002 SC 622; PLD 1967 Peshawar 304; Tehmas and 16 others v. Dawan Khan and 7 others, PLD 1990 SC 629; PLD 2002 SC 200; 1996 CLC 1984 and 2001 CLC 742 ref.

M.A. Tahir Kheli for Petitioner.

D.A.G. for Respondents Nos. 1, 2 and 9.

M. Ayaz Khan for Respondents Nos.3 to 41.

Date of hearing: 14th April, 2014.

YLR 2014 PESHAWAR HIGH COURT 2481 #

2014 Y L R 2481

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. SALMA BIBI and others---Petitioners

Versus

MUHAMMAD ASLAM through L.Rs.---Respondents

Civil Miscellaneous Petitions Nos.234-A to 236-A of 2014, decided on 27th March, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), S. 12(2)---Limitation Act (IX of 1908), Art. 181---Pre-emption suit---Power of attorney--- Authenticity--- Proof---Requirements---Decree and execution petition, setting aside of---Fraud---Limitation---Scope---Non-deposit of entire amount fixed by court by pre-emptor---Effect---Contention of judgment-debtor was that execution petitions were not signed by the Presiding Officer and pre-emptor had failed to deposit decretal amount before the target date fixed by the court---Validity---Neither stamp paper, whereupon the alleged power of attorney was scribed, was purchased by the judgment debtor nor he signed the same---Burden of proof was on the beneficiary of power of attorney which had been denied by the attorney but respondents had failed to rebut the same through cogent and reliable evidence---No witness had been produced in order to prove the authenticity of alleged power of attorney and in absence of the same no such authenticity could be attached to the same---Cutting and missing of signatures of Presiding Officer on the final order sheets were on record which had created doubt with regard to compromise entered between the parties---No specific provision in the Limitation Act, 1908 or in C.P.C. existed with regard to period of limitation to challenge a decree, however, Art. 181 of Limitation Act, 1908 would be applicable in such like cases---Fraud would vitiate even solemn proceedings and period of limitation to challenge decree would start from the date of knowledge---Application under S. 12(2), C.P.C. could be filed within three years and present petition was within time---Impugned decree was effective only when decree holder deposited the amount on or before the date fixed by the court failing which suit should stand dismissed---Decree holder (pre-emptor) failed to deposit the entire amount fixed by the court rather he had deposited a deficit amount---Suit would be dismissed if pre-emptor had failed to deposit the amount fixed by the court and court passing the decree had no power to amend the order with regard to deposit of amount or allow the decree holder to make the deficiency good after the target date---Suits decreed in favour of respondents stood dismissed as pre-emptor had failed to deposit the total amount before the target date---Man could tell a lie but not the documents---Impugned decrees and execution petitions were set aside and pre-emption suits stood dismissed in circumstances.

Allah Bakhsh and others v. Mst. Irshad Begum and others 1986 SCMR 1496 and Muzaffar v. Ali Khan and 3 others 1989 CLC 2342 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 25---Non-deposit of sale price---Effect---Suit would be dismissed if pre-emptor had failed to deposit the amount fixed by the court and court passing the decree had no power to amend the order with regard to deposit of amount or allow the decree holder to make the deficiency good after the target date.

Muzaffar v. Ali Khan and 3 others 1989 CLC 2342 rel.

Mehboob Ali for Petitioners.

Qazi Muhammad Ghazanfar Khan for Respondents.

Date of hearing: 27th March, 2014.

YLR 2014 PESHAWAR HIGH COURT 2502 #

2014 Y L R 2502

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

GENERAL MANAGER, NATIONAL HIGHWAY AUTHORITY and another---Appellants

Versus

FAZAL MUHAMMAD and others---Respondents

R.F.A. No.156 of 2011, decided on 5th December, 2013.

Land Acquisition Act (I of 1894)---

----S. 18---Compensation---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount from Rs. 1,500 per Marla to Rs.8,000 per Marla alongwith 15% compulsory acquisition charges---Validity---Local Commission was appointed by the Referee Court who inspected the spot and submitted his report---Local Commission also appeared in the witness box and admitted his report as correct and he was cross-examined but nothing could be brought favourable to the defendants-department---Referee Judge was justifiable to enhance the rate of compensation---Department-defendants had failed to point out that enhancement in the rate of compensation was unfair---Landowners were satisfied with regard to the rate of compensation fixed by the Referee Court---No illegality in the findings of Referee Court had been pointed out---Appeal was dismissed in by High Court, circumstances.

Sikandar Rashid for Appellants.

Haidayatullah for Respondents.

Date of hearing: 5th December, 2013.

YLR 2014 PESHAWAR HIGH COURT 2520 #

2014 Y L R 2520

[Peshawar]

Before Yahya Afridi, J

Mst. HAMEEDA BIBI---Petitioner

Versus

INAYAT ULLAH and 8 others---Respondents

Civil Revisions Nos.477-P to 479 of 2012, decided on 16th September, 2013.

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

----Ss. 42 & 52---Qanun-e-Shahadat (10 of 1984), Art.117---Specific Relief Act (I of 1877), S. 9---Suit for possession---Onus of proof---Where court was unable to decide the case on the basis of evidence adduced by parties, decision would be governed by (principle of) onus of proof---Mutation was not a document of title though presumption of truth was attached to longstanding mutation entries but that presumption could be rebutted by cogent and reliable evidence---Mutation in favour of plaintiff having been challenged immediately, strong presumptive value could not be attached thereto---Defendants had rebutted the presumption by producing dower deeds duly proved by two witnesses and the scribe thereof---Onus of proof to prove the genuineness of the actual transaction was on the beneficiary of mutation---Plaintiff failed to prove the payment of consideration and transfer of possession---Object of S.42 of the West Pakistan Land Revenue Act, 1967 was to ensure transparency and avoid fraud by carrying out mutation attestation in public gathering---Revenue Officer produced by plaintiff was not appointed in the estate where house in dispute was situated---Mutation in question, in circumstances, lacked the essentials acquired under S.42, West Pakistan Land Revenue Act, 1967---Revision was dismissed.

Mst. Qaisar Khatoon v. Molvi Abdul Khaliq PLD 1971 SC 334; Muhammad Iqbal's case 2008 SCMR 855; Nasrullah Khan's case 2001 SCMR 1156; Mst. Suban's case 2007 SCMR 635; Fida Hussain's case 2004 SCMR 1043; Arshad Khan's case 2005 SCMR 1859 and Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 rel.

Haji Ghulam Rasool Khokhar's case 1990 SCMR 725 distinguished.

Ismail Fahmi for Petitioner.

Muhammad Taufeeq Qureshi for Respondents.

Date of hearing: 16th September, 2013.

YLR 2014 PESHAWAR HIGH COURT 2532 #

2014 Y L R 2532

[Peshawar]

Before Muhammad Daud Khan, J

HAVAAS KHAN---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Bail Petition No.71-B of 2014, decided on 9th May, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-e-amd. common intention---Bail, grant of---Further inquiry---Belated implication---Old age of accused---Accused was involved in the case six days after the occurrence---No worthwhile source of information regarding actual involvement of accused in the commission of the offence was put forward---Present case was one of further inquiry---Accused was aged about 64/65 years---Accused was admitted to bail in circumstances.

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

----S. 497---Bail---Abscondence---Effect---Mere fact that accused remained an absconder was not enough to refuse bail.

Ikram-ul-Haq v. Raja Naveed Sahir and others 2012 SCMR 1273; Ehsanullah v. The State 2012 SCMR 1137 and Mitho Pitafi v. The State 2009 SCMR 299 rel.

----S. 497(2)---Bail, right of---Scope---Case of further inquiry into guilt of accused---In cases of further inquiry falling under S. 497(2), Cr.P.C., it became the right of accused to be enlarged on bail.

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

----S. 497---Bail, refusal of---Scope---Heinousness of offence---No ground to refuse bail---Bail of accused could not be withheld as a punishment merely on the ground that he was charged for a heinous offence, when otherwise he was found entitled for the same.

Farooq Khan Sokari for Petitioner.

Qudratullah Khan Gandapur Asst. A.G. for the State.

Imran Ali Shah for the Complainant.

Date of hearing: 9th May, 2014.

YLR 2014 PESHAWAR HIGH COURT 2551 #

2014 Y L R 2551

[Peshawar]

Before Muhammad Daud Khan, J

WAPDA through Chairman and 6 others---Petitioners

Versus

GOHAR BAIG---Respondent

Civil Revision No.1-B of 2007, decided on 16th June, 2014.

(a) Electricity Act (IX of 1910)---

----Ss.2(c), 26-A, 26(4) & 26(6)---Specific Relief Act (I of 1877) Ss.42 & 54---Suit for declaration and permanent injunction---Charge of slowness of electricity meter---Rights of licensee---Scope---Dishonest abstraction of energy---Detection bill---Failure to follow provisions of S.26-A of Electricity Act, 1910---Effect---Trial court dismissed the suit instituted by the plaintiff/respondent, but the appeal preferred by the defendants/respondents was allowed---Contentions of the defendants/petitioners in revision were that electricity meter installed in the crush machine of plaintiff/respondent was not in his name rather the same was in the name of another person, therefore, he had no cause of action and locus standi to file the suit and that the findings of the appellate court regarding the matter to be decided by the Electric Inspector was against the law, as the plaintiff/respondent himself approached the civil court---Validity---High Court held that the electricity meter had been installed in the crush machine owned and run by the plaintiff/ respondent, therefore, defendants/ petitioners' contention had no force at all---Under S.2(c) of the Electricity Act, 1910 "consumer" means any person, who was supplied with energy by a licensee or who was the owner or occupier of the premises, which were for the time being connected for the purposes of a supply of energy with the works of a licensee, therefore, plaintiff/respondent was a "consumer" and had got a cause of action and locus standi to bring the suit---Under S.24(4) of the Electricity Act, 1910 licensee was not at liberty to remove the meter when dispute was regarding correctness of meter bill and unless determined as per provision of S. 26(6) of the Electricity Act, 1910---Defendants/ petitioners had removed the electricity meter without resorting to the provisions of S.26(6) of the Act and assessed the amount of fine by their own, which was totally against their mandate---Defendants/ petitioners had not complied with the provisions of S. 26-A of the Electricity Act, 1910 while preparing the disputed detection bill---High Court observed that dispute was in respect of meter which involved S. 26(6) of the Electricity Act, 1910 and the licensee could neither evaluate the compensation nor assess the bill under S. 26-A of the Electricity Act, 1910, therefore, the detection bill issued to plaintiff/respondent was without lawful authority and void ab initio---Revision petition was dismissed in the circumstances.

PLD 2001 Lah. 31; 1983 CLC 3315; 1983 CLC 211; 1986 MLD 680; 1989 CLC 2345; PLD 1995 Lah. 56 and 1999 CLC 1591 rel.

(b) Electricity Act (IX of 1910)---

----S. 2(c)---"Consumer"--- Meanings---Person, who was supplied with energy by a licensee or who was the owner or occupier of the premises, which were for the time being connected for the purposes of supply of energy with the work of a licensee.

Syed Fakhruddin Shah for Petitioners.

Anwar-ul-Haq for Respondent.

Date of hearing: 16th June, 2014.

YLR 2014 PESHAWAR HIGH COURT 2595 #

2014 Y L R 2595

[Peshawar]

Before Malik Manzoor Hussain, J

ANWER SHAH QURAISHI---Petitioner

Versus

Mst. HUSSAN BAHA---Respondent

Civil Revision No.1571 of 2010, decided on 15th April, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for declaration---Pardanasheen lady---Document, proof of---Scope---Contention of plaintiff, a Pardanashin illiterate lady, was that she was owner of suit property and transfer deed in favour of defendant was bogus, fictitious and same was based on fraud---Defendant contended that he was a bona fide purchaser of suit land---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Attesting witnesses of transfer deed who were alive were not produced in the witness box and no reason was shown to withhold such evidence---Plaintiff was illiterate and 'Pardanasheen' lady and burden to prove document executed by said lady affecting her right or interest in immovable property was on the beneficiary of the document---Defendant was bound to establish that document was substantially understood by the lady and same was result of her free and intelligent act---Document should have been read over to the lady who was illiterate, in her native language so that she must be able to understand what had been mentioned in the said document---Defendant had failed to prove his case and he was not in a better position to further transfer the suit land---Defendant had also failed to prove the consideration received by the plaintiff---Defendant was bound to produce marginal witnesses of transfer deed as well as in whose presence consideration was paid to the plaintiff---Impugned judgment passed by the Appellate Court was well reasoned---No legal or factual infirmity had been pointed out in the impugned judgment---Revision was dismissed in circumstances.

2009 SCMR 623; PLD 1996 SC 256; Marina Virana's case AIR 1931 Privy Council(sic); Mukhtar Ahmad's case 1925 PC 204; Khawas Khan's case 2004 SCMR 1259; Abdul Hameed's case 2008 SCMR 140 and Jannat Bibi's case PLD 1990 SC 642 rel.

Tariq Kakar and Haji Zahir Shah for Appellant.

M. Shoaib Khan and Khanzeb Rahim for Respondent.

Date of hearing: 15th April, 2013.

YLR 2014 PESHAWAR HIGH COURT 2606 #

2014 Y L R 2606

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

FAYYAZ ALI---Appellant

Versus

ASGHAR ALI KHAN and another---Respondents

Criminal Appeal No.17-B of 2009, decided on 29th October, 2013.

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

----Ss.302, 324, 337-F(iv) & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, attempt to commit qatl-e-amd, causing Mudihah, common intention---Appeal against acquittal---Appreciation of evidence---Two injured prosecution witnesses had been abandoned by the prosecution for no good reason, which amounted to withholding of best evidence---Complainant, brother of the deceased, was also inimical towards accused---Due to blood relationship, status of the complainant could not be excluded from the category of interested witness---In order to bring the case out of the scope of general rule, the evidence of the interested witness was to be scrutinized with great care and caution---Complainant had made certain dishonest improvements in his cross-examination just to bring in line his story with the medical evidence and other circumstances of the case---Contradictions in the testimonies of the prosecution witnesses, had created doubts about the occurrence that same had not taken place in the mode and manner as alleged by the complainant---Once a witness was found telling lie on one material aspect of the case, then ordinarily he/she should not be believed with regard to other aspect of the case, unless the testimony given was fully corroborated by strong independent corroboration, which was lacking in the present case---General role of firing had been attributed to accused at the injured prosecution witnesses, but no evidence had been brought to prove the same---Injured prosecution witnesses had not supported the version of the prosecution---Both complainant and prosecution witness had failed to prove the individual participation of each of the accused persons in the crime---Ocular evidence was also in contradiction with medical evidence---No crime empty had been recovered and taken into possession from the place assigned to accused in the site plan---Accused though had absconded, however the prosecution could not take any premium from abscondence of accused, when eye-witnesses had not established their presence at the spot, and their testimony had been disbelieved being full of doubts and material contradictions---Impugned judgment of acquittal having not been found to be arbitrary, fanciful and capricious on the face of it, or result of misreading or non-reading of any material evidence, Trial Court had rightly acquitted accused extending him benefit of doubt, after proper appraisal of evidence, to which no exception could be taken---Appeal being devoid of force was dismissed in circumstances.

Master Muhammad Saddique's case 2003 MLD 1774 ref.

Sajjad Ali's case 2007 MLD Pesh. 613 rel.

(b) Criminal trial---

----Benefit of doubt---Prosecution was bound to establish guilt of accused beyond shadow of reasonable doubt by producing trustworthy; convincing and coherent evidence enabling the court to draw conclusion; whether the prosecution had succeeded in establishing accusation against accused or otherwise---If charges imputed against accused had not been proved beyond reasonable doubt, then accused would become entitled for release by getting benefit of doubt---Benefit of any single and slightest doubt, must go to accused, and it would be sufficient to disbelieve the prosecution story---Many doubts in the prosecution case were not required---Any reasonable doubt arising out of prosecution evidence, pricking the judicial mind, was sufficient for acquittal of accused.

Tariq Pervaz v. The State 1995 SCMR 1345 and Muhammad Akram's case 2008 SCMR 230 rel.

----Abscondence--- Abscondence of accused---Effect---Mere absconsion, was not a conclusive proof of guilt of accused---Such was only a suspicious circumstance against accused and suspicion could not take the place of proof---Value of abscondence, would depend on the facts of each case---Absconsion of accused could be consistent with the guilt or innocence of accused, which was to be decided keeping in view over all facts of the case---Abscondence, though was a relevant fact, but it could be used as a corroborative piece of evidence, which could not be read in isolation, but had to be read along with substantive piece of evidence.

Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

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

----Ss. 410 & 417(2-A)---"Appeal against conviction "and" appeal against acquittal"---Scope and standards of assessment of evidence---Standards of assessing evidence in appeal against acquittal, were different from those laid down for appeal against conviction---Marked difference existed between appraisal of evidence in appeal against conviction and appeal against acquittal---Appraisal of evidence, in appeal against conviction was done strictly; and in appeal against acquittal such rigid method of appraisal was not to be applied, because finding of acquittal was already given by the Trial Court after proper analysis of evidence on record---Scope of appeal against acquittal, was considerably narrow and limited---Unless the judgment of acquittal was perverse, completely illegal, no other decision could be given, except that accused was guilty; or there had been complete misreading of evidence leading to miscarriage of justice---High Court was always slow in exercise of jurisdiction under S.417, Cr.P.C.; unless it would find that gross injustice had been done in administration of criminal justice---Appellate Court while dealing with acquittal order, had to exercise jurisdiction cautiously, because acquitted accused would enjoy double presumption of innocence; the one available to him before conclusion of the trial; and the second after the verdict of acquittal in his favour.

Aamir Hussain for Appellant.

M. Rasheed Khan Dirmakhel for Respondent No.1.

Saifur Rehman A.A.-G. for the State.

Date of hearing: 29th October, 2013.

YLR 2014 PESHAWAR HIGH COURT 2632 #

2014 Y L R 2632

[Peshawar]

Before Assadullah Khan Chamkani, J

TARAH DAD KHAN and 4 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Quashment Petition No.13-B of 2014, decided on 21st April, 2014.

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

----S. 561-A---Penal Code (XLV of 1860), S.365-B---Kidnapping, abducting or inducing woman to compel for marriage etc.---Exercise of inherent jurisdiction by High Court---Scope---Petition for quashing of F.I.R.---Case was still at investigation stage and challan had not yet been submitted---High Court would not interfere, during investigation to resolve the controversial questions of facts by exercising its inherent powers, as it was the sole job of the Trial Court to decide the merits of the case, after recording evidence---High Court could only interfere when there was any illegality in the registration of the case, or no offence was made out, even if the allegation made in the complaint or F.I.R. were accepted to be true, or the case was of no evidence at all; and there was no probability of accused being convicted of the offence---In the present case, there was no such circumstance which could warrant interference of High Court at investigation stage---Petition being without any substance, was dismissed, in circumstances.

Rana Shahid Ahmad Khan's case 2011 SCMR 1937 and Dr. Sher Afgan Khan Niazi v. Ali S.Habib and others 2011 SCMR 1813 rel.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Powers under S.561-A, Cr.P.C., could not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in procedural statute---High Court should be extremely reluctant to interfere in a case where a Competent Court had after examining the evidence adduced before it, come to the view that a prima facie case was disclosed, and had framed charge; or summoned accused to appear, unless it could be said that the charge on its face, or the evidence, even if believed, did not disclose any offence---High Court must be careful to see that its decision was based on sound general principles of criminal jurisprudence; and was not in conflict with them; or with the intentions of the Legislature as indicated in statutory provisions---Section 561-A, Cr.P.C. did not authorize the court to assume any new jurisdiction, other than the jurisdiction given by S.561-A, Cr.P.C. and no jurisdiction could be could be assumed---High Court, could only interfere when there was any illegality in the registration of the case, or no offence was made out, even if, the allegation made in the complaint or F.I.R., were accepted to be true, or case was of no evidence at all; and there was no probability of accused being convicted of the offence.

Saifullah Khan for Petitioners.

Saifur-Rehman Addl: A.G. for the State.

Date of hearing: 21st April, 2014.

2014 Y L R 167

[Balochistan]

Before Muhammad Noor Meskanzai, J

AMIR MUHAMMAD---Petitioner

Versus

ABDUL BARI and 6 others---Respondents

Civil Revision No.148 of 2012, decided on 20th September, 2013.

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

----O. XLI, R. 27---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Production of additional evidence in Appellate Court---Requirements---Suit was dismissed against which appeal alongwith application for additional evidence were filed---Said application was dismissed by the Appellate Court---Validity---One of the documents sought to be produced had already been tendered in evidence whereas other document was neither relied upon nor said document contained any reference in the plaint---Plaintiff had failed to show as to how such document was necessary for just decision of the case---Document in question had been produced for the first time before the Appellate Court---Reason mentioned in the application for production of evidence was of no avail---Document sought to be produced seemed to have been obtained from the Revenue Record and such Revenue Record was always available---Said document appeared to be tampered which required another enquiry which was neither warranted nor advisable---If proper explanation was not offered for not tendering the document in evidence before the Trial Court then Appellate Court would be reluctant to entertain the request for production of evidence---Material already available on record had not been held/treated insufficient by the Appellate Court to warrant a decision of the case on merits---Document sought to be produced was not required by the Appellate Court to enable it to pronounce judgment---Evidence must be required by the court itself and such power was exercisable in the interest of justice and not for the purpose of patching up of weak case or to allow to fill in the gaps---Provisions of O. XLI, R. 27, C.P.C. were not attracted to the present case---Any interference by the High Court would amount to pre-empt the powers of the Appellate Court which was neither aim of law nor the requirement of justice---Appellate Court had rightly passed the impugned order---Said order was neither open to any exception nor it suffered from any illegality, irregularity, perversity, impropriety and invalidity---Revision was dismissed in circumstances.

Muhammad Ramzan and others v. Niaz Ali and others 1988 SCMR 1652; Sm. Krishna Subala Bose and others v. Dhanapati Dutta and others AIR 1957 Cal. 59 and Bashir Ahmed v. Ahmad-ul-Haq Siddiqui 1985 SCMR 1232 rel.

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

----O. XLI, R. 27---Powers of the Appellate Court to record additional evidence---Conditions---Conditions for recording additional evidence were that the evidence sought to be produced had been refused by the Trial Court to admit which ought to have been admitted and that the Appellate Court required any document to be produced or witnesses to be examined in order to enable itself to pronounce the judgment and for any substantial cause.

Najeebullah for Petitioner.

Adnan Ejaz for Respondents.

Date of hearing: 22nd August, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 293 #

2014 Y L R 293

[Balochistan]

Before Muhammad Noor Meskanzai, J

GHOUS-UD-DIN

and 5 others---Petitioners

Versus

RASHIDA and 3 others---Respondents

Civil Revision No.167 of 2013, decided on 9th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Inheritance---Contention of defendants was that plaintiffs had gifted their shares in their favour---Suit was decreed concurrently---Validity---No written deed in support of contentions of defendants was available---Defendants had not been able to prove their stand and stance through any cogent, coherent, confidence inspiring and tangible evidence---One of the plaintiffs gifted her share to one of the defendants during pendency of suit which was accepted by the parties---Acceptance of such gift had nullified the assertion of earlier gift, as, if the contention of the defendants qua the earlier gift was correct and true then what was the occasion for the subsequent gift without reference to any earlier gift---Succession would open the moment, the propositus died and the legal heirs would enter into possession of their 'shari' share without interruption of any authority/court---Plaintiff could not be deprived of her legal share simply on the ground that defendants had raised new constructions---Defendants had raised construction on their own risk and costs---Female shareholder could not be deprived of her 'shari' share on flimsy, concocted and baseless pretext; rights of women had been protected---No misreading or non-reading of evidence was found nor there was any illegality or irregularity in the impugned judgments---Revision was dismissed in limine.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Suban v. Allah Ditta and others 2007 SCMR 635 and Sher Khan and 2 others v. Alloo PLD 1973 Quetta 18 rel.

Malik Azamatullah Kasi and Wajahat Khan Ghaznavi for Petitioners.

Date of hearing: 15th July, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 385 #

2014 Y L R 385

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

Mst. ALIM TAJ---Appellant

Versus

Mst. SAHIB JAN and 2 others---Respondents

Regular First Appeal No.98 of 2009, decided on 30th September, 2013.

Benami transaction---

----Suit for decarlation, possession, rendition of accounts and injunction---House mutated in name of step-mother of plaintiff was alleged to be purchased by his deceased father as benamidar---Proof---Plaintiff's witnesses had not deposed in court to have witnessed payment of sale price of suit house by plaintiff's father---Plaintiff had admitted not to be present at time of suit transaction---Plaintiff had failed to prove purchase of suit house and payment of its price by his father---Step-mother during life-time of her husband had transferred suit house to a third person through mutation, but he did not challenge same---Plaintiff's oral version was contrary to such documentary evidence---Admission of witness of step-mother in cross-examination that deceased had made payment of sale price of suit house, would not carry any weight as burden to prove suit transaction to be benami was lying on plaintiff---Deceased during his life time had never claimed that his wife (plaintiff s step-mother) was benamidar of suit house---Suit was dismissed in circumstances.

2001 CLC 1599 and 2005 SCMR 577 ref.

Abdul Haq v. Mst. Surrya Begum 2002 SCMR 1330 and Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569 rel.

Gul Hassan for Appellant.

Muhammad Arshad Aziz for Respondents.

Date of hearing: 17th September, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 553 #

2014 Y L R 553

[Balochistan]

Before Qazi Faez Isa, C J and Mrs. Syeda Tahira Safdar, J

MUHAMMAD AYUB KHAN and another---Appellants

Versus

SECRETARY, BOARD OF DIRECTORS HASHIM KHAN TRUST, QUETTA and others---Respondents

Regular First Appeal No.27 of 2008, decided on 18th November, 2013.

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

----S. 52---Limitation Act (IX of 1908), Art. 120---Specific Relief Act (I of 1877), S.42---Mutation of inheritance---Scope---Suit for declaration---Maintainability---Inheritance---Limitation---Contention of plaintiffs was that they had been deprived from inheritance by creating trust---Suit was dismissed by the Trial Court---Validity---Suit property was mutated in the names of three sons excluding two daughters---Revenue Officer only mentioned three sons but did not mention daughters of the deceased in the inheritance mutation---Right of succession would arise in favour of successors from the date of death of a person without any interruption and property would automatically vest in the persons having status of legal heirs---Time would not affect a right of inheritance accrued in favour of legal heir---Legal heirs would become co-owners and co-sharers of property left by the deceased irrespective of the fact that who was in possession---Possession of one co-sharer was deemed to be possession of all co-sharers---Possession would neither oust the legal heirs from their entitlement nor it would make a person in possession the exclusive owner of such property---Entry in the mutation was not a document of title but was a presumptive piece of evidence for establishment of the same---Presumption of truth would attach to the entries in the revenue record but such presumption was rebutable---Entry recorded in the revenue record could be challenged on having knowledge of the same or if a person did not consider himself to be aggrieved of such entry but having an interest in it could approach a court when he became aggrieved of such entry or someone had denied his right---Date of recording entry would not be the starting point for running of the time for filing a suit for declaration instead when grievance arose would be the relevant time---Option would lie with the person for filing a suit for declaration when his right was denied and every denial of right would furnish a fresh cause of action---Such right was to be exercised within a period of six years on accrual of cause of action---Time in a suit for declaration should be counted from when the right to sue accrued and same was refused by the other party and date of entry in the mutation would be immaterial---Span of time would neither extinguish right of inheritance nor adverse to the title of legal heir---Possession of one legal heir was deemed to be possession of all the legal heirs---Right of inheritance was established by the plaintiffs and shares of all the legal heirs were to be determined and satisfied---Claim of plaintiffs was based on the right of inheritance, therefore neither time would affect the same nor there would be any question of limitation---Suit of plaintiffs was maintainable---Trial Court decided the case on mere presumptions---Plaintiffs could not be deprived of their right due to lapse of time---High Court framed the issues and remanded the case to the Trial Court with the direction to implead the Provincial Government and then decide the same---Appeal was accepted accordingly.

Anwar Muhammad v. Sharif Din PLD 1983 SC 62 and Ghulam Ali v. Mst. Ghulam Sarwar PLD 1990 SC 1 rel.

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

---Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation---Period for filing suit for declaration was six years and time was to be counted when right to sue arose.

Muhammad Yaqoob Khan for Appellants.

Syed Ayaz Zahoor and Shehak Baloch, Assistant Advocate General for official Respondents.

Date of hearing: 25th July, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 699 #

2014 Y L R 699

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

NOOR AGHA alias ABDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.19 and Murder Reference No.3 of 2013 decided on 31st October, 2013.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence--- Confessional statement---Medical evidence---Scope---Accused was convicted by Trial Court and sentenced to death on two counts for committing murder of two persons---Validity---Confessional statement recorded by accused was voluntary and in accordance with law, besides it rang true---Confessional statement coupled with ocular account furnished by prosecution witnesses established the fact that accused had committed cold blooded murder of two innocent helpless and armless persons---Non-production of medical certificate of both the deceased was not fatal nor it could extend any benefit to accused---Real father and brother of deceased were eye-witnesses, they, could not possibly substitute any one else, except the real culprits---Shop of one prosecution witness was situated in front of place of incident who also supported prosecution version---Evidence of prosecution witnesses were reliable and confidence inspiring, confessional statement of accused was true and voluntary and sufficient to sustain conviction---Prosecution had proved guilt of accused and Trial Court after taking into consideration entire evidence and attending all circumstances rightly passed well reasoned judgment, which was not open to any exception---Appeal was dis-missed in circumstances.

PLD 1985 Kar. 661; 1976 PCr.LJ 426; Khan Muhammad v. The State 1999 SCMR 1818; Sikandar v. The State 2006 SCMR 1786; Muhammad Haneef v. The State PLD 1993 SC 895 and Abdul Wahab v. The State 1999 SCMR 1668 ref.

Mrs. Sabira Islam for Appellant.

Ameer Hamza Mengal, D.P.G. for Respondent.

Date of hearing: 25th September, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 753 #

2014 Y L R 753

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

UBAIDULLAH and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Quashment No.394 of 2013, decided on 31st October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.419, 420, 471, 489-F & 34---Cheating by personation, cheating and dishonestly inducing delivery of property, using as genuine a forged document, dishonestly issuing a cheque, common intention---Business relationship between the parties was not disputed and facts narrated in the F.I.R. attracted the mischief of S.489-F, P.P.C. which related to dishonestly issuing a cheque---Section 489-F, P.P.C. provided about fulfilment of an obligation without being distinguished as of civil or criminal nature---Cheque was always issued in terms of civil obligation and if dishonoured, it would turn into criminal offence---Criminal proceedings being not barred in presence of civil proceedings, civil and criminal proceedings could be proceeded simultaneously---Question of criminal liability could not be allowed to mix with a breach of civil obligation---Both wrongs being distinguishable in nature, could be initiated at the same time---Challan in the case had been submitted against accused/petitioner after completion of formal investigation---Any interference at such a stage by High Court while exercising inherent jurisdiction under S.561-A, Cr.P.C., which could only be exercised in extraordinary circumstances, would amount to pre-empting the powers of the Trial Court---Petitioners/accused persons had alternative remedy before the Trial Court under S.249-A, Cr.P.C.---Petition was dismissed.

Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298 rel.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and Deputy Inspector-General of Police v. Anees-ur-Rehman Khan PLD 1985 SC 134 ref.

Khushal Khan Kasi for Petitioner.

Barrister Amanullah Achakzai for the Complainant.

Abdul Karim Malghani for the State.

Date of hearing: 4th October, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 1002 #

2014 Y L R 1002

[Balochistan]

Before Jamal Khan Mandokhail, J

The BANK OF PUNJAB through Regional Chief, General Manager, Quetta---Petitioner

Versus

KHAN MUHAMMAD and 5 others through Attorney---Respondents

Civil Revision No.31 of 2012, decided on 19th December, 2013.

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

----S.13---Rent deed---Extension of lease period with mutual consent of parties---Scope---Contention of plaintiffs was that lease period was extended with mutual consent of parties, therefore rent was to be enhanced according to rent deed---Suit was decreed concurrently---Validity---Premises was rented out to the defendant through rent deed for a period of nine years---Lease period was extended with mutual consent of parties after expiry of earlier term of tenancy---Defendant itself requested for extension of tenancy which was accepted by the plaintiffs---Extended period of tenancy should be deemed to be governed by the rent deed---If tenant remained in possession of the property without consent of landlord after expiry of tenancy agreement then tenancy would continue to be governed by the terms and conditions of expired rent agreement---Mutual consent between the parties for extension of tenancy period would make rent agreement alive and both the landlord and tenant were bound by its terms and conditions---Rent of premises was to be enhanced @ 15% after every three years as per rent agreement, therefore defendant was bound to act upon it---Both the courts below after appraisal of evidence and material available on the record had recorded correct conclusion---Defendant had failed to point out any illegality or irregularity in the concurrent findings of fact recorded by the courts below---Revision was dismissed in circumstances.

Mrs. Zarina Khawaja v. Agha Mehboob Shah PLD 1988 SC 190 and Muhammad Naseem Khan v. United Bank Ltd. PLD 2002 SC 753 rel.

Farooq Anwar Yousafzai for Petitioner.

Saleem Ansari for Respondents.

Date of hearing: 26th July, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 1125 #

2014 Y L R 1125

[Balochistan]

Before Abdul Qadir Mengal and Ghulam Mustafa Mengal, JJ

NIAZ AHMED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.7 and Murder Reference No.1 of 2013, decided on 6th March, 2014.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Incident had taken place in day time at about 3.30 P.M.---Accused being sole culprit of double murder, had been picked out by the prosecution witnesses i.e., the legal heirs of both the deceased, who had no enmity, ill-will or ulterior design to implicate accused in the case---Due to slight improvement made in his statement by the prosecution witness, same had become contradictory to his statement to the memo of recoveries---Statement of said witness on the material point was same, there being no contradiction or discrepancy---Prosecution witness had faced lengthy cross-examination, but no significant contradiction, or discrepancy had been extracted from his statement, which could throw doubt on the factual position of the case---Statement of the eye-witness, had been supported or corroborated by the statements of the complainant and other prosecution witness---Medical report was also corroboratory to the statement of complainant, and supported the prosecution version---Recovery of TT pistol had also been supported by the witness---Nothing was available which could make the evidence of prosecution witness unreliable or worthy of no credit---Investigating Officer had fully corroborated the prosecution version---Delay of two months in sending the empties for analysis, could not be a ground to disbelieve it, when no question of said delay had been put to Investigating Officer---Commission of the murder by accused in daylight had shown that he had no hesitation or fear to commit the murder by concealing his identity or whereabouts, identity of accused, therefore, could not be doubted---Trial Court had properly dealt with each and every piece of evidence and had come to a right conclusion---Nothing had been brought from the side of accused to discredit or give any dent to the prosecution version---Motive for murder, had not been brought on record---No material was on record for mitigation, and accused had taken life of two young persons aged about 25 and 30 years---Trial Court had rightly convicted and sentenced accused---Murder reference was answered in affirmative, in circumstances.

Ali Sher and others v. The State 2008 SCMR 707; Ch: Safdar Ali v. Malik Ikram Elahi 1969 SCMR 166; Muhammad Punhal v. Abdul Wahid Abbasi and another 2003 SCMR 1406 and PLD 1964 Pesh. 59 ref.

Chango and 6 others v. The State 1983 PCr.LJ 1246 rel.

(b) Criminal trial---

----Motive---Scope---Absence of motive---Motive was only a factor, which would help in connecting accused with the accusation---Absence of motive, could not be used as mitigating circumstance in determining sentence to be imposed.

Muhammad Nawaz v. The State 2002 YLR 1857 rel.

Abdul Kareem Yousafzai for Appellant.

Ameer Hamza Mengal, Deputy Prosecutor-General for the State.

Date of hearing: 3rd March, 2014.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 1138 #

2014 Y L R 1138

[Balochistan]

Before Muhammad Ejaz Sawati and Naeem Akhtar Afghan, JJ

SHAHMEER---Appellant

Versus

The STATE---Respondent

A.T.A. Criminal Appeal No.(S) 79 of 2013, decided on 2nd January, 2014.

Penal Code (XLV of 1860)---

----S. 302(c)---Qatl-e-amd---Appreciation of evidence---Disclosure of accused, contained information about the murder of deceased at the place of incident and the recovery of his dead body---Fact that prior to disclosure of accused, the Police had knowledge and information about the murder and recovery of dead body of deceased was admitted---Disclosure of accused was regarded mere statement of accused before the Police, which was not admissible in evidence---Prosecution had failed to prove its case against accused beyond any reasonable doubt---Findings rendered by the Trial Court in the impugned judgment being based on an inadmissible evidence and misappreciation of evidence, could not be sustained---Conviction and sentence recorded by the Trial Court in the impugned judgment, were set aside, and accused was acquitted and released, in circumstances.

Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Shaukat Ali v. The State 2005 MLD 1470 and Muhammad Sarfraz v. The State PLD 2013 SC 386 ref.

Ahsan Rafique Rana for Appellant.

Muhammad Rasheed for the Complainant.

Abdullah Kurd for the State.

Date of hearing: 4th December, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 1436 #

2014 Y L R 1436

[Balochistan]

Before Shakeel Ahmed Baloch and Ghulam Mustafa Mengal, JJ

AMJAD ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.108 of 2012, decided on 11th March, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Appreciation of evidence---Dying declaration---Scope---No eye-witness of the occurrence---Trial Court had convicted accused persons on the evidence based on dying declaration, and the circumstantial evidence---None of the witnesses had stated anything before the Trial Court pertaining to the dying declaration---Dying declaration having not been corroborated by any independent piece of evidence, same was not worthy of reliance at all---Story narrated by the prosecution witnesses was based on the enmity with the acquitted persons as well as with accused persons---Trial Court while convicting accused persons did not consider the logical aspect of statements of prosecution witnesses, who were Medico-Legal Officer, witness who saw the victim crying and took him to hospital for treatment, and Investigating Officer---Impugned judgment passed by the Trial Court suffered from misreading and non-reading of the evidence---Counsel for accused having been able to make out a case for acquittal, impugned judgment passed by the Trial Court, was set aside; accused were acquitted of the charge and were released, in circumstances.

Murree v. The State PLD 2002 Kar. 530; The State v. Gulab Jan 1987 PCr.LJ 1769 and Muhammad Yasin v. The State 1987 SCMR 303 ref.

Nadir Ali Chalghari for Appellants.

Miss Sarwat Hina, Additional Prosecutor-General for the State.

Date of hearing: 9th October, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 1473 #

2014 Y L R 1473

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

ABDUL QUDOOS and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.69 and Criminal Revision No.163 of 2012, decided on 7th March, 2014.

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

----Ss. 324, 337-A(i), 337-F(iii)(vi)(v), 337-L(2), 149 & 337-N(2)---Attempt to commit qatl-e-amd, causing Shajjah-i-Khafifah, Mutalahimah, Madihah, Hashimah, hurt, payment of Arsh, awarding tazir---Common intention---Objections, raised that Trial Court did not frame the charge in accordance with law; and conviction was recorded without alteration of charge, were not supported by law---Contention about non-reading and mis-reading of evidence, was not impressive; and conclusion drawn by the Trial Court was according to principles of appreciation of evidence---Number of persons were nominated towards the commission of offence, but role of firearm injury sustained by one injured prosecution witness was attributed to one accused only---Role of inflicting a dagger blow sustained by the injured witness, was assigned to absconding accused---Injuries sustained by complainant and two prosecution witnesses, to the extent of abrasion and pain, except naming all accused persons, no role was assigned to any one of them---Allegation of constituting unlawful assembly in furtherance of their common object, was levelled against accused and absconding accused---Role causing fracture of 'tibia'/shinbone, could not be attributed to any one as the witness himself was silent about the injury---Absconding accused, who was alleged to have caused injuries, was not arrested---Injuries caused under Ss.337-A(1), 337-L(2) and 337-F(v), P.P.C., were proved to be caused by accused---Accused after constituting an unlawful assembly in furtherance of their common object having made a violent attack upon the complainant party, they were rightly held responsible towards the commission of offence---Offender who had travelled beyond the object of unlawful assembly, would be dealt separately---Case of accused persons was covered by subsection (2) of S.337-N, P.P.C.---Accused persons, were not previous convicts, hardened or habitual, desperate or dangerous criminals---Sentence of rigorous imprisonment of two years under S.337-F(iii) and 4 years under S.337-F(v), P.P.C., was set aside---One of accused persons remained convicted under S.337-F(v), P.P.C.---Three accused persons, who were convicted under Ss.337-A(i) & 149, P.P.C. were sentenced to pay Daman.

Haji Maa Din v. The State 1998 SCMR 1528 ref.

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

----Ss. 537, 238, 227, 225, 232 & 535---Alteration of charge---Error, correction of---When accused was charged for a major offence which entailed a longer term of punishment, but a minor offence was proved, which entailed a shorter term of punishment, he could be convicted of minor offence; but an accused charged for minor offence, could not be convicted of a major offence, subject to the limitation of S.227, Cr.P.C.---Every conceivable type of error and irregularity referable to a charge that could possibly arise, could be cured---Whatever the irregularity could be it was not to be regarded as fatal, unless there was prejudice.

----S. 149---Unlawful assembly---Common intention---Scope.

Imran Ashraf's case 2001 SCMR 424 ref.

Abdullah Baloch for Appellants (in Criminal Appeal No.69 of 2012).

Ahmadullah for the Complainant (in Criminal Appeal No.69 of 2012).

Ahmadullah for Petitioner (in Criminal Petition No.163 of 2012).

Abdullah Baloch for Respondent (in Criminal Petition No.163 of 2012).

Liaquat Ali for the State.

Date of hearing: 8th November, 2013.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 1550 #

2014 Y L R 1550

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

GHULAM MUSTAFA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 20 of 2012, decided on 24th March, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Raiding party, on the pointation of accused, recovered a huge quantity of 'charas' and opium---One of the prosecution witnesses, had given the full account of episode and produced 'Marasila' and disclosure memo, whereas other prosecution witness had corroborated said witness, on each and every material particular by making a detailed statement---Prosecution had established the guilt to the hilt beyond reasonable doubt---Neither there was any misreading or non-reading of evidence, nor could counsel for accused had pointed out the same---Prosecution witnesses, inspired confidence; and could not be shaken despite lengthy cross-examination---Accused had admitted that Anti-Narcotic Force, had got no grudge or ill-will against him---Not comprehensible as to why Anti-Narcotic Force, would plant such a huge quantity of narcotic against accused---Forensic Science Laboratory's report, had proved the fact that the recovered materials were 'charas' and 'opium'---Sample of 'charas' was 1-1/2 Kilo grams, which itself fell under S.9(c) of Control of Narcotic Substances Act, 1997; and 500 grams if treated to have been taken from one packet that was 10 Kilograms per packet, that too, attracted the sentence that had been awarded to accused---Contention that on the same set of evidence, accused had been convicted, and his co-accused had been acquitted, was of no avail, because the courts were required to 'sift the grain from chaff'---Findings of the Trial Court, were above board and not liable to be disturbed---No illegality or irregularity could be pointed out in the impugned judgment of the Trial Court, as the court after proper appraisal of the evidence and attending each and every aspect of the case, had rightly found accused guilty---Counsel for accused, having failed to make out a case for interference, in the impugned judgment, appeal against said judgment was dismissed, in circumstances.

Manzoor Ahmed Rehmani for Petitioner.

Shoukat Ali Rakhshani, S.P. (ANF) for the State.

Date hearing: 10th March, 2014.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 1833 #

2014 Y L R 1833

[Balochistan]

Before Naeem Akhtar Afghan and Muhammad Ejaz Swati, JJ

HABIBULLAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.15 of 2013, decided on 30th April, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Complainant was not an eye-witness, but he had received information about the incident from some other person and got registered the F.I.R.---Both prosecution witnesses, who were nephew of the deceased, were residents of a place which was situated more than 100 Kms from the place of incident---Version of alleged eye-witnesses with regard to their presence at the place of incident; and the factum of incident narrated by them, were not convincing and reliable---Inspection memo of the place of occurrence, was prepared on the pointation of complainant, who was not an eye-witness of the incident---Ocular witnesses having failed to justify their presence at the place of occurrence, without any other independent corroboration, no reliance could be placed on the testimony of said witnesses---Most important independent eye-witnesses, and strong circumstantial witness, despite being available at the trial, their evidence was withheld; and one injured witness was also not produced---Adverse inference under Illustration (g) of Art.129 of Qanun-e-Shahadat, 1984, could be drawn against prosecution--- Documentary evidence, produced by accused persons to prove their plea of alibi, had not been shaken by the prosecution---Said circumstances had shattered the case of prosecution and created reasonable doubt in the case; benefit of which had to be extended to accused persons---One reason-able doubt or circumstance, was sufficient to discard the statement of the witnesses---Prosecution having failed to prove the charge against accused persons beyond reasonable doubt, impugned judgment of the Trial Court was set aside; accused were acquitted of the charge and were released, in circumstances.

Muhammad Farooq and another v. The State 2006 SCMR 1707; Muhammad Shah v. The State 2010 SCMR 1009; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Riaz Ahmed v. The State 2010 SCMR 846 and Ashiq Hussain v. The State 1993 SCMR 417 ref.

Ayaz Zahoor for Appellants.

Wali Khan Nasar for the Complainant.

Naseeruddin Mengal for the State.

Date of hearing: 22nd April, 2014.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 1893 #

2014 Y L R 1893

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

USMAN LTD.---Appellant

Versus

LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY HUB INDUSTRIAL TRADING ESTTAE HUB LASBELLA, through Chairman and 2 others---Respondents

R.F.A. No.28 of 2013, decided on 30th April, 2014.

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

---Ss. 8 & 9---Suit for possession of immovable property---Trial Court dismissed suit on the point of limitation holding that same was filed under S. 9 of Specific Relief Act, 1877---Validity--Suit filed by the plaintiff would fall within the domain of S. 8 of Specific Relief Act, 1877---Decree passed in a suit filed under S. 9 of Specific Relief Act, 1877 was not a bar to either party for maintaining a regular suit seeking possession by way of establishing a legal, valid and competent title---Impugned judgment and decree passed by the Trial Court were set aside and case was remanded for decision afresh in accordance with law---Appeal was accepted in circumstances.

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

----S. 9---Summary suit for possession of immovable property--- Scope---Summary procedure was to be adopted by the Trial Court in case of dispossession of a plaintiff against his consent and otherwise than due course of law within six months from filing of suit---Right to seek possession under S. 9 of Specific Relief Act, 1877 was subject to previous possession of plaintiff irrespective of his title or entitlement of retaining possession on the basis of a valid, legal and competent title---Object behind S. 9 of Specific Relief Act, 1877 was to undo the phrase "Might is right" and to provide speedy, simple, effective and efficacious remedy to an aggrieved party and empowered and entitled the court to redress a wrong immediately without observing the protracted and lengthy procedure provided for a regular suit.

Nemo for Appellant.

Nemo for Respondents.

Date of hearing: 16th April, 2014.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 2270 #

2014 Y L R 2270

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

PAYO KHAN alias KAKAY---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.40 of 2014, decided on 16th June, 2014.

Explosive Substances Act (VI of 1908)---

----Ss. 3 & 4---Pakistan Arms Ordinance (XX of 1965), S.13 (e)---Criminal Procedure Code (V of 1898), S.103---Possessing handgrenade and unlicensed firearms---Appreciation of evidence---Recovery proceedings---Statements of recovery witnesses---Procedure---Accused was convicted and sentenced for imprisonment for keeping in his possession one unlicensed rifle .303 bore, one TT pistol .22 bore, a bandoleer containing 15 live cartridges and one handgrenade---Validity---Serious doubts existed regarding preparation of recovery itself---In case of on-spot recovery, statements of recovery witnesses had to be recorded soon thereafter at the spot but witness of recovery admitted that his statement was recorded in police station and he was not present at the time of recovery---Entire proceedings were doubtful as raid was conducted on the basis of secret information and no independent respectable person of that locality was joined in recovery proceedings---Prosecution not only failed to prove alleged recovery of explosive material and arms and ammunitions from the possession of accused but also failed to prove the case without any shadow of doubt---High Court set aside conviction and sentence passed by Trial Court and acquitted accused of the charge---Appeal was allowed in circumstances.

Shabir Ahmed Rajput for Appellant.

Abdul Sattar Durrani, Additional Prosecutor General and Malik Sultan Mehmood, Special Prosecutor ATA for the State.

Date of hearing: 23rd May, 2014.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 2415 #

2014 Y L R 2415

[Balochistan]

Before Qazi Faez Isa, C.J. and Jamal Khan Mandokhail, J

TALAT WAHEED KHAN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary and 14 others---Respondents

Constitutional Petition No.572 of 2009, decided on 11th July, 2014.

Constitution of Pakistan---

----Ss.204 & 199---Constitutional petition---Contempt of Court---Unconditional apology---Effect---Provincial Government through its Secretary submitted an unqualified apology, therefore, High Court discharged the notice already issued---High Court warned the respondent to be careful in future---Constitutional petition was disposed of accordingly.

Petitioner in person.

Syed Ayaz Zahoor along with Muhammad Qahir Shah.

Syed Iqbal Shah and Muhammad Ishaque Malik, Cantonment Executive Officer, Quetta Centt.

Sher Ali Kakar, Lessee of Cantonment Board.

Sher Shah Kasi, Deputy Attorney General.

Abdul Latif Kakar, Assistant Advocate General.

Muhammad Riaz, Law Officer MCQ.

Samiullah Akhond, Dy. Director (Maint.) N-25 NHA.

Nasir Ahmed Durrani, General Manager, BESA.

Tariq Shafi, Cantt. Overseer.

YLR 2014 QUETTA HIGH COURT BALOCHISTAN 2571 #

2014 Y L R 2571

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J

MUHAMMAD QAHIR SHAH and others---Petitioner

Versus

FEDERATION OF PAKISTAN, MINISTRY OF RAILWAYS, through Secretary, Islamabad and others---Respondents

Constitutional Petitions Nos.771 of 2009, 219 of 2010 and 286 of 2014, decided on 30th August, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Matter of public concern---Pakistan Railways' land---Sale by auction---Non-transparency---Undue benefit to auction purchasers---Present Constitutional petition raised matters of public concern, which was the sale of assets of Pakistan Railways , the ownership of which vested in the people of Pakistan---Present petition raised significant points of improper exercise of discretion, extending of undue benefit and favour to auction purchasers and failure of public functionaries to abide by their policy---Constitutional petition was held to be maintainable in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Matter of public concern---Petitioner advocating his own cause/seeking a benefit for himself---In cases in which petitioner highlighted a matter of public interest or concern, but his motivation was to seek a benefit for himself, the courts may still entertain the petition without granting any relief to the petitioner---If the attention of the court was drawn to a matter of public interest having the attributes of public interest litigation and which highlighted serious transgressions it would not be proper for the court to close its eyes and simply dismiss the petition on the ground that the petitioner was advocating his own cause.

----Art. 199---Public interest litigation---Locus standi of petitioner---"Aggrieved person"---Scope---Any citizen who brought forward a public matter disclosing the violation of any constitutional or legal provision or unreasonable behavior of a public functionary that was adverse to the public interest or had caused public loss may be categorized as an "aggrieved person".

G.J. Fernandez v. State of Karnataka, AIR 1990 SC 958; Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455 and Suo Motu Case No.13 of 2009 PLD 2011 SC 619 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Pakistan Railways' land---Sale by auction---Non-transparency---Undue benefit to auction purchasers---Loss to public exchequer---Terms of Bid not abided by---Sale not proclaimed/advertised properly---Land owned by government, local government or public institutions was a valuable public asset and must be put to the best possible use for the benefit of the citizens---When public properties were sold the bid conditions must be complied with---Successful bidders did not abide by the terms of Bid Documents, and the Bid Forms with regard to the most important aspect, i.e. making payment as stipulated---Comparatively small percentage of the sale consideration had been paid till date; five years had elapsed since the bids were submitted---Price of property increased over a period of time whereas the effect of inflation and other factors depreciated the value of money in Pakistan---Public interest therefore had been seriously compromised and the auction purchasers had been accommodated and extended huge benefit at the cost of the public exchequer---Valuable pieces of property at prime locations were to be sold, but sale was not proclaimed locally---Advertisements were not published in the local newspapers or in the local edition of the newspapers, but instead in a not "known" newspaper---Certain properties were barely discernible in the publication---Advertisement inviting bids offered properties for 33 years lease, however, through the first corrigendum the period was extended to 99 years; the first corrigendum however simply referred to the date of the earlier advertisement inviting bids, but the list of properties that were to be sold were not mentioned therein---Billions were to be derived from the sale of properties therefore it would have been reasonable to mention the properties being sold in the first corrigendum again---Moreover, the value a property having a lease of a period of 33 years as compared to a lease that was three times that period (99 years) was vastly different---Pakistan Railways could also have affixed billboards on the properties that were to be sold so that passers-by could learn of the proposed sale; the fact that these properties were very centrally located such method would have been very effective and cheap and helped in informing the maximum number of people about the proposed sale---Provincial Government was an important stakeholder having a 40% share in the sale proceeds, but was not informed about the offers that Pakistan Railways had received---Provincial Government may have elected to purchase the property itself---Central and prime location of the properties meant that these could have been put to public use---Lease deeds had been printed on stamp paper of one hundred rupees only, and the applicable stamp duty had not been paid / affixed thereon---Lease deeds had also not been registered properly nor had the applicable registration charges paid---Pakistan Railways in extending the time for making payment to the auction purchasers, without publicly informing the general public that it had changed the payments terms and without inviting fresh bids in such terms acted unfairly, unreasonably, unjustly and illegally, and caused prejudice to the public interest---Failure of the auction purchasers to make payment promptly and as per the terms of the Bid Documents and Bid Forms was a major contravention of the sale terms, which also adversely affected the public interest---High Court set aside the sale / sale proceedings in respect of the properties and directed that Pakistan Railways may offer the properties to the Provincial Government at the price of the maximum bids received, less 40% being the share of the Provincial Government, or if Pakistan Railways wanted to invite fresh bids for the sale of the properties it must do so fairly, transparently, and with maximum publicity, by placing advertisements in major newspapers as well as local newspapers and by affixing billboards on the properties that were to be sold, and after receipt of bids, offer the first right of refusal to the Provincial Government; that if the Provincial Government acquired the properties it should use the same for public purpose---Constitutional petition was disposed of accordingly.

Nagar Nigam, Meerut v. Al Faheem Meat Exports (Pvt.) Ltd. (2007) 1 Supreme 704; Ram and Shyam Co. v. State of Haryana AIR 1985 SC 1147 and Haji T.M. Hasan v. Kerala Financial Corpn. AIR 1988 SC 157 ref.

Constitutional Petition No.771 of 2009.

Muhammad Qahir Shah for Petitioner.

Sher Shah Kasi Deputy Attorney General for Respondent No.1.

Syed Ayaz Zahoor for Respondents Nos. 2, 3 and 4.

Aitzaz Ahsan and Gohar Ali Khan for Respondents Nos. 5, 6 and 7.

Tariq Ali Tahir Additional Advocate General for Respondent No.8.

Constitutional Petition No.219 of 2010.

Abdul Wali Khan Nasir for Petitioners.

Syed Ayaz Zahoor for Respondents Nos. 1, 2 and 3.

Tariq Ali Tahir, Additional Advocate General and Shai Haq, Assistant Advocate General for Respondent No.4.

Aitzaz Ahsan for Respondent No.5.

Constitutional Petition No.286 of 2014.

Aitzaz Ahsan, Baz Muhammad Kakar and Gohar Ali Khan for Petitioners.

Sher Shah Kasi, Deputy Attorney General for Respondent No.1.

Syed Ayaz Zahoor for Respondents Nos. 2 and 3.

Dates of hearing: 9th June, 7th, 16th, 17th and 23rd July, 2014.

Shariat Court Azad Kashmir

YLR 2014 SHARIAT COURT AZAD KASHMIR 34 #

2014 Y L R 34

[Shariat Court (AJ&K)]

Before Sardar Muhammad Shahzad Khan, J

TASLEEM KAUSAR---Appellant

Versus

Kh. MUHAMMAD ASHRAF---Respondent

Civil Appeal No.71 of 2011, decided on 28th June, 2013.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S. 14---Suit for recovery of dower---Family Court had dismissed suit for recovery of dower---Validity---Plaintiff in suit for recovery of dower had claimed that the dower was fixed in the shape of gold ornaments amounting to Rs.50,000 as prompt dower---Plaintiff had alleged that said ornaments were snatched away by the defendant, when she was forced to leave the house of defendant/her husband---Three witnesses produced by the plaintiff, had fully supported version taken by the plaintiff---One of the witnesses produced by the defendant, also had stated that gold ornaments were snatched away by the defendant---Said statement of defendant's witnesses had clearly shown that the ornaments were snatched away by the defendant---Trial Court, in circumstances, had failed to consider said important aspect of the case and arrived at wrong conclusion---Witness of the defendant was not declared as hostile by the defendant which was an admission on the part of the defendant, in circumstances---Defendant had not denied the allegation of snatching of gold ornaments and stated that he was not bound to return the gold ornaments---Fact that gold ornaments were snatched away by the defendant, therefore, was proved---Dower was the right of wife and husband was bound to pay the same to her---Impugned judgment and decree passed by the Family Court, were set aside to the extent of recovery of dower amount.

Sardar Nazar Muhammad Khan for Appellant.

Sardar Iftikhar Ahmad for Respondent.

YLR 2014 SHARIAT COURT AZAD KASHMIR 92 #

2014 Y L R 92

[Shairat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem and Muhammad Mushtaq Chaudhary, JJ

Raja ALI SHAN and another---Appellants

Versus

SHAKEEL and 4 others---Respondents

Criminal Appeal No.9 of 2013, decided on 14th May, 2013.

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

----S. 173---Report of Police Officer---Nature---Where the Police would submit a report under S.173, Cr.P.C. to dismiss the case for want of proof, such opinion of the Police Officer was not binding on the court; as the Police had no authority whatsoever to give judgment about the merits of the case, which definitely was the function of the court---Court should not agree with such report blindly and pass the order of discharge of accused in a whimsical and arbitrary manner; when a court concurred with or refused to agree with the Police report submitted to it, the order though was administrative in nature, but had to be passed in a judicial manner---Court had to consider the record placed before it and give reasons in support of its verdict.

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

----Ss. 173, 265-K & 417(2-A)---Penal Code (XLV of 1860), Ss.302, 337, 342 & 34---Qatl-e-amd, causing Shajjah, wrongful confinement and common intention---Appeal against acquittal---Trial Court, while agreeing with report submitted by Police Officer (Investigation Officer) under S.173, Cr.P.C., did not consider the facts that no evidence in support of said report submitted in favour of accused person, was brought on the Trial Court's file---Even the story of occurrence was not mentioned in the report made to it suggesting dismissal of the case---Observation was not made by the Trial Court, on the ground of any substantial evidence, and order of dismissal of case against accused persons, was passed by the court in a whimsical and arbitrary manner---Report under S.173, Cr.P.C. was submitted by the Police on two grounds that no eye-witness was produced by the complainant party and that death of the deceased occurred due to falling from the height, and that no cognizable offence was committed---Both said reasons given by Investigating Officer were incorrect and against facts of the case---Report in the case was lodged without any delay, and offenders were nominated therein---Eight injuries were found at the person of the deceased, and in view of nature of wounds, it was hard to believe that the victim suffered the same because of falling---Observation of Investigating Officer that no cognizable offence was committed, was groundless which was the result of either incompetency of Investigator; or of the dishonest investigation---Trial Court while passing the impugned order, had failed to appreciate that the injured person was lying unconscious at the spot from where he was taken to Police Station; and later on was shifted to Institute of Medical Sciences---Necessary facts, such as names of the offenders; and the circumstances which resulted into the death, including the place of occurrence, were mentioned therein---No exaggeration existed and it was recorded in accordance with law---No justification was available to dismiss a case supported by dying declaration, for want of proof by agreeing with the report made under S.173, Cr.P.C.---Appeal, in circum-stances, was accepted while subsequent report under S.173, Cr.P.C. suggesting dismissal of the case for want of proof, was rejected---Impugned judgment was set aside and the Trial Court was directed to proceed with the case in accordance with law.

----Art. 46--- Dying declaration Admissibility---Evidentiary value---Dying declaration was most strong piece of evidence; in certain circumstances it did not require any corroboration; and could be considered for recording conviction---Statement made by a person who was dying at the time he made it, was a dying declaration, and was admissible piece of evidence---Last words of a dying person enjoyed the presumption of truth---No specific mode for recording a dying declaration had been prescribed---Size of such declaration whether small or lengthy was of no importance; as the only requirement was that it must indicate the cause; and the circumstances which resulted in the death of the declarant---Authenticity and credibility of a dying declaration could only be judged after recording evidence in the case, because the question of concoction or fabrication, if raised by the defence, could only be resolved by considering the peculiar circumstances of the each case appearing in the evidence.

Play King Richard II by Sir William Shakespeare and Akbar Ali v. Shanaz and others 1981 PCr.LJ 710 rel.

Riaz Naveed Butt for Appellants.

Rafique Shaheen Additional Advocate General for the State.

Ch. Muhammad Ilyas for Respondents.

YLR 2014 SHARIAT COURT AZAD KASHMIR 374 #

2014 Y L R 374

[Shariat Court (AJ&K)]

Before Sardar Muhammad Shahzad Khan, J

MUHAMMAD ANAYAT---Appellant

Versus

MUHAMMAD NAZAM and 5 others---Respondents

Criminal Appeal No.9 of 2012, decided on 14th September, 2013.

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

----S.417(2-A)---Appeal against acquittal---Fundamental rules---Fundamental rules of acquittal appeal, firstly were; that there was presumption of innocence in favour of accused, which had to be kept in mind, especially when accused had been acquitted by the court below; secondly, that if two views of the matter were possible, the view favourable to accused should be taken; thirdly, that in case of acquittal by the Trial Court, the Appellate Court should take into account the fact that the trial Judge had the advantage of looking at the demeanour of accused; and fourthly, that if accused was entitled to the benefit of doubt, the doubt should be reasonable; and should be such which rational thinking men would reasonably, honestly and conscientiously entertained not the doubt of a timid mind, which would fight shy, though unwittingly it could be, or was afraid of the logical consequences; if that benefit was not given.

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

----Ss.447, 427, 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Criminal Procedure Code (V of 1898), S.417(2-A)---Criminal trespass, mischief, abetment, common intention, theft liable to Tazir---Appeal against acquittal---Appreciation of evidence---One of the witnesses stated to be eye-witness had contradicted the prosecution version, while second one had failed to record his statement in support of prosecution story, which had cast a serious doubt upon the prosecution case---Complainant and accused persons were the joint owners of alleged land, and the complainant was not the owner of the disputed land, in such like cases the statement of the Patwari was very much important, and statement of said witness had created serious doubt, and same would always go in favour of accused---Prosecution had failed to prove its case against accused persons beyond any shadow of doubt; and the Trial Court had rightly appreciated the evidence brought on record---No illegality or irregularity having been found in the impugned judgment, same was allowed to stand.

1992 SCR 299; 2003 MLD 1774; 2003 YLR 102 and 2005 PCr.LJ 464 distinguished.

----S. 417(2-A)---Appeal against acquittal--Accused, in case of acquittal would carry presumption of innocence---Accused was innocent until and unless he was proved guilty, and other presumption would originate from the order of acquittal passed in favour of accused.

Ch. Mehboob Ellahi for Appellant.

Raja Tabraiz Iqbal for Respondents.

Addl. A.G. for the State.

YLR 2014 SHARIAT COURT AZAD KASHMIR 594 #

2014 Y L R 594

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem and Sardar Muhammad Shahzad Khan, JJ

RAJ MUHAMMAD---Appellant

Versus

The STATE through Additional Advocate General and 3 others---Respondents

Criminal Appeal No.12 and Criminal Reference No.13 of 2010, decided on 26th March, 2013.

Penal Code (XLV of 1860)---

----Ss. 302, 34 & 506---Qatl-e-amd, common intention, criminal intimidation---Appreciation of evidence---Two crime empties of .12 bore gun, which were seized from the place of occurrence, were sent to Forensic Science Laboratory along with the weapon of offence for Expert's opinion---Report of Laboratory had shown that same were fired from the said weapon---When the manner of recovery was proved; and it was also established that crime empties seized from the spot were fired from .12 bore gun seized at instance of accused, mere fact that the attesters of recovery report, failed to tell the exact date, was not sufficient to hold that the recovery of weapon of offence was doubtful, particularly when they were examined after more than one year from the date, the recovery was effected---Where the eye-witnesses were available and their evidence rang true after the test of cross-examination, any variation in the statements of the witnesses of recovery of weapon of offence, hardly would matter; and it would not affect the evidence of eye-witnesses, which had to be relied upon---Claim of accused that he suffered injuries during the occurrence, was without any substance, which deserved no consideration---Motive was proved beyond doubt---Deceased was murdered by accused with .12 bore gun on account of enmity, which occurred due to the unpleasantness that took place a day prior to the main occurrence between the nephews of the complainant and grandsons of accused---Time and place of occurrence were not disputed---Presence of the eye-witnesses at the place of occurrence at relevant time was established---Mere fact that witnesses were related to the deceased and the complainant, was not sufficient to discard their evidence from consideration---Eye-witness account was confidence inspiring, besides, it was corroborated by recovery of weapon of offence and crime weapon from the place of occurrence---Case against accused was proved beyond doubt---No mitigating circumstances were present in favour of accused, as he was responsible for committing the cold-blooded murder of an innocent young boy, any lenient view was not warranted---Trial Court, in circumstances, had rightly convicted and awarded him the sentence of 'Qisas'.

Ch. Muhammad Ilyas for Appellant.

Additional Advocate-General for the State.

Raja Javed Akhtar for the Complainant.

YLR 2014 SHARIAT COURT AZAD KASHMIR 643 #

2014 Y L R 643

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD JAMEEL---Petitioner

Versus

The STATE and 6 others---Respondents

Criminal Revision No.18 of 2013, decided on 22nd April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 497(1), 4th proviso---Penal Code (XLV of 1860), Ss.324, 337, 340, 450 & 34---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S.17(4)---Attempt to commit qatl-e-amd, causing Shajjah, wrongful confinement, house-trespass in order to commit offence punishable with imprisonment, common intention, Haraabah---Bail, refusal of---Accused was behind bars for more than two years and was not responsible for causing delay in conclusion of the trial---Bail was refused to accused on the ground that case against him was covered by 4th Proviso of subsection (1) of S.497, Cr.P.C. where under three categories of accused could not be allowed bail on the ground of statutory delay in conclusion of trial; (i) a previously convicted offender for an offence punishable with death, or imprisonment for life; (ii) a person who in the opinion of the court was an hardened, desperate and dangerous criminal; (iii) accused for an act of terrorism punishable with death, or imprisonment for life---To decide the question that the case of an accused was covered by 4th Proviso to subsection (1) of S.497, Cr.P.C., the manner of occurrence, previous conduct and criminal record of accused, had to be taken into consideration---Proposition had to be resolved in the light of evidence brought on record by the prosecution---In the present case, it was alleged that accused, along with others entered in the house of the complainant to commit dacoity; and during the occurrence he murdered his wife---No enmity existed between the parties, question of false implication did not arise---Accused had brutally taken away the life of an innocent lady---Offence was committed in a desperate manner---Such act could only be expected from a hardened and dangerous criminal---Grant of bail to such an accused, could be a threat to normal peaceful social life---Trial Court, in circumstances, had rightly refused bail to accused by observing that case against accused was covered by 4th Proviso of subsection (1) of S.497, Cr.P.C.

Arshid Majeed Malick for Petitioner.

Raja Inamullah Khan for the Complainant.

Muhammad Farid Anwar, A.A.-G. for the State.

YLR 2014 SHARIAT COURT AZAD KASHMIR 1020 #

2014 Y L R 1020

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

JAVED IQBAL and another---Petitioners

Versus

The STATE through Muhammad Asif---Respondent

Criminal Revision No.17 of 2013, decided on 22nd April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 497---Penal Code (XLV of 1860), Ss.302, 324, 337, 147, 148 & 149---Qatl-e-amd, attempt to commit Qatl-e-amd, causing Shajjah, rioting, unlawful assembly and common object---Bail, refusal of---While deciding bail application of accused alleged to have committed murder and was a member of an unlawful assembly; and the offence was committed in the prosecution of common object the bail would be refused---Where in such circumstances, no role was attributed to accused, same would not be sufficient to bring his case within the ambit of further inquiry---Claim of bail by accused alleged for committing the offence under S.149, P.P.C. on the ground of individual role played by him in the occurrence, could only be taken into consideration, where there appeared that the allegation of forming unlawful assembly and committing the offence in the prosecution of common object was doubtful---In the present case, allegation against accused was supported by Medico-legal Reports pertaining to the victims---Prima facie, presence of accused persons at the spot at relevant time and participation in the occurrence was established---Inference, in circumstances, could be drawn that accused were members of the unlawful assembly, which committed the offence in the prosecution of common object---Court below had not committed any error while refusing bail---Impugned order whereby accused were refused bail, being correct and in accordance with law, warranted no interference.

Ch. Muhammad Riaz Alam for Petitioners.

Raja Inamullah Khan for the Complainant.

Muhammad Farid Anwar, A.A.-G. for the State.

YLR 2014 SHARIAT COURT AZAD KASHMIR 1142 #

2014 Y L R 1142

[Shariat Court (AJ&K)]

Before Muhammad Mushtaq Chaudhary and Sardar Mohammad Shahzad Khan, JJ

FAZAL-UR-REHMAN---Appellant

Versus

The STATE through Additional Advocate-General (AJ&K)---Respondent

Criminal No.19 of 2010, decided on 26th December, 2013.

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

----Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, common intention, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Incident was an unseen occurrence, and no direct evidence was available in the case---Prosecution witnesses, neither saw the occurrence directly, nor recognized anybody while fleeing away from the spot, rather they arrived at the spot when the occurrence had already taken place---Recovery of pistol was made after 10 days of arrest of accused; and both recovery witnesses were Police employees; whereas no independent witness was associated with recovery proceedings, which had made the case of prosecution doubtful---Evidence of recovery of witnesses of certain articles, like mobile, two photographs and diary, was not worthy of credence, as contradictions in the statement of witnesses had made said recovery seriously doubtful, which amounted to disbelieve the factum of recoveries---Said recoveries were not sufficient to prove charge against accused---Prosecution witnesses were not found 'Adil' during purgation---All pieces of evidence furnished by the prosecution were found to be full of doubts and manipulated, and benefit of said doubt would go accused---Links of chain in circumstantial evidence in the case, having been found missing, said evidence could not be relied upon---Impugned judgment passed against accused by the Trial Court was set aside, as prosecution had failed to prove its case against accused beyond any shadow of doubt---Accused was acquitted of the charge of murder and was set free, in circumstances.

Shaman alias Shamoo and 3 others v. The State 2013 PCr.LJ 1829 and More v. The State 2013 PCr.LJ 1730 rel.

(b) Criminal trial---

----Circumstantial evidence---Appreciation of---Scope---Accused could be convicted and sentenced merely on basis of circumstantial evidence, provided no link of chain was found missing; and all circumstances must lead to the guilt of accused---If a single link of the chain was missing, the circumstantial evidence could not be relied upon---Every link in such like case should be proved through cogent and convincing evidence and if not, then no conviction could be maintained or awarded to an accused---Accused, in a case of circumstantial evidence, could not be declared guilty on the basis of circumstantial evidence, until and unless the facts proved were incompatible with his innocence; and were incapable of explanation upon any reasonable hypothesis, than that of his guilt.

Muhammad Iqbal v. The State and 3 others 2013 PCr.LJ 1683 rel.

----Benefit of doubt---Benefit of doubt appearing in the prosecution evidence, always would go to of accused.

Sardar Shaukat Ali for Appellant.

Muhammad Dullah for the Complainant.

Tariq Alam, Assistant Advocate-General for the State.

YLR 2014 SHARIAT COURT AZAD KASHMIR 2170 #

2014 Y L R 2170

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, Muhammad Mushtaq Chaudhary and Sardar Muhammad Shahzad Khan, JJ

MUHAMMAD RAFIQUE and 2 others---Appellants

Versus

NASEEM AKHTAR and others---Respondents

Criminal Appeal No.76 of 2013, decided on 14th December, 2013.

(a) Criminal trial---

----Witness---Related witness---Scope---Mere relationship with the deceased, was not sufficient to discard the evidence of the prosecution witnesses, but where there appeared that the parties were inimical towards each other, the witnesses were related inter se, and interested in conviction of an accused; and apprehension of false implication also could not be ruled out, the deposition of such witnesses must be corroborated by some confidence inspiring independent incriminating material.

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

----Ss. 307, 147, 148 & 149---Azad Jammu and Kashmir Islamic Laws (Enforcement) Act (IX of 1974), Ss.7, 15 & 24---Qatl-e-amd in which qisas shall not be enforced, rioting, common object---Appreciation of evidence---Motive, though was not proved, in the case, but the deposition of the eye-witnesses and trend of cross-examination, had shown that enmity prevailed between the parties---All the witnesses being related inter se and also inimical towards accused, strong corroboration from some independent source in support of the ocular version, was required, in the circumstances---No bullet injury was found at the person of the deceased---Ocular version to the extent of using pistol during the incident, was not correct; and that part of the story was an exaggeration---Report did not indicate that the wound on the body of the deceased was result of two gunshots---Claim of the prosecution that the two fires hit the deceased at the same part of the body, and caused injuries, was highly doubtful---Weapon of offence, 12 bore gun was recovered at the instance of two witnesses, who were closely related to the deceased---Said witnesses were established to be inimical towards accused, but Investigating Officer ignored such enmity---Proceedings undertaken by Investigating Officer, while seizing the weapon were not transparent---Prosecution witnesses who were interested and inimical, were not found "Adil" during purgation, their deposition was not safe to be believed for recording conviction of accused without any corroboration from some independent source---Site plan also negated the prosecution story---Conviction of accused, in circumstances, was not justified---Accused was acquitted of the charges against him, in circumstances.

Abdul Majeed Malik and Muhammad Riaz Alam for Appellants.

Khalid Rashid Chaudhary for the Complainant.

Mehmood Ahmed Chaudhary, A.A.-G. for the State.

YLR 2014 SHARIAT COURT AZAD KASHMIR 2564 #

2014 Y L R 2564

[Shariat Court (AJ&K)]

Before Muhammad Mushtaq Chaudhary, J

Syed MUHAMMAD ALI through Real Mother Mst. Mehvish Batool---Appellant

Versus

Syed RAZA HUSSAIN---Respondent

Civil Appeal No.39 of 2013, decided on 30th April, 2014.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.17---Res Judicata, principle of---Applicability in cases before Family Courts---Scope---Azad Jammu and Kashmir Family Courts Act, 1993, no doubt was a special law, but general principles of res judicata could be made applicable by courts where Civil Procedure Code was not applicable; because disputes once decided, must attain finality at some stage---Even if S.11, C.P.C. was not applicable, but the principles of res judicata had to be applied with care and certain limitations---Contention that on the basis of previous cause of action in Family Court, fresh institution of suit was not barred, was repelled, because the principle of res judicata saved the courts from being vexed repeatedly by a litigant for the same relief.

1985 MLD 98 and 2009 MLD 1427 distinguished.

Mst. Zareena Begum v. Nisar Hussain and another 1996 SCR 82; Said Muhammad v. Karam Dad and 5 others 1999 YLR 117; Ghulam Muhammad v. Mst. Rashida Bibi and others PLD 1983 Lah. 442; Dost Muhammad v. Mst. Maqsoodan Bibi and another PLD 1985 Lah. 340 and Muhammad Akram v. Additional District Judge and others PLD 2008 Lah. 560 rel.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.14---Suit for recovery of maintenance allowance by minor son---Second suit Maintainability---Plaintiff (minor) filed a suit for recovery of past maintenance allowance at the rate of Rs.5,000 per month from October 2008 to April 2012, total Rs.2,10,000 and future allowance at the rate of Rs.15,000 per month---Family Court decreed suit accordingly; and said decision and decree, were not challenged by defendant in appeal before Appellate Court---Subsequently, the plaintiff filed fresh suit before Family Court for recovery of past maintenance allowance at the rate of Rs.10,000 per month from October, 2008 to January 2013, total Rs.5,20,000 and future maintenance allowance at the rate of Rs.15,000 per month---Fresh suit was dismissed by the Family Court---Validity---Only claim of the plaintiff in fresh suit was past maintenance allowance from Rs.5000 to Rs.10,000 per month, and future maintenance allowance at the rate of Rs.15,000---Plaintiff took divergent stands by claiming past maintenance allowance in both suits, which had negated his earlier suit, wherein he mentioned all expenses, including his admission in school, but later on in fresh suit he changed his stance, and claimed enhanced past maintenance---Plaintiff, in circumstances, should have filed an appeal against the earlier decision and decree passed by Family Court, or an application for increasing future maintenance allowance, should have been filed before Family Court on the ground of inflation and change in circumstances---Plaintiff having failed to do so, Family Court had not committed any illegality while dismissing the fresh suit filed by the plaintiff.

Miss Balqees Rashid Minhas for Appellant.

Nemo for Respondent.

Supreme Court Azad Kashmir

YLR 2014 SUPREME COURT AZAD KASHMIR 41 #

2014 Y L R 41

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

YOUSAF HAROON and 3 others---Appellants

Versus

CUSTODIAN OF EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR

and 17 others---Respondents

Civil Appeal No.48 of 2002, decided on 27th March, 2012.

(On appeal from the judgment of the High Court dated 30-10-2001 in Writ Petition No.162 of 2000.)

Azad Jammu and Kashmir (Administration of Evacuee Property) Act (XII of 1957)---

----Ss. 3 & 18(2)---Allotment of evacuee property--- Predecessor-in-interest of respondents had claimed that land in his possession, which he was cultivating, was allotted to him; and that father of appellants with the connivance of Departmental Authorities got allotment in his name after about 5 years of the allotment in his name, without cancelling the same from his name---Proceedings were pending before the Multiple Allotment Judge against father of appellant in respect of said allotment---Rehabilitation Commissioner, cancelled said subsequent allotment of father of the appellants and restored the allotment in favour of predecessor-in-interest of the respondents---Said decision had been upheld up to the High Court---Validity---Father of respondents admittedly was first allottee of land in question, whereas allotment in the name of father of appellants was subsequent one which was made secretly without first cancelling the first allotment in the name of predecessor-in-interest of the respondents---Allotment made in favour of the predecessor-in-interest of respondents in the year 1950 therefore, was a valid allotment and he was first allottee of the land---Subsequent allotment in favour of father of appellants, made without cancelling the first allotment was nullity in the eye of law.

Kh. Ghulam Qadir and another v. The Custodian of Evacuee Property and 13 others 2002 SCR 183; Muhammad Aslam and another v. Muhammad Rashid 2006 SCR 11; Muhammad Habib Khan v. Nasiri Khatoon and 11 others 2006 SCR 22; Muhammad Sharif v. Custodian (Civil Appeal No.7 of 1993 decided on 23rd October, 1993); Manzoor Hussain and others v. Mst. Zahoor Fatima and others 1993 SCR 115; Muhammad Jameel v. Muhammad Siddique and anothere 1999 YLR 1089; Saif Ali v. Custodian of Evacuee Property and others 1993 SCR 40; Zafar Iqbal v. Abdul Aziz and another 1998 CLC 286 and Government Boys High School and others v. Shah Muhammad and another 2002 SCR 329 ref.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellants Nos. 1, 2 and 4.

Muhammad Idrees Mughal, Advocate for Appellant No.3.

Raja Hassan Akhter, Advocate for Respondents Nos.3 to 6.

Date of hearing: 19th March, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 353 #

2014 Y L R 353

[Supreme Court AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD KARIM and 3 others---Appellants

Versus

KALA and 4 others---Respondents

Civil Appeal No.52 of 2009, decided on 7th March, 2012.

(On appeal from the judgment and decree of the High Court, dated 21-2-2009 in Civil Appeal No.38 of 2006).

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

----Ss. 8, 31, 42 & 54---Suit for possession, declaration, correction of record and perpetual injunction---Case of plaintiff was that survey in question, measuring one Kanal was in his ownership and possession; and that defendants who were entered as Ghairmauroos, had snatched the possession from him in the guise of some entry in Khasra Girdawary---Plaintiff was in possession of the land on the basis of gift-deed executed in his favour in the year 1989 by donor, who was owner in exclusive possession of the land---Gift had been made from a Khewat and no survey number was mentioned in it and land in question did not fall in said Khewat, but fell in another---No gift-deed in respect of land in question was executed, nor it was mentioned in the gift-deed that possession of the said survey number was handed over to the plaintiff---Gift-deed executed in favour of the plaintiff in circumstances, was not of specific survey number but was in respect of total share of owner/donor in the Khewat---Plaintiff had failed to prove his case that he was ever in possession of the specific survey number and that possession was snatched by the defendants from him---Suit was dismissed, in circum-stances.

Riaz Ahmed v. Amin Baig and others PLD 1978 SC (AJ&K) 161; Syed Aulad Ali Shah Gilani v. Azad Jammu and Kashmir Government through Chief Secretary and another PLD 1987 SC (AJ&K) 1 and Muhammad Hussain Khan v. Said Muhammad Khan and 11 others PLD 1988 SC (AJ&K) 184 ref.

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

----O.XLI, R.23.---Scope---If from the record, it was possible to resolve the controversy, the court instead of remanding the case, had to decide the appeal on merits itself.

Abdul Aziz v. Muhammad Ashraf and 8 others 1998 SCR 204 rel.

----Arts. 70 & 72---Oral and documentary evidence---Value---Documentary evidence was always considered to be better evidence as compared to the oral evidence---Oral evidence, could not exclude the documentary evidence.

Raja Muhammad Saeed Khan v. Sardar Khani Zaman Khan and 11 others PLD 2007 SC (AJ&K) 63 rel.

Abdul Majeed Mallick, Advocate for Appellants.

Ch. Muhammad Afzal, Advocate for Respondents.

Date of hearing: 23rd January, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 623 #

2014 Y L R 623

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, ACJ and Raja Saeed Akram Khan, J

MUHAMMAD ASGHAR KHAN---Petitioner

Versus

IRFAN SHARIF and 2 others---Respondents

Criminal Revision Petition No.2 of 2008, decided on 17th February, 2012.

(Revision Petition from the order of the Shariat Court dated 9-5-2007 in Criminal Appeal No.Nil of 2007.)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.324---Explosive Substances Act (VI of 1908), S.3---Attempt to commit qatl-e-amd, causing explosion---Bail, cancellation of---Case was registered against unknown person---During investigation, mobile number was traced out which was in use and possession of brother of accused---Brother of accused alleged that same was taken away from him by accused---Detail of the calls of said mobile had shown that mobile number remained under use of different persons---No definite opinion, in circumstances, could be formed as to who was the real owner of said mobile---Such fact could only be determined after recording of evidence by the Trial Court---No definite opinion regarding the explosive material was brought on the record as same was unused---No one was injured in the explosion---Applicability of the provisions of S.324, P.P.C., had to be seen by the Trial Court at proper stage---Once bail had been granted, there must be strong and exceptional reasons for its cancellation---Trial of the case was in progress and same had not been concluded---High Court, in such like situation, was always reluctant to interfere with in the orders relating to bail matters, particularly in a case when the trial was going on to commence so as to avoid the discussion and remarks on the merits of the case---Case pertained to year 2006 and there was no positive progress in the trial---Nothing had been brought on record that accused had misused the concession of bail---Even otherwise, the considerations in grant of bail and cancellation of bail, were different---Provisions of S.497(5), Cr.P.C., were not punitive in nature and there was no compulsion for cancelling the bail, unless the order granting bail was patently illegal, erroneous and factually incorrect; and had resulted in miscarriage of justice; or where accused were found to be making efforts to misuse concession of bail by extending threats or tampering with prosecution case---No such element was found from the impugned order/record---Counsel for complainant had failed to make out a case for cancellation of bail---Revision petition was dismissed.

Rahim Bakhsh v. Shah Nawaz and another 2003 SCMR 1966; Maj. (Retd.) Tariq Mehmood and others v. The State 2002 SCMR 1493; Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; Muslim Shah v. The State PLD 2005 SC 168; Amjad Hussain v. The State 2004 PCr.LJ 550; Muhammad Munir v. The State 1995 PCr.LJ 1255; Niaz Ahmed v. The State and 2 others PLD 2009 SC (AJ&K) 22 and Mt. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 distinguished.

Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Mian Dad v. The State and another 1992 SCMR 1418 and Zia-ul-Hassan Shah and another v. The State 1997 SCR 238 rel.

Barrister Humayun Nawaz Khan, Advocate for Appellant.

Sardar Muhammad Hussain Khan, Advocate for Respondents.

Date of hearing: 14th February, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 1195 #

2014 Y L R 1195

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Criminal Appeal No.21 of 2008

MUHAMMAD ILYAS and another---Appellants

Versus

The STATE and another---Respondents

(On appeal from the judgment of the Shariat Court dated 29-3-2008 in Cr. Appeals No.101/2005, 143/2005 & Criminal Reference made by District Criminal Court Mirpur).

Criminal Appeal No.26 of 2008

SHAUKAT---Appellant

Versus

ALLAH DITTA and 9 others---Respondents

Criminal Appeals Nos. 21 and 26 of 2008, decided on 20th February, 2012.

(On appeal from the judgment of the Shariat Court dated 29-3-2008 in Cr. Appeals No.101/2005, 143/2005 & Criminal Reference made by District Criminal Court Mirpur)

Criminal Procedure Code (V of 1898)---

----Ss. 377 & 374---Penal Code (XLV of 1860), S. 302(b)--- Qatl-e-amd---Confirmation of death sentence---Reference for confirmation of sentence of death; Qisas or Hadood, or where the Shariat Court would pass one of said sentences as a new sentence---Procedure---Hearing of case and signing of the judgment by at least two Judges of the Shariat Court was mandatory---In the present case, the reference for confirmation of death sentence was sent by District Criminal Court, which was heard and disposed of by Single Judge in the Shariat Court---Said order of Shariat Court was not maintainable---Judgment passed by Shariat Court was set aside and case was remanded to Shariat Court for decision by the Bench consisting of not less than two Judges, in circumstances.

Jawad Ayub v. Sadaqat Hussain and another 2011 SCR 263 and Muhammad Malik v. Karam Elahi and another PLD 2011 SC (AJ&K) 1 rel.

Ch. Muhammad Taj, Advocate for Appellant (in Criminal Appeal No.21 of 2008).

Raja Ghazanfar Ali Khan, Advocate-General for the State (in Criminal Appeal No.21 of 2008).

Khalid Rasheed Chaudhry Advocate for Respondent No.2 (in Criminal Appeal No.21 of 2008).

Mr. Khalid Rasheed Chaudhry, Advocate for Appellant (in Criminal Appeal No.26 of 2008).

Ch. Muhammad Taj, Advocate for Respondents Nos. 1 to 9.

Raja Ghazanfar Ali Khan, Advocate-General for the State.

Date of hearing: 20th February, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 1500 #

2014 Y LR 1500

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

KAMRAN SHEHZAD---Appellant

Versus

SIKANDER LATIF and another---Respondents

Criminal Appeal No.3 of 2011, decided on 27th March, 2012.

(On appeal from the judgment of the Shariat Court dated 12-11-2010 in Criminal Miscellaneous No.281 of 2010)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.285, 286, 287 & 302---Negligent conduct with respect to fire or combustible matter; with respect to explosive substance and with respect to machinery, qatl-e-amd---Bail, grant of---Principles---Any person, accused of a non-bailable offence, when brought before the court and if there appeared reasonable grounds for believing that he had been charged with the offences punishable with death, imprisonment for life or imprisonment for 10 years, he would not be released on bail---If, however, it appeared at any stage of inquiry or trial that there were no reasonable ground believing that accused had committed non-bailable offence; and there were sufficient grounds for further inquiry into guilt of accused, he would pending such inquiry, be released on bail---In the present case, prima facie the offences under Ss.285, 286 & 287, P.P.C. were attracted---Offence falling under all said three sections were bailable---Prima facie no case appeared to have been committed under S.302, P.P.C.---Accused, in circumstances was entitled to the concession of bail, and he had rightly been extended the concession of bail---Judgment of Shariat Court was based on sound and judicious reasoning and was in line with the principles governing the bail matters.

Mr. Muhammad Akram Mughal and Muhammad Azeem Dutt, Advocates for Appellants.

Mr. Muzaffar Ali Zaffar, Additional Advocate-General for the State.

Date of hearing: 21st March, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 1771 #

2014 Y L R 1771

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C J and Ch. Muhammad Ibrahim Zia, J

AMEER QABAL---Appellant

Versus

STATE of AJ&K through Advocate General/Additional Advocate General and another---Respondents

Criminal Appeal No.23 of 2012, decided on 28th November, 2012.

(On appeal from the judgment of the Shariat Court dated 1-3-2012 I Criminal Revision No.14 of 2012).

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 306 & 308---Qatl-e-amd, qatl-e-amd not liable to qisas---Bail, refusal of---Accused had murdered his ailing mother, who was a lady of advance age---Accused had made extra-judicial confession before four persons---Injury Form and Inquest Report showed six sharp edged weapon injuries on the head of the dead body---Prosecution had collected sufficient evidence wherefrom accused appeared to be connected with the crime---Accused being legal heir of deceased, under S.306, P.P.C. sentence of qisas could not be imposed upon him; and in the light of provisions of S.308, P.P.C. only the sentence of Diyyat could be imposed---Vast powers had been conferred upon the court under S.308(2), P.P.C. that having regard to facts and circumstances of the case, in addition to punishment of Diyyat, the court could punish the offender with imprisonment of either description for a term which could extend to 25 years as Tazir---Accused, in circumstances, was not entitled for concession of bail, because his case fell under the prohibited clause of S.497, Cr.P.C.---Accused being connected with the crime, both the lower courts had drawn correct conclusion from the tentative assessments of the evidence and rightly refused bail to the accused.

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

-----S.497---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appeal to Supreme Court---Bail---Concurrent findings recorded by two courts below, normally were immune from interference by Supreme Court---Supreme Court normally did not interfere in the discretion exercised by the courts in bail matters, unless same was capricious and against the settled rules governing the bail matters.

----S.497(2)---Bail, grant of---Principles---Further inquiry---Only a bird eye-view of evidence was to be taken into consideration at bail stage---Deeper appreciation of evidence was not permissible---If it appeared to the court at any stage of trial, that no reasonable grounds were available for believing that accused had committed a non-bailable offence, and there were sufficient grounds for further inquiry into his guilt, accused could be released on bail---In every criminal case some scope for further inquiry into the guilt of accused existed, but on that consideration alone, it could not be claimed by accused as a matter of right, that he was entitled to bail---For bringing the case in the ambit of further inquiry, there must be some evidence, which on the tentative assessment, could create doubt with respect to involvement of accused, in the crime---Court while granting bail, had to satisfy itself whether reasonable grounds existed or not against accused for believing that he was connected with the offence alleged against him---Each case had its own foundation of facts; it was not possible to put each and every case in the cradle of further inquiry to provide relief to accused by releasing on bail---Appeal was dismissed.

Muhammad Riaz Alam, Advocate for Appellant.

Muzaffar Ali Zafar Addl. Advocate-General for Respondent No.1.

Bostan Chaudhry, Advocate for Respondent No.2.

Date of hearing: 22nd November, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 1809 #

2014 Y L R 1809

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

Dr. MUHAMMAD EJAZ KHAN---Appellant

Versus

Dr. MAQBOOL AHMED and 4 others---Respondents

Civil Appeal No.187 of 2009, decided on 5th June, 2012.

(On appeal from the order of the High Court, dated 4-11-2009 in Writ Petition No.1379 of 2009).

Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----R. 34---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Issuance of stay order by High Court---Scope---Respondent in the present case, filed writ petition before the High Court whereby he challenged advertisement issued by the authorities for filling in the post in the direct quota---High Court admitted writ petition and ordered for maintaining status quo---Validity---Under provisions of R.34 of Azad Jammu and Kashmir High Court Procedure Rules, 1984, it was mandatory that prior to issuance of stay order, seven days' clear notice must be issued to the other party; and if the court reached to the conclusion that the matter involved was one of urgent nature, and delay in serving the notice would defeat the very purpose of writ petition, the High Court could dispense with the service of notice and issue stay order---High Court, prior to the issuance of notice having not complied with mandatory provisions of R.34 of Azad Jammu and Kashmir High Court Procedure Rules, 1984, order passed by High Court to the extent of issuance of stay order, was set aside by the Supreme Court.

Raja Muhammad Asghar Khan v. Muhammad Hafizulah and 5 others 2001 MLD 224 rel.

Sardar Abdus Sammie Khan, Advocate for Appellant.

Nemo for Respondents.

Date of hearing: 5th June, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 2258 #

2014 Y L R 2258

[Supreme Court (AJ&K)]

Before Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

ABDUL RAUF KHAN---Appellant

Versus

MUHAMMAD HANIF and 14 others---Respondents

Civil Appeal No.58 of 2006, decided on 24th April, 2012.

(On appeal from the judgment and decree of the High Court dated 30-1-2006 in Civil Appeal No.166 of 2004)

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

----S.11---Res judicata, principle of---Object---No party could be vexed twice for same cause---Principles.

The doctrine of res judicata is applicable in a case where the matter in dispute has been considered and finally settled between the parties by a court of competent jurisdiction and such adjudication has conclusive effect upon the rights of the parties.

A point directly in issue between the same parties and when finally concluded and attained finality, the fresh suit with regard to the same matter between the same parties is not competent. The logic behind the rule of res judicata is that a party cannot be vexed twice for the same cause. There must be some end to the litigation. All the suits are based upon the case of action. When a judgment is announced, the cause of action merges into the judgment and filing of fresh suit on similar cause of action amounts to dragging the innocent persons in unnecessary litigation.

Ghulab and 6 others v. Muhammad Younis and 7 others PLD 1983 SC (AJ&K) 89; Raja and others v. Karam Ali and others PLD 1951 Lah. 177; Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others PLD 1971 Lah. 77; Muhammad v. Sohbat (Civil Appeal No.41 of 2002 decided on 7th February, 2003); Ali Haider Khan v. Muhammad Aziz Khan and others 1993 SCR 170; Muhammad Zaman v. Fazal Elahi and 20 others 2001 CLC 1514; Ch. Shaukat Ali v. Province of Punjab and another 1989 SCMR 1254 and Isamdad Khan and another v. Muhammad Khurshid Khan and others (Civil Appeal No.52 of 2005 decided on 10-4-2012) ref.

Shaikh Abdul Aziz v. Mirza and 3 others PLD 1989 SC (AJ&K) 78; Said Muhammad v. Karam Dad and 5 others 1999 YLR 117 and Sakhiullah v. Habibullah 2011 SCR 133 rel.

(b) Adverse possession---

----Claim of---Essential proof for such claim---Scope---Adverse possession must be actual, open, exclusive, continuous, hostile and adverse to knowledge of real owner and person in possession of suit land had never recognized ownership of its owner---Decree for declaration on ground of adverse possession could not be passed in favour of plaintiff having failed to prove his possession over suit land to be adverse against defendants.

Raja Hassan Akhtar for Appellant.

Ch. Lal Hussain for Respondents.

Date of hearing: 23rd January, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 2442 #

2014 Y L R 2442

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

ALI SHAN---Petitioner

Versus

MIRPUR DEVELOPMENT AUTHORITY through Chairman and 18 others---Respondents

Civil Appeal No.64 of 2013, decided on 17th December, 2013.

(On appeal from the order of the High Court dated 18-5-2013 in Writ Petition No.89 of 2009).

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Azad Jammu and Kashmir Mirpur Development Authority Ordinance, 1974 S.11---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Grant of interim injunction---Conditions---Scope---Conditions necessary for issuance of a stay order were a good prima facie arguable case, irreparable loss which a party would suffer if stay order was not issued or due to issuance of stay order the other party would suffer loss and balance of convenience---Question of irreparable loss had to be considered by the court if a good prima facie arguable case was made out by a party---Irreparable loss was the loss which would be suffered by a party if stay order was issued or not---Party was not bound to show all the circumstances for success of his/her case for making out a good prim facie case---Raising a fair question for determination by the court was sufficient for the same---In the present case, Master/sector plan could only be changed by the Development Authority with prior approval of Government under the provisions of Mirpur Development Authority Ordinance, 1974---Corner position of the plots of petitioner had been changed without jurisdiction by the Development Authority due to which he had got a good prima facie arguable case and if respondents succeeded in raising the construction then he would suffer an irreparable loss---Balance of convenience would also lie in favour of petitioner---Supreme Court (AJ&K) directed that respondents should not raise construction in the plots till disposal of writ petition by the High Court and they should maintain the status quo---Supreme Court further directed the High Court to consider after providing an opportunity to the Development Authority whether master/sector plan had been changed with approval of Government or not and functionaries of said Authority were directed to refrain from altering master/sector plan in an arbitrary manner without prior sanction of Government and Authority.

Jamil Akhtar v. M.D.A. Mirpur through Chairman and 4 others 1996 CLC 1464; Kashmir Free Blood Bank and Welfare Centre (Registered) through Attorney v. Mirpur Development Authority through Chairman and 6 others 2012 CLC 928; Kaneez Akhtar v. Azad Government and 10 others 2004 SCR 318 and Qaiser Sadiq and another v. Shahroom and 4 others 2013 SCR 61 rel.

Javaid Najm-ul-Saqib Advocate for Appellant.

Khalid Yousaf Advocate for Respondent No.10.

Ch. Muhammad Mumtaz Advocate for Respondent No.7.

Ejaz Nazir Advocate for Respondent No.5.

Date of hearing: 11th December, 2013.

YLR 2014 SUPREME COURT AZAD KASHMIR 2538 #

2014 Y L R 2538

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD SALEEM---Appellant

Versus

ABID HUSSAIN and 3 others---Respondents

Criminal Appeal No.8 of 2009, decided on 28th January, 2013.

(On appeal from the judgment of the Shariat Court dated 26-12-2008 in Criminal Appeal No.3 of 2006).

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

----Ss.302 & 109---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd, abetment---Appeal against acquittal---Reappraisal of evidence---F.I.R. of the incident was lodged after considerable delay of 9 days---Extra judicial confession allegedly made by accused being result of coercion, could not be said to have been made voluntarily---Even otherwise, extra judicial confession was always treated as weak type of evidence---Recovery of clothes of deceased, was doubtful and such a false recovery, had no evidentiary value---Doctor who prepared post-mortem report, had not appeared as a witness and his signatures on said report had been testified by production of another witness---Without cross-examining the scribe/doctor of the report, it would not remain of much credit---Accused, and deceased were closely related to each other, and in the light of peculiar facts of the prosecution story, finding them in each other's company, was not unusual---Merely on the basis of last seen, without any other legal evidence, no one could be convicted, in circumstances---Whole prosecution story and evidence was full of suspicion and doubts, and suspicion/doubt how-so-much strong, could not be substantiated for proof---Trial Court had passed acquittal order after due appreciation of the material brought on record---Shariat Court had also maintained the acquittal order after making the required deliberation---Both judgments recorded by courts below were well reasoned and passed after appreciation of evidence---Appellant/ complainant had failed to point out any material illegality, irregularity or violation of any statutory provision of law---Appeal against acquittal was dismissed, in circumstances.

Muhammad Niaz Khan v. The State, 1999 SCR 488; Gul Munir and another v. The State 1990 PCr.LJ 1878; Muhammad Arif v. The State, 2008 YLR 2910; Khurshid v. The State PLD 1996 SC 305; Muhammad Aslam v. Sabir Hussain and others, 2009 SCMR 985; Rehmat Ali v. Samundar Khan and another 2009 SCR 252 and Muhammad Mubeen v. The State, 2002 PCr.LJ 729 ref.

Rehmat Ali v. Samundar Khan and another 2009 SCR 252; Muhammad Aslam v. Sabir Hussain 2009 SCMR 985; Azhar Hussain v. The State 2009 YLR 671; Iftikhar alias Kali and 2 others v. The State 2002 PCr.LJ 1245; Muhammad Yousaf v. Muhammad Idrees 2004 MLD 910; Altaf Hussain v. Fakhar Hussain and others 2008 SCMR 1103 and Muhammad Musthaq v. State 2001 YLR 1164 rel.

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

----S. 164---Extra judicial confession---Legal requirements/ingredients of---Extra judicial confession, had always been treated as weak type of evidence by the courts---Some legal requirements of extra judicial confession, were; firstly, that extra judicial confession was in fact made; secondly, it was voluntarily made; thirdly, it was truly made; and fourthly, to prove the extra judicial confession, it had to be proved by the prosecution that there was a motivating force behind it because an accused could not be believed to open his mouth with regard to the performance of his criminal acts, unless and until there was a reason behind it---Accused could not be convicted solely on the basis of the extra judicial confession, unless it was supported by the corroborative piece of some independent reliable evidence.

Muhammad Aslam v. Sabir Hussain 2009 SCMR 985; Azhar Hussain v. The State 2009 YLR 671; Iftikhar alias Kali and 2 others v. The State 2002 PCr.LJ 1245 and Muhammad Yousaf v. Muhammad Idrees 2004 MLD 910 rel.

----Medical evidence---Medical evidence could not connect accused with the commission of the offence, but could only confirm the ocular evidence with regard to the seat of injury, nature of injury and kind of weapon used in the occurrence.

Altaf Hussain v. Fakhar Hussain and others 2008 SCMR 1103 rel.

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

----S. 417(2-A)---Conversion of acquittal order into conviction---Scope---To get an acquittal order converted into conviction, was a difficult job for the prosecution; it was like a liberated bird, who had flown away towards the limitless space and free air, but prosecution wanted to get him back again into the cage---Acquittal order could only be interfered with when it was proved that it had been delivered with foolish appreciation of evidence, with perverse actions; and where the reasons adduced for the release of an accused were not acceptable to the mind of prudent man.

Muhammad Yousaf v. Muhammad Idrees 2004 MLD 910; State v. Faisal Munir PLJ 2009 FSC 284 and Jehangir v. Aminullah and others 2010 SCMR 491 rel.

Abdul Aziz Ratalvi for Appellant.

Ch. M. Ilyas for accused Respondents.

Ghazanfar Ali A.G. for the State.

Date of hearing: 20th December, 2012.

YLR 2014 SUPREME COURT AZAD KASHMIR 2612 #

2014 Y L R 2612

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

RAJ MUHAMMAD---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Appeal No.12 of 2012, decided on 10th April, 2014.

(On appeal from the judgment of the Shariat Court dated 26-3-2013 in Appeal No.13 of 2010).

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

----S. 302---Qatl-e-amd---Reappraisal of evidence---Witnesses though were inter se related to the deceased, but the evidence of a witness could not be discarded merely on the basis of relationship---Related witness was as competent witness as any other witness provided his evidence was confidence inspiring; and he had no motive to implicate accused in a false case---Defence had neither suggested any enmity of the witnesses with accused, nor any such proof had been brought on the record---Mere some suggestions could not be made basis for declaring the witnesses as inimical towards accused---All alleged injuries on the person of accused were simple in nature and mere injuries on the person of accused could not be attributed to the complainant party---In absence of specific version of accused that occurrence did not take place in the manner as alleged by the complainant, rather the occurrence took place in a different manner; and accused was attacked by them, it could not be said that the witnesses had deliberately suppressed the injuries of accused---Police failed to investigate alleged counter version, whereas, when accused put a counter version, then it was obligatory for the Investigating Agency to investigate the matter---Evidence of the witnesses appeared to be confidence inspiring and trustworthy---Trial Court and the Shariat Court (AJ&K) had correctly placed reliance on the evidence of the eye-witnesses---Recovery of crime weapon of offence on the pointation of accused, the recovery of crime empties, and the report of Ballistic Expert, had shown that the crime empties had been fired from the same weapon of offence i.e. the .12 bore gun recovered on the pointation of accused---Post-mortem report showed that the deceased died due to firearm injury---Time of occurrence was not disputed---Motive had been proved by the statement of the complainant---No contradiction existed between the F.I.R. and the statements of the witnesses---Version taken by the complainant in the F.I.R., was supported by the witnesses---Trial Court and Shariat Court, committed no illegality in appreciating the evidence---Prosecution proved its case against accused beyond any doubt, and the Trial Court correctly convicted accused, and Shariat Court confirmed the death sentence in a legal manner---In absence of the counter version, or any other specific position, mere injuries on person of accused, could not be considered mitigating circumstance--There was no mitigating circumstance for converting the death sentence into life imprisonment.

Nazeer Ahmed v. Gehne Khan and others 2011 SCMR 1473; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Irshad Ahmed v. The State 2011 SCMR 1190; Muhammad Nadeem v. The State 2013 PCr.LJ 701; Muhammad Yousaf and another v. Tariq Mahmood and another PLD 2008 SC (AJ&K) 6; Muhammad Aziz v. The State 2000 SCR 1; 2013 PCr.LJ 1540; Hafiz Muhammad Naseem (Muhammad Waseem alias Naseem) and another v. The State 2003 PCr.LJ 1563; Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23; Mehrban v. The State PLD 1978 SC (AJ&K) 96 and Abdul Rashid and 30 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 ref.

(b) Criminal trial---

----Medico-legal report---Scope---Where accused specifically challenged the manner and time of occurrence, and advanced a counter version, in that case, the medico-legal report could lend a support to his version.

Muhammad Tahir Aziz v. The State and another 2009 SCR 71 ref.

----Evidence---Corroboratory evidence---If a case was primarily based upon the ocular evidence, it was not necessary to demand that there must be corroboratory evidence.

Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23 ref.

(d) Criminal trial---

----Motive--- Proof--- If a case was primarily based on ocular evidence, it was not necessary to prove the motive.

Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 ref.

Ch. Muhammad Ilyas for Appellant.

Raja Saadat Ali Kiani for Respondents.

Mansoor Pervaiz Khan Advocate General for the State.

Date of hearing: 18th March, 2014.

YLR 2014 SUPREME COURT AZAD KASHMIR 2649 #

2014 Y L R 2649

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Civil PLA No.202 of 2013

WAPDA and others---Petitioners

Versus

TAJ BEGUM and others---Respondents

(On appeal from the Judgment of the High Court dated 21-5-2013 in Civil Appeals Nos. 572 and 573 of 2009).

Civil PLA No.228 of 2013

WAPDA and others---Petitioners

Versus

AJAB KHAN and others---Respondents

(On appeal from the Judgment of the High Court dated 6-6-2013 in Civil Appeal No.253 of 2010).

Civil PLA No.231 of 2013

SUPERINTENDING ENGINEER WAPDA and another---Petitioners

Versus

HALEEMA BIBI and others---Respondents

(On appeal from the Judgment of the High Court dated 14-6-2013 in Civil Appeal No.53 of 2007).

Civil PLA No.229 of 2013

WAPDA and others---Petitioners

Versus

MUHAMMAD ISMAIL and others---Respondents

(On appeal from the Judgment of the High Court dated 14-6-2013 in Civil Appeal No.63 of 2007)

Civil PLA No.232 of 2013

WAPDA and others---Petitioners

Versus

MUHAMMAD MUNEER and others----Respondents

(On appeal from the Judgment of the High Court dated 14-6-2013 in Civil Appeal No.406 of 2008).

Civil PLA No.233 of 2013

SUPERINTENDING ENGINEER WAPDA and another---Petitioners

Versus

ALAF DIN and another----Respondents

(On appeal from the Judgment of the High Court dated 14-6-2013 in Civil Appeal No.52 of 2007).

Civil PLA No.234 of 2013

WAPDA and others---Petitioners

Versus

MUHAMMAD ARSHAD and others----Respondents

(On appeal from the Judgment of the High Court dated 12-6-2013 in Civil Appeal No.320 of 2008).

Civil PLA No.237 of 2013

SUPERINTENDING ENGINEER WAPDA and another---Petitioners

Versus

TALIB HUSSAIN and another----Respondents

(On appeal from the Judgment of the High Court dated 12-6-2013 in Civil Appeal No.319 of 2009).

CIVIL PLA No.247 of 2013

CHIEF ENGINEER RESETTLEMENT WAPDA and others---Petitioners

Versus

MUHAMMAD AZAM and others----Respondents

(On appeal from the Judgment of the High Court dated 20-6-2013 in Civil Appeal No.233 of 2008).

Civil PLA No.252 of 2013

TALIB HUSSAIN and others---Petitioners

Versus

COLLECTOR LAND ACQUISITION and others----Respondents

(On appeal from the Judgment of the High Court dated 12-6-2013 in Civil Appeal No.319 of 2019).

Civil PLA No.274 of 2013

WAPDA and another---Petitioners

Versus

RAJA ABDUL HAMEED KIANI and others----Respondents

(On appeal from the Judgment of the High Court dated 24-7-2013 in Civil Appeals Nos.619 and 620 of 2009).

Civil PLA No.304 of 2013

SECRETARY INDUSTRIES and another---Petitioners

Versus

URSAL NAWAZ and others----Respondents

(On appeal from the Judgment of the High Court dated 10-9-2013 in Civil Appeal No.87 of 2005).

Civil PLA No.305 of 2013

ARSAL NAWAZ and others---Petitioners

Versus

AZAD GOVERNMENT and others----Respondents

(On appeal from the Judgment of the High Court dated 10-9-2013 in Civil Appeal No.87 of 2005).

Civil PLAs. Nos. 202, 228, 231, 229, 232, 233, 234, 237, 247, 252, 274, 304 and 305 of 2013, decided on 3rd February, 2014.

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

----S. 42(11) & (12)---Land Acquisition Act (I of 1894), S.54.---Direct appeal in Supreme Court---Scope---Direct appeal in the Supreme Court would lie in the cases where value of the subject matter in the court of first instance and in appeal before the High Court was not less than fifty thousand rupees and High Court had altered or varied the judgment or decree of court below---Petition for leave to appeal would lie in the cases not covered by S.42(11) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Petitions for leave to appeal in the cases arising out of land acquisition proceedings under the Land Acquisition Act, 1894 were being filed in the light of judgment of Supreme Court due to misconception which were incompetent, however, petitioners in all the present petitions for leave to appeal might apply to the Supreme Court for conversion of the same into appeal or appeal into petition for leave to appeal within a period of one week from the announcement of judgment.

Government of Pakistan v. Muhammad Shafi Khan and 4 others 2000 YLR 3058 and Azad Government and 2 others v. Mukhtar Saeed Qadri and 2 others 2000 YLR 2016 dissented from.

Government of Pakistan v. Muhammad Shafi Khan and 4 others 2000 YLR 3058; Commissioner of Income Tax Muzaffarabad v. Messrs United Builders Corporation 1985 CLC 1102; Hyderabad Development Authority through MD., Civil Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government through Chief Secretary, Azad Jammu and Kashmir Government, Muzaffarabad PLD 1990 SC (AJ&K) 23 and Chief Administrator Auqaf v. Sain Ghulam Ahmed Nisar and 38 others PLD 2012 SC (AJ&K) 21 ref.

Muhammad Sharif and 7 others v. Azad Government and others 1998 CLC 2052; Azad Government and 2 others v. Mukhtar Saeed Qadri and 2 others 2000 YLR 2016 and Mst. Gul Jan, and others v. Naik Muhammad, and others PLD 2012 SC 421 rel.

Javed Najmussaqib, Advocate for Petitioners (in Civil PLA No.202 of 2013).

Ch. Muhammad Afzal, Advocate for Respondents (in Civil PLA No.202 of 2013).

Javed Najmussaqib, Advocate for Petitioners (in Civil PLA No. 228 of 2013).

Nemo for Respondents in Civil PLA No.228 of 2013).

Sh. Masood Iqbal, Advocate for Petitioners (in Civil PLA No. 231 of 2013).

Raja Liaquat Ali Khan, Advocate for Respondents (in Civil PLA No. 231 of 2013).

Javed Najmussaqib, Advocate for Petitioners (in Civil PLA No. 229 of 2013).

Sh. Masood Iqbal, Advocate for Respondents (in Civil PLA No. 229 of 2013).

Javed Najmussaqib, Advocate for Petitioners (in Civil PLA No. 232 of 2013).

Nemo for Respondents (in Civil PLA No. 232 of 2013)

Liaquat Afzal, Advocate for Petitioners (in Civil PLA No. 233 of 2013).

Raja Liaquat Ali Khan, Advocate for Respondents (in Civil PLA No. 233 of 2013).

Javed Najmussaqib, Advocate for Petitioners (in Civil PLA No. 234 of 2013).

Sardar Muhammad Azam Khan, Advocate for Respondents (in Civil PLA No. 234 of 2013).

Sardar Muhammad Raziq Khan, Advocate for Petitioners (in Civil PLA No.237 of 2013).

Sh. Masood Iqbal, Advocate for Respondents (in Civil PLA No. 237 of 2013).

Sardar Muhammad Raziq Khan, Advocate for Petitioners (in Civil PLA No.247 of 2013).

Nemo for Respondents (in Civil PLA No. 247 of 2013).

Sh. Masood Iqbal, Advocate for Petitioners (in Civil PLA No. 252 of 2013).

Muhammad Siddique Chaudhary and Sardar Muhammad Raziq Khan, Advocate for Respondents (in Civil PLA No. 252 of 2013).

Haji Ch. Muhammad Afzal, Advocate for Petitioners (in Civil PLA No.274 of 2013).

Haji Ch. Muhammad Anwar, Advocate for Respondents (in Civil PLA No. 274 of 2013).

Muzafar Ali Zaffar, Additional Advocate-General for Petitioners (in Civil PLA No. 304 of 2013).

Raja Hassan Akhtar, Advocate for Respondents (in Civil PLA No. 304 of 2013).

Raja Khalid Mehmood Khan, Advocate for Petitioners (in Civil PLA No. 305 of 2013).

Muzaffar Ali Zaffar, Additional Advocate-General for Respondents (in Civil PLA No. 305 of 2013).

Date of hearing: 29th January, 2014.