YLR 2015 Judgments

2015 Y L R 226

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

KHUSHI MUHAMMAD and others---Petitioners

Versus

The STATE and others---Respondents

R.O.R. Nos.1201 and 1202 of 2012, decided on 12th February, 2014.

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

----Ss. 135, 161 & 164---Partition of Joint Khata---Petitioners, alleged that respondent had moved application for partition of land of Joint Khata with mala fide intention, obtained ex parte order from the Tehsildar thus got undue benefit--Petitioners, contended that District Officer (Revenue) after visiting the spot, passed a lawful order, keeping in view means of irrigation, entitlement of parties etc,; that Appellate Authority, without keeping in view the grounds reality and factual position of the case, while passing impugned orders, made unjustified amendments in the wandas of the parties---Validity---Record had shown that present was not a case of partition of Joint Khata, but was a case of determination of specific piece of land which was purchased by the petitioner; as both the parties were purchasers of land in question---Petitioners had purchased the land with specific Khasra numbers in consequence that transaction, possession was handed over to them---Respondents, who had received consideration of that particular piece of land according to its market value, had no lawful right to grab said land, which they had sold to the petitioners in the garb of partition---Impugned orders by Appellate Authority below, was set aside and order passed by District Collector was upheld.

Abdul Haq for Petitioners.

Ch. Muhammad Afzal for Respondents.

2015 Y L R 267

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

NAZAR HUSSAIN and others---Petitioners

Versus

GHULAM MUHAMMAD and others---Respondents

R.O.R. No.820 of 2012, decided on 25th October, 2013.

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

----Ss. 135, 161 & 164---West Pakistan Land Revenue Rules, 1968, R.6-A---Partition of joint khata---Powers of Executive District Officer (Revenue) to remand case---Joint Khata of 11 land owners, was partitioned, and two of them assailed said partition in appeal, which appeal was dismissed and partition made by Tehsildar was upheld---Executive District Officer (Revenue), accepting revision against order of dismissal of appeal, remanded case to Tehsildar for deciding the case afresh---Validity---Under provisions of R.6-A of West Pakistan Land Revenue Rules, 1968, Executive District Officer (Revenue) was not empowered to remand the case, as said powers were vested in the Member, Board of Revenue---Executive District Officer (Revenue), having assumed non-existent powers, without going into merits of the case, same could not prejudice the mind of the lower court---Impugned order was set aside and matter was remanded to Additional Commissioner (Revenue) to decide the case himself as per law after giving opportunity of hearing to the parties concerned.

Zareen Khan Zahid for Petitioners.

Pir Ahmed Shah Ghagga for Respondents.

2015 Y L R 1075

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

Malik MUHAMMAD PERVAIZ---Applicant

versus

The STATE---Respondent

Case No.558 (sic), decided on 23rd June, 2014.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3(a)---Scheme for Management and Disposal of Available Urban Evacuee Properties (1977), Chapter 1, Para (L)(i & ii)---Transfer of evacuee property---Deposit of Government dues---Assessment of transfer price---Issuance of transfer deed---Evacuee property in dispute was ordered to be transferred in favour of transferee in year 1983 by competent authority and said transfer order had attained finality---Petitioner/transferee contended that his application pending before the court for the payment and issuance of Transfer Deed, be finalized---Transferee was entitled for benefit of the price assessment mechanism provided in the Chapter 1 of the Scheme for Management and Disposal of Available Evacuee Urban Properties (1977)---Application of the transferee for issuance of Transfer-Deed in respect of the property was accepted, at the price to be calculated in the terms of Para (L)(i & ii) of the Scheme for Management and Disposal of Available Urban Evacuee Properties (1977), with 40% penalty, due to delay in payment of government dues---Authority, after calculation of price with penalty, was directed to issue challans for depositing amount under head No. G-11.226 "Deposit in favour of the Chief Settlement Commissioner, Punjab" and after verification of said deposited amount, Transfer Deed, would be issued in favour of the transferee.

Ghazanfar Khalid Saeed for Applicant.

Ch. Muhammad Saeed for Respondent.

Numan Maqbool, Settlement clerk with record.

2015 Y L R 1475

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member Judicial-III

Messrs RUPALI POLYSTER LTD., through Manager---Applicant

versus

The STATE---Respondent

Case No.809, decided on 29th September, 2014.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Settlement Scheme No.1---Transfer of Property Act (IV of 1882), S.41---Transfer of evacuee property---Application for issuance of certified copy of Permanent Transfer Deed---Applicant had claimed that, property in question was originally, transferred in favour of a female under Settlement Scheme No.1 being claimant displaced person, who sold it to another person, and finally it was purchased by applicant vide registered sale deed---Applicant wanted verification of title documents of the property---Settlement Department had reported that file of property in question was not available in the office---Name of evacuee owner of property (non-muslim) which existed in the revenue record, did not match with the name entered on the PTD---Office had reported that there was overwriting on the entries, which had made the document doubtful---Compensation Books, from which transfer price of the property was adjusted, neither were available with applicant nor in the official record---Challan regarding payment of price, was not verified by the Treasury Office---Applicant was given ample opportunity to provide requisite record in support of his version, but he could not produce the same---Contention of applicant that after issuance of PTD, the Settlement Department had become "functus officio", had no weight, because, if the transfer of property was obtained by practising fraud, order of transfer being void would remain open to scrutiny by forums concerned---Contention of the applicant that he was bona fide purchaser on the basis of registered deed was repelled, because credentials of the original transferee of the property in question, were not verified, which made the title defective---Applicant, who had come into the shoes of his vendor, could not be better off, and would sink and survive with him---Defective title could not become perfect with its transfer---Applicant was not entitled for issuance of certified copy of PTD in question and his application was dismissed, in circum-stances---Suit property was in possession of Central Government and stood in its name---Secretary (Settlement and Rehabilitation) was directed to take appropriate steps for disposal of the same as provided under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

PLD 2004 SC 801; 2010 MLD 741; 2007 SCMR 459; PLD 1991 SC 691 and 2012 YLR 403 ref.

Mian Ashgar Ali for Applicant.

Noman Maqbool, Settlement Clerk with record.

Ch. Muhammad Saeed, Advocate/ Counsel for S & R Wing.

2015 Y L R 2201

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD RAMZAN and others---Petitioners

versus

The STATE---Respondent

Case No.913(sic), decided on 15th December, 2014.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Petition for allotment of "remaining land"---Petitioners, contended that they were allotted 63-Kanals of land in year 1961, and that their remaining claim was pending since then---Petitioners, were required to give some documentary evidence in support of their contention, but they failed to substantiate their claim by producing any documentary evidence---Petitioners, had failed to satisfy the court on the maintainability of their petition in the light of S.2(2) of Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975---Case was established to be not covered within the purview of pending proceedings which was dismissed.

Zafar Abbas for Petitioners.

Ghazanfar Khalid Saeed S& R Wing (on court call).

Ch. Muhammad Saeed, S & R Wing.

2015 Y L R 2457

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD AZHAR ALI KHAN---Petitioner

Versus

SAJJAD ANWAR and others---Respondents

ROR No.240 of 2013, decided on 25th February, 2015.

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

----Ss. 135, 147 & 164---West Pakistan Land Revenue Rules, 1968, R.6-A--- Partition of land---Respondents submitted application to Tehsildar for partition of land of joint khata---Tehsildar partitioned the land and framed wandajat of the parties---Appeal filed by one of the respondents against order of Tehsildar before District Officer (Revenue) was accepted and case was remanded to Tehsildar, with direction to partition, the land of joint khata afresh---Appeal filed against said order, was dismissed by Additional Commissioner---Validity---Main stance of the petitioner was that the parties were in possession of impugned land as consequence of family partition arrived at between the parties back in year 1970, and further reiterated in year 1990--­Petitioner, admitted that such partition, had not been entertained in terms of S.147 of West Pakistan Land Revenue Act, 1967, but as an evidence of such partition---Petitioners, could produce girdawari showing the possession of the respective parties, as per such partition from 1970 onward---Petitioner, produced copies of Khasra girdawari for the year Kharif 1972 to Kharif 1976--- Respondent contradicted that contention of family partition, and produced the detailed chart showing the possession of contesting parties on impugned land from 1971 to 2008---Said chart, had shown that none of the party was in continuous possession of particular piece of land from 1990 onwards establishing the fact that possession had been changing between the parties and no party was in continuous possession of specific piece of land, leading to the conclusion that no family partition was effected between the parties--- Where the main contention of the petitioner, had been defeated out of examination of relevant record, revision petition was left with no merits which was dismissed, and impugned order passed by Additional Commissioner (Revenue), was upheld in circumstances.

Malik Noor Muhammad Awan for Petitioner along with petitioner.

Malik Ghulam Saddique Awan for Respondent No.1.

Respondents Nos. 1 and 8 present.

2015 Y L R 1999

[Election Tribunal(AJ&K)]

Before Justice Azhar Saleem Babar, Election Tribunal

Sardar MUHAMMAD HUSSAIN KHAN---Petitioner

versus

Dr. MUHAMMAD NAJEEB NAQI KHAN and 12 others---Respondents

Election Petition No.12 of 2011, decided on 25th March, 2015.

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

----Ss. 51, 59, 5, 35, 36 & 92(a)---Civil Procedure Code (V of 1908), S. 139---Election petition---Allegations of corrupt and illegal practice---Verification of election petition and annexures---Scope---Petitioner was bound to verify election petition on oath and petition was required to be attested by an authorized officer---Election petition, in the present case had not been verified on oath by an authorized officer rather a separate affidavit had been attached whereby the contents of election petition had been verified on oath---Documents attached with the memorandum of election petition which were attested copies of public documents did not require verification on oath and attestation by the authorized officer---List of bogus votes prepared by the petitioner himself was not a public document which ought to have been verified by the petitioner and attested by the authorized officer---Failure of petitioner to do so tantamounted to violation of mandatory provisions of law which entailed dismissal of election petition---Election petition, in circumstances, was not maintainable as documents had not been verified in accordance with law---Mere allegations of corrupt and illegal practice could not justify an order for re-polling unless it was specified that such and such kind of illegal practice had been committed on a particular polling station---Votes were counted at closure of polling and a candidate or his polling agent was entitled to raise objection during count of votes at the particular polling station---Petitioner had failed to point out that any of his polling agents raised such objection before the Presiding Officer at closure of the polling---Consolidated result was prepared by Returning Officer and candidates or their agent had been provided a right to raise an objection that any ballot paper should be excluded or added to the count---No such objection was raised by the petitioner at the time of consolidation of result as well---Election Tribunal was not supposed to act as Presiding officer or Returning Officer during proceedings in an election---Election Tribunal was supposed to see that whether the election authorities had committed any illegalities which had affected the result of polls---If Presiding Officer had prepared a statement of any kind on plain paper, it was an irregularity which did not affect the result of the polls---Petitioner was supposed to prove that he had secured such number of votes from different polling stations and that number of votes polled in his favour was higher than the non-petitioner---Polling agent of a candidate had a right to obtain details of result of a particular polling station from the concerned Presiding Officer---Petitioner had failed to provide any such detail of results of different polling stations---Election authorities were supposed to follow the directions of Chief Election Commissioner---Petitioner had not challenged the legality of establishment of polling station for employees---Election petition was dismissed in circumstances.

PLD 1978 SC AJ&K 161 rel.

Asghar Ali Malik for Petitioner.

Raja Muhammad Haneef Khan for Respondent No.1.

2015 Y L R 203

[Federal Shariat Court]

Before Sardar Muhammad Raza, C J

IQBAL alias MALANG and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.5/P, Jail Criminal Appeals Nos. 31/I and 32/I of 2013, decided on 3rd July, 2014.

Penal Code (XLV of 1860)---

----Ss. 379, 384, 392, 410 & 411---Theft, extortion, robbery, stolen property and dishonestly receiving stolen property---Ingredients---Appreciation of evidence---Commission of robbery, extortion or theft, was an offence altogether different from the receiving of stolen property---If a person was charged for extortion, robbery or theft, any recovery of the articles from him, was a proof of robbery, extortion or theft---Recovery of stolen property from a thief simply would come to prove that he was a thief, guilt of the commission of theft, and to be punished accordingly---Receiver of stolen property, was the one, who dishonestly would receive or retain any property already stolen by some one else; in that case too, the necessary ingredient was that he should either had knowledge or had reason to believe that the property received by him, was a stolen one---Person charged for the actual commission of robbery, extortion or theft, could not be labelled as receiver of the stolen property, if the stolen articles were subsequently recovered from him---Always somebody else other than the one who stole or extorted the articles had to be there---Conviction of accused persons under S.411, P.P.C. was illegal, in circumstances---Accused were acquitted of the charge under Ss.392/411, P.P.C.---Impugned judgment was set aside, and were directed to be released, in circumstances.

Khizar Hayat (Khanaza), M. Sharif Janjua and Qazi Nisar Ahmed for Appellants.

Arshad Ahmed Khan, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

Date of hearing: 3rd July, 2014.

2015 Y L R 257

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Sh. Najam-ul-Hasan, JJ

SAHIB KHAN and another---Appellants

Versus

The STATE---Respondent

Jail Criminal Appeals Nos. 34/I of 2013 and 7/I of 2014, decided on 29th October, 2014.

Penal Code (XLV of 1860)---

----S. 302(c)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused persons were sentenced to fourteen years R.I., along with fine and payment of 'Diyat' amount---Names of accused persons were mentioned in F.I.R., which was highly doubtful, specially in respect of time of its registration---No reason was shown for not recording F.I.R. straightaway in the relevant register in presence of complainant---Inquest report, did not carry the number of F.I.R., name of the complainant, names of the witnesses and even the time of occurrence---Brief facts of the case were also not mentioned therein---Contradictions were noted in the statements of prosecution witnesses---All such facts had made the F.I.R., the statement of the complainant, and the prosecution story highly doubtful---Eye-witness account being doubtful, no inference, could be taken from the statement of the witnesses, unless, each part of the statements, was corroborated with some other reliable material---Motive was not proved, and nothing was taken away by accused during the occurrence---Three crime empties recovered from the place of occurrence, were sealed into parcel, and later on pistol was also recovered from one of accused persons; but no report of Firearm Expert was available was to indicate that empties were fired from the pistol so recovered; or that said pistol was in working condition---Recovery of pistol, in circumstances, did not provide any strength to the prosecution case---Prosecution remained unable to single out the accused as responsible for murder through reliable and admissible evidence---Prosecution having remained unable to establish guilt of accused beyond reasonable doubt, conviction and sentence awarded to accused persons, were set aside extending them benefit of doubt---Accused were acquitted of the charges against them, and were released, in circumstances.

PLD 2002 SC 108; 1995 SCMR 1345; Ata Muhammad and another v. The State 1995 SCMR 599; Tariq Pervez v. The State 1995 SCMR 1345; Amin Ali and another v. The State 2011 SCMR 323 and Muhammad Aslam and 5 others v. The State 1972 SCMR 194 ref.

Arshad Zaman Kayani for Appellant.

Nemo for the Complainant.

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

Date of hearing: 23rd September, 2014.

2015 Y L R 985

[Federal Shariat Court]

Before Sheikh Najam-ul-Hassan, Riaz Ahmad Khan and Zahoor Ahmed Shahwani, JJ

FAYYAZ RASOOL alias PAPPU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.38/I and Criminal Murder Reference No.1/I of 2014, decided on 30th January, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-i-amd, sodomy, kidnapping or abducting in order to subject person to unnatural lust---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Report having been made on the spot without any delay---Occurrence had taken place in daylight---Ocular version of prosecution witnesses, even not shaken in the cross-examination, was supported by medical evidence---Blood-stained chhuri was recovered on pointation of the accused, and blood stained earth was taken from the place of occurrence; Serologist, proved that it was human blood---Only one accused having been charged, no reason existed for his false implication---Accused had committed murder of the deceased, and he was rightly convicted---As far as sodomy was concerned, swabs, obtained by the Doctor at the time of post-mortem, were sent to the Chemical Examiner, who reported that swabs were stained with semen---Oral (ocular) evidence was corroborated by medical evidence and it stood proved, in circumstances that the accused was guilty of the act of sodomy with the deceased, and he was rightly convicted---Deceased (victim) having not been abducted by the accused; therefore, accused could not be convicted under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Accused, in circumstances, was rightly acquitted of that offence---Deceased had gone with accused on motorcycle, which meant that deceased willingly went with the accused---When the witnesses saw the deceased, he was putting on shalwar, which would mean that offence of sodomy had already been committed and it was not known as to what happened at the relevant time, which resulted to the murder of deceased---Motive, in circumstances, was shrouded in mystery---Accused, in circumstances, was entitled to a lesser punishment---Giving the benefit of doubt, death sentence awarded to accused by the Trial Court, was converted into life imprisonment, while remaining sentences, were maintained, with benefit of S. 382-B, Cr.P.C.

2007 SCMR 698 and Munsab Ali v. Riasat 1998 SCMR 1614 ref.

Aftab Ahmed Khan for Appellant (in Criminal Appeal No.38/I and Respondent in Criminal Murder Reference No.1/I of 2014).

Ch. Zubair Ahmed Farooq, Additional Prosecutor General Punjab for the State.

Date of hearing: 22n January, 2015.

2015 Y L R 1096

[Federal Shariat Court]

Before Allama Dr. Fida Muhammad Khan, Actg. C.J. and Riaz Ahmad Khan, J

The STATE---Appellant

versus

KHADIM HUSSAIN---Respondent

Criminal Appeals Nos.41/Q and 23/Q of 2007, decided on 3rd February, 2015.

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

----Ss. 10 & 16---Criminal Procedure Code (V of 1898), S.417(2-A)---Zina-bil-jabr liable to tazir, enticing or taking away or detaining with criminal intent a woman---Appeal against acquittal---Reappraisal of evidence---Investigation in the case was conducted completely in violation of law, rules and procedure---Complainant/ prosecutrix was examined by a nurse instead of the Lady Doctor---Neither Lady Doctor nor the nurse was produced before the court---Contents of medical certificate could not be verified which was of no use, and could not be taken into consideration---Oral evidence, in the case, was full of contradictions--- Complainant/prosecutrix was not consistent to her allegation regarding zina-bil-jabr---Occurrence was not witnessed by any one---Complainant had stated that she was accompanied by her two girl friends, but both the said girls were not produced before the court to verify the version of the complainant---Identification parade was conducted at the Police Station without observing all the legal formalities---Two witnesses of occurrence did not say anything about zina-bil-jabr---Except solitary statement of the complainant, nothing else was on record to corroborate her statement---Offence of zina-bil-jabr could not be said to have actually taken place---Accused, in circumstances, was rightly acquitted.

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

----Ss. 154 & 156---Recording of FIR---Whenever a cognizable offence was reported to the Police, concerned official was bound to register a case under S.154, Cr.P.C.---Veracity of contents of the report were correct or not, was not the job of the Police to find---Police had only to collect the material regarding the commission of offence, and then place the same before the competent court of law---Even, if a false report was made by someone, the Police was bound to register a case under S.154, Cr.P.C.---Requirement of law was that the information supplied, should be about alleged commission of a cognizable offence, irrespective of the fact, whether such information was ultimately proved to be correct or not and it was immaterial, if at the end it was proved that the alleged offence was actually not committed---Police, after registration of FIR had to investigate the case under S.156, Cr.P.C.

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

----Ss. 10 & 16---Criminal Procedure Code (V of 1898), Ss.154, 157 & 158---Zina-bil-jabr liable to tazir, enticing or taking away or detaining with criminal intent a woman--Registration of case---Inquiry of the case as suspected case---Procedure---Cognizable offence was reported to the SHO concerned, but the SHO, instead of registering a case under S.154, Cr.P.C., recorded the statement of complainant, and started inquiry under S.157(2), Cr.P.C.---Section 157, Cr.P.C., related to a situation where the cognizable offence was suspected---Section 157, Cr.P.C. had no application to the present case---Station House Officer concerned had received information regarding cognizable offence, and it could not be said that SHO had reasons to suspect the commission of an offence---Even under S.157, Cr.P.C., SHO was required to inform the concerned Magistrate instead of initiating inquiry immediately---On completion of inquiry, the report was to be sent to the Magistrate under S.158, Cr.P.C.---Even the procedure provided under S.157, Cr.P.C. was not followed in the present case---Receiving information regarding commission of cognizable offence and suspecting the commission of cognizable offence, were two different matters---Police Officials had no authority to evaluate the information received---Only job of the Police was to collect the material regarding the commission of offence---Police, in the present case, after receiving the report of the complainant, sent the victim to doctor to determine as to whether zina had actually been committed or not---Sending the complainant to the doctor, prior to registration of a case under S.154, Cr.P.C., the Police under the garb of S.157, Cr.P.C., took upon itself the responsibility of court and started determination of correctness or otherwise of allegations levelled in the report, which was totally uncalled for---Exercise carried out by the Police, was totally outside the ambit of powers available to the Police---FIR, in circumstances, was not registered in accordance with law.

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

----Art. 22---Police Rules, 1934, Para. 26.32--- Identification parade---Scope---Identification parade by itself was not a requirement of law---Such parade was not mandatory to be conducted and was only a corroborative piece of evidence---If substantive piece of evidence was disbelieved, the corroborative evidence had no value---Under Para.26.32 of Police Rules, 1934, the identification parade could be conducted by a Magistrate or Gazetted Police Officer---As a matter of prudence, the identification should not have been conducted by Deputy Superintendent of Police, when Magistrate was available.

Tahir Iqbal Khattak, Additional Prosecutor General for Appellant (in Criminal Appeal No.41/Q of 2007).

Nemo for Appellant (in Criminal Appeal No.23/Q of 2007).

Raja Muhammad Afsar for Respondent (in Criminal Appeal No.41/Q of 2007 and Criminal Appeal No.23/Q of 2007).

Date of hearing: 28th January, 2015.

2015 Y L R 1326

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, Sheikh Najam-ul-Hassan and Zahoor Ahmed Shahwani, JJ

MUHAMMAD HAYAT and 2 others---Appellants

versus

The STATE---Respondent

Criminal Appeal No.8/Q and Criminal Murder Reference No.1/I of 2013, decided on 22nd November, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 392---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, robbery---Appreciation of evidence---Complainant, who had identified accused persons during identification parade, had narrated the sequence of evidence---Defence could not demolish evidence of the complainant despite lengthy cross-examination---Recovered crime weapons and empties from the place of occurrence were sent to Forensic Division for chemical analysis, and the expert had confirmed that same matched with each other---Accused persons, though were not nominated in the FIR, but the record revealed that accused were taken into custody in the case after conducting of identification parade---Complainant and eye-witnesses had no motive to falsely implicate accused persons---Eye-witnesses had identified accused persons thrice correctly during identification parade---Prosecution witnesses had corroborated each other on material points, and no material contradictions existed in their deposition to be fatal to the case of prosecution---Accused persons, though were interrogated/investigated jointly when they allegedly made disclosure, but the disclosure of the each accused was compiled separately and signed by witnesses---Accused persons had made disclosure, and then led the Police to the recovery of crime weapons hidden in the reaped crop---Such disclosure, was admissible according to Art.40 of Qanun-e-Shahadat, 1984---Trial Court had rightly believed and relied upon the disclosures and recoveries---Nothing was on record to show that the expert had issued false report on account of any motive to strengthen the prosecution case---Medical evidence was fully corroborated by ocular account---Trial Court, had properly appreciated the evidence against accused persons, and had rightly convicted and sentenced accused persons---No illegality or irregularity had been pointed out in the impugned judgment---Prosecution having proved its case against accused persons, beyond reasonable doubt, their appeal was dismissed, and sentences, including death sentence awarded to accused persons, were maintained, in circumstances.

PLD 2003 Kar. 470; PLD 2001 Quetta 47; 1973 SCMR 69; 2009 YLR 1557 and 2009 SCMR 1440 ref.

Syed Muhammad Tayyab and Ahsan Rafiq Rana for Appellants.

Shah Muhammad Jatoi for the Complainant.

Tahir Iqbal Khattak, Addl: Prosecutor General, Balochistan for the State.

Date of hearing: 11th November, 2014.

2015 Y L R 2076

[Federal Shariat Court]

Before Riaz Ahmad Khan, C.J., Fida Muhammad Khan and Zahoor Ahmed Shahwani, JJ

BANARIS KHAN---Appellant

versus

The STATE and 2 others---Respondents

Criminal Appeals Nos. 56/I of 2011 and 5/P of 2012, decided on 10th June, 2015.

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

----Ss. 302 & 411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, dishonestly receiving stolen property, haraabah---Appeal against acquittal---Reappraisal of evidence---Whole prosecution story was based upon the confessional statement of accused, and there was no eye-witness of the occurrence---Co-accused had also made confession, but his confessional statement could not be considered as inculpatory confession; he did not state that he had any plan to kill the deceased and that he had not participated in the act of killing and taking away the looted money or mobile phone---Statement of co-accused was only to the effect that he was present at the time when accused committed the offence---Confessional statement of accused could not be believed for the reason that, said confessional statement was published in newspapers about 4 days prior to recording said statement---Accused retracted from his confession---Both accused persons were produced before the court together for recording confessional statements---Confessional statement of one accused was recorded in presence of other accused---Alleged confession was recorded after three days, and said delay had not been explained by the prosecution---Confessional statement of accused, could not be accepted in circumstances---If confessional statements were taken aside, there was nothing on record to connect accused with the alleged offence---Recovery of pistol had become doubtful for the reason that according to prosecution witness, he had not handed over the pistol to accused---Crime bullet was sent to the Forensic Science Laboratory about 10 days after its recovery---It was not known as to whom said bullet, and with whom it was lying for such a long time---Crime pistol was also sent to Forensic Science Laboratory after about four days of its recovery---Both reports of Forensic Science Laboratory did not show as to who had taken the crime weapon and the bullet to the Laboratory---Reports did not show any seal or mark on the seal---Said recoveries, in circumstances, had become doubtful---No evidence was on record to show that alleged mobile, was ever used by accused---There was also no evidence on record to show that the mobile actually belonged to the deceased---Recovery of the mobile phone, also could not be believed---Ocular story was not supported by medical evidence---Prosecution having failed to bring home guilt to accused, Trial Court had rightly acquitted accused---Appeal against acquittal, was dismissed, in circumstances.

Dhani Bakhsh v. The State PLD 1975 SC 187 ref.

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

----S. 302---Qatl-i-amd Appreciation of evidence---News item published in newspaper---Scope---Alleged confessional statement of accused was published in newspaper, about four days prior to recording of said confessional statement---News item published in newspaper could not be considered as evidence until and unless concerned correspondent appeared before the court and faced cross-examination---Such newspaper report, could not be treated as proof of facts reported therein---Statement of fact contained in a newspaper was merely hearsay evidence---If in respect of the same fact the prosecution produced different evidence, which was in total contradiction with the news item, published in the newspaper, that news item would become a relevant fact---No conclusive judgment could be passed on the basis of newspaper item---It could not be considered as substantive piece of evidence, but nevertheless, judicial notice of the news item could be taken in certain circumstances.

Wattan Party v. Federation of Pakistan PLD 2006 SC 697 ref.

Tehmas Khan Jadoon for Appellant.

Arshad Ahmed, Assistant Advocate General, KPK for the State.

Wajeeh-ur-Rehman Khan Swati for Respondents.

Abdul Rehman S. Alvi for Respondent.

Date of hearing: 10th June, 2015.

2015 Y L R 148

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

NOUMAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.87 of 2014, decided on 6th August, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 109 & 34---Qatl-i-amd, abetment, common intention---Bail, refusal of---Accused who was directly charged in the promptly lodged F.I.R., had taken plea of alibi, contending that on the date, the occurrence took place, he was on official duty, but he failed to disclose the nature of his official duty---Plea of alibi, taken by accused, was not supported with all particulars---Accused, being a Police Official, made entries in both the Roznamchas, but failed in making such entry in the relevant register as to when he reached back after doing his alleged official duty, which was very necessary, in the attending circumstances of the case---Contention of accused was that he had come along with some accused persons to produce them before the Anti-Terrorism Court, but no order sheet maintained by the relevant court in the relevant case file, had been appended by accused with his bail application---Accused having failed to prove his plea of alibi and no other ground was available for the release of accused on bail, his bail application was dismissed, in circumstances.

Malik Haq Nawaz for Petitioner.

Haji Jamal Khan for the Complainant.

Assistant Advocate General for the Complainant.

2015 Y L R 834

[Chief Court Gilgit-Baltistan]

Before Sahib Khan, C.J.

RAHAT SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.40 of 2012, decided on 14th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence---Accused, who was sentenced to one year's R.I., had undergone one fourth of the total sentence of one year, and benefit of S.382-B, Cr.P.C., had also been extended to him by the Trial Court---Held, it seemed fair that accused be released on bail subject to furnishing bail bond.

Malik Haq Nawaz for Appellant.

2015 Y L R 1113

[Gilgit Baltistan Chief Court]

Before Sahib Khan, C.J. and Yar Muhammad, J

SULEMAN---Appellant

versus

The STATE---Respondent

Criminal Appeal No.35 of 2012, decided on 26th November, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account, though was in consonance with the inquest report, but not in accordance with the prosecution version---Complainant being blood relative of the deceased was an interested witness in the case---All the private prosecution witnesses, who were close relatives to each other had concealed or tried to conceal facts---When it would come to the notice of the court that a particular witness had tried to suppress a particular fact, such situation would make the prosecution case doubtful; and even one lie of a witness would cause tainting the other untainted evidence---Star witness of the occurrence, either had told lie or was ignorant of the facts---Story prepared by the prosecution witnesses was not true---Complainant who was solitary witness, favoured the complainant party due to being a close relative of the deceased; his evidence was not corroborated by any other evidence---Both the complainant and other prosecution witness, being residents of different village, were chance witnesses, they could not prove their presence at the place of occurrence at relevant time---Solitary statement of a relative chance witness, could not be relied upon in a case involving capital charge, unless witness inspired confidence by furnishing plausible and convincing explanation of his presence at the place of occurrence---Prosecution witness, who allegedly was accompanied by the complainant at the relevant time, and his name was mentioned in the FIR as eye-witness was abandoned without furnishing explanation in that respect---Statement of the one of the prosecution witnesses made before the Police, was quite different to that of his statement made before the court, vide which he had improved his statement---Statement of said prosecution witness, was also false, planted, and was managed one just to bring some piece of circumstantial evidence---Statement of said witness, which was not believable, was not considered and discarded---Site-plan was not prepared by the Investigating Officer in the presence of the complainant---Three empty shells, which allegedly were taken into possession from the scene of occurrence, besides last wearing clothes of the deceased, were not produced before the court for identification---Investigating Officer had also failed in taking into possession the blood-stained earth from the place of occurrence, which was the requirement of law---Investigating Officer had also failed to send weapon of offence to expert for analysis---Prosecution having failed to prove its case beyond any shadow of doubt, accused was acquitted of the charge---Impugned judgment of the Trial Court was set aside, in circumstances.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd---Appreciation of evidence---Abandonment of prosecution witness---Prosecution witness, who allegedly was accompanied by the complainant at the relevant time, and his name was mentioned in the FIR, was abandoned without furnishing any explanation for the same---Court, under Art.129(g) of Qanun-e-Shahadat, 1984, could draw an inference adverse to the prosecution, that the given-up witness, might not have supported its version.

Malik Haq Nawaz for Appellant.

Amjad Hussain for the Complainant.

A.A.-G. for the State.

Date of hearing: 13th November, 2014.

2015 Y L R 1592

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

The STATE through Police Station FIA, Gilgit---Appellant

versus

AHMED ALI---Respondent

Cr. Appeal No.5 of 2013, decided on 2nd April, 2015.

Penal Code (XLV of 1860)---

----Ss. 403, 405, 406 & 407---Criminal Procedure Code (V of 1898), S.417(2-A)---Misappropriation of property, breach of trust by carrier---Appeal against acquittal---Trial Court had acquitted accused on the ground that prosecution failed to get some documents exhibited, or did not file some important documents---Validity---Said view of the Trial Court, was not correct, because the Trial Court was bound to either accept the available evidence in proof of guilt of accused or discard the same---Trial Court was bound to refer the relevant law of evidence on basis of which the prosecution evidence was being accepted or discarded---Once it was proved that accused received the goods of the department for carrying the same to different destinations, it was duty of accused to establish that he carried the same goods and delivered the same to the directed destinations---Trial Court had acquitted accused on the basis of defects in the prosecution evidence or on basis of defect in the mode of investigation---Courts were supposed to acquit or convict accused on the basis of prosecution evidence---In the present case, proof of delivery of goods of department to accused (carrier) was strong piece of evidence which the Trial Court failed to take up for discussion---Impugned order was result of misreading of evidence---Trial Court, if had reached to the conclusion that there were defects in the manner of collection or production of prosecution evidence, it was not helpless and instead of issuing directions for correction of such defects, the Trial Court gave benefit to the accused---Chief Court condoned the delay in filing appeal, impugned order was set aside and accused was directed to furnish fresh bail bonds, with two sound sureties.

Mir Muhammad Addl. Attorney General for Appellant.

Ghulam Nabi for Respondent.

2015 Y L R 1688

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

AHMED and 2 others---Petitioners

versus

AHLIAN-E KOSHMARA through Representatives and another---Respondents

Civil Rev. No.36 of 2014, decided on 31st March, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R.8---Representative suit---Plaintiffs filed suit against residents of "Kashmura" and 'Kashmura Gond' through their representatives---Representatives of 'Kashmura Gond' during trial proceedings of the suit, moved application praying for withdrawal from contesting the suit as representatives of defendants and prayed for allowing them for contesting the suit in their personal capacity, which application was allowed---Trial Court gave its judgment against which plaintiffs filed first appeal, and Appellate Court held that defendants were contesting the suit in their personal capacity---Contention of the plaintiffs was that writing of names of the defendants as representatives (of the defendants) in all order sheets, as well as in the judgment, had a binding effect on the parties as well as on the courts---Validity---Plaintiffs were wrong as they failed to cite any law or precedent-law in support thereof---Impugned order was speaking order, which did not suffer from any floating defect inviting interference of Chief Court---Order of the Trial/Appellate Court had attained finality and from date of said order said defendants were not representatives of the defendants and court could not force them to act as representatives---Soon after passing order by the Trial Court, plaintiffs were bound to move the Trial Court for re-arraying the defendants of the suit through their new representatives---Plaintiffs, as well as the Trial Court omitted to do so, resulting in writing of names of defendants as representatives of defendants---Use of the names of defendants as representatives of the defendants was not result of mistake or omission on the part of defendants, but same was result of omission or mistake on the part of plaintiffs or the Trial Court---Impugned order of appellate Court being correct, was upheld by the Chief Court.

Shoukat Ali for Petitioners.

Muhammad Iqbal for Respondents Nos. 1 to 10.

Additional Advocate General for Respondents Nos.11 and 12.

2015 Y L R 1860

[Gilgit Baltistan Chief Court]

Before Yar Muhammad, J

KAMRAN KHAN---Petitioner

versus

The STATE---Respondent

Cr. Misc. No.33 of 2015, decided on 6th April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Passports Act (XX of 1974), S.6---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetement---Bail, refusal of---Accused, had allegedly issued passports to persons belonging to different cities of Pakistan---Persons in whose favour the passports had been issued, had been shown to be residents of 'chilas' area, but practically they were not available at the given addresses, nor had such persons ever been resided on the given addresses---Passport, was issued to a citizen only from the Passport Office established in their respective areas, as per Government Policy; and that Policy had been framed for nothing, except to avoid mistake or that a passport should not be issued to a wrong person---Illegal act of accused, gave rise to the question that he issued passports to the persons, who were unseen and unheard in the area---Possibility, could not be ruled out that those persons were "wanted persons" to any law enforcing agency; and such an apprehension could not be overlooked at bail stage---Court had to look into such serious aspects of the case, and after being assured could use its discretion, even the offence committed by accused, did not fall within the prohibitory clause of S.497, Cr.P.C.---Apprehension existed that accused would leave the area as he belonged to down country and that very fact and other facts, would make the case an extraordinary and exceptional one, where bail was not allowed---Bail application was dismissed, in circumstances.

1992 PCr.LJ 357; PLD 1995 SC 34; 2001 MLD 1140 and 2007 YLR 349 ref.

Malik Haq Nawaz for Petitioner.

Deputy Attorney General for the State.

Date of hearing: 19th March, 2015.

2015 Y L R 1916

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

WAZIR and another---Appellants

versus

The STATE---Respondent

Cr. Appeal No.27 of 2011, decided on 30th November, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused persons, were directly charged in promptly lodged FIR, and names of eye-witnesses of the occurrence, were also mentioned therein---Motive, which was old enmity behind the offence, was also shown in FIR, which was admitted by accused in his statement under S.342, Cr.P.C.---Scene of occurrence, presence of the eye-witnesses, and the manner of commission of offence, were established---Abscondence of accused was also proved---Eye-witnesses, though were related to the deceased, but nothing was on record to suggest that they had any enmity with accused, so as to implicate them in a case of capital punishment---Trial Court, in circumstances, had rightly convicted accused persons, but life imprisonment awarded to accused persons was harsh, for the reasons that recovery proceedings were not proved, and the relevant prosecution witnesses turned hostile; that recovered guns were neither sent to the arms expert, nor were presented before the Trial Court; that contradictions existed between the statements of two eye-witnesses regarding making of site-plan of the scene of occurrence; and that statement of Investigating Officer could not be recorded due to his death---Life imprisonment awarded by Trial Court, was converted into imprisonment for 14 years by Chief Court---Accused would undergo 14 years' imprisonment accordingly.

Rashid Umar for Appellants.

Assistant Advocate General for the State.

2015 Y L R 1961

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

AYEER KHAN---Petitioner

versus

AMEER KHAN and 2 others---Respondents

Writ Petition No.61 of 2014, decided on 26th February, 2015.

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

----O. VII, R. 11---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 71 (2)---Writ petition---Plaint, rejection of---Plaint was rejected being time-barred---Validity---Question of limitation was always a mixed question of law and facts and parties should be afforded chance to meet the same---Grounds for the basis of the impugned order were that of dismissal of a suit---Dismissal of suit could be made only after recording of evidence---Rejection of plaint could not be ordered on the grounds or issues which needed to be proved through evidence---Impugned order (rejection of plaint) was based on erroneous view which had resulted into miscarriage of justice---Impugned order passed by the Appellate Court was set aside and that of Trial Court was upheld---Writ petition was allowed in circumstances.

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

----O. XIV, R. 5---Amendment of issues---Scope---Trial court had powers to correct, alter or frame additional issues at any stage of the proceedings of the case---Defects in issues could be cured at any stage through amendment.

Amjad Hussain for Petitioner.

Manzoor Ahmed for Respondents.

Date of hearing: 26th February, 2015.

2015 Y L R 2384

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

NASIR IQBAL---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.57 of 2015, decided on 30th June, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, refusal of---Accused at the time of occurrence, having crossed the age of 15 years, bail facility could not be extended to accused on that score, because of his having been blamed for murder---Person, who physically and mentally was fit enough to operate a weapon, and practically could kill a person; could not be benefited with bail facility, if he was involved in a criminal activity for which capital punishment was provided---Trend of murdering opponents by engaging teens, was an alarming message to the society and if that trend was encouraged, the crime rate in the society would be increased day by day---Minority (under age), should not be allowed to furnish licence to kill, except that some concession was extended during trial and conviction, but at bail stage, it could not be helpful, particularly when accused during that period had reached the age of 18 years---Statement of eye-witness, whose name was appearing in the FIR, had been recorded on the same day---Identification parade of accused, had also been conducted in presence of said witness---As to how far the proceedings carried with regard to the identification parade, and the statement of the eye-witness, were defective, would be seen at trial, but for bail stage, those pieces of evidence, prima facie, connected accused with offence---Deeper appreciation of evidence at bail stage, normally was avoided---Object behind said recognized principle was, that the Judges should avoid forcasting as to whether the prosecution case was going to be proved or otherwise, which would result influencing the Trial Court---Bail application was declined and dismissed, in circumstances.

Jahanzeb Khan and Mashal Khan for Petitioner.

Malik Sherbaz, Dy. A.-G. for the State.

Amjad Hussain for the Complainant.

Date of hearing: 30th June, 2015.

2015 Y L R 2585

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

SARFRAZ and 6 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.34 of 2014, decided on 9th April, 2015.

Penal Code (XLV of 1860)---

----Ss. 147, 148, 149, 427, 436, 353 & 448---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Rioting, rioting armed with deadly weapon, common object, mischief causing damage, mischief by fire or explosive substance, assault or criminal force to deter public servant from discharge of his duty, house-trespass, act of terrorism---Haraabah---Appreciation of evidence---Eye-witnesses were taking names of different persons as members of the mob---None of the said prosecution witnesses, were attributing any role or alleging against accused persons---Said prosecution witnesses were simply taking names of few of accused persons, showing only their presence in the mob---Trial Court, did not rely on the whole statement of any of the prosecution witnesses---Findings of the Trial Court, were against the principles of acceptance of whole of the statement of any prosecution witness or discarding the whole---Trial Court, had on the one hand accepted part statement of prosecution witnesses against some of accused, and had discarded the other part of the statement of prosecution witness regarding some accused---Such attitude of the Trial Court was without any explanation on its part---Conclusion of the Trial Court was completely contradictory to the prosecution evidence---Findings of Trial Court, were quite different from the examination-in-chief of the statement of S.H.O. concerned---About 700/800 persons had gathered in front of a Bank, turned into an illegal mob entailing to the occurrence, but the Trial Court had convicted the persons who had not been charged by any of the prosecution witness for any of the offences---In a case of rioting by a mob every member of the mob was responsible for the occurrence, but in the present case Trial Court had selected accused persons for trial---Prosecution witnesses had stated mere presence of said accused persons in the mob---Accused persons, could not be convicted and punished merely on the basis of their presence, when none of the prosecution witnesses had stated that any of the said accused did any act amounting to offence alleged against them---Prosecution evidence, did not show any circumstance showing attraction of the offences of Ss.6 & 7 of Anti-Terrorism Act, 1997, and offence of 'Haraabah' under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Ocular evidence against accused persons, was not only insufficient, but was wrong also---Circumstantial evidence, could hardly corroborate ocular evidence--Trial Court had accepted statements of accused persons recorded under S.21-H of Anti-Terrorism Act, 1997, while such confessional statement was not admissible, but was irrelevant against accused persons---Trial Court should have abandoned such confessional statements, as said statements did not contain any question showing that prosecution had no alternative except to produce the appellants (accused persons) before the High official of police who recorded such statement---Prosecution levelled allegation of looting the weapons and cartridges from 'Malkhana' of Police Station, while no evidence was available to the effect that Police had stored any weapon in that 'Malkhana'---Medical evidence was not against any of accused persons---Impugned order of the Trial Court being bad in the eyes of law, merited reversal---Conviction and sentence, awarded to accused persons, were set aside, in circumstances.

Manzoor Hussain for Appellants.

Deputy Advocate General for the State.

Date of hearing: 9th April, 2015.

2015 Y L R 2614

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

MUHAMMAD NASEEM---Appellant

Versus

GHULAM MUHAMMAD and 2 others---Respondents

Cr. Appeal No.3 of 2014, decided on 30th March, 2015.

Penal Code (XLV of 1860)---

----Ss. 447, 427, 337-A(iii) & 34---Criminal Procedure Code (V of 1898), Ss.417(2-A), 249-A & 512---Criminal trespass, mischief causing damage, causing Shajjah-i-Hashimah, common intention---Appeal against acquittal---Reappraisal of evidence---Trial Court, in the impugned order, had stated that the prosecution had abandoned one prosecution witness which amounted to be against the prosecution---Another accused had not been arrested by the Police and his arrest card had not been prepared---Trial Court had not initiated trial of said accused under S.512, Cr.P.C.---Said Court must have taken proceedings regarding the absence of one of accused persons, and trial proceedings should have been completed after declaring him absconder---Cutting and over-writing, were noticed in the challan of the case; and Trial Court was silent about said cutting and over-writing---Opinion of the Trial Court about absconder/accused was not clear---Findings of the Trial Court, were based on prosecution evidence, and had omitted to discuss the statement of the complainant---Order accepting the petition under S.249-A, Cr.P.C. was passed by the Trial Court which could be passed in two situations; firstly that, if the charge was groundless, the Trial Court had discretionary power to acquit accused under S.249-A, Cr.P.C. secondly that, if there was no probability of accused being convicted of any offence---Statement of the complainant, read with medical report, prima facie had shown the involvement of accused persons for the offence; in such a situation, Trial Court must have discussed the circumstances that rendered the prosecution evidence irrelevant; or same was inadmissible in evidence---Such kind of appraisal of prosecution evidence, was possible only after recording statements of the remaining prosecution witnesses---Case demanded complete trial and not the short-cut as adopted by the Trial Court---Impugned order, was set aside, and case was remanded to the Trial Court, with direction to complete the trial proceedings.

Khadim Hussain for Appellant.

Nisar Ahmed for Respondents.

Additional Advocate General for the State.

Date of hearing: 30th March, 2015.

2015 Y L R 53

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MAQSOOD KAUSAR---Appellant

Versus

REVENUE DEPARTMENT through Collector District Mirpur and 91 others---Respondents

Civil Appeal No.198 of 2007, decided on 29th March, 2013.

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

----Ss. 172 & 53---Specific Relief Act (I of 1877), S. 42---Suit for declaration and correction of entries in the revenue record---Bar on jurisdiction of civil court--- Maintainability--- Scope--- Trial Court dismissed suit on the grounds that plaintiff had no cause of action and for want of jurisdiction which was upheld by the Appellate Court---Validity---Jurisdiction of civil court in matter of entries in revenue record had been excluded which would be within the exclusive jurisdiction of revenue officers---Contention of plaintiff was that she had short-fall of 14 marlas of land whereas possession of 11 marlas was prayed but plaint was silent with regard to remaining 3 marlas of land---Plaintiff was not clear about her actual cause/relief which was claimed for---Disputed land was Shamlat Deh for which suit for possession could not be filed in the civil court---Concurrent findings of facts recorded by the courts below could not be disturbed by the High Court, howsoever erroneous they might be---Findings recorded by the courts below being not erroneous, both the courts below had properly attended the points in controversy between the parties and had recorded correct and legal conclusion---Suit was not maintainable---Appeal was dismissed in circumstances.

Sardar Khan v. Ghulam Hussain 2003 YLR 1788 rel.

Manzoor Hussain for Appellant.

Nemo for Respondents Nos. 1 to 5, 7, 8, 11, 16, 17, 20 and 21.

Raja Hassan Akhtar for Respondents Nos. 9, 10, 12 to 15, 18 and 19.

2015 Y L R 237

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

TARIQ MEHMOOD and others---Appellants

Versus

COLLECTOR LAND ACQUISITION MANGLA DAM RAISING PROJECT MIRPUR and others---Respondents

Civil Appeals No.5 of 2009 and 58 of 2010, decided on 13th March, 2014.

Land Acquisition Act (I of 1894)---

---Ss. 18 & 23---Brick-kiln, acquisition of---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation price to the extent of Rs.4,26,234 along with 15% compulsory acquisition charges and 6% interest per annum on the enhanced compensation from the date of taking possession---Validity---Collector Land Acquisition prepared a break-up of price of brick-kiln according to annual production but he did not add the expenses incidental due to change of place of business of the same---Witnesses produced by the plaintiff were not the persons having any qualification or expertise in building construction---Owner of brick-kiln had failed to produce any type of estimation and assessment by any official or private qualified experts---Only oral statements of witnesses could not be relied upon in the cases of land acquisition---Plaintiff had failed to prove the market price of his brick-kiln as prayed for---No document was on record to show the real production of brick-kiln per annum and the production mentioned in the award was not according to the real production---No income tax statement had been placed on record by the plaintiff---Plaintiff was bound to procure estimates of water well, donkey shed and expenses occurred on electricity polls etc.--Plaintiff had failed to produce verification that polls and other accessories were installed on his own expense---No proof was produced by the plaintiff entitling him to have escalation charges as 20%---Reference Court included expenses for change of place of business as 3% of price determined by the Collector and had enhanced the compensation to some extent with the reason that the owner was deprived of his brick-kiln without his consent and due to escalation of prices of building material---Small enhancement in the compensation had been made by the Reference Court which should not be interfered by the High Court---Authorities could not prove that Reference Court had not recorded his findings in accordance with evidence and provisions of law---Appeals were dismissed in circumstances.

2001 YLR 515; 2002 SCMR 407 and 2009 CLC 79 ref.

PLJ 2013 Lah. 172 rel.

2001 YLR 515; 2002 SCMR 407 and 2009 CLC 79 distinguished.

Haji Muhammad Afzal and Arshad Mehmood Mallick for Appellants.

Ch. Muhammad Jamil for Respondents.

2015 Y L R 357

[High Court (AJ&K)]

Before Munir Ahmad Chaudhary, J

MUHAMMAD RAFIQUE---Appellant

Versus

QURBAN HUSSAIN and another---Respondents

Civil Appeal No.52 of 2008, decided on 6th February, 2014.

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK)---

----Ss. 4 & 6---Suit for right of prior purchase--- Limitation--- Partial pre-emption, doctrine of---Scope---Suit was dismissed on the ground that same was hit by the doctrine of partial pre-emption---Validity---Construction of house and existence of trees over the disputed land were mentioned in the sale-deed but same were not claimed by the plaintiff---Plaintiff had deliberately and purposely made such omission in the plaint who was bound to claim all the rights endorsed in the sale-deed---Vendee must take over the whole bargain or forego his claim altogether and he could not be permitted to pick and choose---Partial pre-emption could not be allowed which was fatal in the present case and suit was not maintainable---Sale-deed was executed on 29-3-2002 and suit was filed on 6-5-2002 which was within the prescribed period of limitation---Findings recorded by the courts below were based on sound and cogent reasons---Appeal was dismissed in circumstances.

PLD 1969 SC 617; PLD 1974 AJ&K 26; PLD 1976 Lah. 1233; PLD 1981 SC AJ&K 43; PLD 1992 SC AJ&K 7; PLD 1993 SC AJ&K 168 and PLD 2007 SC AJ&K 20 distinguished.

PLD 1972 Pesh. 115 and PLD 1973 SC 443 ref.

Sardar Muhammad Azam Khan for Appellant.

Ch. Muhammad Akhtar for Respondent.

2015 Y L R 472

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Raja JAVAID AYYUB and 4 others---Appellants

Versus

Kh. KHURSHID AHMED and 10 others---Respondents

Civil Appeal No.166 of 2012, decided on 10th October, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. II, R. 2---Rejection of plaint---Suit to include whole claim---Scope---Plaintiffs had given new direction/ cover to old and decided facts and tried to present plaint on different cause of action which had already been decided---Plaintiffs being bound to include whole claim in the suit filed in the earlier round of litigation, present suit was barred by law---No illegality, irregularity or perversity had been committed by the courts below---No misreading or non-reading of the documents annexed with the plaint had been pointed out by the plaintiffs---Plaint was rightly rejected by the Trial Court---Appeal was dismissed in circumstances.

Syed Nazir Hussain Shah Kazmi for Appellants.

Muhammad Yaqoob Khan Mughal for Respondents Nos. 1 to 9.

2015 Y L R 575

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Ch. MUHAMMAD YOUNAS ARVI---Petitioner

Versus

KHALIDA BIBI and another---Respondents

Revision Petition No.9 of 2012, decided on 21st March, 2013.

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

----S. 42---Civil Procedure Code (V of 1908), Ss.94 & 115---Suit for declaration---Supplemental proceedings---Furnishing of bond---Scope---Revision---Maintainability---Plaintiff filed suit wherein he moved an application under S.94, C.P.C. that defendants were violating the stay order---Trial Court directed the defendants to submit personal bonds---Validity---Nothing was wrong if the Trial Court passed interlocutory order when mala fides were alleged in the plaint and court observed the same as just, proper and convenient---No illegality or irregularity had been committed by the Trial Court and impugned order had been passed in legal fashion---Revision was not entertainable before the High Court in circumstances, and same should have been filed before the court of District Judge as being the court of lowest grade.

1998 CLC 134; 1992 CLC 1904; 1994 MLD 903 and Tariq Mehmood v. Contractor Ahmed Din and 4 others 2009 SCR 294 rel.

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

----S. 94---Supplemental proceedings---Power of court to pass interlocutory order---Scope---Making of interim order was a part of the working of the judicial system and no separate or specific provision was necessary.

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

----S.115---Revisional jurisdiction---Scope---Revisional power could be exercised if subordinate court had exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in it or acted in exercise of such jurisdiction illegally or with material irregularity.

1998 CLC 134 rel.

Petitioner in person.

Ch. Muhammad Ashraf for Respondent No.1.

2015 Y L R 675

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD IQBAL and others---Appellants

Versus

MUHAMMAD IRFAN and others---Respondents

Civil Appeals Nos.307 and 394 of 2008, decided on 10th July, 2014.

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK)---

----Ss. 4 & 6---Suit for right of prior purchase---Gift-deed---Scope---Contention of plaintiff was that transaction was in fact a sale but same had been made gift only to defeat his right of prior purchase---Suit was decreed by the Trial Court but same was dismissed by the first Appellate Court---Validity---Court had powers under S. 4 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) to declare that any transaction purporting to be other than a sale was in fact a sale---Trial Court had rightly appreciated said provisions of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) while recording judgment and decree through which gift-deed was declared as a sale-deed---Defendants could not produce any witness in support of their version---No witness present at the time of execution of gift-deed had been produced nor any reason for donation of said property had been mentioned in the said deed---Owner of a property had a right to transfer the same according to his choice but intention of said owner had to be taken into consideration---Court had to find out the real intention of the parties who had entered into the transaction and should decide the issue upon all available material---Matters in civil cases had to be decided unlike criminal cases where a party was required to prove his case beyond any shadow of doubt---Defendants were required to rebut the evidence produced by the plaintiff that gift-deed was actually a sale in the garb of a gift but they had failed to do so---Defendants had failed to place any document on record to show that they were co-sharers in the khewat and khata of disputed land---Plaintiff had proved that he had got a prior right of purchase with regard to suit land---Impugned gift-deed was in fact a sale-deed---Judgment and decree passed adversely by the Appellate Court below were set aside and those of Trial Court were maintained---Appeal was accepted in circumstances.

1987 SCMR 1277; 1990 CLC 761; 1996 CLC 1161; PLD 1985 Lah. 630; 1992 SCR 265; 1997 CLC 1768 and 2007 SCMR 1275 ref.

1997 CLC 1768 rel.

Abdul Majeed Mallick for Appellant (in Civil Appeal No.307 of 2008).

Ch. Muhammad Mumtaz for Respondents (in Civil Appeal No.307 of 2008).

Muhammad Ayub Sabir for Appellant (in Civil Appeal No.394 of 2008).

Ch. Muhammad Afzal for Respondents (in Civil Appeal No.394 of 2008).

2015 Y L R 843

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD AZAM and another---Appellants

Versus

MUHAMMAD SHAFIQUE and others---Respondents

Civil Appeal No.93 of 2011, decided on 15th November, 2014.

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

----Ss. 42 & 8---Limitation Act (IX of 1908), Art. 142---Suit for declaration and possession of immovable property---Limitation---Contention of plaintiffs was that they were owners of suit property and possession of defendants was unlawful---Suit was decreed concurrently---Validity---Suit land was allotted in favour of defendants but said allotment had been cancelled---Status of defendants was of trespassers and their unlawful possession could not be protected---Defendants were not entitled for any relief under the law---When the suit was filed (within 12 years), not on the basis of dispossession or discontinuance of possession but on the basis of title, Art.142 of Limitation Act, 1908 was not attracted---Suit for possession on the basis of title could be filed at any time by the owner of immovable property---Suit filed within twelve years was within time---Plaintiffs had not only filed suit for correction of revenue record but also for seeking declaration and possession which relief could not be granted by Revenue Court and only remedy available was to file suit before the Civil Court---No misreading or non-reading of evidence had been pointed out in the impugned judgment and decrees passed by the courts below---Second appeal was dismissed in circumstances.

Sardar Khan v. Ghulam Hussian and 31 others 2003 YLR 1788; Haji Muhammad Hussain and others v. Malik Fateh Muhammad and others PLD 1953 Baghdad-ul-Jadid 10; Khisro Nawaz Khanimullah and others PLD 1962 Pesh. 124; Bindhyachal Chand and others v. Ram Gharib Chand and others AIR 1934 Allahabad 993 and Abdul Latif and others v. Nawab Khajeh Habibulla and others AIR 1939 Calcutta 354 ref.

Haji Muhammad Hussain and others v. Malik Fateh Muhammad and others PLD 1953 Baghdad-ul-Jadid 10 rel.

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

----Art. 142---Specific Relief Act (I of 1877), S. 8---Suit for possession of immovable property--- Limitation, determination of---Scope---Limitation for filing a suit for possession of an immovable property was twelve years from the date of dispossession or discontinuance of possession---Determining factor for limitation was the date of dispossession or discontinuance of possession---To establish such discontinuance of possession it must be shown that the owner had withdrawn the intention of abandoning the property and the gap was filled in by another person who had come to occupy in consequence of such withdrawal.

Feroz Din Khan v. Muhammad Latif Khan and 5 others PLJ 2012 SC (AJ&K) 46; Maqsood Hussain Shah v. Noor Hussain Shah and 3 others PLD 1989 SC (AJ&K) 45 and Dewan Ali Khan v. Jahandad Khan and others 1995 SCR 116 rel.

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

----S. 100---Second appeal---Scope---High Court while considering second appeal should not interfere with the concurrent findings of facts recorded by the courts below unless such findings on question of facts were either result of misreading of evidence or any material piece of evidence available on the record.

Abdul Majeed Mallick and Sardar Muhammad Azam Khan for Appellants.

Ghazala Haider Lodhi for Respondents.

Nemo for pro forma Respondents.

2015 Y L R 991

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD ABID---Appellant

Versus

MUHAMMAD BASHIR alias BASHIR AHMED and another---Respondents

Civil Appeal No.141 of 2005, decided on 8th December, 2014.

(a) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK)---

----Ss. 4, 6 & 20-A---Suit for right of prior purchase (pre-emption)---Requirements---Improvement in the status of vendee---Scope---Pre-emptor should be in possession of right of prior purchase at three stages i.e. at the time of sale, institution of suit and the date of decree---Exchange deed and mutation executed in favour of vendee after institution of suit were not permissible under the law---Improvement in the status of vendee after institution of suit would not affect the right of pre-emptor---Appellate Court had failed to consider the controversy in accordance with law while holding that defendant had preferential right viz-a-viz to the plaintiff---Appreciation of evidence was the responsibility of the court which was lacking in the present case---Documentary evidence had been misread by the Appellate Court---Vendee had failed to prove that improvement in his status was prior to institution of suit---Preferential right could not be claimed on the basis of document obtained for improvement of status of vendee during pendency of the lis---Pre-emptor, in the present case, had been a co-sharer in the suit land on all the three stages and it could not be said that he was not entitled to a decree for possession on the basis of right of prior purchase---Defendant was not a co-sharer in the suit land and he had no preferential right over the pre-emptor---Impugned judgment and decree passed by the Appellate Court were vacated and those of Trial Court were restored---Pre-emptor was directed to deposit the decretal amount fixed by the Trial Court within a period of two months failing which the suit was to be deemed to have been dismissed---Second appeal was accepted in circumstances.

Aqal Hussain v. M. Aslam Khan PLD 2004 (AJ&K) 17; 1996 SCMR 598 and 2014 SCR 789 ref.

Aqal Hussain v. M. Aslam Khan PLD 2004 (AJ&K) 17; M. Rashid v. M. Khaliq and 3 others 2001 CLC 1124 and Fazal Daad v. Khadim Husain and another 1995 MLD 1299 rel.

(b) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK)---

----Ss. 4 & 6---Suit for right of prior purchase (pre-emption)---Requirements---Pre-emptor should be in possession of right of prior purchase at three stages i.e. at the time of sale, institution of suit and the date of decree.

Nisar Anjam for Appellant.

Manzoor Hussain for Respondents.

2015 Y L R 1171

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

QASIM ALI and others---Petitioners

versus

ADDITIONAL DISTRICT JUDGE, RAWALAKOT and 2 others---Respondents

Writ Petitions Nos.11 to 19 of 2013, decided on 28th November, 2014.

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

----Ss. 42 & 39---Suit for declaration and cancellation of document---Scope---Declaration could be claimed along with cancellation of document as its consequential relief and cancellation of any instrument could be claimed independently without going for declaration---Cancellation of document did not require declaration every time.

(b) Court Fees Act (VII of 1870)---

----S. 7---"Ad Valorem"--- Meaning.

Black's Law Dictionary, Law Dictionary by Dr. Tanzeel-ur-Rehman and Rafiq's Law Dictionary rel.

Barrister Adnan Nawaz Khan for Petitioners.

Sardar Suleman for Respondents.

2015 Y L R 1362

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

JAVED and 19 others---Appellants

versus

ABDUL RASHID and 4 others---Respondents

Civil Appeal No.156 of 2010, decided on 14th October, 2014.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31---Specific Relief Act (I of 1877), S. 42---Unregistered sale deed---Admissibility---Suit for declaration---Judgment in appeal---Points for determination---Scope---Appellate Court being an equal court of facts should discuss and decide each and every issue---Appellate Court had not decided the controversy issue-wise which was mandatory for the said court---Unregistered sale deed was not admissible---Case of remand had been made out---Impugned judgment and decree passed by the Appellate Court was set aside and case was remanded for issue-wise decision afresh within a specified period---Second appeal was accepted in circumstances.

1993 SCR 338; 2012 CLC 1274; 1993 CLC 109; 1992 CLC 435; PLD 1983 SC AJ&K 89 and PLD 1978 SC AJK 33 ref.

2012 CLC 1274; 1992 CLC 435 and Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others 1999 MLD 824 rel.

Syed Nazir Hussain Kazmi for Appellants.

Muhammad Sagheer Javed for Respondents.

2015 Y L R 1768

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

TAHIR MAHMOOD---Petitioner

versus

ABDUL SALAM and 6 others---Respondents

Civil Revision No.4 of 2013, decided on 27th January, 2015.

Civil Procedure Code (V of 1908)---

----O.IX, Rr.3 & 9---Limitation Act (IX of 1908), Art. 163---Dismissal of suit for non-prosecution---Date of hearing---Scope---Suit was dismissed for non-prosecution on the date fixed for filing written statement--- Plaintiff filed application for restoration of suit after eight months which was dismissed on grounds of limitation---Validity---Suit might be dismissed if neither party had appeared on the date of 'hearing' which would be defined as date on which court would examine record of pleadings to understand contentions of pleadings or date on which issues were formulated---Date fixed for filing written statement was not to be termed as date of hearing---Revision was allowed, in circumstances.

PLD 1975 SC 678; PLD 1982 AJ&K 54; 1991 CLC 1766 and 1987 SCMR 733 rel.

2005 SCR 23 ref.

Raja Masood Khan for Petitioner.

Raja Muhammad Saeed Khan for Respondents.

2015 Y L R 1850

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., M. Tabassum Aftab Alvi and Azhar Saleem Babar, JJ

CHINA INTERNATIONAL WATER AND ELECTRIC CORP. (CWE) through General Manager---Petitioner

versus

POWER DEVELOPMENT ORGANIZATION, AZAD JAMMU AND KASHMIR through Secretary and 3 others---Respondents

Writ Petition No.24 of 2015, decided on 24th March, 2015.

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

----S. 44---Writ petition---Invitation of bids---Successful bidder---Withdrawal of letter of acceptance---Petitioner was black-listed before execution of contract due to its misconduct---Petitioner had failed to challenge the vires of said order before appropriate forum to get rid of its effects which had attained finality---Petitioner (a company) had lost its credibility and confidence---Authorities were directed to re-tender the project and complete the same as soon as possible---Writ petition was dismissed in circumstances.

Muhammad Khurshid and another v. Secretary Education Schools and 4 others 2011 SCR 175; Collector Federal Excise and Sales Tax and 4 others v. Messrs Hilton Tobacco Company (Pvt.) Ltd. 2011 SCR 93; Manzoor Begum v. Haji Fazal Ellahi 2012 YLR 2152; Azad Government and others v. Neelum Flour Mills Muzaffarabad 1992 SCR 381; A.K. Trading Corporation v. Messrs Z.H. Construction and 2 others PLD 1998 SC (AJ&K) 7 and AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others 2014 SCR 282 ref.

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

----S. 44---Writ jurisdiction of High Court, invocation of---Scope---Writ jurisdiction of High Court could be invoked to enforce an obligation or duty vested in a public functionary or a statutory body performing function with regard to the affairs of the State or Local Authority.

Javed Iqbal v. PASSCO and another 2004 CLC 478 and Government of Pakistan v. Messrs Shoaib Bilal Corporation and 2 others 2004 CLC 1104 rel.

(c) Administration of justice---

----No adjudication could be made in absence of necessary party.

Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214 and Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161 rel.

(d) Pleadings---

----Party could not be allowed to argue case against its pleadings.

Azad Government and others v. Qamar-uz-Zaman Khan Niazi 1993 SCR 9; Muhammad Hussain v. Abdul Majid and others 1993 SCR 319 and Sheikh Javed Iqbal v. Muhammad Bashir and 5 others 2010 SCR 208 rel.

Mushtaq Ahmed Janjua for Petitioner.

Khalid Rasheed Chaudhry for Respondents Nos. 1 to 3.

Nemo for Respondent No.4.

2015 Y L R 2091

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

GUL EJAZ and 4 others---Petitioners

versus

WAPDA, LAHORE and 5 others---Respondents

Writ Petition No. 89 of 2008, decided on 10th June, 2015.

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

----S. 44---Writ petition---Non-impleadment of necessary party---Effect---Grouse of petitioners, if any, seemed against the Committee for acquisition of land which had not been impleaded party in the line of answering respondents---Writ petition due to non-joinder of necessary party was bad in law which was dismissed in circumstances.

Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153; Khalil Ahmed Aqeel v. Member Board of Revenue and 3 others 2004 PLC (C.S.) 949; Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214 and Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161 rel.

Nazir Ahmed Ghori for Petitioners.

Zakria Bhatti and Sidra Latif for Respondents.

2015 Y L R 2152

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., Sardar Abdul Hameed Khan and

Chaudhary Jahandad Khan, JJ

Raja ABDUL QAYYUM KHAN---Appellant

versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary Muzaffarabad and 2 others---Respondents

Civil Appeals Nos. 52 and 80 of 2012, decided on 8th April, 2015.

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

----Ss. 18, 23, 24 & 4---Reference to court---Compensation, assessment of---Preponderance of probability of facts---Equity and frugality---First notification for acquisition of land was issued in the year 2006 but landowner continued to enjoy the right of utilization of property and made some improvements on the subject property---Landowner was entitled to compensation for such improvements---No one could be deprived from utilizing his own property as per his own choice---Construction work of the shops was completed in the end of year 2007 and second notification for acquisition of land was issued in the year 2008---Referee Judge had erred in giving findings to the effect that some shops were built after issuance of notification for acquisition of suit property---Said shops were rented out before the issuance of second notification for acquiring land---Referee Judge had misread the evidence and had not considered such fact as per its requirement---Sanction of Collector to claim compensation for improvements in property was neither necessary nor condition precedent as possession remained with the land-owner---Suit property was of vital importance and also of high value---Claim of land owner had to be given due weight when he was being deprived of such valuable property which was his source of income---Landowner should be specifically compensated to have alternate source of income and accommodation when he had to depart for ever from his property---Compensation should be assessed keeping in mind the price demanded by the landowner along with other allied matters---Collector was only empowered to assess the market value of the land to be acquired---Referee Judge had not considered the statement of landowner in its true perspective that he had raised construction at his own and not by any contractor---Trial Court had ignored the principle of preponderance of probability of facts for appreciating evidence---Landowner had amply proved his claim but Trial Court had failed to appreciate the evidence/record properly---Structure/buildings/shops/hotel/plaza stood proved before the issuance of notification for acquisition of property in question---No deduction was permissible in circumstances under the law---Landowner had claimed total income of rent etc. as Rs. 188000 per month and same had been proved and was justified---Landwner was entitled to receive the compensation amount of built up structure/property at the rate of Rs. 1500/ sq. ft along with compulsory acquisition charges @ 15 % which was calculated as Rs. 2,12,31,000--Impugned judgment and decree were modified accordingly---Appeal filed by the landowner was accepted whereas that of department was dismissed---Defendant-department was directed to ensure payment of enhanced compensation amount after calculation and deduction of the amount already paid within a specified period.

1999 SCMR 1647; PLJ 2009 SC (AJ&K) 28; 2014 MLD 179; PLD 2009 SC 16; 2013 SCR 70; 2009 SCR 320 and 2008 SCR 505 ref.

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

----O. III, R. 2---Appeal filed through unauthorized agent---Competence---Legal advisor of the department had not been authorized by the competent authority/ statutory body for filing of appeal---Appeal was incompetent in circumstances.

Abubakar Saley Mayet v. Aboard Laboratories and another, 1997 CLC 367 rel.

Raja Muhammad Hanif Khan for Appellant/Respondent.

Syed Mushtaq Hussain Gillani for King Abdullah University.

2015 Y L R 2319

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

AMEER BAZ and another---Petitioners

versus

AZAD JAMMU AND KASHMIR BOARD OF REVENUE through Secretary Board of Revenue and 2 others---Respondents

Writ Petition No.1440 of 2014, decided on 4th June, 2015.

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

----S. 44---Writ petition---Competence---Correction of revenue record---Necessary party, non-impleadment of---Effect---Laches, principle of---Review petition was pending adjudication before the revenue authority but such fact had been suppressed in the present writ petition---Writ petition had been filed after a period of nine months which was hit by laches---Public functionaries who passed the impugned order had not been arrayed in the line of respondents---Present matter was with regard to correction of record which had been decided by the Tribunal of exclusive jurisdiction---Writ petition being incompetent, was dismissed.

2004 SCR 328 (sic) and 2003 YLR 346 ref.

1995 MLD 1350; PLD 2011 AJ&K 17; 1999 SCR 214(sic) and PLD 1985 SC AJ&K 10 rel.

Muhammad Yaqoob Khan Mughal for Appellants.

Barrister Humayun Nawaz Khan for Respondents.

Ch. Shaukat Aziz, A.A.-G. for Respondents Nos. 1 and 2.

2015 Y L R 2427

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Captain (R) Raja MUHAMMAD ILYAS KHAN, and 3 others---Appellants

Versus

ASAD ULLAH KHAN and 15 others---Respondents

Civil Appeal No.119 of 2012, decided on 10th May, 2014.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---West Pakistan Land Revenue Act (XVII of 1967), S. 147---Suit for declaration--- Limitation--- Family/private partition---Scope---Impugned document claimed to be deed of family/private partition was neither a partition deed nor it would operate among all the co-sharers--­Partition privately effected was subject to affirmation by the competent Revenue Officer---Impugned Punchayat Nama was not a legal document upon which no relief could be granted to the plaintiffs---Partition deed, in the present case, was neither an admitted document nor an affirmed deed by the revenue authorities---Said document would carry no value and create no right in favour of plaintiffs nor could deprive the defendants from their lawful rights for seeking partition from the revenue authorities---Defendants were co-sharers in the suit property-One who had alleged must prove the same---Suit of plaintiff was time barred---Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed---Second appeal was dismissed in circumstances.

2002 CLC 1244; 2005 SCR 286; 2009 SCR 38; 2001 MLD 493; 1999 YLR 1253; PLD 1952 Dacca 214; 1993 CLC 233; PLD 1986; SC AJK 109; 2007 SCMR 497; 2005 MLD 168; 2005 CLC 658; 2007 SCR 491; 2007 CLC 1089; 2004 SCR 84; 2005 SCR 322; 1999 MLD 824; PLD 2007 SC (AJ&K) 63 and 2003 YLR 683 ref.

2001 MLD 364; 2006 SCR 186; 2013 MLD 201 and 2013 CLC 148 rel.

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

----S. 100---Second appeal---Scope--- Concurrent findings could not be interfered by the High Court in second appeal unless document brought on record was erroneously interpreted or admitted in evidence or misread by the courts below.

Raja Rafi Ullah Sultani for Appellants.

Riaz Naveed Butt for Respondents.

2015 Y L R 2678

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD AYUB KHAN---Appellant

Versus

MUHAMMAD AZAD KHAN and 2 others---Respondents

Civil Appeal No.103 of 2012, decided on 22nd June, 2015.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31, O. XX, R. 5 & O. VII, R. 11---Qanun-e-Shahadat (10 of 1984), Arts. 54 & 111---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Judgment on each issue---Scope---Contention of plaintiff was that Trial Court had not discussed the evidence on each issue---Suit was dismissed concurrently---Validity---Most of the evidence, in the present case, was documentary evidence---Documents placed on record were the judgments of the courts of which court could take judicial notice---Such documents did not need to be formally proved---Previous judgments were relevant to bar a second suit/trial---Allegation of fraud or collusion for obtaining judgment or incompetence of court could be proved but judicial order need not to be proved---Formalities of delivering judgment on each issue would become of a secondary importance when court took judicial notice---Issues and relevant facts must be proved by evidence either oral or documentary except when same was judicially noticeable or admitted---Father of plaintiff had previously withdrawn his claim after receiving cost of the suit---Both the parties were co-sharer and they had approached the revenue authorities for partition of their landed property---Suit of the plaintiff was dismissed/rejected under O. VII, R. 11, C.P.C.---Sufficient evidence was available on record to dispose of the case on merits---Remand of the case on the basis of technicalities or some infirmities even if found was not justified---Formal quotation of evidence for resolution of issue was of no importance as no evidence had been produced by the plaintiff to prove fraud or collusion---Mere assertion that father of plaintiff was an illiterate person could not take place of evidence of fraud or collusion---Plaintiff had stepped into the shoes of his father and he was bound by judicial acts of his father/predecessor-in-interest---Plaintiff had failed to prove the issues as alleged in the pleadings---Resolution on each issue was not necessary in circumstances---No mis-reading or non-reading of evidence or mis-construction of law had been pointed out by the plaintiff---Second appeal was dismissed in circumstances.

2012 CLC 1274; 2014 MLD 1340; 2014 MLD 1759 and 2015 MLD 470 distinguished.

2013 CLC 1013 rel.

Sardar Muhammad Ejaz Khan for Appellant.

Sakandar Raja for Respondents.

2015 Y L R 81

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Ch. SAJID MEHMOOD---Petitioner

Versus

INSPECTOR GENERAL OF POLICE, I.C.T., ISLAMABAD

and 3 others---Respondents

Writ Petition No.3019 of 2012, decided on 17th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 539-B & 550---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Stolen vehicle--Local inspection---Magistrate, powers of---Vehicle in question was owned by petitioner and police had taken the same into possession on suspicion of being stolen---Plea raised by petitioner was that police might have tampered engine and chassis number---Validity---Court or Magistrate was empowered under S.539-B, Cr.P.C. to inspect place of incident, the place where vehicle was parked and to inspect vehicle to the extent of apprehensions extended---If such tampering was found, further direction could be issued for its examination through Forensic Science Laboratory---Magistrate had important role, as a supervisory administrator over police functions, therefore, any proper order could be passed by Magistrate to supervise proceedings initiated by police while seizing vehicle under S. 550, Cr.P.C. because ultimately report had to be submitted to Court concerned for its final disposal---Remedy was available to petitioner for redressal of his grievance, therefore, instead of preferring Constitutional petition, petitioner should have approached concerned Illaqa Magistrate---Petition was dismissed in circumstances.

Dr. Babar Awan for Petitioner.

2015 Y L R 831

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

IMRAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.128-B and 117-B of 2014, decided on 15th April, 2014.

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, common object---Bail, grant of---Further inquiry---Allegation against one accused was of raising 'Lalkara' while armed with 'Danda'---No other role had been assigned to said accused except that he was alleged to have caused Danda blow to deceased---Such allegation was not supported by medical evidence/postmortem report---Case of accused required further inquiry into his guilt, he was admitted to bail---Another accused as per cross version, was also injured and had been shown at the scene of incident armed with deadly weapon along with other unknown person---Said accused was alleged to have caused butt blow on the head of injured which injuries were later on opined by the Medico Legal Officer as falling under Ss.337-A(i) & 337-A(ii), P.P.C.---Medical Board finally formed an opinion that possibility of self-inflicted wound, could not be ruled out---Allegation against said accused being limited to the extent of offence falling under S.337-A(i), P.P.C., such offence by itself was punishable for two years and same was bailable---No hard and fast rule existed for considering bail to both the parties in cross cases but under some peculiar circumstances, that could be exercised where circumstances prevailed for considering such aspects---Said accused was also admitted to bail, in circumstances.

2008 PCr.LJ 1; 2007 PCr.LJ 917; 2000 PCr.LJ 1229 and 2005 PCr.LJ 596 ref.

Raja Muhammad Nadeem Kiyani for Petitioner No.1.

Raja Rizwan Abbasi for Petitioner No.2.

Sana Ullah Zahid, DAG and M. Ashraf, S.I. for the State.

2015 Y L R 877

[Islamabad]

Before Athar Minallah, J

MUHAMMAD SHAFIQUE BUTT and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous. No.442-B of 2014, decided on 5th August, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss.500, 501, 504 & 505(2)---Defamation, printing or engraving matter knowing to be defamatory, intentional insult with intent to provide breach of Peace, publishing or circulating any statement or report containing rumour or alarming news---Bail, grant of---FIR and the record did not reveal that in the facts of the case, S.505(2), P.P.C. would be attracted, so as to bring the same within the purview of prohibitory clause of S.497, Cr.P.C.---Other offences included in the FIR i.e. under Ss.500, 501 & 504, P.P.C., were of the category which fell within the purview of non-prohibitory clause of S.497, Cr.P.C.---Where offences would fall within the non-prohibitory clause, granting of bail, had to be considered favourably as a rule, but could be declined in exceptional cases---Trial Court ought to have considered the principle of granting of bail favourably as a rule, rather than being influenced or swayed by the nature of the allegations, which would tantamount to pre-judging the case, and treating the offences beyond the scope determined by the legislature---When the legislature, had clearly intended to make the offences under Ss.500, 501 & 504, P.P.C. as falling within the purview of non-prohibitory clause of S.497, Cr.P.C., it was beyond the jurisdiction or power of the court to take a contrary view---Accused persons being entitled to grant of bail, were released on bail.

Mir Shakeel-ur-Rehman v. Yahya Bakhtiar and others PLD 2010 SC 612; Imran v. The State 2011 PCr.LJ 865; Muhammad Ali Kazi and another v. The State and 3 others 1994 PCr.LJ 430; Abdul Aziz v. The State 1993 MLD 2045; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Subhan Khan v. The State 2002 SCMR 1797; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Riaz Jafar Natiq v. Muhammad Naeem Dar and others 2011 SCMR 1708 ref.

(b) Constitution of Pakistan---

----Art. 10-A---Fair trial---Fundamental right---Justice must not only to be done, but must be seen to have been done---Any perception of impartiality or bias, even if not a reality, would certainly prejudice the right to a free trial of accused---Confidence in the court; and assurance of a fair trial, was a prerequisite for the dispensation of justice; and pivotal for creating public confidence and trust in the judiciary---Independence of Judiciary, would entail, that the trial or adjudication was through courts, which were competent, independent and impartial---Duty of the courts to maintain said public confidence and independence, could only be achieved when it not only would ensure a fair trial, but also would create an environment and perception of a fair trial---Not only actual bias, but the perception of bias would also raise questions regarding the impartiality of the court and would prejudice a fair trial---Bias was the overriding factor for ascertaining a court's impartiality---Ques-tions regarding bias, could be raised, if the court would make it evident through its conduct, observation, opinions or other-wise that it had a stake in the proceedings--Bias would ultimately weigh while concluding the trial, raising questions about impartiality---Person was presumed to be innocent until proved guilty; and the guilt could be proved only on the touchstone of proof beyond a shadow of doubt---Right to a fair trial, and due process had been declared as the corner-stone of the administration of justice, in the sense that regardless of the nature of the allegations, every accused would be entitled to the process of law, and would be presumed innocent until proved guilty---Bias would vitiate the proceed-ings, if such circumstances were created by the court.

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and others (1968) 3 All ER 304; Zahira Habibullah H. Sheikh v. State of Gujarat and others (2004) 4 SCC 158; Sarfraz Saleem v. Federation of Pakistan and others PLD 2014 SC 232; Suo Motu Action PLD 2012 SC 664; PLD 2012 SC 553; Nazeer alias Wazeer v. The State PLD 2007 SC 202; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; Ahmed Omar Saeed Shaikh and 3 others v. The State 2002 SCMR 1562 and Ch. Muhammad Ashraf Gujjar and others v. Malik Riaz Hussain and others 2013 SCMR 161 ref.

(c) Bias in a Judge---

----Scope.

(d) Administration of justice---

----Independence of judiciary---Indepen-dence of judiciary is measured by the conduct of the presiding judge in guaranteeing the right to fair trial and giving decisions without fear or favour.

Ilyas Siddiqui for Petitioners.

Malik Faisal Rafique, Deputy Attorney General.

Khalid Mehmood Awan, S.H.O. Police Station Abpara.

Abdur Razzaq, S.I./I.O., Police Station Aabpara.

2015 Y L R 998

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Col. (R) JAVED AGHA and others---Petitioners

Versus

ARSHAD MEHMUD and others---Respondents

Writ Petitions Nos.1337 of 2001, 2209 of 2008, 2175 of 2009, 4032 of 2010, 1790 of 2011, 1753 to 1757, 1799, 1908, 2038, 2744 of 2012, 2098, 3249, 3250, 4360, 4507 of 2013, 313, 1203, 2025, 2165, 2239 and 4056 of 2014, decided on 21st January, 2015.

(a) Capital Development Authority Ordinance (XXIII of 1960)---

----Ss. 46 & 49(c)---Constitution of Pakistan, Arts. 25 & 199---Constitutional petition---Non-conforming use of building---Conversion of residential houses into guest houses---Petitioners were aggrieved of notices issued to them for converting their residential houses into guest houses for commercial purposes---Plea raised by petitioners was that they had been discriminated and it was their source of livelihood---Validity---Basic law on the subject which regulated reservation of land, development of land, allotment of land, construction of building and use of building in Capital Territory under Capital Development Authority Ordinance, 1960, provided no room for establishment of guest houses in residential buildings---If petitioners wanted to protect source of their livelihood they had option to purchase land from commercial centers and to establish their hotels and guest houses in those areas and then the State would protect their rights to livelihood and nobody was supposed to interfere in that process---Petitioners failed to point out any illegality in order passed by authorities who were proceeding in accordance with law to implement rules and regulations---One wrong could not justify other wrong if some persons who had been using residential buildings for commercial purposes had not been proceeded against no advantage or concession could be extended in favour of petitioners on such score---Business of petitioners might be lawful but places where the businesses had been started were not meant for business and such restriction imposed by government through Capital Development Authority Ordinance, 1960, and regulations framed thereunder were lawful restrictions in the supreme welfare of inhabitants---Mess of non-conforming use had disrupted civic fiber in the city, manipulated master plan of the capital and infringed fundamental rights of inhabitants increasing violation had posed serious threats and enhanced diminishing law and order situation---High Court directed the authorities to act in accordance with law, justice, fairness and honesty by enforcing laws and regulations---Petition was dismissed in circumstances.

PLD 2011 SC 44; PLD 2013 Lah. 693; PLD 2007 SC 642; PLD 2011 Isl. 36; Seeds High School through Project Director v. Government of Pakistan PLD 2004 Lah. 305 and PLD 2011 SC 44 ref.

(b) Constitution of Pakistan---

----Art. 25---Discrimination---Principle---Mere differentiation and inequality in treatment does not per se amount to discrimination as it is necessary to show that selection or differentiation is unreasonable or arbitrary.

Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1993 Kar. 631 rel.

Syed Naeem Bukhari, Advocate Supreme Court and Ijaz Janjua for Petitioners (in Writ Petitions Nos. 1337 of 2001, 1790/2011).

Mian Tahir Iqbal and Ms. Asma Shabbir Malik for Petitioners (in Writ Petitions Nos.2209/2008 and 2175 of 2009).

Samad Mehmood for Petitioners (in Writ Petitions Nos. 1753, 1754, 1755, 1756, 1757, 1799, 1908, 2038 and 2744 of 2012, 1203, 2239 and 313 of 2014).

Mussarat Abbas Siddiqui for Petitioners (in Writ Petitions Nos. 3249, 3250, 4360 and 4507 of 2013).

Naveed Malik for Petitioners (in Writ Petition No.2098 of 2013).

Barrister Saad M. Hashmi for Petitioners (in Writ Petitions Nos.2025 and 2165 of 2014).

Waseem Abid for Petitioners (in Writ Petition No.313 of 2014).

Haseeb Muhammad Ch. for CDA (in Writ Petitions Nos.3249, 3250, 4360, 4507 of 2013 and 313, 1203, 2165 and 2238 of 2014).

Rehan Seerat Legal Advisor and Raja Adnan Aslam for CDA.

Malik Javid Iqbal Wains for Respondents (in Writ Petition No.2274 of 2012).

Syed Husnain Ibrahim Kazmi, DAG.

Yousaf M. Qureshi, S.C.

Ali Raza Advocate Supreme Court, Sardar M. Ishaq Khan and Wasim Abid for Petitioner (in Writ Petition No.4056 of 2014).

Dates of hearing: 8th, 11th, 18th September, 2014 (in Writ Petition No.4056 of 2014).

2015 Y L R 1132

[Islamabad]

Before Athar Minallah, J

MEHTAB AHMED---Petitioner

versus

The STATE and others---Respondents

Criminal Miscellaneous No.461-B of 2014, decided on 16th September, 2014.

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

----S. 497(1), proviso third---Bail, grant of---Statutory ground of delay---Principle---Proviso third to S.497(1), Cr.P.C., had provided that a person charged with an offence punishable with death, was as of right entitled to be released on bail, if he had been detained for such an offence for a continuous period, exceeding two years---Such was subject to certain conditions; firstly; the court had to form an opinion that the delay in the trial of accused had not been occasioned by accused, or due to omission attributed to the person acting on his behalf; secondly accused was a previous convicted offender for an offence punishable with death, or imprisonment for life; thirdly, accused was not in the opinion of the court, a hardened, desperate or dangerous criminal; and he was not accused of an act of terrorism punishable with death or imprisonment for life.

Nazir Hussain v. Zia ul Haq and others 1983 SCMR 72; Sher Ali alias Sheri v. The State 1998 SCMR 190; Akhtar Abbas v. State PLD 1982 SC 424; Moundar and others v. The State PLD 1990 SC 934; Abdul Rashid v. The State 1998 SCMR 897; Zahid Hussain Shah v. The State PLD 1995 SC 49 and Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358 rel.

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

----S. 497(1), proviso third---Penal Code (XLV of 1860), Ss.302 & 34---Constitution of Pakistan, Art.10-A---Qatl-i-amd, common intention---Bail, grant of---Trial in the case had been delayed, which was attributed to, either the State or the complainant---Right to a fair trial was guaranteed under Art.10-A of the Constitution; and the most essential constituent of a fair trial was to conclude the same expeditiously and without delay---Right to a fair trial was not merely restricted to accused, but the complainant as well---Purpose of avoiding delay, was to ensure that the sanctity of the proceedings remained protected, which inherently included securing credible evidence---Delay would defeat the ends of justice, and could seriously undermine the possibility of a fair trial---Delay in a trial, would result in an inherent risk of undermining and eroding the credibility of the evidence--Edifice of criminal law, was premised on the principle that trial must be concluded within a reasonable time and without unnecessary delay---In the present case, when the accused stated before the court that he did not have the means to engage a counsel, Trial Court appointed counsel on two occasions at State expense, but said counsel did not put up appearances for a period of more than two years---Accused could not be held responsible for any delay due to non-appearance of counsel, appointed by the court---Once the court would appoint a counsel at State expense, it was to ensure that the counsel, not only performed his/her duty, but was effective to the satisfaction of the court---Accused had neither any previous conviction, nor a criminal history, he was admitted to bail in circumstances.

Ahmad Hussain v. State 2008 MLD 1061; Abdul Razak Zangejo v. State PLD 2012 Sindh 218; Zia ud Din v. State PLD 2012 Sindh 147; Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720; Dar Okaz Printing and Publishing Ltd. Liability Company v. Printing Corporation of Pakistan Pvt. Ltd. PLD 2003 SC 808; Fida Hussain v. The State and others PLD 2002 SC 46; Mounder v. The State PLD 1990 SC 934 and Jafar and Jafari v. The State 2012 SCMR 606 ref.

Malik Ameer Dad Awan for Petitioner.

Raja Aftab Ahmed for the Complainant.

Malik Zahoor Ahmad Awan, Standing Counsel.

Akram S.I. with record.

2015 Y L R 1167

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

COMMISSIONER OF INCOME TAX/WEALTH TAX COMPANIES ZONE---Applicant

versus

Ms. FAHMIDA HAMID---Respondent

Tax Reference No.66 of 2004, heard on 12th February, 2015.

Income Tax Ordinance (XLIX of 2001)---

----S. 133---Reference to High Court---Exercise of jurisdiction of High Court under S. 133 of the Income Tax Ordinance, 2001---Scope---Question of law and question of general public importance--Jurisdiction of the High Court as provided in S. 133 of the Income Tax Ordinance, 2001 was to decide a question of law arising out of a decision of the Income Tax Appellate Tribunal---Said questions of law that needed to be addressed by the High Court under S. 133 of the Income Tax Ordinance, 2001 should not only arise out of the decision of the Income Tax Appellate Tribunal but also should be of general public importance for future reference and should not be confined to the controversy---Questions of law framed, in the present case, were not questions of law and that of general public importance, but were rather questions of fact---Applicant Department could not point out any question/issue which was raised before the Income Tax Appellate Tribunal and had not been dealt with in its decision---Reference was dismissed, in circumstances.

The Commissioner of Income Tax Lahore v. Messrs Immion International Lahore 2001 PTD 900 rel.

Hafiz Munawar Iqbal for Applicant.

Akhtar Hussain for Respondents.

Date of hearing: 12th February, 2015.

2015 Y L R 1260

[Islamabad]

Before Aamer Farooq, J

Haji ABDUL RASHEED RAJPUT---Petitioner

versus

MUHAMMAD YAQOOB and 7 others---Respondents

Civil Revision No.18 of 2015, heard on 26th February, 2015.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaint, rejection of---Scope---Plaint was rejected on the basis of statement of defendants that they had no concern with the suit property---Validity---Court could reject plaint if same did not disclose a cause of action---Contents of plaint were to be examined only while deciding whether plaintiff had cause of action in his favour or not---Courts below, in the present case, had acted with material irregularity in exercise of their jurisdiction while rejecting the plaint---Controversy could only be adjudicated by recording evidence in the matter as plaintiff was still insisting that cause survived in his favour---Impugned orders were set aside---Revision was accepted in circumstances.

Malik Manzoor Elahi v. Zulfiqar Ali and 2 others 2007 MLD 2012 rel.

Muhammad Nazir Jawad for Petitioner.

Muhammad Ishtiaq Ahmed Raja and Ch. Hafiz Ullah Yaqoob for Respondents.

Date of hearing: 26th February, 2015.

2015 Y L R 1348

[Islamabad]

Before Aamer Farooq, J

Mst. NASEEM FATIMA---Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and 4 others---Respondents

Civil Revision No.36 of 2015, decided on 11th March, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Specific Relief Act (I of 1877), S. 42---Transfer of Property Act (IV of 1882), S.52---Suit for declaration---Application for impleadment as a party---Lis pendens, doctrine of---Scope---Contention of applicant was that he was a bona fide purchaser of suit property---Application for impleadment as a party was accepted---Validity---Suit property was transferred during the pendency of suit---Doctrine of lis pendence was applicable and interest acquired by the applicant was subject to outcome of the suit---Where a purchaser had bought property during pendency of suit he was not a necessary party---Trial Court, while accepting the application for impleadment had not given reasons, however discretion under O.I, R.10, C.P.C. was exercised justly---No jurisdictional error was pointed out in the impugned order passed by the Trial Court---Revision was dismissed in circumstances.

Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024; Atta Muhammad v. Muhammad Sharif 2010 YLR 3242; Noor Muhammad and 5 others v. Muhammad Ishaq and another 2006 YLR 1223; Khalid Mahmood v. Najib Khan and 2 others 2002 CLC 1160 and Abdul Majeed v. Abdur Rashid and 3 others 2006 CLC 814 ref.

Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024; Atta Muhammad v. Muhammad Sharif 2010 YLR 3242; Khawaja Zia ul Islam v. Alaudin Malik 2010 CLC 273; Mst. Ilyas Begum v. Pakistan Defence Officers Housing Authority PLD 2011 Kar. 281; Mst. Khaista Jan and others v. Hafiz ur Rehman and others 1984 SCMR 709; Rashid Ahmed v. Mst. Jiwan and 5 othes 1997 SCMR 171; Fazal Karim thorugh legal heirs and others v. Muhammad Afzal through Legal Heirs and others PLD 2003 SC 818; Muhammad Shahban v. Falak Sher 2007 SCMR 882 and Ghulam Ahmed Chaudhry v. Akbar Hussain PLD 2002 SC 615 rel.

Khurram M. Qureshi for Petitioner.

M. Nazire Jawad for Respondents Nos.1 to 3.

Hafiz Ali Asghar for Respondent No.5.

Date of hearing: 19th February, 2015.

2015 Y L R 1813

[Islamabad]

Before Shaukat Aziz Siddiqui, J

ALL PAKISTAN CNG ASSOCIATION through Authorized representatives---Petitioner

versus

PAKISTAN STATE OIL COMPANY LTD. through Managing Director---Respondent

Civil Suit No.334 and Arbitration Petition No.20 of 2010, decided on 17th April, 2015.

Arbitration Act (X of 1940)---

----Ss. 4(2), 17, 26-A & 30---Award---Objections---Remitting the award---Failure to give reasons---Effect---Dispute was with regard to fixing profit for Compressed Natural Gas (CNG) stations---Validity---Number of CNG stations were established by CNG licence holders in their premises without seeking help of Pakistan State Oil (PSO) or any other Oil Marketing Company, therefore, they could pay Sui Southern Gas Pipe Line (SSGPL) the rental charges as determined by Oil and Gas Regulatory Authority (OGRA)---In cases of CNG stations established with permission of PSO dealers in petrol pumps established by those dealers, rules and break-up of rental fee did not apply as with minimum of efforts such CNG license holders had establishing their links in running and establishing? petrol pumps and they could not be equated with such CNG stations which were established in independent premises and they had to start their business at their own without assistance of any other Oil Marketing Company---Arbitrator was to state in award sufficient reasons in sufficient detail under S. 26-A of Arbitration Act, 1940, to enable Court to consider any question of law arising out of award---Where award did not state reasons in sufficient detail, the Court could remit award to arbitrator or umpire fixing time within which arbitrator or umpire was to submit award back with reasons in sufficient detail---Arbitrator jumped to conclusion without providing grounds for such conclusion, therefore, the award was incomplete in all details and declaration of arbitrator that clause in question of the agreement warranted necessary clarification and interpretation and gross percentage mentioned therein or any other percentage for PSO and the dealers respectively was then to be read as ratio of share between PSO and dealers---Arbitrator did not make efforts to associate PSO dealers in arbitration proceedings but determined rights of PSO dealers which was a material irregularity---High Court declared the award by arbitrator liable to be remitted under S. 16 of Arbitration Act, 1940, as indefinite award and not capable of execution---Objection to illegality of award was apparent upon the face of it---High Court directed the arbitrator to reconsider the matter, to provide opportunity of hearing to PSO dealers and also to summon CNG licensee individually and then declare award within three months to be in conformity with all legal formalities including payment of stamp duty under Stamp Act, 1899---Suit was disposed of accordingly.

Dissolution of Contract in Islamic Law" by Mohammad Wohidul Islam, Arab Law Quarterly, Vol 13 No. 4 (1998) parties 336-368; PLD 1980 SC 122; PLD 2013 Lah. 289; Zafar Iqbal Jhagra's case PLD 2013 SC 224; 2006 YLR 589; 1987 CLC 2198; AIR 1955 Nag 116; 2009 MLD 1399; PLD 2002 Kar. 420; 2012 CLD 619; PLD 1978 Kar. 152; 1984 CLC 546; PLD 1976 Kar. 644; PLD 1988 SC 39; PLD 1971 SC 516; AIR 1949 Cal. 189 (DB); 2004 CLD 334; PLD 1967 Lah. 365; PLD 1980 SC 62; 1988 SCMR 1623; 1999 SCMR 2702; PLD 2003 Lah. 208; 2013 CLD 604; 2008 CLC 798; 1998 CLC 1671; 2002 MLD 171; PLD 1975 SC 463; PLD 198(sic) Kar. 38; 1985 SCMR 376; 1999 CLC 1777; PLD 2003 SC 301; 2013 CLD 1451; PLD 1958 (W.P.) Kar. 224; PLD 2006 SC 169; PLD 1996 SC 108; 2005 YLR 2709; PLD 1987 SC 461 and 2008 CLC 798 rel.

Babar Ali Khan for Petitioner (in C.S. No.334 of 2010).

Sardar Qasim F. Ali for Petitioner (in Arbitration Petition No.20 of 2010).

Barrister Babar Ali Khan for Respondent No.2 (in Arbitration Petition 20 of 2010).

Syed Javed Akbar Shah for Respondent (in C.M. Nos. 249 and 250 of 2014).

2015 Y L R 1886

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD ZAHID ASLAM---Petitioner

versus

Haji DILBAGH and 7 others---Respondents

Writ Petition No.1188 of 2014, heard on 12th May, 2015.

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

----S. 12(2)----Transfer of Property Act (IV of 1882), S. 52----Constitution of Pakistan, Art. 199---Constitutional petition---Suit for pre-emption---Subsequent purchaser (petitioner) as party to pre-emption suit---Rules---Transfer of property pending suit---Effect---Doctrine of lis pendens---Applicability---Application under S. 12(2), C.P.C.---Summary disposal--- Validity--- Respondent/pre-emptor filed suit for pre-emption, which was decreed by trial court---Petitioner had purchased part of suit property during pendency of the suit while injunctive order was in field---Petitioner, being bona fide purchaser for value without notice, filed application under S. 12(2), C.P.C. for setting aside judgment and decree, which was dismissed by trial court---Revisional court also declined any interference---Petitioner contended that trial court was bound to frame issues on his application filed under S. 12(2), C.P.C., and that he was necessary party in suit proceedings---Validity---Nothing was evident from record or allegations made in application under S. 12(2), C.P.C., that any fraud or misrepresentation was committed and/or impugned judgment and decree was obtained through concealment of facts---No allegations were levelled in the application to the effect that impugned judgment and decree was collusive and the same was obtained to deprive petitioner of his right in suit property---Was not essential for trial court to frame issues for leading evidence in application under S.12(2), C.P.C.---Under S. 52 of Transfer of Property Act, 1882, where property was purchased during course of litigation, with respect to suit property, purchaser would acquire title subject to result of litigation---Section 52 of Transfer of Property Act, 1882 was applicable to petitioner's case as he had purchased suit property during course of proceedings in the suit---Petitioner had not given in his application any details as to amount of consideration or effort taken by him to check that no litigation was pending with respect to the property---Subsequent vendee/petitioner was not necessary party in the suit for pre-emption---Nothing was available on record to show that impugned order passed by revisional court was without jurisdiction or suffered from legal infirmity---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan----

----Art. 199----Civil Procedure Code (V of 1908), S. 115---Constitutional petition against order of revisional court---Maintainability---Order passed by revisional court can be assailed in constitutional petition if the same is without jurisdiction or there is patent illegality in the order.

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

----S. 52----Transfer of property pending suit---Validity---Doctrine of lis pendens---Applicability-----Under S.52 of Transfer of Property Act, 1882, where property is purchased during course of litigation, with respect to suit property, purchaser acquires title subject to result of litigation.

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

----O. I, R. 10----Parties to suit for pre-emption---Subsequent bona fide purchaser for value without notice of litigation is not necessary party in the suit.

Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202; Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003; Sunni View Cooperative Housing Society v. Irshad Hussain and others 1993 CLC 2336; Muhammad Rauf Khan v. Muhammad Ashraf and others 2010 YLR 2178; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 909 and Muhammad Iqbal and others v. Khair Din and others 2014 SCMR 33 rel.

Raja Abid Hussain Janjua for Petitioner.

Ch. Zubair Mehmood Gujjar and Abdul Kamran Butt for Respondents.

Date of hearing: 12th May, 2015.

2015 Y L R 2116

[Islamabad]

Before Aamer Farooq, J

RAKSHANI BUILDERS (PVT.) LTD.---Plaintiff

versus

CAPITAL DEVELOPMENT AUTHORITY (CDA), ISLAMABAD through Chairman---Defendant

Civil Suit No. 1 of 2015, decided on 28th April, 2015.

Arbitration Act (X of 1940)---

----S. 20---Application to file Arbitration agreement in court---Arbitrator, appointment of---Scope---Execution of contract between the parties was on record---Dispute existed between the parties---Applicant had sent notice for amicable settlement of the matter and had raised therein its grievance---Applicant was entitled to give notice of arbitration and asked the respondent to nominate the arbitrator---Respondent was directed to file original contract in the court---Both the parties were directed to proceed with appointment of arbitrator within a specified period of time---Application for filing of arbitration agreement in the court was accepted in circumstances.

Project Director, Balochistan Minor Irrigation and Agricultural Development Project, Quetta Cantt. v. Messrs Murad Ali and Company 1999 SCMR 121; Messrs Crescent Steel and Allied Products Ltd. v. Messrs Sui Northern Gas Pipeline Limited and another 2013 CLD 1110; Messrs Global Energy and Commodity Exchange Group Italy SPA (GECX Group) and another v. Trading Corporation of Pakistan through Chairman and another 2013 CLD 681; 2013 MLD 1499; Lithuanian Airlines v. Bhoja Airlines (Pvt.) Ltd. and others 2004 CLC 544 and Chandmull Goneshmull v. Nippon Munkwa Kabushiki Kaisha AIR 1921 Cal. 342 rel.

Barrister Ehsan Ali Qazi for Plaintiff.

Tariq Mehmood Jahangeri and Muhammad Rizwan, Deputy Director (Road) CDA for Defendants.

2015 Y L R 2176

[Islamabad]

Before Aamer Farooq, J

Mst. SHAMIM AKHTAR---Petitioner

versus

Pirzada KHALIL UR REHMAN and 2 others---Respondents

Civil Revision Petition No.181 of 2014, decided on 11th June, 2015.

Islamic Law---

---Gift, revocation of---Scope---Gift could not be revoked when donor and donee were related within the prohibited degree---Impugned gift deed did not make the transaction as hiba-bashart-ul-iwaz rather it was an absolute gift in favour of plaintiff---Contents of document could not be negated/challenged through oral testimony---Findings recorded by the Trial Court as well as Appellate Court were based on misreading of evidence---Both the courts below had exercised jurisdiction with material irregularity---Impugned judgment and decree passed by the courts below were set aside and suit was dismissed---Revision was accepted in cir-cumstances.

Abdul Karim v. Muhammad Akram 1995 CLC 130; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi NLR 1990 SCJ 207; Jagat Singh Cholwal and another v. Dungar Singh (AIR (38) 1951 Allaabad 599 and Muhammad Aslam Khan and another v. Bashir Khan and others PLD 1975 Azad J & K 42 ref.

Bahadur Khan v. Mst. Niamat Khatoon and another 1987 SCMR 1492 and Daud Khan v. Aurangzeb and others PLD 1968 SC 54 rel.

Syed Asghar Hussain Sabzwari for Petitioner.

Zulfiqar Ali Abbasi for Respondent No.1.

Muhammad Anwar Dar for Respondents Nos. 2 and 3.

Date of hearing: 28th April, 2015.

2015 Y L R 2271

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

RAZIK HUSSAIN---Petitioner

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE-V and

2 others---Respondents

Writ Petition No.4475 of 2014, decided on 25th May, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 550---Constitution of Pakistan, Art. 199---Constitutional petition---Superdari of vehicle---Vehicle in question was taken into possession by police being stolen vehicle subject matter of two FIRs---None of the claimants i.e. neither the petitioner nor respondent retained titled documents of vehicle in question in their favour---Respondent though possessed different registration books yet his claim of ownership was based on open transfer letter---Trial Court as well as Lower Appellate Court declined to hand over interim custody (Superdari) of vehicle to both the claimants i.e. petitioner and respondent---Validity---Open transfer letter in favour of respondent could not be termed as a title document in his favour---As vehicle in question was subject of two separate FIRs there was no justification with police to release the same pursuant to order in one FIR whereas in other FIR its custody was refused by Trial Court and Lower Appellate Court---High Court maintained the orders passed by both the Courts below as the same were well-reasoned and did not contain any illegality or gross irregularity---Petition was disposed of in circumstances.

Munir Ahmed v. Barkhurdar and others 1992 SCMR 1454; Muhammad Ramzan v. Fatima and 30 others PLD 2004 Lah. 17; Muhammad Shafi v. Additional Sessions Judge, Kharian District Gujrat and 8 others PLD 2011 Lah. 551; Mst. Amina Bibi v. Attaullah Wazir and 3 others 2011 CLC 384; Hafiz Muhammad Jaffar v. Muhammad Ameer and 6 others 2011 CLC 1556; Rustam Ali v. Ali Muhammad 2008 CLC 1561; Chand Bagh Foundation through Authorized Representative v. Messrs Rehman Brothers (Pvt.) Ltd., through Chief Executive 2007 CLC 751; Abdul Rasheed v. Lateef-ur-Rehman and others 2004 CLC 1633 and Hafiz Muhammad Iqbal's case 2009 PCr.LJ 934 ref.

Syed Hamid Ali Bukhari Advocate Supreme Court for Petitioner.

Fazal-ur-Rehman Khan Niazi, D.A.G. with Khalid Mehmood ASI and Malik Zafar Hussain for Respondent No.2.

Date hearing: 27th March, 2015.

2015 Y L R 2405

[Islamabad]

Before Aamer Farooq, J

Syed BILAL ADIL---Petitioner

Versus

DISTRICT JUDGE WEST, ISLAMABAD and 2 others---Respondents

Writ Petition No.2059 of 2015, heard on 12th August, 2015.

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

----S. 17----Constitution of Pakistan, Art. 199---Eviction petition---Default in payment of rent---Delay in deposit of rent in court---Principles---Landlord filed eviction petitions seeking eviction of tenants on grounds of default in payment of rent, non-payment of utility bills and requiring rented premises for structural changes---Rent Controller, passing order under S. 17(8) of Islamabad Rent Restriction Ordinance, 2001, directed tenants to pay arrears of rent and to deposit future rent in court---Rent Controller, for default in payment of rent in court, allowed eviction petitions and appellate court maintained order of Rent Controller---Landlord took plea that even delay of one day in depositing rent was not condonable---Validity---Under S. 17(8) of Islamabad Rent Restriction Ordinance, 2001, arrears of rent under order of Rent Controller were to be deposited with court and same were not to be tendered to landlord---No justification was available with tenants to tender rent through cheque, as payment through cheque was not valid mode for deposit of rent---Tenant, in their affidavits, had admitted delay of two days in deposit of rent---Provision of S. 17(9) of Islamabad Rent Restriction Ordinance, 2001 were mandatory, and no discretion was left with Rent Controller in case of default in payment of rent---Even if Rent Controller was on leave on the date when rent was tendered, duty judge was available, and courts were not closed---Impugned judgments of courts below were maintained---Constitutional petitions were dismissed in circumstances.

Abdullah Ghanghro and another v. Mst. Tahira Begum and another 1988 SCMR 970; Shahabuddin v. Zubair Aslam and 3 others 2010 MLD 1002; Major (Rtd.) A.S.K. Samad v. Lt. Col. (Rtd.) A.

Hussain and another 1983 SCMR 773; S.M. Ismail v. CDA through Chairman and 5 others 2006 CLC 131; Messrs Journalist Publications (Pvt.) Limited v. Mumtaz Begum alias Mustari Begum 2004 SCMR 1773 and Safeer Travels (Pvt.) Limited through Chief Executive v. Muhammad Khalid Shafi through legal heirs PLD 2004 SC 690 distinguished.

Shamshad Ali v. Ghulam Mohammad Ch. and another 2009 CLC 52; Saeed Ahmed v. Rehana Zahid and 2 others PLD 2012 Isl. 161 and Shahabuddin v. Zubair Aslam and 3 others 2012 MLD 1002 ref.

Mushtaq Ahmed Kiani v. Bilal Umair and others 2009 SCMR 1008 rel.

(b) Constitution of Pakistan----

----Art. 199----Scope---High Court, in exercise of jurisdiction under Art. 199 of Constitution, does not interfere with decision of courts below unless there is illegality or jurisdictional infirmity.

Shahazad Ali Rana and Mir Aurangzeb for Petitioners.

Munawar Hussain Abbasi for Respondents.

Date of hearing: 12th August, 2015.

2015 Y L R 2528

[Islamabad]

Before Aamer Farooq, J

Messrs TRANS TECH PAKISTAN through Authorized Officer---Petitioner

Versus

ALTERNATIVE ENERGY DEVELOPMENT BOARD (AEDB) through Chief Executive Officer and another---Respondents

Civil Revision No.143 of 2015, decided on 31st July, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and Injunction---Interim injunction, grant of---Prima facie case---Grievance of plaintiff company was that Alternative Energy Development Board was not entitled to terminate/cancel letter of intent issued in its favour---Trial Court as well as Lower Appellate Court refused to grant interim relief, restraining the Board from terminating letter of intent--­Validity---Plaintiff was bound to prove three elements required for granting of interim relief under O. XXXIX, C.P.C.--­Plaintiff could not accomplish the milestones as provided in letter of intent without any fault and the same did not establish a prima facie case in its favour---Documents appended with the plaint did not show that either plaintiff accomplished the milestones or failed to do so due to lapse on the part of public functionaries---High Court, under S.115, C.P.C. could not interfere with the discretion exercised by Lower Appellate Court unless the same was arbitrary or unreasonable---Both the Courts below exercised their discretion while dismissing application for interim relief by plaintiff and there was nothing on record to show that the same was done in an arbitrary and unreasonable manner resulting in legal or jurisdictional infirmity-High Court in exercise of revisional jurisdiction declined to interfere in concurrent orders passed by two courts below---Revision was dismissed in circumstances.

Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5; Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346; Ihsanullah and others v. Khwaja Muhammad and others 2011 CLC 989; Gulzar. Begum v. Mehbood Hussain alias Mehmoob Khan 2012 YLR 809; Shahbaz Sadiq and another v. Rab Nawaz and another 2006 YLR 1443; Province of West Pakistan through Secretary Public Works Department, Lahore v. Gamman's Pakistan Limited PLD 1976 Kar. 458; Javed Hotel (Pvt.) Limited v. CDA through Chairman and another PLD 1994 Lah. 315; Autotechnic (Pvt.) Limited v. Syed Abuzar Bulchari 2014 YLR 1199; Dressing Rand S.A. v. Bindal Agro Chemical Limited and K.G. AIR 2006 SC 871; Baron International Airways v. Haj Committee AIR 1997 Dehli 247; Dunhill Securities Corporation v. Microthermal Applications, Inc. [308 F.Supp.195 (SDNY)]; Irene Butler et al. v. John Hardy 576 A.2d 202 1990; Pakistan Associated Construction Ltd. v. Asif H. Qazi 1986 SCMR 820 and Islamic Republic of Pakistan v. Mohammad Zaman Khan 1997 SCMR 1508; Abdul Jabbar v. Fazal Elahi Butt 2003 SCMR 1558 and Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.

Bilal Akbar Tarrar for Petitioner.

Barrister Sharjil Sheryar for Respondents.

Date of hearing: 2nd July, 2015.

2015 Y L R 2602

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

ZOHRA BEGUM---Appellant

Versus

FAZAL-E-RAB PIRZADA and 4 others---Respondents

R.F.A. No.147 of 2014, decided on 27th April, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Registration Act (XVI of 1908), Ss. 17 & 49---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for declaration---Dower deed---Transfer of immovable property---Non-registration of title document---Effect---Document, proof of---Procedure---Contention of plaintiff-wife was that suit property was transferred in her favour in lieu of dower---Suit was dismissed concurrently---Validity---Transaction in question could not be termed as dower deed or transfer of property in lieu of dower---Dower had been paid/tendered but subsequently plaintiff-wife gave the same back to her husband for business requirements which amount husband could not return---Impugned transaction was in the nature of acknowledgement debt whereby 100 tolas gold was given as debt to the husband---Any document that had transferred title with regard to immovable property had to be compulsorily registered and if same was not registered then no right could be created with regard to such transaction---Plaintiff had not proved dower deed in accordance with the provisions of Qanun-e-Shahadat---Document should be witnessed by two witnesses who were required to be called in evidence---Plaintiff had not produced both the marginal witnesses of impugned dower deed in witness-box---Even the scribe and stamp vendor were not called to prove the document on account of non-availability of marginal witnesses---Mere tendering a document had no evidentiary value unless proved in accordance with law---Dower deed was neither registered nor proved in accordance with the provision of Art. 79 of Qanun-e-Shahadat---Appeal was dismissed in circumstances.

PLD 2003 Pesh. 1; PLD 1997 Lah. 364; 2003 MLD 954; PLD 1996 SC 256; PLD 1996 Lah. 367; 1994 MLD 1622; 1990 SCMR 28 and 2004 MLD 1033 ref.

PLD 2003 SC 410; 2013 YLR 2439; 1989 CLC 698; 2000 MLD 1638; Muhammad Javed Shafi v. Rashid Ahmed PLD 2015 SC 2012 and PLD 2002 SC 84 rel.

Abdul Rashid Awan for Appellant.

Syed Javed Akbar, Saif-ul-Islam Sindhu and Muhammad Imran Amir for Respondents.

2015 Y L R 1

[Sindh]

Before Mushir Alam, C.J. and Aqeel Ahmed Abbasi, J

MUHAMMAD SAAD and another---Appellants

Versus

AMNA and 27 others---Respondents

H.C.A. No.232 of 2007, decided on 29th August, 2013.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Civil Procedure Code (Amendment) Ordinance (X of 1980), S.15---Specific Relief Act (I of 1877), Ss.42 & 54---Law Reforms Ordinance (XII of 1972), S.3---Suit for declaration and injunction---Intra-court appeal---Interim injunction---Pre-conditions---Court, duty of---Plaintiffs claimed to be owners of suit land and sought restraining of defendants from raising construction on suit land---Validity---While seeking favourable injunctive relief applicant was to prove prima facie existence of right claimed in suit and also its infringement---Mere fact that prima facie case was established, could not entitle the applicant to an injunction unless other two factors i.e. balance of convenience and irreparable damage or injury, were fulfilled---Court was required to balance inconvenience and to see as to whether applicant would suffer more inconvenience by withholding of injunction than that which respondent would suffer by granting of injunction---Court was further required to weigh mischief of either party in case of grant or refusal of injunction---Normally balance was to lie in favour of continuation of a state of things, such as to protect possession of a party or to allow continuance of contract---While granting injunction or otherwise it had to be ensured that grant of injunction to one party might not cause irreparable damage or injury to other party whose loss could not be compensated in terms of money---Conclusion drawn by Single Judge of High Court did not suffer from any error or illegality and did not require any interference by Division Bench of High Court---Intra-Court Appeal was dismissed.

Mirza Mehboob Baig and others v. Deputy Settlement Commissioner (Land) and others 2002 MLD 1512; Muhammad Aslam Gatta and another v. Karachi Building Control Authority (KMC), M.A. Jinnah Road, Karachi and 13 others 1998 MLD 544; Muhammad Saleem and 5 others v. Administrator Karachi Metropolitan Corporation, Karachi Building Control Authority (KMC) Karachi and 2 others 2000 SCMR 1748; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) and 4 others 1999 SCMR 2883; Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others 1991 SCMR 1255; Mst. Sardar Begum v. Member (Colonies), Board of Revenue, Punjab, Lahore and 3 others 1994 SCMR 395; Mooso through Legal heirs and 2 others v. Allah Ditto through legal heirs and 7 others 1999 CLC 798; Syed Mahmood Ali Gardezi and another v. Syeda Rabia Begum and 10 others 1993 MLD 814; Mst. Salma Abbasi and another v. Ahmed Suleman and 2 others 1981 CLC 462; Samar Gul v. Central Government and others PLD 1986 SC 35; Dr. Mrs. Nasreen Qureshi v. Deputy Administrator, Evacuee Trust Property, Karachi and another 1987 CLC 213; Fazalur Reham v. Younis Ali Gilani and 9 others 1999 MLD 1565; Mst. Najma Rana v. S.M. Maroof and another 1989 MLD 1317; A.E.G Telefunken Pakistan Ltd. v. Electric Concern Corporation 1985 CLC 155; Glaxo Group (Pvt.) Ltd. v. Evron (Pvt.) Ltd. PLD 1991 Kar. 252; MD Anwarullah Mazumdar Tamina Bibi and others 1971 SCMR 94; Qadir Bux through attorney and others v. Government of Sindh through Secretary Board of Revenue and 7 others 2007 YLR 525; Allah Dino v. Haji Ahmed PLD 2006 Kar. 148; Jawaid Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472; Muhammad Umer Saeed v. Pakistan and others 1969 SCMR 141; Haji Arbab Ali v. Deputy Director Sindh Agricultural Supplies Organization and others 1998 SCMR 1244 and Mrs. Shahzadi Baber v. Hina Housing Project (Pvt.) Ltd. and others 1994 CLC 1601 ref.

Abdul Ghafoor Memon v. Mohammed and another PLD 1975 Kar. 464; Pervaiz Hussain and another v. Arabian Sea Enterprises Limited SBLR 2006 SC 3; Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 and Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 rel.

Ms. Sana Minhas for Appellants

Khawaja Shamsul Islam for Respondent No.5.

Rashid Anwar for Respondent No.24.

S. Haider Imam Rizvi for Respondent No.25.

Khurram Iqbal for Board of Revenue.

Miran Muhammad Shah, Addl. A.G.

Dates of hearing: 21st January and 26th August, 2013.

2015 Y L R 38

[Sindh]

Before Naimatullah Phulpoto and Salahuddin Panhwar, JJ

REHMATULLAH and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-51 and Criminal Acquittal Appeal No.D-16 of 2003, decided on 27th May, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Specific role of firing from his gun at the deceased, had been assigned to accused---Prosecution witness supported the version of the complainant---Medical evidence also corroborated such version---Mere acquittal of some of accused, statedly involved in the commission of the offence by Trial Court by extending benefit of doubt to them, would not demolish the case of prosecution as a whole against remaining accused---Legal maxim 'Falsus in uno, falsus in omnibus' would have no application in such circumstances---Trial Court had rightly appreciated evidence and convicted and sentenced accused---Appeal filed by said accused, was dismissed---Two co-accused, did not cause any injury to the deceased, though they were armed with deadly weapons---Case of prosecution was that said co-accused, fired upon the walls of the house, but no damage had been noted by the Investigating Officer to the walls; Mashirnama of place of wardat was silent to that effect---No motive was alleged against said two co-accused for committing murder of the deceased; and case of said co-accused was identical to case of acquitted accused persons---Three other accused persons, on the same evidence, having been acquitted by the Trial Court, conviction on same evidence recorded against said two co-accused was not sustainable on rule of consistency---Prosecution having failed to prove its case against said two co-accused beyond reasonable doubt, appeal filed by said co-accused was allowed; they were acquitted of the charge and were released.

The State v. Abdul Khalique PLD 2011 SC 554; Safdar Hayat v. The State 1996 SCMR 1029; Javed Akhtar v. The State 1998 PCr.LJ 1009; Ayub Masih v. The State 1999 PCr.LJ 1678; Zulfikar Ali Shah v. The State 2000 PCr.LJ 894 and Rehman Said v. The State 2000 PCr.LJ 1245 ref.

Muhammad Zaman v. The State 2014 SCMR 749 rel.

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

----S. 417(2-A)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Appeal against acquittal---Scope---Accused persons having been acquitted by extending benefit of doubt to them, complainant had filed acquittal appeal---Trial Court had assigned sound reasons for recording acquittal in favour of accused persons---After acquittal, accused persons had acquired presumption of double innocence---Scope of interference in appeal against acquittal was most narrow and limited, because in an acquittal, the presumption of innocence was significantly added to the cardinal rule of criminal jurisprudence, that an accused would be presumed to be innocent, until proved guilty; presumption of innocence was doubled---Court would be very slow in interfering with such an acquittal judgment, unless it was shown to be perverse, passed in gross violation of law, suffering from error of grave misreading or non-reading of evidence---Such judgments should not be lightly interfered, and heavy burden lay on the prosecution to rebut the presumption of innocence, which accused had earned, and attained on account of his acquittal---Interference in a judgment of acquittal, was rare and the presumption must show that there were glaring errors of law and facts committed by the court in arriving at the decision, which would result into grave miscarriage of justice---Acquittal judgment was perfunctory or wholly artificial or a shocking conclusion had been drawn---Court of appeal should not interfere simply for the reason that on the appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusion should not be upset, except when palpably perverse, suffering from serious and material factual infirmities---Acquitted accused having acquired a triple presumption of innocence, could not be dispelled on any score---Appeal against acquittal was dismissed, in circumstances.

The State v. Abdul Khaliq PLD 2011 SC 554 rel.

Athar Abbas Solangi for Appellants (in Criminal Appeal No.D-51 of 2003).

Ahsan Ahmed Qureshi for Appellant (in Criminal Acquittal Appeal No.D-16 of 2003 and Complainant in Criminal Appeal No.D-51 of 2003).

Imtiaz Ali Jalbani Assistant Prosecutor General for Respondent (in Criminal Appeal No.D-51 of 2003).

Athar Abbas Solangi for Respondents (in Criminal Acquittal Appeal No.D-16 of 2003).

Date of hearing: 14th May, 2014.

2015 Y L R 69

[Sindh]

Before Muhammad Ali Mazhar, J

Mirza KARIM BAIG and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 1322 of 2013, 1707, 1705, 1704, 1703, 1708, 1709, 1710, 1712, 1713, 1714, 1715 and 1716 of 2014, decided on 23rd September, 2014.

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

----S.498---Penal Code (XLV of 1860), Ss.409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, cheating, forgery and taking illegal gratification---Pre-arrest bail, grant of---Administrative role of accused---Illegal gains, absence of---Accused was former Secretary of Trade Development Authority of Pakistan (TDAP) and it was alleged that under trade policy issued by government, massive corruption was detected in awarding 25% subsidy as an incentive to exporters for export of new products---Validity---Accused had an administrative role being Secretary who was implicated only for the reason that he was responsible to the affairs of TDAP---Mere sitting in board meeting where various other members of the board were also present for taking joint decision, accused could not be held solely responsible for sanctioning amount for satisfying pending claims or to clear back log of pending claims---Accused was not the only person who sanctioned huge claims against some unlawful monetary gain or benefits---Sanctioning of amount did not mean that false or bogus freight subsidy claims should be approved or honoured without complying with detailed procedure provided in the scheme---Prosecution did not place any evidence to show that accused had gained any monitory benefit from misappropriated or embezzled funds obtained by individual companies nor prosecution placed anything to show that any fake subsidy claim was approved by accused---Pre-arrest bail was confirmed in circumstances.

Rais Wazir Ahmed 2004 SCMR 1167; Kashif Raza v. The State 2012 YLR 633; Shahid Ali Dharejo v. The State 2012 PCr.LJ 1601; Muhammad Arshad v. The State 2012 PCr.LJ 1181 Rana Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 and Suleman v. The State 2012 MLD 574 rel.

(b) Bail---

----Appraisal of evidence---Scope---Concept of bail is that liberty of innocent person is not to be curtailed unless and until proved otherwise---Deep appraisal and detailed discussion of evidence is not permissible and Court should not cross barrier of permissible limits of law while making tentative assessment of evidence at bail stage---Exercise of such power should be confined to cases in which a good prima facie ground is made out for grant of bail in respect of offence alleged.

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

----Ss. 497 (2) & 498---Pre-arrest bail---Case of further inquiry---Scope---Bail before arrest cannot be granted unless person seeking it satisfy conditions specified under S.497(2), Cr.P.C. and establishes existence of reasonable grounds leading to belief that he is not guilty of offence alleged against him and there are in fact sufficient grounds warranting further inquiry.

(d) Criminal trial---

----Object---Basic idea is to enable accused to answer criminal prosecution against him rather than to rot him behind the bar---Accused is also entitled to expeditious access to justice, which includes a right to fair and expeditious trial.

Kumail Sheerazi and Zulfiqar Ali Langha for Applicant.

Applicant in person.

Muhammad Aslam Butt D.A.G.

Inspector Ali Hassan Zardari, Inspector Muhammad Sajjad Khan, Inspector Deedar Sheikh, Inspector Anwar Ali Shah, Inspector Bashir Soomro, SIP Ziaullah, SIP Irfan Memon, SIP Rahat Khan, SIP Adnan Dilawar, SIP Zahoor Ahmed and SIP Anwar Ismail, Officials of FIA are also present.

2015 Y L R 108

[Sindh]

Before Muhammad Ali Mazhar and Shahnwaz Tariq, JJ

ABDUL JABBAR---Petitioner

Versus

The STATE through Director General (NAB)---Respondent

Constitutional Petition No.D-1282 of 2014, decided on 23rd July, 2014.

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

----S. 497---National Accountability Ordinance (XVIII of 1999), S.9---Corruption and corrupt practices---Bail, grant of---Further inquiry---Principles and application---Accused persons were Revenue Officials---Question as to whether all accused Officials of Revenue Department were in connivance with each other to cause loss to National Exchequer or whether present accused had recorded the alleged entry fraudulently in connivance with other accused officials would be thrashed out in the course of evidence---Obligation/duty of accused as to examining the chain of title documents and effect of NOC for sale issued by ex-Mukhtiarkar would be determined at trial---Role assigned to accused required further inquiry---Accused had been behind bars for eight months and examination-in-chief of only one witness had been recorded so far---Allegations of accused's involvement in corruption would be determined at trial where deeper appreciation would be made---Further inquiry was a question which must have some nexus with the result of the case---Further inquiry pre-supposed the tentative assessment which may create doubt with respect to the involvement of accused in the crime---Accused was granted bail.

Agha Jahanzeb v. NAB and others 2005 SCMR 1666 ref.

Mrs. Razia Qayyum v. The State 2004 SCMR 1889 and Sardar Amin Farooqui's case 2014 PCr.LJ 186 rel.

(b) Criminal trial---

----Object---Object of trial was to enable the accused to answer criminal prosecution rather than to rot him behind the bars---Accused was entitled to expeditious access to justice which included trial without unreasonable delay.

Muhammad Saeed Mehdi v. The State 2002 SCMR 282 rel.

Munawar Hussain Yousufi for Petitioner.

Noor Muhammad Dayo, A.D.P.G. NAB for Respondent.

Date of hearing: 23rd July, 2014.

2015 Y L R 124

[Sindh]

Before Nazar Akbar, J

Syed ALI ATHAR---Petitioner

Versus

Mst. SHAHIDA FATIMA and 2 others---Respondents

Constitutional Petition No.S-125 of 2013, decided on 12th June, 2014.

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---Eviction order, setting aside of---Misrepresentation and fraud---Ingredients--Scope of S.12(2), C.P.C.---Applicant had failed to point out any fraud or misrepresentation to the court in obtaining the ejectment order---None of the ingredients of fraud and misrepresentation were mentioned in the application---Provisions of S. 12 (2), C.P.C. could not be extended to include the claim of ownership by the aggrieved party while challenging judicial orders passed by competent court---Remedy to the applicant was a civil suit to claim his title on the property and not the provisions of S.12(2), C.P.C. which had a limited scope of examining the validity of a judgment/ decree on the plea of lack of jurisdiction, fraud and misrepresentation---Applicant had not alleged any fraud against the respondent in obtaining the orders rather the facts were otherwise---Applicant had failed to point out any mis-reading and non-reading of evidence while in passing the impugned order---No jurisdictional defect was found in the impugned order---Constitutional petition was dismissed in circumstances.

Haji Abdul Ghafoor v. Abdul Qayyum and 3 others 1996 SCMR 1524; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Fida Hussain and others v. Abdul Aziz PLD 2005 SC 343; Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Malik Muhammad Faisal and another v. State Life Insurance Corporation and 2 others 2008 SCMR 456; Aurangzeb v. Massan and 13 others 1993 CLC 1020 and Abdul Fattah and 8 others v. Nisar Ahmed and 3 others 2003 YLR 2610 ref.

Haji Abdul Ghafoor v. Abdul Qayyum and 3 others 1996 SCMR 1524; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Fida Hussain and others v. Abdul Aziz PLD 2005 SC 343; Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Malik Muhammad Faisal and another v. State Life Insurance Corporation and 2 others 2008 SCMR 456; Aurangzeb v. Massan and 13 others 1993 CLC 1020 and Abdul Fattah and 8 others v. Nisar Ahmed and 3 others 2003 YLR 2610 distinguished.

Syed Hassan Ali for Petitioner.

Muhammad Yaseen Azad for Respondent No.1.

First Additional District Judge, Karachi Central Respondent No.2.

Second Rent Controller, Karachi Central Respondent No.3.

Date of hearing: 26th May, 2014.

2015 Y L R 133

[Sindh]

Before Aftab Ahmed Gorar, J

ABDUL SALAM---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-19 of 2013, decided on 17th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss.324, 353 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention---Forfeiture of surety bond and imposition of penalty---Applicant, stood surety for accused persons who were released on bail---Both accused persons having absconded after grant of bail, their bail bonds were forfeited---Accused persons having been declared proclaimed offenders by the Trial Court, court imposed full amount of surety---No reasonable cause or any effort to procure the attendance of accused had been shown by the applicant/surety which could require any interference by High Court in impugned order, which did not suffer from any error or illegality---No lenient view could be taken---Surety was allowed to furnish surety amount in four instalments within four months.

Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

Muhammad Yasin Junejo for Applicant.

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

2015 Y L R 150

[Sindh]

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

BEHRAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.217 of 2009, decided on 6th March, 2014.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Promptness with which the F.I.R. was lodged, not only eliminated the chances of consultation, but also of false implication---Both eye-witnesses, were though real brothers of the deceased, but no enmity or consideration noticed which could motivate real brothers to substitute real culprits with the accused---Due to precision with which the ocular account was given by prosecution witnesses, whereby the manner of incident; the time between the incident and F.I.R., was accounted for, it could not be believed that incident was an unseen one; or that blood-relation could be believed to be the reason to involve innocents in a promptly lodged F.I.R.---Ocular account furnished by both the eye-witnesses, was found very consistent, so far as the name of assailants; manner of their arrival; altercation resulting into death of deceased and their role was concerned---Both the eye-witnesses remained strongly stuck with each other in respect of every single detail of incident; and despite a lengthy test of cross-examination the defence could not succeed to shake those witnesses in material aspects, which could be termed as a 'contradiction' affecting the very evidence of those witnesses---Variations in statements of witnesses, which were neither material nor seriously affecting the case of the prosecution, could not be termed to be 'contradiction'---Witnesses, had supported each other not only in respect of manner of incident, but the role played by each culprit---Mere difference of place of seating of injuries, could not be taken to disbelieve the evidence of witness, nor could such variation be legally taken as a 'contradiction'---Deceased having suffered various pallet injuries on various parts of his body, dissimilarity of ocular accounts to the extent of seating of injuries, was of no consequence at all for defence to claim the same as a 'material contradiction'---Failure of the defence to cross-examine the prosecution witnesses on a vital portion of their testimony, would amount to an admission on the part of defence---Release of co-accused, and dismissal of complainant's application under S.193, Cr.P.C., could not adversely affect the case of the prosecution---Though, neither crime weapons were sent for the opinion of the Ballistic Expert, nor such report had been produced, but ocular account of the occurrence against accused connecting him with the offence, was confidence inspiring, honest, trustworthy; was sufficient to uphold the capital punishment even if those pieces of evidence, were kept out of consideration---Medical evidence was fully in line with the ocular account---Prosecution having succeeded in proving the case against accused beyond any shadow of doubt, conviction under S.302(b), P.P.C. recorded against him by the Trial Court, was maintained---Appeal filed by accused, was dismissed, in circumstances.

Muhammad Shah v. The State 2010 SCMR 1009; Abid Ali and others v. The State 2011 SCMR 208; Muhammad Sadiq v. Muhammad Sarwar and others 1979 SCMR 214; Muhammad Yunus v. The State and another 1979 SCMR 225; Ata Muhammad v. The State 1995 SCMR 599; Ahmed v. The State 1982 SCMR 1049 and Sheraz Tufail v. The State 2007 SCMR 518 rel.

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

----S. 302(b)---Conviction in case of qatl-i-amd---Conviction in a murder case, could even be based on testimony of a single witness; if court was satisfied that same was trustworthy and confidence inspiring; as it was the quality of the evidence; and not the quantity which mattered---Where motive claimed by the prosecution, was not proved in accordance with law, in spite of such sole ground was not sufficient to discard the evidence, which otherwise was credible and trustworthy.

Niazuddin v. The State 2011 SCMR 725 and Muhammad Ehsan v. The State 2004 SCMR 1857 ref.

A.Q. Halepota for Appellant.

Ali Haider Saleem, A.P.G. for Respondent.

Dates of hearing: 28th, 29th November, 6th and 23rd, December, 2013.

2015 Y L R 190

[Sindh]

Before Syed Muhammad Farooq Shah, J

GULAN---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Revision Application No.S-9 of 2012, decided on 21st March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 249---Penal Code (XLV of 1860), Ss.217, 420, 467, 468 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Disobeying direction of law by public servant, cheating and dishonestly inducing delivery of property, forgery, common intention, corruption---Stay of proceedings till decision of civil appeal---Special Judge Anti-Corruption stayed criminal proceedings, till decision of civil appeal pending adjudication before High Court---Applicant/complainant contended that Special Judge be directed to conclude the trial on merits---Validity---Criminal case must be allowed to proceed on its merits; merely because civil proceedings, relating to some transaction had been instituted, had never been considered to be a legal bar to the maintainability of criminal proceedings which could proceed concurrently, because conviction for a criminal offence was altogether a different matter from the civil liability---Both proceedings of civil and criminal, could be carried out simultaneously---After framing of charge, in the case, complainant and eight witnesses had been examined by the prosecution, and there remained formal witnesses, and the court instead of staying the proceedings under S.249, Cr.P.C., could decide the matter on its own merits or to proceed under S.249-A, Cr.P.C. strictly on merits---Trial Court, held, had seriously erred in staying the proceedings.

Khadim Hussain M. Shaikh for Applicant.

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

Date of hearing: 17th March, 2014.

2015 Y L R 196

[Sindh]

Before Nazar Akbar, J

SALEEM AHMED MIRZA---Plaintiff

Versus

Retd: Major Syed IFTIKHAR HUSSAIN ZAIDI and 2 others---Defendants

Suit No.365 of 1994, decided on 13th March, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Suit for declaration, possession, mesne profits and damages---Contention of plaintiff was that he was owner of suit land whose possession had been taken by the defendants forcibly---Validity---Plaintiff had established that he was owner of suit property---Possession of defendants upon the suit land could not be lawful---Unlawful occupant of suit property could only be termed as "trespasser"---No fraud had been committed in leasing the suit property in favour of plaintiff---Plaintiff had been denied to enjoy ownership right in the plot in question and he was entitled to mesne profit @ Rs. 500/ per day from the date of illegal possession of defendants---No documentary evidence had been produced to justify the claim of damages, therefore same could not be awarded on account of increase in cost of construction material---Plaintiff was declared lawful owner of suit land and he was entitled for vacant possession from defendants and mesne profits jointly and severally---Suit was decreed in circumstances.

Abdul Qadir Khan for Plaintiff.

Nemo for Defendant No.1.

Nemo for Defendant No.2.

Nemo for Defendant No.3.

Date of hearing: 25th October, 2013.

2015 Y L R 209

[Sindh]

Before Nadeem Akhtar, J

PROVINCE OF SINDH, SECRETARY BOARD OF REVENUE, GOVERNMENT OF SINDH through District Officer---Appellant

Versus

DEPUTY DISTRICT OFFICER (REV) and 2 others---Respondents

1st Civil Appeal No.16 and M.A. No.452 of 2012, decided on 15th September, 2014.

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

----Ss. 18, 53 & 54---Civil Procedure Code (V of 1908), O. XLI, R. 19, O. IX, R. 9, O. XLIII, R. 1 (c) & S. 96---Limitation Act (IX of 1908), Arts. 153 & 181---Land acquisition--- Reference to court, restoration of--- Appeal--- Competence---Condonation of delay---Scope---Plaintiff filed application for restoration of reference which was dismissed being time barred---Validity---Provisions of Civil Procedure Code, 1908 had been made applicable to all the proceedings under Land Acquisition Act, 1894---No appeal lay to the High Court against an order which was not an award or any part thereof as rights and liabilities of the parties would be determined finally and conclusively in the award as were determined in original decree---No award or any part thereof was passed by the court below in the present case---Application was dismissed for non-prosecution without any conclusive determination or adjudication of rights and liabilities of the parties, therefore appeal could not be filed under S.54 of Land Acquisition Act, 1894 or under S. 96, C.P.C.---Appeal should have been filed before the High Court under O.XLIII, R. 1(c), C.P.C.---Limitation for filing an appeal under Civil Procedure Code, 1908 to High Court against an order of court below was 30 days from the date of said order---Residuary Art. 181 of Limitation Act, 1908 would apply only to the cases where no limitation was provided in the said Act---Present appeal was not filed within 30 days which was barred by time---Plaintiff was bound to file an application for condonation of delay explaining the delay of each and every day up to the date of filing of present appeal in order to seek concession of condonation and discretion of court---No such application had been moved by the plaintiff and delay in filing of appeal could not be condoned in the absence of said applica-tion---Appeal was dismissed in circum-stances.

Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam University, Islamabad and another v. Ms. Farah Zahra PLD 2005 SC 153; Allah Dad v. The Board of Revenue, Sindh and 5 others PLD 1981 Kar. 73; Ali Muhammad v. Additional District Judge, Faisalabad and 2 others 1987 MLD 536; Gregory and Cook S.A. through Hussain Abuzar Pirzada v. Oil and Gas Development Company Limited 2009 YLR 228; Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot, 2006 SCMR 1248; Bundoo Khan and 2 others v. Karachi Development Authority 1988 MLD 860; Khushi Muhammad v. Member, Board of Revenue and others 2008 SCMR 358; Mian Muhammad Asif v. Fahad and another 2009 SCMR 1030; Messrs Ciba-Geigy (Pak.) Limited v. Muhammad Safdar 1995 CLC 461; Sabzal and others v. Bingo and others, 1989 CLC 656 and Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others 2005 SCMR 609 ref.

Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam University, Islamabad and another v. Ms. Farah Zahra PLD 2005 SC 153; Allah Dad v. The Board of Revenue, Sindh and 5 others PLD 1981 Kar. 73; Ali Muhammad v. Additional District Judge, Faisalabad and 2 others 1987 MLD 536 and Gregory and Cook S.A. through Hussain Abuzar Pirzada v. Oil and Gas Development Company Limited 2009 YLR 228 distinguished.

Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot, 2006 SCMR 1248; Messrs Ciba-Geigy (Pak.) Ltd. v. Muhammad Safdar 1995 CLC 461; Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others 2005 SCMR 609; Muhammad Bashir and another v. Province of Punjab 2003 SCMR 83; Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462; Lahore Development Authority v. Messrs Sea Hawk International (Pvt.) Ltd., 2003 CLC 269 and Pakistan Handicrafts, Sindh Small Industries Corporation Government of Sindh v. Pakistan Industrial Development Corporation (Pvt.) Ltd. and 2 others 2010 CLC 323 rel.

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

----S. 54---Land acquisition---Award---Appeal---Scope---Appeal should only lie in any proceedings under Land Acquisition Act, 1894 to the High Court from award or any part of the same subject to the provisions of Civil Procedure Code, 1908 applicable to appeals from original decrees.

Imtiaz Ali Soomro, A.A.-G. for Appellant.

Abdul Sattar Bhayo Assistant Commissioner, Naushehro Feroze for Respondent No.1.

Imran Qureshi for Respondents Nos. 2 and 3.

Date of hearing: 27th August, 2013.

2015 Y L R 216

[Sindh]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

ALI ANWAR RUK---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and another---Respondents

Constitutional Petition No.D-505 of 2014, decided on 29th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S.9(b)---Constitution of Pakistan, Art.199---Constitutional petition---Delay in trial---Bail on statutory ground---Accused had been behind bars for 18 months---Delay in trial was not caused due to any inaction or impediment on the part of accused or his counsel---Only five out of 27 witnesses had been examined so trial was not likely to be concluded in near future---Object of trial was to make the accused to face the trial and not to punish the under-trial prisoner---Accused was entitled to expeditious access to justice which included right to fair and expeditious trial without any unreasonable delay---Accused was granted bail.

Syed Maqsood Ahmed v. State Civil Petition No.620-K of 2011; Jamil A. Durrani v. The State PLD 2003 Kar. 393; Muhammad Saeed Mehdi v. State and others 2002 SCMR 282 and Danish Ahmed v. The State through Chairman NAB 2002 MLD 1180 ref.

Shaukat Hayat for Petitioner.

Noor Muhammad Dayo, A.D.P.G. NAB for Respondents.

Date of hearing: 24th July, 2014.

2015 Y L R 235

[Sindh]

Before Shahab Sarki, J

ABDUL MATEEN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.567 of 2014, decided on 19th June, 2014.

Criminal Procedure Code (V of 1898)---

----S.497 (2)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Abscondance---Rule of consistency---Case of further inquiry---Plea raised by accused was that his co-accused with similar role had already been released on bail---Validity---Direct evidence against accused was missing---Mere absconsion, without merits of case implicating accused could not be treated as bar for grant of bail---Case of co-accused who had been granted bail by Trial Court was identical to the case of accused and prosecution could not controvert the same---Case against accused was one of further inquiry---Bail was allowed in circumstances.

Rehmatullah v. The State 1999 PCr.LJ 579 and Mst. Mastari v. Noor Nawaz 1999 PCr.LJ 616 distinguished.

Mumtaz Ali Khan Deshmukh for Applicant.

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

SIP Dildar Hussain, Investigating Officer.

2015 Y L R 241

[Sindh]

Before Muhammad Ali Mazhar, J

MEEZAN BANK LTD.---Plaintiff

Versus

Messrs FACUS APPARELS (PVT.) LTD. and 6 others---Defendants

Suit No.B-62 and C.M.A. No.11385 of 2012, decided on 28th August, 2013.

Contract Act (IX of 1872)---

----Ss. 131,127 & 129---Civil Procedure Code (V of 1908), O. I, R. 10---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.9---Suit for recovery---Contract of guarantee /surety---Death of surety---Effect---Application for impleadment of legal heirs of surety as party(s) in the suit for recovery---Revocation of continuing guarantee by surety's death---Scope---Plaintiff Bank sought to implead legal heirs of one of the defendants in the suit for recovery, who had died, on basis of a guarantee furnished by the said deceased defendant---Contention of the plaintiff Bank was that the said personal guarantee had stated that in event of his death, defendant's successors would be liable and that S. 131 of the Contract Act, 1872 provided that the death of a surety revoked the continuing guarantee but only in absence of a contract to the contrary---Validity---Contract of guarantee could not be enforced unless there was some consideration for the guarantee and the contract of guarantee must be based on consideration and if the consideration so specified was not brought on record, then court could not assume such consideration---Nothing was mentioned in the plaint as to what financial facility was availed by the said defendant against the guarantee executed by him and it was not mentioned whether any demand was raised against the deceased defendant in his lifetime---Although the deceased defendant had agreed that in case of his death, the bank shall have the right to dispose of his moveable and immovable assets, but no schedule was attached with guarantee to show whether the defendant/guarantor had provided any details of his moveable and immovable assets---Vast difference existed between a "guarantor" and a "mortgagor"; and had the deceased defendant in his lifetime mortgaged property against some finance facility, recovery could have been made through disposal of assets by impleading his legal heirs, however, this was not the situation in the present case---Mere mentioning of the words in the guarantee that the same "would be binding on succesors-in-interests" would have no significance and the legal heirs could not be held responsible unless they agreed to the covenant made in the guarantee by their predecessors-in-interest in their absence---Condition of S. 131 of the Contract Act, 1872 "in absence of any contract" did not mean to hold responsible legal heirs of a deceased guarantor as there existed no contract between the plaintiff Bank and said legal heirs, and therefore, S. 131 of the Contract Act, 1872 was not applicable---Legal heirs of the deceased defendant, were therefore, neither necessary or proper party(s) to the suit and the plaintiff had failed to figure out any cause of action against the said legal heirs---Application was dismissed, in circumstances.

First Women Bank Ltd. v. Mrs. Afifa Iftikhar and 2 others 2008 CLD 552; Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72; Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615 and Messrs Habib Bank Ltd. v. Messrs Indus Lenentose (Pvt.) Ltd. and others 2003 CLD 1788 distinguished.

Muslim Commercial Bank v. East and Exports (Pvt.) Ltd. and others 2007 CLD 1205 and Mst. Fayyazi Begum and 6 others v. Ali Hassan and another 2009 CLD 1476 rel.

A.I. Chundrigar, Nabeel Kolachi and Muhammad Ilyas for Plaintiff.

Mirza Sarfraz Ahmed for Defendant No. 1, 2 and 4 to 6.

Khawaja Shams-ul-Islam for Defendant Nos.3.

Date of hearing: 7th May, 2013.

2015 Y L R 276

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD YOUNUS and another---Applicants

Versus

VENUE GURDAS ADVANI and others---Respondents

Judicial Miscellaneous No. 50 of 2005 in Suit No.1124 of 1997 and Judicial Miscellaneous. No.47 of 2012 in Suit No.1348 of 2005 and C.M.As. Nos.4350 of 2005 and 2217 of 2013, decided on 16th September, 2014.

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

----S.12 (2)---Partnership Act (IX of 1932), S.68---Specific Relief Act (I of 1877), S.42---Suit for declaration---Partnership---Application under S.12(2), C.P.C. alleging fraud and misrepresentation---Requirements---Limitation---Condonation of delay---Aggrieved person---Scope---Word "validity"--- Significance---Contention of respondents was that applicants had ceased to be the partners of firm, that they had no locus standi to file the present application and application under S.12(2), C.P.C. could be filed only against the final judgment, decree or order and not against an order passed on an interlocutory application---Validity---One could seek his remedy under S. 12(2), C.P.C. by making an application to the court which had passed the final judgment, decree or order if the validity of the same was challenged by him on the plea of misrepresentation, fraud or want of jurisdiction---Word "validity" would relate to the legality, legitimacy and propriety of the judgment, decree or order challenged under S. 12(2), C.P.C.---Judgment, decree or order challenged under S. 12(2), C.P.C. was to be based on formal determination or adjudication in the proceedings in absence of which its "validity" could neither be challenged nor same could be decided---Judgment, decree or order which did not fall within such category could not be challenged under S.12(2), C.P.C.---Court was bound to determine the nature and effect of impugned judgment, decree or order while deciding an application under S. 12(2), C.P.C. and then to see whether the requirements of said Section had been fulfilled by the applicant or not---No judgment or decree had been challenged in the present application and an order passed with regard to withdrawal of suit had been impugned---Element of conclusive determination of the rights of parties with regard to all or any of the matters in controversy in the suit was applicable to orders challenged under S.12(2), C.P.C.---No determination or adjudication had taken place nor any judgment, decree or order was passed in the suit on merits but suit was simply dismissed as not pressed without opposition of contesting defendants---Impugned orders which were passed without any conclusive determination or adjudication could not be challenged under S.12(2), C.P.C.---Applicants, in the present case, were not partners of the firm when impugned orders were passed---Applicants thus were not "aggrieved" by the impugned orders and they could not file the present application---Presumption would be that a party had admitted the contents of document (certificate issued by Registrar of Firms), in absence of any denial or dispute with regard to such contents of the document---Document had presumption of truth unless same was disproved by cogent and admissible evidence---Burden of proof that the entries in the record were wrong would be on the party who had alleged the same---Documentary evidence could be rebutted only by documents---Certificate issued by the Registrar of Firms with regard to retirement of applicants and induction of other partners was conclusive proof against them as same had not been suspended or cancelled---Statement, intimation or notice which had been entered in the register of firms would constitute conclusive proof against the person by or on whose behalf same was filed---Estoppel would apply against a person who had notified the Registrar of Firms that he/she had become a partner of the firm and he/she could not be permitted to resile from the same---Events of retirement of applicants and induction of other partners of firms took place prior to the passing of impugned orders---Such events were not done by the parties in connection with the proceedings before the court nor same were recorded by the court at the time of passing the impugned orders---Alleged fraud or misrepresentation, in circumstances, took place either outside the court or subsequent to the passing of impugned orders---Section 12(2), C.P.C. had limited scope and same could not be invoked on the plea of mala fide or abuse of process of the court---Fraud or misrepresentation should be specifically alleged with all relevant and material particulars in order to invoke the provisions of S. 12(2), C.P.C. and same should be in connection with the proceedings of the court and not prior to its initiation or after decision of the court---In the present case, no fraud was committed on the dates when impugned orders were passed, provisions of S.12(2), C.P.C., therefore, could not be invoked by the applicants---No allegation of fraud had been alleged against the contesting defendants of the suit---Limitation for filing an application under S.12(2), C.P.C. was three years and present application was time-barred---No application for condonation of delay had been filed to justify the delay of each and every day---Application under S.12(2), C.P.C. was dismissed in circumstances.

Mrs. Afroz Shah and others v. Sabir Qureshi and others PLD 2010 SC 913; Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Agha Ghazanfar Ali v. Shaukat Ali and others 1997 SCMR 1006; Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Abdur Rehman Khan v. Muhammad Altaf and 3 others 1997 CLC 1260; Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166; Mumtaz Bibi and others v. Ghulam Akbar PLD 1995 Pesh. 81; Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691; Mazloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571; Messrs Safa Textile Ltd. v. Messrs Habib Bank Ltd. and others 2004 CLD 279; Shakil Ahmed v. SSP and others 2007 CLC 975; Arshadullah and another v. Muslim Commercial Bank and others 2008 SCMR 640; Lal Khan v. Additional District Judge, Jhelum and others 1993 CLC 731; Hassamuddin v. Al-Zamin Leasing Modaraba and 5 others 2007 CLD 1600; Muhammad Ramzan and 3 others v. The State and another 2010 YLR 1227; Muhammad Iqbal Siddiqui v. Bashir Ruiwala, 1989 CLC 1091; Pio Khan v. Sar Anjam Khan and another PLD 2004 SC 351; Mst. Hafeezen v. Rana Zaheer-ud-din and another 1999 YLR 2214; Izzat Khan and others v. Province of Sindh and others 1999 YLR 1180; Nathu Khan v. Muhammad Rafiq and another 1987 CLC 1501; Hyesons Sugar Mills (Pvt.) Ltd. v. Consolidated Sugar Mills Limited and others 2003 CLD 996; Mst. Hamida Begum v. Muhammad Saleem, 1988 CLC 2456; Syed Ameer Hussain Shah v. Syed Dilbar Hussain Shah and 3 others 2011 MLD 1956; Miss Shazia Ashraf v. Municipal Committee, Sahiwal, through Administrator and another 2006 CLC 1018; Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation 2006 CLD 687; Shaikh Ahmad and two others v. Muhammad Sadiq and another 2003 YLR 1689; M. Yousuf Adil Saleem and Co. and 7 others v. Hamid Masood 2007 CLC 994; Faizum alias Toor v. Nader Khan and others 2006 SCMR 1931; Messrs Dadabhoy Cement Industries Limited and 6 others v. Messrs National Development Finance Corporation, Karachi PLD 2002 SC 500; Muhammad Iqbal Kamdar v. Muhammad Tahir Ahmadani and 12 others 2011 MLD 835 and Mst. Shabana Irfan v. Muhammad Shafi Khan and others 2009 SCMR 40 ref.

Mrs. Afroz Shah and others v. Sabir Qureshi and others, PLD 2010 SC 913; Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Agha Ghazanfar Ali v. Shaukat Ali and others 1997 SCMR 1006; Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Abdur Rehman Khan v. Muhammad Altaf and 3 others 1997 CLC 1260; Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166 and Mumtaz Bibi and others v. Ghulam Akbar PLD 1995 Pesh. 81 distinguished.

Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691; Mazloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571; Nathu Khan v. Muhammad Rafiq and another 1987 CLC 1501; Hyesons Sugar Mills (Pvt.) Ltd. v. Consolidated Sugar Mills Limited and others 2003 CLD 996; Mst. Hamida Begum v. Muhammad Saleem, 1988 CLC 2456; Syed Ameer Hussain Shah v. Syed Dilbar Hussain Shah and 3 others 2011 MLD 1956; Miss Shazia Ashraf v. Municipal Committee, Sahiwal, through Administrator and another 2006 CLC 1018; M. Yousuf Adil Saleem and Co. and 7 others v. Hamid Masood 2007 CLC 994; Messrs Dadabhoy Cement Industries Ltd. and 6 others v. Messrs National Development Finance Corpora-tion, Karachi PLD 2002 SC 500; Mst. Shabana Irfan v. Muhammad Shafi Khan and others 2009 SCMR 40 and Ghulam Hussain Shah v. Ghulam Muhammad PLD 1974 SC 344 rel.

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

---S.2(2)--"Decree"---Meaning-- "Decree" was formal expression of an adjudication which would conclusively determine the rights of parties with regard to all or any of the matters in controversy in the suit which might be either preliminary or final.

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

----S. 2(9)&(2)---"Judgment"---Meaning---"Judgment" was the statement given by the Judge of the grounds of a decree or order.

Judicial Miscellaneous No.50 of 2005.

Akhtar Hussain and Masaud Ghani for Applicants.

H.A. Rahmani for Plaintiff.

Mirza Sarfaraz Ahmed for Defendants Nos.1 and 2.

Faisal Siddiqui for Defendant No.3.

Ijaz Khattak for Defendant No.4.

Abdul Qadir Leghari for Defendant No.5.

Abid S. Zuberi for Defendants Nos. 6 to 9.

Judicial Miscellaneous No. 47 of 2012.

Akhtar Hussain and Masaud Ghani for Applicants.

Mirza Sarfaraz Ahmed for Plaintiff

Ziauddin Ahmed Junejo, A.A.-G. for Defendant No.1.

Muhammad Idrees Alvi for Defendant No.2.

Ijaz Khattak for Defendant No.3.

H.A. Rahmani for Intervener.

Abid S. Zuberi for Interveners.

Faisal Siddiqui for Intervener.

Dates of hearing: 5th, 21st, 26th, 27th, 29th November, 4th December, 2013 and 29th May, 2014.

2015 Y L R 327

[Sindh]

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

MUHAMMAD RAMZAN and others---Appellants

Versus

The STATE---Respondent

Spl. Cr. A.T. Appeals Nos.14, 15 and 17 of 2010, decided on 23rd January, 2014.

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

----Ss.365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Act of terrorism, kidnapping or abduction for extorting property, valuable security etc., common intention---Appreciation of evidence---Besides alleged abductee, the only eye-witness of the alleged incident was the first informant of the incident---Prosecution witness/Sub-Inspector of Police did not support the version of other prosecution witness regarding number of accused persons---Manner in which said S.I.P. claimed to have reached the house of alleged abductee, and lodged the F.I.R., was neither natural nor confidence inspiring---Prosecution story being foundation on which edifice of the prosecution case was raised, occupied a pivotal position in case, it should, in circumstance stand to reason and must be natural convincing and free from any inherent improbability---Neither safe to believe a prosecution story which did not meet said requirements, nor a prosecution case based on improbable prosecution story could sustain conviction---Sub-Inspector of Police did not appear to be natural to dress himself up as Investigating Officer, as his role and manner was against the Police Rules and Police Order; it was not free from doubt, rather had brought clouds over the very story of abduction---Root of the case became so shaky that it could not hold the conviction of accused---Investigation had not been conducted honestly as false improvements had been made; and evidence was arranged so as to strengthen the prosecution story---Alleged abductee, no doubt had stuck with allegation of her abduction, but nowhere she specified any role to any of accused persons, nor even alleged that they were those accused---Mere sticking with allegation of abductee, was not sufficient to prove the guilt in circumstances---Evidence of alleged abductee being not direct against accused persons, same was not sufficient for holding conviction against accused persons---Confessional statements of accused persons, were not in line with each other---Retracted confession would not fit in prosecution story---Witness, who allegedly identified two accused persons, was not the witness of incident---Only abductee had alleged that at the time of her abduction, the culprits were armed with pistol---Such aspect of the evidence was not helpful for prosecution---Impugned judgment of the Trial Court, was set aside and accused were directed to be released, in circumstances.

Pervaiz Masih v. State 2005 PCr.LJ 1232; Mst. Askar Jan v. Muhammad Daud 2010 SCMR 1604; Dhani Bakhsh v. State 2006 PCr.LJ 1671; Abdul Hameed v. State 2012 PCrLJ. 653; Muhammad Shah v. State 2010 SCMR 1009; Sabir Ali v. State 2011 SCMR 629; Shafqat Mehmood v. State 2011 SCMR 537; Muhammad Pervez and others v. State 2007 SCMR 670; Ghulam Qadir v. State 2008 SCMR 1221; Muhammad Akram v. State 2009 SCMR 230; State through Advocate-General, Sindh v. Mooso 2006 SCMR 1257; Abdul Sattar v. State 2005 MLD 1911; Dr. Khalid Moin v. State 2006 PCr.LJ 639; Abdul Latif v. Additional District Judge, Khanewal 2008 SCMR 366; Nazir Shehzad v. State 2009 SCMR 1440; Mir Muhammad v. State 1995 SCMR 610; Fazal Rehman v. The State PLD 2004 SC 250; Elahi Bakhsh v. State 2005 SCMR 810; Anwar Shamim v. State 2010 SCMR 1791; Mst. Shamim v. The State 2003 SCMR 1466; State v. Bashir and others PLD 1997 SC 408; Yasin v. State 2008 SCMR 336 and Ibrar Hussain v. The State 2007 SCMR 605 ref.

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

----S. 164--- Confession--- Retracted confession---Scope---True confession, was always a call of conscious, which compels accused to confess, despite knowing the consequence of his/her confession---Retracted confession in absence of direct, confidence inspiring and natural evidence was not solely sufficient to hold the conviction.

(c) Criminal trial---

----Appreciation of evidence---Principles---Principles of appreciation of evidence were that where ocular testimony would fail, or was found suffering from material discrepancies, and had lost its intrinsic value; same could not be corroborated by any other corroborative evidence.

(d) Criminal trial---

----Conviction, basis of---Conviction could not be based on probabilities or suspicions--- Allegation/charge would remain an accusation/allegation, unless it was proved as guilt and it would not matter as to who the complainant was, but criminal administration of justice, only would approve conviction, where charge was proved beyond shadow of doubt against accused, who enjoyed presumption of innocence---Phrase "presumption of innocence" was the golden thread, while "proof beyond a reasonable doubt" was silver one and those two threads were forever intertwined in the fabric of criminal justice---Allegation of abduction of a girl by blood-relation could at the best, be taken as circumstance, but it would not, in any way, diminish the requirement of proof beyond reasonable doubt for holding conviction.

Abdul Razzak for Appellant (in Spl. Cr. A.T. Appeal No.14 of 2010).

Muntazir Mehdi, APG. for the State (in Spl. Cr. A.T. Appeal No.14 of 2010).

Abdul Razzak and Syed Hassan Ali for Appellant (in Spl. Cr. A.T. No.15 of 2010).

Muntazir Mehdi A.P.G. for the State (in Spl. Cr. A.T. No.15 of 2010).

Abdul Razzak for Appellant (in Spl. Cr. A.T. No.17 of 2010).

Muntazir Mehdi, A.P.G. for the State (in Spl. Cr. A.T. No.17 of 2010).

Dates of hearing: 3rd, 10th and 17th December, 2013.

2015 Y L R 360

[Sindh]

Before Muhammad Ali Mazhar and Naimatullah Phulpoto, JJ

MUDASSAR AHMED KHAN---Appellant

Versus

The STATE---Respondent

Accountability Appeal No.7 of 2011, decided on 19th December, 2014.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 10 & 32---Penal Code (XLV of 1860), S. 409---Criminal Procedure Code (V of 1898), Ss.382-B & 401---Pakistan Prisons Rules, Rr.199 to 223---Corruption and corrupt practices---Criminal breach of trust by public servant---Consideration of period of detention while awarding sentence of imprisonment---Remission---Awarding of---Accused was sentenced to 14 years, and in default of fine one year more---Total sentence with fine was 15 years as mentioned in the latest roll---Unexpired portion of sentence of accused was 5 years and one month with fine---Accused did not question the conviction awarded to him by NAB court, but he argued that if pre-conviction and post-conviction remissions were included, he had already served more than 16-1/2 years---According to accused, he had completed the entire sentence; and deserved his release from jail forthwith---Superintendent Central Prison, had failed to calculate proper remission; and accused had also been deprived of the entitlement of remission for the era of his pre-conviction---Accused had already served out more than 16 years conviction; and had the Jail authorities calculated the remission properly, accused would have been released much earlier---Maintaining the conviction of accused, Superintendent of Central Prison, was directed to calculate the remission; and if on awarding the remission in accordance with Chapter 8 of Pakistan Prisons Rules, it was found that accused had already served 15 years sentence, he would be released forthwith, in circumstances.

Appellant in person.

Noor Muhammad Dayo A.D.P., NAB for Respondent.

Date of hearing: 19th December, 2014.

2015 Y L R 398

[Sindh]

Before Abdul Rasool Memon and Ghulam Sarwar Korai, JJ

SALEEM KHAN and another---Appellants

Versus

The STATE through Anti-Narcotic Force---Respondent

Criminal Appeals Nos.460 and 461 of 2010, decided on 23rd January, 2014.

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

----Ss. 9(c), 14 & 15---Smuggling of narcotic, aiding, abetment or association in narcotic offences---Appreciation of evidence---Benefit of doubt---Police Officer who was material and star witness of the entire prosecution case, was not examined by Investigating Officer---Evidence of a witness whose statement had not been recorded during the investigation, was not worth reliance---Evidence of said witness, nowhere disclosed, whether at the time of placing suitcase by accused in the container, he had noted any mark of identification on the same---Said witness had also admitted that the suit case in question was not opened, or any heroin was recovered from it in his presence---Evidence of such witness, appeared to be manoeuvered, and set up one for the reason that he not only failed to note number of vehicle wherein said suit case was allegedly brought; and could not give the number of Bay where aeroplane was parked---No other evidence was brought against accused persons---Trial Court had recorded the conviction against accused without any incriminating material/ evidence on record---Impugned judgment, was set aside, and accused persons were acquitted of the charge and were ordered to be released extending them the benefit of doubt, in circumstances.

Muhammad Noor and others v. The State 2010 SCMR 927; Muhammad Aslam v. The State 2011 SCMR 820; Arshad Mahmood v. The State PLD 2008 SC 376; Khan Bacha v. The State PLD 2006 Kar. 698; Abdul Khalid v. The State 2006 SCMR 1886; Muhammad Ramzan v. Rahib and others PLD 2010 SC 585; Zulfiqar Hussain and another v. The State 2011 SCMR 379; Muhammad Idrees v. The State 2011 PCr.LJ 552; Muhammad Shah v. The State 2010 SCMR 1009; Azizullah v. The State 2009 YLR 2077; Gul Jehan v. The State 1998 MLD 288; Gulshan Ara v. The State 2010 SCMR 1162; Meer Zeb v. The State PLD 2012 SC 380; 2011 PCr.LJ 552; 1996 MLD 1311 and 1995 PCr.LJ 248 ref.

Aamir Mansoob Qureshi for Appellants.

Shafiq Ahmed, Special Prosecutor ANF for Respondent.

Date of hearing: 11th December, 2013.

2015 Y L R 419

[Sindh]

Before Sadiq Hussain Bhatti, J

KADIR BUX and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-14 of 2013, decided on 28th March, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 114, 148 & 149---Qatl-i-amd, attempt to commit qatl-e-amd, abetment, rioting, common object---Appreciation of evidence---Evidence adduced by injured complainant and other prosecution witnesses, was unblemished, trustworthy and confidence inspiring---All of them identified accused persons and had stated the role played by each accused---Testimony of said prosecution witnesses remained unshattered during the cross-examination---Defence, despite their efforts could not get any favour from the statements of said witnesses---Such evidence, which was unchallenged, could not be brushed aside on relationship and interested complainant, when presence of complainant at the "vardat" was not challenged---All said prosecution witnesses, had fully corroborated the contents of the F.I.R. and the statement of complainant---Medical Officer's testimony further supported the ocular testimony---No recovery of any firearm having been made, empty cases were not sent for Ballistic Analysis---Hatchet recovered at the pointation of co-accused, was non-blood stained, as same was not used in the alleged offence---Motive was proved through the evidence of eye-witnesses---Trial Court, in circumstances, had rightly convicted accused persons for the offence committed by them with the help and active assistance of absconding accused.

Ghulam Shabbir Dayo and Alam Sher Bozdar for Appellants.

Ubaidullah Ghoto for the Complainant.

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

Date of hearing: 26th February, 2014.

2015 Y L R 456

[Sindh]

Before Aziz-ur-Rehman, J

PAKISTAN RAILWAYS through Chairman and 2 others---Appellants

Versus

Mst. NOOR JAHAN BEGUM through Attorney---Respondent

IInd Appeal No.28 of 2010, decided on 27th January, 2014.

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

----S.54---Qanun-e-Shahadat (10 of 1984), Arts.100 & 126---Suit for permanent injunction---Thirty years old document, presumption of---Ownership of property---Onus to prove---Concurrent findings of fact by two Courts below---Plaintiff had been owner in possession of suit land since year, 1964, and her grievance was that authorities were illegally interfering in her possession---Suit was concurrently decreed in favour of plaintiff by Trial Court and Lower Appellate Court---Validity---Plaintiff had fully established her ownership as well as her possession over suit plot through evidence, since year, 1964---Burden of proof was on the shoulders of authorities to have proved that plaintiff was not owner of suit plot and such burden was not discharged by them---Allotment order in favour of plaintiff was 30 years old document and was also protected under Art. 100 of Qanun-e-Shahadat, 1984---Presumption of truth was attached to execution of 30 years old document, which presumption had not been rebutted---High Court declined to interfere with concurrent findings of two Courts below, as judgments and decrees were validly and lawfully passed---Second appeal was dismissed in circumstances.

Fakirbhai Bhagwandas and another v. Maganal Haribhai and another AIR (38) 1951 Bombay 380; Muhammad Azam v. Pakistan Emploiyees Cooperative Housing Society Karachi and others PLD 1973 Note 84 Pg 119; UBL v. Muhammad Azim and another PLD 1985 Kar. 215; Muhammad Darvesh v. Haji Muhammad Hussain 1999 CLC 106 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 ref.

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

----Art.100---Unregistered thirty years old document---Presumption---Even if, a document is 30 years old and not registered one, then too presumption of truth is attached/available to such document under law.

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

----S.54---Civil Procedure Code (V of 1908), S.80---Suit for permanent injunction--- Maintainability--- Statutory notice, non-issuance of---Effect---No notice by authorities was served upon plaintiff before demolishing construction/ boundary wall, and such action on the part of authorities was against law of natural justice---Plaintiff under such circumstances was left with no option but to seek injunction promptly without any loss of time through filing of suit---Non-service of notice under S.80, C.P.C. did not render suit as not maintainable---In absence of any notice, Trial Court was to allow not less than three months' time to government for submitting its written statement---Suit was maintainable in circumstances.

The Government of Punjab through Collector Gujranwala District and another v. Shah Muhammad PLD 1982 Lah. 115 rel.

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

----S.100---Second appeal---Scope---Court cannot interfere with concurrent findings of fact second appeal, merely on the ground of mis-appreciation of evidence.

Latif-ur-Rehman Khan Survey for Appellants.

S. Ali Bin Adam Jafri for Respondent.

Date of hearing: 11th December, 2013.

2015 Y L R 489

[Sindh]

Before Aftab Ahmad Gorar, J

Syed RAZA ABBAS---Petitioner

Versus

Mst. SANA SAEED SATTAR and 2 others---Respondents

Constitution Petition No. S-955 of 2012, decided on 25th June, 2014.

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

---S. 25--- Constitution of Pakistan, Art. 199--- Constitutional petition---Application for custody of minor---Father moved application for custody of minor son and daughter which was dismissed concurrently---Validity---Both the twin minors were aged about 5 years---Father had contracted third marriage and from the said wedlock he had a baby---Lap of a real mother was God's own cradle---Step mother could not be equated with a real mother when she had her own minor baby---No jurisdictional error or any perversity, illegality or infirmity was pointed out in the impugned orders passed by the courts below---Constitutional petition was dismissed in circumstances.

PLD 1958 (W.P.) Kar. 150; 1979 CLC 4; 2010 YLR 1309; PLD 1961 (W.P.) Lah. 768; 2005 CLD 398; PLD 2002 SC 84; 2002 CLC 1206; 1986 CLC 1680; 137 IC 219; PLD 1975 Lah. 86; PLD 1972 Pesh. 1; 1996 CLC 1; 2000 SCMR 838; 2004 SCMR 821; 2008 SCMR 480; 1992 CLC 1487; 1998 MLD 1003; 2005 MLD 256; 2012 CLC 759; 2013 CLC 601; 2013 CLC 1749; 2013 CLC 1784; 2013 CLC 568; 1998 SCMR 1593; 2010 CLC 1281 and 2012 CLC 784 ref.

PLD 1958 (W.P.) Kar. 150; 1979 CLC 4; 2010 YLR 1309; PLD 1961 (W.P.) Lah. 768; 2005 CLD 398; PLD 2002 SC 84; 2002 CLC 1206; 1986 CLC 1680; 137 IC 219; PLD 1975 Lah. 86 and PLD 1972 Pesh. 1 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Constitutional jurisdiction was discretionary which was meant to foster justice and to remedy wrong but same could not be allowed to invoke in routine course as an additional remedy to hamper the findings of facts correctly recorded by the courts below concurrently.

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

----O.I. R.10---Impleading of a party in the proceedings---Object---Purpose of impleading any person in the proceedings was to effectually and completely adjudicate upon and settle all the questions involved in the same---Proceeding with regard to custody of minor would be between mother and father of minors and all questions relating to such proceedings could be effectually and completely adjudicated upon without the insertion of any other person.

Badar Alam Assisted by Ms. Rubya Badar and Ahsan Imam Razvi for Petitioner.

Aamir Mansoob Qureshi assisted by Zayyad Khan Abbasi for Respondent No.1.

Date of hearing: 16th April, 2014.

2015 Y L R 519

[Sindh]

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

MUHAMMAD BUX---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.137, Criminal Jail Appeal No.179, Criminal Acquittal Appeal No.163 and Confirmation Case of No.2 of 2009, decided on 21st January, 2014.

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

----Ss. 302(b) & 392---Qatl-e-amd, robbery---Appreciation of evidence---Incident was unseen, prosecution case rested upon the circumstantial evidence---Accused driver of the deceased, and his wife (co-accused) were deputed for the care of a special child of the deceased, both should have been present in the house/place of occurrence at the time of incident---Injuries on the person of the deceased, were not disputed, nor defence side had come with the plea of those injuries being self-suffered---Nature and locale of the injuries, had made it clear that victim was murdered---Investigating Officer did not observe the procedure strictly while making arrest of accused persons---Any irregularity on the part of Investigating Officer, should not result in prejudicing the case of complainant, especially in heinous cases---Prosecution had established the recovery of the articles belonging to the deceased from the possession of accused persons, which had provided a link towards connection of accused persons with commission of offence---Finger-print of accused on the glass, recovered from the place of incident, prima facie had proved a corroborative piece of evidence against accused---Confessional statement of accused appeared to be in line with circumstantial evidence, coupled with recovery---Accused did not complain about any maltreatment, pressure or coercion at the time of his confessional statement---Exclusion of confessional statement, did not cause any effect upon the chain of unbroken links of surrounding circumstances/relevant facts, which, otherwise, had proved the guilt of accused---Irregularities in investigation, were not of any help to the defence, because certain material facts, had made unbroken chain of circumstances, which had prima facie established the guilt of accused---Trial Court, in circumstances, had committed no illegality, while holding accused guilty---Impugned judgment of the Trial Court, whereby accused was awarded sentence of death, being well reasoned and in accordance with law, did not warrant any interference---Appeal of accused, was dismissed, in circumstances.

Mehmood Ahmed and others v. The State and another 1995 SCMR 127; Naveed Abbas v. The State 2011 MLD 811; Muhammad Khan v. The State 1999 SCMR 1220; Muhammad Iqbal v. The State 2001 SCMR 624; Muhammad Ilyas v. The State 1993 SCMR 1602; Muhammad Hussain v. The State 2011 SCMR 1127; Wahab Ali v. The State 2010 PCr.LJ 157; Wazir Muhammad v. The State 2005 SCMR 277; Sabir Ali v. The State 2011 SCMR 629; Muhammad Ayoob v. The State 2012 PCr.LJ 1438; Muhammad Shafi v. Muhammad Raza 2008 SCMR 329; Muhammad Pervez and others v. The State 2007 SCMR 670; 2008 SCMR 580; Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103; PLD 2013 Sindh 223; Muhammad Ashraf v. The State 2012 SCMR 419; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Sain Gul Wali Khan v. The State 2003 PCr.LJ 1264; Muhammad Bilal v. The State 2011 PCr.LJ 1062; Muhammad Tasaweer v. Hafiz Zulkarnain PLD 2009 SC 53; State of Rajasthan v. Shera Ram alias Vishnu Dutta 2012 SCMR 1768; 2010 SCMR 1972; Akbar Khan v. The State 2003 PCr.LJ 107; Ghulam Qadir v. The State 2008 SCMR 1221; State v. Muhammad Naseer 1993 SCMR 1822; Khalid Javed v. The State 2003 SCMR 1419; Khizar Hayat v. The State 2011 SCMR 429; Sarfraz Khan v. The State 1996 SCMR 188; Hamid Mehmood v. The State 2013 SCMR 131 and Jaffar Ali v. The State 1998 SCMR 2669 ref.

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

----Arts.21 & 129---Presumption of existence of certain facts---Circumstantial evidence being based on the facts relating to occasion, cause, or effect, motive, preparation and previous or subsequent conduct which always led to certain logical consequences, legal presumption could be drawn under Arts.21 & 129 of the Qanun-e-Shahadat, 1984---Once the prosecution succeeded in establishing a circumstance, court would be legally justified to presume existence of consequential logical effect against accused, unless same was disproved---Degree of probability, that the occurrence of the facts proved, was so high that the contrary, could not reasonably be supposed.

(c) Criminal trial---

----Evidence---Circumstantial evidence---Scope---Before relying on circumstantial evidence to hold a conviction, great care and caution was required to be taken---Prosecution, in cases revolving around circumstantial evidence, could not be expected to give complete picture of manner of incident, because guilt was based on surrounding circumstances leading to an undeniable theory of guilt---Theory of manner of unseen incident was presumed from surrounding circumstances---Prosecution, in cases circling round the circumstantial evidence, was not strictly expected to prove the manner of incident, but to prove surrounding circumstances which built an un-broken chain of links; excluding all probabilities, that it could be none other, but accused who committed the offence---Failure of any part of such theory, would cause no effect, if otherwise, circumstantial evidence was proved to be complete.

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

----Art. 40---Information and discovery, proof of---Discovery could well be proved within the meaning of Art.40 of Qanun-e-Shahadat, 1984, for which the prosecution was required to establish two ingredients i.e. there must be statement/information by accused; and which should lead to discovery/recovery.

Mst. Askar Jan and others v. Muhammad Daud 2010 SCMR 1604 rel.

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

----S.164---Confession---Retraction, effect--Mere retraction from confession by an accused, could not by itself be made a ground for its rejection---Only requirement in that respect was to ensure that it was voluntary, true and filled in the prosecution story---Prosecution was duty bound to prove that when confession was made, it was voluntary, true and conscious of its maker---Exclusion of confessional statement, would not cause any effect upon the chain of unbroken link of surrounding circumstances/relevant facts which otherwise, had proved the guilt of accused.

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

----S.164---Retracted confession---Effect---Scope---Sole retracted confession of co-accused, could not be made basis for convicting accused, that could at best be used a corroborative piece of evidence.

Nasreen Akhtar v. State 2000 SCMR 1634; Naseem Akhtar v. State 1999 SCMR 1744 and The State v. Asfandyar Wali 1982 SCMR 321 ref.

Abdul Razzak for Appellant (in Criminal Appeal No.137 of 2009).

Ali Haider Saleem, A.P.G. for the State (in Criminal Appeal No.137 of 2009).

M. Ilyas Khan for the Complainant (in Criminal Appeal No.137 of 2009).

Abdul Razzak for Appellant (in Criminal Jail Appeal No.179 of 2009).

Ali Haider Saleem, A.P.G. for the State (in Criminal Jail Appeal No.179 of 2009).

Ali Haider Saleem, A.P.G. and for the State (in Criminal Acquittal Appeal No.163 of 2009).

M. Ilyas Khan for the Complainant (in Criminal Acquittal Appeal No.163 of 2009).

Farooq Rasheed for Respondent (in Criminal Acquittal Appeal No.163 of 2009).

Dates of hearing: 29th, 30th and 31st October, 19th November, 4th and 5th December, 2013.

2015 Y L R 550

[Sindh]

Before Muhammad Ali Mazhar, J

NASEEM-UL-HAQ through Attorney and another---Plaintiffs

Versus

RAES AFTAB ALI LASHARI through Guardian ad-litem and 5 others---Respondents

Suits Nos.167 and 439 of 2012, decided on 12th February, 2013.

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

----S.42---Declaration of title---Scope---Object of S. 42 of Specific Relief Act, 1877, is to perpetuate and strengthen testimony regarding title of plaintiff and to secure possession of property to wrong party---Person can seek aid of court to dispel cloud in the case which is cast upon his title or legal character---No justification existed for assuming that suit for declaration as to status claimed by plaintiff cannot be maintained---Any man's legal character is generally taken as the same thing as a man's status---Words "right to as to any property" are to be understood in a wider sense than "right to property" and words "interested to deny" denotes that defendant is interested in denying right of plaintiff or his legal character---Denial of right constitute a cause of action to maintain an action under S. 42 of Specific Relief Act, 1877---Relief of declaration is a discretionary relief and can be granted in the case where substantial injury is established and in absence of denial of right no relief of declaration can be granted---Provision of S. 42 of Specific Relief Act, 1877, is not exhaustive of circumstances in which declaration is to be given---Declaration can be given even in the circumstances not covered by S. 42 of Specific Relief Act, 1877, in which case general provision of law gives declaration sought---Court in substance has to see whether plaintiff, in facts and circumstances of the case should or should not grant declaration.

Major General Shanta Shansher Jung Bahadur Rana v. Kemani Brother Private Ltd. AIR 1959 Bombay 201; I.L.R. 39 Mad 80 = AIR 1915 Mad. 584; AIR 1955 Mad. 111 and AIR 1940 Cal 225 rel.

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

----S.42---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration---Rejection of plaint---Scope---Defendant filed application under O. VII, R. 11, C.P.C. for rejection of plaint---Validity---In order to decide application for rejection of plaint, averments made in plaint were to be seen for the purpose of determining whether plaintiff had disclosed any cause of action or it was barred by any law---Lack of proof or weakness of proof did not furnish any decision for coming to the conclusion that there was no cause of action showed in the plaint---In case of controversial question of fact or law, court was to frame issue on such question and decide the same on merits in the light of evidence---Defendant failed to make out a case for rejection of plaint under O. VII, R.11, C.P.C.---Application was dismissed in circumstances.

Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana 2007 CLC 1790; Administrator, Thal Development v. Ali Muhammad 2012 SCMR 730; Muhammad Manzoor through Legal Heirs and others v. Province of Punjab 2011 CLC 1235; Muhammad Ali v. Province of Punjab and others 2005 SCMR 1302; Pir Bux v. Muhammad Moosa and others 2007 YLR 1880 and Mst. Bano alias Gul Bano and others v. Begum Dilshad Alam and others 2011 CLC 88 ref.

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

----O.XXXIX, Rr.1 & 2---Interim injunction---Object and scope---Injunction is a preventive relief and is generally granted taking note of equity---Relief by way of interlocutory injunction is granted to mitigate risk of injustice to plaintiff during period before uncertainty can be resolved---While granting injunction court has to consider whether prima facie case is made out with two important factors that is elements of balance of convenience and irreparable injury---In order to make out a prima facie case, plaintiff need not establish his title; it is enough if he can show that he has fair question to raise as to existence of right which he alleged and can satisfy court that property in dispute should be preserved in its present actual condition until such question is disposed of---Plaintiff should establish that balance of convenience in event of withholding relief of temporary injunction in all event exceeds that of defendant in case he is restrained---Plaintiff must show a clear necessity for affording protection to his alleged right which can otherwise be seriously injured or impaired---Where legal injury caused to plaintiff is far greater than those that may be caused to defendant, grant of temporary injunction is proper---Term "irreparable injury" meant an injury which is substantial and cannot be adequately remedied for by damages.

Farooq Hassan v. International Credit and Investment Company 1996 CLC 507 rel.

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

----O.XL, R.1 & O.XXXIX, Rr.1 & 2---Receiver, appointment of---Term "just and convenient"---Object, scope and purpose "Order of appointment of receiver" and that for "temporary injunction"---Distinction---Appointment of receiver is an act of court and made in the interest of justice---Words "just and convenient" do not mean that court is to appoint receiver simply because court thinks it convenient---Such order is discretionary and discretion must be exercised in accordance with principles on which judicial discretion is exercised---Term "just and convenient" used in O. XL, R. 1, C.P.C. does not mean arbitrary whim or pleasure of the court---Appointment of receiver deprives a person from enjoyment of property and, therefore, it has been regarded as harsh remedy---Distinction between a case in which temporary injunction may be granted and a case in which receiver may be appointed is that while in either case it must be shown that property should be preserved from waste and alienation---In the former case it is sufficient that if it be shown that plaintiff in the suit has a fair question to raise as to existence of right alleged while in the latter case a good prima facie title to property over which receiver is sought to be appointed has to be made out---Court may appoint receiver not as a matter of course but as a matter of procedure having regard to justice of situation---Receiver cannot be appointed unless there is some substantial background for such interference that property in suit dissipated or other irreparable mischief may be done, unless court appoints a receiver---Main purpose for appointment of receiver over disputed property is to protect and preserve the same pending judicial determination.

Ehsanullah Khan Afridi v. Province of Sindh through Secretary Land Utilization Department 2007 YLR 2204; Motherwell Bridge Contracting and Trading Co. Ltd., v. Riaz Ali Khan and others PLD 1978 Kar. 1093; Asadullah Mirbahar and another v. Mrs. Ayesha Muzahir through Attorney and 9 others PLD 2011 Kar. 151; Bahadur Khan v. Qabool Ahmed and 4 others 2005 CLC 1937; Iqrar Muhammad Siddiqi v. Mst. Shahid Zareen PLD 1997 Kar. 409; Miss Qamar Ali v. Syed Nadir Ali and others 1993 CLC 605 and Muslim Commercial Bank Ltd. v. Panama Trading Co. (Pvt.) Ltd. 1998 MLD 1844 ref.

Mushtaque A. Memon for Plaintiff (in Suit No.167 of 2012).

Yawar Farooqui and Irfan Ahmed Memon for Defendants Nos. 1 and 3 (in Suit No.167 of 2012 and for Plaintiff in Suit No.439 of 2012).

Ahmed Pirzada for Board of Revenue in both cases.

Khawaja Shams-ul-Islam for Defendant No.5 (in Suit No.439 of 2012).

Dates of hearing: 9th, 15th August, 6th September, 12th, 19th and 25th October, 2012.

2015 Y L R 582

[Sindh]

Before Abdul Rasool Memon and Ghulam Sarwar Korai, JJ

MUHAMMAD ASLAM and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.207 and Confirmation case No.1 of 2008, decided on 6th February, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances--- Confession made by accused was not proved to be under any pressure---Judicial Magistrate, who had recorded confessional statement of accused, not only observed all legal formalities, but had satisfied himself that confession was made by accused voluntarily and was truthful---Strong corroborative circumstances had proved the guilt of accused---Motive as set up in F.I.R., which seemed to be unbelievable, was not proved---Accused was proved to be guilty of the charge of committing qatl-i-amd of the deceased---Prosecution having proved its case against accused, no improbability or illegality existed in the judgment of the Trial Court to that extent---Motive as alleged in the F.I.R., having not successfully been proved, sentence of death awarded to accused, was converted into life imprisonment, in circumstances.

Asif Mehmood v. The State 2005 SCMR 515; Muhammad Fazil v. The State 2006 SCMR 1432; The State v. Muhammad Rafiq PLD 2004 SC 39; Zeeshan Afzal alias Shani and another v. The State 2013 SCMR 1602; Hasil Khan v. The State 2012 SCMR 1936; Muhammad Ikram alias Billa and another v. The State 1999 SCMR 406; Arshad Hussain Shah v. The State 1989 ALD 220(2); Charagh Din and others v. The State 1987 SCMR 101; Muhammad Akram v. The State 2003 SCMR 855; Shaukat Ali v. The State 2003 YLR 184; 1999 SCMR 1199 and Saeed Akhtar's case 2000 SCMR 383 ref.

PLD 2007 SC 202 and 2003 SCMR 855 rel.

(b) Criminal trial---

----Motive---Failure to prove motive---Effect---Where motive as alleged by the prosecution had not been proved successfully, same might be considered as a mitigating circumstance qua quantum of sentence.

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

----S. 201---Causing disappearance of evidence of offence or giving false information to screen offender---Ingredients of offence under S.201, P.P.C.---Co-accused were alleged to have participated in causing evidence of commission of offence to disappear and intention in order to screen offender from legal punishment---Three ingredients must be proved; in order to constitute offence under S.201, P.P.C., (a) knowledge of accused that offence had been committed; (b) participation of accused in causing evidence of the commission of the offences to disappear; and (c) intention of accused to cause the disappearance of evidence in order to screen the offender from legal punishment---None of the said ingredients having been proved by the prosecution for sustaining charge under S.201, P.P.C. against co-accused persons, conviction and sentence awarded to them, were set aside, in circumstances.

Mahmood A. Qureshi for Appellants.

A.Q. Halepota for the Complainant.

Mrs. Akhtar Rehana, Additional Prosecutor General for the State.

Date of hearing: 6th November, 2013.

2015 Y L R 600

[Sindh]

Before Mushir Alam, C J and Sadiq Hussain Bhatti, J

Messrs HASCOL PETROLEUM LTD., through General Manager---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and National Resources, Pakistan Secretariat, Islamabad and another--Respondents

Constitutional Petitions Nos. D-2968, D-3003 and D-3011 of 2011, decided on 23rd May, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Presence of alternate remedy---Scope.

If an order or action complained of is patently illegal, void or wanting in jurisdiction that any recourse to the alternate remedy may only be counter productive and the mischief could be nipped in the bud by approaching the High Court under Article 199 of the Constitution, then even in the presence of alternate remedy a constitutional petition would be maintainable. However, for this purpose, the petitioner has to show that the order/ action impugned is clearly made in violation of any rule or law. If it is shown by the petitioner that the impugned order/ action has been made in violation of any rule/procedure/law, then the petition would be maintainable, however, if it is shown by the respondent that the action/order assailed in the petition was taken strictly in accordance with the rule/law/procedure, then the petition could be dismissed as not maintainable.

Col. (Retd.) Maqbul Illahi through Attorney v. Pakistan Defence Officers Housing Authority 2009 YLR 282 and Dr. Akhtar Hussain Khan v Federation of Pakistan and others 2012 SCMR 455 rel.

(b) Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971---

----Rr. 28, 30-A, 33 & 44---Constitution of Pakistan, Art. 199---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), S. 12--- Constitutional petition---Non-construction of infrastructure by Oil Marketing Company for maintaining 20 days stock of petroleum products for catering any emergent situation---Order imposing penalty on defaulting company challenged through an appeal filed under S. 12 of Oil and Gas Regulatory Authority Ordinance, 2002---Issuance of notice by authority during pendency of such appeal suspending provisionally marketing activities of defaulting company till compliance of terms and conditions of their license---Company's plea was that after imposing penalty, authority was not legally justified to take coercive measure by suspending its activities before expiry of appeal period---Validity---Authority under Rr. 33 & 44 of Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 could revoke/suspend license, impose fine and sentence him to imprisonment in case of violation of terms and conditions of license---Powers of Authority to impose fine and suspend license of defaulting company were co-extensive, thus, exercise of one power would not oust exercise of other power by Authority---Filing of appeal against imposition of fine, in absence of restraining order, would not mean that authority had been restrained from taking any other action as per law---Company could challenge order of suspension of license by filing an appeal under S. 12 of Oil and Gas Regulatory Authority Ordinance, 2002 and then could avail remedy of review under S. 13 thereof---Authority was competent to impose fine as well as revoke/suspend license of defaulting company--- High Court dismissed constitutional petition in circumstances.

Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279; Wi-Tribe Pakistan Limited v. Federation of Pakistan through Federal Secretary, Information Technology and Telecom, Islamabad and another PLD 2009 Isl. 41 and Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 ref.

Saleem Thepdawala for Petitioner (in Constitutional Petition No.D-2968 of 2011).

Salman Talibuddin for Petitioner (in Constitutional Petition No.3003 of 2011).

Taimoor Ali Mirza for Petitioner (in Constitutional Petition No.D-3011 of 2011).

Asim Iqbal for Respondent.

Muhammad Ashraf Mughal, D.A.G. for the State.

Dates of hearing: 8th February, 12th and 14th March, 2013..

2015 Y L R 647

[Sindh]

Before Aziz-ur-Rehman, J

Messrs SHELL PAKISTAN LTD. through Attorney---Petitioner

Versus

IVTH ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Constitution Petition No.S-129 of 2009, decided on 16th January, 2014.

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

----Ss. 15, 10 & 21---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 tenant---Appeal---Limitation---Scope---Tenancy agreement existed between the parties---Petitioner-company was tenant of respondent and was bound to pay rent with regard to demised premises---Tenant had failed to pay rent to the landlord and had committed wilful default in payment of monthly rent---Appeal was to be filed within 30 days but tenant wasted 62 days in obtaining certified copy---Tenant was not justified to place the landlord in a nuisance or inequitable situation by taking advantage of possession obtained by him in his capacity as a tenant---Once the relationship of landlord and tenant was established then during the occupancy of tenancy agreement, tenant would be deemed estopped from challenging the entitlement of landlord with regard to receipt of rent or otherwise---Once a tenant would remain always a tenant---Constitutional petition was dismissed in circumstances---Tenant was allowed three months time to vacate and hand over peaceful possession of the demised premises to the landlord subject to regular payment of monthly rent and utility bills if any.

Mirza Muhammad Ishaq and others v. Additional Settlement Commissioner Land and others 2005 SCMR 973; Shujahat Hussain v. Muhammad Habib and another 2003 SCMR 176; Mst. Enid Najmuddin and 2 others v. Surriya Mall and others 2011 CLC 1862; Ellahi Bakhsh and others v. Ahmad Bakhsh and others 2012 MLD 1308; Safdar Bugum and 2 others v. Amir Ali Tabrezi 1985 CLC 836; Mst. Noori and another v. Ghulam Muhammad 1989 CLC 797; West Pakistan Industrial Development Corp., Karachi v. Aziz Qureshi PLD 1973 SC 222; Messrs A.C.E. Enterprises through Khalid Pervez v. Addl District Judge, Lahore and others 1987 SCMR 1174; Mukhtiar Ahmed v. IIIrd Additional District Judge 2004 MLD 713; Civil Aviation Authority v. Messrs Providence Aviation (Pvt.) Ltd. 2000 CLC 1722; Kundal Khan v. Agha Jan PLD 1990 Pesh. 21; Afzal Ahmed Qureshi v. Mursaleen 2001 SCMR 1434 and Mst. Ghulam Bibi v. Maqsood Ahmed 2001 MLD 1530 distinguished.

Abdul Malik v. Qaiser Jehan 1995 SCMR 204; Fazal Illahi v. Gul Khan Armed Qureshi 1997 SCMR 945; Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others 1980 SCMR 339; Mst. Amina Begum and others v. Ghulam Dastagir PLD 1978 SC 220; Alah Din v. Habib PLD 1982 SC 465; Mrs. Zarina Khawaja v. Agha Mehboob Shah PLD 1998 SC 190; Irshad Ahmed and others v. Alla Ditta and others 1998 SCMR 948; Saifuddin and another v. Sr.Civil Judge/Rent Controller VIII Karachi South and 7 others 2007 SCMR 128; Amin and others v. Hafiz Ghulam Muhammad and others PLD 2006 SC 549 and Jamila Khatoon and another v. Tajunissa and another PLD 1984 SC 208 ref.

Pramatha Nath Roy v. Lee AIR 1922 PC 352; Jeji Bhoy N. Surty v. T.S. Chettyar AIR 1928 PC 123; Mst. Jamila Khatoon and another v. Mst. Tajunissa and others PLD 1984 SC 208 and Feteh Muhammad and others v. Malik Qadir Bakhsh 1975 SCMR 157 rel.

(b) Sindh Rented Premises Ordi-nance (XVII of 1979)---

----S. 2(f)---"Landlord"---Meaning--Person who was entitled to receive rent would become a "landlord" and he could file an ejectment petition.

Arshad Hussain for Petitioner.

Khalid Javed for Respondent No.2.

Date of hearing: 9th December, 2013.

2015 Y L R 685

[Sindh]

Before Muhammad Iqbal Kalhoro, J

ABID ALI---Applicant

Versus

The STATE and 4 others---Respondents

Criminal Miscellaneous Application No.S-502 of 2014, decided on 15th August, 2014.

Criminal Procedure Code (V of 1898)---

----S.561-A---Inherent powers of High Court--- Scope--- Principles--- Family dispute---Petitioner invoked inherent jurisdiction of High Court to evict respondent from house---Validity---Powers of High Court under S. 561-A, Cr.P.C. are vast and inherent in nature but those are meant to make such orders as may be necessary to give effect to any order under Criminal Procedure Code, 1898, or for the purpose of preventing abuse of process of Court or otherwise to secure the ends of justice---Litmus test applied for exercising such powers is that wrong complained of by applicant must be specific, serious in nature, tangible and justiciable under S.561-A, Cr.P.C. and if however, remedy to applicant is available under any other law then contemplated inherent powers cannot be invoked in favour of applicant---Jurisdiction under S. 561-A, Cr.P.C. can be invoked only in rare cases to secure ends of justice for which no other procedure is available for redressal of grievances expounded by applicant---Jurisdiction under S. 561-A, Cr.P.C. is extraordinary and is designed to do substantial justice and is primarily invoked for providing a quick and expeditious remedy in a case where illegality/action of executive or other authority is established without undertaking an elaborate inquiry into complicated questions of facts because such disputed facts can only be adjudicated upon after recording evidence by Court having jurisdiction---Applicant failed to satisfy High Court regarding criterion for invoking inherent jurisdiction by High Court under S. 561-A, Cr.P.C.---Dispute in question was matrimonial between parties which could only be adjudicated upon after necessary evidence in such respect was recorded before Court having jurisdiction to try such matter---High Court declined to give any sort of direction sought by applicant---Application was dismissed in circumstances.

Mehboob Alam and 3 others v. The State PLD 1996 Kar. 144 and Muhammad Saeed Khan v. The State 2012 PCr.LJ 1337 rel.

Sahib Khan Kanasiro for Applicant.

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

2015 Y L R 691

[Sindh]

Before Shahab Sarki, J

SHAHID HUSSAIN---Appellant

Versus

PREM KUMAR and 2 others---Respondents

Criminal Acquittal Appeal No.S-50 of 2014, heard on 22nd September, 2014.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S.417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Dishonouring of a cheque, which should be towards fulfilment of an obligation, or repayment of loan was an essential ingredient for bringing the case within the ambit of S.489-F, P.P.C.---Complainant, had failed to bring forward any proof which would substantiate that cheque in question was for the fulfilment of any obligation and had completely denied any sort of record regarding the alleged transaction---Complainant was running the business of grains, but he was not keeping any record to establish the transaction---Mere possession/issuance of a cheque was insufficient for convicting accused, but said cheque was to be backed by certain obligation or a loan, which was missing in the present case---Cheque in question, having repeatedly been denied by accused by stating that they had no business transaction with the complainant, heavy burden lay upon the complainant to discharge the onus of proof completely, which he had failed to do---Nothing was wrong with the impugned judgment, as the same was in consonance with law and facts---Appeal was dismissed, in circumstances.

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

----S.417(2-A)---Appeal against acquittal---Scope---Parameters and scope of interference in an appeal against acquittal and appeal against conviction, were quite different---In the case of appeal against acquittal, the interference by a court was unwarranted until and unless the acquittal was, arbitrary, capricious and against record---Appraisal of evidence in an appeal against conviction, was done in a very strict manner, but in an appeal against acquittal, same rigid method was not to be applied; and interference could only be made, where there was gross misreading of evidence amounting to miscarriage of justice.

Ghulam Asghar Abbasi for Appellant.

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

2015 Y L R 701

[Sindh]

Before Amer Raza Naqvi, J

ROSHAN ALI---Plaintiff

Versus

Mrs. PARVIN SALIM SHAH and another---Defendants

Suit No.159 and C.M.A. No.1343 of 2012, decided on 16th September, 2014.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Interim injunction, confirmation of---Parties had agreed to the terms and conditions of agreement which were binding on them---Agreement of sale had been admitted by the defendant who had refused to honour the same due to delay in offering payment---Matter could only be resolved by adducing evidence---Plaintiff had made out a case for injunction as prayed for and defendant was required to honour the terms and conditions of agreement---Plaintiff should deposit the sale consideration in the court---Interim injunction granted to plaintiff was confirmed subject to deposit of entire sale consideration with the Nazir of Court within a specified period which would be invested in some profitable scheme of Government.

1993 SCMR 183; 2010 SCMR 537; 2007 CLC 1058 and 2014 MLD 368 ref.

Sardar M. Yousuf for Plaintiff.

Shahnawaz M. Sahito for Defendant No.1.

2015 Y L R 715

[Sindh]

Before Muhammad Iqbal Kalhoro, J

ABDUL FATAH---Applicant

Versus

MAHARRAM ALI and 4 others---Respondents

Criminal Revision No.S-49 and M.A. No.3012 of 2014, decided on 18th August, 2014.

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

----Preamble---Object and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, was to stop and prevent forced dispossession of owner or occupier of immovable property by persons having antecedents in land grabbing or in committing fraud.

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

----S.7 (1)---Criminal Procedure Code (V of 1898), S.265(b)(2)---Interim possession--Pendency of trial---Scope---Application filed by complainant was allowed by Trial Court under S.7(1) of Illegal Dispossession Act, 2005 and interim order was passed directing the accused for restoration of possession of property in dispute---Validity---Trial was not started until period of seven days, after supplying of relevant copies to accused, in terms of S. 265(b)(2), Cr.P.C. had expired and charge was framed, which could be considered as a first step towards commencement of trial---Charge was not framed against accused and only he had been supplied copies of complaint and relevant documents on the basis of which Trial Court had passed the order---Trial Court did not attend itself to the condition precedent appearing in S.7 of Illegal Dispossession Act, 2005, before passing the order, which was without lawful authority and was not sustainable in the eyes of law---High Court set aside order passed by Trial Court, as a result application under S.7 of Illegal Dispossession Act, 2005, was deemed to be pending before Trial Court for decision afresh after framing of charge---Revision was allowed accordingly.

2000 SCMR 785; 2008 YLR 1044; 2013 PCr.LJ 953; 2008 PCr.LJ 719; PLD 2011 Lah. 340 and PLD 1987 SC (AJ&K) 65 ref.

Haq Nawaz and others's case 2008 SCMR 785 distinguished.

Zulfiquar Ali Sangi for Applicant.

Nisar Ahmed Bhandbhro for Respondent No.1.

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

2015 Y L R 722

[Sindh]

Before Amer Raza Naqvi, J

FIZA JAVED and another---Petitioners

Versus

PROVINCE OF SINDH through Home Secretary and 6 others---Respondents

Constitutional Petition No.967 of 2014, decided on 25th July, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioners had claimed marriage---Harassment by police---Petitioners expressed apprehension that they would be harassed by the police, although protection was provided to them but they did not appear in the court---Effect---Police were directed to act in accordance with law and if any protection was sought by anyone then such protection should be provided to him/her according to law---If any case had been registered against the petitioners with regard to claimed marriage then same should be disposed of in accordance with law---No unnecessary harassment should be caused to any one and nobody should be arrested in the FIR unless sufficient material was available with the police justifying such arrest---Constitutional petition was disposed of accordingly.

Nemo for Petitioners.

SIP Ali Akbar Police Station Mobina Town and S.I. Madah Hussain Police Station Garden for present.

2015 Y L R 743

[Sindh]

Before Abdul Rasool Memon, J

Syed AIJAZUL HAQUE HASHMI and 4 others---Appellants

Versus

MUHAMMAD OWAIS---Respondent

2nd Appeal No.119 of 2012, decided on 8th May, 2013.

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

----Ss. 100, 115, 47, 104(1) (2) & O. XLIII---Specific Relief Act (I of 1877), S.12---Suit for specific performance---Second appeal/revision against order passed in appeal under S. 104, C.P.C.---Maintainability---Suit was decreed in terms of the compromise---Execution petition was filed in which objections were submitted which were turned down by the executing court---Appeal under S. 104 of C.P.C., in which order passed in execution petition was assailed, was dismissed by the Appellate Court---Validity---Order passed in execution petition did not fall within the definition of decree under S. 2(2) of C.P.C. but that could be challenged in appeal which was expressly allowed by S. 104 or O. XLIII of C.P.C.---Order passed in appeal under S.104 of C.P.C. was not appealable as subsection (2) of S. 104, C.P.C. imposed bar on appeal against order passed by Appellate Court---Deductions of amounts shown by the appellants/judgment debtors in their objections to execution application were not part and parcel of the terms and conditions of the compromise decree---Both the lower courts had rightly turned down the objections raised by the appellants to execution of decree as the executing court had no power to go beyond the terms and conditions of compromise decree---No material had been brought on record to prima facie show that jurisdiction exercised by the courts below was contrary to law or they had materially exercised the jurisdiction illegally or unlawfully---Not only the present appeal but even revision was not maintainable against the impugned order---Appeal was dismissed by the High Court.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional court had limited scope to examine and consider if subordinate court appeared to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

Muhammad Afzal v. Pakistan International Airlines Corporation 2006 YLR 3074 distinguished.

Mian Mushtaq Ahmed for Appellants.

Sardar Sher Afzal for Respondent.

Date of hearing: 11th April, 2013.

2015 Y L R 764

[Sindh]

Before Ghulam Sarwar Korai and Abdul Rasool Memon, JJ

JAVED---Appellant

Versus

The STATE---Respondent

Special A.T.A. No.28 of 2012, decided on 7th November, 2013.

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

----Ss.6 (k), 7 & 25 (8)---Penal Code (XLV of 1860), Ss.385, 386 & 506-B---Criminal Procedure Code (V of 1898), S.561-A---Taking Bhatta (Extortion of money)---Suspension of sentence---Delay in deciding appeal---Inherent jurisdiction of High Court---Bar on suspension of sentence---Accused was convicted by Trial Court and sentenced to five years of imprisonment---Validity---Appeal was to be decided within 7 days and more than two years had passed---Much more time would be required to hear the appeal and dispose of, as there was tremendously heavy backlog of such appeals filed earlier than that of accused---Accused remained in jail throughout the period ever since his arrest---High Court treated the case of accused as one of hardship and suspended the sentence---Bail was allowed in circumstances.

Zulfiqar Ali v. The State 1994 SCMR 548; Allah Din and others v. Special Judge, Anti-Terrorism Court No.1, Lahore and others PLD 2008 Lah. 74; Nadeem Umar v. The State 1999 PCr.LJ 606 and Rizwan and another v. Federation of Pakistan through Secretary Ministry and 2 others 2013 YLR 520 rel.

Fazal-ul-Rehman for Appellant.

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

2015 Y L R 771

[Sindh]

Before Ghulam Sarwar Karoi and Salahuddin Panhwar, JJ

Mst. SHAHNAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 489, 499 and Criminal Revision Application No.179 of 2010, decided on 21st March, 2014.

(a) Criminal trial---

----Evidence--Recovery--Medical evidence--Scope---Value and status of medical evidence and recovery evidence in offences relating to human body, was always corroborative in nature, which alone, could not hold the conviction---Ocular account and circumstances would play a decisive role in a criminal charge.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Complainant while recording the FIR, had not claimed himself to be eye-witness, nor claimed to have seen any proceedings at place of incident, wherefrom dead body was recovered and sent to mortuary---Complainant while deposing in the court, had materially improved his statement---Complainant by said improvements had attempted to come forward as an eye-witness of the incident---Attitude of the complainant, whereby he remained changing his stances, itself brought serious doubts towards his credibility---Complainant party being not resident of near house of accused, they were not natural witnesses of the incident but came forward as chance witnesses, as they failed to justify the reason of their presence at the relevant time---One of the witnesses, did not support the claim of other witnesses and the complainant---Recovery of crime weapon 'Danda' also appeared to be doubtful---Even otherwise such recovery evidence, by standing alone, was never sufficient to hold the conviction---Retracted confession of accused, even found to be voluntary one, could not be held sufficient to hold conviction, if same did not fit in given version by prosecution---Such delayed confessional statement of accused, was recorded after about 9 days of arrest of accused---Such confessional statement of accused, was not even befitting in story---Same, in circumstances could not be safely relied upon to convict accused---Where prosecution was relying on direct evidence, it should not only be direct, but should also successfully stand to be natural and confidence inspiring; whereas in the present case, prosecution though claimed direct evidence, but not under cloth of natural and confidence inspiring---Conviction of accused could not sustain---Where there were two possibilities, one favourable to accused had to be taken---Prosecution having failed in establishing the charge against accused persons beyond reasonable shadow of doubt, conviction and sentence of accused persons, were set aside and they were directed to be released.

NLR 1998 (sic) 449; NLR 1993 (sic) 94; PLD 1996 SC 274; PLD 1987 Lah. 432; 1973 PCr.LJ 387; 2010 YLR 1445; PLD 1978 SC 200; PLD 1991 FSC 53; 2005 SCMR 515; 1988 PCr.LJ 19; PLD 1987 FSC 43; Muhammad Nadeem v. State 2011 SCMR 1517; Azhar Iqbal v. State 2013 SCMR 383; Muhammad Akram v. State 2012 SCMR 440 and Muhammad Ashraf v. The State 2012 SCMR 419 ref.

(c) Criminal trial---

----Witness---Consideration of evidence of chance witness--- Ingredients--- For consideration of evidence of a chance witness, two ingredients were required to be established; (i) if the witness reasonably explained his presence at the spot; (ii) narration of incident by witness should inspire confidence.

Anwar Shamim v. The State 2010 SCMR 1791 rel.

Gulzar Hussain Bukhari for Appellant (in Criminal Appeal No.489 of 2010).

Ms. Akhtar Rehana, Addl. P.G. for the State (in Criminal Appeal No.489 of 2010).

Habib Ahmed for Appellant (in Criminal Appeal No.499 of 2010).

Ms. Akhtar Rehana, Addl. P.G. for the State (in Criminal Appeal No.499 of 2010).

Applicant in person (in Criminal Revision Application No.179 of 2010).

Ms. Akhtar Rehana, Addl. P.G. for the State (in Criminal Revision Application No.179 of 2010).

Dates of hearing: 6th and 14th February, 5th March, 2014.

2015 Y L R 798

[Sindh]

Before Aqeel Ahmed Abbasi, J

ALTAF HUSSAIN---Applicant

Versus

SHO, POLICE STATION, MAHOTTA and 2 others---Respondents

Criminal Miscellaneous Application No.S-241 of 2013, decided on 10th March, 2014.

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

----S. 154---Registration of FIR---If an offence was reported to the SHO, it was his duty to record the same; and if a cognizable offence was made out, to register an FIR---On receiving such complaint, it was the prerogative of the concerned SHO to form an opinion as to whether a cognizable offence was made out or not---In non-cognizable cases, concerned SHO was not obliged to register an FIR, and to arrest the persons nominated therein unnecessarily, in order to avoid abuse of the process of law---Each case, was to be examined and decided on its own peculiar facts and circumstances, which required stringent burden of proof to establish commission of a cognizable offence---SHO though was not required to examine the evidence; or the truthfulness of the alleged offence, he, however, could not in a mechanical manner without applying his mind; at least to the extent of examining the occurrence of the alleged incidence, or commission of a cognizable offence, register an FIR in every case, which did not even suggest commission of a cognizable offence.

Dr. Babar Hussain v. SHO City Courts, Karachi 2013 PCr.LJ 102 and Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 ref.

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

----Ss. 561-A, 22-A & 22-B---Application for setting aside the order of Justice of Peace refusing to direct the SHO to register FIR---Applicant did not report the alleged incidence, nor approached the concerned SHO on the day of occurrence for registration of FIR---Applicant had chosen to approach Ex-officio Justice of Peace, by filing an application under Ss.22-A & 22-B, Cr.P.C. after lapse of about 8 days from the date of alleged incidence---No explanation had been given by the applicant for such delay, nor applicant, even produced alleged eye-witnesses of the incidence before Justice of Peace---Applicant, even in the High Court did not produce any material which could support the allegations, or suggest commission of any cognizable offence---Applicant, had not been able to point out any error or illegality in the impugned order, passed by Ex-officio Justice of Peace who had exercised administrative discretion vested in him under Ss.22-A, 22-B, Cr.P.C., fairly and in good faith---Same could not be interfered with in circumstances.

Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621; Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539 and Mst. Shahzadi v. The State and another PLD 2011 Quetta 32 distinguished.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Muhammad Shabir v. SHO Okara Cantt. and others PLD 2007 SC 539; Syed Ali Shah v. State 2010 MLD 1892 and Nazir Ahmed v. ASJ and others 2011 PCr.LJ 396 ref.

Sarfraz Khan Jatoi for Applicant.

Syed Zamir Ali Shah for Respondent.

Mrs. Seema Imtiaz, A.P.G. for the State.

2015 Y L R 816

[Sindh]

Before Muhammad Junaid Ghaffar, J

Mst. RAZIA---Applicant

Versus

IIND ADDITIONAL SESSIONS JUDGE, HYDERABAD and 3 others---Respondents

Criminal Miscellaneous Application No.S-137 of 2014, decided on 7th May, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of FIR---Preliminary inquiry---Ex-officio Justice of Peace called report from Station House Officer concerned and dismissed application of petitioner---Validity---Ex-officio Justice of Peace called for report from Station House Officer concerned (which he was not required to do so) and merely on the basis of such report, had dismissed application of complainant/ petitioner, without even discussing version of applicant---Ex-officio Justice of Peace did not record any statement of complainant and even failed to call witnesses to record their statements who claimed to be eye-witnesses of the last seen---High Court directed concerned Station House Officer/police authorities to entertain complaint of petitioner, carry out investigation and register FIR against proposed accused, if a cognizable offence was made out---Petition was allowed in circumstances.

Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297; Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Kaura v. The State and others 1983 SCMR 436; Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149 and Khurram Ghani v. The State PLD 2010 Kar. 200 ref.

Mian Taj Muhammad Keerio for Applicant.

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

2015 Y L R 829

[Sindh]

Before Farooq Ali Channa, J

ASIF---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1461 of 2013, decided on 12th February, 2014.

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---Trial likely to be concluded in the near future---Court not to prejudice outcome of trial by attending to merits of the case at bail stage---Accused and co-accused persons allegedly fired at the complainant party, killing the deceased and damaging both eyes of the injured-victim---Most of the prosecution witnesses had been examined, and only two or three witnesses remained to be examined, as such the trial was at the verge of conclusion---Any observation at present stage regarding contradictions pointed out by the accused in the evidence of complainant, would prejudice the case of either side---Further all the accused armed with their respective weapons came to the place of incident which showed their common intention attracting provisions of S. 34, P.P.C.---No case for bail was made out in circumstances.

Muhammad Nawaz v. The State 2002 SCMR 1381 rel.

Ajab Khan Khattak for Applicant.

Uzair Muhammad Khan for the Complainant.

Abdullah Rajpoot, A.P.G. for the State.

2015 Y L R 836

[Sindh]

Before Shahnawaz Tariq, J

KHUDA BUX and 6 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-222 of 2012, decided on 28th February, 2014.

Penal Code (XLV of 1860)---

----Ss. 395, 337-H(2) & 506(2)---Dacoity, rash and negligent act, criminal intimidation---Appreciation of evidence---Benefit of doubt---Complainant party and accused persons were already at litigations and their cases were still pending adjudication before the concerned courts---Both parties belonged to rival political parties---Investigating Officer had admitted in his deposition that accused were respectable persons of locality, and no other FIR was ever registered against them---Political rivalry existed between the parties---Manner of occurrence that accused came on foot at the spot, and after snatching cattle, they took away the cattle on foot could not be believed---Delay of one day in lodging of FIR, had not been plausibly explained---Said delay proved that FIR was result of deliberation, consultation and an afterthought---Snatched buffaloes were recovered from the Jungle, near from the house of accused and nothing was recovered from the accused---Recovery of cattle from the jungle could not be counted as recovery from the possession of any of accused persons---Several facts and circumstances were available which had created serious doubt regarding the truthfulness of the prosecution story---Conclusion could be that present FIR was lodged only to settle their inimical accounts---Every coin of doubt, would be deposited in the account of defence---Prosecution had failed to bring home the charge against accused persons, beyond reasonable doubt; and defence had succeeded to cause fatal dent and reasonable doubt in the prosecution story---Impugned judgment passed by the Trial Court, was set aside; accused were acquitted from the charge and were directed to be released, in circumstances.

Mehmood Ahmad v. State 1995 SCMR 127; Khizar Hayat v. State 2009 MLD 325; Muhammad Luqman v. State 2011 PCr.LJ 361; Misri v. State 2012 PCr.LJ 1218; Abdul Ghafoor v. State 2013 PCr.LJ 1185 and Bijar Khan v. State 2011 PCr.LJ 170 ref.

Abdul Majeeb Pirzada for Appellants.

Syed Madad Ali Shah for the Complainant.

Shahid Ahmed Shaikh Asstt. P.G. for Respondent.

Date of hearing: 3rd February, 2014.

2015 Y L R 855

[Sindh]

Before Amir Raza Naqvi, J

SHOAIB SULTAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1016 of 2014, decided on 7th July, 2014.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.7, 8, 9 (c), 14 & 15---Import, export and trafficking of narcotic drug---Bail, grant of---Use of licence---Suspension of proceedings---Interim post arrest bail---Plea raised by accused was that proceedings before Trial Court had been suspended---Effect---No incriminating evidence was available against accused, which could justify his facing trial---Earlier order was an interim order and was subject to final order passed in those proceedings---Such situation could not justify keeping accused in custody for an indefinite period when according to both the parties no evidence of whatsoever nature was available against accused---Only licence of accused was used which was normal in market and such fact could not constitute criminal offence under Control of Narcotic Substances Act, 1997, by itself for making out a case---Incriminating evidence was necessary when a person was brought in Court to face trial---Interim post arrest bail was allowed in circumstances.

PLD 2003 Kar. 393; 2004 PCr.LJ 935 and 2011 SCMR 863 ref.

Khawaja Shamsul Islam and Imran Taj for Applicant.

Omer Sial, Special Prosecutor ANF for the State.

Date of hearing: 7th July, 2014.

2015 Y L R 885

[Sindh]

Before Nadeem Akhtar, J

GUL ZAMAN---Applicant

Versus

Mst. RUKHSANA and 4 others---Respondents

Civil Revision Application No.58 of 2008, decided on 20th March, 2013.

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

----Ss. 164 & 161---West Pakistan Civil Courts Ordinance (II of 1962), S. 3---Civil Procedure Code (V of 1908), Ss.115 & 5---Cancellation of entry made in the revenue record by the Revenue Officer---Revision before the High Court against the said order---Maintainability---Land Revenue Act, 1967 was a special law and provisions contained in the same should prevail over the general law---Appeals against original or appellate orders passed by the Revenue Officer had been provided under S. 161 of West Pakistan Land Revenue Act, 1967---Revision under S. 115, C.P.C. would lie to the High Court against an order or judgment passed by the court subordinate to such High Court and against which no appeal should lie---District Court was subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes was subordinate to the High Court and District Court respectively---Revenue Court did not include a Civil Court having original jurisdiction under Civil Procedure Code to try such suits or proceedings as being suits or proceedings of civil nature---Executive District Officer (Revenue) was not a subordinate court to the High Court and no revision would lie before it against the order passed by the Executive District Officer (Revenue)---Impugned order was not passed by a court subordinate to the High Court and present revision petition was not maintainable which was dismissed.

(b) West Pakistan Civil Courts Ordinance (II of 1962)---

---Preamble---"Court"---Meaning--"Court" would include the forum created by West Pakistan Civil Courts Ordinance, 1962.

Waqar Ali Leghari for Applicant.

Syed Sajjad Hussain Shah for Respondent No.1.

Allah Bachayo Soomro, A.A.-G. and Mukhtar Ahmed Khanzada for Respondents Nos. 2 to 5.

Date of hearing: 20th March, 2013.

2015 Y L R 896

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD RAFIQUE and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.S-249 and S-55 of 2014, decided on 17th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-H(1) & 337-(vi)---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Ss.7 & 17---Attempt to commit qatl-i-amd, hurt by rash or negligent act, Haraaba, Shajjah---Bail, grant of---Further inquiry---FIR was filed with delay of two and half months---Delay in FIR along with other material could be considered while releasing accused on bail---Money robbed was not in excess of limit of Nisab which made application of S.17 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 open to further probe---Accused might have been roped in due to dispute of civil nature between accused and complainant---Accused were admitted to post-arrest bail while ad interim pre-arrest bail of co-accused was confirmed by High Court.

1995 SCMR 1765 and 2011 YLR 601 ref.

Rias Wazir Ahmad v. The State 2004 SCMR 1167 rel.

Applicants present in person (in Criminal Bail Application No.S-249 of 2014).

Ghulamullah Chang for Applicants.

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

Nisar Ahmed Durani for the Complainant.

2015 Y L R 909

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

KHURSHEED BEGUM and 5 others---Petitioners

Versus

Mst. SHEHNAZ through Legal Heirs and another---Respondents

Constitutional Petition No.D-602 of 2012, decided on 25th August, 2014.

Civil Procedure Code (V of 1908)---

----O. XX, R. 13 & O. VII, R. 11---Constitution of Pakistan, Art. 199---Constitutional petition---Administration suit---Rejection of plaint---Scope---Plaintiffs had claimed their shares in the suit property being legal heirs of the deceased who was owner of said property---Claim of defendant that suit property was given to her in lieu of her dower and/or against loan was yet to be established---Plaintiffs were legal heirs of the deceased and were entitled to inherit from his estate, if any---If a person had died issueless then his siblings would become entitled to a share in his estate---Impugned order passed by the Appellate Court was set aside and Trial Court was directed to decide the suit on merits---Constitutional petition was accepted in circumstances.

Muhammad Arshad for Petitioners.

Zafaruddin Khan for Respondent No.3.

2015 Y L R 924

[Sindh]

Before Amer Raza Naqvi, J

ABDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.219 of 2014, decided on 29th October, 2014.

Sindh Arms Act (V of 2013)---

----S. 23(1)(a)---Possession of unlicensed firearm---Accused not defended by an advocate---Accused himself cross-examining witnesses---Effect---Conviction and sentence of accused were set-aside in such circumstances and case was remanded to the Trial Court to decide the same afresh---High Court directed that there was no need to frame a fresh charge, and that accused would remain on bail subject to furnishing fresh surety---Appeal was disposed of accordingly.

Ghulam Mustafa Rajpar for Appellant.

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

2015 Y L R 947

[Sindh]

Before Shahnawaz Tariq, J

MOINUDDIN PARACHA---Petitioner

Versus

Messrs NOVATRTIS PHARMA PAKISTAN LTD. and 2 others---Respondents

Constitutional Petition No.S-1048 of 2010, decided on 17th April, 2014.

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

----S. 8---Constitution of Pakistan, Art.199---Constitutional petition---Fair rent, fixation of---Conditions---Rent Controller enhanced the monthly rent from Rs. 0.63 per sq. ft. per month to Rs. 4 per sq. ft. per month which was maintained by the Appellate Court---Validity---Factors for determination of fair rent were the rent of similar premises situated in the similar circumstances 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---Section 8 of Sindh Rented Premises Ordinance, 1979 did not impose any restriction or barrier upon the Rent Controller for the quantum or limit of rent to deal and adjudicate the question of fixation of fair rent---Landlord was not bound to prove the existence of all the four conditions during the course of trial and any one of the conditions was sufficient to enhance the monthly rent of the demised premises---Since the date of commencement of tenancy i.e. 1-1-1967 till date there was manifold enhancement in cost of construction, property taxes, Municipal charges and Government taxes---Demised premises was situated in the commercial area and during the period of 47 years of tenancy business activities had also been increased and even footpaths had been occupied by the various street stalls---Commercial importance and value of location of the demised premises had been increased with the passage of time which should also be taken into consideration while fixing the fair rent---Rent Controller had thoroughly examined every aspect of the case while deciding the question of fixation of fair rent and enhanced the same---Findings recorded by the courts below were just, proper and in accordance with law---Constitutional petition was dismissed in circumstances.

Abdul Ghaffar v. Noor Jehan Malik 1987 CLC 2182; 2014 MLD 297; 2014 SCMR 984; 2009 YLR 1893 and PLD 2005 Kar. 416 ref.

(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 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.

(c) Constitution of Pakistan---

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S. 8---Constitutional jurisdiction, invocation of---Scope---Scope of constitutional jurisdiction of High Court in rent matters was very limited---Such jurisdiction could only be invoked when the findings of courts below were perverse, irrational, arbitrary, based on misreading and non-reading of evidence resulting in absolute miscarriage of justice.

Zafar Iqbal Dutt for Petitioner.

Omer Soomro for Respondents.

Date of hearing: 22nd September, 2014.

2015 Y L R 967

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

KARACHI ELECTRIC SUPPLY COMPANY through Authorized Officer---Appellant

Versus

KARACHI WATER AND SEWERAGE BOARD through Managing Director

and 3 others---Respondents

High Court Appeal No.60 of 2012, decided on 14th April, 2014.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Ingredients---Discretionary relief---Scope---Water and Sewerage Board having failed to pay bill of electricity, Electric Supply Corporation was restrained to discontinue the electricity supply to the said Board---Validity---Grant of injunction was an equitable relief based on the principle of equity which was discretionary depending upon the circumstances of each case---Where a party had a prima facie case, balance of convenience/inconvenience and apprehension of irreparable loss or injury, the court was bound to grant discretionary relief---Court could refuse to allow the said injunction if said parameters were not fulfilled---Some Strategic Consumers were on record to whom electric power must be supplied at all times without interruption---Water and Sewerage Board was also Strategic Consumer who was entitled for supply of electric power without interruption---Electric Supply Corporation was bound to supply electric power to the Water and Sewerage Board without interruption---If Strategic Consumer had failed to pay the electric bills then an invoice had to be issued and in case of failure to pay the electric bills after issuance of the invoice a notice requesting a meeting should be given and all efforts should be made to reach to an agreement between the company and defaulting Strategic Consumer---Electric Supply Corporation had to send a notice to the Government if no amicable settlement was reached between the Corporation and Strategic Consumer and Government would pay the claims from available funds to the Electric Company---Electric Supply Corporation, in the present case, should have taken legal proceedings against the Government rather than discontinuing the electricity of Water and Sewerage Board---Action of Electric Supply Corporation was violative of the terms of agreement entered between the Corporation and Government---Water and Sewerage Board was not signatory of the contract but being beneficiary privity of contract was applicable---Water and Supply Board was responsible for supply of water and sewerage services to the city and it would require uninterrupted supply of electricity---Water and Sewerage Board was not absolved/exempted from making any payment but if electric power was not supplied then citizen would suffer losses---Losses suffered by Electric Supply Corporation due to non-payment of bills by Water and Sewerage Board could be settled between the Company and Government---Findings recorded by the Trial Court had a prima facie case for grant of injunction---Appeal was dismissed in circumstance, however Trial Court was directed to decide the case expeditiously.

Hyder Ali Bhimji v. Vth Additional District Judge, Karachi South 2012 SCMR 254; Ilyas Ahmed v. Muhammad Munir PLD 2012 Sindh 92; United Bank Limited v. Ahsan Akhtar 1998 SCMR 68; Islamic Republic of Pakistan v. Muhammad Zaman Khan 1997 SCMR 1508; Muhammad Sharif v. Sh. Muhammad Amin and others PLD 1970 Lah. 283; Allah Wasaya v. Sardar Shah PLD 1984 Lah. 59; Mastersons v. Ebrahim Enterprises 1988 CLC 1381; Tweddle v. Atkinson (1861) 1 B&S; 121 ER 762; Dunlop Pneumatic Tyre Company Ltd., v. Selfridge and Company Ltd. [1915] AC 847; [1915] UKHL 1; Midland Silicones Ld. v. Scruttons Ltd. [1962] 1 All ER 1; [1961] UKHL 4; Beswick v. Beswick [1967] 2 All ER 1197; [1967] UKHL 2; Krishna Lal Sadhu and another v. Mt. Promila Bala Dasi AIR 1928 Calcutta 518; Thirmulu Subu Chetti v. Arunachalam Chettiar AIR 1930 Madras 382; MC Chacko v. State Bank of Travancore AIR 1970 SC 504; Executive District Officer (Revenue), District Khushab at Jauharabad v. Ijaz Hussain 2011 SCMR 1864; Wattan Party and another v. Federation of Pakistan PLD 2011 SC 97; Syed Alamdar Hussain v. Muhammad Ramzan and 5 others 1976 SCMR 347; Sardeel and another v. Mst. Niamat alias Mst. Khurshid 1988 CLC 394; Farooq Hassan and another v. International Credit and Investment Company and another 1996 CLC 507; Agha Saifuddin Khan v. Pak Suzuki Motors Company Limited and another 1997 CLC 302; Sajjad Ahmad v. Canon How Thomas 2007 CLC 1017 (2); Muhammad Zareef Khan and another v. Muhammad Maroof and 6 others 2009 YLR 2454; Taimur Usman Khawaja and others v. Ali Muhammad Shaikh and others 2009 YLR 171; Muhammad Asad and another v. Muhammad Tariq and 3 others 2010 MLD 1354 and Sayyid Yousaf Hussain Shirazi v. Pakistan Defence Officers Housing Authority and 2 others 2010 MLD 1267 ref.

Abid S. Zuberi for Appellant.

Abrar Hasan for Respondent No.1

Dilawar Hussain for Respondent No.2.

Meeran Muhammad Shah, Additional Advocate General for Respondent No.3.

Nemo for Respondent No.4.

Dates of hearing: 27th January, 3rd February, 13th and 19th March, 2014.

2015 Y L R 1015

[Sindh]

Before Salahuddin Panhwar, J

ABDUL KHALIQUE---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-67 of 2011, decided on 14th January, 2013.

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

----Ss.302, 324, 337-H(2), 379, 114, 109 & 149---Qalt-i-amd, attempt to commit Qatl-i-amd, causing hurt by rash or negligent act, theft, abetment and common object---Appreciation of evidence---Complainant and prosecution witnesses had made no departure from the narration made in FIR, and no inconsistency was found in their inter se version of the occurrence, they had specified explicit account of the incident blaming the accused for the part played by him, in the commission of crime---Witnesses of the ocular account, were in one voice in respect of date and time of incident; place of incident; number of accused persons; and murder of the deceased with fire-arm, which also found corroboration with post-mortem report---Recovery/securing of blood from the place of incident, had proved the venue of occurrence---Prosecution had successfully established the happening and manner of incident---Presence of prosecution witnesses found support even from the defence witnesses---Witnesses of ocular account being blood-relatives of deceased; and they all had attributed fatal shot to accused and it was hard to believe that they would attempt to substitute the culprit with an innocent person---Defence witnesses though claimed to be real eye-witnesses, but they remained silent for inordinate period of more than a year---Witnesses of prosecution had been believed by the defence itself regarding manner of incident, weapon used in commission of offence, number of assailants, place of incident and attribution of fire-arm injury by accused---Contradictions with regard to delivery of dead body of the deceased by person other than the complainant, and death of deceased in the hospital, in no way improved the case of accused, as it caused no effect upon the incident; nor both said contradictions were sufficient o hold that complainant was not present at the place of occurrence---Prosecution had proved its case beyond doubt, and accused had failed to point out any illegality or material misreading or non-reading of the evidence by the Trial Court in recording the impugned judgment---Appeal was dismissed, in circumstances.

2005 PCr.LJ 830; Rehmat Ali v. The State 2010 SCMR 584; Safdar and 3 others v. The State 2006 PCr.LJ 1870, 2008 SCMR 707; 2011 SCMR 208; Noor Zaman v. Abdul Latif and another 2012 PCr.LJ 569; Iqbal Shah v. The State 2011 PCr.LJ 1345; The State v. Khan Muhammad alias Khanan and others 2005 PCr.LJ 811; Zakir Hussain v. The State 2008 SCMR 222; Altaf Hussain v. The State 2010 SCMR 1020; Haroon Rasheed and 6 others v. The State 2005 SCMR 1568 and Mobashar v. The State 2009 SCMR 1133 ref.

Rahimullah Jan v. Kashif and others PLD 2008 SC 298 and Zahoor Ahmad v. The State 2007 SCMR 1519 ref.

(b) Criminal trial---

----Maxim: 'Falsus in uno falsus in omnibus' (false in one thing, false in all)---Applicability---Said maxim was not applicable in prevalent system of criminal administration of justice---Court had to sift the grain from the chaff---Accused could not claim any benefit by saying that since other accused were not found guilty, he was also entitled to the benefit of doubt until accused would bring his case within same sphere or independently show reasonable dent in prosecution case which could justify his plea of acquittal---People, though widen the net by naming innocent, but it was hard to believe that one would go to name the innocent at the cost of his own blood relation, leaving real culprit.

Riaz Hussain v. The State 2001 SCMR 177 rel.

(c) Criminal trial---

----Evidence---Interested and related witness---Phrase 'interested or related witnesses', was not sufficient to declare the evidence of a witness as doubtful, because, what was always required to be seen, was the veracity and credibility of the witness, and not his relationship---Interested witness was one who was partisan inimical towards accused, or had a motive or cause of his own to falsely implicate accused in the crime; and such cause or motive should be shown to be of such gravity that a person, closely related with deceased, could be believed to have gone to such an extent to name the innocent, while leaving real culprit of deceased.

Talib Hussain and others v. The State and others 2009 SCMR 825 and Ijaz Ahmad v. The State 2009 SCMR 99 rel.

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

----S.161---Examination of witness by Police---Delay in recording statement of witness---Absolute duty of the Investigating Officer to make efforts in recording the statement of the witnesses of the incident---If there appeared any delay in recording of statement under S.161, Cr.P.C. no adverse inference to be drawn against testimony of the witnesses on that count alone, more particularly when names of witnesses were mentioned in promptly lodged FIR record showed that despite efforts witnesses avoided or were away---Any irregularity in the investigation by Investigating Officer, was of no help for accused to claim any benefit.

Qamar uz Zaman and others v. Haji Allah Bux and another 2012 SCMR 1281 rel.

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

----Arts. 132, 133 & 134---Examination-in-chief and cross-examination---Fact stated in examination-in-chief, but not cross-examined by accused---Effect.

Dr. Javaid Akhtar v. The State PLD 2007 SC 249 rel.

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

----S.302---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd---Acquittal/ conviction of accused in case under charge of an offence under S.13(d) of Pakistan Arms Ordinance, 1965, could not be used as a shield against conviction in the main case (under S.302, P.P.C.) when allegation and nature of charge in main case were different from that of case under an off-shoot---While deciding a case, the evidence of another case could not be taken into consideration, but the case should be decided on the evidence brought on the record of that particular case.

The State v. Khan Muhammed alias Khanan 2005 PCr.LJ 811; Khalid Hussain v. Naveed alias Qalab Ali PLD 2007 Kar. 442 and Muhammad Khan v. The State 2010 YLR 648 rel.

(g) Criminal trial---

----Recovery---Recovery of crime weapon was always corroborative piece of evidence and not of much importance---Where case was otherwise proved corroboration from recovery of crime weapon or otherwise, would become immaterial.

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

----Ss.156 & 159---Investigation---Purpose--Second investigation---Scope---Investiga-tion was meant to bring truth on surface by collecting material---Investigating Officer, after the delay of seven months, on the request of accused did second investigation wherein he had not denied the happening of the incident, but had given clean chit to nominated accused, without unearthing the names of other culprits as real culprits---Validity---System of second investigation, in circumstances, was not approved by the High Court.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Abdul Ghaffar A. Memon for Appellants.

Syed Sardar Ali Shah, Assistant Prosecutor General for Respondent.

Date of hearing: 3rd December, 2012.

2015 Y L R 1027

[Sindh]

Before Nazar Akbar, J

PAKISTAN INTERNATIONAL BULK TERMINAL LTD. through Chief Finance Officer---Plaintiff

Versus

MAQBOOL ASSOCIATES (PVT.) LTD., through Managing Director

and 4 others---Defendants

Suit Nos.568, 670, 708 and 1260 of 2013, decided on 17th January, 2014.

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

----O.XXIII, R.3---Contract---Compromise between parties---Scope---Lawfully entered contracts by and between parties are binding upon them irrespective of placing such contracts before Court of law by means of joint applications under O. XXIII, R. 3 C.P.C.

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

----O.XXIII, R.3---Arbitration Act (X of 1940), S. 20--- Arbitration--- Dispute resolution---Role of Court---Compromise between parties---During pendency of proceedings under S. 20 of Arbitration Act, 1940, parties entered in compromise and sought disposal of suit under O.XXIII, R.3, C.P.C.---Validity---Court was only gateway to adjudication of dispute between parties and not adjudicator in its own right---Present was not a regular suit under common law and dispute resolution was not possible by Court of law under S.20 of Arbitration Act, 1940---Court was not empowered to examine and even comment on "dispute/issues" between parties, lest it could prejudice case of either party---Provisions of O. XXIII, R.3, C.P.C. were not applicable to arbitration suit under S. 20 of Arbitration Act, 1940---Court appointed sole arbitrator for resolution of dispute between parties in terms of arbitration agreement---Suit was disposed of accordingly.

Mohamed Abdul Latif Faruqi v. Nisar Ahmed and another PLD 1959 (W.P.) Kar. 465; Jamia Industries Ltd. v. Pakistan Refinery Ltd. PLD 1976 Kar. 644; China Harbour Engineering Co. v. Water and Power Development Authority and others 2001 YLR 1781; Manzoor Construction Co. Ltd., v. University of Engineering and Technology, Texila 1984 CLC 3347 and Messrs Time N Vision International (Pvt.) Ltd. v. Dubai Islamic Bank PLD 2007 Kar. 278 rel.

Khalid Anwar for Plaintiff (in Suit No.568 of 2013 and for Defendant No.1 in Suit No.670 of 2013).

Abdul Hafeez Pirzada for Plaintiff (in Suit Nos.670 of 2013 and 708 of 2013 and for Defendant No.1 (in Suit No.568 of 2013) and for sole Defendant (in Suit No.1260 of 2013).

Makhdoom Ali Khan for Plaintiff (in Suit No.1260 of 2013), for Defendant No.2 (in Suit No.568 of 2013) and for Defendant No.2) (in Suit No.670 of 2013) and for sole defendant (in Suit No.708 of 2013).

Date of hearing: 12th December, 2013.

2015 Y L R 1051

[Sindh]

Before Syed Saeeduddin Nasir, J

PROVINCE OF SINDH through Secretary Ministry of Transport---Applicant

versus

MUHAMMAD RAFIQUE and 3 others---Respondents

J.M. No.31 of 2014, decided on 30th October, 2014.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Application for setting aside of judgment/decree---Ingredients---Fraud, misrepresentation and want of jurisdiction, grounds of---Scope---Limitation---Condo-nation of delay---Auction of plot---Vested right of highest bidder---Scope---Respondent was declared as successful bidder in the auction on the "fall of hammer" in the terms and conditions of auction and was called upon to deposit 25% of the total bid money of the plot/property in question who paid the same---Right of seller of plot would be forfeited to reduce the size of said plot and/or withdraw the same from auction upon "fall of hammer" which had declared the respondent as the highest bidder and successful purchaser of the plots/property in question---If such rights were conferred upon the seller by virtue of the terms and conditions of auction, the same were available to him before putting up the plots in question for auction and not after completion of sale---Present application under S.12(2), C.P.C. had been filed after a lapse of 5 years and 3 months and 14 days which was time barred---Time prescribed for filing such application by Art.181 of Limitation Act, 1908 was three years from date of decree when the right to apply had accrued---Neither any explanation was given nor applicant had filed any application for condonation of delay---Ingredients of S.12(2), C.P.C. were misrepresentation, fraud and want of jurisdiction of court which were lacking in the present case---Grounds of fraud, misrepresentation and want of jurisdiction were to be taken and alleged with regard to proceedings of the court which had passed the judgment and decree and not the action performed by any department---Present application was liable to be dismissed on the sole ground that it did not qualify under S.12(2), C.P.C.---Vested right had been created in favour of respondent once he was declared as the successful bidder and was called upon to deposit 25% of the total sale consideration and further when pay order was encashed---Appeal filed against the validity of impugned judgment and decree had been dismissed for non-prosecution and execution application had been allowed---Application filed under S.12(2), C.P.C. was dismissed in circumstances.

AIR 1997 Patna 179 and Bell v. Lever 1931 All ER Report 1 ref.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Application for setting aside of judgment/decree on the grounds of fraud and misrepresentation under S.12(2), C.P.C.---Limitation---Time prescribed for filing application under S.12(2), C.P.C. was three years from date of decree when the right to apply had accrued.

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

----S. 12(2)---Application for setting aside of judgment/decree on the grounds of fraud and misrepresentation under S.12(2), C.P.C.---Ingredients---Ingredients of S.12(2), C.P.C. were misrepresentation, fraud and want of jurisdiction of court.

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

----S. 2---Contract of sale---Ingredients---Ingredients for contract of sale were "offer", "acceptance" and "consideration".

(e) Interpretation of statutes---

----No statute could be given a retrospective effect so that it could take away a vested right accrued in favour of an individual.

Ziauddin Junejo, A.A.-G. Sindh for Applicant.

Mansoor-ul-Arfeen for Respondent No.1.

Date of hearing: 30th October, 2014.

2015 Y L R 1082

[Sindh]

Before Sajjad Ali Shah and Sadiq Hussain Bhatti, JJ

ABDUL RAZZAQ LASHARI and 3 others---Petitioners

versus

GOVERNMENT OF SINDH through Chief Secretary and 3 others---Respondents

Constitutional Petition No.D-362 of 2014, decided on 27th May, 2014.

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

----S.6---"Act of terrorism"---Scope---Object or effect of act of terrorism is to strike terror or create sense of fear and insecurity in the minds of people or any section of people/society.

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

----Ss.384, 385 & 395---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), Ss.249-A & 265-K---Constitution of Pakistan, Art.199--- Constitutional petition---Quashing of FIR---Extortion, dacoity and Bhatta---Petitioners were officials of electric supply company and facing criminal trial on the complaint made by respondent---Validity---Criminal case for theft of electricity was registered against complainant in year, 2009, who was acquitted on technical ground---Respondent was holding grudge against officials of electric supply company---Since registration of case against respondent till year, 2013, not a single complaint was made by him that officers of electric supply company were demanding bribe/ Bhatta or threatening disconnection---Electricity remained disconnected between years 2009 to 2011 and thereafter respondent started litigation with electric supply company---Present matter was case of hardship, as officers of electric supply company were implicated and made accused before Anti-Terrorism Court for performing their duties---High Court declined to ask petitioners to approach Trial Court for seeking remedy under Ss.249-A or 265-K, Cr.P.C. as it would not secure the ends of justice rather it was very harsh---No probability existed that prosecution would result in conviction of petitioners on the basis of FIR and it would be sheer abuse of process against them---High Court in exercise of Constitutional jurisdiction quashed proceedings pending against petitioners---Petition was allowed in circumstances.

The State v. Asif Ali Zardari and another 1994 SCMR 798; Dr. Ghulam Mustafa v. The State 2008 SCMR 76; Maqbool Rehman v. The State and others 2002 SCMR 1076; Fazal Dad v. Col. (Retd) Ghulam Muhammad Malik and others PLD 2007 SC 571; Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and Director-General Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 ref.

Abid S. Zuberi for Petitioners.

Ali Haider Saleem, Assistant Prosecutor General Sindh along with Investigating Officer Inspector Ali Haider Shah for Respondent No.1.

Mushtaq Ahmed Joyia for Respondent No.2.

Date of hearing: 7th May, 2014.

2015 Y L R 1105

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

Messrs MANIAR TOURS AND TRAVELS (PVT.) LTD. through Managing Director---Appellants

versus

Messrs HASHWANI HOTEL through Director and another---Respondents

High Court Appeals Nos.209 and 215 of 2005, decided on 17th November, 2014.

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

----O. XXIX, R. 1---Suit by or against corporation---Signing and verification of pleadings--- Principle--- Provisions of O.XXIX, R.1, C.P.C. merely enables and permits officer of the company to sign and verify pleadings in a suit filed either on behalf of or against corporation---Authority to the employee of the corporation to sign pleadings in terms of O.XXIX, C.P.C. cannot be enlarged or construed to have included the power to institute the suit, unless the same was established by producing necessary resolution (permitting such employee to file the suit) adopted by Board of Directors of the company in his favour.

National Insurance Corporation and others v. Pakistan National Shipping Corporation and others 2006 CLD 85 rel.

(b) Maxim---

----A communi observantia non est recedendum--- Meaning--- If the law requires a thing to be done in a particular manner, it has to be done in that manner otherwise, the same would be deemed illegal.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXIX, R.1---Law Reforms Ordinance (XII of 1972), S.3---Suit for declaration and injunction---Intra-Court Appeal---Resolution of Board of Directors, non-filing of---Effect---Suit filed by respondent (company) was partly decreed in its favour by Trial Court---Plea raised by appellant was that suit was not filed by person duly authorized by Board of Directors---Validity---By not producing the resolution at the time of institution of the suit, which was a legal requirement of law and then perpetually failing to do so, despite having been warned through cross-examination of its witness, respondent (company) failed to fulfil a legal requirement, which went to the roots of the case---Plea in relation to such legal flaw left unattended could be raised without any exception at any stage of proceedings---Even in the appeal, no such document containing resolution showing authority of person instituting pleadings on behalf of respondent had been produced---Suit of respondent (company) from the very beginning was not maintainable for want of necessary authority/resolution---Order accordingly.

Khan Iftikhar Hussain Khan of Mamdot represented by 6 heirs v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550; Messrs Rice Export Corporation of Pakistan v. Messrs European Asian Agencies and others High Court Appeal No.140 of 2005 and Trading Corporation of Pakistan v. Messrs Cargill Incorporated and others Civil Appeal No.4-K of 2009 ref.

Anwar Muhammad Siddiqui for Appellant (in High Court Appeal No.209 of 2005).

Muhammad Arif Khan for Respondent No.1 (in High Court Appeal No.209 of 2005).

Aijaz Ahmed Khan for Respondent No.2 (in High Court Appeal No.209 of 2005)

Muhammad Arif Khan for Appellant (in High Court Appeal No.215 of 2005).

Anwar Muhammad Siddiqui for Respondent No.1 (in High Court Appeal No.215 of 2005).

Aijaz Ahmed Khan for Respondent No.2 (in High Court Appeal No.215 of 2005).

Date of hearing: 17th November, 2014.

2015 Y L R 1141

[Sindh]

Before Syed Saeed-ud-Din Nasir, J

EHSANULLAH KHAN through Legal heirs and 11 others---Plaintiffs

versus

Syed ZIA-UD-DIN and 5 others---Defendants

Suit No.79 of 2008, decided on 22nd December, 2014.

Specific Relief Act (I of 1877)---

----S. 39---Cancellation of instrument---Conditions--- Scope--- Relief for cancellation of instrument was based upon the administration of preventive justice for the fear that the instrument might be vexatiously or injuriously used by the defendants against the plaintiff---An instrument could be cancelled if same was void or voidable against the plaintiff; if instrument was left outstanding then plaintiff might reasonably apprehend serious injury by the same and court had considered it proper to cancel the instrument to grant relief of preventive justice---Remedy under S. 39 of Specific Relief Act, 1877 was to remove a cloud upon the title by removing a potential danger---Where deed or instrument was void ab initio, null and void then it could be treated as a nullity without having to be cancelled or set aside---If instrument was only voidable then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of plaintiff.

Mahmood A. H. Baloch for Plaintiff.

Irfan Hassan for Defendants Nos. 3 and 4.

Iqbal Khurram for Defendant No.5.

Jam Habibullah, A.A.-G. for Defendant No.6.

Nemo for Defendants Nos.1 and 2.

Date of hearing: 2nd December, 2014.

2015 Y L R 1182

[Sindh]

Before Syed Saeeduddin Nasir, J

SHAHZAD MUHAMMAD---Plaintiff

versus

MUHAMMAD AFZAL CHUNDRIGAR---Defendant

Suit No.701 of 2010, decided on 1st December, 2014.

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

---S. 42---Applicability of S.42, Specific Relief Act, 1877---Scope---Section 42 of Specific Relief Act, 1877 would apply only to the cases where plaintiff had filed a suit to claim entitlement to any legal character or right to any property which entitlement was denied by the defendants---Said section could not apply to the cases where only entitlement or legal character to the property of defendant was denied by the plaintiff---Section 42 of Specific Relief Act, 1877 would be attracted to a case in which plaintiff had approached the court for protecting his right or legal character to the property but where right to his own legal character or property was not involved then suit was not maintainable---Section 42 of Specific Relief Act, 1877 did not give an unrestricted right of instituting all kinds of declaratory suits and same was limited.

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

----S.54---Perpetual injunction, grant of---Scope---Perpetual injunction could be granted to prevent the breach of obligation existing in favour of a party.

Syed Shoa-un-Nabi for Plaintiff.

Farhan Zia Abrar for Defendant.

Date of hearing: 18th November, 2014.

2015 Y L R 1204

[Sindh]

Before Syed Muhammad Farooq Shah, J

NIAZ AHMED---Appellant

versus

The STATE---Respondent

Criminal Appeal No.S-85 of 2005, decided on 21st March, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Confession---Scope---Trial Court had discarded the evidentiary value of confessional statement of accused on the ground that Magistrate did not disclose that he had read over and explained the confession to accused in his own language---Unexplained delay of five days in recording the confessional statement was fatal to the prosecution case---Confession made by accused on oath was not admissible---Complainant was not an eye-witness of the incident, but his brother had disclosed to him about the occurrence---Both eye-witnesses having contradicted each other, their evidence was not trustworthy and had made the presence of the eye-witnesses at the scene of occurrence doubtful---Medical Officer had made contradictory statement in his examination-in-chief and cross-examination and in cross-examination, had completely resiled/contradicted his examination-in-chief; he had not produced the original postmortem report and admitted that he had given wrong statement---Such evidence of Medical Officer had no evidentiary value as case of the prosecution was without any medical corroboration---Both ocular testimony and medical evidence thus were not trustworthy---Prosecution had violated provisions of S.103, Cr.P.C. as no inhabitant of the locality was called to act as a mashir of place of occurrence, recovery of crime hatchet and arrest of accused---Trial Court was misled in accepting the direct evidence, medical and circumstantial evidence and in complete departure to the principles of appraisal of evidence, had drawn wrong conclusion---Conviction awarded to accused being not based on sound principles of criminal administration of justice, was not sustainable---Impugned judgment was set aside, accused was directed to be released, in circumstances.

1993 SCMR 670; 1988 MLD 174; 1981 PCr.LJ 434; 2008 PCr.LJ 194; 2005 YLR 106; PLD 2005 SC 484; 2001 PCr.LJ 1682; 2006 PCr.LJ 84; 2002 PCr.LJ 51; 1988 MLD 38; 2009 MLD 49; 2009 PCr.LJ 506; Hamzo and another v. The State 1983 PCr.LJ 892; Muhammad Rafiq v. The State 2009 YLR 1279; Dost Muhammad v. The State PLD 1982 Kar. 1000 and Muhammad Parvez and others v. The State 2007 SCMR 670 ref.

Miss Nasira Shaikh for Appellant.

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

Date of hearing: 11th February, 2014.

2015 Y L R 1213

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD SHOAIB---Plaintiff

versus

JAMILA KHATOON and 4 others---Defendants

Civil Suit No.641 of 2006, decided on 31st December, 2012.

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

----S.12---Suit for specific performance of agreement to sell---Contradictory pleas--Non-deposit of balance amount---Effect---Plaintiff claimed that defendant had entered into agreement to sell despite receipt of earnest money, declined to transfer suit property---Plea raised by defendants was that plaintiff failed to deposit balance sale consideration as directed by Court, therefore, he was not entitled to specific performance of agreement to sell---Validity---Stands taken by defendants were self-contradictory, as they had taken two opposite stands---First stand was that agreement was cancelled by them because of the reason that owner of suit property had not signed the agreement and had asked them to cancel the same; and the second, that the agreement became non-existent and inoperative because plaintiff failed to offer to them balance sale consideration on or before final date, although they were ready to perform their contractual obligations---Such stands proved that defendants did not cancel the agreement but in fact they were ready to perform their contractual obligations---On the contrary, plaintiff had proved that he offered balance sale consideration before final date and there was no contradiction on such point in his plaint and evidence and his stand had all along remained the same---Evidence produced by plaintiff in order to show that he was ready to pay balance sale consideration on or before the final date, remained unshaken---Agreement in question was a concluded agreement between parties and that the same was capable of specific performance--Non-deposit of amount by plaintiff did not disentitle him from seeking main relief of specific performance in suit---Specific Relief Act, 1877, had not made it mandatory for plaintiff/vendee to deposit balance sale consideration in court to become entitled or eligible for specific performance of contracts of immovable or movable properties---Suit was decreed in circumstances.

Saeed Naseem Cheema v. Mrs. Rukhsana Khan 2005 YLR 1905; Muhammad Hussain and others v. Dr. Zahoor Alam, 2010 SCMR 286 and Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952 rel.

(b) Document---

----Examination of un-exhibited document--Principle---Such document can be examined and looked into by court, if it is necessary of just decision of suit.

Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 rel.

Muhammad Sadiq for Plaintiff.

Chaudhary Abdul Rasheed for Defendants.

Date of hearing: 27th November, 2012.

2015 Y L R 1239

[Sindh]

Before Aziz-ur-Rehman, J

MURTAZA ALI---Plaintiff

versus

SABIR ALI BANGASH---Defendant

Suit No.643 of 2007, decided on 1st July, 2014.

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

----S. 12(2)---Applicability of S.12(2), C.P.C.---Scope---Judgment, decree or order, setting aside of---Procedure---For determination of application under S.12(2), C.P.C., no procedure has been provided---Courts are not under any absolute obligation to frame issues, record evidence of parties or follow prescribed procedure necessary for decision of a case---Court while dealing with application under S. 12(2), C.P.C., in its own discretion may adopt any mode or procedure for decision of application.

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

----S.12 (2) & O.IX, R.13---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Ex parte judgment and decree, setting aside of---Ex parte judgment and decree was passed against defendant including damages claimed by plaintiff---Defendant sought setting aside of ex parte judgment and decree on the plea of fraud and misrepresentation---Validity---At the time of publication of notice in newspaper, suit No. 'Nil' of 2005 was never dismissed for 'non-prosecution' whereas suit No. 'Nil' of 2005, was pending for hearing of 'office objection' regarding limitation---In fact suit No. 'Nil' of 2005, was dismissed for 'non-prosecution' much later, on 9-10-2006---Notice regarding dismissal of suit was published at the page of newspaper reserved for another city 'H' and not for concerned city 'K'---Suit was decreed as prayed without recording of any evidence for damages claimed by plaintiff but Court was not supposed to pass straight away 'ex parte decree' muchless for damages/recurring damages merely on the basis of assertions made in plaint---Court was obliged to decide case strictly on 'merits' and in accordance with 'law'---Ex parte decree was passed on 9-8-2008, without recording of any evidence---Affidavit in ex parte proof was available on record but plaintiff in his own wisdom avoided to come forward and record his evidence---Pleadings by themselves were not evidence---Defendant in circumstances, was never served properly through any notice and / or summons which was a mandatory condition for proper exercise of jurisdiction---Ex parte judgment and decree passed against defendant was bad for non-fulfilling of mandatory requirements of law---High Court set aside ex parte judgment and decree and defendant was permitted to file his written statement where after suit was to proceed on its own merits---Application was allowed in circumstances.

Collector Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681; Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110; Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Hakimuddin v. Faiz Bux 2007 SCMR 874; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1997 SC 447; Mst. Izat and another v. Kadir Bux PLD 1959 Kar. 221 and Yousuf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 ref.

(c) Constitution of Pakistan---

----Art.10-A---Right to fair trial and due process of law---Limitation, principle of---Applicability---Proceeding is not time barred by law of Limitation, when decree has been passed erroneously and in violation of 'fair trial' and 'due process', such decree is deemed 'null' and 'void'.

Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 rel.

(d) Administration of justice---

----Technicalities---Scope---Law favours adjudication of cases on merits and discourage technical knock outs---While deciding cases, technicalities should not be allowed to stand in the way of administration of justice.

(e) Suit for damages---

----Recovery---Proof---Without discharging onus of proof, damages cannot be granted straightaway---Damages require evidence regarding details of losses actually suffered---Even fixed amount of damages cannot be allowed until and unless quantum of losses actually suffered is proved through sufficient evidence---Damages/recurring damages, are firstly to be pleaded and thereafter to be proved by leading reliable trustworthy and cogent evidence.

Muhammad Amin Muhammad Bashir Ltd. v. Muhammad Amin Brothers Ltd. PLD 1969 Kar. 233 rel.

Badrul Alam for Plaintiff.

Fazal-ur-Rehman for Defendant.

Date of hearing: 21st May, 2014.

2015 Y L R 1303

[Sindh]

Before Ghulam Sarwar Korai and Munib Akhtar, JJ

STANDARD CHARTERED BANK LIMITED through Constituted Attorney---Petitioner

versus

KARACHI MUNICIPAL CORPORATION through Administrator and 9 others---Respondents

Constitutional Petition D-3851 of 2012, decided on 18th July, 2013.

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

Ss. 2 & 12---Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Reglns. 3 & 4---Principles for interpretation and application of Pakistan Environmental Protection Act, 1997 and Regulations stated.

(b) Pakistan Environmental Protection Act (XXIX of 1997)---

----Ss. 2 & 12---Karachi Building and Town Planning Regulations, 2002, Reglns. 18-4.2 & 25-4---Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Regln. 4 & Sched. II, Paras A:3, G:2, J:2---Constitution of Pakistan, Art. 199---Constitutional petition---Construction of apartment building (comprising of 16 residential flats) over a residential plot without environmental impact assessment (EIA) or approval---Petitioner's plea that such plot could be used for constructing thereon only a residential bungalow and not such apartment building, otherwise such construction would amount to change of land use from residential to flat site---Validity---Provisions of Paras A:3, G:2 & J:2 of Sched. II of Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000 would not apply to apartment building---Karachi Municipal Corporation (lessor of land) in its counter affidavit stated that residential plot had been converted into Flat Site, thus, prayed for dismissal of constitutional petition---Respondent in undertaking given to the Corporation stated that he would abide by all rules/regulations and adhere to all terms and conditions of Grant of plot in future---High Court dismissed constitu-tional petition in circumstances.

Zaheer Ahmed Chaudhry and others v. City District Government, Karachi and others 2006 YLR 2537; Farooq Hamid and others v. L.D.A. and others 2008 SCMR 468; Nighat Jamal v. Province of Sindh and others 2010 YLR 2624; Shehri C.B.E. v. Government of Pakistan and others PLD 2007 Kar. 293; 2007 CLD 783; Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Kar. 498; Clarissa James and another v. S.I.S. Builders and Developers and others (Constitutional Petition D-2924 of 2011 and SHERI-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202 ref.

Farrokh K. Captain and others v. Karachi Building Control Authority and others Constitutional Petition D-549 of 1997 rel.

(c) Administration of justice---

----Ground taken in written synopsis by petitioner's counsel not taken by him during arguments---Validity---High Court declined to allow petitioner's counsel to raise ground in such manner as counsel of contesting respondent would have no opportunity to respond the same.

M. Abdur Rahman for Petitioner.

Khursheed Javed for Respondent No.1.

Kh. Shams-ul-Islam and Imran Taj for Respondents Nos. 8 to 10.

Ms. Naheed Naz, A.A.-G. for the State.

Dates of hearing: 6th, 15th, 22nd, 29th March and 8th May of 2013.

2015 Y L R 1342

[Siudh]

Before Farooq Ali Channa, J

MUREED HUSSAIN---Appellant

versus

The STATE---Respondent

Criminal Appeals Nos.267 of 2011 and 181 of 2009, decided on 9th September, 2013.

Penal Code (XLV of 1860)---

----S.302 (b)---Qatl-i-Amd---Appreciation of evidence---Motive, proof of---Motive behind incident was disputed rotation of irrigation water---Spade used for opening face of water course to take irrigation water to land was recovered from place of occurrence, which indicated presence of deceased for the purpose of taking turn of irrigation water rotation---Accused tried to frustrate motive by suggesting to complainant that complainant party as well as accused had already leased out their lands---Accused did not suggest name of lessee nor led evidence in support of his version---Complainant had also denied suggestion as such the motive which was one of the strong circumstantial evidence was proved---Trial Court had examined and discussed thoroughly evidence led by prosecution so also considered factual as well as legal aspects of case and had rightly come to the conclusion that accused was guilty of causing murder of deceased---Findings of Trial Court were not perverse or suffering from any infirmity---In absence of any illegality by misreading or non-reading of evidence or jurisdictional error, findings of Trial Court could not be interfered---Appeal was dismissed in circumstances.

Habib Ahmed for Appellant.

Khadim Hussain, Deputy Prosecutor General for the State.

Date of hearing: 2nd September, 2013.

2015 Y L R 1366

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

MUREED---Appellant

versus

The STATE---Respondent

Criminal Jail Appeal No.D-159 and Criminal Revision Application No.D-106 of 2004, decided on 20th February, 2013.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Prosecution witnesses had supported the version of the complainant---No contradiction existed between the evidence of all said eye-witnesses regarding date, time and manner of incident---Incident being day time, and parties being well known to each other, identification of accused at the place of incident by complainant and prosecution witnesses, could not be doubted---Defence Counsel had failed to establish any ill-will or enmity on the part of the prosecution witnesses in order to substantiate that they had deposed against accused falsely---Evidence of said eye-witnesses was confidence inspiring, which did not suffer from any infirmity---Medical evidence had fully corroborated the ocular testimony---Circumstantial evidence had also supported the prosecution case---Contention that the deceased had enmity with several persons; and that he might have been murdered by any of them, was of no consequence, as there was ocular testimony of prosecution witnesses to the effect that within their sight, accused along with two absconding accused, while abusing the deceased inflicted hatchet blows and committed his murder---Motive stood proved by the evidence of the complainant and prosecution witnesses---No reason existed to disbelieve the statement of complainant and witnesses, who were the eye-witness and had no motive to falsely implicate the accused---Trial Court, in circumstances had rightly convicted and sentenced the accused and sound and reasonable findings of the Trial Court, required no interference in circumstances.

Badar Munir v. The State and another 2003 YLR 753 rel.

(b) Criminal trial---

----Motive---Weakness and absence of motive---Weakness of motive or its absence, or where it was alleged but not proved, would hardly make any difference.

Waris Khan v. The State 2001 SCMR 387 rel.

(c) Criminal trial---

----Delay in sending recovered articles to expert---Effect---Delay in sending recovered articles to the expert, could only be termed fatal to the prosecution case where the defence had been able to establish malice on the part of the Police---If dispatch was found to have been delayed, said act on the part of Investigating Officer could be termed as irregularity committed during course of investigation---Procedural defects and irregularities committed during the course of investigation, would neither demolish the prosecution case, nor would vitiate the trial, even when the report of expert was positive.

Noor Alam v. The State PLD 1978 SC 137 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.435 & 439---Qatl-i-amd---Petition for enhancement of punishment---Trial Court convicted accused under S.302(b), P.P.C. and sentenced to suffer imprisonment for life---If a case was proved against accused beyond reasonable shadow of doubt, and offence under S.302, P.P.C., was established, the normal penalty of death should be awarded and leniency in any case should not be shown, except where strong mitigating circumstances for lesser sentence could be gathered from the evidence available on record---Such mitigating circumstances in the present case were found by the Trial Court; and thereafter awarded life imprisonment to accused, instead of death sentence---Hatchet recovered from accused was not instantly dispatched for expert opinion---Three persons including accused conjointly caused hatchet blows to the deceased, which resulted into his death---Such were strong mitigating circumstances rendering accused for lesser punishment of life imprisonment instead of death sentence---Trial Court, in circumstances had committed no illegality or irregularity in awarding sentence to accused---Sound and reasonable findings of the Trial Court, could not be interfered with, in circumstances.

Shoukat Ali Pathan for Appellant (in Criminal Jail AppealNo.D-159 of 2004).

Syed Meeral Shah Deputy Prosecutor General Sindh for the State (in Criminal Jail Appeal No.D-159 of 2004).

Anwar A. Khan for the Complainant (in Criminal Jail Appeal No.D-159 of 2004).

Anwar A. Khan for Applicant (in Criminal Revision Application No.D-106 of 2004).

Shoukat Ali Pathan for Respondent No.1 (in Criminal Revision Application No.D-106 of 2004).

Syed Meeral Shah Deputy Prosecutor General Sindh for Respondent No. 2 (in Criminal Revision Appeal No.D-106 of 2004).

Date of hearing: 20th February, 2013.

2015 Y L R 1387

[Sindh]

Before Nadeem Akhtar, J

NASIM HAYAT---Applicant

versus

Mrs. NASEEM AKHTAR and another---Respondents

Civil Revision No.39 of 2007, decided on 22nd May, 2013.

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

----S. 115---Revision---Findings of two Courts below being at variance---Revisional jurisdiction of High Court---Scope---High Court would examine and evaluate evidence on record and assess comparative merits of such conflicting findings---Principles.

If the findings of the two courts are at variance, the conflict would be seen to assess the comparative merits of such findings in the light of the facts of the case and reasons in support of two different findings given by two courts on a question of fact; and if findings of the Appellate Court are not supported by evidence on record and the same are found to be without logical reasons or are found arbitrary or capricious, same can be interfered with in revision.

In the present case, since both the courts below had given conflicting findings and High Court had two divergent views before it, it had become necessary for High Court to minutely examine and evaluate the evidence that resulted into completely opposite and contrary findings.

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 ref.

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

----Arts. 17 & 79---Agreement for sale of immovable property, execution of---Proof---Non-production/examination of second attesting witness of such agreement---Validity---Such agreement pertained to financial or future obligations and was executed after promulgation of Qanun-e-Shahadat, 1984, thus, evidence of two witnesses thereof for proving its execution was mandatory as per Arts. 17 & 79 thereof---Nothing on record to show that such second witness was either dead or alive, thus, he would be presumed to be available, but had not been produced in evidence---Failure of plaintiff to comply with such mandatory requirement of Art. 79 of Qanun-e-Shahadat, 1984 would render such agreement not admissible in evidence---Illustration.

Mst. Rasheeda Begum and others v. Muhammad Yousaf 2002 SCMR 1089 and Sanaullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 rel.

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

----Ss. 12 & 27(b)---Contract Act (IX of 1872), S. 10---Suit for specific performance of sale agreement in respect of property not owned by defendant (vendor), but owned by a third person and that too without mentioning sale consideration therein---Maintainability---Record showed that plaintiff on date of such agreement was neither owner of suit property nor was he holding a power of attorney in his favour from such third person---Such agreement for not finding mention the sale consideration was void -- Defendant was not competent to execute such agreement or sell suit property belonging to a third person---Such agreement being void, was un-enforceable in circumstances.

Khalil Ahmed v. Settlement Authorities through Settlement Commissioner (Land) Multan Division, Multan and others 1968 SCMR 801; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 and Muhammad Bashir and others v. Chiragh Din through Legal Heirs and others 2003 SCMR 774 ref.

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

----S. 12---Contract Act (IX of 1872), S.62---Suit for specific performance of sale agreement---Subsequent agreement between parties containing undertaking of defendant (vendor) to the effect that in case of his failure to convey suit property to plaintiff, he would be liable to pay agreed/specified sum with profit thereon to plaintiff---Effect---Subsequent agreement gave rise to a new contract between parties as per principle of novation, thus, rights and obligations thereof would be governed thereby---Defendant by virtue of subsequent agreement had admitted breach of sale agreement, thus, plaintiff at best would be entitled to amount specified in subsequent agreement---Sale agreement was not specifically enforceable---Suit was dismissed in circumstances.

Jhamat Jethanand for Applicant.

Irfan Ahmed Qureshi for Respondents.

Dates of hearing: 8th March and 19th March, 2013.

2015 Y L R 1416

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

MUHAMMAD TARIQ RAZA ATTARI---Appellant

versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 46 and Confirmation Case No.7 of 2005, decided on 5th March, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(a)(e)---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-i-amd, kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---No eye-witness account was available in the case, but incriminating conduct and information furnished by accused, leading to recovery of dead body of abductee boy of 6 years old had been proved by overwhelming evidence---Chain of events, dispelled any doubt---No enmity, whatsoever had been alleged by accused with the complainant---Accused being brother-in-law of the complainant, complainant had no motive to falsely implicate accused in murder of his son---Prosecution witness, who had identified accused in the court was an independent witness, his evidence was trustworthy---Other prosecution witness, who was friend of the complainant, had also no motive to falsely implicate accused in the case---Evidence of Investigating Officer was straightforward, and no mala fide against him had been brought on record---No infirmity or defect in his evidence had been pointed out---No reason existed to disbelieve such confidence inspiring evidence---Information furnished by accused to the Investigating Officer, could be used against him under Art.40 of Qanun-e-Shahadat, 1984--- Medical evidence had corroborated ocular account---Prosecution having proved its case against accused beyond any reasonable doubt, accused was rightly convicted and awarded death penalty---Nothing substantial was found in the statement of accused recorded on oath to discredit such confidence inspiring evidence which had rightly been discarded by Trial Court---No mitigating or extenuating circumstances were available to award lesser punishment to accused as offence against accused carried capital punishment---Conviction and sentence awarded to accused, were maintained, in circumstances.

Nazir Shehzad and another v. The State 2009 SCMR 1440 and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 rel.

Shahab Sarki and Abdul Rasheed Nizamani for Appellant.

Khadim Hussain Khoonharo, Deputy Prosecutor General for the State.

Dates of hearing: 7th and 26th February, 2013.

2015 Y L R 1446

[Sindh]

Before Amer Raza Naqvi, J

MUHAMMAD ZAFAR and others---Applicants

versus

The STATE---Respondent

Criminal Bail Applications Nos.1167, 1169, 1174, 1175, 1268, 1283, 1285, 1300, 1301 and 1329 of 2014, decided on 23rd July, 2014.

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

----Ss. 497, 498 & 561-A---Penal Code (XLV of 1860), Ss.409 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Federal Investigation Agency (Inquiries and Investigations) Rules, 2002, R.5---Pakistan Criminal Law Amendment Act (XL of 1958), Preamble---Constitution of Pakistan, Art.10-A---Criminal breach of trust by public servant, or by banker, merchant or agent, punishment of abetment if the act abetted was committed in consequence and where no express provision was made for its punishment---Bail, grant of---Further inquiry---Right to fair trial---Matter pertained to years 2010 to 2013---FIR was registered in year 2014---Neither inquiry report was filed in the court nor copies thereof had been supplied to accused persons who were not heard at the time of inquiry---Right of accused to defend themselves had been denied---Final challan had yet to be filed which investigation was still going on---Case of accused required further inquiry---Accused were not required for investigation---Bail was granted.

1992 SCMR 975, 2011 YLR 228 and 1978 SCMR 64 ref.

(b) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Application and scope---In view of Art.10-A of the Constitution, every document intended to be produced by prosecution before Trial Court should be required to be supplied to accused persons so that they could defend themselves properly.

Muhammad Ashraf Kazi, Barrister Zameer Ghumro, Haider Waheed, Shabbir Shaikh, Mukesh Kumar G. Karara, Muhammad Ilyas Khan, Asif Ali Pirzada, Rafiq Ahmed Kalwar, Abdul Salam Baloch and Mehfooz Ahmed Awan for Applicants.

Abdul Sadiq Tanoli, Standing Counsel, along with Deputy Director Syed Israr Ali, FIA and I.O. Syed Nisar for Respondents.

Date of hearing: 22nd July, 2014.

2015 Y L R 1460

[Sindh]

Before Ahmed Ali. M. Shaikh and Muhammad Iqbal Kalhoro, JJ

Syed ARSALAN IQBAL---Petitioner

versus

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

Constitutional Petition No.D-345 of 2015, decided on 10th March, 2015.

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

----S. 2(3)---Constitution of Pakistan, Arts. 199, 4, 9, 14 & 15---Constitutional petition---Exit Control List---Placing name in the Exit Control List due to pendency of reference filed by NAB authorities---Fundamental rights---Guarantee---Public interest---Scope---Name of petitioner was placed in Exit Control List without attending to the formalities and in a mechanical manner---Liberty of a citizen was guaranteed and same was to be protected covetously---Action which would curtail the liberty of a person should be taken in accordance with law and on showing sufficient cause in its favour---Authority was not bound to specify the reasons of an order to prohibit any person from proceeding from Pakistan when same were not in public interest---Authorities had recommended placing the name of petitioner on Exit Control List due to pendency of a reference---Co-accused facing alike indictment had been allowed to travel abroad and deletion of their names from the Exit Control List had been ordered by the court---Placing name of a person on Exit Control List on the instructions of NAB authorities in a mechanical manner without assigning any reason was not the scheme of law---Memorandum through which the name of the petitioner was placed on Exit Control List had neither been supplied to the petitioner nor had the same been placed before the court to appreciate any details or reasons for its justification---Any such restriction which was going to be imposed on a person should not be resorted to unless the exit of a person from Pakistan was deemed to be against the public interest---Detail reasons should be assigned in the memorandum putting a clog on the travel of a person abroad---Authorities were directed to remove the name of the petitioner from Exit Control List, however present order should not be read to have any effect in the pending proceedings against the petitioner or the right of the authorities to take subject action against him in accordance with law---Constitutional petition was accepted accordingly.

Obaid-ur-Rehman for Petitioner.

Salman Talibuddin, Additional Attorney General for Pakistan for Respondents.

Noor Muhammad Dayo, ADPG for NAB.

2015 Y L R 1489

[Sindh]

Before Zafar Ahmed Rajput, J

FAIZULLAH KHAN and others---Plaintiffs

versus

Mst. MIRZAGO BEGUM and others---Respondents

Suit No.1445 of 2008 and 92 of 2010, decided on 10th September, 2014.

Civil Procedure Code (V of 1908)---

----O. XX, Rr. 13 & 18 & O.XL, R.1---Administration suit---Relinquishment deed---Scope---Receiver, appointment of---Relinquishment deed was un-registered document which was not read-over and explained to the plaintiff before getting her signature or thumb impression thereon---No suggestion was put to the plaintiff during cross-examination that she had signed or gave thumb impression with her conscious knowledge on the relinquishment deed knowingly that she was receiving her share from the properties left behind by her deceased father---No credibility could be attached to the said document---Defendants had failed to prove that they had already paid the share of plaintiff from the properties left by her deceased father in accordance with Shariah---Plaintiff had not been paid her share in the properties and she had not relinquished her share---Plaintiff was entitled to a preliminary decree for administration of properties left by her deceased father---Preliminary decree for administration of estate of deceased was passed and Receiver was appointed.

Z. U. Mujahid for Plaintiffs (in Suit No.1445 of 2008).

Abdul Wajid Wyne for Defendants (in Suit No.1445 of 2008).

Shahab Sarki for Plaintiff (in Suit No.92 of 2010).

Haji Zafar-ul-Haq for Defendant (in Suit No.92 of 2010).

Date of hearing: 8th May, 2014.

2015 Y L R 1507

[Sindh]

Before Muhammad Ali Mazhar, J

Messrs DANYAL ENTERPRISES through Co-partner---Plaintiff

versus

Messrs A.G.E. AND SONS (PVT.) LTD. and 2 others---Respondents

Civil Suit No.629 and C.M.A. No.6631 of 2013, decided on 5th August, 2013.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 54---Partnership Act (IX of 1932), S.69---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of agreement, declaration and injunction---Rejection of plaint---Un-registered partnership firm---Bar to jurisdiction---Partners of unregistered partnership firm were party to proceedings and defendant contended that jurisdiction of Civil Court was barred---Validity---Registration of firm was neither made compulsory nor any penalty could be imposed but bringing of certain suits in respect of partnership which was not registered under Partnership Act, 1932, were forbidden---Civil Court had no discretion and rules stated in Partnership Act, 1932, were mandatory---Non-adherence to provision would debar a Court from entertaining a suit instituted without compliance of the provision as to prior registration as laid down in S.69 of Partnership Act, 1932---Disability of unregistered firm to sue was of crippling nature and disability inflicted by S.69 of Partnership Act, 1932, was so compulsive and comprehensive that there was no escape from it and the same worked out as an indirect compulsion for registration---Plaint was rejected under O.VII, R.11, C.P.C. as suit was barred under S.69 of Partnership Act, 1932---Application was allowed in circumstances.

Alavi Sons Ltd. v. Government of East Pakistan and others PLD 1968 Kar. 222 and Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 ref.

Province of Punjab and others v. Malik Ibrahim and Sons and another 2000 SCMR 1172; Ardeshir Cowasjee and others v. K.B.C.A. and others PLD 2003 Kar. 314; Usman v. Haji Omer and others PLD 1966 SC 328 and Purushootam and another v. Shivraj Fine Arts Litho Works and others (2007) 15 SC Cases 58 distinguished.

Province of West Pakistan and another v. Messrs Asghar Ali Muhammad Ali & Co. PLD 1968 Kar. 196; Province of Sindh and others v. Messrs Royal Contractors 1996 CLC 1205; Law of Partnership, Seventh Edition, 2009; Loonkaram sethia v Ivan E. John, (1977)1 SCC 379; AIR 1977 SC 336; (1977) 1 SCR 853 and Law of Partnership, Principles, Practice and Taxation, Third Edition authored by Avtar Singh rel.

Muhammad Mansoor Mir for Plaintiff.

Rasheed A Razvi and Syed Haider Imam Rizvi for Defendants Nos. 1 and 2.

Nemo for the Defendant No.3.

Dates of hearing: 21st and 24th June, 2013.

2015 Y L R 1569

[Sindh]

Before Syed Saeed-ud-Din Nasir, J

Syed RIAZ HAIDER and 3 others---Plaintiffs

versus

FRONTIER CORE CONSTABULARY FOUNDATION TRUST through SSP and 4 others---Defendants

Suit No.293 of 2014, decided on 22nd December, 2014.

Civil Procedure Code (V of 1908)---

----O.VII, R.11----Specific Relief Act (I of 1877), Ss.39, 42 & 54---Limitation Act (IX of 1908), S.3 & Art.91---Transfer of Property Act (IV of 1882), S.54---Qanun-e-Shahadat (10 of 1984), Art.100---Suit for declaration, cancellation of documents, permanent injunction and damages filed before High Court in its original jurisdiction---Application for rejection of plaint---One of the defendants filed application under O.VII, R. 11, C.P.C. on different grounds including the one that suit was filed well beyond limitation period---Plaintiffs were admittedly well aware as to the execution of the lease deed, along with other related documents, which they had sought to be cancelled---Plaintiffs having been acutely conscious of the execution of the lease deed opted to file a constitutional petition, instead of a suit for cancellation of the documents, that was also without impleading a necessary party---Plaintiffs also did not mention the date and source of knowledge as to execution of lease deed in their plaint---Effect---Suit was time barred by seven years, ten months and sixteen days---High Court, accepting the application, rejected the plaint for being time barred.

National Bank of Pakistan v. Jalib Saeed PLD 2007 Quetta 1; Noor Muhammad and others v. Additional District Judge, Gojra and others 2004 MLD 1321; Nazir Ahmad v. Imdad Hussain and others 2005 YLR 1096; Muhammad Sami v. Additional District Judge, Sargodha and others 2007 SCMR 621; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited Karachi 2009 YLR 451; Muhammad Anwar v. Pak Arab Refinery Limited 2007 CLC 1821; Bolan Beverages (Pvt.) Limited v. Pepsico. Inc. and others PLD 2004 SC 860; Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Mir Sahib Jan v. Janan 2011 SCMR 27; Abdur Rahman Mobashir and others v. Syed Amir Ali Shah Bokhari and others PLD 1978 Lah. 113 rel.

Ms. Humaira Aftab for Plaintiffs.

Nemo for Defendants Nos. 1 to 4.

Khawaja Shamsul Islam for Defendant No.5.

Date of hearing: 6th November, 2014.

2015 Y L R 1589

[Sindh]

Before Nazar Akbar, J

GHULAM FARID MEMON---Plaintiff

versus

PROVINCE OF SINDH through Secretary and 13 others---Defendants

Suit No.750 of 2013, decided on 3rd February, 2015.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for declaration---Cause of action and locus standi to file suit--- Scope--- Defendants moved application for impleadment as a necessary party in the suit on the ground that they were owners in possession of suit property---Application for impleadment was allowed and plaintiff was directed to file amended plaint---Plaintiff filed only amended title and did not file amended plaint to seek any relief against the newly impleaded defendants---Contention of defendants was that suit property had been transferred in their favour---Validity---Plaintiff ought to have filed an amended plaint if he was aggrieved by the claim of newly impleaded defendants---Declaration of status of suit property as village property could not be granted---Plaintiff was to claim declaration with regard to his personal right in the property, if the same had been denied by anyone---Plaintiff was not aggrieved by denial of any existing right in his favour he wanted that in future the proprietary rights might be conferred on him by regularization of land which he claimed to be under his occupation---Plaintiff having no proprietary right nor such right was under any threat, he was not entitled to seek any declaration---Present suit was filed after ownership rights with regard to suit property had already been conferred in favour of defendants through auction of government land---Defendants were in possession on the suit property---Plaintiff had filed present suit without any specific time/date of accrual of cause of action against the defendants---Claim of plaintiff stood demolished by the facts that defendants were owners in possession of suit land and despite such knowledge/ information, plaintiff had not shown any grievance against the defendants---Suit was dismissed for want of cause of action and locus standi to seek declaration, in circumstances.

M. Anwer Shahid for Plaintiff.

Altaf Javed for Defendants Nos. 10 to 14.

Date of hearing: 13th November, 2014.

2015 Y L R 1602

[Sindh]

Before Zafar Ahmed Rajput, J

Mst. UROOJ BEGUM---Appellant

versus

SHABBIR AHMED CHAUDHRY and 4 others---Respondents

Second Appeal No.78 of 2014, decided on 31st March, 2015.

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

----Ss. 9, 42 & 55---Suit for declaration, mesne profit, possession and mandatory injunction---Plaintiffs contended that step brother of defendant was in possession of suit property as their tenant till his death who also carried out business of book binding at the property, and appellant, after his death, in connivance with her sons, entered into the property by breaking into it to claim tenancy rights; that she had neither resided in the property nor had she engaged in said business with her brother and she, in order to cover up her trespassing, had filed Miscellaneous Rent Case against respondents---Defendant contested the suit claiming that she, being sister of her deceased brother/tenant, became tenant of the plaintiffs as per law of inheritance and plea of trespassing was false---Failure to prove tenancy/absence of rebuttal---Plaintiffs substantiated their claim by producing evidence, but appellant's right to produce evidence was closed after affording many opportunities to her to adduce evidence---Trial court decreed the suit and lower appellate court affirmed the same---Validity---Nothing was available to show that decision given by courts below was contrary to law or any usage having the force of law or the same was result of failure to determine issue of law or issue of usage---Defendant remained indolent in not adducing her evidence and failed to prove her claim---Defendant during cross-examining the plaintiff's witnesses failed to shatter their credibility---Absence of rebuttal by defendant was sufficient proof for plaintiff's claim---Possession of Defendant in the suit property was that of a trespasser as the same was without consent of landlord and she had failed to prove tenancy---Defendant could be ejected from suit property at any time---No case was made out on ground of any substantial error, procedural defect, any misreading and non-reading of evidence or any misconceiving of fact or commission of any jurisdictional error---Impugned judgments of courts below did not call for any interference or exercise of discretion on any point of law in case of concurrent findings---High Court dismissed second appeal.

Abdul Lateef Khan and another v. Gul Rehman and 2 others 1993 MLD 643; Abdul karim v. Ali Raza 1997 MLD 3098; Rehman Cotton Factory v. Nichman Company Ltd. PLD 1976 SC 781 and Mian Abdur Rashid v. Province of Punjab, through District Collector, Okara and another PLD 2003 Lah. 389 rel.

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

----Ss. 100 & 101---Second appeal---Pre-requisites---Second appeal under S. 101, C.P.C. lies only on grounds given under S. 100, C.P.C., not otherwise---Second appeal lies when either the decision is against the law, and/or some material point of law has been left undecided, and/or some substantial error, or procedural or jurisdictional defect has occurred that has resulted in error and defect in the decision on merits.

Anwar Ahmed for Appellant.

Muhammad Aqil for Respondents.

Date of hearing: 24th March, 2015.

2015 Y L R 1609

[Sindh]

Before Nazar Akbar, J

JAVAID IQBAL alias KHALID MAHMOOD---Applicant

versus

The STATE and 7 others---Respondents

Criminal Revision Application No.145 of 2014, decided on 29th April, 2015.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5, 7 & 8---Constitution of Pakistan, Arts. 4 & 10A---Illegal dispossession---"Offender" as defined in S.3, Illegal Dispossession Act, 2005---Scope--- Dismissal of complaint---Petitioner, who was tenant in shop in question, was forcibly and unlawfully dispossessed by the landlords on the pretext that petitioner had not paid utility bills of the shop in question---Respondents after dispossessing the petitioner, locked the shop---Trial Court dismissed the complaint filed by the petitioner against his illegal and unlawful dispossession, without even going for the trial simply on the ground that petitioner did not fall within the definition of offender as given in S.3 of Illegal Dispossession Act, 2005---Trial Court while passing impugned order failed to assign any reason---If respondents were of the view that, the petitioner was guilty of non-payment of utility bills of the shop, they were not supposed to take law in their hands---Respondents could file case for ejectment of the petitioner/tenant in terms of S.15 of the Sindh Rented Premises Ordinance, 1979, but, instead they chose to apply force to dispossess the petitioner---Petitioner, was deprived of fundamental rights guaranteed to him under Arts.4 & 10-A of the Constitution---Order passed by Trial Court, was set aside and case was remitted, with directions that complaint filed by the petitioner, be disposed of after framing charge, and recording evidence of all the parties, mentioned in the Police report or any other witness, that parties could choose to bring in support of their case---Pending proceedings, possession of shop in question should be handed over to the petitioner, in circumstances.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 ref.

Muhammad Tamaz Khan for Applicant.

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

Muhammad Mustafa Sandhu for Respondents Nos. 2 to 8.

Date of hearing: 25th April, 2015.

2015 Y L R 1624

[Sindh]

Before Syed Saeed-ud-Din Nasir, J

BHARAT and 2 others---Applicants

versus

The STATE---Respondent

Criminal Miscellaneous Application No.S-469 of 2014, decided on 1st October, 2014.

Penal Code (XLV of 1860)---

----Ss. 406, 109 & 462-C---Criminal Procedure Code (V of 1898), S.561-A---Criminal breach of trust, abetment, offence committed by person entrusted with custody---Quashing of proceedings---Facts of the case as stated by the complainant/Acting Deputy Chief Engineer, of the Gas company, were that Filling Station owned by the petitioners, was connected to the 'SSGCL' System after issuance of Marketing Licence by 'OGRA'---Petitioners as per terms and conditions of agreement between the petitioners and 'SSGCL', petitioners/owners of Filling Station in question, were required to use one compressor having capacity 17650 CFt/hour, but complainant noticed that one additional compressor of the same capacity was also installed by the petitioners at the said CNG Station without approval of the 'SSGCL'---Complainant lodged complaint, wherein he mentioned that petitioners had installed unauthorized compressor, and one gas generator due to which SSGCL sustained heavy losses; on account of interfering with the distribution line by accused persons; and had committed gas theft---Evidence and material available on record, had shown that Deputy General Manager and Chief Engineer 'SSGCL', had exonerated petitioners of all the charges; and so also the charge sheet, wherein it was categorically stated that by Field Proving Report and Meter Testing Report, no tampering was done with the meter---No evidence was available to suggest tampering/alteration with the meter and distribution line, and no gas theft was pointed out---Provisions of S.462-C, P.P.C. were not attracted in the case---Continuation of proceedings before the Trial Court against the petitioners, would be an exercise in futility, wastage of time and abuse of the process of court---Proceedings pending before the Trial Court emanating from FIR under Ss.406, 109, 462-C, P.P.C. against the petitioners, were quashed, and they were acquitted from the charges levelled against them, in circumstances.

2000 SCMR 122; 2011 SCMR 863; 1994 SCMR 798; 2009 YLR 169; NLR 1999 Criminal 181; PLD 1997 SC 275; Habibullah Khan v. The State 2000 PCr.LJ 1898 and Moula Bux and another v. The State PLD 2010 Kar. 204 ref.

S. Ashikue Raza for Applicants.

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

Muhammad Aslam Bhatti for the Complainant.

Date of hearing: 17th September, 2014.

2015 Y L R 1641

[Sindh]

Before Muhammad Shafi Siddiqui and Syed Muhammad Farooq Shah, JJ

MUHAMMAD NAEEM---Petitioner

versus

Inspector JAWED AHMED FAROOQI and 3 others---Respondents

C.P. No. D-1015 of 2013, decided on 13th September, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 561-A---Penal Code (XLV of 1860), Ss. 420, 406 & 34---Constitution of Pakistan, Art. 199---Constitutional petition---Cheating, criminal breach of trust and common intention---Cancellation of case in column 'C' by Judicial Magistrate---Further investigation by police---Scope---Contention of accused was that order of Judicial Magistrate cancelling the case was still intact and subsequent investigation could not be initiated---Validity---Further investigation could not be conducted unless order passed on charge sheet submitted under S. 173, Cr.P.C. was set aside---Police could conduct fresh investigation of a case if first investigation was found unsatisfactory with sound and plausible reason after submission and acceptance of first and final report---Same Police Officer or his superior could not revive the investigation already done---Another investigation could be undertaken by the police on further information received in the shape of evidence and on conclusion of investigation into the crime by the Police Officer---In the present case, no prejudice was caused to the accused on submission of charge sheet---Previous investigation conducted was arbitrary, capricious, whimsical and dishonest as same had not been conducted in a manner to bring the truth on the surface to save the innocent person from agony of trial---Investigation could only be intervened to save fundamental and legal right of the parties or where mala fide and excess of jurisdiction was available---Accused could not point out that investigation was not transparent nor independent and suffered from any illegality or irregularity or same was conducted with mala fide or without jurisdiction---Constitutional petition was not sustainable which was dismissed in circumstances.

Ghulam Sarwar Zardari v. Piyar Ali alias Pyaro 2010 SCMR 624 and Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56 ref.

Ghulam Sarwar Zardari v. Piyar Ali alias Pyaro 2010 SCMR 624 distinguished.

Bahadur Khan's case 2006 SCMR 373; Muhammad Nasir Cheema v. Mazhar Javed PLD 2007 SC 31; Zeeshan alias Shani v. The State 2012 SCMR 428; Muhammad Yousuf v. The State 2000 SCMR 453; PLD 2010 SC 1109 and Ghulam Sarwar Zardari v. Piyar Ali alias Pyaro 2010 SCMR 624 rel.

Sheikh Javed Mir and Zulfiqar Haider Shah for Petitioner.

Zahid Abbas for Respondent.

Zafar Ahmed Khan, APG for the State.

Date of hearing: 9th September, 2014.

2015 Y L R 1652

[Sindh]

Before Nazar Akbar, J

NANNEY KHAN through Attorney---Plaintiff

versus

MUHAMMAD DAWOOD KHAN and another---Defendants

Suit No.1475 of 2010, decided on 20th January, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan, Arts. 24 & 172---Qanun-e-Shahadat (10 of 1984), Art. 117 & 120---Suit for specific performance of agreement to sell---Requirements--- Ownerless property---Execution of document---Onus to prove---Plaintiff claimed to have entered into agreement to sell with defendant for suit property---Validity---In order to succeed in a Court of law for specific performance of agreement, plaintiff had to prove execution of agreement through a strong, consistent and cogent evidence independently and he could not succeed in obtaining decree solely on the basis of weakness, lacuna and total absence in or of the defence---Court, in the present case, was satisfied that none was known to the Court for having any right or entitlement in suit property, in such situation the Court was required to find out the actual owner/or his/her legal heirs before holding that suit property was escheatable---High Court imposed cost upon the plaintiff who had been in illegal possession of suit property since year, 2009---Suit was dismissed, in circumstances.

Chilya Corrugated Board Mills Ltd., v. M. Ismail 1992 CLC 2524 and Muhammad Aslam Khan v. Muhammad Anwar Khan 2002 CLC 22 rel.

Abdul Majeed Shughil and Masood Ahmed Ausaf for Plaintiff.

Nemo for Defendants.

Date of hearing: 17th October, 2014.

2015 Y L R 1668

[Sindh]

Before Riazat Ali Sahar and Zafar Ahmed Rajput, JJ

MUHAMMAD UMAR---Appellant

versus

The STATE---Respondent

Criminal Jail Appeal No.D-65 of 2011, decided on 29th October, 2013.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Evidence of prosecution witnesses had gone unshaken, despite the fact that they were subjected to a lengthy cross-examination---Entries appeared to have been produced to substantiate the movements of the officials; and report of Chemical Analyzer had also been produced, which had established that the parcel, sent to him contained charas---Physical possession and/or constructive possession of the narcotic material, had made the possessor liable to be punished---Possession should not necessarily be physical---Truck, driven by accused, having been found to be loaded with contraband, possession thereof with accused could not be denied, who had been controlling the truck---Contention that driving licence having not been recovered from the possession of accused, he could not be termed as the driver of the truck, was without any fence, as said accused was driving the truck was repelled---Driving was an art and it was not coupled with the licence, which was merely a legal authority to do that particular act---One having no driving licence could drive a vehicle---Contention that accused was not the owner of vehicle, was not tenable, as accused was found controlling the vehicle, which was loaded with contraband material---Driver, who was in actual possession of the vehicle and the material, was responsible---Owner could also be guilty in some cases, but not necessarily in every case---Witnesses being officials of Excise Department, were also good witnesses like others, and their evidence could not be brushed aside merely for the reason of their being officials---Said witnesses could be disbelieved, if they were shown to be inimical and/or interested---No animosity having been alleged against said witnesses, in absence of such motive, there was no reason to discard the testimony of said officials---Defence plea, was unsupported by any evidence, as nothing had been adduced in substantiation thereof---Prosecution had proved its case against accused beyond any shadow of doubt---Trial Court had appreciated the evidence in accordance with settled principles of law---Judgment of the Trial Court being based upon sound reason, required no interference, and same was maintained.

Asmatullah and 2 others v. The State 2010 PCr.LJ 1560; Muhammad Sadiq v. The State 2005 SCMR 1689 and Ikram Hussain v. The State 2005 SCMR 1487 ref.

Afsar Khan v. The State 2008 SCMR 1219; Muhammad Sadiq's case 2005 SCMR 1689 and Kashif Amir v. State PLD 2010 SC 1052 rel.

(b) Administration of justice---

----When there were two contrary views the one favouring accused, had to be followed.

Shewak Ram Valeecha for Appellant.

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

Date of hearing: 19th September, 2013.

2015 Y L R 1686

[Sindh]

Before Ghulam Sarwar Korai and Aziz-ur-Rehman, JJ

FAZUL MUHAMMAD---Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE and others---Respondents

C.P. No.D-3702 of 2012, decided on 1st January, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Habeas corpus---Registration of FIR---Petitioner alleged that police had kept his son in illegal confinement, deprived him of Rs. 380,000 and demanded illegal gratification---Police registered FIR against petitioner and alleged that detenu had fired upon policy party---Police further alleged that petitioner and another person managed to escape from place of incident---Validity---Time of alleged incident was 6-40 a.m. but petitioner and another person succeeded to made their escape who were not even chased by police party---Next was a working day and detenu was not produced before concerned Magistrate for remand---Two FIRs were falsely registered by police against petitioner, his son and another person, in order to save illegal act, therefore, High Court quashed both the FIRs---High Court directed police to return car to petitioner, as the same had been recovered from his possession and if there were any proceedings in respect of that car, the same were also ordered to be quashed---Allegation of snatching of Rs.380,000 and further demand of Rs.300,000 as illegal gratification from petitioner for release of his son was not specifically denied by police, therefore, High Court directed for registration of case against police officials concerned---Petitioner was allowed accordingly.

Ali Akbar Shar for Petitioner.

Agha Ather Hussain Assistant Advocate General for Respondents.

Date of hearing: 1st January, 2013.

2015 Y L R 1714

[Sindh]

Before Nazar Akbar, J

WALI BHAI through General-Attorney---Petitioner

versus

DISTRICT JUDGE, HYDERABAD and 2 others---Respondents

Constitution Petition No.S-411 and M.As. Nos. 5155 to 5157 of 2012, decided on 14th November, 2014.

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

----Ss. 15 & 2(h)---Qanun-e-Shahadat (10 of 1984), Arts.2(1) (c), 132(2) & 117---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Demised premises, a hotel---Lease agreement---Default in payment of rent---Personal bona fide need of landlord---Ejectment of tenant was ordered---Validity---Landlord was bound to prove the existence of fact that the provisions of relevant laws were applicable to the "premises" in question when tenant had denied that building in question was not the "premises"---Landlord had not led any evidence to prove that the premises was let out for a purpose other than a hotel and same was subsequently converted into a hotel---Findings of Rent Controller with regard to jurisdiction were contrary to evidence which were result of misinterpreting and non-reading of evidence---Jurisdiction of Rent Controller was barred, as premises was a hotel---Rent Controller in the facts of present case had no jurisdiction to entertain the ejectment application with regard to the "premises" of a hotel---Courts below had not only ignored the evidence of landlord but also failed to properly appreciate the contents of lease agreement---Concurrent findings of both the courts below were not based on proper appraisal of evidence and due application of law---Both the courts below had misapplied the Law of Evidence placed on record by the tenant that premises had been used as a hotel---Courts below ought to have inferred on the basis of documentary evidence that the premises had always been a "hotel" contrary to their findings that same had been subsequently converted into hotel which was neither the case of landlord nor any evidence had been led to such effect---Unchallenged statement of tenant should have been given full credit by the Rent Controller--- Rent Controller had unlawfully assumed the jurisdiction which was barred with regard to "hotel" premises---Order of Rent Controller was without jurisdiction and void---Jurisdiction could neither be conferred nor taken away by the parties or by their conduct or even by their consent---Order passed by a tribunal or court without jurisdiction was always void and nullity in law---Findings recorded by both the courts below were set aside and eviction petition was dismissed---Constitutional petition was accepted accordingly.

Allahdin v. Habib PLD 1982 SC 465; Ishtiaque Ali v. Muhammad Nasiruddin 1988 MLD 2526; Mst. Noor Jehan Begum through L.Rs. v. Syed Mujtaba Ali Alvi 1991 SCMR 2300; PLD 1973 SC 236; PLD 1975 SC 331 and Land Acquisition Collector, Nowshera and others v. Sarfaraz Khan and others PLD 2001 SC 514 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of facts if found contrary to the evidence and were result of misapplication of law could be interfered in constitutional jurisdiction to render a findings on proper appraisal of evidence and due application of law and not otherwise.

2014 SCMR 914; PLD 1987 SC 447 and The Discipline of Law by Lord Denning rel.

(c) Administration of justice---

----Facts which had not been specifically pleaded could not be proved by leading evidence nor raised during the course of arguments---Anything stated outside the scope of averments in the pleading could not be looked into---Party could not be allowed to prove what had not been alleged or pleaded.

Muhammad Nawaz alias Nawaz v. Member Judicial B.O.R. 2014 SCMR 914 rel.

(d) Administration of justice---

----Legal right---Burden of proof was always on a party who desired a court to give judgment in his favour as to any legal right or liability which was always dependent on the existence of facts which the party had asserted affirmatively and not upon the party who had denied.

(e) Jurisdiction---

----Jurisdiction could neither be conferred nor taken away by the parties or by their conduct or even by their consent---Order passed by a tribunal or court without jurisdiction was always void and nullity in law.

PLD 1973 SC 236 and PLD 1975 SC 331 rel.

Syed Ahsan Ali Shah for Petitioner.

Muhammad Hamayoon for Respondent No.3.

Date of hearing: 22nd September, 2014.

2015 Y L R 1746

[Sindh]

Before Muhammad Iqbal Kalhoro, J

SOOBAL and another---Applicants

versus

The STATE---Respondent

Criminal Bail Application No.89 of 2014, decided on 5th August, 2014.

Criminal Procedure Code (V of 1898)---

----S.497 (2)---Penal Code (XLV of 1860), S.302---Qatl-i-Amd---Bail, grant of---Case of further inquiry---Spy information---Accused persons were arrested on a spy information for committing murder of two persons including daughter of one of the accused and then causing dis-appearance of their dead bodies---Validity---Deeper appreciation into merits of case could not be undertaken at bail stage and only a tentative assessment of material available was to be made just to find out as to whether there were sufficient grounds available with prosecution to establish involvement of accused in commission of offence or not---Prima facie there was no direct evidence available with prosecution against accused persons to connect them with commission of offence---Bail was allowed in circumstances.

Sabir Baig v. The State 2012 YLR 1412 and Khaloo alias Abdul Khaliq and another v. The State 2004 PCr.LJ 1839 rel.

Imdad Ali and another v. The State 2012 YLR 1719; Muhammad Rafiq v. The State 2012 YLR 2890 and Shah Nawaz v. The State 2009 YLR 2300 ref.

Ghulam Nabi Chadhar for Applicants.

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

2015 Y L R 1755

[Sindh]

Before Syed Saeed-ud-Din Nasir, J

Mrs. SAMIA AAMIR---Plaintiff

versus

Mst. SALMA NILOFAR and 4 others---Defendants

Suit Nos.1492 of 2009 and 1259 of 2011, C.M.As. Nos. 14824 of 2014 and 9585 to 9587 of 2009, heard on 26th February, 2015.

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

----O. XXXIX, Rr. 1 & 2 & O. XX, R. 13---Administration suit---Temporary injunction, grant of---Scope---Controversy was as to which properties would belong to the plaintiff and which did not, and in which property the plaintiff and defendants were entitled to get their shares---Such matter could only be decided on leading evidence by the parties---Application for grant of temporary injunction was allowed and defendants were restrained from selling, alienating, disposing of and creating third party interest in the movable and immovable properties including the shares in the company during the pendency of suit till final decision.

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

----O. XX, R. 13---Administration suit---Scope---All properties could be included in the suit for administration if there was allegation against such properties that same were benami and were purchased by the deceased with his own funds.

Mansoor-ul-Arfin for Plaintiff.

Khurram Rasheed for Defendant No.2.

Arshad M. Tayebaly for Defendants Nos. 1, 3 and 4.

Nemo for Defendant No.5.

2015 Y L R 1776

[Sindh]

Before Amer Raza Naqvi, J

AZAM alias BABOO and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No.332 of 2012, decided on 29th October, 2014.

Penal Code (XLV of 1860)---

---Ss. 324, 353 & 34---Criminal Procedure Code (V of 1898), S. 265F(7)---Attempt to commit Qatl-i-amd, Assault or criminal force otherwise than on grave provocation and common intention ---Accused not given opportunity to produce defence evidence---Effect---Accused persons specifically mentioned during their trial that they wanted to examine certain defence witnesses, but Trial Court did not fixed the matter for such purpose and hence did not give them an opportunity to produce their defence witnesses---Right of accused persons had been prejudiced in such circumstances---Conviction and sentence of accused persons were set-aside and case was remanded to the Trial Court with the direction that fair opportunity should be given to accused persons to produce defence witnesses in their favour, and thereafter fresh judgment should be passed---Appeal was allowed accordingly.

Muhammad Arshad Tariq and Khawaja Muhammad Azeem for Appellants.

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

2015 Y L R 1779

[Sindh]

Before Syed Muhammad Farooq Shah, J

ALI MUHAMMAD LASHARI---Appellant

versus

The STATE---Respondent

Crl. Jail Appeal No.S-185 of 2010, decided on 11th March, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution evidence appeared to be shaky, misconceived, untrustworthy, and was not inspiring confidence---Accused received injury on his head, but such material fact had been suppressed by the eye-witnesses including the Investigating Officer; and same had not even been discussed or considered by the Trial Court, while recording the impugned judgment---Ocular account revealed that many persons had reached at the place of incident, who were close relatives of deceased and the complainant, but they did not try to overpower the only assailant/accused, who was severely injured; and went away safely without any resistance---Appearance of said witnesses at the scene of occurrence at the relevant time was doubtful---Motive as alleged, was not proved---Ocular version was inconsistent with medical evidence---Evidence about recoveries of crime weapons, and empty cartridges, was unconvincing---Sentence imposed upon said injured accused by the Trial Court, being not warranted in law, was set aside and accused was directed to be released, in circumstances.

Ashiq Hussain v. The State 1993 SCMR 417 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

(b) Criminal trial---

----Motive---Failure to prove motive---Effect---When motive was alleged, but not proved, then ocular evidence was required to be scrutinized with great caution---Motive would cut both ways, if enmity would persuade a person to commit a crime, then it was also sufficient to falsely implicate same person from the other side.

2010 SCMR 97 and 2009 SCMR 916 ref.

(c) Criminal trial---

----Witness---Improvements made by eye-witnesses in their statements---Effect---Improvements made by the eye-witnesses in order to strengthen the prosecution case, would lose their credibility and evidentiary value---When a witness made contradictory statement or improvement, changing his version to suit the situation, if found deliberate and dishonest, would cause serious doubt in his veracity; and credibility---Single circumstance creating reasonable doubt in a prudent mind, was sufficient for acquittal of accused, not as a matter of grace, but as of right.

Syed Sajjad Hussain Shah for Appellant.

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

Date of hearing: 11th February, 2014.

2015 Y L R 1791

[Sindh]

Before Shahab Sarki, J

SHARIFUDDIN---Applicant

versus

The STATE---Respondent

Bail Application No.783 of 2014, decided on 9th June, 2014.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324, 353 & 392---Attempt to commit Qatl-i-Amd, assault or criminal force to deter public servant from discharge of his duty and robbery---Bail, refusal of---Tentative assessment of evidence---Prima facie case---Accused was arrested at the spot and looted articles were recovered from him---Private complainant in the case, was an eye-witness---Accused alleged no enmity with private person or with police---Crime weapon was recovered from possession of accused and there was no delay in lodging of FIR---Effect---Cases in which accused persons were arrested and looted articles were recovered, should be left for Trial Court to adjudicate---Tentative assessment was to be made at bail stage and accused was connected directly with the crime---Bail was declined in circumstances.

Shehzore v. The State 2006 YLR 3167; Suleman v. The State 2004 YLR 104; Tariq Bashir v. The State PLD 1995 SC 34 and Muhammad Hussain v. The State 1995 PCr.LJ 488 distinguished.

Imtiaz Ali Effendi for Applicant.

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

2015 Y L R 1834

[Sindh]

Before Nazar Akbar, J

Mrs. SANA RIZWAN---Plaintiff

versus

Mrs. AMNA FAHIM and 2 others---Defendants

Suits Nos.1291 of 2003 and 10 of 2004, decided on 20th March, 2015.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79 & 129, illustration (g)---Suit for specific performance of agreement to sell---Agreement, proof of---Withholding of evidence---Plaintiff claimed to have entered into agreement with defendant regarding sale of suit property---Second instalment was payable by plaintiff to defendant within seven days after publication of advertisement inviting objections to sale---Plaintiff never published any public notice in newspaper inviting objections to her intended purchase of suit property, during 90 days period of time and therefore, did not offer to make payment of second instalment in breach of agreement---To the contrary, through a letter, plaintiff proposed that defendant should hand over possession of suit property immediately without further payment---Effect---Intention and conduct were going in directions which could not be termed as anything except an intended breach of terms and conditions of agreement of sale---Requirement of Arts. 17 & 79 of Qanun-e-Shahadat, 1984, to prove execution of contract by producing two attesting witnesses had not been done, therefore, reference to Art. 129, illustration (g) of Qanun-e-Shahadat, 1984, was misconceived---Plaintiff herself had failed to produce the best evidence without explaining circumstances of her failure---High Court decided issues against plaintiff---Suit was dismissed in circumstances.

Liaquat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506; Ali Muhammad Khan (Represented by his Heirs v. Riazuddin Khera PLD 1981 Kar. 170; Malik Muhammad Yaseen v. Syed Raza Hyder 2014 YLR 1927; Choghata v. Fazal Din 1984 SCMR 1454; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 and Sughran Bibi v. Mst. Aziz Begum 4 others 1996 SCMR 137 distinguished.

Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431 and Muhammad Sharif v. Mst. Fauji alias Phaji Begum through Legal Heirs and another 1998 SCMR 2485 ref.

Abdur Rehman for Plaintiff (in Suit No.1291 of 2003).

Habib-ur-Rehman and Ghulam Mujtaba for Defendants Nos. 1 and 2 (in Suit No.1291 of 2003).

Ejaz Khattak for Defendant No.3 (in Suit No.1291 of 2003).

Abdur Rehman for Plaintiff (in Suit No.10 of 2004).

Habib-ur-Rehman and Ghulam Mujtaba for Defendants Nos.1 and 2

(in Suit No.10 of 2004).

Ejaz Khattak for Defendant No.3 (in Suit No.10 of 2004)

Date of hearing: 5th December, 2014.

2015 Y L R 1878

[Sindh]

Before Munib Akhtar, J

RELIANCE ENGINEERING WORKS (REW) through Partners---Plaintiff

versus

PROVINCE OF SINDH through Secretary Agriculture and 2 others---Defendants

Suit No.1286 and C.M.A. No.8216 of 2005, decided on 27th May, 2011.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for specific performance of contract---Application for grant of temporary injunction---Scope---Contract for supply of 'Auto Levels' and accessories---Overriding clause of contract---Effect---Overriding clause of contract should be read in a way to reconcile the conflicting provisions of the same---Impugned contract and its reconciliation clauses contained a specific delivery schedule with regard to supply of 'Auto Levels'---Said schedule was subject to any change after inspection of manufacturing plant and its confirmation by the representative of defendants-department---Delivery schedule agreed upon could be modified after the visit by the representatives of defendants to the manufacturing plant---Either party could request for modification but no request was made by the plaintiff and no modification took place---Delivery schedule provided in the contract remained applicable---Plaintiff was bound to supply the entire consignment of 'Auto Levels' by 30-6-2005 or in any case within eight weeks of the date of contract---Plaintiff remained unable to supply the 'Auto Levels' within either of the periods and there was breach of contract---Plaintiff could claim specific performance of contract only if he himself had not breached the terms of the same---Plaintiff himself was in fault and he was not entitled for interim injunctive relief---Application for grant of temporary injunction was dismissed in circumstances.

Petrocommodities (Pvt.) Ltd. v. Rice Export Corporation of Pakistan PLD 1998 Kar. 1 ref.

Syed Waqar Hussain and another v. National Refinery Ltd. 1993 CLC 2497; Abdullah and Co. v. Province of Sindh and others 1992 MLD 293; Dadabhoy Investments (Pvt.) Ltd. v. Federation of Pakistan and another PLD 1995 Kar. 33; Trustees of the Port of Karachi v. Qutubuddin PLD 1005 Kar. 645; Bolan Beverages (Pvt.) Ltd. v. Pepsico Inc. and others PLD 2004 SC 860; Tahir Zaman v. Jin Wei (M) SDN BHD and others 2004 CLD 603 and Al-Rahim Trading Co. (Pvt.) Ltd. v. Pakistan and others PLD 2002 Kar. 147 distinguished.

Farhatullah for Plaintiff.

Qazi Majid Ali, A.A.-G. for Defendant No.1.

Mushtaq A. Memon for Defendant No.3.

2015 Y L R 1898

[Sindh]

Before Farooq Ali Channa, J

GUL HASSAN and 3 others---Appellants

versus

The STATE---Respondent

Criminal Appeal No.S-83 of 2006, decided on 24th December, 2012.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-Amd---Appreciation of evidence---Benefit of doubt---Ocular and medical account---Administration of justice---Four persons were convicted and sentenced to imprisonment for life for committing murder by inflicting Chhuri blows---Validity---Ocular testimony against one accused was inspiring confidence and reliable as the same had been corroborated by medical evidence, recovery of Chhuri, blood stained shirt and circumstantial evidence but such corroborative evidence was missing in the case against remaining accused persons---Courts while considering ocular testimony had to sift grain from chaff, as false involvement of relatives and family members of real accused was tradition in society particularly of rural areas---Prosecution proved charge of murder of deceased against one accused without any shadow of doubt, whereas charge against remaining accused was not free from doubt---High Court maintained conviction and sentence awarded to one accused and by extending benefit of doubt, acquitted remaining three accused---Appeal was allowed accordingly.

Ayub v. The State 1994 PCr.LJ 1057; 2006 SCMR 179 and Mazhar Ali v. The State NLR 1999 Criminal 199 ref.

Muhammad Hamzo Buriro and Amanullah G. Malik for Appellants.

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

Date of hearing: 10th December, 2012.

2015 Y L R 1911

[Sindh]

Before Abdul Rasool Memon and Riazat Ali Sahar, JJ

NOORAL alias NOORO---Appellant

versus

The STATE---Respondent

Criminal Jail Appeals Nos. D-93 to D-95 of 2012, decided on 24th April, 2014.

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

----Ss. 342, 365-A & 149---Anti-Terrorism Act (XXVII of 1997), Ss.7(e) & 21-L---Pakistan Arms Ordinance (XX of 1965), S.13---Wrongful confinement, kidnapping or abduction for extorting property, valuable security, etc., common object, offence of kidnapping for ransom, absconding, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Allegation of abduction for ransom---Certain unexplained facts and weaknesses in the prosecution story, had made the whole case doubtful---According to FIR, accused were already known to complainant, and accused had asked to contact them in a particular village for payment of ransom---Complainant had himself stated in FIR that he and the witnesses continuously remained in contact with accused persons for payment of ransom, who kept them on false hopes, and that was the reason that FIR was got registered after about two months---Every possibility in circumstances existed of false implication of accused in the case---As to how much amount of ransom was paid, who received it or to whom the alleged payment was made was not brought on the record---Complainant, in his statement before the court had made lot of improvements with regard to payment of ransom---Both alleged abductees, had not stated, that they had written a letter to complainant for payment of ransom to accused persons---Alleged abductees had not stated as to how much ransom was demanded, or how much payment was made to accused persons---Both abductees had deposed that they had identified all the eight culprits involved in the case, however FIR was got registered after return of alleged abductees and only the names of accused persons were mentioned in the FIR---Prosecution witnesses, who were not eye-witnesses, had also not supported the version of the complainant given in FIR---One of the prosecution witnesses had deposed that he could not say, if accused were actually involved in the commission of offence---Glaring untrustworthy, unreliable and contradictory evidence of prosecution, could not be said to have established the charge of abduction for ransom against accused persons beyond any reasonable doubt---Prosecution case was not free from doubt in circumstances---Impugned judgment was set aside and accused were acquitted extending them benefit of doubt and were released.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt must accrue in favour of accused as a matter of right, and not as grace---For giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts---If there was single circumstance which created reasonable doubt in the 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 Bashir v. The State 1995 SCMR 1345 ref.

Rukhsar Ali Juneno and Qurban Ali Manao for Appellants.

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

Date of hearing: 27th March, 2014.

2015 Y L R 1937

[Sindh]

Before Nazar Akbar, J

ALI MUHAMMAD and another---Applicants

versus

Mst. SAEEDA and 3 others---Respondents

R. A. No.124 of 2014, decided on 30th September, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Limitation Act (IX of 1908), S. 18 & Art. 91---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration and cancellation of agreement of sale deed---Plaint, rejection of---Scope---Trial Court rejected the plaint on the ground of limitation but Appellate Court remanded suit for decision on merits---Validity---Plaintiff had alleged fraud and misrepresentation in sale of her property---Sale of suit land was not made by the plaintiff as she was minor at the time of sale deed---Plaintiff had no means to know and understand the transaction of sale which was carried out by her father---Father of plaintiff was not authorized to sell the suit property and he was also a party to the fraud---Property of minor was sold without permission of court and sale was not lawfully made ---Plaintiff was not aware of sale and her suit for cancellation of sale deed was maintainable---Valuable property was involved and contention of plaintiff with regard to date of knowledge of fraudulent sale could not be excluded from the consideration by the court to dismiss the suit on the point of limitation---Appellate Court had rightly held that case of plaintiff was covered by Art. 91 of Limitation Act, 1908---Limitation for cancellation of instrument of sale would start from the knowledge of fraud---Order of Trial Court was rightly set aside by the Appellate Court---Revision was dismissed in circumstances.

Haji Abdul Karim through Attorney and 4 others v. Messrs Florida Builders (Pvt.) Ltd. Karachi 2009 YLR 451 and Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 ref.

Ejaz Ail Hakro for Applicants.

Date of hearing: 23rd September, 2014.

2015 Y L R 1949

[Sindh]

Before Syed Muhammad Farooq Shah, J

GHULAM MUSTAFA---Applicant

versus

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

Criminal Miscellaneous Application No.S-615 and M.A. No.7861 of 2012, decided on 24th December, 2012.

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

----S. 561-A---Inherent power of High Court---Review of judgment---Scope---High Court under its inherent power could review its judgment or order if it was found to have been passed without jurisdiction or without adjudication on merits in violation of any law or where same was obtained by playing fraud upon the court.

2010 PCr.LJ 658 ref.

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

----S. 154---Registration of FIR---Delay---Scope---Section 154, Cr.P.C laid down procedure for registration of cognizable cases and it gave mandatory direction for registration of the case as per procedure and police had no power to cause delay in registration of the case---Police was bound to enable the machinery of law to come into play as soon as it was possible and first information report (FIR) should be registered without any delay.

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

----S.154---Registration of FIR---Purpose---Culpability of accused nominated in FIR---Scope---Purpose of S. 154, Cr.P.C. was to give information of cognizable offence to the concerned Station House Officer (SHO) and set machinery of law into motion---Fate of accused nominated in FIR could not be decided solely on the allegation made in the FIR.

PLD 2007 SC 539 rel.

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

----S. 154---Registration of FIR---Scope----Where a cognizable offence was made out from the statement of the informant/ complainant, then it became mandatory for the police to lodge the FIR.

Syed Madad Ali Shah for Applicant.

Amjad Ali Sahito for Respondent along with SIP Soofi Aurangzeb S.H.O. Police Station Umerkot.

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

2015 Y L R 1956

[Sindh]

Before Salahuddin Panhwar, J

ABDUL RAZAQUE---Applicant

versus

INVESTIGATING OFFICER OF CRIME NO.185 OF 2012, POLICE STATION KANDIARO and 11 others---Respondents

Crl. Misc. Application No.S-644 of 2012, decided on 19th November, 2012.

Criminal Procedure Code (V of 1898) ---

----Ss. 561-A & 173---Illegal Dispossession Act (XI of 2005), Ss. 3, 4 & 7---Disposal of case under "B" class---Validity---Complaint was filed for possession of property and during pendency of complaint, Trial Court ordered for handing over property to the complainant on his application---Criminal case was got registered against the complainant whose possession was restored by order of the court---Cancellation report under false class was submitted by the police before the concerned Magistrate---Validity---Order passed on cancellation report was detailed, covering all aspects, factual and legal, thus that could be treated as speaking order and counsel for the applicant failed to point out any infirmity and illegality in the order passed by the Magistrate---Prima facie no sufficient evidence was available against the respondents regarding any cognizable offence committed by them---Application was disposed of.

Khalid Hussain Soomro for Applicant.

Moohan Lal Ladhani, D.D.P.P. for Respondents.

2015 Y L R 1969

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD---Appellant

versus

The STATE---Respondent

Cr. Jail Appeal No.S-141 of 2013, decided on 25th July, 2014.

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

----Ss.302 (b) & 364---Criminal Procedure Code (V of 1898), Ss. 345 & 544-A---Qatl-i-Amd and kidnapping or abducting in order to murder---Compounding of offence---Object, purpose and scope---Compensation, reduction of---Accused was convicted by Trial Court and sentenced to imprisonment for life---Application was filed by accused for his acquittal on the basis of pardon granted by legal heirs of deceased and sought compounding of offence--- Validity--- Offence under S.302(b), P.P.C. was compoundable in terms of S.345, Cr.P.C. and legal heirs with the permission of Court could enter into compromise with accused at any stage---Legal heirs of deceased admitted before High Court the factum of compromise with accused and categorically stated that under mediation of Nek Mards of locality they had forgiven accused in the name of the Holy Quran---Legal heirs of deceased further admitted in their statement to have waived off their claim to right of Qisas and Diyat and recorded no objection to acquittal of accused on the basis of compromise---Compromise was likely to bring forth harmony, peace and tranquility between parties which were necessary elements to pave the way for progress and uplift of any society or a group of society---No obstacle or impediment in permitting parties to enter into compromise---Prosecution story reflected that principle of Fasad-fil-Arz was also not attracted as motive for incident was claimed to be an old enmity between the parties---Accused was acquitted of the charge of murder under S.345(6), Cr.P.C. and sentence of imprisonment recorded under S. 364, Cr.P.C. was modified and reduced to one already undergone by accused---Amount of compensation to be paid to legal heirs was reduced to half---High Court directed that accused would be released subject to his furnishing surety bonds / undertaking that he would pay amount of compensation within a period of one year through equal installments---High Court further directed that in case of default in payment of two consecutive installments, amount of compensation would be recovered from accused as arrears of land revenue---Appeal was allowed accordingly.

Mumtaz and others v. State 2008 YLR 2400; PLD 2014 SC 383 and Shehzad Ahmad alias Mithu v. State 2005 PCr.LJ 1316 rel.

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

----S. 342---Statement of accused---Maxim: Audi alteram partem---Scope---Provisions of S. 342 Cr.P.C. are mandatory in nature and are based on principles embedded in maxim audi alteram partem viz. no one should be condemned unheard---Accused has to be heard to the extent of prima facie case proved against him but on every circumstance appearing in evidence against him---Duty is caste upon Trial Court to put questions to accused on every piece of incriminating evidence which has been recorded against him in evidence so that accused could be enabled to explain adverse circumstances appearing in evidence---Non-compliance of mandatory provisions under S. 342, Cr.P.C. are not curable and amount to miscarriage of justice.

Muhammad Yousif Rahpoto for Appellant.

Mushtaque Ahmed Abbas, DDPP for the State.

Roshan Ali Azeem for the Complainant.

Date of hearing: 21st July, 2014.

2015 Y L R 1994

[Sindh]

Before Salahuddin Panhwar and Muhammad Iqbal Kalhoro, JJ

GHULAM MURTAZA---Applicant

versus

Haji SOOMAR KHAN and another---Respondents

M.As. 3358 and 3359 of 2014 in Cr. Appeal No.D-49 of 2014, decided on 10th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302--- Qatl-i-amd--- Suspension of sentence--- Scope--- Principle--- While deciding application for suspension of sentence under S.426, Cr.P.C. court could not undertake deeper appreciation of evidence---Death sentence had been awarded to accused on the basis of evidence of eye-witness by Trial Court and the same could not be disturbed unless finding of trial were in disregard of evidence on record---Appellate Court could examine the evidence of prosecution tentatively for the purpose of deciding application under S.426, Cr.P.C. as deeper appreciation might prejudice the case of either party---Application was dismissed.

Manzoor Ahmed v. Fazal Ahmed 2013 SCMR 1403 rel.

Raza Muhammad Raza for Appellant.

Mukhtar Ahmed Khanzada for the Complainant.

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

2015 Y L R 2018

[Sindh]

Before Farooq Ali Channa, J

QURBAN---Appellant

versus

The STATE---Respondent

Cr. J.A. No.272 of 2007, decided on 2nd April, 2013.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Complainant who had narrated the incident in detail, implicating and identifying accused, was cross-examined at length, but counsel for accused had failed to extract any contradiction or evidence causing doubt in the prosecution case---Presence of complainant at the place of incident, being the owner of house, where occurrence had taken place, was natural---No specific enmity had been alleged against the complainant, compelling him to implicate an innocent person falsely, leaving the real assailant---FIR was promptly lodged, complainant had no time to nominate accused falsely after consultation and thought---Defence version did not inspire confidence to believe that accused was implicated falsely---Incident having taken place in broad day time, and accused was known to the complainant prior to the incident, no question was of mistake in identification---Evidence of complainant, in circumstances, was unimpeachable, trustworthy and reliable---Prosecution witnesses had corroborated the evidence of the complainant---Said witnesses had deposed what actually they had seen, without improving or exaggerating the evidence---Said witnesses were reliable and trustworthy---Mashirs of recovery had also supported the prosecution---Trial Court had discussed the prosecution evidence consciously and conviction of accused was based upon cogent reasons, supported by the relevant provisions of law---Impugned judgment passed by the Trial Court, not suffering from any illegality, infirmity, or misreading or non-reading of evidence, did not call for interference of High Court, in circumstances---Appeal was dismissed.

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

----Arts. 3 & 17---Competence and number of witnesses---Court, in all matters, except matters pertaining to financial or future obligations, could accept, or act on the testimony of one man or one woman, or such other evidence as the circumstances of the case could warrant---Article 17 of Qanun-e-Shahadat, 1984, had enshrined the well recognized maxim, that "Evidence had to be weighed and not counted"---If the Legislature was to insist upon the plurality of witnesses, cases where there was testimony of a single witness in prosecution case, the criminals in all such cases would go unpunished---Sole witness was competent witness and his evidence could be considered to be reliable, if said witness would come within the parameters of Art. 3 of Qanun-e-Shahadat, 1984.

Mubashir Mirza, Pauper Advocate for Appellant.

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

Date of hearing: 2nd April, 2013.

2015 Y L R 2024

[Sindh]

Before Irfan Saadat Khan, J

IZZAT KHAN through Attorney and another---Applicants

versus

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

R.A. No.179 of 2010, decided on 22nd May, 2013.

Sindh Goth-Abad (Housing Scheme) Act ( VII of 1987)---

----S.12---Sindh Goth-Abad (Housing Scheme) Rules, 2008, R.6---Specific Relief Act (I of 1877), Ss.8 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for possession of immovable property and permanent injunction---Interim injunction, grant of---Sanad of grant---Principle---Allotment to minor---Scope---Plaintiffs claimed that plot in question was allotted to them under Sindh Goth-Abad (Housing Scheme) Act, 1987, and to save it from encroachers, they had given it in the use of defendants---Validity---High Court declined to believe that plaintiffs handed over the plot to defendants to save it from encroachers and also allowed them to install a service station upon it---Defendants installed service station on the plot and the same had been in their possession since quite some time---Necessary documents regarding Sanad and Deh Form of the plot, deed and agreement were also furnished in such behalf---Sanad to minor was questionable, as no grant under Sindh Goth-Abad (Housing Scheme) Act, 1987, was to be given to minor of two years only---Sanad was always given to a person having dwelling house or to a shelterless person and not to a minor who was wholly dependent on his parents and if such plot was obtained that was by way of misrepresentation---Plaintiffs approached the Court with unclean hands and failed to prove with cogent material that they were the real owners of plot in question---Revision was dismissed in circumstances.

Azhar Mahmod for Applicants.

Aftab Ahmed Memon for Respondents.

Iqbal Ahmed Soomro, State Counsel for Respondents Nos.1 to 4.

2015 Y L R 2036

[Sindh]

Before Aqeel Ahmed Abbasi and Habib-ur-Rahman Shaikh, JJ

IMDAD and 2 others---Appellants

versus

The STATE---Respondent

Cr. Spl. A.T. Appeals Nos.D-9 and D-14 of 2013, decided on 30th April, 2013.

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

----Ss. 19(12) & 25---Anti-Terrorism Court convicting and sentencing convict in absentia---Options available with convict---Convict in such circumstances could either approach the Anti-Terrorism Court within the stipulated period with a request to set-aside his conviction recorded in absentia, in terms of S. 19(12) of Anti-Terrorism Act, 1997, by showing that he did not abscond deliberately from the court during trial, or convict could surrender before the High Court by filing an appeal under S.25 of Anti-Terrorism Act, 1997 with a prayer to set-aside the conviction awarded in absentia and to acquit him on merit or remand the matter to Anti-Terrorism Court for fresh trial by setting aside the impugned judgment.

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

----Ss. 19(12) & 25---Constitution of Pakistan, Arts. 9 & 10---Anti-Terrorism Court convicting and sentencing accused in absentia without providing him an opportunity of being heard---Remand of case to Anti-Terrorism Court for decision afresh---Scope---Accused persons were convicted and sentenced in absentia by Anti-Terrorism Court---Pleas of accused persons were that they were never served with court notices by the Anti-Terrorism Court; that they were convicted and sentenced in absentia which was in violation of Arts. 9 & 10 of the Constitution, and that they had voluntarily surrendered before the High Court---Validity---All accused persons were convicted by Anti-Terrorism Court in absentia, hence no opportunity whatsoever to defend their case on merit was provided to them---Impugned judgment of Anti-Terrorism Court also did not suggest that the accused had deliberately avoided process of the court or remained willfully absent from court---Impugned judgment of Anti-Terrorism Court by which accused persons were convicted in absentia was set-aside, case was remanded back to the Anti-Terrorism Court to decide the same afresh after providing accused persons proper opportunity of being heard, and it was held that they would remain on bail during trial---Accused persons were directed to surrender before Anti-Terrorism Court---Appeal was disposed of accordingly.

Muhammad Arif v. The State 2008 SCMR 829 and Ali Hassan v. The State 2009 MLD 1198 rel.

Syed Muhammad Wasim Shah and Abdul Sattar Sarki for Appellants.

Muhammad Iqbal Kalhoro, Additional Prosecutor General Sindh for Respondent.

Date of hearing: 30th April, 2013.

2015 Y L R 2053

[Sindh]

Before Syed Saeed-ud-Din Nasir, J

Syed FARRUKH SAEED ALAM---Plaintiff

versus

SINDH ROAD TRANSPORT CORPORATION through Chairman/Managing Director and 2 others---Defendants

Suit No.149 of 1992, heard on 16th December, 2014.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Suit for recovery of amount of compensation---Determination of amount of compensation---Liability of master to pay such amount---Scope---Plaintiff got severe injuries in a traffic accident---Driver of bus which met the accident, was servant of Provincial Government---Liability arising out of fatal accident was an independent statutory liability based on element of negligence, default and wrongful act---Plaintiff, apart from successfully proving the factum of accident, had produced credible, trustworthy and cogent evidence, both oral and documentary to reflect the element of lack of care in operating the bus by the driver---Plaintiff himself deposed in his examination to prove the factum of rash and negligent driving by the driver which was not challenged and could not be shaken---Non-rebuttal of the plaintiff's evidence by the defendants, (Master and servant) non-production of the driver into the court, withholding of enquiry report, were sufficient to saddle the defendants with the liability of the compensation---Driver, while driving the bus in question in a rash and negligent manner had dashed against a trawler in a bid to overtake another vehicle in a very high speed and consequently the bus turned turtle on the other side of the road---Six passengers of the bus got fatal injuries and died, and many, including the plaintiff received injuries---Injuries to the plaintiff were caused by actionable wrong, negligence, default and wrongful act of driver who was servant/employee of owner (Provincial Government)---Owner was legally liable to pay the compensation/ damages to the plaintiff, and was liable jointly and severally---Besides, minor grazing wounds, and some hidden injuries, plaintiff had got major visible injuries like fracture, compressed fracture, absolute damage of spine, deformity of spine causing considerable pain, head injury, paraplegia and loss of sensation and dislocation of jaw---Total paralysis of both legs had made plaintiff dependant upon others and for the whole life he would not be able to walk---Plaintiff had become impotent and his sexual functions were absolutely atrophied---Plaintiff, prior to the accident was working as Sub-Engineer in Highways Department, he was well educated and well qualified person, and had a degree of Bachelor of Technology---Plaintiff had planned to go abroad within couple of years---Plaintiff had claimed damages for he had to undergo special medical treatment and remain confined to hospital for more than four months, he underwent several medical check-ups, medical treatment, operation and ultra sound and physiotherapy from well known clinics and surgeons---Plaintiff was visiting different doctors and hospitals for the treatment bearing heavy cost thereon---Plaintiff claimed a sum of Rs.64,00,000 as damages/compensation from the defendants, which was just and reasonable---Plaintiff had discharged the onus in regard to proving issues, which were answered in favour of the plaintiff---Suit of the plaintiff was decreed as prayed for, in the sum of Rs.64,00,000 along with interest/mark-up at the rate of 15% on the decretal amount per annum from the date of institution of the suit till realization of the same---Defendants were liable jointly and severally to pay the decretal amount.

Case Laws refferred.

Nasir Maqsood for Plaintiff.

Nemo for Defendants Nos.1 and 2.

Danish Kazi for Defendant No.3.

Date of hearing: 16th December, 2014.

2015 Y L R 2085

[Sindh]

Before Naimatullah Phulpoto and Farooq Ali Channa, JJ

GHULAM ABBAS JAMALI---Appellant

versus

The STATE---Respondent

Criminal Appeal No.D-15 of 2013, decided on 7h November, 2013.

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

---Ss.9(b) & (c)---Control of Narcotic Substances (Government Analysts) Rules 2001, R. 4 (2)--Criminal Procedure Code (V of 1898), S.103---Recovery of narcotics---Appreciation of evidence---Delay in dispatching samples--Recovery witnesses---Charas weighing 1000 grams was recovered from accused who was convicted by Trial Court under S. 9(c) of Control of Narcotic Substances Act, 1997, and was sentenced to five years imprisonment---Plea raised by accused was that delay in sending Charas to Chemical Analyser was intentional and there was tampering with case property---Validity---Prosecution failed to explain such delay in sending case property to Chemical Analyser, as per R.4(2) of Control of Narcotic Substances (Government Analysts) Rules 2001, such exercise was to be completed within seventy two hours of recovery---Positive chemical report would not improve prosecution case in such circumstances---Narcotic substance allegedly recovered was 1000 grams and the offence fell under S. 9(b) and not S.9(c) of Control of Narcotic Substances Act, 1997---Trial Court without applying judicial mind framed charge against accused under S.9(c) of Control of Narcotic Substances Act, 1997, and also convicted and sentenced him under S. 9(c) of Control of Narcotic Substances Act, 1997---Courts were not to act mechanically nor to conduct trial in a mechanical manner---Private persons were available around place of recovery at the relevant time but they were not associated by complainant/investigating officer in recovery proceedings, therefore, independent corroboration was essential---Prosecution failed to prove its case against accused by bringing trustworthy convincing and coherent evidence for the purpose of awarding conviction to accused---Trial Court had recorded conviction without legal evidence and High Court extended benefit of doubt in favour of accused---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Aslam v. State 2011 SCMR 820 rel.

Abdul Haleem Jamali for Appellant.

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

Date of hearing:7th November, 2013.

2015 Y L R 2141

[Sindh]

Before Muhammad Shafi Siddiqui, J

BANK ALFALAH LTD.---Plaintiff

versus

NEU MULTIPLEX AND ENTERTAINMENT SQUARE COMPANY (PVT.) LTD.---Defendant

Suit No.128 of 2014, decided on 14th July, 2014.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 12, 21(a) & (d) & 56(f)----Contract Act (IX of 1872),Ss. 2(a), (b) & 10---Suit for specific performance of agreement---Application for temporary injunction--- Essentials--- Mandatory injunction as interim relief---Rules and effect--- Contracts not specifically enforceable--- Unilaterally revocable agreements---Specific enforceability---Formation of contract---Absolute and unqualified acceptance of proposal---Requirement---Plaintiff filed suit for specific performance of contract claiming that defendant failed to perform agreement on ground of delay in execution thereof, whereas signing of agreement was mere formality as material terms had already been agreed upon and they began preparation in pursuant to negotiation, which had constituted a binding contract---Defendant took plea that correspondence between parties did not indicate absolute and unqualified acceptance and defendant had already entered into contract with a third party which had been acted upon before filing of the present suit---Validity---No conclusive or binding contract existed between the parties as some terms of agreement were yet to be determined---Plaintiff failed to contact defendant for a long period, as each day would count---If proposal or counter proposal had provided that parties might like to negotiate or resolve certain terms, then agreement upon which the contract could be founded would have been missing---Under draft agreement, duration of agreement was only thirteen months from date of execution and the agreement was terminable by either party subject to three month notice in advance without assigning any reason---Even if correspondence were considered to be conclusive and binding agreement, the agreement was unilaterally terminable by parties, which was beyond scope of specific performance---Agreements with termination clauses breached by one party could not be subjected to specific performance---Termination of agreement was subject to parties' right accruing prior to date of such termination, but such rights were with reference to wrongful termination that might lead to claim damages but specific performance of such agreement was to be dealt with strictly in accordance with provisions of Ss.21(d) & 56(f) of Specific Relief Act, 1877---Breach of revocable contract could not be prevented by way of injunctive order in terms of S. 21(d) of Specific Relief Act, 1877, and for said section contract for non-performance of which compensation in money was adequate, relief could not be specifically enforced---If the court had found that there was binding contract between the parties, plaintiff would fail to establish prima facie case and losses which could not be measured in terms of money---No prima facie case was established when nature of agreement was revocable---Plaintiff's pleadings did not lead to conclusion that plaintiff would suffer immeasurable loss which could not be compensated in terms of money-Maintenance of status quo would not help plaintiff, as defendant had already awarded contract to third party who was operating---Mandatory injunction could not be granted by way of interim relief as grant of such relief would tantamount to grant of final relief which would seriously prejudice defendants---No case was made out for grant of mandatory injunction---Application for grant of injunction was dismissed in circumstances.

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

----S. 10---Agreement which are contracts---Contract was a result of proposal and its unqualified acceptance---If proposal or counter proposal provided that parties may like to negotiate or resolve certain terms, then agreement upon which the contract can be founded will be missing.

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

----Ss. 12, 21(a) & (d)& 56(f)----Agreements with termination clauses breached by one party cannot be subjected to specific performance---Termination of agreement is subject to parties' right accruing prior to date of such termination, but such rights are with reference to wrongful termination that may lead to claim damages but specific performance of such agreement is to be dealt with strictly in accordance with provisions of Ss.21(d) & 56(f) of Specific Relief Act, 1877.

Damon Cia Naviera SA v. Hapag-Lloyd International SA [1985] 1 AER; Trimex International FZE Limited v. Vedanta Aluminium Limited (2010) 3 Supreme Court Cases 1; Commissioner Mekran v. Haji Abdul Waheed 2012 CLD 1659; Pakistan v. MCB 1982 CLC 2495; Gaddar Mal v. Tata Industrial Bank AIR 1927 Allahabad 407; Al-Huda Hotels and Tourism v. Paktel Limited 2002 CLD 218; Muhammad Matloob v. Jamshed Marker PLD 2006 Kar. 523; Rajasthan Breweries Limited v. Stroh Brewery Company AIR 2000 Delhi 450; D.R. Sondhi and others v. Hella Kg Hueck and Co. (Suppl.) Arb LR 502 (Delhi); Pakistan State Oil Company Limited v. Federation of Pakistan 2010 CLC 1843; Royal Foreign Currency v. The Civil Aviation Authority 1998 CLC 374; Messrs Pakistan Associated Construction Ltd. v. Asif H. Kazi 1986 SCMR 820 and Obaidullah and another v. Habibullah PLD 1987 SC 835 rel.

Jehanzeb Awan for Plaintiff.

Ameen Muhammad Bandukda for Defendant.

Dates of hearing: 14th, 21st and 29th May, 2014.

2015 Y L R 2163

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

SHAFQUAT MEHMOOD---Appellant

versus

The STATE---Respondent

Cr. Appeal No. D-164 of 2006, decided on 28th February, 2013.

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

----Ss. 9(c) & 25---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses during arrest and recovery proceedings---Delay in sending samples for examination---Contradictions in evidence of prosecution witnesses---Effect---Accused was allegedly apprehended by police and found in possession of 2 kilograms of charas---Trial Court convicted and sentenced accused under S. 9(c) of Control of Narcotic Substances Act, 1997---Validity---One of the prosecution witnesses stated that 10 to 15 people were gathered at the place of incident---Complainant in his examination-in-chief stated that no private persons were available at place of incident because of which he nominated police officials as mashirs, however complainant in his cross-examination stated that 20 to 25 persons were available at the time of incident---Such contradictions created dent in the prosecution case---Even if complainant's version that 20 to 25 people were present was admitted, then question was as to why no private persons was picked as mashir of arrest and recovery---Although for cases under Control of Narcotic Substances Act, 1997 private witnesses were not necessary and police officials were good witnesses, but in the presence of private witnesses prosecution did not explain how the police assumed the role of mashirs---Record also did not show whether private person were asked to act as mashirs, rather it was admitted by one of the prosecution witnesses in his cross-examination that private persons, who had gathered at the spot, were not approached to act as mashirs---Delay of 8 days in sending samples to Chemical Examiner was not explained, despite the fact that under R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001 such exercise was to be completed within 72 hours of the recovery---Weight of narcotic sent for chemical examination did not tally with the weight disclosed in the deposition of prosecution witnesses---Benefit of doubt was extended in favour of accused and he was acquitted of the charge---Appeal was allowed accordingly.

Syed Madad Ali Shah for Appellant.

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

Date of hearing: 28th February, 2013.

2015 Y L R 2191

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD ACHAR---Applicant

versus

SHAHMIR and 19 others---Respondents

Civil Revision No. 4 of 2011, decided on 18th February, 2013.

Civil Procedure Code (V of 1908)---

-----O. XLI, R. 27---Production of additional evidence, pending appeal---Scope---Party, if not having availed opportunity to produce evidence in Trial Court, could not be allowed at appellate stage to improve upon or fill up lacunas or omissions in his case---Mistaken legal advice or negligence of party or his counsel or un-intentional inadvertence of his counsel to bring evidence on record at proper stage would not be a good cause for allowing additional evidence at appellate stage---Principles.

2012 SCMR 1258; Town Committee, Juharabad v. Falak Sher 2003 CLC 71; Khizar Yasin and others v. Mst. Khadija Bibi and others 2003 CLC 1622; Muhammad Ali v. Qaisar Jehan Begum 2004 CLC 1424; Muhammad Ameer Khan alias Ameer Muhammad Khan and 3 others v. Muhammad Khan and 2 others 2006 CLC 738; Rehmat Ali v. Farooq Ahmed Hashmi and others 1992 MLD 1631 and Nazir Hussain v. Muhammad Alam Khan and 3 others 2000 YLR 2629 ref.

Shaikh Javed and others v. Shaikh Hassan Ali 2010 SCMR 166; Kodal Khan v. Sufaid Gul and others PLD 1965 W.P. Pesh. 259; Allahditta v. Ghulam Rasool PLD 1975 Lah. 138 and Tajuddin v. Juma PLD 1978 SC (AJ& K) 131 rel.

Daim Ali Khoso for the applicant

Hafiz Rana Tanveer for Respondents Nos.17 to 20.

Aga Athar Hussain Pathan, A.A.G. for the State.

Date of hearing: 8th February, 2013.

2015 Y L R 2196

[Sindh]

Before Sadiq Hussain Bhatti, J

KIRSHAN KUMAR---Applicant

versus

The STATE and 8 others---Respondents

Cr. Misc. Application No.40 of 2013, decided on 30th December, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.169 & 561-A---Discharge of accused---Deficient evidence---Magistrate, on recommendations of investigating officer cancelled the case registered against respondents---Validity---Dispute over property persisted between parties and litigation between them was pending decision---According to investigation and record no incident as reported in FIR had occurred---Alleged incident of kicks and fist blows caused to complainant was not supported by medical certificate---Complainant was advocate who did not give much importance to appear before medical officer for verification and also failed to lodge FIR regarding alleged incident promptly and wasted 16 to 17 hours in simply informing about the incident to one of his relative at another city through telephone---Criminal Court had taken such lapse seriously, when such delay in lodging FIR was not properly explained---Order passed by Magistrate was proper and did not suffer from any legal infirmity and the same was maintained---Application was dismissed in circumstances.

Applicant in person.

S. Muntazir Mehdi, Assistant Prosecutor General, Sindh for Respondents.

Date of hearing: 16th December, 2013.

2015 Y L R 2207

[Sindh]

Before Muhammad Iqbal Kalhoro, J

AKHTIAR ALI---Applicant

versus

STATION HOUSE OFFICER, POLICE STATION ROHRI, DISTRICT SUKKUR and another---Respondents

Criminal Misc. Application No.S-474 of 2014, decided on 8th August, 2014.

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

----Ss. 154 & 155---Information in "cognizable" and "non-cognizable" offences---Distinction---Information in relation to commission of non-cognizable offence does not mean that no offence at all has been committed or accused persons who have committed such offence cannot be taken to task or made to go through trail of trial---Difference between "cognizable offence" and "non-cognizable offence" is that of procedure; in cognizable offence police has authority to investigate the case without permission of Magistrate and can arrest accused without warrants but in non-cognizable offence no such powers are provided to police officials---After having received an order of the Magistrate as contemplated under S.155(2), Cr.P.C., any police officer can exercise same powers in respect of investigation which are available to any officer conducting investigation in cognizable case.

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

----Ss. 22-A, 22-B, 154 & 561-A---Application for Registration of FIR---Delay---Effect---Incident, alleged by complainant in application before Ex-officio Justice of Peace had taken place on 2-2-2014 and application for registration of FIR was filed on 11-4-2014---Contention of applicant was that all this time he was trying his best to get FIR registered at the police station but he failed---Ex-officio Justice of Peace dismissed the application filed by complainant---Validity---Though explana-tion for such delay was not forwarded by complainant but that did not mean that no incident had taken place as alleged in application---Complainant was not able to disclose any information with regard to commission of cognizable offence for registration of FIR---High Court directed the Station House Officer of police station concerned to follow provisions of S. 155, Cr.P.C. in case complainant would approach him, as presence of medical certificates of injured persons could not be lost sight of---Application was dismissed accordingly.

Zulfiqar Ali Naich and Azhar Ali Simair for Applicant.

Achar Khan Gabole for proposed accused.

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

2015 Y L R 2220

[Sindh]

Before Aziz-ur-Rehman, J

Raja REHMAT KHAN---Plaintiff

versus

MUHAMMAD AAMIR TASTEE and 2 others---Defendants

Suit No.828 of 2009, decided on 17th April, 2013.

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

----O. VIII, Rr. 1 & 10---Sindh Chief Court Rules (Original Side), R.158---Constitution of Pakistan, Art. 10-A---Interpretation of O.VIII, C.P.C.---Written statement, non-filing of---Effect---Applicant/defendant impugned order of Additional Registrar High Court, whereby he was debarred from filing of written statement in a suit in which he was a defendant---Contention of the defendant was that he had gone to a remote area where he was held up, fell ill and due to the security situation in said area, could not come back in time to file the written statement---Validity----Word "required" used in O. VIII, R. 1, C.P.C. did not include any routine order passed without application of mind and prior to making a written statement subject to penal provisions of O. VIII, R. 10, C.P.C. there should be proof on record that the court had required filing of a written statement by application of mind, through a "speaking order"---In the present case, the defendant was not "required' by the court to file a written statement by a "speaking order" and thus penal consequences of O.VIII, R. 10, C.P.C. were not attracted---Word "ordinarily" used in O.VIII, R. 10 conveyed that the period of "30 days" could not be adhered to in all situations and vested a discretion in the court to extend the said period whenever it advanced the "cause of justice"---Word "ordinarily" used in O. VIII, R. 1, therefore, rendered the said provision as directory and not mandatory---Under Art. 10-A of the Constitution fair trial and due process had become fundamental rights covering both substantive and procedural due process---High Court set aside impugned order of Additional Registrar of the court and allowed the defendant to file written statement within two weeks time, subject to payment of costs---Application was allowed, accordingly.

Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236; New Jubilee Insurance Company Limited, Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126 and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 rel.

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

----O VIII, R. 1---Non-filing of written statement-----Interpretation of O. VIII, R. 1, C.P.C.---Words "required" and "ordinarily" used in O. VIII, R. 1, C.P.C.---Connotation---Word "required" used in O. VIII, R. 1, C.P.C. did not include any routine order passed without application of mind and prior to making a written statement subject to penal provisions of O. VIII, R. 10, C.P.C. there should be proof on record that court had required the same by application of mind through a "speaking order"---Word "ordinarily" used in O. VIII, R. 1, C.P.C. conveyed that the period of "30 days" could not be adhered to in all situations and vested a discretion in the court to extend the said period whenever it advanced the "cause of justice"---Word "ordinarily" used in O. VIII, R. 1, C.P.C. therefore, rendered the said provision as directory and not mandatory.

(c) Administration of justice----

----Principal object behind all legal formalities was to safeguard the paramount interests of justice---Things, under the principles of jurisprudence, were required to be done strictly in accordance with law and rules and procedures were meant for advancing the cause of justice---Law always leaned towards adjudication of cases on merits---Rules and Procedures, with a view to safeguard the rights of parties to litigation, should not be interpreted in a manner as to hamper the administration of justice.

Badrul Alam for Plaintiff.

K.B. Bhutto for Defendants.

2015 Y L R 2246

[Sindh]

Before Aftab Ahmed Gorar, J

Miss MEHTAB JAHAN---Applicant

versus

ZAHID HUSSAIN and 2 others---Respondents

Civil Revision Application No.182 of 2011, decided on 29th May 2013.

Civil Procedure Code (V of 1908)---

----S. 115---Revision petition before High Court---Concurrent findings of facts by courts below---Interference in such findings by High Court---Scope---High Court could not interfere in such findings except in case of illegal exercise of jurisdiction or commission of an error of law by courts below causing grave injustice.

2006 SCMR 1410 and PLD 2007 Kar. 347 rel.

Khalid Daudpota for Applicant.

Mahmood Ahmed Khan for Respondent No.1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing: 3rd May 2013.

2015 Y L R 2255

[Sindh]

Before Farooq Ali Channa and Aftab Ahmed Gorar, JJ

NIAZ alias NIAZZO and others---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos. 89, 92 and 96 of 2012, decided on 20th July, 2013.

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

----Ss. 365-A, 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping or abduction, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, common object and act of terrorism---Appreciation of evidence---Benefit of doubt---Star independent public witness, had not supported the case of prosecution and had narrated a different story---Said witness did not identify accused persons before the Trial Court---Nothing had come on surface helpful to the prosecution to prove the charge against accused persons---Trial Court had convicted accused persons relying upon the evidence of Police Officials---If the occurrence was witnessed by a public witness besides the Police personnel, and the said public witness denied the occurrence to have taken place at all, the evidence of Police personnel should be above board, confidence inspiring, and not only sufficient to prove the charge, but to rebut the evidence simultaneously furnished by public witness denying the occurrence---Prosecution case was that there was exchange of firing for 15 minutes between Police personnel and notorious dacoits, they both were presumed to be expert shooters, but no one from either side had sustained fire-arm injury---Mashirnama of wardat, also did not show any damage to Police mobiles, which had created doubt in the alleged incident of encounter---Impugned judg-ment of the Trial Court was set aside and accused were acquitted, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Evidence led by prosecution leaving room for doubt as to identity of accused, and reflecting on credibility of prosecution witness, accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right.

Abdul Haque Odho, Umrah Khan Yousufzai and Sahab Khan Kanasro for Appellants.

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

Date of hearing: 18th July, 2013.

2015 Y L R 2277

[Sindh]

Before Nadeem Akhtar, J

Mrs. SHAMSHAD BEGUM and another---Plaintiffs

versus

Syed IFTIKHAR HUSSAIN JAFERI and 5 others---Defendants.

Suit No. 1673 of 2006, decided on 19th December, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 11 & 10 & Ss. 16, 17 & 120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Rejection of plaint---Scope---Matter of territorial or pecuniary jurisdiction---Procedure---Contention of defendants was that court had no territorial jurisdiction to adjudicate upon the suit and same was time barred---Validity---Sections 16 & 17, C.P.C. provided that suit should be instituted where subject matter was situated---Suit seeking relief with regard to immovable property or for compensation for wrong committed in relation to an immovable must be instituted in such court within the local limits of whose jurisdiction any portion of the property was situated---Question of jurisdiction was always construed strictly---Parties could not confer jurisdiction to a court even by consent---Provisions of S. 16, C.P.C. would be attracted under S. 120, C.P.C. only in such civil suits and proceedings which were instituted before the High Court in its original jurisdiction---Suit land was situated at place "X", court having original civil jurisdiction with regard to immovable property situated at place "Y" had no territorial jurisdiction to adjudicate upon the suit---Plaint could not be rejected for lack of pecuniary or territorial jurisdiction---Plaint had to be returned to the plaintiff for presentation before the court having appropriate jurisdiction---Plaint, in the present case, was liable to be returned to the plaintiffs for presentation before the court having jurisdiction---Application for rejection of plaint was disposed of and plaint was returned to the plaintiffs for presentation before the court of appropriate jurisdiction.

Town Committee Gakhar Mandi v. Authority under the Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452; Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad, PLD 2005 SC 842; Ghulam Fareed v. Shahid-ud-Din Tughalaq PLD 2008 Kar. 536 and Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 2 others, PLD 2010 Kar. 261 rel.

West Pakistan Industrial, Development Corporation v. Messrs Fateh Textile Mills Ltd., PLD 1964 (W.P.) Karachi 11 and Gulfam and others v. Bibi Qudsia Begum 2003 CLC 1183 distinguished.

Shahenshah Hussain for Plaintiffs.

Khalid Imran for Defendant No.1.

Masaud Ghani for Defendant No.2.

Ashfaque Qazi, Assistant Advocate General, Sindh.

Date of hearing: 12th November, 2013.

2015 Y L R 2284

[Sindh]

Before Riazat Ali Sahar and Zafar Ahmed Rajput, JJ

ALAMGIR and another---Appellants

versus

The STATE---Respondent

Cr. Jail Appeal No.D-90 of 2010, decided on 29th October, 2013.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Truck, driven by one of accused persons, had been found to be loaded with contraband material---Possession of narcotic with accused persons could not be denied, as they had been found controlling vehicle, loaded with contraband material---Physical possession and/or constructive possession of the narcotic material, would make the possessor liable to be punished---Not necessary that possession should be physical---Contention that as driving licence was not recovered from the possession of accused, he could not be termed as driver of the truck, was without force, as accused was driving the truck---Driving was an art and it was not coupled with the licence, which was merely a legal authority to do that particular act---One having no driving licence could not be said to be not a driver---Contention that none of accused persons was the owner of the vehicle, was not tenable in circumstances---Not necessary that the driver should also be the owner of the vehicle, or that only owner of the vehicle was liable for holding the contraband material; and the driver could not be saddled with any liability---Driver, who was in actual possession of the vehicle and the material, was responsible; the owner could also be guilty in some cases, but not necessary in every case---Witnesses in the case who were Excise officials were also good witnesses like others---Said witnesses could be disbelieved, if they were shown to be inimical and/or interested---No animosity appeared to have been alleged against the witnesses, their testimony could not be discarded---Prosecution had proved its case against accused persons beyond any shadow of doubt and the Trial Court had appreciated the evidence in accordance with the settled principles of law---Judgment of the Trial Court being based upon sound reasons same required no interference, and was maintained, in circumstances.

2009 SCMR 579; PLD 1997 SC 408; 2009 PCr.LJ 480; 2009 YLR 1307; 2005 SBLR 230(sic); Mohammad Sadiq v. The State 2005 SCMR 1689 and Ikram Hussain v. The State 2005 SCMR 1487 ref.

Afsar Khan v. The State 2008 SCMR 1219; Mohammad Sadiq's case 2005 SCMR 1689 and Kashif Amir v. State PLD 2010 SC 1052 rel.

Nisar Ahmed Bahanbhro for Appellants.

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

Date of hearing: 26th September, 2013.

2015 Y L R 2292

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

AMIN KALHORO and 3 others---Applicants

versus

The STATE---Respondent

Criminal Transfer Application No.D-6 of 2013, decided on 21st February, 2013.

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

----S. 526----Transfer of criminal case to another court---Scope---Transfer of a case could not be left at the whims and wishes of the parties; and one who sought transfer of a case had to justify such transfer with cogent reasons.

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

----S. 526----Transfer of criminal case to another court---Scope---Mere allegations were not sufficient to transfer a case from the court having jurisdiction, because transfer of a case from competent court of law on mere apprehensions was not within the spirit of law.

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

----S. 526----Transfer of criminal case to another court---Scope---Plea of accused persons was that attitude of Judge of Trial Court was very harsh and hostile, and that they had an apprehension that they would not get justice---Validity---Transfer of a case from competent court of law on mere apprehensions was not within the spirit of law---Even otherwise apprehension of accused came to an end as their counsel had shown faith in the court and conducted the trial in their presence---Application for transfer of case was dismissed accordingly.

Muzzafer Ali Shaikh for Applicants.

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

2015 Y L R 2298

[Sindh]

Before Aftab Ahmed Gorar, J

HIDAYAT SHAH---Applicant

versus

AMEER KHAN and 2 others---Respondents

Civil Revision Application No.70 of 2011, decided on 22nd April, 2013.

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

----S.202 ---General Power of Attorney in favour of Sub-Agent, cancellation of ---Scope ---General Power of Attorney executed in favour of Agent by principal contained a clause to the effect that Agent could appoint sub-attorneys and remove any of them at any time ---Power of Attorney in favour of Sub-Agent was neither irrevocable nor deprived the principal of his right to revoke the same ---Power of Attorney in favour of Sub-Agent was revocable by Agent.

PLD 2011 Kar. 183 rel.

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

----S. 54 ---Agreement to sell immovable property ---Validity --Such agreement would not create title in favour of purchaser in property subject thereof.

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

----O. VII, R. 11 ---Rejection of plaint ---Scope ---Court while rejecting plaint could not decide disputed facts liable to be decided on basis of evidence of parties.

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

----O. I, R. 3 & O. VII, R. 11---Misjoinder or non-joinder of necessary party in suit---Rejection of plaint ---Scope ---No civil proceedings in a court of law could be defeated for such omission or addition.

2009 SCMR 1368 and 2004 CLC 782 rel.

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

----S. 115 ---Revision petition before High Court ---Concurrent findings of facts by courts below ---Interference in such findings by High Court ---Scope ---High Court could not interfere in such findings except in case of illegal/improper exercise of jurisdiction or commission of an error of law by courts below in arriving at a question of fact.

2006 SCMR 1410; PLD 2007 Kar. 347; 2002 SCMR 1114 and 2012 CLC 165 ref.

Imtiaz Agha for Applicant.

Shoukat Ali for Respondent No.1.

Sharfuddin Mangi for official Respondents.

Date of hearing: 8th April, 2013.

2015 Y L R 2306

[Sindh]

Before Salahuddin Panhwar, J

Messrs COUNTRYMEN through Partners and others---Plaintiffs

versus

PROVINCE OF SINDH through Secretary and 11 others---Defendants

Suit Nos. 1308 of 2005 and 1379 of 2010, decided on 29th October, 2014.

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

----O. VII, R. 11---Partnership Act (IX of 1932), S. 69---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Plaint, rejection of---Scope---Contention of defendant was that unregistered firm (partnership) could not file suit and plaint was liable to be rejected---Validity---Plaintiff had not claimed to have entered into a contract with defendant under a status of firm---Present suit had not been filed for enforcement of a right with regard to any contract but the relief sought was governed by the Specific Relief Act, 1877---Suit of plaintiff was not in contravention of embargo provided under S. 69(2) of Partnership Act, 1932---Plaintiff should not be knocked out from the court only for the reason that suit was filed under the status of 'firm' which was not registered one---Penal provisions should be read strictly and same should not be given any other meaning except what was intended thereby---Application for rejection of plaint was dismissed in circumstances.

Australasia Bank Ltd. v. A. Ismailji and Son PLD 1952 Lah. 314; United Cotton Factory v. Ahmed Khan PLD 1960 Kar. 774; Province of West Pakistan v. Ashar Ali, Muhammad Ali Co. PLD 1968 Kar. 196; Muhammad Hasan Khan v. Province of N.-W.F.P. 1990 MLD 1039; Province of Sindh v. Royal Contractors 1996 CLC 1205; CHEF v. Union Cooperative Club Limited 1997 CLC 187; Messrs Marvi International through Partners v. Muhammad Aslam PLD 2007 Kar. 78; Najma Sugar Mills Ltd. through Company Secretary v. Mega Trading Company through Chief Executive 2009 CLC 209; Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner 1984 SCMR 94; Messrs M. A. Majeed Khan v. Karachi Water and Sewerage Board PLD 2002 Kar. 315; Collector of Customs (Appraisement) Collectroate of Customs, Government of Pakistan v. Imran Enterprises 2001 CLC 419; Habib Bank Ltd. v. Iqbal I. Chundrigar 1983 CLC 1464; Lakhani Textile International v. Southern Agencies (Pvt.) Ltd. 2008 CLC 444; Messrs Muhammad Junaid v. Karachi Electricity Supply Corporation Ltd. 2010 YLR 952 and Ardeshir Cowasjee v. K.B.C.A. PLD 2003 Kar. 314 ref.

Australasia Bank Ltd. v. A. Ismailji and Son PLD 1952 Lah. 314; United Cotton Factory v. Ahmed Khan PLD 1960 Kar. 774; Usman v. Haji Omer and Haji Razzak PLD 1966 SC 328 and Atta Muhammad v. Settlement Commissioner PLD 1971 SC 61 rel.

(b) Partnership Act (IX of 1932)---

----S. 69---Unregistered firm---Bar to file suit---Scope---Provisions of S.69 of Partnership Act, 1932 would only bar a suit for enforcing a right arising out of a contract against either the firm or any past or present member of it or against any third party.

Abid S. Zuberi for Plaintiffs (in Suit No. 1308 of 2005).

Muhammad Haroon for BOR, Ms. Saima Imdad, State Counsel, Kamal Azfar and Zaid Khan Abbasi for Defendant No.12 (in Suit No.1308 of 2005).

Asim Iqbal for Intervener (in Suit No.1308 of 2005).

Muhammad Haseeb Jamali for Plaintiffs (in Suit No. 1379 of 2010).

Ms. Saima Imdad, State Counsel, Muhammad Haroon for BOR and Muhammad Anwar Tariq for Defendants Nos.10 and 11 (in Suit No.1379 of 2010).

Date of hearing: 23rd September, 2014.

2015 Y L R 2312

[Sindh]

Before Muhammad Iqbal Kalhoro, J

AMANAT ALI---Applicant

versus

1st CIVIL JUDGE AND J.M., DAHARKI and 2 others---Respondents

Cr. Misc. Applns. Nos. S-741, S-861 to S-864 of 2013, decided on 25th August, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.173, 346, 347 & 561-A---Inherent jurisdiction of High Court---Positive investigation report---Transfer of case by Magistrate--- Procedure--- Accused were aggrieved of order passed by Magistrate whereby he referred cases to National Accountability Bureau for appropriate action---Validity---Magistrate was not competent to wash off his hands from trial of which he had already taken cognizance on report submitted by investigating officer under S. 173, Cr.P.C.---If report of investigating officer placed before Magistrate for his approval was in negative, whereby he had disposed of prosecution case either under (a), (b) or (c) class, Magistrate in such case, under law, was competent after evaluating material placed before him to either agree with conclusion drawn therein or to make his own independent opinion by disagreeing with inference arrived at by investigating officer---If report of investigating officer was positive, thereby he had referred accused to Magistrate for the purpose of trial along with material collected against him or them, the Magistrate was not empowered in such situation to disagree with conclusion of investigating officer---High Court directed Magistrate to pass fresh orders on reports submitted before him under S. 173, Cr.P.C. by investigating officer and remanded the matter to Magistrate---Application under S. 561-A, Cr.P.C. was allowed accordingly.

SBLR 2010 Sindh 306 and 1972 SCMR 516 ref.

Qurban Ali Malano for Applicant in all Cr. Misc. Applications.

Anwar Ali Lohar, for the Complainant.

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

2015 Y L R 2333

[Sindh]

Before Sadiq Hussain Bhatti, J

TAJ MUHAMMAD through Attorney---Petitioner

versus

Messrs SYMPHONY (PVT.) LTD. and another---Respondents

C.P. No. S-1273 of 2012, decided on 13th May, 2015.

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

----S. 15---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Default in payment of rent---Personal bona fide need of landlord---Tenant was in occupation of demised premises and he was depositing rent in the name of landlord---Relationship of landlord and tenant existed between the parties---Tenant was bound to prove that he offered rent to the landlord but he refused to accept the same---Such fact could only be proved by producing a witness who had seen the act of refusal of landlord or if rent was sent through money order, the refusal could be proved by producing money order receipt with endorsement of post office regarding refusal---Mere words of the witness were not enough to believe the version of tenant---Tenant had failed to prove that rent was tendered to the landlord who refused to accept the same and then it was sent through money order which was also refused---Tenant had committed default in payment of rent---Requirement of landlord could not be said to be arbitrary and his unbridled desire---Requirement of landlord was reasonable and bona fide as he wanted to establish his sons in the demised premises---Landlord had proved his bona fide personal requirement of the demised premises---Impugned order passed by the Appellate Court was set aside and that of Rent Controller restored---Tenant was directed to vacate the demised premises within specified period subject to payment of rent regularly---Constitutional petition was accepted, in circumstances.

Muhammad Islam v. Saeed Ahmed Butt and others 2013 CLC 280 ref.

Hashwani Hotels Ltd. v. Federation of Pakistan and others 1987 CLC 341; PLD 1981 Kar. 349; Akhtar Ali Khan and another v. Settlement Commissioner and others 1989 SCMR 506; Raja Ghulam Hyder v. Major (Rtd) Jamshed Alam Khan 1991 MLD 1284; Muslim Raza v Mst. Saghira Bano 1987 MLD 3269; Ziarat Gul v. XEN, WAPDA and another PLD 1994 Pesh. 16; Bux Ellahi v. Saadat Ali Baig through L.Rs. 1998 MLD 43; Messrs Gulf Air v. Shakir Express (Pvt.) Ltd. PLD 2003 Kar. 156; Mehboob Alam v. Miss Tehseen Shafqat Khan and others PLD 2001 Kar. 238; A.H. Alvi v. Muhammad Tariq PLD 2001 Kar. 389; Muhammad Abdul Karim v. Muhammad Saleem PLD 1996 SC 252; Javed Khalique v. Muhammad Irfan 2008 SCMR 28; Mst. Begum Jan v. Abdul Rasool 1984 CLC 755; Muhammad Ismail v. Mst. Bushra Fayyaz 1993 MLD 702; Muhammad Atique v. Muhammad Hanif Khan 1996 SCMR 1260; Abdul Majeed Karim v. Orient Pakistan Ltd. and others 1994 MLD 1026; Muhammad Shoaib Naji and others v. Muhammad Yasin and others 2011 SCMR 1306; Muhammad Asghar v. Abdul Rehman and others 2010 MLD 665; Abdul Fayyaz Khan v. III ADJ, Karachi South and others 2012 CLC 793; Malik Din v. Manzoor Ali KLR 1985 Civil Cases 670; Sultan Press Ltd. v. Muhammad Hasan PLD 1985 Kar. 624; Rehana Jamal and others v. Muhammad Asim 1999 CLC 781; Mohsin Ali v. Saifee Wool House 2000 CLC 1821 and Azeemuddin v. Mst. Attiqa Begum through LRs. 2008 CLC 1499 distinguished.

Mst. Yasmeen Khan v. Abdul Qadir and another 2006 SCMR 1501; Muhammad Aslam v. Haji Muhammad Zahoor 2000 CLC 1961 and Abdul Ghani v. Hafiz Jalaluddin 1995 CLC 348 rel.

S. Tajuddin for Petitioner.

M. Farooq Hashim for Respondents.

Nemo for respondent No.2.

Date of hearing: 15th April, 2015.

2015 Y L R 2364

[Sindh]

Before Mrs. Ashraf Jahan, J

TAHIR AYUB KHAN---Petitioner

versus

Ms. ALYA ANWAR and another---Respondents

Constitutional Petition No.S-1352 of 2014, decided on 27th January, 2015.

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

----Ss. 5, Sched. 17-A, & 14(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Scope---Interim maintenance for wife and child, fixation of---Scope---Family Court at any stage of the proceedings pending before it, could pass an interim order for maintenance which had to be paid by 14th of each calendar month---Order for interim maintenance would not be a final order but the same would be only to facilitate the wife and minor to meet their day to day life expenses till final adjudication of the suit---Such order could not be termed as void ab initio, fanciful or without jurisdiction---Quantum of interim maintenance allowance, in the present case, prima facie seemed to be fixed inter alia keeping in view the status of parties and expenses of the minor---Whether father had other source of income or not could only be ascertained after recording of evidence of both the parties---Father had an adequate remedy to challenge the final order/judgment in the case if the same was passed against him---Family Court had no unfettered or unbridled power to fix interim maintenance at its discretion---Pragmatic, rational and judicial approach, keeping in view the status of the parties, earning of the father, his capacity to pay and requirements of the minor should be considered for fixation of interim maintenance---Impugned order was interim in nature which was subject to final adjudication after recording of evidence of both the parties---Said order could not be challenged (at this stage) under constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Zafar Hussain v. Begum Farzana Nazli and others PLD 2004 Lah. 349; Messrs Metropole Cinema (Pvt.) Limited through Managing Director and others v. Government of Punjab through Secretary, Excise and Taxation Department, Lahore and 4 others PLD 2004 Lah. 351; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Nawab and 3 others v. The State PLD 1965 SC 522; Suleman and 4 others v. Additional Sessions Judge, Nankana Sahib and 3 others PLJ 2007 Lah. 1173; Syed Mohsin Shah v. Mst. Mommal Aftab and another 2013 MLD 1269; Gul Dad Khan and another v. Ismail Khan and 3 others 2013 MLD 1273; Abrar Hussain v. Mehwish Rana and 3 others PLD 2012 Lah. 420; Abbas Ahmad v. Mst. Ayesha Aziz and 3 others 2009 CLC 980; Messers Young Men's Christian Association v. Government of Sindh, through Secretary, Social Welfare and Women Development Department, Karachi and 3 others 2009 CLC 986 ref.

Zafar Hussain v. Begum Farzana Nazli and others PLD 2004 Lah. 349; Messrs Metropole Cinema (Pvt.) Limited through Managing Director and others v. Government of Punjab through Secretary, Excise and Taxation Department, Lahore and 4 others PLD 2004 Lah. 351; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Nawab and 3 others v. The State PLD 1965 SC 522 and Suleman and 4 others v. Additional Sessions Judge, Nankana Sahib and 3 others PLJ 2007 Lah. 1173 distinguished.

Suleman and 4 others v. Additional Sessions Judge Nakhana Sahib and 3 others PLJ 2007 Lah. 1173; Muhammad Hassan v. Judge Family Court Bhalwal and another 2008 YLR 1826 and Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary, S&GAD Karachi and others 1996 SCMR 1165 rel.

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

----S. 14 (3)---Interim order passed by the Family Court---Appeal---Scope---No appeal would lie against an interim order passed by the Family Court.

Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary, S&GAD Karachi and others 1996 SCMR 1165 rel.

(c) Constitution of Pakistan---

----Art. 199---West Pakistan Family Courts Act (XXXV of 1964), Ss.5, Sched. & 17-A--Constitutional petition---Maintainability---Interim order passed by Family Court---Constitutional petition against an interim order passed by the Family Court would be maintainable only if it was void ab initio, fanciful, without jurisdiction or if the same had attained the status of final order.

Suleman and 4 others v. Additional Sessions Judge Nakhana Sahib and 3 others PLJ 2007 Lah. 1173 and Muhammad Hassan v. Judge Family Court Bhalwal and another 2008 YLR 1826 rel.

Abdul Haleem Siddiqui for Petitioner.

Syed Danish Ghazi for Respondents.

Date of hearing: 22nd December, 2014.

2015 Y L R 2386

[Sindh]

Before Syed Muhammad Farooq Shah, J

Syed SHAFAAT ALI---Appellant

versus

Syed FARHAT ALI and another---Respondents

Cr. Acq. Appeal No.299 of 2014, decided on 15th May, 2015.

Penal Code (XLV of 1860)---

----S. 506---Criminal Procedure Code (V of 1898), S.417---Criminal intimidation---Appeal against acquittal---Reappraisal of evidence---Impugned judgment of acquittal, appeared to be without any infirmity, gross irregularity nor suffering from any illegality---Trial Court had thoroughly examined the deposition of all three witnesses and reached to the conclusion that there was counter cases in-between the parties over ownership of a house and that there was delay of four days in lodging the FIR, which was not explained---No independent or private witness was produced to connect accused with the crime---Appeal against acquittal, had distinctive features and the approach to deal with the appeal against conviction was distinguishable from the appeal against acquittal, because presumption of double innocence was attached in the latter case---Order of acquittal could only be interfered with, if it was found on its face to be capricious, perverse, arbitrary in nature, or based on misreading, non-reading of evidence, or 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---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 him, and court would never come to the rescue of prosecution, to fill-up the lacuna appearing in evidence of prosecution case, as it would be against established principles of dispensation of criminal justice---Appeal was dismissed, in circumstances.

Ali Sher v. The State 1998 PCr.LJ 1576; Feroze Khan v. Fateh Khan 1991 SCMR 2220; The State v. Izzat Noor 1985 PCr.LJ 457; Feroze Khan v. Ghulam Nabi Khan PLD 1966 SC 424; The State through Mehmood Ahmed Butt v. Sharaf-ud-Din Sheikh and another 2013 SCMR 565; Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 and Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281 ref.

None present for Appellant.

Zahoor Shah, A.P.G. for Respondents.

2015 Y L R 2401

[Sindh]

Before Shahnawaz Tariq, J

KHUDA BUX and another---Petitioners

versus

S.H.O., POLICE STATION, GARHI KHUDA BUX and 5 others---Respondents

C.P. No.S-558 of 2015, decided on 15th June, 2015.

Constitution of Pakistan---

----Art. 199----Constitutional petition---Maintainability---Petitioners filed constitutional petition seeking restraining order regarding illegal harassment allegedly being caused by respondents, police officials and private person, on ground that petitioners had received money from respondent in return of appointment letters in government service, which they were ready to pay money in installment as said letters had later turned out to be fake, but respondents were harassing and threatening them to pay said money without any delay---Validity---Petitioner had admittedly received huge amount from respondent handing him appointment letters along with other relevant documents regarding his appointment in government service, which were all found bogus---Petitioners, in given circumstances, had invoked constitutional jurisdiction of High Court with mala fide intention---Petitioners had wasted time of court and caused harassment and mental agony to respondent, private person by dragging him in court---High court dismissed constitutional petition with cost---Constitutional petition was dismissed accordingly.

Petitioner present in person.

Naimatullah Bhurghri, Nisar Ahmed Brohi S.H.O. Police Station Ghari Khuda Bux, SIP Muhammad Mangrio S.H.O. Police Station Naudero and SIP Muhammad Mujtaba Abro for Respondents.

2015 Y L R 2418

[Sindh]

Before Hasan Feroz, FAQIR MUHAMMAD SHAH---Applicant

Versus

S.S.P. THATTA, DISTRICT THATTA and 2 others---Respondents

Crl. Misc. Application No.301 of 2013, decided on 8th September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Inherent jurisdiction of High Court---Scope---Applicant, had alleged that accused persons had tried to occupy his land and had also issued threats and visited the land duly armed with weapons, in order to harm him---Dispute between the parties, was related to land and shares of parties, which was a civil dispute, and could only be decided at civil forum---High Court under S.561-A, Cr.P.C., though had ample powers to meet the ends of justice, but such powers were to be exercised subject to law and not to bypass the express provisions of law--- Powers under S.561-A, Cr.P.C., were to be exercised in order to prevent the abuse of process of law, and to meet the ends of justice---Such powers being extraordinary in nature were to be exercised in the circumstances, when no other remedy, under the law was available---Provisions of S.561-A, Cr.P.C., could not be used to override the express provisions of law as a substitute to the available remedy to circumvent the normal course of law, or to deviate from prescribed procedure of law, which in all circumstances, ought to take effect---Impugned order, in view of facts and circumstances, did not suffer from any illegality or infirmity---Application was dismissed, in circumstances.

Syed Amir Ali Shah for Applicant.

Javed Ahmed for the Complainant.

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

Date of hearing: 25th August, 2014.

2015 Y L R 2436

[Sindh]

Before Muhammad Shaft Siddiqui, J

WATERLINK PAKISTAN (PVT.) LTD. through General Counsel---Plaintiff

Versus

FARRELL LINES and 4 others---Defendants

Suit No.50 of 2015, decided on 2nd June., 2015.

Civil Procedure Code (V of 1908).--

---O. XXXVIII, R. 5---Attachment before judgment---Transportation of goods from one country to another---Breach of obligation---Attachment of container-- Word "intent"---Scope---Plaintiff had sought attachment of containers which were belonged to Shipping None of the containers sought to be attached could be deemed to be in Pakistan as ultimate destination of such goods was Afghanistan---Said goods were only available at Port in Pakistan for the purpose of clearance and transshipment i.e. for transit period only---Plaintiff had no claim with regard to the containers-,-- Detention charges must have been accrued for shipping line---Goods did not belong to the consigner rather same belonged to the consignee in Afghanistan-Goods were neither deemed to have arrived or existed in Pakistan nor it would belong to consignor for the purpose of attachment-- Plaintiff had no privity of contract with the consignee---Present suit had not been filed against the consignee of the attached goods but against contractor of the consignee against whom plaintiff had a claim of recovery---Neither containers nor the goods therein were liable to be attached for the purpose of claim of plaintiff---Goods were meant to be transshipped to Afghanistan which were in Pakistan only in transit---Goods were not removed with "intention" to frustrate the decree which might be passed-- Application for attachment of goods was dismissed in circumstances.

Muhammad Ather Hafeez Khan v. Messrs Ssangyong and Usmani JV PLD 2011 Kar. 605 ref.

PLD 1980 Kar. 1; PLD 1983 Kar. 303 and PLD 2011 Kar. 605 distinguished. Abdur Rahman for Plaintiff.

Arshad Tayyabali for Defendant No.1.

Hassan Akbar for Defendant No.4.

Date of hearing: 15th May, 2015.

2015 Y L R 2448

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

HUSSAIN BUX MEMON through Attorney and another---Petitioners

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief. Controller of

Buildings and 3 others---Respondents

Constitution Petition No.D-1704 of 2008, decided on 22nd December, 2014.

Karachi Building and Town Planning Regulations, 2002---

----Regln. 18-4.2.8---Constitution of Pakistan, Art. 199---Constitutional petition--Petitioner assailed construction being raised by respondent on residential plot to be used for education purposes, which was situated on road less than 60 feet width--- Validity---Wisdom of Legislature to permit operation of educational institution in residential area on a road which was not less than 60 feet of course appeared to be well gauged, ensuring to minimize disturbance which in circumstances would be caused by an educational institution, if situated on less than 60 feet road---Violation of Regln. 18-4.2.8 of Karachi Building and Town Planning Regulations, 2002, stood established and construction so raised by respondent was grossly in violation of approved building plan---High Court deferred implementation of judgment till summer vacations so that inconvenience could not be caused to students and respondent might make alter­nate arrangements---Petition was allowed accordingly.

Syed Mazhar Hussain Shah through L.Rs. v. Member, Board of Revenue, Punjab, Lahore and others 2006 SCMR 959; Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472; Miss Mohini Jain v. State of Karnataka and others AIR 1992 SC 1858; Muhammad Anwar Siddiqui v. Lahore Development Authority 2009 SCMR 177; Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Kar. 498 and Umar Baz Khan v. Syed Jehanzeb and others PLD 2013 SC 268 ref.

Rafiq Ahmed Kalwar for Petitioner.

Ms. Afsheen Aman and Rao Sarfaraz Khan for Respondent No.l.

Mrs. Azra Muqeem for Respondent No.3.

Rasheed Ahmed Akhund for Respondent No.4.

Dates of hearing: 16h and 27th October, 2014.

2015 Y L R 2465

[Sindh]

Before Sadiq Hussain Bhatti, J

Mst. MUSARAT BIBI through Attorney---Petitioner

Versus

RAZZAK MASIH through SHO and 2 others---Respondents

Constitutional Petition No. S-399 of 2014, decided on 28th April, 2015.

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

----S. 491----Guardians and Wards Act (VIII of 1890), S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Power to issue direction of the nature of Habeas Corpus---Right to custody of minor---Determination--­Forum---Respondent/husband filed petition under S. 491, Cr.P.C. against petitioner/wife seeking custody of minor on ground that wife having remarried had lost her right of Hizanat---Court, accepting said petition, handed over custody of minor to the husband---Contentions. raised by wife were that question of Hizanat could not be decided in petition filed under S. 491, Cr.P.C. and that custody of minor could not be termed as illegal or wrongful as she was his real mother, and that proper forum for said question was Guardian Court---Validity--- After separation of marriage, minor remained in legal custody of wife till the minor was removed from her custody under impugned order passed under S.491, Cr.P.C.---Provisions of S. 491, Cr.P.C. empower court to direct that a person within its appellate criminal jurisdiction be brought before it to be dealt with according to law and to direct that a person illegally or improperly detained in public or private custody within such limits be set at liberty---Present case did not fall in either of two categories which pertained to criminal jurisdiction of the court, whereas question of custody was to be ' dealt by Guardian Court---Custody of, and meeting with, the minor fell within the exclusive jurisdiction of Guardian Court-- High Court set aside the impugned order and handed the custody of the minor back to the wife--Constitutional petition was allowed in circumstances.

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

----S.491---Scope of S.491, Cr.P.C.---- Provisions of S. 491, Cr.P.C. empower court to direct that a person within its appellate criminal jurisdiction be brought before it to be dealt with according to law and to direct that a person illegally or improperly detained in public or private custody within such limits be set at liberty.

Zahid Farooq Mazari for Petitioner.

Fazal Dad for Respondent No.1.

Anwar Subhani, State Counsel for Respondents Nos.2 and 3.

Date of hearing: 21st April, 2015.

2015 Y L R 2474

[Sindh]

Before Syed Saeeduddin Nasir, J

ALI HASSAN alias LAHOTI---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION BANDHI and 2 others---

Respondents

Criminal Miscellaneous Application No.S-577 of 2013, decided on 10th September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 311, 120-B, 114 & 34---Qatl-i-­amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, abetment, common intention-- Application for quashing of order passed by Judicial Magistrate, whereby he had disposed of Police report under S.174, Cr.P.C., with direction to submit challan against the applicant before the court of law, in the crime of murder of one lady; with further direction to concerned Senior Superintendent of Police to submit final challan under S.173, Cr.P.C.---Post­mortem report, had progressed the version of the complainant in the FIR---Cause of death of the deceased, in the post-mortem was given shot injury---Impugned order being unexceptionable it was not appropriate to interfere in the same at premature stage.

2013 MLD 250 and 2013 PCr.LJ 1835 distinguished.

Badal Gahoti for Applicant.

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

2015 Y L R 2484

[Sindh]

Before Amer Raza Naqvi, J

SHAHZAD BALOCH-Appellant

Versus

The STATE---Respondent

Criminal Appeal No.283 of 2013, decided on 20th October, 2014.

Penal Code (XLV of 1860)--

----Ss. 353 & 34---Assault or criminal force to deter, public servant from discharge of his duty, common intention---Appreciation of evidence---Weapons alleged to have been recovered from the accused and his co-accused, were not produced in the court, when eye-witnesses were examined--- Entries regarding departure of Police from and arrival to the Police Station had not been produced by the prosecution---Accused was put certain questions in cross-examination, which were not part of the record at all---No question was put to accused as to his firing upon Police personnel---Both, accused and his co-accused were acquitted from the charge, in circumstances.

2002 PCr.LJ 51 ref.

Shaikh Muhammad Suleman for Appellant.

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

2015 Y L R 2492

[Sindh]

Before Shahnawaz Tariq, J

Mirza HUMANYOO MURTAZA---Petitioner

Versus

SHABIR AHMED through A.S.I. and 2 others---Respondents

Criminal Miscellaneous Application No.261 of 2013, decided on 13th January, 2015.

Penal Code (XLV of 1860)---

----Ss. 506, 147, 148 & 149---Criminal Procedure Code (V of 1898), S.561-A--­Criminal intimidation, rioting, common object---Quashing of proceedings, application for---Prime issue of the controversy, was payment of loan by the complainant to applicant worth Rs.5,78,00,000 for which no documentary proof had been produced during course of investigation and before High Court---Allegations made in FIR regarding the alleged offence, were self-contradictory and preposterous that in the prevailing scenario of worst law and order condition in the Province, no one could dare to take a huge cash with him, let alone to repay the loan at a hotel on highway, instead of transmitting said amount through cheque, pay order or online service---Contents of FIR, were also silent regarding the registration number of the car in which applicant travelled---No details of alleged incident were mentioned---Mere allegation that applicant by showing weapon, issued threats to kill the complainant, in case he demanded the loan amount, was not adequate---Complainant, had failed to show any proof regarding the transaction of huge loan amount while, applicant had categorically stated that the disputed amount, was outstanding against his brother-in-law---Facts and circumstances, mentioned in FIR were general in nature, and there was no probability of applicant being convicted for the alleged offence (issuance of threats to the complainant)---Criminal miscellaneous application was converted into constitutional petition, and the same was allowed---Proceedings, in question, were quashed, in circumstances.

Maqbool Rehman v. The State 2002 SCMR 1076 ref.

Javed Ahmed Chitari for Appellants.

Muhammad Arif for Respondent No.l.

All Haider Saleem, APG for the State.

2015 Y L R 2504

[Sindh]

Before Abdul Rasool Memon, J

SARFARAZ KHAN---Applicant

Versus

Syed HASSAN JAFFAR---Respondent

C. R. A. No.108 of 2011, decided on 24th November, 2014.

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

----Ss. 42 & 8---Suit for declaration, possession and mesne profit--Lease deed--Defendant despite providing him chances, failed to produce his evidence and suit was decreed-Validity-Sufficient opportunities were provided to the defendant to produce his evidence but he deliberately and intentionally did not avail the same---Reasoning recorded by the courts below were in consonance with the evidence available on record and no pre­judice had been caused to the defendant---Plaintiff had proved lease-deed through his statement---Contention of plaintiff that he was granted proper lease of suit plot had been admitted by the defendant as same was not challenged in cross ­examination-Defendant had failed to establish his occupation over the plot in question in legal way by producing any sort of evidence---Both the courts below had elaborately discussed each and every aspect of the case and had dealt with the same in detail leaving no room for further consideration---No misreading of evidence, material irregularity or illegal exercise of jurisdiction had been pointed out hu the defendant---Revision was dismissed in circumstances.

Mian Rahim Bux Qadri v. Bashir Ahmed PLD 1976 Kar. 738; Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; Mst. Aisah v. Mst. Fatima and others 1991 CLC 1499; Mst. Inayat Bibi v. Nazir Ahmed and others 1991 CLC 1660; Muhammad Mustaqeem through his Legal Heirs v. Abdul Haleem through his Legal Heirs and others 1992 CLC 435; Manzoor­-Ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; Karachi Development Authority and 2 others v. Taj Mahal Nursery and 3 others 2000 CLC 1352; Mst. Husna Bano v. Faiz Muhammad Magsi and another 2000 CLC 709; Aqeel Hussain and others v. Mst. Alia Bibi and others 2006 CLC 297; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Islamic Republic of Pakistan and others v. Syed Najaf Ali Shah 1989 MLD 4412; Supercon Limited v. Eastern Construction Limited and 2 others 1987 CLC 1566; Choudhry Haq Nawaz Chohan v. Choudhry Tariq Azam and 43 others 1994 CLC 1530 and The Hub Power Co. v. WAPDA 1999 CLC 1320 ref.

Mian Rahim Bux Qadri v. Bashir Ahmed PLD 1976 Kar. 738; Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; Mst. Aisah v. Mst. Fatima and others 1991 CLC 1499; Mst. Inayat Bibi v. Nazir Ahmed and others 1991 CLC 1660; Muhammad Mustaqeem through his Legal Heirs v. Abdul Haleem through his Legal Heirs and others 1992 CLC 435; Manzoor­-Ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109 and Karachi Development Authority and 2 others v. Taj Mahal Nursery and 3 ,others 2000 CLC 1352 distinguished.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not re-apprise the evidence on record in exercise of its revisional jurisdiction.

Muhammad Yakoob for Applicant.

Syed Tasawar Husain Rizvi for Respondent.

Date of hearing: 17th September, 2014.

2015 Y L R 2520

[Sindh]

Before Sad-iq Hussain Bhatti and Abdul Maalik Gaddi, JJ

MUHAMMAD SALEH alias DUBI GADEHI---Appellant

Versus

The STATE---Respondent

Cr1. Appeal No.D-27 of 2012, decided on 22nd October, 2014.

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

---S. 9(b)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Possession of narcotic---Appreciation of evidence-Benefit of doubt---Prosecution failed to produce any private independent witness, despite occurrence had taken place in day time in a locality surrounded by houses---Such omission had not been explained satisfactorily---Evidence of Police Officials, no doubt was as good as that of others, but present case depended upon evidence of Police Officials which required independent corroboration through independent witnesses, which was lacking---Delay in sending the heroin powder to the Chemical Examiner had not been explain ed---Prosecution failed to examine Police Official who took sample to Chemical Examiner---Said Police Official was not subjected to cross-examination on the point as to in whose custody, sealed parcel of sample of contraband remained lying during intervening period of two months and seven days; whereas that exercise was required to be completed within 72 hours of the recovery, under R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001---Prosecution witnesses, not only contradicted each other, but were not trustworthy--- Trial Court did not appreciate the evidence properly---Prosecution having failed to prove its case against accused, impugned judgment was set aside and accused was acquitted of the charge, extending him benefit of doubt---Bail bond of accused stood cancelled, and surety was discharged, in circumstances.

Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368 and Mohammad Aslam v. The State 2011 SCMR 820 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---If there was slightest apprehension regarding prosecution case being untrue, its benefit would be extended to accused.

Syed Lal Shah for Appellant.

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

Date of hearing: 22nd October, 2014.

2015 Y L R 2537

[Sindh]

Before Shahnawaz Tariq, J

DODO and 7 others---Appellants

Versus

The STATE---Respondent

Cr. Appeal No.S-71 of 2015, decided on 28th May, 2015.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(i), 341, 353, 395, 427, 147 & 148---Causing Shajjah-i-Khaftfah, damiyah, wrongful restraint, assault or criminal force to deter public servant from discharge of his duty, dacoity, mischief, rioting---Application for suspension of sentence---Maximum quantum of sentence awarded to accused persons, was R.I. for 4 years as well as Daman---Accused persons were not involved in any criminal case nor were previously convicts---On the day of incident, there was a strike call by the Political parties against the Government to maintain law and order situation in the, area and in response to said call, general public blocked the road---When Police mobile intercepted, the mob showed resistance and Police personnel sustained injuries---Accused remained on bail during the course of trial but neither they misused the concession of bail nor made any attempt to frustrate the prosecution evidence---Four years' sentence fell within the ambit of short sentence---Due to the heavy backlog of cases pending in the court, it would not be possible to hear and decide the main appeal in the near future---Sentences of accused persons were suspended in the interest of justice, till disposal of appeal and accused were enlarged on bail, in circumstances.

Wali M. Khoso for Appellant?.

Shahzado Saleem Nahiyoon APG for the State.

2015 Y L R 2543

[Sindh]

Before Mrs. Ashraf Jahan, J

GEORGE CHOU---Petitioner

Versus

FEHMIDA ZAIDI and 3 others---Respondents

C.P. No.S-740 of 2014, decided on 10th December, 2014.

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

----Ss. 15 & 10---Constitution of Pakistan, Art.199--- Constitutional petition---Ejectment of tenant---Default in payment of rent---Bona fide personal need of landlord---Payment of rent through cheque---Effect---Contention of landlords was that premises was required for their personal bona fide need---Ejectment petition was accepted concurrently-- Validity---Nothing was on record that landlords were having other property in their names or any other business to which they were engaged---If on oath statement of landlord was consistent and the same could not be shaken in cross examination, then it was sufficient to prove that requirement of landlord was bona fide and genuine---Rent could be paid either in person to the landlord on receipt or in case of refusal, it could be sent through postal money order or could be deposited with the Rent Controller of the area---No provision existed to pay rent through cheques---Tenant had not adopted any mode for payment of rent as provided in S.10 of Sindh Rented Premises Ordinance, 1979---No serious efforts were made by the tenant for payment of rent---Tenant had committed default in payment of rent---Rent Controller ordered the tenant to deposit rent in the court along with arrears---Constitutional petition was dismissed, in circumstances.

B. Surinder Singh Kanda v. Government of the Federation of Malaya 1962 PC 322; Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787; Ch. Muhammad Nazir Cheema v. Mujahid Sherdil, DCO/Chairman, District Task Force, Sialkot and 3 others 2012 CLC 764; Habib Bank Limited v. Amanullah 1986 CLC 2917; Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530; Shahzad v. Mst. Kalsoom and 3 others 2009 YLR 2166; Pakistan State Oil Company Limited v. Sikandar A. Karim and others 2005 CLC 3; Ijaz Hussain and 12 others v. Mst. Hussan Ara and 6 others PLD 1989 Pesh. 39 Muhammad Yaqoob through. Attorney Amir Yaqoob v. Nazirullah Khan 1999 CLC 868 and Habib-ur-Rehman and 7 others v. VIIth Additional District Judge, Hyderabad and 2 others PLD 2013 Sindh 25 ref.

B. Surinder Singh Kanda v. Government of the Federation of Malaya 1962 PC 322; Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787; Ch. Muhammad Nazir Cheema v. Mujahid Sherdil, DCO/Chairman, District Task Force, Sialkot and 3 others 2012 CLC 764; Habib Bank Limited v. Arnanullah 1986 CLC 2917; Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530; Shahzad v. Mst. Kalsoom and 3 others 2009 YLR 2166 and Pakistan State Oil Company

Limited v. Sikandar A. Karim and others 2005 CLC 3 distinguished.

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

----S. 10---Rent, payment of---Procedure--­Rent could be paid either in person to the landlord on receipt or in case of refusal it could be sent through postal money order or could be deposited with the Rent Controller of the area--No provision existed to pay rent through cheques.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of fact recorded by courts below could not be disturbed by the High Court while exercising constitutional jurisdiction unless same were perverse, without jurisdiction and patently illegal.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 and Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981,SC 246 rel.

Anwar Kashif Mumtaz for Petitioner.

S. Abid Hussain Shirazi for Respondents.

Date of hearing: 10th November, 2014.

2015 Y L R 2553

[Sindh]

Before Muhammad Iqbal Kalhoro, J

IRSHAD and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.616 of 2013, decided on 19th June, 2014.

Criminal Procedure Code (V of 1898)--

----S. 497 [As amended by Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Penal Code (XLV of 1860), Ss.302, .148 & 149---Qatl-i-amd, rioting, common object---Bail, refusal of---Plea of delay in trial for grant of bail--- Principles---Accused persons had claimed bail on statutory ground of delay in trial, contending that their trial had not been completed within period of 2 years after their arrest and that concession provided under the 3rd and 4th Proviso of S.497, Cr.P.C., was very much attracted in their favour---Accused persons had failed to show that delay in the trial had not been occasioned by them---Courts, by virtue of amendment made under S.497, Cr.P.C. in the year 2011 had been empowered to release accused on bail, where the delay in the trial had not been occasioned by any act or omission on the part of accused, or any person acting on his behalf---Accused in order to qualify to file bail application under proviso to S.497, Cr.P.C., had to show that he had been detained for offence for continuous period exceeding two years---Once he would qualify such period, he had to further prove that the delay in the trial was not caused by any of his act or omission---Said remedy under the law had been provided mainly to alleviate the misery, the despondency and the agony, which naturally would follow, when the trial of accused who was languishing in the jail, was not making any progress despite his efforts, showing his bona fide and interest in proceedings---If it was found that accused himself was instrumental for causing delay in the progress of trial directly or indirectly, then remedy would not be available to him---Accused having not been able to make out their case for bail on the statutory ground of delay in trial, their bail applications were dismissed.

2003 YLR 3166; PLD 2012 Sindh 147; 2010 SCMR 354; 2012 YLR 1496; PLD 2002 SC 18 and 2012 PCr.LJ 1588 distinguished.

2014 PCr.LJ 437; 2013 PCr.LJ 1331; 2006 PCr.LJ 1256; 2013 YLR 1318; 2012 YLR 2432; Abdul Rashid v. The State 1998 SCMR 897; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; 2003 MLD 79; 2004 PCr.LJ 713 and SBLR 2013 Sindh 869 ref.

S. Mushtaque Hussain Shah for Applicants.

Ghulam Shabeer Shar for Complainant.

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

2015 Y L R 2566

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD ISMAIL---Applicant

Versus

The STATE and another---Respondents

Cr. Revision Application No.S-96 of 2014, decided on 16th August, 2014.

Penal Code (XLV of 1860)---

----S. 324---Criminal Procedure Code (V of 1898), S. 345---Attempt to commit qatl-i-amd---Compromise---Application moved by accused under S.345(2) & (6), Cr.P.C. for accepting compromise arrived at between the parties, was dismissed---Validity---Injured, in the case, was not in a position to give the statement before the court---Permission for the compromise, in circumstances, could not be given to the complainant and accused to enter into the compromise---Case falling within meaning of S.345(4), Cr.P.C., no compromise could legally hold the field, unless a person, otherwise competent to contract on behalf of such person, was permitted by the competent court to compound on behalf of such person within the meaning and object of S.345(4), Cr.P.C.---Injured being not legally capable to make a legal binding statement/act, Trial Court was right in dismissing the application moved by accused under S.345(2) & (6), Cr.P.C., because, in such eventuality, proper course, available was to move under S.345(4), Cr.P.C., which had not been resorted to by the parties---Petition was not sustainable under the law, as there was no jurisdictional error or illegality on the part of the Trial Court, while recording the impugned order---Revision petition was dismissed, in circumstances.

Ayaz Ali Gopang for Applicant.

Shahid Sheikh, A.P.G. for the State.

Date of hearing: 21st July, 2014.

2015 Y L R 2572

[Sindh]

Before Muhammad Iqbal Kalhoro, J

IQBAL AHMED and 12 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Revenue, Board of Revenue and 27 others---Respondents

Civil Revision Application No.S-30 of 2013, decided on 28th August, 2014.

(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---Scope---Contention of defendants was that plaintiffs' earlier suit on the same cause of action against the same defendants was dismissed and present suit was not maintainable---Plaintiffs contended that earlier suit was dismissed without recording of evidence and principle of res judicata would not be attracted---Validity---Earlier, plaintiffs filed suit with same prayer against the same defendants which was dismissed for want of evidence---Present suit had been instituted on same facts with same prayer and on the same subject matter against the same defendants---Both the courts below had rightly exercised their jurisdiction by rejecting the plaint which appeared to be hit by the mischief under S. 11, C.P.C.---No irregularity or perversity had been pointed out in the findings recorded by the courts below---Revision was dismissed in limine.

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

----S. 115---Revisional jurisdiction, invocation of--- Scope--- Revisional jurisdiction could only be invoked in the cases where courts below had assumed jurisdiction illegally or had not exercised jurisdiction vested upon them or while exercising jurisdiction had committed any irregularity---Court could decide the matter in either way if such court had jurisdiction under the law---Erroneous or perverse conclusions on the facts or law could be corrected in appeal but revision would not be competent unless it was brought on record that a court while arriving at such conclusion had committed an error of law.

Mushtaque Ahmed Shahani for Applicants.

2015 Y L R 2595

[Sindh]

Before Muhammad Junaid Ghaffar, J

ABDUL RAZZAQ---Applicant

Versus

1st ADDITIONAL SESSIONS JUDGE and another---Respondents

Cr. B. A. No.S-1226 of 2013, decided on 30th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 336, 337(2), 337-N, 114, 147, 148 & 149---Attempt to commit qatl-i-amd, enforcement of Qisas for hurt, abetment, rioting, common object---Bail, grant of---Further inquiry---Earlier bail application, filed by accused was dismissed on the ground that crime against accused was punishable under S.336, P.P.C., which provided punishment for 10 years, falling within the prohibitory clause of S.497, Cr.P.C.---Punishment under S.336, P.P.C., was by way of payment of Arsh or Daman; and additionally High Court could award Tazir to the offender; but awarding of Tazir would be governed by the provisions of subsection (2) of S.337-N, P.P.C.---Court could have regard to the kind of hurt caused by accused in addition to payment of Arsh, award Tazir to accused who was previous convict, habitual, or hardened, desperate or dangerous criminal---Said conditions had not been satisfied in the case of accused---Counter case was amongst same parties in respect of the same incident---Contradiction existed with regard to time of occurrence in the FIR and in the provisional medico-legal certificate---FIR, was lodged under S.324, P.P.C. but the Trial Court while granting bail to other co-accused in the present matter, had observed that said section was not applicable---Even if S.324, P.P.C. was applicable to the case of accused, it was the matter which was to be determined at the trial; and punishment provided in said section did not fall within the prohibited clause of S.497, Cr.P.C.---Only eight empties were recovered, but no weapon of offence had been recovered---Grant of bail was a rule, whereas refusal was an exception, and bail could not be withheld as a punishment---Sufficient grounds were available in the case for further inquiry---Accused who had made out a case for admission of bail, was granted bail, in circumstances.

Ali Muhammad v. The State PLD 2009 Lah. 312 and Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 ref.

Sajjad Ahmed Chandio for Applicant.

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

2015 Y L R 2617

[Sindh]

Before Naimatullah Phulpoto and Salahuddin Panhwar, JJ

MIRCHOO alias MIRCH---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.D-139 of 2013, decided on 6th May, 2014.

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

----Ss. 6, 7, 8 & 23---Object and scope of Ss.6, 7 & 8 of Anti-Terrorism Act, 1997---"Act of terrorism", determination of---Principles---Case triable by Anti-terrorism court---Ingredients---In order to determine as to whether an offence would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, it was essential to have a glance over the allegations made in the FIR; material collected during investigation and surrounding circumstances and to examine; whether the ingredient of alleged offence had any nexus with the object of the case as contemplated under Ss.6, 7, 8 of Anti-Terrorism Act, 1997; whether a particular act was an act of terrorism or not, the motivation, object, design and purpose behind the said act was to be seen; whether said act had created a sense of fear and insecurity in the public, or in a section of the public or community, or in any sect; whether action resulted in striking terror or creating fear, panic, sensation, helplessness; and sense of insecurity among the people in the particular area, the same would amount to terror and such an action would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, and would be triable by a Special Court constituted for such purpose---Courts had only to see, whether the 'terrorist act' was such which would have the tendency to create sense of fear and insecurity in the minds of the people or any section of the society---In the present case, accused person had committed offence on the main road and target was Sub-Inspector of Police was not material that Police functionary was on duty or not at the time of violation---In the result of indiscriminate firing by automatic weapons two persons had lost their lives---Act of accused on main road in brutal manner, had created fear and insecurity to the general public---Act of accused involved serious violence against the members of the Police force---Case, in circumstances, prima facie fell under S.6(n) of Anti-Terrorism Act, 1997, and Anti-Terrorism Court had the exclusive jurisdiction to try the same---Application of accused, to transfer case to regular court, was dismissed, in circumstances.

The State through Advocate General, N.W.F.P. Peshawar v. Muhammad Shafiq PLD 2003 SC 224 ref.

Habibullah G. Ghouri for Applicant.

Ali Nawaz Ghanghro for the Complainant.

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

2015 Y L R 2632

[Sindh]

Before Aftab Ahmed Gorar, J

GHULAM ARIF KHAN---Petitioner

Versus

GOVERNMENT OF SINDH through Home Secretary and 2 others---Respondents

C.P. No.S-371 of 2013, decided on 15th October, 2014.

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

----Ss. 550 & 523---Penal Code (XLV of 1860), Ss.420 & 406---Constitution of Pakistan, Art.199---Constitutional petition--Cheating and dishonestly inducing delivery of property, criminal breach of trust---Impounding of vehicle suspected to be stolen---Vehicle in question was registered in the name of complainant and was sold to the petitioner---Investigating Officer submitted report in which case was disposed of under "A" class, but Judicial Magistrate disposed of the case under 'C' class instead of "A" class---Vehicle in question having been impounded by S.H.O. in terms of S.550, Cr.P.C., petitioner filed constitutional petition against such action of S.H.O. and for direction to register F.I.R. against him---High Court disposed of constitutional petition directing S.H.O. to recover vehicle and hand over its peaceful custody to petitioner/purchaser, as there was no justification for impounding of vehicle under S.550, Cr.P.C.---Order of Judicial Magistrate having been set aside, complainant had prayed for reviewing/ recalling said order---Petitioner/purchaser had not sought any relief for handing over the vehicle which was in possession of complainant, nor he impleaded the complainant---Petitioner had also not challenged the order passed by Judicial Magistrate, on the application moved by the complainant under S.523, Cr.P.C., either in petition, or by filing any separate proceedings---In absence of such prayer, order of handing over the vehicle to the petitioner was not liable to be set aside---Complainant was not afforded any opportunity to explain his position before passing the order, which tantamount adversely affecting his right, as he was in possession of the vehicle in question on the strength of an order passed by concerned Judicial Magistrate on application moved by him under S.523, Cr.P.C.---Complainant was mandatorily required to be afforded an opportunity to explain his position before passing any adverse order against him---Impugned order was modified, whereby S.H.O. was directed to recover vehicle in question from the complainant, and hand over its custody to the Nazir of High Court, who was directed to keep the same in his custody, till the ownership/title of vehicle was decided by competent court of civil jurisdiction.

Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335; Gul Muhammad and 4 others v. The State 1999 PCr.LJ 771 and Mst. Mumtaz Begum and 8 others v. Shakil Hyder and 12 others 1997 PCr.LJ 776 ref.

PLD 2004 SC 32; 2002 SCMR 442 and PLD 1996 SC 178 distinguished.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---General principles of finality of judgment, though attached to the decision or order of High Court passed in criminal cases, but in exceptional cases, such as; where the order was passed without jurisdiction or without giving any opportunity to the aggrieved party of being heard, High Court, in exercise of its inherent powers under S.561-A, Cr.P.C., could revoke, review or alter its own earlier decision---Inherent powers of the High Court under S.561-A, Cr.P.C., were meant for doing substantial justice at any stage in a case of unforeseen eventualities for which no provision was available in the Criminal Procedure Code, 1898.

PLD 1970 SC 335; 1997 PCr.LJ 776; 1999 SCMR 2765 and PLD 2005 Kar. 638 ref.

Fareed Ahmad Dayo for Petitioner.

Choudhry Abdul Rasheed for Applicant.

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

Date of hearing: 10th May, 2014.

2015 Y L R 2656

[Sindh]

Before Mrs. Ashraf Jahan, J

Mrs. KHURSHID AKHTAR---Appellant

Versus

Mrs. WAJIHA JALIL and 3 others---Respondents

IInd Appeals Nos.6 and 10 of 2011, decided on 2nd June, 2015.

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

----Ss. 42, 54 & 56---Cantonments Act (II of 1924), S. 273---Civil Procedure Code (V of 1908), S. 100----Suit for declaration---Maintainability---Plaintiffs filed suits for declaration for rectification of property numbers mentioned in conveyance deed---Both trial court and appellate court dismissed the suits---Contention raised by defendant was that the suits were barred under Ss. 42, 54 & 56 of Specific Relief Act, 1877, in view of S. 273 of Cantonments Act, 1924 and under limitation law and that second appeal was not maintainable on question of fact---Plea taken by plaintiff was that judgment and decree of courts below were the result of misreading and non-reading of record---Validity---Plaintiff had not challenged the sale deed and had only sought correction in respect of property numbers, which had resulted from mutual mistake of parties---Only dispute between parties was as to identification of suit properties which the courts below failed to appreciate---Courts below totally misunderstood the case of plaintiff and misread record and evidence---Findings of courts below being outcome of misreading and non-reading of evidence were not immune from interference in second appeals---Report of court commission also supported plaintiff's assertion, which defendants had failed to challenge---Courts below failed to decide and redress grievance of plaintiff in accordance with law---Defendants had not produced any evidence and filed only their written statements which was not substitute of evidence---Defendants had neither cross-examined plaintiff's witnesses nor had produced their own evidence, and plaintiff's evidence therefore remained unchallenged and unrebutted---Contradictions existed in record and assertions made by defendants---Suits were within time as plaintiff had only sought correction as to identity of suit properties and cause of action had accrued when for the first time such mistake had come to her knowledge---Objection as to improper valuation of the suit was also baseless as plaintiff had only sought declaratory relief regarding correction of suit properties---Bar of S.273 of Cantonments Act, 1924 was not applicable to present case as no relief was sought against the Cantonment Board---Judgment and decree of courts below were set aside and the suits were decreed as prayed---Second appeals were accepted in circumstance.

(b) Cantonments Act (II of 1924)----

----S. 273---Impleading Cantonment Board as party---Principles---Bar of S. 273 of Cantonments Act, 1924 was not applicable to the case where no relief was sought against the Cantonment Board.

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

----O.VIII, R.1---Written statement, filing of----Non-production of defence evidence---Effect---Defendants had not produced any evidence and filed only their written statements which was not substitute of evidence.

Alamdar Hussain v. Nazir Hussain and others 2004 SCMR 595; Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213; Khushi Muhammad v. Liaquat Ali and others PLD 2002 SC 581; Iftikhar through Legal Heirs and others v. Capt. Khadim Husain through Legal Heirs and others PLD 2002 SC 607; Mst. Bibi Jan v. Habib Khan and another PLD 1975 SC 295; Balaprasad Asaram Charkha and others v. Asmabi w/o Fakruddin Bohri AIR 1954 Nagpur 328; Abdul Rashid v. Bashiran and another 1996 SCMR 808; Hafiz Muhammad Hussain and another v. Abbas Khan and another 1981 SCMR 1233 and Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777 rel.

Ms. Saman Riffat Imtiaz for Appellant.

Muhammad Iqbal Arain for Respondent No.1.

Sohail H.K.Rana for Respondent No.2.

Date of hearing: 10th December, 2014.

2015 Y L R 2674

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

Mrs. FARHAT IMRANA---Petitioner

Versus

Messrs ETIMAD (PVT.) LTD. Through Country Manager---Respondent

H.C.A. No.116 of 2014, decided on 22nd December, 2014.

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

----O. XXXVII, Rr.2 & 3, O.XXXIX, Rr.1 & 2---Law Reforms Ordinance, (XII of 1972), S.3---High Court appeal---Lease of property---Controversy was as to whether property in question was leased for commercial use---Plaintiff had paid lease money for first three months and also gave post-dated cheques in that connection---Single Judge of High Court ordered to deposit all the post-dated cheques with the Nazir of the court---Grant of temporary injunction---Validity---Issue of fact could not be dilated upon without recording of evidence---Post-dated cheques were issued in favour of defendant by the plaintiff and if the same were presented for encashment and dishonoured, then a criminal case under S.489-F, P.P.C. could be got registered which would cause an irreparable loss to the plaintiff---Balance of convenience was in favour of the plaintiff---Prima facie case had been made out for injunction---Impugned order was maintained by Division Bench of High Court, in circumstances.

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

----O. XXXVIII, R. 5, O. XXXVII, Rr. 2 & 3---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Summary suit on negotiable instrument---Attachment of property before judgment---Scope---Attachment of property before judgment was an exceptional remedy under exceptional circumstances which should be established through some cogent evidence---Only apprehension of the plaintiff, in the present case, was that he would not be able to get execution of decree which apparently would be in terms of money---Mere establishing prima facie good case was no ground for invoking the provisions of O. XXXVIII, R.5, C.P.C. without first complying with sub-Rule 1 of R.5 of the said provision---Attachment of property, in the present case, would create hardship for the defendant---Impugned order with regard to attachment of property before judgment was set aside---Single Judge of High Court would be at liberty to pass an appropriate order if, at any stage of trial, any subsequent evidence was brought on record justifying attachment of property before the judgment.

Messrs STFA C. & Co. v. Naeem Khan 2005 CLC 1270; Associated Drillers Ltd. Karachi v. Messrs Dirk Verstoop B.V. Karachi PLD 1979 (sic) 734 and Messrs H. Nizamuddin and Sons Ltd. v. M.V. Oroomee and 4 others (LD 1977 Kar. 722 rel.

Naveed Ahmed and Saadat Yar Khan for Appellant.

Yawar Farooqui and Irfan A. Memon for Respondent.

Date of hearing: 13th October, 2014.

2015 Y L R 2683

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD IMRAN---Petitioner

Versus

GHULAM MUSTAFA and 6 others---Respondents

C.P. No.S-955 of 2014, decided on 11th May, 2015.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Personal bona fide need of landlord---Proof---Suppression of facts by the landlord---Effect---Landlord had concealed material facts from the court while agitating personal bona fide requirement of demised premises---Landlord was bound to plead his need in good faith while seeking personal bona fide need by furnishing the relevant facts truthfully---Landlord had failed to discharge such burden honestly, fairly and candidly which was fatal to the bona fide need in good faith---Landlord had prerogative to choose a particular premises for his bona fide personal occupation and use the same in case he had more than one premises---Landlord, however, was bound to give plausible and satisfactory explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use for such prerogative---Nothing was on record as to why the other shops which were in possession of landlords were not sufficient and would not meet the demands of business sought to be established by the son of landlord---Landlord had not disclosed the factum of other shops having become vacant as well as already carrying of business by his son which had negated his good faith and bona fides---Statements of landlords and their witnesses were not inconsistence with the averments of the main eviction petition---Landlord had not disclosed in the memo of ejectment petition and their affidavits in evidence that they were in possession of other shops---Suppression of such facts had adversely affected the credibility of landlords---Landlords had failed to establish their personal need in good faith---Mis-statements and concealment of necessary facts had established the bad faith on the part of landlords which was completely based on mala fide and ulterior motives---Appellate Court had failed to appreciate the available material and had committed illegality and material irregularities---Impugned order was based on non-reading and mis-reading of evidence---Admitted facts did not require any proof---No case for personal requirement had been made out---Rent Controller had rightly and correctly declined to pass order for ejectment of tenant---Impugned order passed by the Appellate Court was set aside---Constitutional petition was allowed, in circumstances.

Mrs. Shah Noor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Abid Masood and others v. Dilshad Khan 1995 SCMR 146; Latif Ahmed v. Mst. Farrukh Sultana 1996 SCMR 1233; Shahid Nadeem and others v. Muhammad Shafi 2000 SCMR 542 and Muhammad Lehrasab v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338 rel.

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

----Art. 113---Facts admitted need not to be proved.

Raja Khan for Petitioner.

Noor Ahmed Memon for Respondent No.1.

Date of hearing: 11th May, 2015.

2015 Y L R 2699

[Sindh]

Before Amer Raza Naqvi, J

SANA INTERNATIONAL TRADING CORPORATION (PVT.) LTD. through Attorney---Plaintiff

Versus

FEDERATION OF PAKISTAN through Chairman/Secretary Federal Board of Revenue and 2 others---Defendants

Suit No.1120 of 2014, decided on 5th September, 2014.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Temporary injunction, grant of---Ingredients---Plaintiff had made out a prima facie case, balance of convenience was also in its favour and if temporary injunction was not granted, plaintiff might be out of the business---Plaintiff had complied with the requirement of advertisement for tender but in the process of evaluation by the functionaries he had not been treated fairly---Where decisions of public functionaries were either mala fides or against the law and/or rules then same would be liable to be struck down and balance of convenience in such cases would hardly matter---No harm or prejudice would have been caused to any one if before passing of any final order plaintiff was given a chance to present his point of view---High Court directed that no purchase order should be issued in pursuance of the tender, till disposal of suit, however present order would not prevent any fresh process of procurement strictly in accordance with law after inviting fresh tenders.

PLD 2009 SC 406; Muhammad Ali v. Province of Punjab 2005 SCMR 1302 and Petrosin Corporation (Pvt.) Ltd. v. MOL Pakistan Oil and Gas Company PLD 2008 SC 472 ref.

2009 CLC 1104; 2012 CLC 1780; 2009 SCMR 659 and PLD 2012 Sindh 434 distinguished.

Mushtaq Hussain Kazi for Plaintiff.

Salman Talibuddin, Additional Attorney General for Defendant No.1.

Mushtaq A. Memon and Ghulam Hyder Shaikh for Defendants Nos. 2 and 3.

Dates of hearing: 5th, 8th, 13th, 19th, 26th, 29th August, 2nd, 4th, and 5th September, 2014.

2015 Y L R 2719

[Sindh]

Before Sadiq Hussain Bhatti, J

WORKS COOPERATIVE HOUSING SOCIETY LTD. and another---Appellants

Versus

Mrs. NAJMA SALEEM and 4 others---Respondents

IInd Appeal No.61 of 2012, decided on 28th May, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), S. 52---Suit for declaration---Lease of land---Conversion of plot from residential to commercial---Plot in question was for residential purpose only and was not to be diverted to other use without previous consent in writing of the lessor and Housing Society---Private person could not produce a copy of such document which was not in his custody---No letter was written by the lessee to the Housing Society for conversion of plot from residential to commercial---Lessee did not acquire leasehold rights of a commercial plot---Letter for conversion of plot from residential to commercial produced by the defendants was forged and manipulated---Both the courts below had failed to read evidence correctly and findings given by them were totally against the evidence on record---Plot in question was not converted from residential to commercial---If an area/road was declared commercial by operation of law, there was no need to obtain any fresh/separate permission for change or use of land/plot in such area or on such road---If suit property was alienated by defendants during pendency of suit, such alienation/transfer would not be hit by provisions of S. 52 of Transfer of Property Act, 1882, however, judgment passed in the present case would be binding on any subsequent buyer---Impugned judgments passed by both the courts below suffered from misreading, non-reading and mis-conception of the evidence available on record which were set aside and case was remanded to the Trial Court for decision afresh on the basis of material on record---Appeal was accepted in circumstances.

Basit Sibtain through L.Rs. v. Muhammad Sharif through L.Rs. 2004 SCMR 578; Abdus Saeed Khan and others v. Basharat Ali and others PLD 1995 Lah. 255; Muhammad Yousuf and others v. Muhammad Younas and others 1995 CLC 1780; PLD 2010 Kar. 374 and 2001 SCMR 279 ref.

Mst. Tabassum Shaheen v. Mst. Uzma Rahat 2012 SCMR 983; Lalji Singh v. Rameshuwar Misra 1983 9 All LR 269 and Alamdar Hussain v. Nazar Hussain and others 2004 SCMR 595 rel.

S. Irtiza Hussain Ziadi for Appellant No.1.

Riaz Alam Khan for Appellant No.2.

Muhammad Farooq for Respondent No.1.

S. Kamran Shahzad Siddiqui for KMC.

Muhammad Ali Raz for KBCA.

Muhammad Arshad Warsi for Respondent No.4.

Salman Hamid for Respondent No.5.

Date of hearing: 30th April, 2015.

2015 Y L R 17

[Lahore]

Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ

Mst. IMAM SAIN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.290-J of 2011 and Murder Reference No.486 of 2009, heard on 15th July, 2014.

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

----Ss.302(b), 324, 337-J & 34---Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt by means of poison---Common intention---Appreciation of evidence---Case was based mainly upon the testimony of real daughter of accused and the deceased who was 10/11 years of age and she had furnished the direct evidence of motive and the incident, committed by both the accused persons---Court had satisfied itself as to level of said witness's understanding by putting questions to her in that regard and she not only firmly faced the rigor of cross-examination but also remained stuck to her earlier statement recorded under S.161, Cr.P.C.---No material or noticeable improvement and deviation from previous statement of said witness was noticed in her statement before the Trial Court and defence could not shake her confidence; and she answered several material questions in a very straight forward manner on each and every aspect of the occurrence---During cross-examination said witness kept explaining and confirmed her statement in examination-in-chief, and despite best effort, nothing beneficial to accused persons could be derived from her statement by the defence---Said witness's firmness and confidence, while making statement, reflected that she was the truthful witness of the nefarious activities of her mother, which resulted into death of her father and brother---Evidence furnished by said sole witness, also found corroboration from medical evidence and stood substantiated by the circumstances and other evidence produced by the prosecution---Accused with active participation of her co-accused, had inhumanly and ruthlessly choked the life of her husband and real son and also attempted to deprive her other five children of their precious lives---Such was a desperate and inhuman act on the part of (so-called) human beings which had resulted into a shock to the society, as no one could expect from a wife and from a mother to take life of her husband and real son just to breed amorous relationship---Accused persons, in view of callousness did not deserve any leniency or favour---Prosecution having remained successful to prove its case beyond any shadow of doubt against accused persons, their appeal was dismissed.

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

----Art. 17---Penal Code (XLV of 1860), Ss.302(b), 324, 337-J & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing hurt by means of poison---Common intention---Competence and number of witnesses---Conviction could be based upon the testimony of even a single witness, if it inspired confidence, as it was the intrinsic value and worth of the testimony that weighed with the court, and not the number of the witnesses---Quality and not the quantity of the evidence, which would settle the guilt or innocence of accused; and conviction could be based on testimony of a single witness even in a murder case.

Allah Bakhsh v. Shammi PLD 1980 SC 225; Muhammad Mansha v. The State 2001 SCMR 199 and Niaz-ud-Din and another v. The State and another 2011 SCMR 725 ref.

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

----Art.3---Competency of child witness---Article 3 of Qanun-e-Shahadat, 1984, was a rule of caution---Question in each case, which a court was to testify, was whether a particular child, who had appeared in court, was intelligent enough to be able, to understand as to what evidence he was giving and he should be able to give rational answers to the questions---No particular age was given by the legislature which determined the question of competency of a witness which would depend upon the capacity of the child to understand---In the present case, child winess who had been produced by the prosecution, was of the age of 10/11 years and she was not of the age who could not understand the question put to her; and court found her an intelligent witness because she had given rational answers to the question put to her by the defence---Said child witness was fully competent witness.

Muhammad Yaqoob v. The State 1993 PCr.LJ 1852 ref.

Nadeem Siddiqui for Appellants No.1

Abdul Majeed Chishti, Defence Counsel at State expense.

Mian Muhammad Awais, D.P.G. for the State.

Complainant in person.

Date of hearing: 15th July, 2014.

2015 Y L R 34

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

SHAHID MAHMOOD---Appellant

Versus

Sheikh KHALID SAEED---Respondent

Regular First Appeal No.651 of 2013, heard on 11th November, 2013.

Specific Relief Act (I of 1877)---

----Ss. 12 & 22---Civil Procedure Code (V of 1908), O. XVII, R. 1 (3)---Suit for specific performance of contract---Discretionary relief---Scope---Trial Court dismissed the suit due to non-payment of remaining sale price by the plaintiff according to its order---Validity---Relief for specific performance was a discretionary relief---Circumstances of the case and conduct of the parties in a suit for specific performance were very much relevant---Parties must ready to perform their part of agreement at the time of agreement, at the time of filing of suit and at the time of decree passed in the suit---Remaining payment was not made by the plaintiff till the last date fixed in the agreement to sell---Defendant made a statement that if remaining sale price is paid within a period of 10 days then he had no objection in passing of decree in favour of plaintiff but plaintiff failed to pay the same---Plaintiff did not make effort to get executed the sale deed by making payment to the defendant---Discretion would lie with the Trial Court to see whether any party was entitled for the decree of specific performance on the basis of equity or for any fault on his part---Plaintiff had delayed the proceedings of suit and he was never willing to pay the remaining consideration amount despite the conceding statement of defendant---Plaintiff intentionally avoided to pay the remaining sale price which was required for the progress of the case and he failed to comply with the order of Trial Court----Co-owners of the property in question also appeared and got recorded their statements that they had no objection in transferring the same if remaining amount was paid---Equity as well as fairness would lie in favour of defendant and not with the plaintiff---Trial Court had rightly dismissed the suit as plaintiff could not claim the performance of agreement to sell as of right---No illegality or infirmity had been pointed out in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed in circumstances.

Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 ref.

Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900; Pirzada Amir Hussain and others v. Mrs. Shamim Shah Nawaz and others 1987 SCMR 249 and Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others 2002 CLC 1111 rel.

Muhammad Shakeel Mughal for Appellant.

Agha Abu-ul-Hassan Arif for Respondent.

Date of hearing: 11th November, 2013.

2015 Y L R 47

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Ch. SHAMSHAIR ALI---Petitioner

Versus

KHALID MAHMOOD---Respondent

Civil Revision No.1648 of 2014, decided on 9th May, 2014.

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

----O.XVII, R.3---Legal practitioners and Bar Councils Act (XXXV of 1973), S.56---Pakistan Legal Practitioners and Bar Councils Rules, 1976, Rr. 134 & 166---Closure of evidence---Strike by District Bar after 11-00 a.m.---Scope---Right to produce remaining evidence of plaintiff was closed after granting fifty two opportunities for the same---Contention of plaintiff was that District Bar was observing strike and no effective proceedings could have been taken and provisions of O.XVII, R.3, C.P.C. could not be applied---Validity---Party to a proceedings who had been held responsible to perform certain acts would be liable to be penalized in case of default on the part of such party---Court might proceed to decide the suit forthwith where party to a suit to whom time had been granted had failed to produce his evidence notwithstanding such default---Call of strike was taken as a cover---Counsel was bound to appear in the court when a matter was called and if same was not so possible then to make satisfactory alternative arrangements---Counsel was bound to act without fear or favour for just cause of clients diligently---Counsel could not escape from proceedings before a Court of law---No illegality or irregularity had been pointed out in the impugned order---Revision was dismissed in circum-stances.

Amanullah v. Haq Nawaz and 3 others 2013 CLC 1152; Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 and Shambilid Ghori and another v. Mst. Tayyaba Begum PLD 1989 Lah. 478 ref.

(b) Words and Phrases---

----"Vakeel"---Meaning.

Tahir Mahmood Khokhar for Petitioner.

2015 Y L R 65

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD YAQOOB DOGAR---Petitioner

Versus

Mst. NIAZI through LRs.---Respondent

Civil Revision No.288 of 2014, decided on 12th March, 2014.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Transfer of Property Act (IV of 1882), S. 52---Suit for specific performance of contract---Application for grant of temporary injunction--- Ingredients--- Lis pendens, doctrine of---Scope---No proof was on record to the effect that any payment was made to the vendor through cheque, pay order, draft or T.T---None of defendants was present when their mother made the alleged agreement with the plaintiff---Plaintiff had still to prove the transaction in question as well as agreement to sell and payment of consideration amount---Court had to consider while granting temporary injunction as to whether plaintiff had approached the court with clean hands or not---Relief of ad interim injunction might be refused on the sole ground that conduct of party was not above board---Possession would not entitle a party for the grant of interim injunction---Doctrine of lis pendens was also available to the plaintiff to safeguard his rights and interests---Plaintiff, in the present case, would not suffer any irreparable loss in case of refusal of temporary injunction, however defendants were likely to suffer in case of granting the said injunction---Temporary injunction could not be granted unless all the ingredients i.e. prima facie case, balance of convenience or irreparable loss were available---Both the courts below had exercised their discretionary jurisdiction in accordance with law and no material irregularity had been committed---Revision was dismissed in limine.

Mst. Saeeda Sultana and another v. Mst. Roshan Ara and others 2002 SCMR 1345 ref.

Irshad Hussain v. Province of Punjab and others PLD 2003 SC 344 and Muhamamd Ali v. Mehnga Khan 2004 SCMR 1111 rel.

Mst. Saeeda Sultana and another v. Mst. Roshan Ara and others 2002 SCMR 1345 distinguished.

Sh. Dilawar Hussain for Petitioner.

2015 Y L R 93

[Lahore]

Before Manzoor Ahmad Malik, J

SHABBIR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.601 and Criminal Revision No.241 of 2004, heard on 13th February, 2014.

(a) Criminal trial---

----Evidence---Circumstantial evidence---Scope---Where no direct evidence was available and prosecution case hinged on circumstantial evidence, every circumstance should be linked with each other; and it should form such a continuous chain that its one end touched the dead-body, and other neck of the accused---If chain link was missing, then its benefit must go to accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

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

----Ss. 302, 364 & 34---Qatl-e-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Inordinate delay of fifteen days in the registration of F.I.R., had cast serious doubts on the veracity of prosecution case---Story of last seen evidence, which was introduced as afterthought, did not inspire confidence; and it was not safe to rely on said evidence of last seen; and could not be used against accused for maintaining his conviction on capital charge---Evidence of extra-judicial confession furnished by prosecution witness, was not worth reliance---Prosecution had failed to prove the motive behind the occurrence---Weapons of offence, Chhuri and bugda, allegedly recovered at the instance of accused, with positive report of Chemical Examiner and Serologist, were sent to relevant offices, about two months after the occurrence---Remote possibility of blood being present on both said articles existed and it was not safe to rely on said pieces of evidence, in circumstances---Dead body of the deceased was taken into possession from the water course 24 days prior to arrest of accused---Prosecution case being doubtful in nature, accused was entitled to the benefit of doubt, not as a matter of grace, but as a right---Conviction and sentence awarded to accused by impugned judgment passed by the Trial Court, was set aside, accused was acquitted of the charge against him extending him benefit of doubt, and he was released, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166; Basharat and another v. The State 1995 SCMR 1735; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence was only a supporting piece of evidence, because it could confirm the ocular evidence with regard to the receipt of the injury; its locale, kind of weapon used for causing the injury, duration between the injury and death, but it would not tell the name of the assailant.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

Mrs. Bushra Qamar Defence counsel at State expense for Appellant (in Criminal Appeal No.601 of 2004).

Nisar Ahmad Virk, DDPP for the State.

Azam Nazeer Tarar for the Complainant.

Azam Nazeer Tarar and Momin Malik for Petitioner (in Criminal Revision No.241 of 2004).

Dates of hearing: 12th and 13th February, 2014.

2015 Y L R 116

[Lahore]

Before Arshad Mahmood Tabassum, J

MUHAMMAD AKRAM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.279 of 1995, heard on 17th March, 2014.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay in lodging the F.I.R., had been plausibly explained by the complainant in the F.I.R. as well as during his statement before the Trial Court---Complainant and prosecution witness, remained consistent in their depositions regarding the ocular account; and successfully stood the test of cross-examination---Both said witnesses though were close relative of the deceased, but no enmity had been alleged to said witnesses against accused---Parties being known to each other previously, question of mistaken identity of the real culprits would not arise, as the occurrence took place before sun set---Complainant would not substitute accused for the real culprit, who had committed murder of his deceased son---Both the eye-witnesses had fully established their presence at the spot---Non-mentioning of three fireshots in the complaint by the complainant, and specifying the same by stating that three fireshots were made in his statement before the court, would hardly affect the merits of the case, when the ocular account of the occurrence was consistent on all material points---Trial Court, in circumstances, had rightly believed the ocular account of the occurrence---No conflict existed between ocular account and medical evidence produced by the prosecution---Trial Court had correctly evaluated the material available on record and convicted and sentenced accused---Quantum of sentence as awarded by the Trial Court, did not require consideration---Appeal was dismissed.

Allah Ditta's case PLD 2002 SC 52 and Haji Ail Shan's case 2001 PCr.LJ 1320 rel.

(b) Criminal trial---

----Witness---Relationship of witness with the deceased---Effect---Mere relationship of a witness with the deceased was no ground to discard his testimony, unless it was established that he was inimically deposed against accused.

Sharafat Ali's case 1999 SCMR 329 and Abdur Rauf's case 2003 SCMR 522 rel.

Sardar Mehboob for Appellant.

Rana Muhammad Naeem Kanju for the Complainant.

Abdul Qayyum, A.P.G. for the State.

Date of hearing: 17th March, 2014.

2015 Y L R 129

[Lahore]

Before Atir Mahmood, J

Dr. IJAZ AHMED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.16727 of 2010, decided on 22nd August, 2014.

Civil Procedure Code (V of 1908)---

----S. 144---Constitution of Pakistan, Art.199--- Constitutional petition---Restitution of possession of immovable property---Scope---Applicant was in possession of the property in dispute when ejectment order was passed---Applicant was not party in the ejectment proceedings who was ejected from the disputed property---Ejectment petition had been dismissed and ejectment order had been set aside---Applicant had right for restoration of possession---No illegality or jurisdictional defect was pointed out in the impugned orders passed by the courts below---Constitutional petition was dis-missed in circumstances.

Mst. Rehmat Bibi v. Shahzad Waheed and another PLD 1993 SC 69; Mst. Naeema Begum v. Iqbal Ali Khan and others 1999 CLC 1432; Ashfaq Ahmad and 8 others v. Nadeem Ahmad and 3 others PLD 2006 Lah. 643; Abdul Bari v. Muhammad Rasheed Khan and 7 others 1995 SCMR 851; Mst. Imtiaz Bibi and another v. Abdul Qadir Shad and 2 others 1998 CLC 1043 and Mst. Fatima Bibi v. Jan Muhammad 1991 SCMR 1031 ref.

Mst. Rehmat Bibi v. Shahzad Waheed and another PLD 1993 SC 69; Mst. Naeema Begum v. Iqbal Ali Khan and others 1999 CLC 1432 and Ashfaque Ahmad and 8 others v. Nadeem Ahmad and 3 others PLD 2006 Lah. 643 distinguished.

Mst. Imtiaz Bibi and another v. Abdul Qadir Shad and 2 others 1998 CLC 1043 rel.

Ch. Akbar Ali Shad for Petitioner.

Zafar Abbas Khan for Respondent No.5.

Nemo for Respondents Nos.3, 4 and 6.

Date of hearing: 3rd April, 2014.

2015 Y L R 140

[Lahore]

Before Sadaqat Ali Khan, J

SAEED AHMED---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.286 of 2012, heard on 11th February, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was not nominated in the F.I.R. and for the first time complainant introduced him in his application moved before the Police without specifying any role---Motive for the first time had been given by the complainant in his second application moved with the delay of one month from registration of the case, no reason was given as to why he concealed that fact and did not disclose the same on the day of occurrence in his statement before the Police for registration of the case---Evidence of two prosecution witnesses being hearsay, was not acceptable, when their statements were recorded with unexplained delay---Delayed statement without furnishing any plausible explanation, was fatal to the prosecution---Extra judicial confession, being joint confession, was not admissible in evidence---Evidence of 'Waj Takkar' was very weak type of evidence, which normally was created when prosecution failed to collect any tangible evidence to prove the charge---Medical evidence had only indicated that the deceased had lost his life due to firearm injury, but did not lead to the culprit---Prosecution having failed to bring home guilt of accused to the hilt, Trial Court was not justified in convicting accused basing upon untrustworthy, uncorroborated evidence, deposed by interested witnesses, which even otherwise was full of material contradictions, especially when unreliable story was deposed by the prosecution witnesses---Benefit of doubt was extended in favour of accused---Conviction and sentences awarded by the Trial Court vide impugned judgment, were set aside, and accused was acquitted of the charge and was directed to be released, in circumstances.

Rahat Ali v. The State 2010 SCMR 584 rel.

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

----S. 164---Extra judicial confession---Scope---Evidence of extra judicial confession, was a very weak type of evidence, which normally was created, when prosecution failed to collect any tangible evidence to prove the charge---Such type of evidence, should not be relied upon in absence of any corroborative piece of evidence.

Zahid Hussain v. The State 2008 PCr.LJ 1532 rel.

(c) Criminal trial---

----Evidence---Corroboration of evidence---One tainted piece of evidence could not corroborate another piece of tainted evidence, because if that was allowed to be alone, very necessity of corroboration would be frustrated.

Mursal Kazmi alias Qamar Shah and others v. The State 2009 SCMR 1410 rel.

Hafiz Shahid Nadeem Kahloon for Appellant.

Muhammad Sharif Bhatti for the Complainant.

Khalid Pervaiz Oppal, D.P.G. for the State.

Date of hearing: 11th February, 2014.

2015 Y L R 167

[Lahore]

Before Mahmood Ahmad Bhatti, J

ALLAH BAKHSH through Legal Heirs---Petitioners

Versus

KHUDA BAKHSH through Legal Heirs ---Respondents

Civil Revision No.222-D of 2014, decided on 16th April, 2014.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Oral sale---Proof---Vendor, a lady---Independent advice---Scope---Defendants though did not adduce evidence in rebuttal but suit of plaintiffs was dismissed concurrently---Validity---Person who had alleged must prove his case and no party could be allowed to take benefit from the weakness of the case of other party---Plaintiffs had to stand on their own legs and onus would lay on them to prove that they had purchased the suit property---Plaintiffs being beneficiaries had to adduce cogent, credible, strong and convincing evidence that vendor had entered into the transaction of sale and she had received the alleged sale consideration---Vendees were required to prove that at the time of making alleged transaction independent advice was available to her---No such advice had been proved on behalf of plaintiffs and they had failed to prove transaction of sale in their favour---No infirmity or perversity or material irregularity was pointed out in the findings recorded by the courts below---Revision was dismissed in limine.

Syed Qaisar Abbas Gilani for Petitioners.

2015 Y L R 194

[Lahore]

Before Abdus Sattar Asghar, J

FAYYAZ HUSSAIN---Petitioner

Versus

The STATE and 4 others---Respondents

Writ Petition No.10289 of 2014, decided on 24th July, 2014.

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

----Ss. 133, 435 & 439---Constitution of Pakistan, Art.199---Constitutional petition--Maintainability---Findings of revisional Court---Interference under constitutional jurisdiction by High Court---Scope---Magistrate dismissed petitioner's complaint seeking removal of nuisance---Respondent had filed suit for declaration that respondent was owner in possession of the land which petitioner had alleged to be a thoroughfare---Matter was sub judice before civil court---Findings of revisional court of competent jurisdiction could not be assailed by invoking constitutional jurisdiction of High Court under Art.199 of the Constitution---Constitutional petition was dismissed for being not maintainable.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Findings of revisional court of competent jurisdiction could not be assailed by invoking constitutional jurisdiction of High Court under Art.199 of the Constitution.

Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge Jhang and 6 others PLD 1993 SC 399 and Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 rel.

Sheikh Ghias-ul-Haq for Petitioner.

2015 Y L R 206

[Lahore]

Before Sikandar Zulqarnain Saleem, J

AZEEM MUBASHAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE DASKA and 4 others---Respondents

Writ Petition No.20216 of 2014, decided on 14th July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 355, 356 & 537---Penal Code (XLV of 1860), Ss.420, 467, 468, 471 & 34---Constitution of Pakistan, Art.199---Cheating and dishonestly inducing delivery of property, forgery of valuable security, will etc. forgery for purpose of cheating, using as genuine a forged document, acts done by several persons in furtherance of common intention---Constitutional petition---Applicability of S.356, Cr.P.C.---Scope---Omission to examine complainant on the same day and failure of Magistrate to prepare memorandum of evidence under his own hand--- Effect--- Failure to examine complainant on the same day was irregularity which was curable under S.537, Cr.P.C. and complaint could not be dismissed on this score alone---Section 355, Cr.P.C., dealt with record in trials of certain cases by Magistrate---Word 'inquiries' was though not mentioned in S.355, Cr.P.C., but same was included in S.356, Cr.P.C.---Under S.356, Cr.P.C., presence of the Magistrate or the Sessions Judge was the essential requirement while evidence was being recorded--- Statements of witnesses contained/bore signature of the Magistrate showing that statement of complainant was recorded in the presence of Magistrate so presumption arose that statement of witnesses were recorded in superintendence and presence and personal direction of the Magistrate---Omission to make memorandum of evidence by Magistrate under his own hand by itself did not vitiate the proceeding as such omission was curable under S.537, Cr.P.C.---Order passed by Magistrate suffered from no illegality---Constitutional petition was dismissed.

Shamim v. The State PLD 1966 SC 178; PLD 1959 (W.P.) Lah. 186 and PLD 1958 SC 392 rel.

Muhammad Tariq Zafar for Petitioner.

2015 Y L R 218

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD ASIM BUTT---Petitioner

Versus

JAVED IQBAL and 7 others---Respondents

Writ Petition No.4589 of 2012, decided on 3rd June, 2014.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss.249 & 561-A---Penal Code (XLV of 1860), Ss.382, 467, 468, 472 & 473---Emigration Ordinance (XVIII of 1979), Ss.17, 18 & 22---Theft after preparation made for causing death, hurt or restraint in order to committing of theft, forgery of valuable security, will etc., forgery for the purpose of cheating, making or possessing counterfeit seal, etc., with intent to commit forgery punishable under S.467, making or possessing counterfeit seal, etc., with intent to commit forgery punishable otherwise, unlawful emigration, fraudulently inducing to emigrate, receiving money, etc., for providing foreign employment---Constitutional petition---Maintainability---Power to stop proceedings---Power of High Court to quash criminal proceedings under S.561-A, Cr.P.C.---Scope---Magistrate stopped proceedings in terms of S.249, Cr.P.C. against petitioner, an FIA Inspector, in trial of F.I.R. registered against him under S.382, P.P.C. on the complaint of respondent in view of trial of case F.I.R. registered under Ss.467, 468, 472, 473, P.P.C. and Ss.17, 18, 22 of Emigration Ordinance, 1979 by the petitioner against respondent before Special Judge, Central---Additional Sessions Judge set aside Magistrate's order---Validity---Places of occurrence in both F.I.Rs. were different---Offences of both the cases were also distinct and distinguishable---Contents of F.I.R. registered against petitioner prima facie made out offence under S.382, P.P.C. which was exclusively triable by Magistrate whereas offences alleged in F.I.R. against respondent under Ss.467, 468, 472, 473, P.P.C. and under Ss.17, 18, 22 of the Emigration Ordinance, 1979 were different and exclusively triable by Special Judge, Central---Respondent had been acquitted of the charges against him---Petitioner's plea that Magistrate lacked jurisdiction to try the offence under S.382, P.P.C. was devoid of any force---Validity of order of Magistrate was examined on judicial touchstone by the Additional Sessions Judge in exercise of revisional jurisdiction---In the absence of any legal infirmity or jurisdictional error in the impugned order, constitutional petition was not maintainable---Under S.561-A, Cr.P.C. High Court had inherent power to quash the criminal proceedings where High Court was satisfied that a false case had been registered with mala fide intention and the process of court was being abused not to advance the cause of justice but to subject the adversary to unnecessary harassment---Allegations against the petitioner and his co-accused prima facie made out a cognizable offence under S.382, P.P.C. which was exclusively triable by the ordinary court of Magistrate--Malice of harassment was not substantiated by any material---Petition was dismissed.

Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge Jhang and

6 others PLD 1993 SC 399 and Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 rel.

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

----S.561-A---Power to quash proceedings---Scope---Under S.561-A, Cr.P.C. High Court had inherent power to quash criminal proceedings where High Court was satisfied that a false case had been registered with mala fide intention and the process of court was being abused not to advance the cause of justice but to subject the adversary to unnecessary harassment.

Ghulam Muhammad v. Muzammil Khan and 4 others PLD 1967 SC 317 and Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 rel.

Naveed Inayat Malik for Petitioner.

Khan Imtiaz Ali Khan, Naila Riaz and M. Mushtaq Ahmad for Respondents.

Waqar Ahmad Chaudhry, Assistant Advocate General, Punjab.

Munir Ahmad ASI.

Date of hearing: 3rd June, 2014.

2015 Y L R 229

[Lahore]

Before Ch. Muhammad Masood Jehangir, J

MUHAMMAD HAFEEZ through Attorney---Petitioner

Versus

MUHAMMAD RIAZ---Respondent

Civil Revision No.639 of 2008, decided on 30th May, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), S. 115---Talbs, performance of---Requirements---Revision---Decree sheet, non-filing of---Effect---Discrepancies with regard to performance of Talb-i-Muwathibat were of minor nature which were bound to occur as a lapse of time and same could not be fatal---Plaintiff had failed to produce Booking Registry Clerk of the post office and postman before the Trial Court to prove that notice of Talb-i-Ishhad had not only been dispatched through post but same was actually received by the defendant---Registered post acknowledgement-due was also not got exhibited by the plaintiff in evidence---Personal service or refusal to accept the post on behalf of vendee/addressee should be on record which had to be proved through official of postal department---Mere endorsement on acknowledgement-due card to the effect that same was served or refused would not constitute service when vendee had appeared and denied the said endorsement---Pre-emptor was not only required to prove the sending of notice of Talb-i-Ishhad to the defendant but he was bound to prove the delivery of said notice by production of postman and failure to do such was fatal for pre-emptor---Pre-emptor had failed to prove notice of Talb-i-Ishhad and his suit could not succeed---Defendant could not be bound to suffer merely on technicality, who on the other hand had a very good case on merits---Courts were custodian of the rights and same could not be washed away due to the defects committed in the procedure---When composite judgment was passed and challenged in revision then no procedural illegality and rather technicalities should stand in the way of disposal of said revision on merits---Defendant had brought on record the attested copy of decree sheet prepared by the Appellate Court---Appellate Court had decided the appeal as well as cross-objection through consolidated judgment and non-filing of decree sheet of one case along with the consolidated judgment could not render revision incompetent---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored---Suit filed by the plaintiff was dismissed---Revision was accepted in circumstances.

District Coordination Officer, Sukkur and 8 others v. Khan Muhammad through General Attorney and 3 others 2013 MLD 1369 and Mubarik Ali v. Muhammad Ramzan 2004 SCMR 1740 ref.

District Coordination Officer, Sukkur and 8 others v. Khan Muhammad through General Attorney and 3 others 2013 MLD 1369 and Mubarik Ali v. Muhammad Ramzan 2004 SCMR 1740 distinguished.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Rabia Bibi and another v. Jahana through L.Rs. 2013 YLR 2016; Islam ud Din v. Muhammad Younis and others 2013 YLR 947; Sultan Ali v. Ghulam Hussain and another 2012 YLR 2545; Mushtaq Hussain and others v. Muhammad Inayat and others PLD 2012 Lah. 234; Muhammad Ajmal Khan v. Muhammad Younis Khan 2009 MLD 549; Muhammad Yousaf v. Raza Muhammad and another 2011 YLR 1972; Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Saraswathi Ammal and another v. Rajagopal Ammal A.I.R. (39) 1952 Madaras 81 (C.N.39) and Shukar Din and others v. Nazir Ahmed and others 1993 CLC 1367 rel.

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

----S.115---Revision---Scope.

Ch. Amjad Hussain for Petitioner.

Sh. Naveed Shehryar for Respondent.

Dates of hearing: 28th, 30th May, 2014.

2015 Y L R 269

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

GHAZI MUHAMMAD FAROOQ---Appellant

Versus

MUHAMMAD YASIR and others---Respondents

R.F.A. No.322 of 2008, decided on 6th November, 2013.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Art. 84---Suit for specific performance of contract---Proof of agreement to sell---Requirements---Vendor had died before filing of the suit---Effect---Comparison of signatures by the court---Scope---For proving an agreement to sell in a suit for specific performance the main factors were proving the purchase of stamp paper on a specific date, the writing of instrument on the said date while producing Deed Writer and delivery of possession or reason for not taking possession---Possession of suit property was not taken over by the plaintiff in the present case---Alleged agreement to sell was not signed by the plaintiff on the basis of which no decree for specific performance could be passed in his favour---Practice for comparison of signatures with admitted one by the Trial Court was undesirable but same was not prohibited under Art.84 of Qanun-e-Shahadat, 1984---When alleged vendor had died before filing of suit and other evidence was available on the file then procedure adopted by the Trial Court for comparison of signatures was not against the law---Even report of Handwriting Expert was an opinion which was not binding upon the court---Findings of the Trial Court were on the basis of probabilities of facts and evidence available on the file---Payment of money between the parties was disputed and claim in the present suit was baseless---Trial Court was a court of fact and law and basic interpretation of evidence was by the same---Evidence of witnesses of plaintiff was not in accordance with his pleadings---Relationship of witness with the plaintiff in civil case was not material but same was important and could not be straightaway or fully ignored---Court evaluating the evidence had a right to assess the statement of each witness keeping in view the relationship of witness and party---Appeal was dismissed in circumstances.

Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730 distinguished.

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 rel.

Syed Muhammad Kaleem Ahmad Khurshid for Appellant.

Kh. Saeed-uz-Zafar and Ch. Naseer Ahmad for Respondents.

Date of hearing: 6th November, 2013.

2015 Y L R 316

[Lahore]

Before Mahmood Ahmed Bhatti, J

MUHAMMAD AMIN---Petitioner

Versus

JUDGE, FAMILY COURT, SAHIWAL and 3 others---Respondents

Writ Petition No.2956 of 2014, decided on 12th March, 2014.

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

----Ss. 13, 17 & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance---Execution of decree passed by the Family Court---Procedure---Application for withdrawal of surety bond---Scope---Applicant stood surety of judgment-debtor who was arrested in execution of decree---Surety moved an application to absolve him of the liability arising out of surety bond but same was dismissed by the Executing Court---Validity---Section 17 of West Pakistan Family Courts Act, 1964 excluded the application of Civil Procedure Code, 1908 except Ss. 10 & 11 of the same---Procedure set out in O. XXI, C.P.C. for execution of civil decree need not to be followed by a Family Court---Family Court had been vested with the discretion as to how it would order for recovery of a money decree passed by it---Such discretion had to be exercised at the time of passing a decree---Money decree was to be recovered as arrears of land revenue only if court had so directed at the time of passing of the same---Family Court might follow any procedure for implementation of its money decree including the arrest of judgment-debtor and attachment of his property if such direction had not been made by the same---Surety was as much bound by his undertaking as was the judgment-debtor---Both surety and judgment-debtor were collectively and severally liable to make payment to the decree-holder---Surety would not be absolved of his liability if judgment-debtor was sent behind the bars---Surety was to be conscious of his liabilities and he could not be allowed to evade from the same---Constitutional petition was dismissed in limine.

Syed Jaffar Tayyar Bukhari for Petitioner.

2015 Y L R 348

[Lahore]

Before Arshad Mahmood Tabassum, J

ABDUL QAYYUM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.488 of 2012, heard on 1st April, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 398 & 34---Criminal Procedure Code (V of 1898), S.161---Qatl-e-amd, attempt to commit qatl-e-amd, attempt to commit robbery or dacoity, when armed with deadly weapon, acts done by several persons in furtherance of common intention---Appreciation of evidence---Dishonest improvements---Effect---Corroboration---Scope/principle---Deceased's mother alleged that accused nourished/harboured grudge against deceased because deceased wanted to register criminal case against accused who had attempted to commit theft of calf owned by deceased's mother---Motive of grudge of accused was not introduced/attributed at the time of statement made by complainant to the Investigating Officer on the spot---No criminal case having been registered by complainant or deceased against accused for said attempt to commit theft, question of grudge (motive) could not arise---"Takwa" allegedly carried by deceased had been recovered from place of occurrence showing that he fully participated in commission of offence during which he lost his life---Neither complainant identified the accused on the spot nor he knew their names; and he did not even allege to have noticed/seen features of the accused persons---Out of two persons who reached the spot during the occurrence, one was not produced before court as witness while the other made dishonest improvements in his statement before Police in order to show that he had identified the accused; and had he identified the accused, he would have named the accused in his statement before Police---Other witnesses also made dishonest improvements so their testimony was liable to be discarded---F.I.R. did not mention that two persons who reached the spot during the occurrence had identified the accused---Deceased's mother did mention name of the accused but she reached the spot subsequent to the occurrence---Prosecution failed to establish that witnesses had identified the accused---Entire story implicating the accused was fabricated---Ocular account of occurrence having been disbelieved, evidence of recoveries which was only of corroborative value, could not be made basis of conviction---Appeal was accepted and accused was acquitted.

Akhtar and others v. The State 2008 SCMR 6 and Noor Muhammad v. The State and another 2010 SCMR 97 rel.

Syed Muhammad Jaffar Tayyar Bokhari and Naeem Ahmad Khan for Appellants.

Asma Khan for the Complainnat.

Shaukat Ali Ghauri, A.P.G. for the State.

Date of hearing: 1st April, 2014.

2015 Y L R 397

[Lahore]

Before Shahid Hameed Dar and Sardar Muhammad Shamim Khan, JJ

Dr. MUHAMMAD ASLAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous. No.7740-B of 2014, decided on 12th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Propagating, publishing religious/sectarian hatred among youth, provoking terrorist attacks and militancy, recovery of books containing contemptuous, sacrilegious material---Bail, grant of---Heinousness or seriousness of an offence meant little unless same (allegation) was backed by cogent and believable evidence which lacked in the present case---'Rebellious conduct' of accused had been highlighted in F.I.R. by using different adjectives without hinting at any incriminating circumstance against him---No evidence existed to show that accused possessed books in question to stir up religious, sectarian or ethnic differences---Contents of books recovered from accused were blown out of proposition---Books in question contained no mutinous material---Accused wrote books in accord with his understanding of Islam seeking guidance from the Holy Quran---Whether possession of said books constituted alleged offence would be determined at trial---Allegations against accused were not backed by connecting evidence---Offences did not fall under the prohibitory clause of S.497(1), Cr.P.C.---Accused had been behind bars for last one month and was no more required for the purpose of recovery---Bail application was accepted.

Muhammad Zubair Khalid Chaudhary for Petitioner.

Khurram Khan, Deputy Prosecutor General Punjab.

Sabir Hussain S.I. with record.

2015 Y L R 411

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

FAYYAZ MAHMOOD KHAN and 2 others---Appellants

Versus

Haji ABDUL REHMAN through L.Rs. and others---Respondents

R.S.A. No.53 of 2005, heard on 1st October, 2013.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 30 & 19---Specific Relief Act (I of 1877), S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 85, 92 & 95---Suit for declaration---Sale mutation---Contentions of plaintiffs were that suit land was allotted in favour of defendants who could not fulfil the conditions of allotment and entered into an agreement to sell with them and that registered agreement to sell and power of attorney were executed but mutation was cancelled by the Assistant Commissioner---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Power of attorney was irrevocable wherein agreement to sell was mentioned---Defendants had never challenged those documents in any forum through suit or other proceedings---Registered documents had presumption of correctness and same had been proved by the plaintiffs---No rebuttal against the said documents was available on the file---Mutation of sale of suit property was sanctioned in favour of plaintiffs and same was incorporated in the revenue record---Assistant Commissioner was not competent to adjudicate upon the agreement to sell or power of attorney and cancel the mutation---No issue with regard to bar of suit under S. 19 of Colonization of Government Lands (Punjab) Act, 1912 was framed and such objection had been raised for first time before the High Court---Such bar was not available to the agreement to sell---Conditions of tenancy would vanish after completion of sale and 'Bae Nama Shahi' registered in favour of allottee and he would become owner of suit land---One could not take benefit of his own fault---Defendants could not press and use the conditions for cancellation of sale if they had sold out the land in violation of conditions of sale deed---Findings of Trial Court with regard to genuineness of documents were exhaustive and in accordance with law---Appellate Court had not given a single reason as to why it was setting aside the factual findings recorded by the Trial Court---Findings of Appellate Court were against the evidence available on the file---Appellate Court had exercised jurisdiction not vested in it---Impugned judgment and decree of Appellate Court were set aside and that of Trial Court were restored---Appeal was accepted in circumstances.

Daulat Ali through Legal Heirs and 2 others v. Ahmad through Legal Heirs and 2 others PLD 2000 SC 792 rel.

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

----O. VIII, R. 6---Set-off---Scope---Set-off could be with regard to claim of money by the defendant.

Ch. Muhammad Hussain Jahania for Appellants.

Khawar Muhammad Younis and Muhammad Iftikhar Hussain Sahi for Respondents Nos.1 to 3.

Malik Abdul Ghani Nadeem for Respondents Nos.5-A to 5-D and 7.

Date of hearing: 1st October, 2013.

2015 Y L R 450

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 141 and Criminal Revision No.141 of 2008, heard on 20th June, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Sudden provocation---Trespassing---Deceased, on the day of occurrence, went to Ihata of father of accused as trespasser, where he showed unruly behaviour, which led to incident severing his lifeline---Deceased lost his life due to a fire shot made by accused but the circumstances whereunder he did so needed serious consideration---Stories narrated by both the sides were polluted with certain amount of exaggeration but court was not precluded from drawing its own independent result based on available record---Accused committed offence under compelling circumstances which over-whelmingly contributed to occurrence---High Court altered conviction of accused under S.302(b) to S.302(c), P.P.C. and reduced his sentence from imprisonment for life to rigorous imprisonment for fourteen years---Appeal was dismissed accordingly.

Nasir Mehboob Tiwana for Appellant.

Muqadass Tahira, Additional Prosecutor General Punjab for the State.

Malik Shafqat Rasool Gorchha for the Complainant (in Criminal Revision No.141 of 2008).

Date of hearing: 20th June, 2013.

2015 Y L R 476

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD IQBAL and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.265-J of 2009, 1235 of 2010 and Murder Reference No.340 of 2009, heard on 22nd October, 2013.

(a) Criminal trial---

----Prosecution was required to prove its case against accused persons beyond any shadow of doubt---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)---

----Ss. 302(b), 100, 109, 148 & 149---Qatl-i-amd, abetment, rioting---Appreciation of evience---Private defence, right of---Formal F.I.R. which had been registered after one hour and forty five minutes of occurrence---Complainant had admitted that he had not witnessed the occurrence and story regarding the incident was narrated to him by prosecution witnesses---One of the prosecution witnesses, who was son of the complainant, could not justify his presence at the spot at the relevant time, and his evidence was in conflict with medical evidence---Trial Court, in circumstances, had rightly discarded evidence of said witness---Prosecution witness who allegedly was going with the deceased on a motorcycle, did not receive any injury during the occurrence---Highly improbable that when intention of seven persons who were armed with firearm weapons, was to kill both the deceased and said witness, then how was the witness spared---Motorcycle which the deceased and prosecution witness were allegedly riding at the time of occurrence, was not taken into possession by the Police which had created doubt in the prosecution story---Prosecution witness did not attribute any specific injury to accused, but a joint role of making fire shots upon the deceased by co-accused, who had since been acquitted, was assigned by him---Evidence of co-accused who had since been acquitted was in conflict with the story narrated by the prosecution in the F.I.R., and with the statement of other eye-witness---Prosecution witness implicated as many as 10 accused persons in the occurrence, but the Trial Court had awarded death penalty only to the accused, who was assigned a joint role of inflicting firearm injuries on various parts of body of the deceased along with the acquitted co-accused---Prosecution had failed to prove any motive against accused---Recovery of pistol .30 bore on the pointation of accused was inconsequential because the report of Forensic Science Laboratory was only to the effect same was in working order---In absence of matching report of the empty with said pistol, alleged recovery of said pistol was immaterial---Prosecution in circumstances, could not prove its case against accused beyond the shadow of doubt---If the statement of accused was accepted as a whole, then accused had the right of private defence of his body which also extended to cause death of assailant as provided under S.100 of P.P.C.---Impugned judgment passed by the Trial Court was set aside---Conviction and sentence of accused were also set aside and he was acquitted from the charge and was released, in circumstances.

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

----S. 342---Penal Code (XLV of 1860), S.302(b)--- Qatl-i-amd--- Examination of accused---Statement of accused, acceptance or rejection of---Even, if accused had himself admitted in his statement recorded under S.342, Cr.P.C. that he committed the murder of the deceased, but, that had no force, because, if the prosecution evidence was disbelieved by the court, then the statement of an accused was to be accepted or rejected as a whole---Court could not accept the inculpatory part of the statement of accused, and reject the exculpatory part of the same statement---Prosecution evidence having already been discarded by the Trial Court, accused could not be awarded punishment on the basis of his statement recorded under S.342, Cr.P.C. by accepting the inculpatory part of said statement, and by rejecting exculpatory part of the same statement.

Muhammad Asghar v. The State PLD 2008 SC 513; Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and Ghulam Qadir v. East Khan 1991 SCMR 61 rel.

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

----S. 417(2-A)---Penal Code (XLV of 1860), S.302(b)--- Qatl-i-amd--- Appeal against acquittal of co-accused---Main accused was acquitted from the charge---Prosecution evidence having already been disbelieved while discussing the case of main accused, appeal against acquittal of co-accused, was also dismissed, in circumstances.

Sultan Ali Dogar for Appellants.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Mian Tariq Hussain for the Complainant.

Date of hearing: 22nd October, 2013.

2015 Y L R 500

[Lahore]

Before Amin-ud-Din Khan, J

MUNIR ALAM and 2 others---Petitioners

Versus

MEHBOOB ALAM---Respondent

Civil Revision No.1156 of 2006, heard on 29th January, 2013.

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

----Arts.132 & 133---Fact not cross-examined---Effect---Portion of statement which remained unchallenged in cross-examination is presumed to have been accepted by other party.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.72 & 85---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Mutation, assailing of---Official record---Custody---Plaintiff assailed mutation of gift on the plea that he transferred 28 Kanal of land which was fraudulently shown as 58 Kanal in revenue record---Both the courts below concurrently decided the matter in favour of plaintiff---Validity---Original application moved by plaintiff before Tehsildar came from the custody of plaintiff himself and it was the only document on the basis of which plaintiff claimed that he had agitated matter before attestation of mutation but the application had not come from proper custody---If the application was marked by Tehsildar to Patwari, then it should have been in the custody of Patwari, as it came from the custody of plaintiff himself, therefore, question was put to plaintiff's witness that the application was marked in ante-date---When a document was not confidence inspiring, as it had not come from proper custody, therefore, whole reliance could not be placed upon such document---Reliance made by both the Courts below on application of plaintiff was not in accordance with law---Plaintiff admitted in cross-examination that possession of 58 Kanals of land had been with defendants since attestation of mutation---Afterwards plaintiff tried to give some explanation but admission remained there---When plaintiff challenged entries of mutation attested in due course of law and mutation itself as well as report of Roznamcha, which supported attestation of mutation, and when statements of witnesses of defendants fully proved valid attestation, then findings recorded by both the Courts below were not sustainable under law---High Court in exercise of revisional jurisdiction reversed the findings and set aside judgments and decrees passed by both the Courts below, resultantly suit filed by plaintiff was dismissed---Revision was allowed in circumstances.

Zahid Hussain Khan for Petitioners.

Syed Samar Hussain and Syed Tahir Abbas Rizvi for Respondent.

Date of hearing: 29th January, 2013.

2015 Y L R 516

[Lahore]

Before Abdus Sattar Asghar, J

ZEPHYR TEXTILES LTD. through Manager Finance---Petitioner

Versus

SITARA TEXTILE INDUSTRIES LTD. through Company Secretary---Respondent

Civil Revision No.2487 of 2013, decided on 28th November, 2013.

(a) Interpretation of statutes---

----New enactment---Presumption---While framing new enactment legislature is well aware of law in field---Provisions in different Acts on the same subject may be read together in a complementary manner so that they do not create contradictions in the same field.

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

----S.19---Suit for specific performance of contract---Alternate relief---Compensation for breach of contract---Scope---Trial Court allowed plaintiff to add plea for compensation in his suit for specific performance of contract---Validity---Any person suing for specific performance of a contract could also ask for compensation for its breach, either in addition to or in substitution for such performance---Plea of plaintiff seeking compensation in addition to specific performance of contract could not be termed as illegal---No legal infirmity, irregularity or jurisdictional error in the order passed by Trial Court was found---High Court, in exercise of revisional jurisdiction, declined to interfere in order passed by Trial Court---Revision was dismissed in circumstances.

Syed Waqar Husain Naqvi for Petitioner.

2015 Y L R 544

[Lahore]

Before Abdus Sattar Asghar, J

HASSAN ALI GONDAL and others---Petitioners

Versus

Messrs KARIM ENTERPRISES---Respondent

Civil Revision No.1498 of 2013, decided on 12th June, 2013.

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

----S.24---Punjab Rented Premises Act (VII of 2009), Ss. 15 & 22---Constitution of Pakistan, Art. 10-A---Application for eviction of tenant---Transfer of eviction application---Bias in Rent Tribunal---Scope---Tenants filed application for transfer of eviction application which was dismissed by the District Judge---Contention of the tenants was that Rent Tribunal was biased against them---Petitioners had attributed bias on account of dismissal of their applications by the Rent Tribunal---Mere fact that Rent Tribunal had decided interlocutory applications against the petitioners was not sufficient to establish bias---Interim orders passed on applications were amenable to revisional jurisdiction---Nothing was on record to show that orders on applications were passed with mala fide or for consideration---Wrong order passed by the court in good faith would not furnish ground of bias---Petitioners had not been able to attribute bias---Nothing was on record to show that principles of natural justice were violated by the Rent Tribunal---Proceedings in the eviction petition were required to be conducted expeditiously---Short adjournments were hardly ground to attribute bias---Bona fide expeditious proceedings could not give cause of grievance to move for transfer of the eviction petition---District Judge had passed the impugned order through lawful exercise of jurisdiction---No jurisdictional error, factual or legal infirmity or irregularity was found---Revision was dismissed.

Miss Benazir Bhutto v. The President of Pakistan and another 1992 SCMR 140 rel.

(b) Bias in Judge---

----Scope---Every citizen of Pakistan had right of fair trial by judicial minded person not functioning under influence---No golden scale was available to weigh the bias of a judge, however, question was whether particular judge was possessing judicial conscious---Circumstances of case could speak volumes for the bias---Judge might have bias in the subject matter which meant that he was himself a party or had connection with the litigation---Pecuniary interest of judge was also kind of bias---Judge might have personal bias towards party.

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and others (1968) 3 All ER 304 rel.

Syed Kazim Bukhari for Petitioners.

2015 Y L R 580

[Lahore]

Before Shahid Hameed Dar and Arshad Mahmood Tabassum, JJ

ZAFAR MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.110 of 2014, decided on 8th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, acts done by several persons in furtherance of common intention---Suspension of sentence---Complainant had disowned the contents of complaint while her son stated in his testimony that he had not seen any of the accused on the spot---Observations recorded by Trial Court regarding guilt of accused would be open to serious reconsideration during adjudication of appeal---Sentence of accused was suspended.

Hafiz Tanveer v. The State and another PLD 2010 Lah. 156; Abdul Rehman v. The State and another 2008 SCMR 1381 and Raja Shamshad Hussain v. Gulraiz Akhtar and others PLD 2007 SC 564 ref.

Tanveer Iqbal for Appellant.

Ch. Qaiser Mushtaq, Assistant District Public Prosecutor for the State.

Raja Guftar Ahmad Khan for the Complainant.

Muhammad Nadeem Khan P.W. in person.

2015 Y L R 595

[Lahore]

Before Atir Mahmood, J

MANZAR SHAH alias MANZAR HUSSAIN NAQVI---Petitioner

Versus

Ch. SHAFQUAT HUSSAIN and 2 others---Respondents

Writ Petition No.6372 of 2012, decided on 6th August, 2014.

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

----S. 13---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Default in payment of rent---Denial of relationship of landlord and tenant by the tenant---Scope---Contention of tenant was that he was tenant of brother of landlord---Eviction petition was accepted concurrently---Validity---Tenant could not produce any document in favour of brother of landlord on the basis of which he could be presumed to be owner of demised premises---Litigation between landlord and his brother could neither change the scene that landlord was owner of demised premises nor same could give any right to the tenant to ask the landlord to bring a clearance certificate from the court---Landlord was owner of demised premises and mere filing of suit against him did not deprive him from such status until and unless proved otherwise---Tenant had contumaciously denied the relationship of landlord and tenant and became a party to the litigation between two brothers and tried to get undue benefit from such litigation---Tenant had failed to prove the alleged rent agreement with the brother of landlord---Rent Controller was not supposed to decide the ownership of demised property---No gross illegality, irregularity, jurisdictional defect or mis-reading and non-reading was pointed out in the impugned judgments passed by the courts below---Constitutional petition was dismissed in circumstances.

Khurram Shuja v. Mst. Kishwar Zia and another 2010 CLC 1557; Peer Bakhsh v. Additional District Judge, Multan and 2 others 2005 CLC 1700; Hameed Jilani Tiwana v. Abdul Aziz Ghafoor Khan and 2 others 2005 MLD 1232; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; Anjum Niaz Chuahdry and 8 others v. Managing Director, Sui Northen Gas Pipeline Limited and 2 others 2011 MLD 1402 and Muhammad Akbar Shah v. Federation of Pakistan through Secretary Ministry of Information and Broadcasting and 5 others 2011 MLD 1484 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction of High Court against concurrent findings could not be exercised unless there was gross illegality, irregularity, jurisdictional defect or misreading and non-reading on the record.

Rana Liaquat Hussain for Petitioner.

Islam Ali Qureshi for Respondents.

Date of hearing: 26th May, 2014.

2015 Y L R 619

[Lahore]

Before M. Sohail Iqbal Bhatti, J

RIAZ AHMAD---Petitioner

Versus

PAKISTAN RAILWAY through Divisional Superintendent Railways and 4 others---Respondents

Writ Petition No.4842 of 2014, decided on 9th June, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Lease, extension of---Contractual obligation---Scope---Mala fide---Effect---Discretionary relief---Policy framed by department, annulment of---Scope---Petitioner was directed to hand-over the possession of land leased out to him after expiry of lease period---Contention of petitioner was that he was entitled for another period of lease and impugned letter was based on mala fide---Validity---Petitioner should have demonstrated that there existed clear and undisputed right or interest in his favour to be recognized and respected to seek enforcement of corresponding obligations through a writ of mandamus---Relief sought by the petitioner could only be granted in a suit for specific performance of contract---Contractual obligations or disputes were not open to scrutiny under constitutional jurisdiction which could be redressed through other remedy available under the law---Respondent-department had formulated a policy that land should not be leased out for a period of more than 03 years and no further extension beyond 10 years would be granted in case of already leased land---Impugned letter had been issued in pursuance to the policy formulated by the competent authority and same had been made applicable throughout the country---Mala fide was a question of fact and same had to be specific and not vague in absence of which policy framed by the competent authority could not be annulled---Respondent-department had received a higher bid for the lease of land against the amount being paid by the petitioner---Discretionary relief could not be granted to help retention of ill-gotten gain even where the impugned action had been taken in deviation of certain recognized norms and procedures---High Court in absence of any illegality, arbitrariness or mala fide would not annull the policy framed by the competent authority---Constitutional petition was dis-missed in circumstances.

Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823 and Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 ref.

Messrs Airport Support Services v. The Airport Manager, Quid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Owaisco v. Federation of Pakistan and others PLD 1999 Kar. 472 and Dossani Travels (Pvt.) Ltd., and others v. Messrs Travels Shop (Pvt.) Ltd., and others PLD 2014 SC 1 rel.

(b) Words and phrases---

---"Vested right"---Meaning.

Oxford English Dictionary rel.

Rana Asif Saeed for Petitioner.

Rana Muhammad Shakeel for Respondents.

Date of hearing: 9th June, 2014.

2015 Y L R 629

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Miss Aaalia Neelum, JJ

NASIR ABBAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1660 and Capital Sentence Reference No.40-T of 2010, heard on 16th December, 2013.

Penal Code (XLV of 1860)---

----S.302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, act of terrorism---Appreciation of evidence---Benefit of doubt---Motive ascribed in the case was not substantiated by any cogent reasoning, rather same remained shrouded in mystery---Two independent witnesses, who stated that they knew nothing about the occurrence, were declared hostile, and despite lengthy cross-examination, the prosecution had failed to detect anything out of their statements favouring the prosecution case---Complainant who was closely related to the deceased, and had also failed to establish his presence at the place of occurrence at the relevant time, his statement was pregnant with material lacunas---Complainant, in order to bring his case closer to the medical evidence, had made material improvements, which had shattered his testimony---Ocular account was belied by the medical evidence---Empties, recovered from the place of occurrence, were dispatched to the Office of Forensic Science Laboratory after about 18 days of recovery of crime weapon---Ocular account was always deemed to be principal evidence, and all the other material evidence, which was recorded/collected at a belated stage, was considered as corroboration---When ocular account was not confidence inspiring, and left room for suspicion, other attending circumstances in the shape of corroboration, had to be scrutinized with care and caution before giving due weight---Possibility existed that someone else had committed the occurrence, which was apparent from the number of injuries on the person of deceased; and possibility of false implication of accused, in the case could not be ruled out---Prosecution had failed to satisfy on number of other characteristics of the case---Prosecution having not been able to establish its case against accused, conviction passed against accused by the Trial Court, in circumstances, was against all canons of law recognized for the dispensation of criminal justice---Extending benefit of doubt to accused; his conviction and sentence, were set aside, he was acquitted of the charges and was directed to be released in circumstances.

Hadi Bakhsh v. The State PLD 1963 Kar. 805; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Ali Sher and others v. The State 2008 SCMR 707; Muhammad Farooq and another v. The State 2006 SCMR 1707; 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 ref.

Sardar Khurram Latif Khan Khosa and Muhammad Inayat Ullah Cheema for Appellants.

Tariq Javed, DDPP for the State.

Asghar Ali Gill for the Complainant.

Date of hearing: 16th December, 2013.

2015 Y L R 663

[Lahore]

Before Mehmood Maqbool Bajwa and Mirza Viqas Rauf, JJ

MUHAMMAD MUMSHAD NADEEM and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.993 and 1001 of 2007, heard on 15th January, 2015.

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

----S.342---Statement of accused---Audi alteram partem, principle of---Examination of accused under S.342, Cr.P.C. is based on principle of audi alteram partem and is not a formality keeping in view the use of expression "shall" in later part of S.342(1), Cr.P.C.---Whole incriminating evidence has to be put to accused in order to rely upon evidence oral as well as documentary, to base conviction.

Asif Ali Zardari and another v. The State PLD 2001 SC 568 rel.

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

----S.9(a)(vi)---Criminal Procedure Code (V of 1898), S.342---Corruption and corrupt practice, misuse of authority---Appreciation of evidence---Statement of accused under S.342, Cr.P.C.---Failure to put all incriminating evidence---Accused were convicted and sentenced by Trial Court for committing offence of corruption and corrupt practice---Plea raised by accused persons was that whole incriminating evidence led by prosecution was not put to them in their statements under S.342, Cr.P.C. and as such documents banked upon by Trial Court to record conviction---Validity---Omission on the part of Trial Court prejudiced the case of accused and such omission was an irregularity which could not vitiate trial---High Court set aside conviction and sentence awarded to accused and case was remanded to Trial Court to re-record statements of accused under S.342, Cr.P.C. and then decide reference in accordance with law---Appeal was allowed in circumstances.

Sher Muhammad Baloch v. The State and another 2008 SCMR 32 and Muhammad Shah v. The State 2010 SCMR 1009 rel.

Ijaz Feroze for Appellants.

Qazi Misbahul Hassan and Mian M. Waseem for Appellants.

Ch. Nadir Manzoor Duggal, A.D.P.G. for the State.

Date of hearing: 15th January, 2015.

2015 Y L R 684

[Lahore]

Before Mahmood Ahmad Bhatti, J

Mst. SHAZIA---Petitioner

Versus

SOHAIL NAZIR KHAN---Respondent

Transfer Application No.98-C of 2013, decided on 17th March, 2014.

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

----Ss. 12-A & 25-A---Plaintiff (wife) filed suit for maintenance, recovery of dower as well as recovery of dowry articles against the defendant (husband) in the court at place 'G', while defendant as a counterblast had instituted a suit for restitution of conjugal rights against the plaintiff in the court at place `L'---Plaintiff (wife) pleaded danger to her life, inconvenience and risk of passing contradictory judgments by the Courts---Validity---Held, it was not easy for a lady to travel alone to another District to pursue a case and would have to bear the travel expenses; it was always desirable that family suits were tried, heard and decided by one and the same court so as to avoid conflicting judgments---Suit of the defendant pending in the court at place 'L' was directed to be withdrawn and transferred to the Family Court at place 'G', where the suits of the plaintiff were pending---Suit for maintenance instituted by the plaintiff has not been decided within six months, as was required under S. 12-A of the West Pakistan Family Courts Act, 1964, therefore, Judge Family Court was directed to make sure that the proceedings in both the suits were carried out expeditiously, bringing them to a close within a month---Order accordingly.

Nemo for the parties.

2015 Y L R 698

[Lahore]

Before Mahmood Ahmad Bhatti, J

SAQLAIN ASAD---Petitioner

Versus

The STATE and 4 others---Respondents

Criminal Transfer Application No.60-T of 2013, decided on 6th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), Ss.302, 148, 149 & 109---Notification No.7886/RHC/MIT dated 25-5-1999---Qatl-i-amd, rioting, common object, abetment---Transfer of case---Offence having been committed in the area of Police Station at place 'C', FIR stood registered against accused and their trial was being held at place 'C'---On the application of accused, trial court at place 'C' to which case was entrusted, transferred case to the court at place 'S'---Complainant had filed petition under S.526, Cr.P.C. for transfer of case in court at place 'C'---Accused were indicted for murder of two persons, it was genuine concern of the complainant and the witnesses that their life would be in danger if they had to go to place 'S' on various dates of hearing---Offence having been committed at place 'C', if the trial was to be concluded swiftly, it would be convenient for the complainant and his witnesses to appear at place 'C'---Other FIR had also been registered against accused, and their trial in that case was being held at place 'C'---Accused apprehended that, if their trial would be held at place 'C', they would be done to death by the complainant party---Apprehension of accused persons was baseless, as there was no evidence to substantiate their allegations/ apprehension---Option as granted by Notification No. 7886 RHC/MIT dated 25-5-1999, was to be exercised before the case was sent up by the Magistrate for trial before the Sessions Judge, but no such wish was expressed by accused before the Magistrate nor such demand was made before the Sessions Judge.

Ch. Khawar Saddique Sahi for Petitioner.

Mian Abdul Qayyum A.P.G. and Muhammad Yar, S.I. for the State.

Mian Mehmood Rashid for Respondents Nos. 2 to 5.

2015 Y L R 709

[Lahore]

Before Mehmood Maqbool Bajwa, J

LIAQAT ALI---Petitioner

Versus

AITZAZ AHMAD and another---Respondents

Writ Petition No.30975 of 2012, decided on 24th April, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6, 24(1)(2) & 25---Constitution of Pakistan, Art.199---Suit for pre-emption---Constitutional petition---Failure of the court to order pre-emptor to deposit one-third of sale price---Effect---Scope and application of proviso to subsection (1) of S.24 of the Punjab Pre-emption Act, 1991---Trial Court did not make order directing pre-emptor to deposit one-third of the sale price on the date of institution of suit---Validity---Under S.24(1) of the Punjab Pre-emption Act, 1991 period for deposit of one-third of sale price of property should not exceed 30 days of filing of the suit---Word 'require' had been used in S.24(1) of the Punjab Pre-emption Act, 1991 to cast duty and obligation upon the court to make a formal order of deposit of one-third sale price---Court must pass an order demanding pre-emptor to deposit one-third amount of sale price within the time fixed by the court---Duty of the pre-emptor was subject to the mandate of court to deposit the amount in order to entail (attract) penal provisions of S.24(2) of the Punjab Pre-emption Act, 1991---Court in the present case, on the date of institution of suit did not make order directing the pre-emptor to deposit one-third of sale price---Period of 30 days for depositing one-third of sale price by pre-emptor under S.24(1) of the Punjab Pre-emption Act, 1991 shall be reckoned from the date of order of the court to deposit the one-third of sale price---First proviso to S.24(1) of the Punjab Pre-emption Act, 1991 shall come into operation where appropriate direction had been made by the Trial Court---In view of maxim 'actus nemini facit injuriam' pre-emptor should not be held liable due to act of the court---Non-suiting the pre-emptor, would amount to make the expression 'court shall require the plaintiff' redundant against intention of legislature---Penal provisions of S.24(2) of the Punjab Pre-emption Act, 1991 were not attracted to present case as pre-emptor had deposited the amount within 30 days of the passing of the of the order requiring the pre-emptor to deposit one-third of sale price---Impugned order was set aside---Suit of the pre-emptor was held to have been pending before the Trial Court.

Ladha Khan and others v. Mst. Bhiranwan 2001 SCMR 533; Nabi Ahmed and others v. Muhammad Arshad and others 2008 SCMR 1685; Hasnain Nawaz Khan v. Ghulam Akbar and another PLD 2013 SC 489; Muhammad Aziz v. Akhtarain Begum 2004 SCMR 1709; Khurshid Bibi through Muhammad Din v. Shahbaz Ali 2006 CLC 1579 and Inam-ul-Haq v. Muhammad Ali Shaheen and another 2013 CLC 904 ref.

Khalid Mehmood v. Abdur Rasheed and another 2000 YLR 1249 rel.

(b) Maxim---

----"Actus nemini facit injuriam"---No one should suffer from an act of the court.

Irshad Ahmad Cheema for Petitioner.

Muhammad Mahmood Chaudhry for Respondent No.1.

2015 Y L R 721

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

AMIR MASIH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 10460-B of 2014, decided on 7th August, 2014.

Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Manufacture of intoxicant and owning or possessing intoxicant---Bail, grant of---Accused as per FIR was alleged to be carrying 45 bottles of imported liquor in one carton for own consumption and sale---In absence of a specific purchaser, allegation against accused qua sale required recording of evidence---Prima facie, case against accused, fell under Art.4 of Prohibition (Enforcement of Hadd) Order, 1979, which was a bailable offence---Accused was behind the bars since 23-6-2014, the date of his arrest---Investigation of the case being complete, no useful purpose would be served for detaining accused in jail for indefinite period---Accused was admitted to bail, in circumstances.

Muhammad Tanveer Chaudhry for Petitioner.

Sarfraz Ahmad Khatana, Deputy Prosecutor General.

Iftikhar S.I. with record.

2015 Y L R 735

[Lahore]

Before Abdul Sami Khan, J

SAED RASOOL and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.260 and Criminal Revision No.149 of 2009, heard on 21st April, 2014.

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

----Ss. 302(b) & 34---Qatl-e-amd---Appreciation of evidence---Mere relationship of deceased with witness would not be sufficient to discard testimony of such witnesses, especially in the absence of any malice or ill-will against accused persons---Statements of eye-witnesses were consistent and they remained unshaken in the face of lengthy cross-examination---Occurrence happened in broad daylight and parties were known to each other so question of mistaken identity could not arise---Witnesses, being real brother of deceased, was not likely to let off real culprits and implicate someone else falsely---Prosecution story might not have been supported by independent witnesses as strangers hesitated to give testimony in order to avoid enmity and accused persons inflicting danda blows to deceased had been mentioned in FIR---Medical evidence corroborated ocular account---Co-accused being brother of main accused might have been involved falsely due to trend in society to entangle maximum persons of rivals---Alleged knee injury on the body of deceased could not be found in medical examination---Deceased might have suffered abrasion as he fell on the ground; co-accused did not repeat blow so recovery of blood-stained danda could not be believed against such co-accused who was acquitted while giving him benefit of doubt---Conviction and sentences of main accused who inflicted danda blows on the head of deceased were upheld.

Muhammad Mansha v. The State 2001 SCMR 199; Samano v. State 1973 SCMR 162 and Riaz Hussain v. The State 2001 SCMR 177 rel.

(b) Criminal trial---

----Benefit of doubt---Single circumstance creating doubt was sufficient for acquittal of accused---Benefit of doubt must go to accused not as a matter of grace but of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Hassan Raza Pasha and Raja Ghaneem Aabir Khan for Appellants.

Muhammad Usman, Deputy Prosecutor General for the State.

Muhammad Shoaib Abbasi for the Complainant.

Date of hearing: 21st April, 2014.

2015 Y L R 757

[Lahore]

Before Amin-ud-Din Khan, J

MUSHTAQ AHMAD and another---Petitioners

Versus

GOVERNMENT OF PUNJAB through Land Acquisition Collector Industries, Punjab and 4 others---Respondents

Writ Petitions Nos.11216, 7605, 16361, 6971 and 15263 of 2013, heard on 19th March, 2014.

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

----Ss. 40, 41 & 42---Constitution of Pakistan, Art. 199---Constitutional petition---Scope---Acquisition of land---Previous inquiry---Extension of plant of company---Public purpose---Scope---Contention of petitioners was that land was not acquired for the extension of existing plant of company---Validity---High Court, under its constitutional jurisdiction, could not dilate upon the matter of disputed facts---Complete feasibility report was submitted to the Land Acquisition Collector (Industries) which was expansion of existing plant, installation of fresh plant and coal power plant for generation of electricity---Previous inquiry was conducted and plan was submitted before the Industries Department which was for "public purpose"---Agreement was entered by the company with the Government and same was notified and published in the official gazette---Provincial Government had prerogative to determine the "public purpose"---Rights of land owners were protected and Government could resume back the land from the company if same was not acquired for the purpose for which land was being acquired---When Commissioner had agreed with the reasons given in the inquiry then there was no further requirement for him to give reasons for agreeing with such inquiry---Reasons would have been necessary in case of disagreement with the findings of inquiry---Commissioner was not bound to pass a detailed order agreeing with the inquiry report---No defect was found in conducting the acquisition proceedings---Constitutional petition was dismissed in circumstances.

Ghulam Bhik v. Government of West Pakistan through Secretary, Revenue Department, Lahore and 3 others PLD 1973 Lah. 617; Suo Motu Case No.13 of 2007 PLD 2009 SC 217 and Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another PLD 2008 SC 335 rel.

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

----S. 12---Freezing of property---Scope---Order passed by the Chairman National Accountability Bureau with regard to freezing of property could not remain in field for an indefinite period.

A.D. Bhatti for Appellant.

Muhammad Siddique Kamyana for Petitioners (in Writ Petition No.15263 of 2013).

Bilal Saeed for Petitioners (in Writ Petitions Nos.16361 and 6971 of 2013).

Rizwan Mushtaq, Ishfaq Qayyum Cheema, Waqar Ahmad Ch. A.A.-G., Mushtaq Hussain, Colony Assistant and Muhammad Afzal Khan, Assistant for Land Acquisition Collector for Respondents.

Date of hearing: 19th March, 2013.

2015 Y L R 782

[Lahore]

Before Arshad Mahmood Tabassum, J

MAHDI HASSAN alias GHULAM ABBAS and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revisions Nos.396 of 2010 and 356 of 2011, heard on 6th November, 2013.

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

----S.302---Qanun-e-Shahadat (10 of 1984), Arts. 133 & 140---Murder trial---Previous statement, confronting with---Accused during cross-examination of prosecution witness wanted to confront him with report made by him at police station but Trial Court disallowed such question---Validity---As the report was lodged by that prosecution witness, therefore, he was the relevant person from whom question pertaining to that report could be asked during cross examination, being the person who lodged report in question---Contents of report in question fell within the ambit of "previous statement" as mentioned in Art. 140 of Qanun-e-Shahadat, 1984, and as it was official register and entries therein were made in discharge of official duties, which if relevant concerning a fact in issue, could be used and brought on record under Art. 140 of Qanun-e-Shahadat, 1984---Trial Court erroneously disallowed question by accused regarding filing of report in police station---Revision was allowed accordingly.

Dr. Iftikharul Haq v. The State and others 1990 PCr.LJ 1677 and Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65 rel.

(b) Criminal trial---

----Evidence--- Defence evidence---Affidavits in police file---Principle---Mere transfer of such affidavits from police files to judicial record would have not served any useful purpose---If any deponent of such affidavit was produced as defence witness, the affidavit sworn by that person would be detached from police file and placed on judicial file, if such deponent had owned and proved such affidavits.

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

----S.302---Constitution of Pakistan, Art.10-A---Criminal Procedure Code (V of 1898), Ss.265-F---Murder trial---"Fair trial" and "due process of law"---Summoning of material witness---During trial accused wanted to summon record keeper of Excise and Taxation Office to prove ownership of motorcycle recovered during investigation---Trial Court refused to summon record keeper on the ground that it was an attempt to delay the trial---Validity---Record keeper could not have been refused to be summoned by holding that application was made to cause delay in disposal of case---Office of Excise and Taxation Officer was located in the same city where matter was pending before Trial Court and the same could not cause any delay in disposal of the case, if relevant record could have been summoned with record keeper---Such order of Trial Court resulted in miscarriage of justice---Accused was entitled to fair trial and due process and order passed by Trial Court had denied right of fair trial to accused---High Court directed Trial Court to summon record keeper with relevant record and to afford opportunity to accused to place the record on file---Revision was allowed accordingly.

Sheikh Muhammad Rafique Goeraja for Petitioners.

Muhammad Javed Hashmi for the Complainant.

Shaukat Ali Ghauri, Additional Advocate General for the State.

Date of hearing: 6th November, 2013.

2015 Y L R 789

[Lahore]

Before Amin-ud-Din Khan, J

Mehr MUHAMMAD HAYAT and others---Appellants

Versus

TAHIR HANIF and others---Respondents

R.S.A. No.3 of 2005, heard on 25th February, 2014.

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

----Arts. 117 & 120---Fact, proof of---Onus to prove---Shifting of onus---Principle---When a person comes to Court with a prayer to grant decree, it is his primary duty to prove case pleaded by him---In some cases, shifting of onus to prove facts to other party is also recognized by law but even then primary duty is of plaintiff to bring evidence in support of his claim, if his claim has not been admitted by other side in pleadings.

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

----S.8---Limitation Act (IX of 1908), Art.136---Qanun-e-Shahadat (10 of 1984), Art.85---Suit for recovery of possession---Recovery of possession by vendor---Limitation--- Revenue record--- Proof---Plaintiff purchased a plot on 23-7-1971 but in demarcation proceedings by revenue authorities it was established that plaintiff had taken possession of some other plot which possession was returned---Plaintiff on 29-1-1991 filed recovery of possession of his plot against defendants which suit was dismissed by Trial Court but Lower Appellate Court in exercise of appellate jurisdiction decreed the suit in favour of plaintiff---Validity---Documentary evidence which consisted of demarcation report; copies from record prepared by Patwari; and reports of revenue officials, were not per se admissible---When defendants were not associated at the time of demarcation proceedings and authors of demarcation proceedings and other documents which consisted of reports, were not produced before the Court to prove those documents, such documents had no evidentiary value and could not be read in evidence against defendants---Plaintiff was entitled to possession on the date when sale took place in his favour, therefore, suit was time-barred---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed in circumstances.

Muhammad Nawaz and 2 others v. Zafar Saeed and 14 others 2006 CLC 1488; Pervez Ahmad Khan Burki and 3 others v. Assistant Commissioner, Lahore Cant and 2 others PLD 1999 Lah. 31 and Hari Bhusan Halder v. Sheikh Abdul and others AIR 1927 Calcutta 54 rel.

(c) Limitation---

----Extension---Principle---No Court can extend or enhance period of limitation prescribed by law for filing any other proceeding before proper forum, if the proceedings have been filed in wrong forum.

Saeed-uz-Zafar Khawaja and Ch. Muhammad Naseer for Appellants.

Ch. Khurshid Ahmad for Respondent No.1.

Date of hearing: 25th February, 2014.

2015 Y L R 805

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

DILAWAR MEHMOOD alias DULLI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.2830 and Capital Sentence Reference No.75-T of 2010, heard on 11th February, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21(L)---Qatl-i-amd, act of terrorism---Appreciation of evidence---Sentence, reduction in---FIR was promptly lodged which had excluded every doubt that the complainant had deliberated or consulted anybody before the registration of the case---Parties being known to each other before the incident, question of mistaken identity of accused persons, did not arise---Nothing had been deposed as to motive of the case---Ocular account, had been found hinging upon the statements of the complainant, the real brother of the deceased and other prosecution witness, not related to the complainant party, whereas other eye-witness, was renounced as being unnecessary by the prosecution---Defence failed to create any dent, or to uproot the presence of the prosecution witnesses at the place of occurrence at the relevant time---Accused and absconding co-accused, both held Kalashnikov at the relevant time, while riding a bike and mounted murderous assault, resulting in causing injuries to death of the deceased at the spot---Both after raising Lalkaras, had started firing on the deceased resulted in his death---Medical evidence also corroborated the ocular account---Prolonged, unexplained abscondence of accused, had been proved on the record, beyond shadow of reasonable doubt---Kalashnikov, was not sent to the office of Forensic Science Laboratory to ascertain about its present condition as to workability or otherwise---No crime empty was taken into possession from the spot, but was recovered after a period of about 2-1/2 years of the occurrence---Prosecution had proved its case beyond shadow of reasonable doubt against accused, but quantum of sentence could be reduced, for the reason, that; prosecution had not been able to pinpoint any particular injury caused by accused which had caused the death of the deceased---Quantum of sentences imposed upon accused, was commuted to imprisonment for life from death sentence---All other sentences awarded to accused would remain enforced and would run concurrently with benefit of S. 382-B, Cr.P.C.

Nasir and others v. The State 1998 MLD 2021 ref.

Shahid Shabbir for Appellant.

Nemo for the Complainant.

Khurram Khan, Deputy Prosecutor General for the State.

Date of hearing: 11th February, 2014.

2015 Y L R 822

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

BILAL HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.884 and 1202 of 2012, heard on 3rd February, 2014.

Penal Code (XLV of 1860)---

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Unexplained inordinate delay of about thirty two hours in lodging FIR, had caused eye brow-raising and signals at the mala fide of the complainant, which did no good to prosecution case---Prosecution witness did not corroborate the contents of FIR to the effect that he and his co-witness allegedly had seen alleged abductee in the company of accused---Minor/alleged abductee nowhere alleged in his testimony that he was kidnapped by accused, while holding a 'chhura' in his hand---Complainant had admitted that his minor son/abductee, on return to the house, did not bear any mark of violence/torture on his body---Police did not collect any call-data of cell-phone/SIM during investigation---Complainant, had admitted in his testimony to have some money dispute with the father of accused, on account of which he had lodged a criminal case against him regarding "dishonour of cheque"---Kidnapped child, did not paint an unblemished picture qua the prosecution case as testimonies in the case were inconsistent, discrepant and contradictory inter se, besides entailing countless improbabilities---Case with regard to involvement of accused appeared to be a cock and bull story---Conviction of accused and sentence, could not be maintained on quality of evidence---Conviction and sentence, awarded to accused by the Trial Court, were set aside, he was acquitted of the charge, and was released, in circumstances.

Kashif Saeed Bhatti for Appellant.

Hamayun Aslam, Deputy Prosecutor General Punjab for the State.

Omar Farooq Khan for the Complainant.

Date of hearing: 3rd February, 2014.

2015 Y L R 835

[Lahore]

Before Mazhar Iqbal Sidhu and Miss Aalia Neelum, JJ

MOHSIN ALI and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.13920-B of 2014, decided on 13th October, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.336, 337-A(i), 337-L(2), 337-H, 353, 186, 224, 225, 440, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Itlaf-i-Salahiyyat-i-udw, causing Shajjah-i-Khafifah, hurt, hurt by rash or negligent act, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, mischief committed after preparation made for causing death or hurt, rioting, common object, act of terrorism---Bail, grant of---Seven accused were not named in the FIR---Generalized allegations, had been levelled against only three accused---No specific allegation had been assigned to any one, except for being a member of mob---Question of common intention, was to be decided by the Trial Court after recording evidence---At bail stage; no definite conclusion could be drawn, as it needed deeper appreciation of evidence---No specific overt act, having been attributed to accused persons, they were admitted to bail, in circumstances.

Azam Nazeer Tarar for Petitioners.

Munir Ahmad Sial, Deputy Prosecutor General and Khalid, S.I. with record for the State.

Muhammad Tanveer Chaudhry for the Complainant.

2015 Y L R 853

[Lahore]

Before James Joseph, J

SHAHID MANZOOR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.778-M of 2014, decided on 2nd December, 2014.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S.417(2-A)---Limitation Act (IX of 1908), S.5---Dishonestly issuing a cheque---Appeal against acquittal---Limitation---Delay, condonation of---Applicability of S.5, Limitation At, 1908---Appeal against acquittal was filed with a delay of three days---Delay in filing of appeal against the acquittal, would be condoned in those cases where appellant was prevented by an act of accused to file appeal in time or was actually kept out of knowledge of the appeal---Reasons stated by appellant/petitioner in support of application for condonation of delay, were vague; and appellant had failed to make out case for condonation of delay in filing appeal---Provisions of S.5 of Limitation Act, 1908 were not applicable to appeal against acquittal.

Fakhar-ud-Din v. Fazal Karim and others 1999 SCMR 795; Aziz-ur-Rehman Hamid v. Crescent Commercial Bank 2008 SCMR 54; Messrs Pehlwan Marble Factory through Muhammad Asif v. The State and another 2011 PCr.LJ 200; Abdul Ghaffar v. Muhammad Asif and another 2011 PCr.LJ 441; Muhammad Sharif and others v. The State and others 2005 MLD 1333; Toshan v. Muhammad Saleh and 2 others 2008 MLD 187 and Sikandar v. Abdul Wahab and another 1998 PCr.LJ 1950 ref.

Rafique Ahmad Malik for Petitioner.

2015 Y L R 857

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD ASHIQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.453-J of 2009, heard on 4th July, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(iii), 337-F(i), 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd Ghayr-jaifah, Mutalahimah, damiyah, abetment, acts done by several persons in furtherance of common intention---Appreciation of evidence---Cross version---Duty of court---Court, in cross version case, was required to first analyse the prosecution case in order to ascertain its veracity or otherwise---Matter, in the present case, was reported to Police by delay of four hours and thirty minutes---Neither any doctor from the hospital where deceased was taken, appeared before the Trial Court nor any documentary evidence in that respect was brought on record---Story of shifting the deceased to hospital was belied by other prosecution witness who stated that deceased died on the spot---Delay of 12 hours in postmortem examination cast doubt on prosecution story and presence of witnesses at place of occurrence---Prosecution witnesses were chance witnesses as they did not belong to the village where occurrence had taken place---Witnesses stated that they had gone to the place of occurrence to attend birthday ceremony of the grand daughter of one 'RA' but could not disclose any relationship with said 'RA'---Said 'RA' did not appear before Trial Court---Prosecution story that witnesses had gone to the place of occurrence to attend the birthday party could not be proved at trial---Minor allegedly injured in the occurrence was taken to hospital two days after the occurrence---Motive alleged by prosecution was that deceased had refused to give hand of his daughter to complainant party but complainant could not disclose the name of the boy for whom hand of the daughter of deceased was sought---Motive was exclusively attributed to co-accused who had been acquitted by Trial Court---No appeal was filed against acquittal of co-accused---Motive attributed to co-accused could not be used against present accused---Arrest of accused and recovery of gun having been effected several days before/prior to receipt of empties in Forensic Science Laboratory, chances of padding could not be ruled out; such pieces of evidence could not be relied to maintain conviction of accused---Doubtful, defence version was required to be discussed---Appeal was allowed and accused was acquitted.

Ashiq Hussain v. State PLD 1994 SC 879 and Amin Ali v. The State 2011 SCMR 323 rel.

Barrister Sehr Khosa Defence Counsel at State expense for Appellant.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Complainant in person.

Date of hearing: 4th July, 2014.

2015 Y L R 890

[Lahore]

Before Shezada Mazhar, J

MUNEER AHMAD and another---Petitioners

Versus

MEMBER (JUDICIAL-III) BOARD OF REVENUE PUNJAB, LAHORE

and 14 others---Respondents

Writ Petition No.2981 of 2013, heard on 29th May, 2014.

West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Civil Procedure Code (V of 1908), O.XLVII, R.1---Constitution of Pakistan, Art.199---Constitutional petition--Review by Member Board of Revenue---Scope---Scope and application of S.8 of the West Pakistan Board of Revenue Act, 1957---Member, Board of Revenue accepted review petition against remand order passed by his predecessor---Validity---Scope of exercise of power of review in terms of O.XLVII, R.1, C.P.C. and S.8 of the West Pakistan Board of Revenue Act, 1957 was limited and interference would be made where the court was satisfied on discovery of new and important matter which, after exercise of due diligence was not within knowledge or could not be produced by party concerned at the time when decree was passed or order made on account of some mistake or error apparent on the face of the record or for any other sufficient reason---Section 8 of the West Pakistan Board of Revenue Act, 1957 did not empower the successor Member of Board of Revenue to re-hear the matter on merits as such member was not sitting in appeal or revision to correct the error in the order passed by the predecessor member---Impugned order was set aside---Constitutional petition was accepted.

Atta-ul-Manan Malik for Petitioners.

Rana Muhammad Hussain, Assistant Advocate General and Ch. Abdul Ghani for Respondents.

Date of hearing: 29th May, 2014.

2015 Y L R 898

[Lahore]

Before Sadaqat Ali Khan and James Joseph, JJ

GHULAM HAIDER---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.151 and Murder Reference No.13 of 2010, heard on 21st April, 2014.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---FIR having promptly been lodged had excluded the possibility of the substitution of accused---Prosecution had proved its case against accused through the evidence of eye-witnesses, who were cross-examined at length, but their evidence could not be shaken during cross-examination---Evidence of said witnesses was quite natural, trustworthy and confidence inspiring, which had been fully supported by the medical evidence---Case being of single accused, it was highly improbable that witnesses would let-off the real culprit and would falsely implicate accused for the murder of their close relative---Substitution in such like cases was a rare phenomenon---Complainant and other eye-witness who were close relatives of the deceased, had reasonably explained their presence at the spot; their evidence could not be discarded only on the point of mere relationship---Medical evidence fully supported ocular account furnished by prosecution witnesses---Recovery of pistol and empty on the pointation of accused being not acceptable, was discarded---Recovered crime empty and pistol, having been sent to Forensic Science Laboratory together, possibility of manufacturing of crime empty before their dispatch to the laboratory could not be ruled out---Trial Court had rightly discarded evidence of recovery of pistol---Motive was not proved in the case---Defence plea of accused was a vague statement---Certain mitigating circumstances in favour of accused were available to the effect that recovery of pistol from possession of accused had been disbelieved; that it was a case of single fire shot, and no allegation of repetition of firearm injury was levelled against accused; that prosecution evidence qua motive, had been disbelieved; that co-accused had been acquitted by the Trial Court by disbelieving the prosecution evidence; that as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence, which resulted into incident was not determinable and that death sentence awarded to accused was quite harsh---Accused was entitled to the benefit of doubt as an extenuating circumstance, while deciding the question of sentence---Conviction of accused under S.302(b), P.P.C. awarded by the Trial Court through impugned judgment, was maintained, but his sentence was altered from death to imprisonment for life, in circumstances.

Hasil Khan v. The State 2012 SCMR 1936 and Masood Aslam alias Shada v. The State 2002 PCr.LJ 1603 rel.

Meer Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmed Khan Barki v. The State 1993 SCMR 1660; Muhammad Ayaz Khan v. Murtaza and others 2008 SCMR 984 and Dilawar Hussain v. The State 2013 SCMR 1582 ref.

(b) Criminal trial---

----Witness---Relationship of a witness with the deceased---Effect---Mere relationship of a witness with the deceased, could not make the witness unworthy of reliance, if his testimony was corroborated by the independent evidence, or the circumstances appearing on the record.

Muhammad Sharif Bhatti for Appellants.

Ch. Imran Ashraf for the Complainant.

Asghar Ali Gill, D.P.G. for the State.

Date of hearing: 21st April, 2014.

2015 Y L R 922

[Lahore]

Before Miss Aalia Neelum, J

SHAUKAT ALI and others---Petitioners

Versus

Mst. HALEEMA BIBI and others---Respondents

Writ Petition No.17775 of 2009, decided on 1st April, 2014.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 13 & 8---Constitution of Pakistan, Art. 199---Constitutional petition---Consolidation of holdings---Revision before Board of Revenue or the Commissioner---Maintainability---Scope---Delay in filing appeal was condoned by Additional Deputy Commissioner (Consolidation) which remained unchallenged and same had attained finality---Order passed in any proceedings under West Pakistan Consolidation of Holdings Ordinance, 1960 by the Revenue or Consolidation Officer could be revised or modified by the Commissioner and Board of Revenue---Revision by the respondents before Board of Revenue or the Commissioner was maintainable in circumstances---Additional Commissioner (Consolidation), in the present-case, had confined himself up to the land possessed and owned by the respondents and the land given to the petitioners by the Consolidation Officer---Order with regard to modification in consolidation had been subsequently confirmed in revision by the Board of Revenue which was not open to any exception---Joint/mushtarka khata was divided and "Wandas" were prepared by the Consolidation Officer as per agreement between the parties---Parties were bound by their agreement and they could not revert from the same---Consent of the parties had been proved from record as they put their signatures/thumb impressions in token of its correctness---Revision and review petitions filed by the petitioners had been dismissed on findings of facts---No mistake had been pointed out in the impugned orders by the petitioners---High Court could only consider the question of jurisdiction or illegality committed by the lower forum---No jurisdictional error, illegality or irregularity was found in the impugned orders---Constitutional petition was dismissed in circumstances.

Ghulam Farid Sanotra for Petitioners.

Malik Mubarak Ali for Respondents.

Ashfaq Ahmad Kharal, Assistant Advocate General for the State.

2015 Y L R 932

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Muhammad Kazim Raza Shamsi, JJ

MUHAMMAD BASHIR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.596-T of 2004, Capital Sentence Reference No.3-T of 2005 and Criminal Appeal No.8 of 2005, heard on 18th February, 2014.

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

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Statement of injured prosecution witness as a gospel truth---Scope---Statement of injured prosecution witness, had to be scrutinized with care and caution---Statement if injured witness straightway could not be taken as a gospel truth in stricto sensu, rather it was required to be scrutinized with more care and caution while juxtaposing it with other independent circumstances; as after receipt of injury, vindictiveness would enhance due to the stamp of injuries; and hostility between the parties.

Mehboob ur Rehman v. The State 2013 SCMR 106 and Altaf Hussain and 4 others v. The State PLD 2000 Lah. 216 ref.

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

----Ss. 302, 324, 148, 149, 109 & 120-B---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object, criminal conspiracy, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused, at the relevant time was lodged in jail in another criminal case---Accused was alleged to have resorted to firing while armed with Kalashnikov, but nothing was recovered on his pointing out during the course of investigation---Complainant had admitted that all the prosecution witnesses of the case were either closely related to him or from his brotherhood---Complainant, at the time of lodging private complaint, had not attributed any specific role to accused, rather general allegations were levelled against him---Medical evidence and medico-legal reports of the injured witnesses, in isolation, could not be made basis for maintaining conviction in the case, in circumstances---Possibility of false implication of accused in the case, could not be ruled out---Prosecution witnesses who alleged conspiracy, had stated that they had overheard the conspiracy hatched by accused along with other accused much prior to the occurrence; but despite the fact that there existed enmity none of them had opted to disclose said conversation hatched by accused to the complainant party facilitating them to adopt safety measures for their defence---Prosecution witnesses had made such statements after due deliberation and consultation as an afterthought---Trial Court despite arriving at the conclusion that accused was not connected to the extent of provisions of S.302, P.P.C., convicted accused under S.7(a) of Anti-Terrorism Act, 1997---Similarly when ingredients of S.107, P.P.C., were not made out, conviction recorded by the Trial Court under provisions of S.109, P.P.C., would carry no legal sanctity---Major discrepancies, in the case, had created serious doubts in its authenticity---Conviction and sentence recorded by the Trial Court against accused, were set aside, extending him benefit of doubt, and appeal of accused, was accepted in toto, in circumstances.

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

----Ss. 302, 324, 148, 149, 109 & 120-B---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, rioting common object, criminal conspiracy, act of terrorism---Accused had not taken any specific plea qua his false implication in the case---Prosecution had to stand on its own legs, whereas, the defence had to show only glimpse---Prosecution could not take any benefit of weakness of defence plea---Even if accused did not lead to prove plea of his innocence, but version of accused receiving support to the extent of being reasonably possible from prosecution evidence---Accused was entitled to acquittal.

Jahangir Hayat v. The State PLD 1999 Lah. 285; Shera Masih and another v. The State PLD 2002 SC 643 and Mehboob-ur-Rehman v. The State 2013 SCMR 106 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---For extension of benefit of doubt, it was not necessary that there should be so many circumstances---If one circumstance was sufficient to discharge and bring suspicion in the mind of the court, that the prosecution had faded up the evidence to procure conviction, then the court could come forward for the rescue of accused.

Tariq Perveaz v. The State 1995 SCMR 1345 ref.

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

----Ss.302, 324, 148, 149, 109 & 120-B---Criminal Procedure Code (V of 1898), S.417(2-A)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object, criminal conspiracy, act of terrorism---Appeal against acquittal---Appreciation of evidence---Accused persons, though were nominated in the crime report, but only role of generalized nature was ascribed to them---No motive was attributed to accused persons for committing the occurrence---Trial Court, in circumstances, was justified in acquitting accused persons of the charge, extending benefit of doubt---Accused being favourable child of law, after his acquittal, presumption of his innocence would become double in his favour---Extraordinary circumstances should exist to warrant interference in acquittal---Appeal against acquittal of accused persons filed by the complainant, was dismissed, in circumstances.

Azam Nazeer Tarar and Mudassar Naveed Chatha for Appellant (Criminal Appeal No.596-T of 2004).

Fayyaz Ahmed Ranjha for Respondent No.2 (in Criminal Appeal No.8 of 2005).

Maqbool Ahmed Qureshi and Ms. Alia Sajid Gillani for Respondent No.1 (in Criminal Appeal No.8 of 2005).

Amjad Rafique, Deputy Prosecutor General for the State.

Raja Zahoor Ahmed, for the Complainant (in Criminal Appeal No.8 of 2005).

Date of hearing: 18th February, 2014.

2015 Y L R 952

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ARSHAD MEHMOOD ANWAR and others---Petitioners

Versus

MUHAMMAD IQBAL and others---Respondents

Writ Petition No.17324 of 2005, heard on 29th April, 2014.

Arbitration Act (X of 1940)---

----Ss. 14, 17 & 26-A---Constitution of Pakistan, Art.199---Constitutional petition--Award---Scope---Trial Court made award rule of court---Validity---Arbitrator neither recorded the version of petitioners nor evidence to resolve the dispute referred to him---No reasons were given for passing of award---Arbitrator passed the award on the basis of alleged oath on Holy Quran without authority of the agreement, travelling beyond his jurisdiction---Cursory glance of assigning the award by the Corut was not permissible under the law---Court was bound to minutely discuss every aspect of the award and evaluate the same to see whether award was capable of being endorsed or not---Arbitrator could not deliver award whimsically and could not act with partiality or unfairness---Arbitrator announced the award on the same day on which he was appointed showing lack of fair play---Under S.26-A of the Arbitration Act, 1940, arbitrator was obliged to announce award by assigning reasons and giving sufficient details to enable the court to consider any question of law arising out of the award---Arbitrator announced award without applying his judicial mind and failed to determine the real dispute---Evidence showed that arbitration agreement was scribed under coercion---Court below failed to consider that award announced by arbitrator was beyond the authority given to him by parties---Award was of no legal effect and could not be made rule of court---Impugned orders were set aside---Award was held to be pending before Trial Court for appointment of another arbitrator after obtaining consent of parties---Constitutional petition was accepted.

Baleegh-uz-Zaman Chaudhary for Appellants.

Irfan Aslam for Respondents.

Date of hearing: 29th April, 2014.

2015 Y L R 959

[Lahore]

Before Sayyed Mazhar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

BHAI KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.2469 and Murder Reference No.586 of 2010, heard on 17th February, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Crime report was got recorded without any conscious or deliberate delay---Complainant was real brother of the deceased, and other prosecution witness was his nephew---Both of them, though were closely related inter se as well as to the deceased, yet they had no motive to falsely implicate accused in a case of heinous offence---Merely such relationship of the prosecution witnesses, was not sufficient to discard their testimony, especially when their presence at the place of occurrence at relevant time was quite natural---Time and place of occurrence was not denied by the defence---Both said eye-witnesses remained consistent and firm regarding the stance qua role of accused in the episode---Said witnesses remained stuck to their version and despite lengthy cross-examination, nothing beneficial to accused could be derived by the defence---Statements by said eye-witnesses, were straightforward, coherent and trustworthy---Occurrence was a broad daylight incident and because of previous acquaintance of the parties, question of misidentification, would not arise---Acquitted co-accused had a case distinguishable from the accused---Trial Court had rightly sifted the grain from chaff and being satisfied, the complainant had not preferred any appeal against said acquittal of co-accused---Medical evidence, had fully corroborated the ocular account---No crime empty was collected by Investigating Officer from the place of occurrence---Crime weapon i.e. 12 bore gun, recovered at the instance of accused, was not sent to the Forensic Science Laboratory---In absence of report of the Laboratory, evidence of alleged recovery of crime weapon, could not provide corroboration to the rest of the prosecution case---Prosecution failed to prove the motive as alleged, however, having successfully proved its case through consistent and coherent ocular account, Trial Court had rightly convicted the accused----Mitigating circumstances in favour of accused existed, Firstly, alleged recovery of crime weapon at the instance of accused had been declared inconsequential; secondly, prosecution failed to prove motive, and real facts regarding the perpetration of murder of the deceased, could not be surfaced during the trial and thirdly, co-accused, who were assigned specific role, had been acquitted by the Trial Court, which had caused a dent in the prosecution case---Alternative sentence of imprisonment for life, which was also a legal sentence provided under S.302(b), P.P.C. to accused, would meet the ends of justice---Maintaining conviction of accused, his sentence was altered from death to imprisonment for life, benefit of S.382-B, Cr.P.C. was also awarded to accused, in circumstances.

Ijaz Ahmad v. The State 2009 SCMR 99; Israr Ali v. The State 2007 SCMR 525 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 ref.

Malik Rab Nawaz for Appellant.

Rai Munir Zafar Sanghera for the Complainant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

Date of hearing: 17th February, 2015.

2015 Y L R 1024

[Lahore]

Before Amin-ud-Din Khan and Shahid Bilal Hassan, JJ

Sheikh BASHIR AHMED---Appellant

Versus

MUNIR AHMED KHAN and others---Respondents

R.F.A. No.779 of 2002, heard on 10th February, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance on the basis of novation of contract---Scope---Plaintiff filed suit on the basis of contract which was dismissed as withdrawn and second suit was instituted on the basis of novation of the same which was dismissed by the Trial Court---Validity---Plaintiff filed suit on the basis of original agreement to sell which was dismissed as withdrawn on compromise between the parties---No fresh suit could be filed on the basis of same agreement to sell---Alleged novation of contract was "YADASHT" which did not contain reference of any previous agreement nor of suit land---Said "YADASHT" had been made on a simple paper whereas original agreement was upon stamp paper signed by the parties and witnesses---Said "YADASHT" was not novation of the contract and no suit could be filed on the basis of the same---Alleged "YADASHT" being not an independent contract and no stamp duty having been paid on the same had not been proved in accordance with Arts. 17 & 79 of Qanun-e-Shahadat, 1984---Plaintiff had not mentioned alleged "YADASHT" in the application for permission to withdraw the previous suit---Party in order to prove document and its execution on a specific date and time was required to prove the issuance of stamp paper, entry in the register of stamp vendor, writing of such document by producing scribe and entry of register of scribe---Findings recorded by the Trial Court were in accordance with law and facts on record---Appeal was dis-missed in circumstances.

Sh. Naveed Shahryar and Miss Humera Bashir Chaudhry for Appellant.

Ch. Imtiaz Ahmad Kamboh for Respondents Nos. 1, 6 and 7.

Date of hearing: 10th February, 2014.

2015 Y L R 1042

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD DIN ANJUM---Petitioner

versus

MUHAMMAD LATIF and others---Respondents

Civil Revision No.92-D of 2013, decided on 8th December, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs, performance of---Pre-emptor was bound to prove the performance of requisite Talbs viz Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khasumat in a suit for possession through pre-emption---Pre-emptor, in the present case, had not specified the exact place where the informer as well as witnesses were sitting when Talb-i-Muwathibat was performed---Witnesses of pre-emptor had not deposed in line with the averments contained in the plaint which was fatal for the case of plaintiff---Evidence adduced on the fact which was not mentioned in the plaint would be irrelevant and same could not be read---Party could not be allowed to adduce evidence beyond its pleadings---When a specific plea had not been asserted same could not be allowed to be made up during the course of evidence---Pre-emptor had not produced the informer which was fatal for his case---Plaintiff was bound to produce the scribe of notice of Talb-i-Ishhad to establish that said notice was written by him---Major contradictions were on record with regard to preparation of original notice and its copies---Inconsistencies and material discrepancies were on record and there was no justi-fication to decree the suit by the Appellate Court---Even minor inconsistency was fatal for plaintiff in a pre-emption suit---Pre-emptor had failed to prove performance of Talb-i-Muwathibat as best evidence in the shape of informer had been withheld---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was accepted in circumstances.

Allah Ditta through L.Rs and others v. Muhammad Anwar 2013 SCMR 866; Muhammad Hafeez Khan and another v. Shatab Khan through L.Rs. 2011 YLR 39; Muhammad Yousaf v. Muhammad Rafique and others PLD 2006 Lah. 39; Water and Power Development Authority v. Ghulam Shabbir 1998 MLD 1592; Ghulam Abbas and another v. Manzoor Ahmad and another 2008 SCMR 1366; Muhammad Shafi through L.Rs and another v. Aamir Hameed and others 2013 CLC 131; Muhammad Asam Shah v. Amanullah Khan 2006 YLR 1194; Israr Ahmad v. Ghafoor Khan 2004 YLR 655 and Sikandar Khan and 6 others v. Muhammad Nawaz and 2 others 2004 YLR 865 ref.

Ghulam Abbas and another v. Manzoor Ahmad and another 2008 SCMR 1366; Muhammad Shafi through L.Rs and another v. Aamir Hameed and others 2013 CLC 131; Muhammad Asam Shah v. Amanullah Khan 2006 YLR 1194; Israr Ahmad v. Ghafoor Khan 2004 YLR 655 and Sikandar Khan and 6 others v. Muhammad Nawaz and 2 others 2004 YLR 865 distinguished.

Allah Ditta through L.Rs. and others v. Muhammad Anwar 2013 SCMR 866; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 695; Karam Elahi through L.Rs. v. Muhammad Ashraf and others 2013 YLR 2347; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 and Ali Bahadur v. Muhammad Ishaq 2013 YLR 2555 rel.

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

----O. VII, R. 11(d) & S. 115---Revision---Limitation---Scope---Period consumed by the Copying Agency while preparing certified copy and delivering the same to the party was to be excluded from the period of limitation---Provisions of Limitation Act, 1908 were not applicable to the revision petition as period of limitation had been provided in the parent statute i.e. C.P.C.---Revision petition was filed within time and same could not be rejected/ dismissed summarily being barred by law of limitation.

Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491; City District Government Lahore through DCO Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Haji Ahmed and others v. Noor Muhammad 2004 SCMR 1630; Muhammad Iqbal v. Noor Elahi and 5 others 2010 CLC 1493; Allah Bakhsh v. Allah Bakhsh 2010 CLC 951; Pakistan Telecommunication Mobile Ltd. v. Furqan Hayat Khan and others 2008 CLC 628; Rehana Kausar and 7 others v. Faqir Muhammad and another 2004 CLC 1202; Sikandar Khan and 6 others v. Muhammad Nawaz and 2 others 2004 YLR 865; Province of Punjab through Collector Toba Tek Singh and others v. Muhammad Farooq and others 2012 SCMR 1942; Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582 and Fateh Muhammad through L.Rs. and others v. Bakhshau and 14 others 2012 CLC 1172 ref.

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400; Mst. Banori v. Jilani through L.Rs. and others PLD 2010 SC 1186; Muhammad Hassan v. Mst. Ulfat and others 2012 CLC 903; Ahmad Nawaz and others v. Muhammad Ayub PLD 1988 SC 258; Muhammad Yousaf and others v. Khan Bahadur (deceased) through L.Rs. 1992 SCMR 2334 and Zila Council Sheikhupura v. Dost Muhammad and another 1993 MLD 775 rel.

(c) Pleadings---

----Party could not be allowed to adduce evidence beyond its pleadings---When a specific plea had not been asserted same could not be allowed to be made up during the course of evidence.

Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 695 and Karam Elahi through L.Rs. v. Muhammad Ashraf and others 2013 YLR 2347 rel.

Muhammad Munir Gondal for Petitioner (in C.M. No.3172 of 2013).

Muhammad Aslam Khan Dhukkar for Respondent No.1 (in C.M. No.3172 of 2013).

Date of hearing: 8th December, 2014.

2015 Y L R 1066

[Lahore]

Before Sadaqat Ali Khan and James Joseph, JJ

NAZIR AHMED and another---Appellants

versus

The STATE and others---Respondents

Criminal Appeals Nos.442-J, 443-J and Murder Reference No.57 of 2010, decided on 3rd June, 2014.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---F.I.R. was registered with an unexplained delay of about 16 hours on the statement of real brother of the deceased, who was not eye-witness of the occurrence, which had created serious doubt regarding the truthfulness of the prosecution story---Post-mortem examination on the dead body of the deceased was conducted with the delay of about 36 hours---No plausible explanation was available for said delay, which had created serious doubt about the truthfulness of the prosecution story---Prosecution witnesses were not the residents of alleged place of occurrence, but were residents of other place which was about 539 K.M. from the place of occurrence---Statements of both the prosecution witnesses, were contradictory inter se, which were not acceptable---Statements of said witnesses were recorded with an unexplained delay of about 24 hours---Credibility of a witness, would be looked with serious suspicion, if his statement under S.161, Cr.P.C. was recorded without offering any plausible explanation---Sequence of events narrated in their statements, was highly improbable---Witnesses, who claimed to be present at the scene of crime, were not present and their evidence, was not believable---Motive of occurrence, was disbelieved---No crime empty had been recovered from the place of occurrence---Recovery of 30-bore pistols, was not relevant, and was inconsequential in the case in absence of the crime empty and report of Forensic Science Laboratory---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 otherwise, was full of material contradictions---Conviction and sentences awarded to accused by the Trial Court were set aside and accused were acquitted of the charge, and were released, extending them benefit of doubt.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Nazeer Ahmed v. Gehne Khan and others 2011 SCMR 1473; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 and Sajjad Ali v. The State 2009 SCMR 821 ref.

Irshad Ahmed v. The State 2011 SCMR 1190 rel.

(b) Criminal trial---

----Witness--- Interested witness--- To believe or disbelieve a witness, depended upon intrinsic value of the statement made by him---No universal principle existed to the effect that in every case interested witness should be disbelieved or disinterested witness be believed; that would depend upon the rule of prudence and reasonableness to hold that a particular witness was present on scene of crime; and that he was making true statement---Person, who was reported otherwise to be very honest, above board and very respectable in the society, if would give a statement, which was illogical and unbelievable, no prudent man, despite his nobility, would accept such statement---Prosecution evidence, was not tested on the basis of quantity, but quality of the evidence.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence could confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence, but it would not connect accused with the commission of crime.

Altaf Hussain and others v. Fakhar Hussain and others 2008 SCMR 1103 rel.

Ms. Gulraiz Abbasi for Appellants.

Hafiz Muhammad Asghar Bhatti for the Complainant.

Asghar Ali Gil, D.P.G. for the State.

Date of hearing: 3rd June, 2014.

2015 Y L R 1092

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ZAFAR IQBAL---Petitioner

versus

DILSHAD AHMAD and another---Respondents

Writ Petition No.10551 of 2010, heard on 20th October, 2014.

(a) Punjab Rented Premises Act (VII of 2009)---

---S.15---Constitution of Pakistan, Art.199--Constitutional petition---Application for eviction of tenant by one of the legal heirs/owners of demised premises---Competency---Personal bona fide need of landlord---Default in payment of rent---Denial of relationship of landlord and tenant by the tenant on the basis of oral agreement to sell---Civil suit, pendency of---Effect---Contention of landlord was that one of the legal heirs/owners of demised premises was competent to file ejectment petition and it was not necessary to implead all the legal heirs as a party in the said petition and pendency of civil suit qua determination of title over the demised premises was no ground to dismiss the eviction petition---Ejectment application was accepted by the Rent Tribunal but same was dismissed by the Appellate Court---Validity---Agreement to sell did not create any right, title or interest in favour of any person and existence of the same was open to doubt---Landlord was one of the legal heirs of the deceased original owner of demised premises---Issue of title of demised premises was under adjudication before the competent forum pendency of which had no effect on the maintainability of ejectment petition---Tenant had denied relationship of landlord and tenant on the basis of an oral agreement to sell---Tenant should have first vacated the demised premises and then pursued his claim before the civil court for determination of his right of ownership---Tenant had no right to occupy the demised premises and refuse to pay rent unless and until he was held owner of said premises by the civil court of competent jurisdiction---Appellate Court had no jurisdiction to decide the title of the parties on the basis of mere assumptions and presumptions---Appellate Court had travelled beyond its jurisdiction while deciding the question of title of demised premises---Landlord being one of the legal heirs of the deceased owner of demised premises had every right to file ejectment petition---Non-impleading of other legal heirs was not fatal to the ejectment petition---Findings recorded by the Appellate Court were based on surmises and conjectures---Tenant had failed to bring on record any solid and cogent evidence to prove his title over the demised premises and his claim was yet to be proved by the civil court---Tenant had not paid due rent since 1999 and Rent Tribunal had rightly passed the eviction order against him---Impugned judgment passed by the Appellate Court was set aside and order of Rent Tribunal was restored---Constitutional petition was accepted in circumstances.

Ashraf Kiyani and others v. Mst. Hajira Bibi and others 1999 MLD 2821; Tanveer Akhtar Siddiqui and 6 others v. Qazi Naeem Jan and 10 others 1994 SCMR 1881 and Abbas Khan and 11 others v. Hafeez-ur-Rehman and 2 others 2004 CLC 582 rel.

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

----S. 2---Agreement---Scope---Agreement to sell did not create any right, title or interest in favour of any person and existence of the same was open to doubt.

Raheel Kamran Cheema for Petitioner.

Syed Naghman Haider Zaidi for Respondent No.1.

Date of hearing: 20th October, 2014.

2015 Y L R 1123

[Lahore]

Before Arshad Mahmood Tabbasum, J

WAZIR KHAN through L.Rs. ---Petitioner

versus

NOOR MUHAMMAD through L.Rs.---Respondent

Civil Revision No.418 of 2005, heard on 10th July, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Performance of talbs---Talb-e-Ishhad---Proof---Failure to produce postman where notice of Talb-e-Ishhad was returned undelivered---Effect---Production and examination of postman by pre-emptor was obligatory to prove sending of notice of Talb-e-Ishhad by leading affirmative evidence---Talb-e-Ishhad was not proved---Suit was dismissed.

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.

Ghulam Abbas and another v. Manzoor Ahmad and another 2008 SCMR 1366 ref.

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

----Arts. 132 & 133---Where witness was not cross-examined on a specific point, depositions of such witness on such point would be taken as correct.

Mst. Nur Jehan Begum through legal representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

Malik Muhammad Kabir for Petitioner.

Sardar Bilal Firdous for Respondent.

Date of hearing: 10th July, 2014.

2015 Y L R 1162

[Lahore]

Before Shoaib Saeed, J

MUHAMMAD YOUSUF and 2 others---Petitioners

versus

MUHAMMAD AFZAL and 6 others---Respondents

Civil Revision No.27 of 2005, decided on 15th July, 2014.

Gift---

----Proof---Fraud and misrepresentation, proof of---Scope---Contention of plaintiffs was that donor had never gifted suit property in favour of donee---Suit was dismissed concurrently---Validity---Donor never challenged gift deed during his life time before any forum---Defendants (donees) were in possession of suit property---Strong presumption existed, in absence of any material, in rebuttal that donor had gifted his entire share in the khata to the donees---Proof with regard to death of marginal witnesses, scribe or stamp vendor of gift deed should have been placed on record which was missing in the present case---Burden to prove transaction would shift upon the beneficiary of the same in the cases of fraud, however the initial burden would be upon the person who had alleged fraud and after discharge of initial onus it would shift upon the beneficiary to prove bona fide and genuineness of the transaction---Evidence produced in the present case by the plaintiffs was not sufficient to shift burden upon the beneficiaries of the gift---Plaintiffs who had alleged fraud and misrepresentation had to prove the same through cogent, tangible and confidence inspiring evidence---Necessary particulars and details with regard to fraud, misrepresentation, collusion or mala fide had to be unfolded in the pleadings---Bald or vague statement to such effect had no legal consequence---Evidence produced by the defendants was more cogent, convincing and confidence inspiring as compared to the evidence of plaintiffs---Plaintiffs had failed to prove the factum of fraud, forgery and misrepresentation in the execution of gift deed and mutation---Defendants had proved that gift deed was executed in accordance with law which was a registered document having presumption as to its genuineness/ truthfulness unless proved otherwise---No misreading or non-reading of evidence was pointed out in the impugned judgments and decrees---Revision was dismissed in circumstances.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC(AJ&K) 138 and Abdul Majeed and 6 others v. Muhammad Subhan

and 2 others 1999 SCMR 1245 distinguished.

Levin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others 2013 SCMR 1419; Khan Muhammad v. Muhammad Din through Legal heirs 2010 SCMR 1351 Sardar Ali v. Mst. Sardar Bibi alias Sardaran through L.Rs. 2010 SCMR 1066; Allah Ditta through legal heirs v. Ali Muhammad through Legal heirs and 20 others 2013 YLR 1756 rel.

Syed Qalb-i-Hassan for Peti-tioners.

Muhammad Siddique Awan for Respondents.

2015 Y L R 1179

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD SAEED AKHTAR BUTT---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Writ Petition No.257 of 2014, decided on 15th October, 2014.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 22---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction of tenant---Default in payment of rent---Ejectment petition by one of the legal heirs of original owner---Deposit of rent in the name of deceased owner---Effect---Rent Tribunal while dismissing application for leave to contest directed the tenant to vacate the demised premises within a specified period---Contention of tenant was that without impleading all the legal heirs of deceased owner ejectment proceedings could not proceed---Validity---Tenant was inducted in the demised premises by the predecessor in interest of landlords---Rent was not deposited on month to month basis rather same was deposited collectively---Tenant deposited rent in the name of deceased owner despite having the knowledge that he had expired---Tenant was supposed to deposit rent in the name of landlord and his act of depositing the same in the name of deceased owner was to be considered a wilful and contumacious default---Tenant had committed wilful and contumacious default in payment of rent and he was liable to be evicted on such ground---Rent Tribunal was not to allow leave to a tenant to contest unless application had disclosed sufficient ground for production of evidence---No sufficient ground existed to allow petition for leave to contest---Constitutional petition was dismissed in circumstances.

Haji Abdullah Jan v. Anwar Khan PLD 2000 SC 787; Khawaja Ghulam Mustafa v. Mian Waqar Ahmed PLD 1980 SC 9 and Buzarg Jamil and another v. Haji Abdul Bari and others PLD 2003 SC 477 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 2(d)--- "Landlord"--- Meaning---Landlord was the owner of premises and same would include a person for the time being entitled or authorized to receive rent in respect of the premises.

Ch. Muhammad Bashir for Petitioner.

Ch. Hasham Hayat for Respondents.

2015 Y L R 1194

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SHARIF and another---Appellants

versus

MUHAMMAD ASLAM---Respondent

Regular Second Appeal No.107 of 2005, heard on 24th April, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13--- Talb-e-Muwathibat--- Proof---Withdrawal of suit by one pre-emptor---Effect---Partial pre-emption---Scope---Trial Court decreed suit---First appellate court accepted appeal---Validity---One out of three pre-emptors withdrew the suit---Pre-emptors had jointly claimed the suit property, after withdrawal by one pre-emptor, suit was for 2/3 of the suit property which was partial pre-emption which was not permissible under the law---Suit stood dismissed.

Mian Pir 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---Talbs---Talb-e-Muwathibat, Talb-e-Ishhad---Proof---Date, time and place of knowledge of sale had to be pleaded in the plaint in order to prove the jumping demand---Witnesses having contradicted each other, pre-emptors failed to prove Talb-e-Muwathibat and Talb-e-Ishhad.

Ghulam Farid Sanotra and Talat Farooq Sheikh for Appellants.

Shahzad Shaukat for Respondent.

Date of hearing: 24th April, 2014.

2015 Y L R 1235

[Lahore]

Before Shezada Mazhar, J

MANNAN FEROZ---Petitioner

versus

SHOMAILA---Respondent

Civil Revision No.379-D of 2011, heard on 27th May, 2014.

Islamic Law---

----Marriage---Condition mentioned in column No. 17 of Nikah Nama---Actionable claim---Jurisdiction of Civil Court---Condition on divorce---Scope---Wife earlier approached Family Court for her claim of dower as well as the inference of condition mentioned in column No. 17 of Nikah Nama---Dower was granted to the wife in the said family suit but for remaining claim she was directed to approach the Civil Court---Validity---Claim of wife made on the basis of condition mentioned in column No.17 of Nikah Nama was actionable claim under the contract---Said claim could be pressed into service through Civil Court---Wife could lawfully stipulate for her divorce under contract and she could also raise any claim based on the said contract apart from dower fixed at the time of contract of Nikah---Any such stipulation could not be termed as against public policy or against Islamic Law---Condition imposed upon right of Talaq could not be enforced through suit before Family Court and Civil Court had exclusive jurisdiction for the same---Revision was dismissed in circum-stances.

Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and others 2008 SCMR 186; Muhammad Arshad Latif v. Civil Judge and 3 others PLD 2004 Lah. 588; Mst. Shaista Shahzad and another v. Additional District Judge, and others PLD 2012 Lah. 245 and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 ref.

Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and others 2008 SCMR 186 distinguished.

Mst. Shaista Shahzad and another v. Additional District Judge, and others PLD 2012 Lah. 245 and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 rel.

Javaid Ahmad Khan for Petitioner.

Syed Muhammad Ali Gillani for Respondent.

Date of hearing: 27th May, 2014.

2015 Y L R 1262

[Lahore]

Before Shah Khawar, J

AWAIS IQBAL and another---Petitioners

versus

VICE-CHANCELLOR, BAHA-UD-DIN ZAKRIYA UNIVERSITY, MULTAN

and 6 others---Respondents

Writ Petition No.6634 of 2013, decided on 24th April, 2014.

Constitution of Pakistan---

----Art. 199 & 25-A---Constitutional petition---Right of education---Educational institution---Students were rusticated, fined and barred from getting admission in the University by the Disciplinary Committee of the University---Period of more than one year had elapsed that no complaints were noticed about the petitioners/students for violating the discipline of the University; they had mended---High Court declined to interfere with the disciplinary matter of the University---Office of the Vice-Chancellor of a university was the most prestigious office and to maintain discipline Vice-Chancellor could exercise power under parental jurisdiction---Punishment awarded had to be to reform irresponsible attitude and not to destroy educational career of students---Petitioners expressed repentance and gave undertaking not to indulge in such activity in future---Punishment awarded to the students was set aside---Constitutional petition was disposed of accordingly.

Petitioner in person.

Malik Muhammad Tariq Rajwana, Legal Advisor for BZU.

2015 Y L R 1293

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

RASHID MASIH---Appellant

versus

The STATE---Respondent

Criminal Appeal No.50-J and Murder Reference No. 112 of 2009, heard on 1st April, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---FIR was promptly lodged---Accused was not attributed any specific firearm injury on the person of the deceased, and the role of accused was exactly the same as that of acquitted co-accused---No corroboration to the extent of role allegedly played by accused was available to the prosecution from the medical evidence---Ocular account found no corroboration by the motive to the extent of accused---Ocular account furnished by the complainant and prosecution witness, could not get any corroboration from the alleged recovery of gun at the instance of accused and report of Forensic Science Laboratory---If medical evidence, motive and recovery evidence was excluded from consideration, then no other evidence was available which could provide any support/corroboration to the ocular account furnished by the complainant and prosecution witness to maintain conviction and sentence of accused on the capital charge---Prosecution having failed to prove its case against accused beyond any shadow of doubt, conviction and sentence awarded to accused through impugned judgment of Trial Court, was set aside and accused was acquitted from the charge extending him the benefit of doubt.

(b) Criminal trial---

----Evidence---If evidence of the same witness had been disbelieved to the extent of one set of accused persons, then same could only be believed against the other set of accused persons, if the same was corroborated by any independent piece of evidence.

Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Ghulam Mustafa and others v. The State 2009 SCMR 916 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

(c) Criminal trial---

----Conviction---Benefit of doubt---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.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Syed Nasir Ali Shah for Appellant.

Arshad Mehmood, DPG for the State.

Muhammad Imran Mushtaq Batalvi for the Complainant.

Date of hearing: 1st April, 2013.

2015 Y L R 1332

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUZAFFAR ALI and others---Petitioners

versus

Dr. ZAFAR ULLAH MALIK---Respondent

C.R. No.1775 of 1998, decided on 22nd August, 2014.

Civil Procedure Code (V of 1908)---

----O. IX, Rr. 13 & 6 & S. 151---Limitation Act (IX of 1908), Art. 181---Specific Relief Act (I of 1877), S. 8---Suit for possession of immovable property---Ex parte decree, setting aside of---Limitation---Appeal---Delay, condonation of---Word "date of hearing"---Scope---Applicants moved an application for setting aside of ex parte decree which was dismissed concurrently on the ground of limitation---Validity---Court could proceed against defendant ex parte and pass a decree without recording evidence if he/she had failed to appear before the court when suit was called for hearing---Suit had to be proceeded on various steps and court had to fix dates for certain actions to be taken---Routine dates could not be called for hearing of the suit and could only be attributed for hearing of such particular matter which was specified in the order of the court---Defendant did not appear before the court when suit was fixed for submission of his written statement and he was proceeded against ex parte---Case was not fixed for hearing but same was fixed for submission of written statement which was not a "date of hearing" and defendant could not be proceeded against on the said date---No period of limitation had been prescribed for setting aside ex parte order and Art. 181 of Limitation Act, 1908 provided a period of three years---Trial Court had erred in law while declaring the application for setting aside ex parte proceedings as barred by time---Period of limitation had been prescribed for setting aside ex parte decree under O. IX, R. 13, C.P.C. but suit was not fixed for hearing when defendant was proceeded ex parte---Trial Court was not justified while treating the application for setting aside ex parte order as beyond limitation---No limitation would run against the impugned order as same had no legal effect---Ex parte proceedings could be set aside even under S. 151, C.P.C.---Article 181 of Limitation Act, 1908 would govern the issue which had provided three years limitation period when provisions of S. 151, C.P.C. were taken into cognizance---Delay of 9/10 days in filing of appeal could not be held fatal to non-suit the applicants as impugned order had been passed without jurisdiction and in an illegal manner---Impugned order could not be allowed to remain in the field merely on technicality---Appeal was duly instituted by the applicants---Mechanical and arbitrary manner was not to be adopted while passing ex parte decree without considering the factual and legal aspects of the matter---Party claiming for a relief could not be absolved of its liability to produce sufficient evidence in support of his version---Prior to cancellation of sale, a decree for possession could not be granted even on the strength of ex parte evidence without any rebuttal---Trial Court had decreed the suit without taking into consideration the oral evidence led by the plaintiff---Facts and circumstances of the case would demand that the suit should be heard and decided on merits---Impugned order was set aside and suit filed by the plaintiff would be deemed to be pending before the Trial Court---Revision was accepted in circumstances.

PLD 1977 SC 658; Kanchhedilal Umrao Singh v. Maursi Ranjeet Kachhi AIR 1960 Madia Pradesh 140; Pir Bakhsh v. Chanan Din AIR 1927 Lah. 734; Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104; Rahim Bux and another v. Gul Muhammad and 2 others PLD 1971 Lah. 746; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22; Sh. Abdul Saboor and Brother v. Ganesh Flour Mills Co. Ltd. Lyallpur PLD 1967 Lah. 779; Muhammad Rehman Hashmi and 4 others v. Mian Muhammad Ali through Mian Nisar Ahmad Warsi 2005 CLC 204; Sheikh Abdul Rahman v. Shib Lal Suhu and others AIR 1922 Patna 252; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Province of Punjab and others v. Ghulam Shabbir 2004 YLR 10; Dr. Muhammad Shahid Mian and another v. Faiz Ur Rehman Faizi PLD 2011 SC 676; Messrs Fabnus Construction (Pvt.) Ltd. through Chief Executive/Director v. Iftikhar Ahmad and 4 others PLD 2010 Lah. 452; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Atiqur Rehman Through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309 and Mst. Hajra Bibi v. Zarai Taraqiati Bank Ltd. (ADBP) through Manager 2005 CLD 1116 ref.

Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar PLD 1975 SC 678; Muhammad Tariq v. Hasin Jahan 1993 SCMR 1949; Hashim Khan v. National Bank of Pakistan 1992 SCMR 707; Abdul Sattar v. Muhammad Akbar Shah PLD 1990 SC 285 and Hyderabad Development Authority through M.D., Civil Centre Hyderabad v. Abdul Majeed and others PLD 2002 SC 84 rel.

Ali Muhammad Chaudhry for Petitioners.

Mehmood A. Sheikh for Respondent.

Date of hearing: 18th August, 2014.

2015 Y L R 1352

[Lahore]

Before Shahid Bilal Hassan, J

Mst. FATIMA BIBI through Legal Heirs and others---Appellants

versus

Mst. IRSHAD BEGUM and others---Respondents

Regular Second Appeal No.41 of 1995, decided on 4th July, 2014.

(a) Punjab Pre-emption Act (I of 1913)---

----S. 15---Specific Relief Act (I of 1877), S. 42---Qanun-e-Shahadat (10 of 1984), Art. 58---Transfer of Property Act (IV of 1882), S.52---Pre-emption, suit for---Declaratory suit against vendee by vendor---Effect---Lis pendens, principle of---Applicability---Pre-emptor filed suit for possession through pre-emption whereafter vendor challenged subject sale deed on the grounds of fraud and misrepresentation during pendency of said suit for pre-emption---Contention of pre-emptor was that declaratory decree had been obtained through collusion and fraud---Both the suits were decreed concurrently--- Validity--- Suit for possession on the basis of pre-emption was instituted prior to the suit for declaration seeking cancellation of sale deed which was filed during pendency of said suit---Right of pre-emption had already been exercised by the pre-emptor---Sale of suit land was affected through a registered sale deed which had not been denied by the vendee---Suit for declaration had been instituted collusively against the vendee in order to thwart the right of pre-emption---Decree obtained through fraud and collusion had no legal effect upon the decree passed in a suit for pre-emption and same would not affect the rights of pre-emptor accrued in the suit land---Principle of lis pendens was applicable in the present suit to protect the rights of pre-emptor---Pre-emptor was not party to the suit filed for declaration by the vendor and same was not binding upon him in any manner---Declaratory decree could not be allowed to sustain as principle of lis pendens would protect the rights of successful litigant---Said declaratory decree would be termed as resale in favour of vendor and not otherwise---When a specific plea had been taken then same had to be proved---No illegality, irregularity or wrong exercise of jurisdiction had been pointed out in the impugned judgment decree passed by the Appellate Court---No misreading or non-reading of evidence had been made by the Appellate Court---Impugned judgment and decree was well reasoned which was based on proper appreciation of law---Revision was dismissed in circumstances.

Muhammad Iqbal and others v. Khushi Muhammad through Legal Heirs and others 1995 MLD 1886; Mst. Amanat Bibi v. Khuda Dad and others 1994 CLC 979; Saidan Gul v. Mst. Shughla and 8 others NLR 1980 Revenue BOR 177; Maqbool Ahmed and others v. Ghulam Hussain and others 2007 SCMR 1223; Malik Hussain and others v. Lal Ram Chan and others PLD 1970 SC 299; Ghulam Mehmood v. Hukam Khan and others 2001 MLD 366; Mian Abdul Qayyum v. Dr. Muhammad Akram Khan 1982 SCMR 1024; Ahmad Sher and others v. Muhammad Hayat PLD 2006 SC 448; Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426; Munir Hussain v. Muhammad Shafi and another 1981 CLC 1712; Mian Abdul Qayyum v. Dr. Muhammad Akram Khan 1982 CLC 950; Muhammad Khan and another v. Zir Mir Khan and 2 others 1981 CLC 129; Syed Zafar Ali Shah v. Fazal Shah and 2 others 1983 CLC 1816; Mst. Bibi Mehr Jana v. Sultan Muhammad 1985 CLC 1635; Riaz Ahmed v. Asghar Ali and others 2010 YLR 278; Gram Panchayat of Village Naulakha v. Ujagar Singh and others AIR 2000 SC 3272; Muhammad Boota, and others v. Addl. District Judge, Gujranwala and others NLR 2006 Civil 4 and Khushro S. Gandhi and others v. N.A. Guzder (dead) by his legal representatives and others AIR 1970 SC 1468 ref.

Mian Abdul Qayyum v. Dr. Muhammad Akram Khan 1982 SCMR 1024; Ahmad Sher and others v. Muhammad Hayat PLD 2006 SC 448; Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426; Munir Hussain v. Muhammad Shafi and another 1981 CLC 1712; Mian Abdul Qayyum v. Dr. Muhammad Akram Khan 1982 CLC 950; Muhammad Khan and another v. Zir Mir Khan and 2 others 1981 CLC 129; Mst. Bibi Mehr Jana v. Sultan Muhammad 1985 CLC 1635 and Muhammad Boota, and others v. Addl. District Judge, Gujranwala and others NLR 2006 Civil 4 rel.

(b) Administration of justice---

----No one could be non-suited due to approaching higher forum through wrong form of remedy.

Syed Kabeer Ahmad Mahmood for Appellant.

Ch. Muhammad Ashraf Dhaloon, Vice-Counsel for Appellant (in C.R. No.1025 of 1995).

Sheikh Muhammad Rafique Goreja and Tahir Mahmood for Respondent.

Date of hearing: 18th March, 2014.

2015 Y L R 1383

[Lahore]

Before Amin-ud-Din Khan, J

MUZAFFAR ALI and others---Petitioners

versus

Mst. RAZIA KHATOON through L.Rs. and others---Respondents

Civil Revisions Nos.286-D and 287 of 1993 and 1963 of 2000, heard on 21st April, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.64---Suit for declaration---Inheritance mutation--- Pardanashin ladies---Plaintiffs challenged inheritance mutation contending that their mother had been excluded from inheritance by male heirs of the propositus---Both the courts below had concluded that mother of plaintiffs and her legal heirs, were entitled to inherit in accordance with law---Validity---One of the two male heirs had admitted that mother of plaintiffs was his real sister and plaintiffs were his nieces---Statement (admission) of said male heir was important as his statement would result in decrease of his share in matter of inheritance---Defendants were bound to prove clear cut ouster of plaintiffs from the property in dispute---At the time of death of predecessor of parties, all legal heirs had become joint owners in property left by him---Suit was rightly held to have been filed within period of limitation---Mother of plaintiffs was deprived of her share at the time of attestation of mutation---No case of interference in exercise of revisional jurisdiction had been made out---Revision was dismissed.

Malik Noor Muhammad Awan for Petitioner.

Naveed Shehryar Sheikh and Miss Humaira Bashir Ch., for Respondents Nos.1 to 5.

Date of hearing: 21st April, 2014.

2015 Y L R 1404

[Lahore]

Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ

ABDUL GHAFOOR and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No.709 and Murder Reference No.385 of 2010, heard on 17th July, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 148, 149, 337-F(iii) & 34---Qatl-i-amd, attempt to commit Qatl-i-amd, rioting armed with deadly weapon, every member of unlawful guilty of offence committed in prosecution of common object, mutalahimah---Appreciation of evidence---Benefit of doubt---Principles---Delay in postmortem---Effect---Dishonest improvements---Effect---Delay of 20 to 24 hours in postmortem examination coupled with medical examination of injured witness without any Police docket cast serious doubt about registration of F.I.R. at given time---Where assailants were unknown, Police delayed registration of F.I.R. to prepare papers required for conducting postmortem on dead body, show presence of witnesses and complainant at the spot and fabricate prosecution story after preliminary inquiry, consultation and legal advice---Presence of witnesses at place of occurrence at relevant time was doubtful---Postmortem report showed that deceased had not died immediately after suffering injuries---Had witnesses been present at the scene, they would have removed the injured to hospital---Opened eyes and mouth of deceased showed that deceased were not attended by any near and dear one for considerable period of time---Name of the Police Official who removed the injured to hospital was not known to the Investigating Officer or Medical Officer---Investigating Officer admitted that injured was medically examined without Police docket or any application---Witnesses explained their presence on the place of occurrence by stating that they were returning from 'Majlis' but they could not disclose the name of the person who had held the 'Majlis'---Medical evidence contradicted ocular account as to direction of firing---Deceased and injured allegedly received injuries while they were riding motorcycle but the motorcycle was not damaged---Injuries on the person of witness could not stamp his statement with truth---Injured witness denied his statement recorded under S.161, Cr.P.C. because he had stated in that statement that the injured and deceased were on foot and assailants were unknown---No specification of weapons and attribution of injuries was given in said statement---Dishonest improvements were made by said injured witness; statement of such witness could not be relied upon---Medical evidence could confirm ocular evidence with regard to the seat and nature of injury, kind of weapon used in occurrence, but such evidence would not itself identify the accused---Recoveries of firearms had become inconsequential due to non-availability of the report of Forensic Science Laboratory---Motive was double edged weapon which cut both ways---Motive for commission of crime could also be reason for false implication of accused---False implication could not be ruled out---Prosecution could not prove its case beyond shadow of doubt---Prosecution could not take benefit of weaknesses of defence case---Single circumstance creating doubt in prosecution case was sufficient to give benefit of doubt to accused---Accused was acquitted.

Muhammad Riaz v. The State 2009 PCr.LJ 1022; Irshad Ahmed v. The State 2011 SCMR 1190; Akhtar Ali and others v. The State 2008 SCMR 6; 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; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Ahsan Bhoon for Appellant No.2.

Ch. Nasar Ahmed Sindhu for Appellant No.1.

Humayun Aslam, Deputy Prosecutor General for the State.

Iftikhar Ahmed Bhatti for the Complainant.

Date of hearing: 17th July, 2014.

2015 Y L R 1427

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

UMAR HAYAT---Petitioner

Versus

Mst. RABIA BASRI and 2 others---Respondents

Writ Petition No.4437 of 2013, decided on 17th May, 2013.

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

----S. 5, Sched.---Civil Procedure Code (V of 1908), O. VIII, R. 1---Constitution of Pakistan, Art.199---Constitutional petition--Recovery of dowry articles, suit for---Husband in his written statement admitting claim of wife qua dowry articles---Effect-- -Family Court decreed suit for recovery of dowry articles filed by the wife on basis of a list submitted by her--Plea of husband that a separate list of dowry articles was handed over to him by the wife; that said list was the only list on which decree could be passed, and that in such circumstances Family Court was not justified to pass the decree on the basis of list submitted by the wife in court---Validity---Husband in his written statement had admitted the claim of wife by stating that--Admittedly, alleged list of dowry articles claimed by the husband was not exhibited on record and as such there was no option available with the Family Court to deny the list of dowry articles submitted by the wife---Family Court rightly passed the decree which was affirmed by the Appellate Court-- Constitutional petition was dismissed in circumstances.

Jabbar Qadir for Petitioner.

Muhammad Yasin Hatif for Respondent No. l.

2015 Y L R 1429

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Messrs UNITED ETHANOL INDUSTRIES LTD.---Petitioner

Versus

Messrs JDW SUGAR MILLS LTD.---Respondent

Civil Revision No.1298 of 2013, decided on 28th May, 2013.

(a) Discretion--

----Exercise of discretion---Scope---Discretionary powers had to be exercised judicially and in a reasonable manner---Authorities could not be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner, rather they were bound to act fairly and justly.

2012 PLC (C.S.) 394 rel.

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

---S. 115---Revisional jurisdiction of High Court---Scope---Power conferred under S.115, C.P.C. was exceptional but a necessary power intended to secure effective exercise of High Court's superintending and visitorial powers and correction of jurisdictional errors or material irregularities in proceedings of subordinate courts and such power should not be inhibited by technicalities of procedure or entirely by the conduct of the parties.

Riasat Ali v. Muhammad Jafar Khan and others 1991 SCMR 496 rel.

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

---Art. 78---Genuineness of document--- Production of document and proof of document were two different subjects, document could be produced in evidence which was always subject to proof as required under Art. 78 of the Qanun-e-Shahadat, 1984---Court was vested with the authority and jurisdiction to ascertain the genuineness and authenticity of any document in order to arrive at a just and fair conclusion on the touchstone and parameters laid in Art. 78 of the Qanun-e-Shahadat, 1984.

Pakistan Engineering Consultants through Managing Partner v. Pakistan International Airlines Corporation PLD 2006 Kar. 511; 2012 PLC (C.S.) 394; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; 2007 CLC 1811 and PLD 1992 SC 822 rel.

(d) Administration of Justice--

--Fair administration of justice and adjudication of the issue(s)---Trial Court was fully empowered to summon and examine any document/witness in order to do the complete justice in accordance with law and rules, procedure-Technicalities could not obstruct the exercise of such powers---Rules were meant to promote the ends of justice and not to frustrate or defeat it and justice should not only be done but it should seem to have been done-- Judge wore the law on his sleeves and issues must necessarily be decided on merit rather than knocking out a party merely on technical grounds---While exercising original jurisdiction, judges of the Trial Court were required to comprehend the issue and proposition in their true perspective and should make a conscious effort to concentrate solely on the adjudication of the issues so as to preclude multiplicity of proceedings and to minimize agonies of the parties.

Muhammad Yasin Hatif for Petitioner.

Muhammad Shoaib Rashid for Respondent.

Date of hearing: 28th May, 2013.

2015 Y L R 1443

[Lahore]

Before Mahmood Ahmad Bhatti, J

Mst. KANEEZ KANWAL alias KANEEZ ZAFAR---Petitioner

versus

Mst. SHEHNAZ BIBI---Respondent

Civil Revision No.750 of 2013, decided on 5th December, 2013.

Civil Procedure Code (V of 1908)---

----Ss. 47 & 12(2)---Execution petition---Objection petition was dismissed by the Executing Court on the ground that all the questions and issues had already been settled by the competent court of law---Contention of applicant was that Executing Court was bound to frame issues and record evidence---Validity---Trial Court had already dealt with each and every aspect of the case of the applicant---Property owned by the applicant was different from that of the decree-holder---Application of applicant under S. 12(2), C.P.C. had already been dismissed and second round of litigation should not have been allowed to be started afresh---No justification was on record to entertain such objection petition---No need existed to renew the exercise of framing of issues and recording of evidence which had already been done in the application moved under S.12(2), C.P.C.---Revision was dismissed in circumstances.

Ghulam Qadir through Legal Heirs v. Haji Munir Ahmad and others 1989 MLD 2503; Rai Muhammad Riaz v. Ejaz Ahmad and others 2013 YLR 1890 and Muhammad Shakir v. Dr. Amanullah and another 2013 YLR 2159 ref.

Abdul Jabbar Khan Joyia for Petitioner.

Mumtaz Ahmad Gillani for Respondent.

2015 Y L R 1456

[Lahore]

Before Sadaqat Ali Khan, J

Mst. SADIQA BEGUM and others---Petitioners

versus

The PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.72-D of 2014/BWP, heard on 7th February, 2014.

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

-----S.115---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Revision---Inheritance---Inheritance mutations of original owner were rightly sanctioned in which predecessor-in-interest of plaintiffs had inherited suit property which were never challenged by the defendants---No misreading or non-reading of evidence was pointed out in the impugned judgments and decrees passed by the courts below---Both the courts below had discussed every piece of evidence produced by the parties during trial---Impugned judgments and decrees passed by the courts below were neither perverse nor illegal---Revision was dismissed in limine.

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

----S. 115---Revisional jurisdiction---Scope---Revisional jurisdiction could be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegally or with material irregularity.

Cantt. Board through Executive Officer Cantt. Board Rawalpindi v. Ikhlaq Ahmad and others 2014 SCMR 161 rel.

Jam Muhammad Sajjad for Petitioners.

Nemo for Respondent.

Date of hearing: 7th February, 2014.

2015 Y L R 1468

[Lahore]

Before Altaf Ibrahim Qureshi and Sadaqat Ali Khan, JJ

MURAD ALI KHAN---Appellant

versus

VICE-CHANCELLOR and others---Respondents

Intra Court Appeal No.9 of 2014/BWP, heard on 18th March, 2014.

Law Reforms Ordinance (XII of 1972)---

----S. 3 (2)---Constitution of Pakistan, Art. 199---University of Health Sciences Lahore Ordinance (LVIII of 2002), S.10---Intra-court appeal---Maintainability---Original order---Scope---Admission in M.B.B.S. programme---Seat reserved for student from Cholistan---Scope---Restoration of list of successful candidates for admission in M.B.B.S. programme in which name of the petitioner/candidate existed---Validity---Respondent-appellant was not from Cholistan by birth as required for the allocation of seat reserved for M.B.B.S. course whereas petitioner was from Cholistan by birth---Petitioner was wrongly dropped from the list of successful candidates for admission in M.B.B.S. programme against one seat reserved for student from Cholistan---Single Judge of High Court had rightly invoked the constitutional jurisdiction and struck down the list to the extent of present appellant-respondent---Impugned judgment was quite legal and intra-court appeal before Division Bench of High Court against the judgment of Single Judge was not maintainable under S. 10 of University of Health Sciences Lahore Ordinance, 2002---Remedy of revision was available against the order of Authority which was to be treated as original order for the purpose of S. 3(2) of Law Reforms Ordinance, 1972---Revision filed by the appellant-respondent had been entertained by the Authority---Bar of filing appeal under S. 3(2) of Law Reforms Ordinance, 1972 was attracted in the present case and intra-court appeal was not competent---Intra-court appeal was dismissed in circum-stances.

PLD 1963 Lah. 53 and PLD 1965 Pesh. 47 ref.

Vice-Chancellor University of Health Sciences v. Breeha Zainab and others 2011 MLD 1652 rel.

Muhammad Ali for Appellant.

M.A. Hayyat Harraj for Respondent No.1/UHS.

Muhammad Farooq Warind for Respondent No.2.

Muhammad Ayyaz Kalyar for Respondent No.3.

Date of hearing: 18th March, 2014.

2015 Y L R 1484

[Lahore]

Before Shujaat Ali Khan, J

BASHIR AHMAD---Petitioner

versus

FAISALABAD DEVELOPMENT AUTHORITY and others---Respondents

Writ Petition No.10234 of 2009, decided on 3rd March, 2015.

(a) Punjab Development of Cities Act (XIX of 1976)---

----S. 28(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Levy of aquifer charges by the Authorities---Validity---Authorities had been empowered to levy aquifer charges on the persons using turbines and tube-wells to get water for industrial and other purposes---Public functionaries could not be allowed to claim anything without prior legislation---Any levy or surcharge which was supported by a legislation could not be restrained to be demanded merely on the ground that aggrieved persons were not taken on board prior to such legislation---Publication of any legislation in the official gazette would be considered to be sufficient for the notice of public at large---Petitioners, in the present case, had not mentioned about their filing of declaratory suit and dismissal of applications for temporary relief as well as subsequent appeals against those orders---One who had sought equity should come to the court with clean hands---Constitutional petition was dismissed in circumstances.

Crescent Sugar Mills Ltd. Through Factory Manager v. Faisalabad Development Authority through Director General and another 2004 YLR 1275 ref.

Seven-Up Bottling Co. (Pvt.) Ltd. v. Lahore Development Authority Lahore through M.D. WASA and its Deputy Director Revenue (South), WASA LDA and another 2003 CLC 513 and Lahore Development Authority and others v. Seven-Up Bottling Co. (Pvt.) Ltd. and others 2003 SCMR 1742 distinguished.

Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840 rel.

(b) Administration of justice---

----Public functionaries could not be allowed to claim anything without prior legislation.

(c) Administration of justice---

----One who had sought equity should come to the court with clean hands.

Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840 rel.

Ch. M. Lehrasib Khan Gondal for Petitioner.

Iftikhar Ahmad Mian for Respondents.

2015 Y L R 1500

[Lahore]

Before Shezada Mazhar, J

Mst. RAJ BIBI and another---Petitioners

versus

PROVINCE OF PUNJAB through Collector, Multan and 24 others---Respondents

Civil Revision No.406 of 1983, heard on 17th July, 2013.

Islamic Law---

----Gift---Mutation of---Umra gift---Corpus of land, non-transfer of---Plaintiff was widow of deceased landowner and assailed mutation of inheritance on the plea that suit land had already been gifted in her favour by the deceased during his life time---Defendants contended that owner only gifted usufruct of suit land for subsistence of plaintiff till her life time and not corpus of land---Suit and appeal filed by plaintiff were dismissed by both the Courts below---Validity---Deceased landowner gifted his property to plaintiff for her life time and nowhere in the statement of landowner any reference to "Paidawar" (usufruct) of the land was made and, therefore, use of words (till her life time) were sufficient to show that gift was "Umra" gift and conditions attached to such gift were void---All ingredients of gift had been completed i.e. land owner had gifted the land and handed over the same to plaintiff, and plaintiff had accepted the gift and had taken possession of land gifted---For all purposes a complete gift was made by land owner in favour of plaintiff---Conditions of (maintenance for subsistence for life time) and (there will be no right to sell or mortgage the land), would be void and could not take effect while gift remained effective---High Court in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed by two Courts below and suit was decreed in favour of plaintiff---Revision was allowed in circumstances.

Abdul Hamid and 23 others v. Muhammad Mohy-ud-Din Siddique Raja and 3 others PLD 1997 SC 730 fol.

Muhammad Nawaz and others v. Muhammad Khan and others 2005 SCMR 710 ref.

Ch. Muhammad Hussain Jahania for Petitioner.

Syed Asif Raza for Respondents Nos.15 and 22.

Malik Muhammad Siddiqui Kamboh for Respondents Nos.11 and 24.

Malik Muhammad Bashir Lakhesir, Assistant Advocate General for the State.

Date of hearing: 17th July, 2013.

2015 Y L R 1515

[Lahore]

Before Arshad Mahmood Tabbasum, J

ZAHOOR AHMAD---Petitioner

versus

The STATE and another---Respondents

Criminal Revision No.481 of 2011, heard on 21st March, 2014.

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

----Ss. 337-A(ii)(v), 148 & 149---Criminal Procedure Code (V of 1898), Ss.154 & 200---Shajjah-i-Mudihah, Shajjah-i-Ammah, rioting, armed with deadly weapon, every member of unlawful assembly guilt of offence committed in prosecution of common object---Appreciation of evidence---Benefit of doubt---Accused contended that courts below acquitted co-accused but convicted him on the basis of same evidence---Injury caused to complainant could not be attributed to accused in view of medical evidence and deposition of doctor---Complainant had himself stated that injury was caused to him by co-accused---Accused was convicted for the offence which he had not committed---Accused was found innocent in Police investigation---Benefit of doubt had to go to accused---Even a single doubt in prudent mind was sufficient for acquittal---Courts below wrongly convicted and sentenced accused---Accused was acquitted.

(b) Criminal trial---

----Benefit of doubt---Nature and scope---Rule of benefit of doubt was a rule of prudence which could not be ignored in dispensing justice in accordance with law---Better to acquit ten guilty persons rather than convicting one innocent person.

Ayub Masih's case PLD 2002 SC 1048 rel.

(c) Criminal trial---

----Benefit of doubt---Islamic juris-prudence---Rule of benefit of doubt occupied pivotal place in Islamic law---The Holy Prophet (P.B.U.H.) held that "Mistake of Qazi (judge) in releasing a criminal was better than his mistake in punishing an innocent".

Ayub Masih's case PLD 2002 SC 1048 rel.

Muhammad Usman Sharif Khosa for Petitioner.

Abdul Qayyum APG for the State.

Syed Muhammad Hussain Shah Qadri and Syed Muhammad Ali Bukhari for Respondents.

Date of hearing: 21st March, 2014.

2015 Y L R 1518

[Lahore]

Before Shahid Karim, J

CHAIRMAN WAPDA, WAPDA HOUSE, LAHORE and 3 others---Petitioners

versus

Messrs MEGNA TECH (PVT.) LTD. through Director and 2 others---Respondents

Writ Petition No.735 of 2006, heard on 19th November, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches, doctrine of---Applicability---Electric Inspector and Advisory Board decided the matter against petitioner vide their orders dated 6-3-2003 and 18-10-2003, respectively, which orders were assailed by petitioner in year, 2006---Validity---Doctrine of laches was developed by superior Courts to regulate their jurisdiction to have petition dismissed on the threshold---Doctrine was based upon equity and had allowed High Court to non-suit a person on its basis, if it found a party guilty of contumacy, indolence, inaction, laxity or gross negligence in prosecution of a case---Petition was filed two years and two months after the decision of Advisory Board---No compelling reasons were put forth to justify laches, therefore, petition must fail on account of laches---High Court upheld the decision made by Advisory Board as the same was valid and suffered from no jurisdictional defect or error of law, which did not call for judicial review---Petition was dismissed in circumstances.

Messrs Sheikh Spinning Mills Ltd. through Office Manager v. Government of Punjab, Irrigation and Power Department through Secretary and 5 others PLD 2006 Lah. 603; Water and Power Development Authority, through its Chairman v. Barkat Ali and 2 others 1995 CLC 654 and The State through National Accountability Bureau Islamabad v. Haji Nasim-ur-Rehman PLD 2005 SC 270 distinguished.

S.A. Jameel v. Secretary to the Government of the Punjab, Cooperative Department and others 2005 SCMR 126 rel.

Umer Sharif for Petitioners.

Muhammad Younis Chaudhry for Respondents.

Date of hearing: 19th November, 2014.

2015 Y L R 1522

[Lahore]

Before Shahid Karim, J

Syeda ABIDA HUSSAIN IMAM and others---Petitioners

versus

The PROVINCE OF PUNJAB through Secretary and others---Respondents

Writ Petition No.20815 of 2014, decided on 22nd December, 2014.

(a) Lahore Development Authority Land Use (Classification, Re-classification and Re-development) Rules, 2014---

----Rr. 7 & 27---Lahore Development Authority Land Use (Classification, Re-classification and Re-development) Rules, 2009, R. 39---Constitution of Pakistan, Art. 199--- Constitutional petition---Classification of use of land---"Institutional" and "commercial" use---Distinction---Laches, principle of---Applicability--- Alternate remedy---Petitioners assailed re-classification of use of land by respondents for construction of multistoreyed building being constructed for use of office---Validity---No period for appeal (alternate remedy) was prescribed under R. 39 of Lahore Development Authority Land Use (Classification, Re-classification and Re-development) Rules, 2009, and in absence of anything to the contrary, nothing could be read into the law to such effect---Petitioners did not give any reason as to why they waited for two years to lay a challenge on such ground which could have been done earlier on coming to know about the fact of re-classification---One of the petitioners made use of re-classification in respect of his own properties---Definition of commercial use simply referred to land use which was predominantly connected with sale and distribution of goods and services and it related to general activity which could be called commercial in nature viz the sale and distribution of goods and services---Term 'institutional use' as used, had restricted the use to activities other than sale and distribution of goods and services---High Court declined to overturn notification of re-classification as the petition was barred by laches and a challenge on such account must fail too---Right of appeal was provided under R. 27 of Lahore Development Authority Land Use (Classification, Re-classification and Re-development) Rules, 2014, to any person aggrieved by an action taken under the rules within thirty days before government---Such issue having not been brought up by the parties, therefore, High Court did not deal with such aspect of the matter---Aggrieved person could make use of such provision, which right was not available under the provisions of Lahore Development Authority Land Use (Classification, Re-classification and Re-development) Rules, 2009---Upon re-classification, a re-development plan was put into motion by Lahore Development Authority and it was the mandate of Lahore Development Authority Land Use (Classification, Re-classification and Re-development) Rules, 2014---Obligation was cast upon Lahore Development Authority to take that re-development plan to its fruition and without, in any way, deviating from it---Lahore Development Authority as an overarching regulatory body was further obligated to keep a constant vigil in respect of conversion of all land uses in the area---High Court directed that Lahore Development Authority must ensure compliance of conditions of permission granted---Petition was dismissed in circumstances.

Muhammad Rashid v. The State PLD 1960 SC (Pak.) 168; Judicial Review (Seventh Edition); Iftikhar Ahmad and others v. President, National Bank of Pakistan and others PLD 1988 SC 53; Smith v. East Elloe R.D.C. (1956) A.C. 736; Re: X.J.S. Investments Limited (1996) I.R. 750; K.S.K. Enterprises Ltd. v. An Bord Pleanala (1994) 2 I.R. 128; O'Keeffe v. An Bord Pleanala (1993) 1 IR 30 and (2000) 1 WLR 354 ref.

(b) Words and phrases---

----"Office"---Defined---Word 'office' is used broadly and includes within it corporate offices housed in large buildings.

Oxford Advanced Learners' Dictionary, 8th Edition; Merriam Webster's Unabridged Dictionary and Kamaluddin Qureshi v. Ali International Co. PLD 2009 SC 367 ref.

(c) Interpretation of statutes---

----Identical words--- Effect--- Natural presumption is that identical words used in different parts of same Act are intended to have same meaning.

Atlantic Chasers and Dyers v. United States, 286 US 427, 433 and Statutory Interpretation 6th Edition rel.

Saad Rasool, Haseeb Ahsan Javaid and Anum Azhar for Petitioners.

Ashtar Ausaf Ali for Respondent No.11.

Waqar A. Sheikh for LDA.

Munawar us Salam and Waleed Khalid for Respondent No.10.

Rana Asad Ullah Khan for Respondents Nos. 1 and 2.

Waqar Ahmad Chaudhary, A.A.-G.

Date of hearing: 9th December, 2014.

2015 Y L R 1542

[Lahore]

Before Shahid Karim, J

Malik HABIB ULLAH---Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through Director General and others---Respondents

Writ Petition No.11787 of 2003, decided on 6th January, 2015.

Land Acquisition Act (I of 1894)---

----Ss.17(4) & 6---Punjab Land Acquisition Rules, 1983, Rr. 3 (a) & 10 (2)---Constitution of Pakistan, Art. 199---Constitutional petition---Acquisition of land---Government, powers of---Petitioner assailed notice of acquisition of land issued in favour of Lahore Development Authority---Validity---Word 'includes' appearing in R. 3(a) of Punjab Land Acquisition Rules, 1983, signified that the definition was not exhaustive nor restrictive but was extensive and, therefore, did not restrict power of government to acquire totality of interest of land---Government, in a given case could acquire such interests and immovable structures attached to land sought to be acquired---Mere fact that immovable structures had been constructed on the land, would not put a clog on the power of government not to acquire land---Lahore Development Authority was not a "company" within the meaning of expression used in Land Acquisition Act, 1894, and was a government instrumentality set up under a statute viz Lahore Development Authority Act, 1975, and therefore, did not come within the ambit of term 'company' as used in Land Acquisition Act, 1894---High Court declined to interfere in notification in question issued by government---Petition was dismissed in circumstances.

PLD 1976 Lah. 1233 rel.

Dr. A. Basit for Petitioner.

Waqar A. Sheikh for LDA.

Dates of hearing: 31st December, 2014 and 1st January, 2015.

2015 Y L R 1558

[Lahore]

Before Sadaqat Ali Khan and James Joseph, JJ

ATTA MUHAMMAD---Appellant

versus

The STATE---Respondent

Criminal Appeal No.468 of 2010 and M.R. No.1 of 2011, heard on 7th July, 2014.

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

----S.302 (b)---Qatl-i-Amd---Appreciation of evidence---Substitution phenomena---Mitigating circumstances--- Sentence, reduction in---Accused was convicted by Trial Court under S. 302(b), P.P.C. and sentenced to death---Validity---Incident was a daylight occurrence and there was no question of mis-identity of accused as he was otherwise cousin of one of the prosecution witnesses---Presence of such eye-witness at the spot at relevant time could not be considered as unnatural or improbable---Complainant was real brother of deceased and it was improbable that complainant would let off the real culprit and had falsely implicated accused for murder of his real sister---Substitution in such like cases was a rare phenomenon---Accused was entitled to benefit of doubt as an extenuating circumstance while deciding his question of sentence as well---High Court maintained conviction awarded to accused by Trial Court but altered death sentence into imprisonment for life---Appeal was allowed accordingly.

Meer Muhammad alias Meero v. The State 2009 SCMR 1188; Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034; Hasil Khan v. The State 2012 SCMR 1936 and Nawaz Khan v. Ghulam Shabbir and The State 1995 SCMR 1007 rel.

(b) Criminal trial---

----Related witness---Principle---Mere relationship of a witness with deceased does not make witness unworthy of reliance, if his testimony is corroborated by independent evidence of circumstances appearing on record.

Hasil Khan v. The State and others 2012 SCMR 1936 rel.

(c) Criminal trial---

----Defence plea which is simplicitor denial is not admissible.

Muhammad Sharif Bhatti for Appellant.

Syed Zahid Hussain Shah for the Complainant.

Ch. Asghar Ali Gill, D.P.G. for the State.

Date of hearing: 7th July, 2014.

2015 Y L R 1568

[Lahore]

Before Shoaib Saeed, J

SULTAN MEHMOOD---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, BHAKKAR and others---Respondents

Writ Petition No.28799 of 2013, decided on 11th November, 2013.

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

----Art. 76---Constitution of Pakistan, Art. 199--- Constitutional petition---Secondary evidence---Permissibility---Loss of document, required to be proved---Application for production of lost document as secondary evidence was disallowed---Validity---Proof of existence, its execution and loss of original document was mandatory especially where execution of original document was declined by the other party---Petitioner without bringing on record unimpeachable evidence and permission of the Court had sought production of documents, which was rightly disallowed by the Court---Constitutional petition was dismissed.

2001 CLC 1796 rel.

Sadaqat Mehmood Butt for Petitioner.

2015 Y L R 1582

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD AMIR---Petitioner

versus

The STATE and another---Respondents

Crl. Misc. No.5844-B of 2013, decided on 9th January, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating and dishonestly inducing delivery of property, forgery for valuable security, forgery for purpose of cheating, using as genuine a forged document, corruption---Pre-arrest bail, confirmation of---Delay of 2-3/4 years in reporting the matter had not been explained---Two co-accused had been admitted to anticipatory bail and pre-arrest bail---Nowhere in the FIR it had been alleged that accused was a party to the alleged forgery and fabrication of the documents in question---Accused, prima facie, had purchased the plot in question on the strength of a registered power of attorney---Accused had already instituted a suit for declaration respecting the suit property which was pending adjudication before the civil court concerned---Falsity or forgery of fabrication of general power of attorney, was yet to be determined by the civil court after recording the evidence---Offences under Ss.420 & 471, P.P.C., were bailable, whereas S.5(2) of the Prevention of Corruption Act, 1947 did not appear to be attracted to the case of accused, inasmuch as he was not a Government servant---No allegation against accused that he was involved in any other case; and his implication in the present case appeared to be stemming from mala fide---Complainant wanted to put pressure upon accused so as to make accused part with the suit property---Ad interim bail granted to accused, was confirmed, in circumstances.

Ch. Sarfraz Ahmad Zia for Petitioner.

Shaukat Ali Ghauri, APG and M. Saleem A.S.-I. Police Station Anti-Corruption Establishment for Petitioners.

Complainant in person.

2015 Y L R 1598

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

WAPDA through Chairman and 3 others---Petitioners

versus

KHALID PERVAIZ---Respondent

C.R. No.846 of 2006, heard on 26th August, 2014.

(a) Electricity Act (IX of 1910)---

----S. 26(6)---Theft of electricity---Detection bill---Civil court, jurisdiction of---Scope---Objection raised with regard to question of law---Effect---Contention of WAPDA (defendant) was that when detection bill was issued due to theft of electricity against a consumer with regard to metering equipment then civil court had no jurisdiction in the matter---Suit was decreed concurrently---Validity---Detection bill was issued on the charge of slowness of meter---Jurisdiction of civil court was barred with regard to allegation of theft of electricity against the consumer due to metering equipment---Both the courts below had omitted to consider the said aspect of the case while passing the impugned judgments and decrees---Question of jurisdiction being a question of law could be raised by any party at any stage of proceedings even court itself was required to examine whether it had jurisdiction to proceed or not---Party would not be debarred from raising objection at later stage of proceedings even before higher forum merely that it had not raised any objection out of ignorance or for want of proper advise---Neither silence of party nor even waiver would confer the jurisdiction on a court not vested in law---Question of jurisdiction would go to the roots of case and same would render the entire proceedings coram non judice thereby vitiating the entire proceedings and making the judgment illegal and void---Question of jurisdiction should be firstly decided by the court---Suit was remanded to the Trial Court without touching upon merits of the case---Impugned judgments and decrees were set aside---Trial Court was directed to decide the matter afresh considering the objection of jurisdiction---Revision was accepted in circumstances.

Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd Okara and others PLD 2012 SC 371 and Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630 ref.

Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd Okara and others PLD 2012 SC 371 and Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630 rel.

(b) Jurisdiction---

----Objection to jurisdiction---Scope---Question of jurisdiction being a question of law could be raised by any party at any stage of proceedings even court itself was required to examine whether it had jurisdiction to proceed or not---Party would not be debarred from raising objection at later stage of proceedings even before higher forum merely that it had not raised any objection out of ignorance or for want of proper advise---Neither silence of party nor even waiver would confer the jurisdiction on a court not vested in law---Question of jurisdiction would go to the roots of case and same would render the entire proceedings coram non judice thereby vitiating the entire proceedings and making the judgment illegal and void---Question of jurisdiction should be firstly decided by the court.

Aurangzeb Mirza for Petitioners.

Nemo for Respondent.

Date of hearing: 26th August, 2014.

2015 Y L R 1606

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Hafiz NAZIR AHMED---Petitioner

versus

ZAIN UL ABIDEEN---Respondent

Civil Revision No.542 of 2004, decided on 16th July, 2013.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 11 & 47---Conciliation Courts Ordinance (XLIV of 1961), Ss. 3 & 5---Execution of ex parte decree passed by Conciliation Court---Objection of judgment-debtor was that Conciliation Court consisted of its Chairman and two Members/representatives, whereas such decree passed by Chairman alone in absence of recommendations of two Members was coram non judice; and that he was not served and he came to know about decree after issuance of process against him by Executing Court---Dismissal of objection petition on ground that Executing Court could not determine jurisdiction of Conciliation Court---Dismissal of objector's appeal by Appellate Court---Validity---Courts below had not committed any illegality in passing impugned orders---High Court dismissed revision petition in circumstances.

Allah Ditta v. Ahmad Ali Shah 2003 SCMR 1202; Muhammad Tariq Khan v. Muhammad Jawwad 2007 SCMR 818; Naseem Akhtar v. Shalimar General Insurance Company 1994 SCMR 22; Habib Bank v. Wasim 2007 CLD 473 and Shafqat Ullah v. Land Acquisition 2006 CLC 1555 rel.

Abdul Jalil Khan for Petitioner.

Malik Imtiaz Mehmood Awan for Respondent.

2015 Y L R 1617

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ZAHEER AHMAD BABAR---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others---Respondents

W.P. No.14986 of 2012, decided on 9th May, 2013.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 2(e), 15 & 22---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment petition---Joint property owned by four owners---Portion of joint property in possession of tenant under rent agreement dated 5-12-1982 became property of landlord through partition decree passed in August, 2001---Grounds for eviction were default in payment of rent by tenant; bona fide personal need of premises by landlord; and expiry of term of 11 months of oral rent agreement in December, 2008---Tenant's plea in leave application that he had paid Rs. 40,000 as Pagri to co-owners under rent agreement dated 5-12-1982 and had not violated terms of tenancy agreement---Dismissal of leave application and acceptance of ejectment petition by Rent Tribunal upheld by Appellate Authority---Validity---Rent Tribunal while holding that tenancy between parties was regulated by rent agreement dated 5-12-1982 had erred in law by substituting landlord's plea, which was to the effect that after partition of joint property, he became owner of rented premises and he entered into oral tenancy agreement with tenant for 11 months---Pagri amount paid by tenant to joint owners was part of rent agreement dated 5-12-1982, but ejectment petition did not explain that who out of 4 joint owners became beneficiary thereof after partition of joint property---Rent Tribunal had failed to decide fate of Pagri amount, though he was legally bound to decide whether same was returnable to tenant or not at time of vacation of premises; and that who was responsible for its return---Rent Tribunal while deciding fate of "Pagri" would be liable to consider question as to whether its original amount was returnable or with addition of devaluation of currency as tenant was enhancing rent according to law---High Court set aside impugned judgments, granted leave application and remanded ejectment petition to Rent Tribunal for its decision after recording evidence of parties.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 2(e)---"Pagri", amount of---Duty of Rent Tribunal to decide fate of pagri amount, if alleged by tenant to have been paid to landlord, while disposing of ejectment petition---Principles.

Under Section 2(e) of Punjab Rented Premises Act, 2009, the amount of "Pagri" is a recognized amount payable to the landlord and the Rent Tribunal while deciding the rent petition is bound to decide the return or confiscation of the amount of "Pagri".

Amount of "Pagri" is recognized mode of payment of substantial amount by the tenant to landlord in the business community and prior to the Punjab Rented Premises Act, 2009, the law was not recognizing the amount of "Pagri", but after the Act the amount of "Pagri" is a recognized amount. After the recognition by law, the Rent Tribunal is bound to decide whether the said amount is returnable to tenant at the time of vacation of property or not.

Aamir Iqbal Basharat for Petitioner.

Jehangir Akhtar Jojha for Respondents.

Date of hearing: 28th March, 2013.

2015 Y L R 1635

[Lahore]

Before Abdus Sattar Asghar, J

PROVINCE OF THE PUNJAB through Collector and 2 others---Petitioners

versus

Mst. NABEELA TAJ and others---Respondents

Civil Revision No.886 of 2000, heard on 17th June, 2013.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 16 & 30(2)---Allotment of State land through sale deed to a tenant---Cancellation of such allotment and resumption of land by Board of Revenue in exercise of suo motu jurisdiction under S. 30(2) of Colonization of Government Lands (Punjab) Act, 1912 on ground of non-availability of any record in the office---Scope---Purchase and execution of sale deed once completed, then parties would cease to be governed by conditions incompatible with those incorporated in such deed---Action against such allottee/ purchaser could be taken only in accordance with terms and conditions of such deed and not otherwise---Board of Revenue had no jurisdiction to cancel such deed or resume land in absence of any fraud, misrepresentation or non-eligibility of tenant in acquiring tenancy or proprietary rights in such land---Illustration.

Mrs. Kishwar Ashraf v. Senior Member, Board of Revenue (Member Revenue), Punjab, Lahore and 2 others 2010 CLC 916; Ghous Muhammad v. Member (Colonies), Board of Revenue, Punjab, Lahore 1986 MLD 997; Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 and Muhammad Bakhsh v. Ellahi Bukhsh and others 2003 SCMR 286 ref.

Muhammad Ashraf and others v. Ijaz Ahmad Bajwa PLD 1985 Rev.8 and Ch. Muhammad Wasi and 9 others v. Member (Colonies) Board of Revenue Punjab Lahore 2001 CLC 564 rel.

Ms. Firdous Butt, A.A.-G. for Petitioners.

Ch. Khurshid Ahmed for Respondent No.1

Date of hearing: 17th June, 2013.

2015 Y L R 1649

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

Sardar ALI MUHAMMAD---Appellant

versus

MUHAMMAD AYYUB---Respondent

R.F.A. No.9 of 2010, heard on 1st October, 2013.

Negotiable Instruments Act (XXVI of 1881)---

----S.118---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2---Presumption as to negotiable instrument of consideration---Suit for recovery of money on basis of promissory note, was dismissed inter alia on the ground that plaint was silent about mode and place of payment etc---Validity---Since the defendant had not filed any leave to defend, therefore the Trial Court was required to decree the suit in terms of O. XXXVII R. 2(2), C.P.C. and it was not even necessary for the plaintiff to give ex parte evidence----Trial Court need not have gone into issues of place of payment, and mode of payment etc, as under S. 118 of the Negotiable Instruments Act, 1881 consideration in respect of negotiable instrument was to be presumed under the law unless such presumption had been rebutted by the defendant, and in the present case, the defendant had not rebutted the same---Findings of the Trial Court were therefore, erroneous; and impugned order was set aside and the suit was decreed---Appeal was allowed, in circumstances.

Haji Ali Khan v. A.B.L. PLD 1995 SC 362; Ahmad Autos v. A.B.L. PLD 1990 SC 497; Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530; Ashfaq Ahmad v. Muhammad Waseem 1999 SCMR 2832; Muhammad Haneef Sheikhani v. Muhammad Khalid Shafi 2009 CLD 1129; Malik Liaqat Ali v. Muhammad Sharif 2009 CLD 1313; Muhammad Ishaque v. Rana Dilbar Hussain 2010 CLC 1059 and Muhammad Aziz ur Rahman v. Liaqat Ali 2007 SCMR 1820 rel.

Syed Muhammad Ali Gillani for Appellant.

Respondent proceeded against ex parte.

Date of hearing: 1st October, 2013.

2015 Y L R 1667

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD AAMIR---Petitioner

versus

NAZIA BIBI and another---Respondents

Writ Petition No.2724 of 2011, decided on 10th September, 2013.

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

----Ss.5, Sched. & 10(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dissolution of marriage---Return/restoration of dower amount---Wife filed suit for dissolution of marriage on the basis of "khula" before Family Court---Suit for dissolution of marriage was decreed by the Family Court with a direction to wife for returning dower amount as mentioned in the "Nikah Nama"---Contention of the petitioner husband was that wife had received the dower amount in shape of gold ornaments, therefore she was bound to return the dower or cash as per prevalent rate of gold and that the order of Family Court was not sustainable---Validity---Copy of Nikahnama reflected that "Mehr" was fixed in shape of money (Thirty Six Thousand Rupees), the same had been paid in terms of gold ornaments of same value---Dower had neither been fixed in the form of gold ornaments nor the weight/description of gold ornaments was mentioned in Nikhanama, in the absence of which no valid order could be passed for return of gold ornaments---Order of Family Court was strictly in consonance with the provisions of law---Constitutional petition was dismissed.

Sh. Muhammad Illyas for Petitioner.

Respondent in person.

2015 Y L R 1674

[Lahore]

Before Kh. Imtiaz Ahmad and Muhammad Khalid Mehmood Khan, JJ

NAWAB-UD-DIN SAINGAL---Appellant

versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Election Appeal No.168-A of 2013, decided on 11th April, 2013.

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

----S. 14(5)---Rejection of nomination papers of candidate by Returning Officer---Right of candidate to file appeal before Election Tribunal against decision of Returning Officer---Scope---Section 14(5) of Representation of the People Act, 1976 did not grant right of appeal to any aggrieved person/third party---Only a candidate was provided right of appeal under the said section---Wisdom for not providing the right to appeal to any aggrieved party other than the candidate was that aggrieved party had the option not to cast vote in favour of the candidate if he/she thought that the candidate did not fulfill the requirements of law.

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

----Ss. 14(5) & 14(5-A)---Acceptance of nomination papers of candidate by Returning Officer---Voter of candidate's constituency filing appeal in terms of S.14(5) of Representation of the People Act, 1976 against decision of Returning Officer---Maintainability---Plea of voter that S. 14 (5-A) provided that material or information could be brought to knowledge of Election Tribunal by "any source", therefore his appeal was maintainable--- Validity--- Although S.14(5-A) of Representation of the People Act, 1976 contained the words "by any source" but enabling section for filing appeal was S. 14(5) of the said Act, which provided right of appeal against order of Returning Officer only to the candidate---Voter was not an aggrieved person in terms of S. 14(5) of Representation of the People Act, 1976---Appeal was dismissed in circumstances being not maintainable.

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

----S. 14(5-A)---Suo motu powers of Election Tribunal under S. 14(5-A) of Representation of the People Act, 1976---Scope and purpose---Where a candidate failed to raise any objection which fell within the definition of disqualification due to his lack of knowledge or otherwise, S.14(5-A) of Representation of the People Act, 1976 conferred suo motu powers to Election Tribunal, which showed that legislator wanted transparency at every cost---Suo motu powers had been given to the Tribunal to ensure the perfect qualification of the candidate.

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

----S. 14(5-A)---Appeal before Election Tribunal---"Information" or "material" brought to the knowledge of Election Tribunal--- Examination of such information or material by Election Tribunal---Scope---Words "information" or "material" used in S. 14(5-A) of Representation of the People Act, 1976 meant information or material which could not be brought before the Returning Officer, and earlier information or material which was examined by the Returning Officer but was not considered---Where some fresh information was received before the decision of appeal that information and material could be examined by the Tribunal, hence construction of S. 14(5-A) of Representation of the People Act, 1976 was that it was an addition to the facts and law examined by the Returning Officer---Election Tribunal would not consider appeal in terms of S. 14(5-A) of Representation of the People Act, 1976 in the absence of any fresh information or material.

Inam Ullah Hashmi for Appellant.

Ch. Muhammad Iqbal, Additional Advocate General, Punjab for Respon-dents.

Date of hearing: 11th April, 2013.

2015 Y L R 1690

[Lahore]

Before Miss Aalia Neelum, J

ARSHAD MEHMOOD---Appellant

versus

ABDUL HAQ and 3 others---Respondents

Crl. Appeal No.290 of 2014, decided on 26th September, 2014.

Penal Code (XLV of 1860)---

----Ss. 324, 34 & 109---Criminal Procedure Code (V of 1898), S.417(2-A)---Attempt to commit qatl-i-amd, common intention, abetment---Appeal against acquittal---Alleged occurrence, was reported to the Police with delay of one day and 7.35 hours for which no plausible explanation had been furnished---Investigating Officer had failed to collect any crime empties from the place of occurrence, though in the FIR, it was mentioned that indiscriminate firing was made by accused---Empties produced by son of the complainant before Investigating Officer after 9 days of occurrence, were not free from doubt---Complainant could not be believed to have totally escaped; and remained unhurt in presence of indiscriminate firing resorted by accused persons---Trial Court, in circumstances, had rightly come to the conclusion that there was no chance of conviction of accused persons---Acquittal order was to be interfered with only in exceptional cases to avoid miscarriage of justice---Findings of the Trial Court, did not suffer from any perversity, illegality or infirmity; and same was based on sound and cogent reasons, warranting no interference by High Court---Appeal against acquittal having no substance, was dismissed, in circumstances.

Sardar Shahid Hanif for Appellant.

2015 Y L R 1699

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Miss Aalia Neelum, JJ

MUHAMMAD AFZAL and 2 others---Appellants

versus

The STATE---Respondent

Criminal Appeal No.11 and Murder Reference No.1 of 2008/BHP, heard on 6th February, 2014.

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

----Ss. 302(b), 392, 411, 460 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, robbery, dishonestly receiving stolen property, lurking house trespass by night, common intention---Appreciation of evidence---Delay of 20 hours in lodging the FIR was alarming---Both the prosecution witnesses who accompanied the complainant, were residents of distant place away from the place of occurrence---Time in between the injuries and postmortem examination ranged between 18 and 36 hours---Possibility, in view of facts and circumstances of the case, could not be ruled out that the occurrence was committed by someone who was welcomed in the house, with whom the time was consumed; and subsequent to that due to one reason or the other the occurrence had taken place---Statements of the complainant and other prosecution witnesses, seemed an afterthought---Recovery of certain articles from accused persons, also became doubtful---Motive of the case was remote and prosecution had failed to substantiate the motive, either during the course of investigation or during the course of trial---Possibility could not be ruled out that judicial confession of accused was procured while using third-degree, and such confession had no legal value, especially when same was retracted---Both the prosecution witnesses of last seen hailed from a place 30 kilometers away from place of occurrence, and they could not explain the purpose for which they had visited place of occurrence---Whole prosecution case was based upon circumstantial evidence, and to base conviction on circumstantial evidence there should be interlinking chain of credible and cogent corroborative evidence available on record, which was totally missing in the case---Whole prosecution case seemed to be hinging upon conjectures and surmises creating serious doubts about its authenticity; same could not be taken as proof to bring home guilt of accused in the case of capital charge---Prosecution version was burdened/loaded with major discrepancies, which had created serious doubts in its authenticity---Prosecution version with regard to manner of approaching the complainant and the prosecution witnesses to the house of the deceased, the medical evidence being at variance, and the manner of recoveries coupled with the alleged judicial confession contradicted each other on material points creating serious doubts in the prosecution version---Prosecution had failed to bring on record any convincing material to establish that it were the accused persons who had committed the occurrence---Conviction and sentence recorded by the Trial Court were set aside, and accused persons were acquitted of the charge and were released, in circumstances.

Fazal Mahmood alias Pappu v. The State 1999 SCR 2040; Wilayat Ali v. The State and another 2004 SCMR 477; Majeed v. The State 2010 SCMR 55; Nabi Bakhsh and another v. The State and another 1999 SCMR 1972; Muhammad Gul and others v. The State 1991 SCMR 942 and Muhammad Amin v. The State PLD 2006 SC 219 ref.

Karamat Hussain v. The State 1972 SCMR 15 and Muhammad Luqman v. The State PLD 1970 SC 10 rel.

(b) Criminal trial---

----Prosecution had to stand on its own legs, and the defence had to show only glimpse---Prosecution could not take any benefit of weakness of defence plea.

Shamir alias Shamla v. The State PLD 1958 SC 242 and Shera Masih and another v. The State PLD 2002 SC 643 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---Not necessary that there should be so many circumstances; if one circumstance was sufficient to discharge and bring suspicion in the mind of the court that the prosecution had faded up the evidence to procure conviction, then court could come forward for the rescue of accused persons.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Rai Bashir Ahmed and Asim Bukhari for Appellants.

Tariq Javed, DDPP for the State.

Rustam Khan Padhiar for the Complainant.

Date of hearing: 6th February, 2014.

2015 Y L R 1733

[Lahore]

Before Shujaat Ali Khan , J

Syed A.S. SHAH---Petitioner

versus

UNIVERSITY OF THE PUNJAB and others---Respondents

Writ Petition No.6843 of 2009, decided on 11th March, 2015.

(a) Constitution of Pakistan---

----Arts.199 & 3---Constitutional petition---Educational Institution---Fundamental Rights---Petitioner being Ph. D. Research Scholar could not submit his synopsis due to non-availability of Research Supervisor---Petitioner requested the University authorities for nomination of his Research Supervisor but he was informed that Advance Studies and Research Board had only allowed his re-registration in Ph. D. program---Contention of petitioner was that he could not be made to suffer on account of fault on the part of University authorities---Validity---Departmental Doctoral Program Committee recommended to the Dean of Faculty for approval of the names of applicants who were found suitable for studies leading to Ph. D. degree along with the name of Research Supervisor---Board of Studies/Faculty Council was to approve the title/synopsis of the thesis and name of Research Supervisor within one year after the admission of the petitioner---Neither the Departmental Doctoral Program Committee nominated the Research Supervisor of the petitioner nor the title/synopsis was approved by the competent authority---No adverse inference could be drawn against the petitioner in such state of affairs rather the sluggish and uncalled conduct of the University/ College authorities should call for stern action---Action taken against the petitioner on the premises that synopsis submitted by him were bereft of signature of Research Supervisor could not be given legal blanket---When no Research Supervisor was nominated by the authorities then question with regard to consent of Research Supervisor on the synopsis submitted by the petitioner did not arise---Nobody should suffer on account of any omission and commission on the part of the functionaries---University/College authorities had failed to discharge their liability towards nomination of Research Supervisor and approval of title/synopsis---Research Supervisor was not available at the relevant time---When University authorities had failed to discharge their obligations, petitioner could not be proceeded against---Act of functionaries could not be allowed to prejudice case of an individual when there was no omission or commission on his part---When authority had failed to abide by the Regulations, the same could not be allowed to proceed against the petitioner while taking aid of said Regulations---Authority was bound to ensure protection of fundamental rights of the citizen and to eliminate any kind of exploitation---Act of Authority was aimed at to exploit the petitioner---Departmental Doctoral Program Committee and Board of Studies/ Faculty Council was bound to nominate Research Supervisor and approve title/synopsis of the petitioner---Petitioner could not be penalized in absence of such approval of Research Supervisor---No compensation existed for the period already spent by the petitioner as Ph. D. Research Scholar---University authorities were directed to nominate Research Supervisor of the petitioner for submission of research work---Impugned letters/orders of the authorities were set aside---Chairman Higher Education Commission was directed to look into the matter and fix responsibility and take action against the delinquents within the specified period.

Muhammad Yasin v. Secretary, Govt. of Punjab and others 2007 SCMR 1769; District Coordination Officer, Narowal v. Ansar Pervaiz 2006 SCMR 997 and Chairman Board of Intermediate and Secondary Education, Bahawalpur and another v. Rizwan Rashid and 3 others 2005 SCMR 728 rel.

(b) Constitution of Pakistan---

----Art. 3---Elimination of exploitation---Government was bound to eliminate any kind of exploitation towards its masses.

(c) Public functionaries---

----Nobody should suffer on account of any omission and commission on the part of public functionaries.

Syed Ijaz Qutab for Petitioner.

Aamir Mehmood for Respondents.

2015 Y L R 1749

[Lahore]

Before Abdus Sattar Asghar, J

ABDUL RAZZAQ and 5 others---Petitioners

versus

ABDUL SATTAR and another---Respondents

Writ Petition No.24128 of 2014, decided on 11th September, 2014.

Partition Act (IV of 1893)---

----Ss. 2, 3 & 4---Civil Procedure Code (V of 1908), O. XX, R. 18 (2)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for partition---Property not capable of convenient division---Auction of property---Scope---Nothing was on record to show that plaintiff had ever acceded to the valuation of joint property as assessed by the local commissioner---Plaintiff did not agree to the value of suit property as assessed by the local commission i.e. Rs.25,00,000 rather he offered to purchase the same for a sum of Rs. 50,00,000 but defendants did not agree to his offer---Court had inherent jurisdiction to adopt such means as might be equitable including sale of joint property when same was not capable of convenient division---Such order of sale had to be executed as a decree---Trial Court had rightly exercised jurisdiction for putting the joint property onto sale through auction as parties could not agree on the valuation of the same---Defendants had right to apply the Trial Court for leave to purchase the plaintiff's share which would be determined by the said court---No jurisdictional error or legal infirmity had been pointed out in the impugned order---Constitutional petition was dismissed in circumstances.

Akram Maquim Ansari (represented by heirs) and 3 others v. Mst. Asghari Begum and another PLD 1971 Kar. 763 and Malik Taj Din and others v. Malik Ashiq Hussain and others NLR 1993 AC (Civil) 554 rel.

Malik Qamar-ul-Hassan for Petitioners.

2015 Y L R 1765

[Lahore]

Before M. Sohail Iqbal Bhatti, J

GULL ARZOO---Petitioner

versus

STATION HOUSE OFFICER BZ, DISTRICT, MULTAN and 6 others---Respondents

Crl. Misc. No.453-H of 2014, decided on 7th August, 2014.

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

----S. 491---Habeas corpus petition---Custody of suckling minor---Jurisdiction of High Court and Sessions Court---Scope---Exercise of paternal jurisdiction---Welfare of minor paramount consideration----Mother filed petition for recovery of minor daughter which was in the custody of father---Contention of father was that he had moved an application under S. 25 of Guardians and Wards Act, 1890 and Guardian Court had restrained the mother from illegally snatching the minor from his custody---Validity---Mother filed an application on 18-7-2014 before Sessions Court under S.491, Cr.P.C. wherein Station House Officer was directed to produce the detenue before the court on 19-7-2014 on which father made statement that alleged detenue had gone to place "X" but on the same day detenue was brought before the Guardian Court and interim order was obtained---Mala fide on part of father was on record as he did not produce the detenue before the Sessions Court while making a mis-statement that detenue had gone to place "X"---If minor child was produced before Sessions Court then said court would have been left with no other option but to hand over the custody of a suckling child to her mother---High Court while exercising paternal jurisdiction with regard to the matter of custody of minor/suckling baby was to perform such a legal duty in order to ensure the well being and welfare of a minor child---Order passed by Guardian Court or pendency of petition for custody of minor was no bar on decision of an application under S.491, Cr.P.C. on merits---No substitute of real mother existed and minor girl could be brought up properly by mother only and her custody with anyone except the real mother was improper---High Court and Sessions Court had concurrent jurisdiction under S. 491, Cr.P.C.---Paramount consideration for the court in the matters with regard to custody of minor of tender age would be the welfare of a minor---Deprivation of mother of the custody of infant was neither lawful nor proper nor was in the interest of minor aged one year to be kept away from the lap of her mother as there could be no substitute of it---Constitutional petition was allowed and custody of minor was handed over to her mother.

Naziha Ghazali v. The State and another 2001 SCMR 1782 ref.

Mst. Saima Bibi v. Raheel Butt and 3 others 2014 MLD 38; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and antoher PLD 2004 SC 1 and Mst. Shabana Niazi v. Muhammad Khalilur Rehman and 2 others 1994 PCr.LJ 715 rel.

(b) Islamic Law---

----Hizanat of minor, right of---Welfare of minor---Scope---Right of Hizanat of minor girl would vest with the mother till the girl had attained age of puberty---Welfare of minor girl would be with her mother---Lap of mother was cradle of God having no substitute for it---Right of Hizanat would vest in mother up to a certain age---Boy (minor) should remain with the mother up to seven years whereas girl up to nine years---Paramount consideration for the court in the matters with regard to custody of minor of tender age would be the welfare of minor.

Zakir Hussain Baloch for Petitioner.

Abdul Waheed Khan Tareen for Respondent No.2.

Mian Abdul Qayyum, APG.

Sarfraz Dogar, S.I. in person.

Petitioner in person along with minor.

2015 Y L R 1774

[Lahore]

Before Atir Mahmood, J

Syed MUNEEB AHMED SHAH---Petitioner

versus

ADDITIONAL COLLECTOR and others---Respondents

Writ Petition No.4937 of 2012/BWP, heard on 25th April, 2013.

Punjab Local Government Ordinance (XIII of 2001)---

----Ss.8(2), 67, 117 & 190---West Pakistan Urban Immovable Property Tax Act (V of 1958), S.2(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Notification issued by Additional Collector/Administrator declaring an area to be Rating Area and imposing property tax thereupon---Petitioner's plea was that only the Administrator, but not Additional Administrator, had power to issue such notification--- Validity--- District Administrator/Tehsil Municipal Adminis-trator was competent to issue such notification by virtue of Ss.67(i) & 117 of Punjab Local Government Ordinance, 2001---Petitioner's objection petition filed under S.8(2) of Punjab Local Government Ordinance, 2001 had been dismissed by authority, whereagainst he had not availed remedy of appeal provided under S.190 thereof---High Court dismissed constitutional petition in circumstances.

Syed Saleem ud Din for Petitioner.

Saeed Ahmed Chaudhry, Assistant Advocate General for the State.

Date of hearing: 25th April, 2013.

2015 Y L R 1789

[Lahore]

Before Shahid Bilal Hassan, J

FATIMA BIBI and others---Petitioners

versus

MUHAMMAD HANIF and others---Respondents

C.R. No.1152 of 2003, heard on 22nd April, 2015.

Civil Procedure Code (V of 1908)---

----O.XIV, Rr. 1, 3 & 4---Specific Relief Act (I of 1877), S.42---Settlement of issues and determination of suit on "issues of law" or on "issues agreed upon framing of issues"---Obligation of Trial Court to frame issues in accordance with pleadings---Scope---Suit for declaration challenging gift mutations was decreed concurrently---Trial Court had not properly framed the "issues" keeping in view the pleadings of the parties---Plaintiff had challenged a number of mutations but Trial Court while framing issues omitted a pivotal mutation and also misstated the date of attestation of another mutation, which was not in conformity with the date mentioned in the plaint---When issues had not been framed in accordance with pleadings, the edifice and superstructure built on the same had no value in the eye of the law---High Court set aside decree and remanded matter to Trial Court with direction to frame proper issues with regard to the gift mutations in dispute---Revision was allowed, accordingly.

Sheikh Naveed Shahryar, Humaira, Fatima Malik and Uneza Siddiqui for Petitioners.

Shaigan Ejaz Chadhar for Respondents.

Date of hearting: 22nd April, 2015.

2015 Y L R 1793

[Lahore]

Before Nasir Saeed Sheikh, J

Pir HAIDER ZAMAN QURESHI---Petitioner

versus

Pir MUHAMMAD ASLAM BODLA and 3 others---Respondents

Election Petition No.126 of 2008, decided on 25th May, 2012.

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

----Ss.52 & 66---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Corrupt and illegal practices---Onus to prove---Petitioner was unsuccessful candidate and assailed election on the plea of use of corrupt and illegal practices by returned candidate---Validity---Returning Officer stated during cross examination that no complaint of any irregularity or of any alleged rigging was made to him during election process---Petitioner during his evidence did not level any specific allegation of corrupt and illegal practice committed during polling process---Lengthy cross examination was conducted upon returned candidate but nothing important or material could prove allegations of rigging as raised by petitioner having been committed by returned candidate---Onus to prove factual controversy of corrupt and illegal practices having been committed during election/polling process was upon petitioner who did not successfully prove issues framed by Election Tribunal---Election petition was dismissed in circumstances.

Mubeen ud Din Qazi for Petitioner.

Muhammad Shahzad Shaukat and Mian Muhammad Muddassar Bodla for Respondent No.1.

Date of hearing: 7th May, 2012.

2015 Y L R 1800

[Lahore]

Before Shujaat Ali Khan, J

RASOOL BAKHSH and others---Petitioners

versus

MUHAMMAD YAQOOB and others---Respondents

Civil Revision No.245-D of 1983, decided on 19th December, 2014.

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

----S. 42---Transfer of Property Act (IV of 1882), S. 54---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit for declaration---Limitation--- "Sale"--- Ingredients--- Oral sale--- Mutation--- Scope--- Contention of the plaintiffs was that they were owners of suit land and impugned mutation was illegal, unlawful and against the facts while the defendants contended that they were bona fide purchasers of suit property---Suit was decreed by the Trial Court but the same was dismissed by the Appellate Court---Validity---Party had to prove its case as set up in its pleadings---Onus to prove the transaction would be on the beneficiaries when the same had been challenged on the basis of fraud or misrepresentation---Defendants were bound to prove the offer by the vendors with regard to sale of land in question and its subsequent acceptance by the vendees---Vendors had to establish the payment of consideration amount in addition to delivery of possession---Defendant had not produced evidence to establish that plaintiff had made an offer with regard to sale of suit land which was accepted by him---Contents of mutation could not be relied upon without its due corroboration---Nothing was on record to prove that consideration amount was paid to the vendor---Impugned transaction was not a valid "sale" as defendants had failed to establish the payment of consideration amount---Transfer of possession was one of the most important ingredient to establish a valid sale of immovable property---Plaintiffs were in possession of the suit land---Defendants had failed to establish transfer of possession in lieu of sale---Period of limitation would start from the date of knowledge of plaintiffs when oral transaction had been challenged on the basis of fraud or misrepresentation---Nothing was on record that plaintiffs were in knowledge of the impugned mutation from the date of its attestation---Mere attestation of mutation in favour of a person did not create any title until and unless the same had been supported by a valid transaction---Impugned mutation was based on oral sale and until and unless the same was proved by the defendants being beneficiaries, same could not be considered as immune from interference by a court of law---Old entries recorded, in the revenue record carried presumption of truth but the presumption was not absolute rather when said entries were found baseless, the same could be knocked down by the competent forum---Presumption of truth could not be attached to the mutation without proof of the same by its beneficiaries---Mutation did not fall within the category of documents mentioned under Art. 100 of Qanun-e-Shahadat, 1984---Provisions of S. 54 of Transfer of Property Act, 1882 were applicable in the area (erstwhile State of Bahawalpur)---Any transaction being an oral sale was inconclusive---No sanctity could be attached to an oral sale until and unless the same was proved---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was accepted, in circumstances.

Fazal Din v. Muhammad Bashir 2001 YLR 2204; Khiali Khan v. Hani Nazir and 4 others PLD 1997 SC 304 and Muhammad Amin v. Mian Muhammad PLD 1970 Baghdad-ul-Jadid 5 ref.

Khiali Khan v. Hani Nazir and 4 others PLD 1997 SC 304 and Muhammad Amin v. Mian Muhammad PLD 1970 Baghdad-ul-Jadid 5 distinguished.

Rahmatullah and others v. Saleh Khan and others 2007 SCMR 729; Ashraf Ali (deceased) through L.Rs. and others v. Maryam Bibi and 4 others and 2004 SCMR 1536; Hakim Khan v. Nazir Ahmad Lughmani and 10 others 1992 SCMR 1832; Laloo and another v. Ghulama 2000 SCMR 1058; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Imam Din v. Bashir Ahmad PLD 2005 SC 468 and Muhammad Siddique v. Abdul Rauf and 10 others 2012 CLC 1734 rel.

(b) Mutation---

----Mere attestation of mutation in favour of a person did not create any title until and unless same had been supported by a valid transaction.

(c) Pleadings---

----Party had to prove its case as set up in its pleadings.

Ch. Shafi Muhammad Meo for Petitioners.

Ejaz Ahmad Ansari for Respondents.

Date of hearing: 9th December, 2014.

2015 Y L R 1810

[Lahore]

Before Shah Khawar, J

GHULAM YASIN KHAN---Petitioner

versus

The STATE and others---Respondents

Crl. Misc. No.2690-B of 2014, decided on 25th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 467, 471, 468, 109 & 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Punjab Anti-Corruption Establishment Rules, 1985, Rr.6, 7 & 8---Cheating and dishonestly inducing delivery of property, forgery, using as genuine forged document, forging for purpose of cheating, abetment, criminal breach of trust by public servant, corruption---Pre-arrest bail, grant of---FIR, in the case, had been lodged without adhering to the mandatory provisions of Punjab Anti-Corruption Establishment Rules, 1985, which provided preliminary enquiry---Logic behind the conducting of preliminary enquiry in the Rules was that the Anti-Corruption Establishment on receipt of any complaint, first determined the veracity of the complaint, and then hold a preliminary enquiry; after associating alleged accused, and after collecting incriminating material and verification of the record; either to drop the investigation or to proceed further for the registration of case---Accused had become entitled for grant of pre-arrest bail---Ad interim pre-arrest bail, already granted to accused, was confirmed, in circumstances.

Malik Shehzad Fareed Langrial for Petitioner.

Hassan Mehmood Khan Tareen, D.P.G., along with Muhammad Usman Tajammal, C. O. Anti-Corruption, Muzaffargarh for the State.

Muhammad Anwar Khan Sherwani for the Complainant.

2015 Y L R 1862

[Lahore]

Before Miss Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD USMAN and others---Appellants

versus

The STATE and others---Respondents

Criminal Appeals Nos.827, 931 and Murder Reference No.258 of 2010, heard on 21st May, 2015.

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

----Ss. 302(b), 34, 397 & 460---Qatl-i-amd, common intention, robbery or dacoity, with attempt to cause death or grievous hurt---Lurking house-trespass or house breaking by night---Appreciation of evidence---Benefit of doubt---Complainant and prosecution witnesses, made dishonest and flagrant improvements regarding the actual incident to make up the inconsistencies between the medical evidence and narration available in the crime report, to furnish more probable story, and to implicate more persons---Such improvements reflected adverse to the prosecution case and rendered the ocular account furnished by the prosecution, doubtful and unreliable---No features or any description of culprits, in the statements of the witnesses recorded under Ss.154 & 161, Cr.P.C., had been given by them---Culprits, were not seen by the witnesses at the relevant time, rendering the identification of all accused persons, doubtful---None of the prosecution witnesses had assigned any role to any of accused persons at the time of identification parade, which was sufficient to declare the test identification parade, good for nothing---Medical evidence, was discrepant with crime reports---Crime empties, taken into possession from the place of occurrence, were sent to the office of Forensic Science Laboratory after about one month of the arrest of accused persons; and after about twenty days of alleged recoveries of crime weapon at the instance of accused person---If the crime empties, were sent to the laboratory after the arrest of accused persons, it was not safe to rely upon the positive report of Forensic Science Laboratory---.30 bore pistols were allegedly recovered from all accused persons, but, only one .30 bore pistol was sent to the laboratory, which further made said report doubtful---No description, make or model of mobile phone, allegedly snatched from prosecution witness, was mentioned in the FIR---Ocular account, having been disbelieved by the court, conviction, could not be based solely on the evidence of recovery---Prosecution remained fail to discharge its responsibility of proving the case against accused persons beyond the shadow of reasonable doubt---If there was single circumstance, which would create reasonable doubt regarding the prosecution case, that was sufficient to give benefit of the same to accused; whereas present case, was replete with circumstances, which had created serious doubts about the prosecution story---Prosecution having failed to prove its case against accused persons beyond the shadow of any reasonable doubt, convictions and sentences recorded by the Trial Court against accused persons, were set aside---Accused were acquitted of the charges levelled against them by extending them the benefit of doubt and were released, in circumstances.

Khalid Javed v. The State 2003 SCMR 1419; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Wahid Iqbal and others v. The State and others 2002 SCMR 588; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; Muhammad Fayyaz v. State 2012 SCMR 522; Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S. 302(b)--- Qatl-i-amd--- Medical evidence---Scope---Medical evidence, a corroboratory piece of evidence, was not sufficient to establish the guilt of accused---Medical evidence, could confirm the ocular account with regard to the seat and nature of injury, the kind of weapon used in the occurrence, but it would not itself identify the face of culprit.

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.

Rai Usman Ahmad and Shaigan Ijaz Chadhar for Appellants.

Maqbool Ahmad Qureshi, Defence Counsel at State expenses for Appellants (in Criminal Appeal No.931 of 2010).

Humayun Aslam, Deputy Prosecutor General for the State.

Malik Shahid Iqbal Babbar for the Complainant.

Date of hearing: 21st May, 2015.

2015 Y L R 1892

[Lahore]

Before Abdul Sami Khan, J

KALLO PEHLWAAN---Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE, LAHORE and 2 others---Respondents

Writ Petition No.9508 of 2015, decided on 15th May, 2015.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition--- Illegal dispossession---Registration of criminal case---Petitioner had challenged the validity of order passed by Ex-officio Justice of Peace through which S.H.O. concerned was directed to record the version of respondent and proceed into the matter in accordance with law---Validity---Application of respondent against the petitioner for registration of criminal case, contained serious allegations of forcibly entering into the house belonging to the late brother of respondent after having armed themselves with firearms, extending threat of life to respondent on gun-point---Thorough probe into the matter, was required, in circumstances---When information regarding commission of a cognizable offence, was supplied to the Police Officer, he was duty bound to register case against the culprits, who had perpetrated the offence---Civil and criminal proceedings, could run simultaneously---Petitioner, was at liberty to establish his stance, at on appropriate stage of investigation by producing oral as well as documentary evidence in his favour constitutional petition was dismissed accordingly.

PLD 2007 SC 539 ref.

Noor Hussain for Petitioner.

Sittar Sahil, Assistant Advocate General for Respondents Nos. 1 and 2.

Shoaib Khokhar for Respondent No.3.

2015 Y L R 1903

[Lahore]

Before Amin-ud-Din Khan, J

RIAZ HUSSAIN and others---Petitioners

versus

Mst. AISHA BIBI and others---Respondents

Civil Revision No.319 of 1991, decided on 31st March, 2015.

(a) Limitation---

----Question of limitation could not be considered a technicality.

Muhammad Islam v. Inspector General of Police, Islamabad and others 2011 SCMR 8 and Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392 rel.

(b) Limitation---

----Inheritance---Suit for declaration and partition after prescribed period of limitation---Validity---Even in the matter of inheritance, suit must be filed within prescribed period of limitation---Only on the basis that matter related to inheritance, limitation be ignored was not a valid stance or ground.

Nemo for Petitioners.

Malik Fayyaz-ul-Haq Arain for Respondents Nos. 12-A to 12-F.

Sahibzada Muhammad Saleem, for Respondents Nos. 23 to 30.

2015 Y L R 1919

[Lahore]

Before Abdus Sattar Asghar, J

ATHAR IJAZ KHAN---Petitioner

versus

STATION HOUSE OFFICER and others---Respondents

Crl. Misc. No.17435 of 2014, decided on 3rd July, 2014.

Penal Code (XLV of 1860)---

----Ss. 405 & 408---Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Criminal breach of trust---Petitioner's grievance was that despite order of Ex-officio Justice of Peace, SHO Police Station concerned, was not inclined to record his statement under S.154, Cr.P.C., to register the case against respondent---Petitioner's own version that the impugned cheques were given to respondent as security/surety to the employment, had negated his version that same were entrusted to respondent---Breach of any promise, agreement, or contract, would not ipso facto attract the definition of "criminal breach of trust", in terms of S.405, P.P.C.---Prima facie, no cognizable offence, was made out---Petitioner had lodged a suit for declaration with permanent injunction before the civil court with regard to the disputed cheques, which was pending adjudication---Petitioner having already availed the efficacious remedy, petition being not maintainable, was dismissed.

Shahid Imran v. The State and others 2011 SCMR 1614 rel.

Aftab Rahim for Petitioner.

Iftikhar ur Rasheed, A.A.-G. with Muhammad Anwar S.I. and Arshad, A.S.I. for Respondents.

Iftikhar Ahmed Qureshi for Respondent No.2.

2015 Y L R 1930

[Lahore]

Before Shahid Hameed Dar and Ali Baqar Najafi, JJ

The STATE---Petitioner

versus

UMER MEHMOOD and others---Respondents

Crl. Misc. Nos.5545/CB and 5613/CB of 2013, decided on 8th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.148, 149, 186, 353, 427, 436, 324, 295-A & 397---Anti-Terrorism Act (XXVII of 1997), S.7---Rioting armed with deadly weapon, every member of unlawful assembly guilty of offence committed in prosecution of common object, obstructing public servant in discharge of public functions, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to destroy house, etc., attempt to commit qatl-e-amd, deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, robbery or dacoity, with attempt to cause death or grievous hurt, acts of terrorism---Bail, cancellation of---Grounds---Principles--- Scope--- Case of accused/petitioner was not different from cases of co-accused who had been granted bail by High Court earlier---Cancellation of bail could be ordered only on very strong and exceptional grounds such as repetition of offence by accused, hampering of process of investigation or trial or intimidation of prosecution witnesses, abscondence or misuse of concession of bail---No exceptional circumstances existed which might warrant interference with bail granting order---Bail granting order was subject of interference under S.497(5), Cr.P.C. if such order was arbitrary, absurd or fanciful---Discretion of court under S.497(5), Cr.P.C. was pari materia with the principles of setting aside an order of acquittal---Justice could not be allowed to be brutalized in the name of terrorism---Petitions for cancellation of bail were dismissed.

Mian Dad v. The State and another 1992 SCMR 1286; Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 and Malik Muhammad Ishaq's case 2011 SCMR 1350 rel.

Abdul Samad, Additional Prosecutor General Punjab assisted by Tariq Javed, Deputy District Public Prosecutor for Petitioner.

Muhammad Anwar Bhatti for Respondents (in Crl.Misc.No.5545/CB-13 and Crl.Misc.No.5613/CB-13).

2015 Y L R 1946

[Lahore]

Before Shahid Bilal Hassan, J

Haji MUHAMMAD ASHRAF---Petitioner

versus

MAQBOOL HUSSAIN and others---Respondents

W.P. No.8296 of 2014, heard on 20th June, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Only question to be considered by the High Court in its constitutional jurisdiction was whether the subordinate courts had rightly exercised the jurisdiction or not---When the order impugned was well reasoned, same could not be interfered with in constitutional jurisdiction, but when it divulged misreading and non-reading of record and had been passed in a hasty and arbitrary manner, without applying judicious mind, same could be interfered with and revised.

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

----S. 145---Constitution of Pakistan, Art. 199--- Constitutional petition---Withdrawal of surety bond---Scope---Standing surety for decretal amount---Suit filed by plaintiff against defendant was decreed---Respondent stood surety for defendant for the decretal amount and submitted surety amount and also got his statement recorded---Defendant refused to satisfy the decree, and executing court issued notice to the respondent to satisfy the decree---Respondent filed an application for withdrawal of his surety bond, contending that he had discharged his liability by producing the defendant/judgment-debtor before the executing court---Validity---Respondent had recorded his statement on oath, duly thumb marked by him, whereby he stood surety for payment of decretal amount instead of appearance of defendant/ judgment-debtor---Respondent could not claim to have discharged his liability and he could not be absolved of his liability on account of arrest of defendant/judgment-debtor---Executing Court had rightly dismissed respondent's application for withdrawal of surety bond---Constitutional petition was allowed accordingly.

Amanullah Khan's case 2012 CLC 679; Mrs. Muhammad Shafi through Agent v. Sultan Ahmed 2000 CLC 85; Karim Bhai v. Hatimbhai PLD 1994 Kar. 311 and Zafar Ullah and another v. Addl. District Judge, Nankana Sahib and 2 others 1993 CLC 255 rel.

Ch. Muhammad Imran Bhatti for Petitioner.

Ch. Imtiaz Ahmad Kamboh for Respondent No.1.

Date of hearing: 20th June, 2014.

2015 Y L R 1954

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

ANSAR IJAZ---Petitioner

versus

The STATE---Respondent

Criminal Miscellaneous No.13775-B of 2012, decided on 4th January, 2013.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-Amd, attempt to commit Qatl-i-Amd and rioting armed with deadly weapons---Bail, grant of---Medical ground---Case of further inquiry---Plea raised by accused was that he was physically disable and could not use firearm---Validity---Disability of accused was confirmed by Medical Board by reporting that his right hand was totally amputated while left hand was deformed and functioning poorly---Accused also had mal-united / deformed left leg/left ankle---Accused was disable and infirm person who was unable to fire with any weapon---General allegation of firing was levelled against all nominated persons without describing injuries caused by them---Allegation of firing with pistol .30 bore had been levelled against accused but neither any crime empty was collected from the spot nor any such like weapon could be recovered at the instance of accused---Complainant had also given clean chit to accused by filing affidavit which document was still being owned by him---Case of accused was covered within the ambit of S. 497(2), Cr.P.C. entitling him for grant of bail---Bail was allowed in circumstances.

Faisal Iqbal Awan for Petitioner.

Muhammad Ishaque, D.P.G. and Akbar S.I. for the State.

Khanzada Muqarram Khan for the Complainant.

2015 Y L R 1964

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL SATTAR through General Attorney---Appellant

versus

ZOHRA BIBI and others---Respondents

R.S.A. No.51 of 2010, decided on 4th February, 2014.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement to sell---Limitation---Trial Court decreed the suit---First appellate court accepted appeal---Validity---Original owner/vendor died one year after agreement to sell---Plaintiff filed suit seven years after the death of the original owner---Suit was barred by limitation---Limitation for filing a suit for specific performance was three years which started from accrual of cause of action where date for performance was mentioned in the absence whereof limitation started from the date of refusal of the party against whom suit for specific performance had been filed---Plaintiff was bound to file the suit within three years from the death of original owner---Photocopy of receipt of payment filed by plaintiff was a forged document---Plaintiff's case was that the original document was lost but plaintiff applied for producing the original document after his right to produce evidence was closed---Plaintiff was star witness but he did not appear before the court, instead, produced his attorney on his behalf which showed that plaintiff was not ready to appear before the court and face the cross examination---Plaintiff could not explain as to wherefrom he had found the dilapidated original document which could not be believed without shadow of doubt---Admittedly, plaintiff was not in possession of the suit property---Specific performance was a discretionary relief which could not be granted in doubtful circumstances with regard to the existence of agreement to sell---Where agreement and payment were not proved, conceding statement of any of legal heirs of original owner in favour of plaintiff would make no difference---Court could not grant even a partial decree---Plaintiff had failed to make out a case for inter-ference, appeal was dismissed.

Sinaullah and others v. Muhammad Rafiq and others 2005 SCMR 1408 and Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900 rel.

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

----Art. 113---Specific Relief Act (I of 1877), S.12---Limitation for suit for specific performance--- Limitation---Limitation for filing a suit for specific performance was three years which started from accrual of cause of action where date for performance was mentioned in absence whereof limitation started from the date of refusal of the party against whom suit for specific performance had been filed.

Taki Ahmad Khan for Appellant.

Kh. Saeed-uz-Zafar for Respondents Nos. 1 and 2.

Date of hearing: 4th February, 2014.

2015 Y L R 1977

[Lahore]

Before Abdul Sami Khan and Sardar Tariq Masood, JJ

ZAKA ULLAH and others---Petitioners

versus

The STATE---Respondent

Criminal Appeals Nos.101 of 2009, 94-J of 2013 and Murder Reference No.140 of 2009, decided on 6th March, 2014.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Case being of promptly lodged FIR, chance of consultation and false implication of accused could be ruled out---All three eye-witnesses had made consistent statements regarding involvement of accused person in the case---Eye-witnesses proved to be present at the spot at the relevant time of occurrence---One of eye-witnesses having received two firearm injuries during incident, his presence at the spot at the relevant time of occurrence was quite natural---Testimony of the eye-witnesses, could not be discarded merely on the ground that there was previous enmity between the parties---Case was not of hit and run, but the occurrence lasted for some time, which had given sufficient time to prosecution witness and other eye-witnesses for identifying accused persons, and the role played by them---Occurrence had taken place in broad daylight, and all the eye-witnesses had given plausible explanation for their presence at the spot---Accused persons being previously known to prosecution witnesses, said witnesses had made consistent statements regarding presence of accused persons and the manner in which they along with co-accused, after forming unlawful assembly by sharing common intention, had brutally murdered three innocent persons, and injured prosecution witnesses---Despite prosecution witnesses had been subjected to lengthy cross-examination, defence had failed to shatter their credibility qua the involvement of accused persons in the case---Some contradictions in the statements of the eye-witnesses, during the cross-examination, did not cause any damage to the prosecution case---No reason was available to discard the testimony of the eye-witnesses, as they had corroborated each other on all material aspects of the case and their evidence was not only straightforward, but same also inspired confidence---Medical evidence had fully supported the ocular account about the kind of weapons used during the occurrence; and the time of incident as narrated by the eye-witnesses, had fully tallied with the medical evidence---Crime empties recovered from the place of occurrence; and weapon of offence i.e. Kalashnikov, were not sent to Forensic Science Laboratory---Recovery of weapon of offence in circumstances, became insignificant, and was of no help to the case of prosecution---Previous enmity between the parties, was not denied by accused persons---Prosecution had successfully proved its case against accused persons through confidence inspiring and reliable evidence---Conviction of accused person, recorded by the Trial Court, did not call for any interference, same was maintained, but in view of certain mitigating circumstances, death sentence awarded to accused, was converted into life imprisonment.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Complainant and eye-witnesses in their statements under Ss.154 & 161, Cr.P.C., and those recorded before the Trial Court, had not specifically disclosed, as to which injury had been caused by which of the accused persons, and the deceased persons lost their lives as a collective result of injuries sustained by them at the hands of accused persons---While taking said aspect of the case as mitigating circumstance in favour of accused persons, death sentence awarded was converted into life imprisonment---Sentences awarded under Ss.324, 148 & 149, P.P.C., were maintained, which were directed to be run concurrently and benefit of S.382-B, Cr.P.C., would also be available to them.

(c) Criminal trial---

----Recovery of weapon of offence---Scope---Recovery of weapon of offence, was merely a corroborative piece of evidence, and it alone would not smash the prosecution case against accused, especially when it was supported by the surrounding circumstances.

Mukhtar Ahmed v. The State 2004 SCMR 220 ref.

Makhdoom Majeed Hussain Shah, Syed Zulfiqar Ali Bokhari and Mehram Ali Bali for Appellant No.4 (in Criminal Appeal No.101 of 2009).

Mrs. Najma Rasheed for Appellant at State expense (in Criminal Appeal No.94-J of 2013).

Hafiz Allah Yar Sipra for Appellants Nos. 1 to 3 and 5 (in Criminal Appeal No.101 of 2009).

Appellant No.5 in person.

Muhammad Akhlaq, Deputy Prosecutor General for the State.

Salman Safdar for the Complainant.

Date of hearing: 6th March, 2014.

2015 Y L R 2014

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

KULLU and others---Petitioners

versus

Mst. FAIZI and others---Respondents

Civil Revision No.1035 of 2004, decided on 21st May, 2013.

Islamic Law---

----Inheritance---Deceased being issueless left behind only mother---Contest for legacy of deceased between his mother and legal heirs of his paternal uncle---Validity---Record showed that at time of death of deceased, his mother was alive and his paternal uncle was not alive, thus, legal heirs of paternal uncle would not fall within definition of sharer or residuary---According to Islamic Law, property of deceased in presence of sharer could not be devolved upon distinct kindred, rather same would return to sharer under principle of Return (radd)---Deceased was survived by his mother, who as sharer would get 1/3rd share out of his legacy, while remaining 2/3rd share in absence of residuary would revert to mother to exclusion of distant kindred.

Mohomedan Law by D.F. Mullah; Abdul Khaliq v. Fazalur Rehman PLD 2004 SC 768 and Sarwar Bibi v. Anwari Bibi 2004 MLD 1136 rel.

Muhammad Arif Rana for Petitioners.

Khalid Jameel for Respondents.

2015 Y L R 2029

[Lahore]

Before Kh. Imtiaz Ahmad, J

BARKAT HUSSAIN through L.Rs.---Petitioner

versus

MUHAMMAD ASLAM and 4 others---Respondents

Civil Revision No.593 of 2004, decided on 29th May, 2013.

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 15 & 21---Superior right of pre-emption---Compromise---Plaintiff had superior right of pre-emption and suit was decreed on the basis of compromise by the Trial Court but the same was dismissed by the Appellate Court---Validity---Decree was initially passed on 22-2-1986 prior to the promulgation of the Punjab Pre-emption Act, 1991 and prior to the target date 31-7-1986---Compromise by the vendee was prior to the date 31-7-1986 wherein he admitted the superior right of pre-emption---Said compromise would be enforceable---Revision was accepted and suit was decreed.

Fazal Hussain v. Karim through Legal heirs and others 2002 SCMR 648; Shah Muhammad and others v. Noor Din PLD 1954 Lah. 461; Noor and others v. Mst. Sattan through legal representatives and othes PLD 2013 Lah. 30; Nazir Begum and others v. Fazal Dad and others 1999 SCMR 210; 1990 CLC 1183 and Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478 rel.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss. 21-A & 4---Right of pre-emption---Nature--- Improvements made in the property by the vendee during pendency of the suit and prior to passing of decree---Permissibility---Death of pre-emptor---Effect---Improvements could be made by the vendee only during the pendency of the suit and prior to the decree passed---Improvements during pendency of the appeal could not be considered---Right of pre-emption would run with the land and was not a personal right initially---Said right would be personal for the purpose of its enforceability right from time of sale till date of decree and remained to be personal until a decree was passed---Prior to the passing of the decree right of pre-emption was neither transferable nor inheritable---If pre-emptor died before obtaining decree, his right of pre-emption should remain personal and should not survive---When decree was passed in favour of pre-emptor then the right of pre-emption became a proprietary one and was not only capable of being transferred but also inheritable---Pre-emptor must maintain his superior right of pre-emption on three dates; the date of sale; the date of filing the suit and till the passing of decree---Where the decree was passed and the pre-emptor died during pendency of the appeal, then his legal heirs were not to prove their independent right of pre-emption.

Fazal Hussain v. Karim through Legal heirs and others 2002 SCMR 648 rel.

Atiq-ur-Rehman Kiyani for Petitioner.

Raja Khalid Naveed Bhatti for Respondent No.1.

Raja Ameer Akbar for Respondents Nos. 2, 3 and 5.

Date of hearing: 21st May, 2013.

2015 Y L R 2045

[Lahore]

Before Rauf Ahmad Sheikh, J

ABU AL BAYAN MUHAMMAD FAISAL and another---Petitioners

versus

Ch. MUHAMMAD RIAZ and 2 others---Respondents

W.P. No.3224 of 2012, decided on 27th February, 2013.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 8, 9(b) & 19---Constitution of Pakistan, Art.199---Constitutional petition--Un-registered tenancy agreement---Non-deposit of fine before filing ejectment application before Rent Tribunal---Maintainability of ejectment petition---Tenancy agreement was not registered in accordance with law and the petition was filed without payment of fine---Ejectment petition filed within the cushion period provided under S.8 of the Punjab Rented Premises Act, 2009 was not bad for non-deposit of the fine---In the present case, the Rent Tribunal had directed the landlord to deposit amount which was equivalent to 5% of fine---Ejectment petition was maintainable under the law.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 19---Constitution of Pakistan, Art. 199--- Constitutional petition---Maintainability---"Rented property"---Determination---Construction on rented plot by tenant---Effect---Tenant obtained a vacant plot on rent and thereafter constructed building on the said plot---Question was as to whether Rent Tribunal was competent to entertain petition against building constructed by tenant and same was a "rented premises"---Held, purpose for which the plot was leased would determine the nature of property---Tenancy agreement showed that neither any building was leased out nor the vacant possession of the land was rented out for construction of building but was rented out for business purpose---Tenant had established a show room on the rented vacant plot---Rent Tribunal had the jurisdiction to deal with the ejectment petition of rented premises in circumstances.

(c) Punjab Rented Premises Act (VII of 2009)---

----S. 19---Constitution of Pakistan, Art. 199--- Constitutional petition---Agreement of tenancy---Amount spent by tenant on rented land---Tenant had spent heavy amount on construction of office and showroom on the land and for obtaining connections of supply etc. there---Tenant claimed amount spent by him on rented premises---Validity---Agreement of tenancy was a basic document and mutual rights and liabilities for the parties would be determined under the same---Agreement of tenancy provided therein that the tenant would raise construction of the building according to his requirements and would vacate the same without making demand for compensation---Mutual relationship of landlord and tenant was governed by tenancy agreement---Terms of tenancy agreement though appeared to be harsh and more favourable to the landlord but the same were agreed upon at the time of execution of deed and therefore were not illegal, against the public policy or result of any coercion---Tenant could not take exception to the conditions laid down in tenancy agreement and was under obligation to hand over the possession of land along with building erected thereon with the utility connections---Tenant was directed to vacate the rented property accordingly---Constitutional petition was dismissed.

(d) Punjab Rented Premises Act (VII of 2009)---

----S. 19---Constitution of Pakistan, Art. 199--- Constitutional petition---Extension of tenancy agreement---Mutual consent--- Scope--- Tenant claimed extension of tenancy agreement as the same was permissible under the lease agreement---Validity---Lease agreement contained a condition to the effect that after expiry of the first term, it could be extended on new terms with mutual consent---Words 'mutual consent' used in tenancy agreement clearly revealed that tenancy agreement could be extended only if both the parties agree to it and arrive at consensus regarding new terms---Landlord was not willing to extend the tenancy agreement---Tenant could not claim renewal of tenancy agreement on his own unless landlord gave consent in that regard---Period of lease having expired, tenant was directed to vacate the premises.

1998 CLC 1883; PLD 1993 Kar. 181; 2008 MLD 550; PLD 1994 Kar. 112; 2010 SCMR 1925; 2009 SCMR 846; PLD 2004 SC 860; 1991 CLC 1441; 2003 SCMR 722; PLD 1973 SC 218 and 2012 CLC 1158 ref.

Ajam Naz Malik for Petitioners.

Sardar Muhammad Hafeez Khan for Respondent No.1.

2015 Y L R 2049

[Lahore]

Before Shahid Hameed Dar and Muhammad Tariq Abbasi, JJ

AHMAD JALEEL RAJA---Appellant

versus

The STATE---Respondent

Criminal Appeal No.1842 of 2002, heard on 18th September, 2014.

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

----S. 26---Defective and delinquent investigation in the case---Appreciation of evidence---Accused an Assistant Director-ANF, was Investigating Officer in a case and was held guilty of defective, delinquent investigation, and was convicted and sentenced without any notice from the Trial Court within the meaning of S.26 of Control of Narcotic Substances Act, 1997---Impugned judgment did not reveal as to how the investigation conducted by accused, was defective; or the same was based on mala fide---Section 26 did not require that Investigating Officer should be condemned at his back, without affording him opportunity of hearing---Accused was never put to any notice, nor he was called upon to clarify the shortcomings, and defects of the investigation conducted by him---Principles of natural justice required that the Trial Court should have issued a notice to accused, requiring him to explain his position as to "glaring illegalities committed" by him during the course of investigation---Trial Court could not observe that there was no need to further probe into the matter so as to convict and sentence accused---Accused certainly deserved to be heard before he was treated in that way by the Trial Court---Impugned conviction/sentence of accused, was not sustainable in any way nor methodology practised by the Trial Court, could be approved---Conviction and sentence of accused, were set aside and he was discharged of all burdens put on him by the Trial Court---Remitting of the case for regular trial of accused by the Trial Court, would not serve the ends of justice, especially after an interval of twelve years.

Mazhar Ahmad's case 2012 SCMR 997 ref.

Muhammad Qasim for Appellant.

Tariq Saleem Sheikh, Special Prosecutor for Respondent.

Date of hearing: 18th September, 2014.

2015 Y L R 2095

[Lahore]

Before Ch. Muhammad Masood Jahangir and Ch. Muhammad Iqbal, JJ

NISAR AHMAD SABRI through L.Rs. and others---Appellants

versus

GOVERNMENT OF PUNJAB through Secretary, Labour Department and others---Respondents

R.F.A. No.397 of 2013, decided on 11th February, 2015.

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

----Ss. 4, 6, 17(4), 18 & 23----Acquisition of land---Compensation, determination of---Potential value of land---Land of plaintiffs was acquired by Government for public purpose and after proceedings conducted under Ss. 4, 6 & 17(4) of Land Acquisition Act, 1894, possession of the same was taken-over---Award was announced after several years and landowners were awarded compensation, compulsory acquisition charges along with compound interest from date of possession till date of payment---Landowners filed reference under S. 18 of Land Acquisition Act, 1894 asserting that compensation was wrongly assessed on basis of land being agricultural whereas suit property was urban, and that Collector had determined value of the land arbitrarily while ignoring status, location and potential of acquired property---Authorities contested the reference---Referee court, partially accepting the reference, enhanced rate of compensation but declined compulsory acquisition charges and compound interest---Both parties assailed judgment and decree of referee court---Contentions raised by landowners were that referee court failed to appreciate available evidence and consider location, high potential value of acquired land and its fitness for locality---Authorities took plea that Acquisition Collector had considered high potential value of land and prevailing market-price while passing award of compensation--- Validity--- Landonwers were entitled to compensation and not just market-value---Loss or injury occasioned by its severing from other property of landowners, by changing of residence or place of business and loss of profits were also relevant---Valuation, as proved through evidence, was not itself conclusive evidence with regard to value of property, but the same had to be taken note of particularly in absence of any evidence to contrary and other factors reflected in evidence with regard to potential value of property---Evidence available supported that land under acquisition was situated in urban area---Landowners succeeded to prove that both Collector and referee court had failed to assess compensation of the land according to its potential value---Referee court totally ignored documentary evidence while awarding compensation of acquired property---High Court, allowing the appeal, modified judgment and decree of referee court by increasing amount of compensation and declared landowners entitled to compulsory acquisition charges and compound interest from date of taking-over the possession by authorities.

Abdur Rauf Khan v. Land Acquisition Collector/D.C. 1991 SCMR 2164; Land Acquisition Collector GSC NTDC (WAPDA), Lahore v. Surraya Mehmood Jan 2015 SCMR 28 and Province of Punjab Through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 rel.

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

----S. 23----Assessment of value of land---Principles---Value assessed to be paid to landowners under Land Acquisition Act, 1894 was not price of land acquired, rather it was compensation to landowners---Land was acquired from landowners without considering their need and consent or any immediate requirement of landowners for the amount paid to them in lieu of acquisition---Amount of compensation should not be less than sale price of property in market but may be more keeping in mind circumstances of each case---Term "market-value" as employed in S. 23 of Land Acquisition Act, 1894 implied the price what a willing purchaser will pay to a willing buyer in open market.

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

----S. 23(2)----Compulsory acquisition charges, award of---Referee court, in the present case, refused to award compulsory acquisition charges and compound interest on the ground that landowners had not claimed the same---Validity---Compulsory acquisition charges were payable under S.23(2) of Land Acquisition Act, 1894, under which it was obligatory upon Referee court to award compulsory acquisition charges keeping in view the purpose for which land was being acquired and said charges could not be refused merely on ground that same had not been claimed by landowners---Landowners, held, were entitled to compulsory acquisition charges.

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

----S. 34----Compound interest, award of---Section 34 of Land Acquisition Act, 1894 provided that when amount of compensation was not paid or deposited on or before taking possession of land, Collector would pay amount awarded with compound interest at the rate of 8% per annum from time of taking possession until it should have been paid or deposited---Any waiver of said right by landowner would be void---Landowners were entitled to receive compound interest from date of taking over possession of acquired property---Referee court erred in law while refusing the same---Findings of the court regarding issue of compound interest were reversed.

Muhammad Shahzad Shaukat for Appellants (in R.F.A. No.397-13) and respondents (in R.F.A. No.377-13).

Muhammad Arif Yaqoob Khan, AAG for Respondents (in R.F.A. No.397-13) and Appellants (in R.F.A. No.377-13).

Date of hearing: 11th February, 2013.

2015 Y L R 2111

[Lahore]

Before Amer Raza Naqvi, J

SAJID HUSSAIN alias BARA and 2 others---Applicants

versus

The STATE---Respondent

Criminal Bail Application No.931 of 2014, decided on 19th July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Penal Code (XLV of 1860), Ss.395 & 345---Dacoity, keeping any person in wrongful confinement knowing that a writ has been issued for his liberation---Bail, refusal of---Factors to be considered in deciding bail application---Discrepancies in identification parade could be helpful to accused---Previous criminal record might not be considered/ used against accused and every case (bail application) had to be decided on its own merits---Deeper appreciation could not be made at bail stage as such exercise might prejudice the case of any party---Prosecution was able to connect the accused, prima facie, with the alleged offence by means of recoveries and identification of accused---Witness held hostage by accused was a natural witness and had successfully identified the accused---Bail application was dismissed.

1995 SCMR 127; 2013 YLR 208; 2012 PCr.LJ 866; 2012 PCr.LJ 500; 2013 MLD 1225; 2014 MLD 622; 2011 SCMR 161; 2006 YLR 3167; 2012 PCr.LJ 1576 and 2010 YLR 140 ref.

Amin Shah and Muhammad Akram for Applicants.

Saleem Akhtar, Addl. P.G. for Respondent.

Dates of hearing: 9th, 15th and 19th July, 2014.

2015 Y L R 2114

[Lahore]

Before Mehmood Maqbool Bajwa and Arshad Mahmood Tabassum, JJ

Malik ABRAHIM---Petitioner

versus

The STATE---Respondent

Crl. Misc. No.450-B of 2015, decided on 1st April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Control of Narcotic Substances Act (XXV of 1997), 9(b)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Prohibition of narcotic drugs, import and export of narcotic drugs trafficking or financing trafficking of narcotic drugs---Prohibition of manufacture of intoxicants, owning or possessing intoxicants---Pre-arrest bail, confirmation of---Petitioner, having been spotted on secret information, was alleged to have fled away, while throwing bag containing five hundred and fifteen grams charas garda and six bottles of liquor---Petitioner had admittedly not been apprehended at spot, and it was yet to be seen if it was the petitioner or someone else who had actually fled away throwing the contraband material---Police had not cited secret informer as prosecution witness, on whose information raid had been conducted---No prima facie material was available on record with regard to identity of petitioner---Petitioner deserved confirmation of pre-arrest bail in circumstances---Bail petition was allowed accordingly.

Muhammad Ghufran Khursheed Imtiazi for Petitioner.

Syed Intikhab Hussian, Special Public Prosecutor, Anti-Narcotic Force for Respondent.

2015 Y L R 2136

[Lahore]

Before Mirza Viqas Rauf, J

MUNSHI MUHAMMAD and others---Petitioners

versus

DISTRICT OFFICER (REVENUE) and 2 others---Respondents

Civil Revision No.3262 of 2011, heard on 11th May , 2015.

Civil Procedure Code (V of 1908)---

----O.XX, R.14 Ss.38 & 47----Judgment and decree in pre-emption suit---Execution---Limitation and rules as to execution---Decree-holder under pre-emption decree---Rights and status---Objection petition under S. 47, C.P.C.---Maintainability--- Petitioner filed application under Ss. 38 & 47, C.P.C. challenging mutation on ground that revenue authorities had illegally sanctioned the mutation under judgment and decree passed in suit for pre-emption, which had already become in-executable due to afflux of time and for which no formal execution had ever been filed---Both trial court and appellate court dismissed the application on ground of non-maintainability--- Validity--- Decree-holder in suit for pre-emption on deposit of decretal amount, in term of O. XX, R. 14, C.P.C., became absolute owner of suit property, and such ownership would remain operative and intact even if such decree was not put to execution---Revenue officer was under statutory duty to implement such decree in revenue record even if execution petition had become time-barred---Sanction of mutation could be made on basis of pre-emption decree without resorting to execution proceedings---Executing court in such matters would only be involved in case judgment-debtor had failed to deliver possession of land in pursuance to such decree, and in such case, executing court would be required to deliver possession by issuance of warrant of possession---Pendency of application for execution of decree was not sine qua non for filing objection petition under S. 47, C.P.C.---Judgment and decree of appellate court was set aside and case was remanded to appellate court for fresh decision---Revision was allowed in circumstance.

Mirza Akbar Ali v. National Bank of Pakistan 1986 SCMR 321; Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181; Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322; Shahra and others v. Member, Board of Revenue, Punjab and others 2004 SCMR 117; Sher Muhammad through Legal Heirs v. Member (Judicial-1) Board of Revenue and 4 others 2010 MLD 187 and Munshi Muhammad through L.Rs. and others v. District Officer (Revenue), Gujranwala and 2 others 2009 CLC 1285 rel.

Dr. A. Basit for Petitioners.

Abdul Waheed Khan for Respondent No.3.

Waqar Ahmed Chaudhary, A.A.-G. for the State.

Date of hearing: 11th May, 2015.

2015 Y L R 2162

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

LAHORE GYMKHANA CLUB through Chairman---Petitioner

versus

Sahibzada SARFARAZ ALI KHAN---Respondent

C.R. No.1942 of 2013, decided on 2nd June, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Membership of social club---Plaintiff filed suit impugning the vires of a letter issued by the Social Club (Lahore Gymkhana) whereby an amount in lieu of membership of the plaintiff had been demanded---High Court, on consensus of the parties, directed that the Social Club (Lahore Gymkhana), to issue a letter within a period of ten days indicating balance amount against the plaintiff, who was directed to deposit half of said amount as first installment on deposit of which, a provisional membership certificate would be issued to the plaintiff to avail the facility of the club by him and his family members as per law---Plaintiff, on his undertaking that he would withdraw the suit, was directed to pay the remaining amount within a period of three months---Revision was disposed off, accordingly.

Barrister Rafay Altaf for Petitioner.

Tariq Mehmood Mughal for Respondent.

2015 Y L R 2170

[Lahore]

Before Nasir Saeed Sheikh, J

JAHAN KHAN and 3 others---Petitioners

versus

SULTAN KHAN through L.Rs. and others---Respondents

C.R. No.748 of 2005, heard on 21st November, 2013.

(a) West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962)---

----S. 2-A--- Custom--- Right of reversioner---Inheritance---Contention of plaintiffs was that decree passed under custom in favour of defendants had become redundant and had no legal effect---Suit was decreed concurrently---Validity---Suit land was in possession of plaintiffs being vendee from defendants---Right of defendants in the impugned judgment and decree was declared to be that of reversioner under custom and only declaration was granted that right of inheritance should not be affected by the transaction as under custom plaintiffs could claim right of inheritance in the ancestral property---Minor son of the deceased had no right of inheritance in himself at the time when he filed the suit---Suit in which decree was passed in favour of defendants was illegal and incompetent---Revision was dismissed in circumstances.

Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Muhammad Siddique v. Shah Pasand Khan and others 1979 SCMR 619 and Muzaffar through Legal Heirs v. Mst. Mussahib Bano 1998 SCMR 707 rel.

(b) Islamic law---

----Presumptive right of inheritance---Scope---Right of an heir-apparent or presumptive heir would come into existence for the first time on the death of the ancestor and he would not be entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor.

Noor M. Niazi for Petitioner.

Sardar Babar Naveed for Respondent.

Date of hearing: 21st November, 2013.

2015 Y L R 2181

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

SHAHID RAFIQUE and another---Appellants

versus

The STATE and another---Respondents

Criminal Appeals Nos.2399 and 2400 and Murder Reference No.535 of 2010, heard on 18th September, 2014.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Incident was a blind murder---Prosecution witnesses were closely related to the complainant and the deceased, and strained relations existed between the parties---Non-disclosure of facts by the prosecution witnesses, on the very first day to the Police, was not only mysterious, but also unnatural and unbelievable---Such silence on the part of the prosecution witnesses for a long period of one month also created a doubt about their belated statement---Statement of complainant was merely a hearsay---Story regarding witnessing the accused persons duly armed near the place of occurrence prior to the occurrence, was not plausible, besides being of no consequence---Extra-judicial confession made by accused persons, did not fulfil pre-requisites to believe the same as it had not been voluntarily made---Alleged extra-judicial confession, obtained through inducement as well as threat, could not be termed as voluntarily made confession---Evidence of extra-judicial confession, in circumstances, was to be kept out of consideration---Crime empties were sent to Office of Forensic Science Laboratory, after more than one and half month---Delay had rendered the positive report of Forensic Science Laboratory, incredible and inconsequential to the prosecution case---Motive remained unproved---Prosecution, having failed to prove its case against accused persons beyond any shadow of reasonable doubt, conviction and sentences recorded by the Trial Court against the accused persons, were set aside, they were acquitted extending them the benefit of doubt and were released.

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

----S. 164---Extra-judicial confession---Scope, credibility and genuineness of---Extra judicial confession, was a weak type of evidence, being not a direct evidence of the crime---Extra judicial confession, was always to be taken with utmost care and caution---Evidence of extra judicial confession, had become a sign of incompetent investigation---Court was expected to satisfy itself regarding the credibility and genuineness of extra judicial confession with observation that it was made voluntarily and was not obtained by torture, coercion and inducement; that it was actually made, and that it was truly made---If extra-judicial confession was not voluntarily made, it was not tenable in the eyes of law---Voluntariness, was pre-requisite of confession.

Muhammad Kamran and another v. The State 2003 SCMR 1070; Abdul Latif v. Crown PLD 1952 FC 113 and Sarfraz Khan v. The State 1996 SCMR 188 ref.

(c) Criminal trial---

----Benefit of doubt---Prosecution, was to prove its case beyond any shadow of reasonable doubt against accused---Multiple doubts in the prosecution case, were not required to record judgment of acquittal, but a single reasonable doubt, was sufficient to extend benefit of the same to accused as a matter of right.

Mst. Shamshad v. The State 1998 SCMR 854; Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139; Akhtar Ali and others v. The State 2008 SCMR 6 and Sher Bahadur and another v. The State 1972 SCMR 651 ref.

Dr. Muhammad Akmal Saleemi for Appellants.

Malik Abdul Wahid for the Complainant.

Mirza Abid Majeed, Deputy Prosecutor General, for the State.

Date of hearing: 18th September, 2014.

2015 Y L R 2194

[Lahore]

Before Atir Mahmood, J

JAVAID RASHEED---Applicant

versus

MUHAMMAD SHARIF and others---Respondents

C.M. No. 3 of 2014 in Writ Petition No.2227 of 2012, decided on 4th July, 2014.

Civil Procedure Code (V of 1908)---

----S.12(2)---Applicant sought setting aside of judgment under S. 12(2), C.P.C.---Validity---Party filing application under S.12(2), C.P.C. was to be aggrieved of order which had been passed on the basis of fraud, misrepresentation or want of jurisdiction---No such element existed nor could be established by applicant, therefore, provision of S. 12(2), C.P.C. was not attracted---Application was dismissed in circumstances.

Zaheer Zulfiqar for Applicant.

2015 Y L R 2202

[Lahore]

Before Ali Baqar Najafi, J

ABDUL SHAKOOR through L.Rs. and others---Petitioners

versus

MUHAMMAD HANIF through L.Rs. and others---Respondents

Civil Revision No. 431 of 2004, decided on 19th May, 2015.

Civil Procedure Code (V of 1908)---

----O. XXII, R. 10, O.I, R. 10 & S.115---Specific Relief Act (I of 1877), Ss. 12 & 39---Specific performance of oral agreement---Procedure in case of assignment before final order in suit---Revision---Maintainability---Locus standi---Parties to revision---Impleadment of assignee in revision---Permissibility---Petitioner filed present revision on basis of assignment of claim---Predecessor of plaintiffs had purchased suit property from predecessor of defendants under general power-of-attorney through sale deed after oral agreement to sell---Legal representatives of vendor, defendants, filed suit for declaration seeking cancellation of said sale deed claiming that the general power of attorney had automatically revoked on death of vendor before execution of sale deed, which trial court decreed and the sale deed was cancelled---Plaintiffs, being legal representatives of first purchaser, filed suit for specific performance against vendors, which was dismissed both by trial court and appellate court---During pendency of first suit, suit property had been purchased by third person, who assigned his claim to the present petitioner during pendency of second suit, who had introduced himself by way of filing present revision petition on basis of assignment---Respondents took plea that petitioner had no locus standi as legal heirs of his vendor had been proceeded ex parte---Validity---After cancellation of sale deed, suit property had been reverted back to original owners---Petitioner was bound by decree as he had never become party to suit or appeal regarding suit for specific performance and as he had stepped into shoes of assignor, who after losing appeal had not filed revision---High Court observed that assignee, present petitioner, could have filed application to either become party under O. I, R. 10, C.P.C., or for his substitution in place of assignor during suit or appeal---If assignee chose not to file any application for his impleadment in proceedings, decision against assignor would be binding upon the assignee---Revision petition was dismissed in circumstances.

H.M. Saya and Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Government of Sindh v. Abdul Sattar Sheikh and others 2003 SCMR 819; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Bashir Ahmad and 21 others v. Shah Muhammad and another 2010 CLC 734; Muhammad Nawaz through L.Rs. v. Haji Muahmamd Baran Khan through L.Rs. and others 2013 SCMR 1300; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Bashir Ahmad through L.Rs. and another v. Muhammad Ali through L.Rs and another 2007 SCMR 1047; Atlas Khan and others v. Muhammad Nawaz Khan through L.Rs. and others 2010 SCMR 1217; Shakeel Ahmed v. Mst. Shaheen Kousar 2010 SCMR 1507; Hashim Khan v. National Bank of Pakistan, Head Office At I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta PLD 2001 SC 325; Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 300; Iqbal Sultan v. Miss Chand Sultan and 2 others 1990 CLC 366; Ch. Shujat Hussain and another v. Mian Aslam Riaz Hussain and others 1994 MLD 2079; Abdul Aziz and another v. Mst. Sikandar Jan and others PLD 1969 Pesh. 220; Fatima Girls High School v. Government of The Punjab through Member, Board of Revenue (Settlement), Lahore and 2 others 2002 SCMR 1361; Sardar Muhammad and another v. Akram and others 2002 SCMR 807; Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564; Sahib Dad v. Province of Punjab and others 2009 SCMR 385; Rashid Ahmad v. Mst. Jiwan and 5 others 1997 SCMR 171; Mst. Surraya Begum and others v Mst. Suban Begum and others 1992 SCMR 652 and Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

Malik Noor Muhammad Awan for Petitioners.

Ch. Muhammad Ashraf, Syed Mubashar Raza and Mehboob Ahmad for Respondents Nos.24 to 28.

2015 Y L R 2219

[Lahore]

Before Farrukh Gulzar Awan, J

Dr. NASIR ALI MALIK---Petitioner

versus

The STATE and another---Respondents

Crl. Misc. No.7485-B of 2015, decided on 9th July, 2015.

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)---Criminal breach of trust---Bail, grant of---Rule of consistency--Accused was not entrusted with any government property (medicines)---Prosecution had not collected any material evidence regarding the entrustment of medicines to accused---Three prosecution witnesses had not supported the prosecution version to the extent of accused during second inquiry---Co-accused, who was serving as Store Keeper and five other co-accused, having the same role had been enlarged on bail by the Trial Court---Role of accused was at par with co-accused who had already been admitted to bail by the Trial Court---Accused was entitled to be released on bail on the basis of rule of consistency and that fact alone would tilt the scale of justice in his favour---Accused was no more required for further investigation, he was admitted to bail, in circumstances.

Malik Rab Nawaz for Petitioner.

Abdul Jabbar Dogar, DDPP along with Muhammad Azeem Warraich, Circle Officer along with record., Police Station Anti-Corruption, Mianwali.

Muhammad Asif, Drug Inspector, Mianwali in person.

2015 Y L R 2225

[Lahore]

Before Shahid Hameed Dar and Muhammad Tariq Abbasi, JJ

IRFAN BUTT alias ARIF BUTT---Appellant

versus

The STATE---Respondent

Criminal Appeal No.1296 of 2002, heard on 19th September, 2014.

Penal Code (XLV of 1860)---

----Ss. 279 & 337-H(2)---Anti-Terrorism Act (XXVII of 1997), S.7(h)---Rash driving or riding on a public way, act of terrorism---Appreciation of evidence---Only one independent witness produced by the prosecution, disowned the prosecution case, and deposed that he did not hear any report of firing, nor he saw the accused present at the spot---Said witness, who was declared hostile, and was examined; his cross-examination did not generate any positive circumstance in favour of the prosecution, he adhesively stuck to the stance that he did not see the accused at the spot, nor he saw them firing there---Other prosecution witness, also did little good for the prosecution case in his testimony---Ocular account furnished by prosecution witnesses led to irresistible conclusion that the prosecution had failed to establish that accused had committed the crime, he was charged with---Ocular account, in circumstances, was brushed aside being discrepant and unreliable---Allegedly recovered crime empties and pistols .30-bore from accused in absence of the expert report from the Forensic Science Laboratory, would mean little to the prosecution case---Prosecution, having failed to prove its case against accused beyond any shadow of doubt, conviction and sentence awarded to accused by the Trial Court, were set aside, he was acquitted of the charge levelled against him and his surety stood relieved of his liability, which he incurred by submitting bail bond on behalf of accused.

Intisar Hussain for Appellant.

Hamayun Aslam, Deputy Prosecutor General Punjab for the State.

Date of hearing: 19th September, 2014.

2015 Y L R 2230

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

GHULAM MUSTAFA---Petitioner

versus

The STATE and 5 others---Respondents

Writ Petition No.1876 of 2013, decided on 11th April, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.174 & 176---Constitution of Pakistan, Art. 199--- Constitutional petition---Disinterment--- Scope--- Petitioner's application for disinterment of the body of his aunt was dismissed---Validity---Deceased lady had been living with respondents (accused) without any complaint of maltreatment on the part of respondents---No FIR alleging the murder of deceased was registered at the time of her death---Neither any suspicion of unnatural death was raised nor any medico-legal report of deceased was available on record---In view of provisions of Ss.174 & 176, Cr.P.C. Police could proceed only after registration of case to collect evidence of crime---Without registration of criminal case, acts (done) in pursuance of Ss.174 and 176 of Criminal Procedure Code, 1898 were nothing but an academic exercise---One year had passed since death of deceased, alleged marks on the body of deceased would not be detected due to decomposition---Disinterment would be disrespect to deceased lady---Causing injury to Momin men and women without any justification was a great sin---Causing fracture to a dead person had the same effect as causing fracture to a living person---Islam accorded great respect to the dead body of a Muslim---Disinterment without justification was a sin in Islam---Order of exhumation must be based on detailed reasoning, logic and fairness to further the cause of justice---Findings of courts below did not warrant interference exercising constitutional jurisdiction---Petition was dismissed.

Zafar Iqbal alias Kaka v. Additional Sessions Judge and 3 others 2006 PCr.LJ 736; Surah Azhab Ayat No.58; Hadith No.1431 in Sunan Abu-Dawood Sharif, Hazrat Ayesha R.A.; Selection of Islamic Laws issues Nos.290 and 291 and Verdicts of His Eminence Ayatul-Lah Al-U'dhma Serial Nos.647 to 650 rel.

Malik Waheed Anjum for Petitioner.

Khurshid Ahmad Satti, Assistant Advocate-General.

Sardar Sohail Asmat Ullah for Respondents Nos. 2 to 5.

2015 Y L R 2243

[Lahore]

Before Mahmood Ahmad Bhatti, J

ARSHAD MEHMOOD through Special Attorney---Petitioner

versus

MUHAMMAD YAQOOB and 2 others---Respondents

Civil Revision No.160 of 2015, decided on 22nd January, 2015.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Transfer of Property Act (IV of 1882), S. 52---Suit for declaration and permanent injunction---Application for grant of temporary injunction---Plaintiff was not in possession of suit property---Power of attorney was executed by plaintiff from another country which was duly attested and verified by Pakistan Embassy there and it had also conferred right to alienate property---Attorney validly executed sale deed in favour of defendant---Plaintiff assailed transaction being fraudulent but prima facie same didn't appear to be bona fide, as attorney had neither been prosecuted on account of fraud, nor seriously proceeded in civil suit---Defendant would suffer an irreparable loss if temporary injunction was granted---Balance of convenience was also in favour of defendant---Trial court and lower appellate court did not grant temporary injunction---Validity---Petitioner failed to point out material irregularity or illegality in the orders passed, revision petition being devoid of merit was dismissed in limine.

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

----S.52---'Lis pendens' doctrine of---Scope---Doctrine of 'lis pendens' was available to safeguard the rights and interests, if any of petitioner.

Mian Muhammad Aslam Pervaz for Petitioner.

2015 Y L R 2250

[Lahore]

Before Ijaz Ahmad and Mamoon Rashid Sheikh, JJ

SOHAIL IKRAM---Appellant

versus

MUJAHID SHAH and others---Respondents

R.F.A. No.133 of 2005, decided on 27th June, 2013.

(a) Tort---

----General damages including for mental torture, claim for---Proof---Standard or method stated.

No standard or method of proof can be laid down with precision in the claims made under the category of general damages including the mental torture. In the suits for damages, the doctrine "Res ipsa loquitur" is to be applied as it is attracted when the things that inflict damage are under the sole management and control of defendant.

Damages may be awarded on account of mental anguish as well.

Sabran Bibi and 7 others v. WAPDA through Chairman, WAPDA House 2003 CLC 885; Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 and Malik Gul Muhammad Awan v. Federation of Pakistan 2013 SCMR 507 rel.

(b) Tort---

----Damages, suit for---Grave injuries sustained by plaintiff and his family members as a result of rash and negligent driving of car by defendant---Plaintiff claimed Rs. 2 Crore as damages for having become disabled to earn his livelihood due to fracture on thigh etc.---Trial Court decreed suit to extent of Rs. 5 lac---Validity---Plaintiffs had proved wrongful act of defendant, who instead of providing medical aid to them had decamped from site---Defendant was bound to prove absence of his negligence and rashness in accident, but he failed to do so---According to evidence on record, plaintiff and his family had sustained serious physical injuries and suffered mental torture and agony and had been made to languish for rest of life---Plaintiff as sole earning male member of his family had become disabled permanently and business of his wife had closed down---Plaintiffs remained admitted in hospital for treatment for a considerable time---Plaintiffs had sustained actual and collateral losses as their car had been smashed, job and business had gone and had to lead a depressed life for being worried about future of two minor children---Plaintiffs' claim was result of such wrongful act of defendant and was not remote, thus, they were entitled to be recompensed reasonably---Damages decreed by Trial Court were too meagre to commensurate to injuries, mental agony, torture suffered by plaintiffs and loss of physical disability sustained by first plaintiff---High Court enhanced damages to Rs. 15 lacs with mark-up at bank rate on unpaid decretal amount from date of decree of Trial Court and on amount decreed by High Court till its realization.

Mukhtiar Begum v. Karachi Transport Corporation and another 1992 MLD 1711; Hyder and another v. Burmah Shell Oil Company of India, Ltd., and others PLD 1951 Sindh 24; Muhammad Aziz Ullah Qureshi v. Iqbal Umar and others 1982 CLC 1081; Muhammad Younus Khan 3 others v. Karachi Road Transport Corporation and another 1984 CLC 2830; Sabran Bibi and 7 others v. WAPDA through Chairman, WAPDA House 2003 CLC 885 and Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 ref.

Pakistan Railways through its General Manager v. Javed Iqbal 1995 SCMR 446 and Malik Gul Muhammad Awan v. Federation of Pakistan 2013 SCMR 507 rel.

S.M. Ayyub Bukhari for Appellants.

Nemo for Respondent.

Dates of hearing: 18th and 20th June, 2013.

2015 Y L R 2259

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL WAHAB and others---Petitioners

versus

PROVINCE OF PUNJAB through District Collector, Layyah and 2 others---Respondents

Civil Revision No.1046 of 2011, heard on 1st April, 2015.

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

----S. 42---Suit for declaration---Scope---When a declaration was sought, it was duty of plaintiffs to prove their pre-existing right---When judgment and decree did not show that court had seen ownership of plaintiffs before granting decree, such decree declaring plaintiffs as owners only on the basis of statement made by attorney of defendants conceding the suit, passing of decree declaring the plaintiffs as owners on the basis of any alleged oral sale was not competent---Declaratory decree declared a pre-existing right and could not create or confer a new right in favour of plaintiffs.

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

----S.54---Person could not transfer a better title than he himself had.

Ch. Abdul Sattar Goraya for Petitioners.

Mirza Saleem Baig, Addl: Advocate General Punjab for Respondents Nos. 1 and 2.

Ch. Muhammad Hussain Jahania and Ch. Muhammad Riaz Jahania for Respondent No.3.

Syed Muhammad Najam-ul-Saqib for Respondent (in C.M. No.178 of 2012).

Date of hearing: 1st April, 2015.

2015 Y L R 2268

[Lahore]

Before Mazhar Iqbal Sidhu and Miss Aalia Neelum, JJ

MUHAMMAD AZAM---Appellant

versus

UMAIR AHMAD and 2 others---Respondents

Crl. Appeal No.63 of 2012, decided on 30th October, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 34, 337-A(iii) & 452---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, causing Shajjah-i-Hashimah, house-trespass after preparation for hurt, assault or wrongful restraint---Appeal against acquittal---Reappraisal of evidence---Complaint, was presented with delay of eight days for which no confidence inspiring explanation was rendered which alone was fatal to the prosecution case and led to irresistible conclusion that delay could be attributed to consultation for nominating accused---No overt act was attributed to two co-accused persons except proverbial Lalkara to the accused---Role attributed to one co-accused was that he caught hold of deceased in Japha---Testimony of prosecution witnesses regarding proverbial Lalkara, was not consistent about the exact words of Lalkara---Role attributed to the other co-accused of having raised a Lalkara, had not been proved by the prosecution---No evidence was on record to show that accused came there with the predetermined intention of causing death of the deceased, or she had shared any such common intention---No specific role was attributed to co-accused in the complaint---Trial Court had not recorded order of acquittal on the ground that accused did not take part in the occurrence, but proceeded on the basis that there was material improvements in the testimony of prosecution witnesses---No common intention was shared by co-accused at the time of occurrence; and no overt act was attributed to him; and it was only his presence at the place of occurrence---Evidence led and the story alleged were not free from doubt---Prosecution having failed to prove the charge against accused persons beyond any reasonable doubt, Trial Court had rightly recorded acquittal of accused persons by giving them benefit of doubt---High Court, never interfere in order of acquittal, unless, it was arbitrary, capricious, fanciful and against the record---No perversity of the reasons, illegality in the impugned judgment, or misreading of evidence was found leading to miscarriage of justice to be interfered with in exercise of jurisdiction under S.417(2-A), Cr.P.C.---Appeal was dismissed, in circumstances.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

Shahid Qayyum Chaudhary for Appellant.

2015 Y L R 2274

[Lahore]

Before Ali Akbar Qureshi, J

PAKISTAN TELECOMMUNICATION CO. LTD. through Chairman and 5 others---Petitioners

versus

ABDUL GHAFOOR and 2 others---Respondents

W.P. No.5749 of 2001, decided on 1st April, 2015.

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

----S. 115---Revision---Failure to annex certified copy of pleadings with the revision application---Effect---Revision was dismissed by District Judge on the ground that petitioner had failed to annex certified copies of pleadings at Trial Court---Validity---Revision filed under S.115, C.P.C., if initially was within time, stipulated by law, irrespective of fact that pleadings and proceedings of trial court were not attached, it could not be dismissed summarily.

Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496 rel.

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

----S. 115---Constitution of Pakistan, Art.199---Constitutional petition---Revision, filing of---Requirements---If revision was filed within stipulated period of ninety days, it could not be treated barred by time even if certified copies of record of trial court were not annexed with the petition---Constitutional petition was allowed---Case was remanded to revisional court to decide revision in accordance with law.

Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 rel.

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

----S. 115---Revision---If revision was filed initially within time and court issued notices to parties and also requisitioned record, the same could not be dismissed summarily.

(d) Administration of justice---

----Matter should be decided on merits instead of dismissing the same on hyper-technicalities.

Muhammad Yousaf Syed for Petitioners.

Nemo for Respondents.

2015 Y L R 2282

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

AURANGZEB---Petitioner

versus

The STATE and others---Respondents

Cr. Misc. No.12697-B of 2014, decided on 18th November, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(1), proviso 1st---Penal Code (XLV of 1860), Ss.380 & 458---Theft in dwelling house, lurking, house-trespass by night---Bail, refusal of---Delay in conclusion of the trial had occasioned due to non-appearance of the lawyers, who were on strike on most of the dates on which the case was fixed for evidence of prosecution witnesses---Delay in conclusion of the trial, was not attributed to the prosecution in any manner---Case was fixed on different occasions for evidence of prosecution witnesses, who were present in the court, but their evidence could not be recorded due to non-production of co-accused, or non-availability of the lawyers, who were on strike---Accused, could not be given benefit of non-appearance of counsel due to strikes, as it was responsibility of accused to ensure availability of his counsel on each and every date of hearing, especially when prosecution witnesses had appeared for recording of evidence---Act or omission on the part of accused, which resulted in delay in conclusion of the trial, would disentitle him to the concession of bail under first proviso to S.497(1), Cr.P.C.---Bail petition being devoid of merit, was dismissed with direction to trial court to conclude the trial within a specified period.

The State v. Aijaz alias Fouji Lashari and others 2013 PCr.LJ 1331 and Khalid v. The State 2014 PCr.LJ 437 rel.

Abdul Khaliq Safrani for Petitioner.

Ch. Ahmed Saifullah Khatana for the Complainant.

Abdus Samand, Additional Prosecutor General, Punjab and Zafar Abbas, A.S.-I. for the State.

2015 Y L R 2290

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ANWAR and others---Petitioners

versus

MEHDI KHAN and others---Respondents

Civil Revision No.3742 of 2010, heard on 26th February, 2014.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Revision--- Maintainability--- Defendants contended that the suit was time barred---Validity---Earlier revision filed by judgment debtors other than present petitioners/defendants had been dismissed by the High Court---Defendants/present petitioners challenged the dismissal order in said earlier revision before Supreme Court---Civil petition for leave to appeal being pending in Supreme Court, present revision was not maintainable---Concurrent findings did not suffer from any defect---Legal heirs of propositus automatically became co-owners in the property left---Defendants could take plea of limitation if they could show complete ouster of plaintiffs from the suit property---Relationship of plaintiff to propositus had not been denied---Defendant's denial of plaintiff's right to inheritance was evasive which denial was presumed to be an admission under the law---Revision was dismissed in circumstances.

Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817 and Mst. Suban v. Allah Ditta and others 2007 SCMR 635 rel.

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

----O. VIII, R.4---Pleadings---Evasive denial---Validity/effect---Evasive denial was presumed to be an admission under the law.

Taki Ahmad Khan for Petitioners.

Ch. Muhammad Aslam and Adeel Riaz for Respondent Nos. 1 to 4.

Date of hearing: 26th February, 2014.

2015 Y L R 2294

[Lahore]

Before Mahmood Ahmed Bhatti, J

HASNAIN AKHTAR---Petitioner

versus

JUSTICE OF PEACE/ASJ MIAN CHANNU DISTRICT KHANEWAL

and 3 others---Respondents

W.P. No.13675 of 2013, decided on 12th February, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 22-A---Constitution of Pakistan, Art. 199---Constitutional petition---Petition to ex-Officio Justice of peace for recoding of FIR---Scope---Contention of accused was that complainant had already instituted a civil suit and after institution of same a criminal case as ordered by Justice of Peace could not be tried on the basis of same averments and allegations and that dispute had been tried to be resolved through a Punchayat/Arbitration Council---Validity---Case should have been registered under S. 154, Cr. P. C, when matter was reported to the police---Police administration was bound to follow the dictate of law---Civil and criminal proceedings could be carried out simultaneously---Law of the land did not countenance/approve of deciding criminal cases through the intercession of Punchayats/Arbitration Councils which would be tantamount to bypassing and short-circuiting procedure provided for under the law---No proof with regard to convening of Punchayat/Arbitration Council to settle the controversy between the parties was on record---Impugned order passed by Ex-Officio Justice of Peace was in accordance with law---No illegality or irregularity was committed by Ex-Officio Justice of Peace in the exercise of jurisdiction conferred upon him---Constitutional petition was dismissed in circumstances.

2012 YLR 2745; PLD 2006 SC 573 and 2010 SCMR 1835 ref.

2014 SCMR 83; Muhammad Bashir v. Station House Officer, Okara Cantt. PLD 2007 SC 539; PLD 2000 Lah. 246; M. Aslam Zaheer v. Ch. Shah Muhammad 2003 SCMR 1691; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Shakeel Ahmad v. SHO 2007 PCr.LJ 381 rel.

Sardar Usman Sharif Khosa for Petitioner.

Muhammad Javed Saeed Pirzada, A.A.-G. for the State.

M. Shafique Alyana for Respondent No.3.

2015 Y L R 2302

[Lahore]

Before Ch. Muhammad Iqbal, J

ALLAH BACHAYA and others---Petitioners

versus

REHMATULLAH and others---Respondents

Civil Revision No.295-D of 1998, decided on 8th April, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Agreement to sell ---Respondent filed suit for specific performance of agreement to sell ---Signatures of respondent were not found on agreement to sell ---Validity ---Agreement to sell was a unilateral agreement and under law unilateral agreement was not an agreement, so it could not be enforced despite its admission by co-respondents ---Revision was allowed and judgment and decree passed by trial court and appellate court were set aside, in circumstances.

Mst. Barkat Bibi and others v. Muhammad Rafique and others 1990 SCMR 28; Munir Ahmad v. Muhammad Ramzan Sheikh and another 2014 YLR 191; Sher Shah v. Muhammad Suleman and 2 others 2013 YLR 1017; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 rel.

Muhammad Tariq Rajwana for Petitioner.

2015 Y L R 2316

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD ASIF NADEEM---Appellant

versus

DISTRICT POLICE OFFICER and others---Respondents

Criminal Appeal No.909 of 2013, heard on 31st July, 2013.

Penal Code (XLV of 1860)---

----S.228---Criminal Procedure Code (V of 1898), S.481(2)---Intentional insult or interruption to public servant sitting in judicial proceeding---Appreciation of evidence---Contempt proceedings---Facts, non-recording of---Accused was practising lawyer and it was alleged that he had interrupted Trial Court during Court proceedings, in presence of three other lawyers---Trial Court convicted accused without recording statement of any witness and sentenced him to fine---Validity---Trial Court passed judgment in hasty manner without recording statements of even lawyers present in Court---No proper time even till rising of Court was granted to accused to present his defence and explain circumstances as well as reasons behind his action---Benefit of doubt went in favour of accused as neither witnesses were recorded nor enough time was granted to accused to file reply to show cause notice and put up his defence and required procedure was not adopted---High Court extended benefit of doubt to accused and acquitted him of the charge, as exact action of interruption or insult was not explained as required under S. 481(2), Cr.P.C.---Appeal was allowed in circumstances.

Rab Nawaz v. The State 2011 SCMR 1485; Fayyaz Hussain v. Tariq Mehmood Iqbal Khan 2006 YLR 1442; Jahangir Akhtar v. The State 2005 MLD 613; Haji Khawar Saleem v. The State 2000 SCMR 1856; Muhammad Mushtaq v. The State PLD 2003 SC 19 and Agha Siraj Khan Durrani v. The State 2000 PCr.LJ 1329 ref.

M. Baleegh-uz-Zaman Chaudhry for Appellant.

Saeed Ahmad Sheikh, Additional Prosecutor-General for the State.

Date of hearing: 31st July, 2013.

2015 Y L R 2340

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

PERVAIZ AKHTAR and others---Petitioners

versus

MUHAMMAD MANSHA and others---Respondents

C.R. No.304 of 1999, heard on 9th September, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 129 (g)---Suit for specific performance of agreement to sell---Unilateral agreement---Scope---Plaintiff was bound to produce his whole evidence in proof of his respective stance and if any witness had deposed against his interest then he could be declared hostile enabling him to cross-examine the said witness for bringing truth on the record---Party could not be absolved from such duty to bring on record all the available evidence due to fear that a witness if was produced would not support its version---Plaintiff had not only failed to prove the transaction of sale as well as valid execution of agreement to sell but he also failed to prove that any sale consideration was paid to the defendant---Plaintiff had failed to produce marginal witnesses as well as Registrar who attested the agreement to sell---Non-production of said witnesses had created a dent in the case of plaintiff---No explanation was available on file for withholding such evidence of important nature---Inference would be that if such witnesses were produced, they would have deposed against the version of plaintiff---Plaintiff could neither prove the settlement of bargain nor the payment of balance consideration---Private document was required to be proved by production of its marginal witnesses as well as Registering Officer---None of the marginal witnesses of agreement to sell was produced in the present case---Scribe could not be considered as attesting witness---Impugned agreement to sell was unilateral which was not enforceable under the law---Mis-reading and non-reading of evidence by courts below was on record in the present case---Impugned judgments and decrees passed by the courts below were set aside---Revision was accepted in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs PLD 2011 SC 241; Noor Begum v. Abdul Ghaffar 2003 YLR 1494; Muhammad Sarwar Khan v. Salamat Ali 2012 CLC 94; Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 and Sher Shah v. Muhammad Suleman 2013 YLR 1017 rel.

Taqi Ahmad Khan for Petitioners.

Muhammad Arif Gondal for Respondents.

Date of hearing: 9th September, 2014.

2015 Y L R 2362

[Lahore]

Before Shams Mehmood Mirza, J

ANS SOHAIL BUTT---Petitioner

Versus

PRESIDING OFFICER DISTRICT CONSUMER COURT and another---Respondents

W.P. No.4840 of 2013, decided on 4th March, 2015.

Punjab Consumer Protection Act (II of 2005)---

----Ss. 2(h)(k), 21(a)(b)(g) & 25---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan, Art. 199---Constitutional petition---Complaint by consumer---Rejection of plaint---Complaint was filed against petitioner and Trial Court declined to reject the complaint in exercise of powers under O. VII, R. 11, C.P.C.---Plea raised by petitioner was that neither he was a manufacturer nor he provided services therefore complaint was liable to be rejected against him---Validity---Jurisdiction of Consumer Court was attracted when any violation of provisions of Punjab Consumer Protection Act, 2005, took place and it was not restricted to persons who were manufacturers and had provided services---Persons other than manufacturer or service provider could also be sued before a Consumer Court---Provisions of S. 25 of Punjab Consumer Protection Act, 2005, had made it clear that any violation of the provisions of Punjab Consumer Protection Act, 2005, would also give jurisdiction to District Consumer Courts over any person who contravened amongst others, the provisions of S. 21 of Punjab Consumer Protection Act, 2005, even in a consumer-to-consumer transaction---Trial Court rightly dismissed application of petitioner filed under O. VII, R. 11, C.P.C.---Petition was dismissed in circumstances.

Syed Zille Husnain Gillani for Petitioner.

A.W. Butt for Respondent.

2015 Y L R 2369

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD YOUNAS---Appellant

Versus

The STATE and others---Respondents

Crl. Appeal No.144 of 2013, heard on 20th May, 2014.

Penal Code (XLV of 1860)---

----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Appreciation of evidence---Medico-legal Report had shown that alleged abductee was a grown up girl---Neither the complainant, nor other witnesses were the eye-witnesses of the alleged abduction---Alleged abductee was not recovered from the custody of accused; she throughout the process of her abduction, neither offered any resistance, nor raised alarm qua her abduction---Girl did not depose that she was forcibly detained by accused and did not state that she was restrained under threat to raise hue and cry---Such conduct of alleged abductee rendered her version as full of doubt---Matter was reported to Police through a written application after six days of alleged occurrence, and such delay in lodging the matter was not explained plausibly---Investigating Officer deposed that during his investigation, he concluded that alleged abductee was not abducted; and that she had left the house of her parents with her own will and had solemnized Nikah with accused with her consent---No offence as contemplated under Ss.365-B & 376, P.P.C. was made out as prosecution had failed to bring on record the evidence that lady was abducted or induced to compel for marriage against her will; or she was forced for illicit intercourse; or that there was even likelihood of her being forced or seduced to illicit intercourse---Conviction and sentence of accused under Ss.365-B & 376, P.P.C., were not sustain-able in law---Prosecution having not been able to prove its case beyond any shadow of doubt, his conviction and sentence were set aside, he was acquitted and set at liberty, in circumstances.

Muhammad Taqi Khan for Appellant.

Iftikhar ul Haque Chaudhary Addl. Prosecutor General for the State.

Naveed Ahmad Khan for the Complainant.

Date of hearing: 20th May, 2014.

2015 Y L R 2388

[Lahore]

Before Sadaqat Ali Khan and Khalid Mahmood Malik, JJ

ABDUL MUNAFF---Appellant

versus

THE STATE---Respondent

M.R. No.33 and Crl. Appeal No.241 of 2011, heard on 7th July, 2015.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Mitigating circumstances---Evidence of related witnesses---Scope---Four accused faced trial out of which three were acquitted and one was convicted by Trial Court and sentenced to death for committing murder---Plea raised by accused was that there were contradictions in evidence of prosecution witnesses---Validity---During cross-examination some discrepancies were pointed out but such discrepancies and contradictions were not fatal for prosecution case---Presence of complainant and other eye-witnesses was not un-natural at bus stop as it was a public place and it was time of everyone to go to their respective works---Though prosecution witnesses were related inter se with deceased but mere relationship was no ground to discard evidence of witnesses particularly when they had no enmity or malice against accused---Some mitigating circumstances were noted by High Court, firstly motive was disbelieved and it was not determinable as to what the real cause of occurrence was and secondly what actually happened immediately before occurrence which resulted into the incident---Single firearm injury was attributed to accused and three co-accused were acquitted and no appeal had been filed by prosecution against their acquittal, therefore, sentence awarded to accused by Trial Court was harsh---High Court maintained conviction awarded to accused by Trial Court but by extending benefit of doubt, converted death sentence into imprisonment for life---Appeal was dismissed accordingly.

Khalid Saifullah v. The State 2008 SCMR 688 and Zahoor Ahmad v. The State 2007 SCMR 1519 ref.

Haji v. The State 2010 SCMR 650; Ghulam Mohy-ud-Din v. The State 2014 SCMR 1034; Muhammad Tahir Khan v. The State 1983 SCMR 1169 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 rel.

(b) Criminal trial---

----Falsus in uno falsus in omnibus---Applicability---Maxim "falsus in uno falsus in omnibus" has no universal application---Duty of Court to sift the grain from the chaff.

Elahi Bakhsh v. Rabnawaz and another 2002 SCMR 1842 rel.

Muhammad Sharif Bhatti for Appellant.

Asghar Ali Gill, D.P.G. for the State.

Malik Sadiq Mehmood Khurram for the Complainant.

Date of hearing: 7th May, 2015.

2015 Y L R 2397

[Lahore]

Before Qazi Muhammad Amin Ahmed and Shehram Sarwar Ch., JJ

MUHAMMAD KHAWAR and another---Appellants

versus

The STATE---Respondent

Crl. Appeals Nos. 212, 316 and Criminal Revision No.86 of 2003, heard on 29th June, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recoveries of casings from the spot, and subsequent seizure of weapon at the instance of accused, did not advance prosecution case in the face of negative report thereof---Motive set up as bad blood between acquitted accused and the nephew of the complainant had no nexus with the deceased---Eye-witnesses, were inside the house of their sister, when they heard gun reports and came out of the house to see the deceased receiving fatal shots on the road side---Sister of the eye-witnesses, had not been produced---Position taken by the eye-witnesses during the test identification parade was that they saw the occurrence, taking place inside the house, which position was diametrically apart and irreconcilable---Position taken by the complainant, was self-destructive---Had complainant seen acquitted accused in the company of remaining assailants, he should have nominated him on the day one---Roles assigned to all four assailants, including acquitted accused, were inexorably and indissolubly, were identical with each other and evidence of the witnesses on that point, was indivisible---Four entry apertures with five casings were found on the spot---All the accused persons, in the test identification parade, were alleged to have fired upon the deceased without their being any distinction in terms of order in which fire shot were made by them---Assailants were seen by the prosecution witnesses, while they were fleeing from the spot as such they offered a momentary glimpse to the witnesses was unsafe to maintain conviction, as the case of the prosecution was not free from doubts, which were neither illusory nor imaginary, rather rooted into the stated position of the prosecution, benefit whereof could not be withheld---Appeals filed by accused persons were allowed, their sureties were discharged---Non-bailable warrants, were recalled.

Badar Raza Gillani and Ms. Asma Khan for Appellants.

Muhammad Ali Shahab, D.P.G. for the State.

Nemo for the Complainant.

Date of hearing: 29th June, 2015.

2015 Y L R 2409

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbai Ali Rizvi, JJ

GHULAM AKBAR---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.17681 of 2015, decided on 29th June, 2015.

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

----Preamble, Ss. 23, 6 & 7---Object of Anti-Terrorism Act, 1997---"Terrorism", meaning and scope---Definition of "terrorism", as incorporated in S. 6 of Anti-Terrorism Act, 1997, reflected that meaning of "terrorism" included use or threat of action that fell within the meaning of subsection (2) of said section and included use or threat, if designed to coerce and intimidate or overawe the Government or the public, or a section of public or community or sect; or create a sense of fear or insecurity in the public-at­large; or use of threat for the purpose of advancing a religious sectarian or ethical use or intimidation and terrorism against the public, social sectors, business community etc. and attacking civilian, Government Officials, installations, security forces or law enforcing agencies--- While applying a particular law, court must take into consideration the object for which the law had been enacted---Anti­-Terrorism Act, 1997, as per its Preamble, was enacted "to provide for the prevention of terrorism, sectarian violation and for speedy trial of heinous offences and for matters connected therewith, and incidental thereto"---Interpretation of criminal law required that, the same should be interpreted in the way it defined the object and not to construe in a manner, what could defeat the ends of justice, or the object of law itself---For determining the issue as to whether the offence, was triable under the Anti-Terrorism Act, 1997 or not, nature of offence, had to be seen in the light of the averment that how the same had been omitted along with the particular place of incident and further that by that act, a sense of fear and insecurity in the society, had been created in the minds of the people at large or not---Striking of terror, was sine qua non for the application of the provisions, as contained in S.6 of Anti-Terrorism Act, 1997.

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

----Ss. 452, 337-H(2), 342, 440, 447, 511, 148 & 149---Anti-Terrarism Act (XXVII of 1997), Ss.7 & 23---Constitution of Pakistan, Art. 199---Constitutional petition---House trespass after preparation for hurt, assault or wrongful restraint, causing hurt by rash or negligent act, wrongful confinement, mischief committed after preparation made for causing death or hurt, criminal trespass, attempt to commit offence, rioting, common object, act of terrorism---Application for transfer of case to the court of ordinary jurisdiction---Dismissal of application---Incident in the case took place at odd hours of night---Civil litigation was pending between the parties regarding property possessed by the complainant---Altercation took place between the complainant and accused, when they went to attend to persue their case before Director Anti-Corruption---No body had received any injury in that occurrence, and commission of the crime by accused at some public place, was not borne out from the record, whereby it could be termed that accused had frightened the general public and created terror and fear amongst the people---Motive for the occurrence in the case was enmity inter se the parties on account of their longstanding civil litigation---Applicability of S.7 of Anti-Terrorism Act, 1997, which primarily required the spread of sense of insecurity and fear in the common mind, did not attract, in circumstances-Impugned order passed by the Special Judge Anti-Terrorism Court, being not based upon proper appreciated facts and the relevant law on the subject, was set aside---Application moved by the petitioner under S.23 of Anti-Terrorism Act, 1997 for transfer of case FIR, was accepted---Case pending before the Special Judge Anti-Terrorism, stood transferred to the court of ordinary jurisdiction.

Bashir Ahmad v. Muhammad Siddique and others PLD 2009 SC 11 ref.

Azam Nazeer Tarar and Mazhar Ali Ghallu for Petitioners.

Sittar Sahil, Assistant Advocate General and Mazhar-ul-Haq, Inspector for the State Syed Zahid Hussain Bokhari and Muhammad Ahsan Bhoon, for Respondent No.2.

2015 Y L R 2422

[Lahore]

Before Mehmood Maqbool Bajwa and Hafiz Shahid Nadeem Kahloon, JJ

MUHAMMAD ADEEL---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Home Department and others---

Respondents

Writ Petition No.1039 of 2015, decided on 25th May, 2015.

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

----S. 11-EEEE(1) & (2)---Constitution of Pakistan, Arts.4, 9, 14 & 199--- Constitutional petititon---Detention of petitioner for 90 days---Petitioner had assailed the legality of order passed by District Co-ordination Officer, whereby, the petitioner had been detained for 90 days in terms of S.11-EEEE(1) & (2) of Anti-Terrorism Act, 1997 as a suspect---No convincing evidence was available on record against the petitioner, and no valid reason had been given by the Authority to justify the legal detention of the petitioner with regard to his alleged terrorist activities---Law Officer could not point out clear answer regarding the involvement of the petitioner in the activities of terrorism, except on assertion that the District Co­ordination Officer passed the impugned order, which had been passed without judicious application of mind on the reports of Police or Special Branch---Fundamental Right of citizen guaranteed under Art.4 of the Constitution, could not be withheld on the basis of vague reports, presumption, supposition and assumption---Deprivation of citizens' liberty, was a most serious step which could not be taken lightly; as the same had been protected under Arts.9 & 14 of the Constitution---Impugned order passed by District Co­ordination Officer, was violative of Arts.4, 9, 14 & 15 of the Constitution and same suffered from illegality and was without cogent and reliable evidence---Allowing constitutional petition, impugned order was declared illegal and without lawful authority, and was set aside and petitioner was directed to be released, in circum­stances.

Ishaq Ahmad v. District Coordination Officer and others 2015 MLD 684; Muhammad Yousaf Farooqi v. Government of the Punjab 2012 PCr.LJ 905 and Federation of Pakistan through Secretary v. Amatul Jalil Kh. PLD 2003 SC 442 ref.

Sardar Abdul Raziq for Petitioner. Raja Muhammad Hameed, A.A.-G. for the State.

Aftab Inspector with record.

2015 Y L R 2441

[Lahore]

Before Zafarullah Khan Khakwani, J

MUHAMMAD AZEEM and others---Petitioners

Versus

The STATE and others---Respondents

Cr. Misc. No.1896-B of 2014, decided on 8th December, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Occurrence took place hardly two Kilometers away from the Police Station, but the matter was reported after about 3 hours of the occurrence-Passibility of deliberation and consultation before lodging the FIR could not be ruled out in circumstances---No overt act was attributed to any of the two accused persons---Nothing was recovered from the possession of accused persons to connect them with the commission of crime, despite they remained on physical remand for 13 days---Plea of alibi raised by accused persons was proved through data collected from their mobile phones---Accused persons having been found innocent, had been placed in column No.2 of the challan---Plea of alibi raised in a bail matter, could not be outrightly rejected, and could be gone into for the purpose of grant or refusal of bail---Accused party was closely related to each other---Only one shot was fired, which proved fatal; and four real cousins had been involved---In view of delay in lodging of FIR, after consultation, possibility of widening the net to involve whole family in the case could not be ruled out---Bail, could not be refused on the basis of vicarious liability, unless it was shown through positive evidence that accused had also played a role in the crime---Question of vicarious liability of accused persons, could only be determined at the time of trial after recording of evidence--- Where there was only proverbial lalkara attributed to accused, or general allegation was levelled; and no specific injury was attributed; or nothing was recovered from accused; and he was declared innocent during investigation, his case would become that of further inquiry, entitling him to the grant of bail---Accused persons, were allowed bail, in circumstances.

Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829; Manzoor Hussain and another v. The State 2011 SCMR 902; Rafiq Khan v. The State 1995 SCMR 343; Muhammad Sadiq and another v. The State 1996 SCMR 1654 and Muhammad Shakeel v. The State PLD 2014 SC 458 ref.

S h. Muhammad Yaqub for Petitioners.

Abdul Razaq Shamim, Deputy Distt. Public Prosecutor with Ayub, Sub-Inspector with record.

Faisal Khan Niazi for the Complainant.

2015 Y L R 2454

[Lahore]

Before Qazi Muhammad Amin Ahmad, J

MUHAMMAD ARIF---Petitioner

Versus

The STATE---Respondent

Cr1. Appeal No.595 and Crl. Revision No. 359 of 2005, decided on 24th April, 2015.

(a) Criminal trial---

----Charge--- Sustainability---Eye- witnesses, presence of---Proof---When presence of eye-witnesses is found improbable and unnatural, investigative precisions alone cannot sustain the charge.

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

---S. 342---Plea of accused---Effect--­Prosecution cannot take any benefit from plea taken by accused in his examination under S. 342, Cr.P.C.---Prosecution in the first place was to establish charge against accused---Prosecution cannot derive any strength from position taken by accused if otherwise it is failing to drive home the charge.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

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

----Ss. 302(b) & 100---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-Amd--- Right of self-defence---Appreciation of evidence---Statement of accused---Reliance by Court---Principle---Accused was convicted by Trial Court for committing murder and was sentenced to imprisonment for life-Validity---Presence of witnesses at the spot was not found free from doubt, therefore, admission of accused could not, be bifurcated to extend support to a crumbling charge and in case statement of accused was accepted in totality, which was required in law to be so accepted then his case was covered by the exception enumerated in S. 100, P.P.C.--­High Court extended benefit of doubt to accused, set aside conviction and sentence awarded to him by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Syed Muazammil Hussain Shah Bukhari for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Kanwar Iqbal Ahmad Khan for the Complainant.

Date of hearing: 24th April, 2015.

2015 Y L R 2467

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

SALAMAT MASIH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.11610 of 2014, decided on 14th May, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Limitation Act (IX of 1908), Art.182---Constitutional petition---Suit for dissolution of marriage and maintenance of minor daughter and herself by wife---Appellate court declined to restore the appeal of defendant-husband dismissed for non-prosecution---Validity---Contumacious attitude of defendant-husband to avoid payment of maintenance was reflected throughout the proceedings of the case---Person having such a callous attitude towards his minor daughter did not deserve any equitable relief from High Court in exercise of extraordinary jurisdiction---Defendant made every effort to frustrate the progress of the claim by intentionally avoiding appearance in the court---Trial Court was justified in passing ex parte decree---Appeal of defendant was dismissed due to his obduracy; he neither paid any maintenance to the minor child nor appeared before the court---Defendant's plea that provisions of Art. 182 of the Limitation Act, 1908 were not applicable to family matters was without force---No doubt family matters were amenable to a special law but that did not mean that defendant could be allowed to lodge and defend the cause at his own whims and caprice7-Minor was the legitimate daughter of the defendant who was duty bound to maintain her---Rate of maintenance fixed by Trial Court was neither exorbitant nor unreasonable in view of inflatidn---Petition was dismissed with costs.

Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 rel.

Ms. Mehwish Chaudhary for Petitioner.

2015 Y L R 2476

[Lahore]

Before Atir Mahmood, J

AHMED YAR through L.Rs.---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others--Respondents

Writ Petition No.8341 of 1999, heard on 22nd April, 2014.

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

----S. 13---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Default in payment of rent---Denial of relationship of landlord and tenant by the tenant---Scope--­Landlady was bound to prove her ownership in order to prove the relationship of landlord and tenant as same had been denied by the tenant---Witnesses produced by the landlady had proved the factum of her ownership qua the demised premises---Nothing was on record to establish that tenant was in possession of disputed house in his own rights---Person who was not owner of property might be a "landlord" if he received rent---Person who had denied the possession as a tenant and claimed himself to be owner of the property was bound to prove that he was not holding such possession as a tenant---Landlady had not only proved her ownership by producing sale deed but also by production of marginal witnesses and scribe of the same and their credibility could not be shaken---Tenant neither produced any documentary evidence nor any witness to corroborate his statement---Suit for declaration filed by the tenant was dismissed and appeal against the same was also dismissed---Mere pendency of revision petition was not helpful for the tenant in rent proceedings--- Tenant might agitate his right in accordance with law if any subsequent decree was passed by the competent court of law in his favour---Tenant had contumaciously denied the relationship of landlord and tenant and Appellate Court had rightly set aside the order passed by the Rent Controller---No misreading or non-reading of evidence or jurisdictional defect was pointed out in the impugned judgment passed by the Appellate Court--- Constitutional petition was dismissed in circumstances.

Mst. Soniya Sharif v. Bashir Kundi through Legal Heirs and others 2013 MLD 1786 ref.

PLD 1974 SC 139 distinguished.

Salman Badar- for Petitioners.

Farman Ahmad Bhatti for Respondents Nos. 2-a to 2-g.

Date of hearing: 22nd April, 2014.

2015 Y L R 2486

[Lahore]

Before Mahmood Ahmed Bhatti, J

Major (Retd.) KUNWAR NASIM KHAN---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No.8023-B of 2014, decided on 6th August, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 155---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and forgery---Pre-arrest bail, grant of---Non­cognizable offence---Failure to seek permission to conduct investigation---Accused was an old man of 75 years who had also instituted civil suit against complainant which was pending adjudication before competent Court of law--- Validity---Offences under Ss. 420 & 471 P.P.C. were bailable, while offence under S.468, P.P.C. was non-cognizable--­Investigating officer did not seek any permission from area Magistrate to carry out investigation---Accused was 75 years old and it would be unjust to send him behind the bars just to satisfy ego of complainant, particularly when there was no evidence to connect accused with commission of offences under Ss. 420, 468 & 471, P.P.C.---Pre-arrest bail was confirmed in circumstances.

Nasir Ahmad Awan for Petitioner.

Nisar Ahmad Virk D.P.G. along with M. Arif, S.I. for the State.

Sultan Ahmad for the Complainant.

2015 Y L R 2496

[Lahore]

Before Shehram Sarwar Ch. J

MUHAMMAD ARSHAD KHAN---Petitioner

Versus

The STATE and another---Respondents

Crl. Rev. No.761 of 2015, decided on 24th July, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 528---Bail application, transfer of---Principle---Accused sought transfer of bail application to another court on the plea that the other court had granted bail to a co-accused and accused had withdrawn earlier three bail applications from that court---Court in which bail application was pending declined to transfer the application--­Validity---Order passed by the court below did not warrant interference as the courts were not only bound to decide the cases pending before them but were also under the bounden duty of earlier disposal of matters---Judge in the other court was on special casual leave and urgent matter like bail petition could not be kept in waiting or lingering it on for unexplainable period---Petition was dismissed in circumstances.

The State through Advocate 3, General N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref.

Muhammad Zafar Chaudhary for Petitioner.

Tariq Javed, DPP on Court's call for the State.

2015 Y L R 2508

[Lahore]

Before Shahid Jamil Khan, J

IFTIKHAR AHMAD MUGHAL---Petitioner

Versus

DIVISIONAL SUPERINTENDENT (DS) GPO, JHELUM and 3 others---Respondents

W.P. No.1212 of 2014, decided on 19th June, 2014.

Easements Act (V of 1882)---

----Ss. 63, 64, 60 & 52---Constitution of Pakistan, Art. 199---Constitutional petition--Licence, revoking of---Condemned unheard---Petitioner was a professional letter writer. licensed by post office authorities to work in vicinity of post office---Grievance of petitioner was that authorities had revoked his licence without providing him any opportunity of hearing-Validity-Licensee on revocation of licence was entitled to reasonable time to remove things allowed to be placed on property-In case licence was granted against consideration and licensee was deprived from enjoying fully under licence, for no fault on his part, licensee was entitled to recover compensation from the licensor/grantor---Disputed facts, determination of which required factual inquiry by leading evidence, could not be resolved in exercise of Constitutional jurisdiction---High Court declined to interfere in the matter and observed that petitioner could approach Court of competent jurisdiction, if it was proved that he had been evicted for no fault on his part---Petition was dismissed in circumstances.

M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83 rel.

Abid Hussain Abid for Petitioner.

Attique-ur-Rehman Kiyani, Standing Counsel.

Mirza Adrees Baig for Respondents Nos. 1 and 2.

Mrs. Ansar Naureen DSPO, Jhelum.

Mirza Shahzad Baig, ASPO, Dina Sub Division.

Saeed Pervaiz, Postmaster, Dina.

2015 Y L R 2514

[Lahore]

Before Muhammad Tariq Abbasi, J

Ch. MUHAMMAD AKRAM---Petitioner

Versus

Mst. ZEBA ZAREEN and others---Respondents

Writ Petition No.1979 of 2011, heard on 5th June, 2014.

Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction petition---Default in payment of rent-- Denial of relationship of tenant and landlord---Petitioner/new owner had purchased the demised property through registered sale deed from person claimed by tenant to be her landlord---By purchasing the house, petitioner/vendee had stepped into the shoes of the previous owner---In the absence of notice to tenant, eviction petition itself would be the notice of eviction to tenant---Previous owner had sent declaration/affidavit duly attested by Consulate of Pakistan in favour of petitioner/vendee admitting sale of the house to petitioner through registered sale deed---Purchase of house by petitioner and change of ownership had been confirmed---Order of Additional District Judge was set aside while order of Special Judge (Rent) was restored---Constitutional petition was accepted.

Bahauddin Bootwala v. Muhammad Afzal 2000 YLR 2716; Sher Jang v. District Judge, Islamabad and 4 others 2004 SCMR 1852; Pakistan National Shipping Corporation v. Messrs General Service Corporation 1992 SCMR 871; Ashiq Hussain v. Niaz Muhammad" 2000 CLC 376; Ahmad Ali alias Ali Ahmad v. Nasar­ud-Din and another PLD 2009 SC 453 and Buzarg Jamil and another v. Haji Abdul Bari and others PLD 2003 SC 477 rel.

Sadiq Nawaz Khattak for Petitioner.

Qazi Shaharyar Iqbal for Respondents.

Date of hearing: 5th June, 2014.

2015 Y L R 2524

[Lahore]

Before Ch. Mushtaq Ahmad, J

Mst. NASIM AKHTAR---Petitioner

Versus

PERVEZ AKHTAR and 12 others---Respondents

Writ Petition No.1553 of 2008, heard on 27th November, 2014.

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

----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration--- Validity--- Decree, setting aside of---Application for setting aside decree was dismissed being time barred--- Validity---Predecessor of the parties was owner of suit property who filed suit for declaration, challenging gift deed, in his life time which was decreed---Plaintiff remained in physical possession on the suit land during his life time and after his death, mutation of inheritance was attested in favour of all the legal heirs---Delivery of possession, in the present case, by the predecessor to his sons had not been established, thus the gift was not valid---Impugned decree had not been challenged by the legal heirs during the life time of their predecessor---Findings recorded by the revisional Court were the result of mis-reading of evidence and same were based on erroneous assumption of facts and law---Impugned judgment passed by the revisional Court was set aside and that of Trial Court restored---Constitu­tional petition was accepted in circum­stances.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Abdul Fatah and 8 others v. Nisar Ahmed and 3 others 2003 YLR 2610; Tassadaq Hussain and another v. Afzal Mumtaz and 2 others 2001 MLD 740; Muhammad Yousaf v. Manzoor Ahmad and another PLD 2006 Lah. 738; Mazhar Khan v. Additional District Judge, Mailsi and others 2007 MLD 1580; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 and Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 ref.

(b) Islamic law---

----Gift---Ingredients---Ingredients of valid gift were offer by the donor to transfer the property as gift, acceptance by the donee and delivery of possession of the property gifted.

(c) Constitution of Pakistan----

---Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could interfere while exercising constitutional jurisdiction if findings were based on insufficient evidence, mis-reading of evidence, erroneous assumption of facts and non consideration of material evidence.

Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 rel.

Munir Ahmad Kiyani for Petitioner.

Sarfraz Ahmad Qureshi for Respondents.

Date of hearing: 27th November, 2014.

2015 Y L R 2539

[Lahore]

Before Amin-ud-Din Khan, J

BASHIR AHMED---Petitioner

Versus

NAAZAR ALI and others---Respondents

Civil Revision No.890 of 2004, heard on 10th June, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs, performance of---One suit for pre-emption for different sale transactions---Performance of Talbs--- Requirement---One suit with regard to two independent sale transactions had been filed which was not competent---Material contradictions between the statements of plaintiff and his witnesses were on record---Where there were two independent sale transactions, plaintiff was required to announce his intention to exercise his right of pre-emption against each sale transaction independently and he had to perform and prove Talb-i-Muwathibat and Talb-i-Ishhad independently for each sale transaction and file separate suit against each independent sale transaction---Alleged Talb-i-Muwathibat and Talb-i­-Ishhad were joint with regard to two independent sale transactions-Plaintiff lost right of pre-emption---Concurrent findings recorded by the courts below could not be interfered unless same had been recorded on the basis of misreading and non-reading of evidence or some procedural defect had been highlighted---Revision was dismissed in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings recorded by the courts below could not be interfered unless same had been recorded on the basis of misreading and non-reading of evidence or some procedural defect had been highlighted.

Abdul Harmed for Petitioner.

Taki Ahmad Khan for Respondents.

Date of hearing: 10th June, 2014.

2015 Y L R 2550

[Lahore]

Before lbad-ur-Rehman Lodhi, J

Mst. SHAGUFTA PARVEEN---Appellant

Versus

QAISER IJAZ and 2 others---Respondents

F.A.O. No.172 of 2013. decided on 4th October, 2013.

Mental Health Ordinance (VIII of 2001)---

----Ss.2 (d), 29, 30 & 46---Mentally disordered person--- Declaration---Appellant claimed that respondent who was her paternal grandmother was mentally disordered person and filed application before Court of Protection---Court of Protection rejected the application after personally examining the respondent-- Validity-Proceedings initiated by appellant were crude and cruel effort on her part to even usurp legitimate share inherited by the mother from the estate of her deceased son---Even at the end of the day such 1/6th share would devolve upon legal heirs of such lady which included appellant who seemed to be in hurry to get her share---High Court declined to interfere in the order passed by Court of Protection---Appeal was dismissed in circumstances.

Ch. Habib Ullah Nahang for Appellant.

2015 Y L R 2562

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

TAJ DEEN---Appellant

Versus

MUHAMMAD TUFAIL and others---Respondents

R.F.A. No.128 of 2011, heard on 8th October, 2013.

Contract Act (IX of 1872)---

----S.55---Specific Relief Act (I of 1877), S.12---Time as essence of contract---Suit for specific performance of contract---Notice for rescission of contract---Proof of notice---Scope---Contention of defendants was that plaintiff had failed to perform his part of contract and time was essence for the same---Suit was dismissed by the Trial Court---Validity---Ordinarily, time was not an essence of contract for transfer of immovable property but same could be an essence of contract if it was incorporated therein---Intention of the parties must be visible from the language of contract---No such intention of parties was found in the contract that time was an essence for the same nor such was mentioned in the contract---Terms of agreement with regard to time should be specific and any deviation from the time clause should entail penal consequences and same should not be compromised---Such could be ensured if on expiry of stipulated time vendee issued a notice for rescission of contract---In absence of such notice, it could not be assumed that vendee had treated the time clause as an essence of contract---Vendor was first party in the agreement whereas vendee was the second one---Defendants were bound to get the sale deed registered by receiving remaining consideration amount and for forfeiting advance money or cancelling the agreement refusal of vendee/plaintiff was necessary---Service of notice by the defendants showing willingness for registration of sale deed on expiry of date for proving refusal of plaintiff was necessary---Notice for rescission of contract after refusal by the plaintiff was necessary---No such notice was served upon the plaintiff for rescission of contract---Record with regard to presence of defendants before the Sub-Registrar had not been produced in accordance with the rules of evidence by exhibiting the same---Presence of vendors before the Sub-Registrar was to be proved by summoning of the same in the court but no such procedure had been adopted---Plaintiff had filed suit just one day after the expiry of date of maturity of agreement to sell---Evidence produced by the parties did not support the case pleaded by the defendants---Findings recorded by the Trial Court were not sustainable under the law---When there was no issue with regard to time as an essence of contract then findings of Trial Court were against the law---Judgment and decree passed by the Trial Court were set aside and suit was decreed subject to deposit of balance amount---Appeal was accepted in circumstances.

Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others 2004 YLR 845; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Akbar Khan v. Muhammad Din and 2 others 2011 YLR 140; Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director, Bank Square, Lahore v. Messrs Babar and Company through Shakir Ali Khan and 2 others PLD 1999 Lah. 193; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544; Mehboob Alam v. Muhammad Iqbal 2010 CLC 982; Muhammad Anwar and 8 others v. Bahan and another 2000 YLR 378; Malik Tanveer Ali and another v. Sardar Ali Imam and 2 others 2010 YLR 1799; Muhammad Yaqoob and others v. Hakim Ali and others 2004 SCMR 584; Muhammad Ramzan v. Abdullah and others 2000 YLR 398; Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawater Wala PLD 1962 SC 1; Zaheer Ahmad and another v. Abdul Aziz and others 1983 SCMR 559; Bashir Ahmad and 4 others v. Muhammad Ramzan and another 1988 CLC 1600; Muhammad Nawaz Khan and another v. Mst. Farrah Naz PLD 1999 Lah. 238; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 and ISSO and another v. Muhammad Ismail and 2 others 1992 MLD 1787 rel.

Muhammad Javed Iqbal Qureshi for Appellant.

Ch. Abdul Waheed for Respondents.

Date of hearing: 8th October, 2013.

2015 Y L R 2576

[Lahore]

Before Shahid Hameed Dar and Muhammad Tariq Abbasi, JJ

AKMAL and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No.679 of 2006, Murder Reference No.484 and Criminal Revision No.156 of 2007, heard on 24th September, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, causing Munaqqilah---Appreciation of evidence---Sentence, reduction in---Alleged motive, which did not appeal to a prudent mind, had not been established---Witnesses, admitted that each of accused persons, made only one fire shot without repetition---Said version of the witnesses, was concurrent, consistent and confidence inspiring---Despite lengthy cross-examination, no material contradiction in the said version was brought on the record---Trial Court, in circumstances, had rightly believed the said version to be true---Place of occurrence, was confirmed to be outside the house of the complainant; accused persons were the aggressors, who succeeded in getting lives of two innocent persons, and causing grievous injuries to one---Matter was, promptly reported to the Police---No chance existed in circumstances, of any deliberation, consultation or false implication of accused persons---Defence had failed to contradict presence of injured witness at the spot and sustaining of injuries---Inconsistency between the medical evidence and the ocular account had been alleged by counsel for accused persons, but, no such contradiction had been noticed---Ocular account was in line with the medical evidence---Principle of "falsus in uno falsus in omnibus", was not applicable and maxim "sifting of grain out of chaff", was to be adopted---Acquittal of co-accused and conviction of accused persons, in circumstances, were not objectionable---Investigating Officer, despite admitting before the court that no documentary evidence about innocence of accused was produced before him, findings of the Investigating Officer, towards innocence of accused persons, was without any substance which could rightly be termed as ipse dixit of the Police, and same could not be given any weight---Trial Court had rightly appreciated said fact and discarded said findings of the Investigating Officer---If there was any specific stance/ plea of accused, same should have been established during the trial through cogent and convincing evidence, but despite opportunity, accused failed to do so---Empties, allegedly collected from the spot were dispatched to the Laboratory after about three months---Mandatory procedure/ requirement of sending the empties to the laboratory just after the recovery, having been violated, report of Forensic Science Laboratory, was not admissible in evidence---As the charge against accused persons was proved beyond any doubt, impugned judgment, towards conviction of accused persons, being result of correct evaluation and appreciation of evidence, was quite justified---Non-establishment of the alleged motive, the recovery of weapon, report of the Forensic Science Laboratory, and non-repetition of firing by accused persons, were sufficient circumstances for concession, in the sentence awarded to accused persons by the Trial Court---Accused were entitled for benefit of doubt as an extenuating circumstance while dealing with quantum of sentence, as well---Maintaining conviction of two accused persons under S.302(b), P.P.C., their sentences were altered from death to imprisonment for life---If the accused fail to pay compensation amount provided under S.544-A(2), Cr.P.C., they will undergo simple imprisonment of six months---Benefit of S.382-B, Cr.P.C. was also given to the accused persons---Sentence of co-accused for charge under Ss.324 & 337-F(vi), P.P.C., was reduced to served out imprisonment for 2 years, 8 months and 15 days, as he made only fire shot at non-vital part of injured.

Iftikhar Hussain and another v. State 2004 SCMR 1185 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.

Muhammad Akram Qureshi for Appellants Nos. 1 and 3.

Azam Nazir Tarar and Kausar Jabeen for Appellant No.2.

Khurram Khan, Deputy Prosecutor General for the State.

Mian Muzaffar Hussain for the Complainant.

Date of hearing: 24th September, 2014.

2015 Y L R 2594

[Lahore]

Before Mrs. Ayesha A. Malik and Faisal Zaman Khan, JJ

COMMISSIONER INLAND REVENUE, ZONE-IX REGIONAL TAX OFFICE-II---Appellant

Versus

Messrs ENGLISH PHARMACEUTICALS INDUSTRIES, LINK KATTAR BUND ROAD, LAHORE---Respondent

I.C.A. No.457 in W.P. No.10212 of 2014, heard on 23rd April, 2015.

Law Reforms Ordinance (XII of 1972)---

----S.3---Intra-court appeal---Maintain-ability---Consent order---Appellant assailed consent order passed in constitutional petition---Validity---Order in question was passed in presence of parties and that too without objection, therefore, intra-court appeal was not maintainable---Intra-court appeal was dismissed in circumstances.

Abdul Wahab and others v. Habib Ali and others PLD 1969 Lah. 365 and Sh. Maqbool Elahi and others v. Khan Abdul Rehman PLD 1958 SC (Pak.) 96 rel.

Rai Tariq Saleem for Appellant.

Syed Ali Imran Rizvi for Respondent.

Date of hearing: 23rd April, 2015.

2015 Y L R 2611

[Lahore]

Before Mazhar Iqbal Sidhu, J

SHAUKAT ALI alias SHAKU---Petitioner

Versus

The STATE and another---Respondents

Crl. M. No. 3668-M of 2014, decided on 24th October, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.426(2-B)---Qatl-i-amd---Suspension of execution of sentence, petition for---Petitioner/accused who was charged for murder, was tried and sentenced to imprisonment for life, and to pay Rs.4,00,000 as compensation to legal heirs of deceased---Said judgment of the Trial Court, having been upheld by High Court, petitioner assailed the judgment of the High Court before the Supreme Court, which granted leave to appeal to the petitioner---Petitioner had filed petition under S.426(2-B), Cr.P.C., for suspension of execution of sentence---Supreme Court had ordered for the reappraisal of the evidence so as to secure the interests of justice, in such circumstances, prima facie, a case for suspension of execution of sentence, had been made out---Petition was accepted, sentences imposed upon the petitioner by the Trial Court and upheld by the High Court, were ordered to be suspended on submission of bail bonds, with one surety by accused---Petitioner would remain incessant in appearing before the Supreme Court till the final decision of appeal.

Muhammad Ashraf v. State and another 2013 PCr.LJ 403 ref.

Azam Nazir Tarar and Momin Malik for Petitioner.

Madam Moqadass Tahira, A.P.G. for the State.

M.A. Ghaffar-ul-Haq for the Complainant.

2015 Y L R 2629

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD ASHRAF alias ASHRI---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.1247-B of 2014, decided on 7th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 396---Qatl-i-amd, dacoity with murder---Bail, refusal of---Bail petition earlier filed by accused was dismissed on the grounds that accused was involved in 15 criminal cases; that offence against him was heinous one; that at bail stage, it could not be said that accused had not committed the alleged offence; and that accused in circumstances did not deserve the concession of bail on statutory ground or on merit---Present bail petition having no fresh ground, same was dismissed.

Nazir Ahmed and another v. The State and others PLD 2014 SC 241 ref.

Mahar Tanvir Ahmad Jangla for Petitioner.

Malik Saeed Ahmad Mumtaz, Addl. Prosecutor General with Ghulam Qadir, S.I. for the State.

Sh. Abdul Samad for the Complainant.

2015 Y L R 2638

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD AYUB---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.725 of 2002, heard on 17th July, 2013.

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

----S.12(2)---Decree of Civil Court upheld in appeal by Appellate Court---Filing of application under S.12(2), C.P.C. for setting aside such decree---Maintain-ability---Remedy under S. 12(2), C.P.C. would lie before Court having passed final judgment/order--- Judgment/decree of Court below would merge into judgment/ decree of Appellate Court or Revisional Court, which would attain status of final decree/order within purview of S.12(2), C.P.C.---Applicant was required to have filed such application before Appellate Court---Such application was dismissed for being not maintainable.

Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516; Mubarik Ali v. Fazal Muhammad and another PLD 1995 SC 564; Allah Dad and others v. Abdul Ghani and others PLD 2010 SC 580; Muhammad Shamim through legal heirs v. Mst. Nisar Fatima through legal heirs and others 2010 SCMR 18; Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555 and Chan Peer Shah v. Shafi Ullah and others 2006 YLR 3229 ref.

Black's Law Dictionary and Nasrullah Khan and others v. Mukhtiar-ul-Hassan and others PLD 2013 SC 478 rel.

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

----S.12(2)---Limitation Act (IX of 1908), Art. 181---Decree of Civil Court upheld in appeal by Appellate Court on 14-9-1995---First application under S. 12(2), C.P.C. for setting aside such decree dismissed on 18-1-2001 by Civil Court for being not maintainable and appeal filed there-against dismissed by Appellate Court on 25-9-2001---Second Application under S.12(2), C.P.C. for setting aside such decree filed before Appellate Court on 2-10-2001---Applicant's plea was that he sought his remedy before wrong forum on wrong advice of his counsel---Validity---Applicant had filed second application after more than 5 years of gaining knowledge about dismissal of appeal against such decree on 14-9-1995---Applicant had failed to show that he had approached wrong forum with due care and diligence---Appellate Court had rightly declined to condone delay in filing second application---High Court dismissed revision petition in circumstances.

Manazah Parveen v. Bashir Ahmed and 6 others 2003 SCMR 1300 rel.

Muhammad Akbar Ali Cheema for Petitioner.

Malik Imtiaz Mehmood Awan for Respondents.

Date of hearing: 17th July, 2013.

2015 Y L R 2665

[Lahore]

Before Ch. Mushtaq Ahmad andAslam Javed Minhas, JJ

MUHAMMAD AFZAL and others---Petitioners

Versus

The STATE and others---Respondents

Cr. M. No.1 of 2013 in Crl. Appeal No.448 of 2012, decided on 4th August, 2015.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss.302(b), 34 & 337-F(i)--- Qatl-i-amd, common intention, causing Damiah---Sentence, suspension of---Accused persons, were on bail pending appeal, and thereafter, they were arrested, and they had served out about 12 years of their sentence---Co-accused, to whom the role of firing at the deceased, was attributed, had been convicted and sentenced to death---No likelihood of early conclusion of the main appeal in near future existed---Prosecution could not point out any material against accused persons, showing that they were previously involved in such like cases---Further captivity of accused persons in jail, would not serve any useful purpose to the prosecution---Accused persons, were entitled to be released on bail by suspending their sentence---Sentence of accused persons, was suspended subject to their furnishing bail bonds.

Mudassar Altaf Qureshi for Petitioners.

Sh. Jamshed Hayat for the Complainant.

Malik Riaz Ahmad Saghla, DPG for the State.

2015 Y L R 2673

[Lahore]

Before Amin-ud-Din Khan, J

NIAZ MUHAMMAD---Appellant

Versus

MUHAMMAD SARWAR and 2 others---Respondents

R.S.A. No.1 of 2006, decided on 6th April, 2015.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-e-Muwathibat, proving of---Contradictions in statements---Plaintiff contended that he came to know about the sale on 7-1-2001 whereas during his cross-examination he stated that it was summer season when came to know about the sale---Held, that courts below had come to right conclusion that contradictions in statement of plaintiff were fatal to his case----When there were fatal contradictions in evidence of plaintiff to prove Talb-e-Muwathibat then findings of court below were not exceptionable---Appeal was dismissed, accordingly.

Moonda v. Fateh Muhammad and 2 others 2010 MLD 934 and Muhammad Ilyas and 4 othes v. Walayat Hussain 2006 YLR 1153 rel.

Muhammad Ashraf Qureshi and Muhammad Tariq Rajwana for Appellant.

Nemo of Respondents.

2015 Y L R 2694

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

NUSRAT BIBI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.286, 55-J of 2011 and Criminal Revision No.214 of 2011, heard on 18th August, 2015.

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

----Ss. 302 & 34----Criminal Procedure Code (V of 1898), Ss. 161 & 162---Qanun-e-Shahadat (10 of 1984), Arts. 39 & 43---Qatl-i-amd, common intention---Appreciation of evidence---Examination of witness by police---Confession of accused while in police custody not to be proved against him---Consideration of proved confession affecting person making it and others jointly under trial for same offence---Extra judicial confession, proof of---Supplementary statement, reliance on---Principles---Eye-witness, daughters of deceased, neither mentioned in FIR nor their statements under S. 161, Cr.P.C were recorded---Exclusion of statements of eye-witnesses recorded during trial---Safeguards provided to accused under S.161, Cr.P.C.---Blood relationship between witnesses and accused---Effect---Accused was alleged to have murdered her husband through assassins, other accused---Accused, the wife, took plea that complainant, brother of deceased, had implicated her in order to deprive her from her legal right in legacy of deceased, and that she, along with others, had not been nominated in FIR and had been implicated through supplementary statement which could not be admitted in evidence, and that trial court had wrongly relied upon extra judicial confession allegedly made by her---Trial court, convicting accused persons under S. 302(b), P.P.C., sentenced them to imprisonment for life and also awarded compensation under S. 544-A, Cr.P.C.---Extra judicial confession allegedly made by appellant, wife of deceased, was hit by Art. 39 of Qanun-e-Shahadat, 1984, and same, therefore, could not be read in evidence to detriment of accused---Even if said confessional statement were admitted in evidence, it could only be considered against other accused within restrictions of Art. 43 of Qanun-e-Shahadat, 1984---No transaction had been carried out through ATM card, which prosecution had relied upon, to demonstrate payment of money to assassin---Reliance on supplementary statement was liable to be excluded from consideration, as supplementary statement was neither continuation of first information report nor could same be read in expansion thereof---Use of statement under S. 161, Cr.P.C. was controlled by provision of S. 162, Cr.P.C.---Trial court could not admit supplementary statement in written form in evidence---Prosecution had brought two of its eye-witnesses at belated stage, who were real daughters of deceased and lived under same roof---Names and presence of said eye-witnesses was conspicuously missing in complaint---Said eye-witnesses had neither joined police investigation nor had their statements under S. 161, Cr.P.C. been recorded; and they had surprised accused for first time during trial---Examination of witness intended to be produced against accused under S. 161, Cr.P.C. and supply of copies thereof were fundamental safeguards for accused to enable him to confront charge so as to defend himself in meaningful and effective way rather than to take him by surprise in helpless manner---Said safeguards could not be dispensed with even in case of close blood relationship inter se witnesses and accused---Statements of said eye-witnesses were, at the most, expression of suspicion which could not take place of proof---Statements of said eye-witnesses were to be treated at par with that of any other witnesses, whose testimony was pressed into service to bring home charges entailing capital sentence---Statements of said two eye-witnesses were liable to be excluded from consideration---High Court, extending benefit of doubt, acquitted accused---Appeals were allowed, petition for enhancement of sentence was dismissed in circumstances.

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

----S.161---Scope---Examination of witness by police---Supply of copies to accused---Requirements---Safeguard provided to accused under S. 161, Cr.P.C.---Applicability---Blood relationship inter se witnesses and accused---Principles---Examination of witness intended to be produced against accused under S. 161, Cr.P.C. and supply of copies thereof are fundamental safeguards for accused to enable him to confront charges so as to defend himself in meaningful and effective way rather than to take him by surprise in helpless manner---Said safeguards cannot be dispensed with even in case of close blood relationship inter se witnesses and accused.

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

----Ss. 161 & 162---Scope---Supplementary statement vis-à-vis FIR---Nature---Use of supplementary statement---Supplementary statement is neither continuation of first information report nor can it be read in expansion thereof---Use of statement under S. 161, Cr.P.C. was controlled by provision of S. 162, Cr.P.C.

Muhammad Abbas and Syeda B.H. Shah for Appellants.

Ch. Qaisar Mushtaq, A.D.P.P. for the State.

Raja Ikram Amin Minhas for the Complainant.

Date of hearing: 18th August, 2015.

2015 Y L R 2711

[Lahore]

Before Sardar Tariq Masood and Mirza Viqas Rauf, JJ

SANAULLAH alias HAJI SARDAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.997 of 2006, heard on 9th June, 2015.

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

----Ss. 9(c) & 15----Criminal Procedure Code (V of 1898), Ss.164 & 265-I---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Penal Code (XLV of 1860), S. 120-A---Prohibition on possession, trafficking or financing, import and export aiding, abetment or association, manufacturing, of narcotic drugs, etc, and criminal conspiracy----Appreciation of evidence---Power to record statements and confessions---Statement of accused recorded in contravention of provisions of S.164, Cr.P.C---Principles---Conviction on basis of mere presump-tion---Procedure in case of previous conviction---Benefit of doubt---Case was registered against accused persons after information received from foreign country where heroin was alleged to have been recovered from carrier of one of co-accused persons---During investigation of said case, ten grams of heroin was also alleged to have been recovered on pointation of accused persons from house of co-accused---Cash amount was also alleged to have been recovered from present accused---Trial court, having convicted accused under Ss.9(c) & 15 of Control of Narcotic Substances, 1997, sentenced them to imprisonment for three years---Statement of accused recorded under S.164, Cr.P.C., which had resulted into commencement of inquiry, was not sufficient to prove guilt of present accused, as no concrete link was established from said statement with main accused, who had been arrested in foreign country---Magistrate, while recording said statement, had committed glaring illegalities and failed to comply with any of requirements laid down in S. 164, Cr.P.C.---Signatures of present accused had not been obtained at foot of said statement as required under the law---It appeared as if said statement had been reduced into writing after obtaining signatures of accused on blank papers, as stated both by him in his statement recorded under S. 342, Cr.P.C. and by one of prosecution witnesses---Trial court observed in its judgment that Area Magistrate had not recorded said statement of accused in accordance with mandatory provision of S. 164, Cr.P.C.---First limb of prosecution evidence was not proved in accordance with law---Conviction could not be based on such weak piece of evidence---Prosecution failed to lead any cogent evidence to prove that recovered amount from present accused had been derived from drug trafficking---Prosecution witness, who did not support prosecution case, had not been declared hostile by prosecution---Prosecution story regarding recovery of ten grams of heroin was without any substance---As per prosecution witnesses, present accused along with co-accused led to recovery of heroin from house of other co-accused; whereas, during cross-examination, it had become evident that search for alleged recovery of heroin had been conducted by Anti-Narcotics Force officials on their own on direction of investigation officer and that present accused had admittedly remained outside the house in their custody---Prosecution evidence was deficient in all respects and failed to prove any nexus of present accused with the main accused as well as with alleged recovery of recovered heroin---Findings of guilt were recorded on basis of presumptions which was not permissible under law---Prosecution had referred to previous conviction of present accused, but nothing was brought on record to that effect during trial---Previous conviction could only be proved in terms of S. 265-I, Cr.P.C.---Prosecution evidence suffered serious infirmities and lacked of any credence---Case of prosecution was full of doubts---High Court, setting aside conviction, acquitted the accused---Appeal was accepted in circumstances.

Muhammad Amin v. The State PLD 1990 SC 484; Abdul Latif v. State PLJ 1999 SC 264; Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292 and Muhammad Israr and another v. The State 2002 PCr.LJ 1072 ref.

Muhammad Amin v. The State PLD 1990 SC 484; Abdul Latif v. State PLJ 1999 SC 264; Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292; Muhammad Israr and another v. The State 2002 PCr.LJ 1072; Muhammad Zaman v. The State and others 2014 SCMR 749 and Muhammad Ashraf and others v. The State and others PLD 2015 Lah. 1 rel.

(b) Criminal trial----

----Benefit of doubt---Accused is not obliged to establish number of circumstances creating doubts---Even single circumstance creating doubt in prudent mind is sufficient to extend benefit of same to accused.

Muhammad Zaman v. The State and others 2014 SCMR 749 and Muhammad Ashraf and others v. The State and others PLD 2015 Lah. 1 rel.

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

----S.265-I----Procedure in case of previous conviction---Previous conviction, proof of---Previous conviction can only be proved in terms of S. 265-I, Cr.P.C.

Shahzad Saleem Warraich for Appellant.

Sahibzada Anwar Hameed, Senior Special Prosecutor for Anti-Narcotics Force for Respondent.

Date of hearing: 9th June, 2015.

2015 Y L R 2734

[Lahore]

Before Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD SARWAR---Appellant

Versus

MEHBOOB ALAM and others---Respondents

Criminal Appeal No.1841 of 2003, heard on 20th April, 2015.

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

----S. 302---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Probable time between injury and death of deceased, was 2 to 3 hours whereas between death and post-mortem, was 10 to 12 hours---No plausible explanation was available as to why post-mortem of dead body was delayed for eleven hours---Such aspect of the matter was sufficient to cast doubt about the authenticity of the FIR and had created serious doubt about the genuineness of the prosecution story, including presence of the complainant at the scene of occurrence---Prosecution evidence, seemed to be afterthought---Features, complexion or likeness of unknown accused, were not described in the FIR, except that accused was described as middle height young man---Identification of accused during identification parade, was highly doubt-ful---Entire proceedings of identification parade had become doubtful, in circumstances---Blood stained "Khanjar" was recovered, after one month of the alleged occurrence---Report of the Serologist in that regard, could not be termed as reliable as it did not appeal to reason that accused had kept "Khanjar" with him intact in order to produce it before the Investigating Officer on his arrest---Accused, could not be expected to keep the blood stained "Khanjar" in his house for a long period, when he could have easily disposed off the same---Testimony of prosecution witness, was not probable, and discrepancy in her statement was enough to discard the veracity of her statement---Taking into consideration, material on record, and the evidence adduced in the trial, there was no reason to take any view contrary to the view taken by the Trial Court---Prosecution had failed to bring true facts before the court---Story of incident was highly doubtful, witnesses were not trustworthy, as they had given contrary statements on material points---Impugned judgment of the Trial Court could not be interfered with, in circum-stances---Appeal against acquittal, was dismissed, in circumstances.

Ibrahim and others v. The State 2009 SCMR 407 and Bashir Ahmed alias Mannu v. The State PLD 1996 Pesh. 25 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Evidence of last seen---Scope---Last seen evidence was the weakest type of evidence which, in isolation could not be made basis for conviction of any person, especially in a case of capital charge.

Ch. Sadaqat Ali for Appellant.

Muhammad Naseem Akhter, Deputy District Public Prosecutor for the State.

Date of hearing: 20th April, 2015.

2015 Y L R 27

[Peshawar]

Before Rooh-ul-Amin Khan, J

ASHRAF KHAN---Appellant

Versus

ZAFFAR IQBAL and others---Respondents

Criminal Appeal No.113-B of 2011, decided on 30th September, 2013.

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

----Ss.336 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Itlaf-i-Salahiyyat-i-Udw, common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Matter was reported by the complainant after a delay of 1 hour and 40 minutes without any plausible explanation---Inference would be that time between the alleged incident and report had been consumed by the complainant in deliberation and consultation---Injured complainant had been examined 10 minutes prior to his report---Case of two versions, one furnished by Medical Officer, while the other furnished by the complainant and prosecution witnesses; which of the two versions, was correct was shrouded in mystery, which had cast serious doubt about the veracity and credibility of the injured complainant---Dishonest improvements made by the complainant in his court statement seemed to be deliberate and intentional, which thus, lost its credibility and evidentiary value---Neither any blood from the spot, nor blood stained clothes of the complainant had been secured by the Investigating Officer---Spades and topaks allegedly used in the commission of offence, had not been recovered, either from the direct or indirect possession of accused persons---Prosecution witness, who had furnished the ocular account of the incident, had not established his presence at the spot with the complainant---Conduct of prosecution witness, who was real nephew of the complainant was against natural human behaviour, as his real uncle was being beaten by accused and he despite being present on the spot became a silent spectator without any effort to rescue him from the clutches of accused---Both the complainant and prosecution witness who being closely related, were interested and inimical towards accused, had tried to improve their version by making dishonest improvement; they had contradicted each other on material points---Occurrence had not taken place in the mode and manner as alleged by the complainant and prosecution witness; they had concealed the actual facts and had not come with clean hands---Complainant had failed to prove loss of his eye and destruction or permanent impairment of the functioning, power or capacity of his eye due to alleged incident---Section 336, P.P.C., in circumstances, was not applicable to the case---Trial Court, in circumstances, had rightly acquitted accused by extending him benefit of doubt after proper appraisal of evidence to which no exception could be taken.

(b) Criminal trial---

----Motive---Scope---Motive was considered a double edged weapon, which cut both ways; and it could be used by accused to take revenge; and at the same time a tool used by the complainant for false charge.

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

----Ss.336 & 34---Itlaf-i-Salahiyyat-i-udw, common intention---Appreciation of evidence---Statement of injured witness, presumption of truth---Conviction, recording of---General rule of appreciation of evidence was that want of interest, or absence of enmity would not stamp statement of a particular witness with presumption of truth; and that much would depend on intrinsic value of statement of a witness---Real test was as to whether statement of witness was in consonance with probabilities, whether it would fit in with other evidence; and whether it inspired confidence---Complainant bearing stamp of injury only would indicate his presence at the relevant time, but it was not a guarantee of his truthfulness his veracity was to be tested from the circumstances of the case; and his own statement, whether it fits in the circumstances of the case or otherwise---Statement of injured witness, supported by medical evidence, in hurt cases was sufficient for recording conviction, provided it would ring true, and was trustworthy, in view of its intrinsic worth--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 findings must rest surely and firmly on the evidence of unimpeachable character---Absolute certainty was seldom seen 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.

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

----Ss. 417(2) & 410---"Appeal against acquittal" and "appeal against conviction"---Assesment of evidence---Scope---Standard of assessing evidence in appeal against acquittal, were quite different from those laid down for appeal against conviction---Marked difference existed between appraisal of evidence in appeal against conviction and in 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 as there was already finding of acquittal given by the Trial Court after proper analysis of evidence on record---Scope of appeal against acquittal of accused was considerably narrow and limited---Unless the judgment of acquittal was perverse, completely illegal and on perusal of evidence, 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 found 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 enjoyed 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---Court while sitting in appeal against acquittal, must be slow in reversing the judgment of acquittal, unless it was 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.

Umer Qayum Khan for Appellant.

Qudrat Ullah Khan D.A.G. for the State.

Muslim Jan for Respondent.

Date of hearing: 30th September, 2013.

2015 Y L R 51

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. FARYAL GOHAR---Petitioner

Versus

GHANDRA UNIVERSITY OF PESHAWAR through Vice Chancellor and 3 others---Respondents

Civil Revision No.568-P of 2014, decided on 17th July, 2014.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Pakistan Medical and Dental Council Regulations, Regln.iv(3)---Civil Procedure Code (V of 1908), S.115, O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Educational institution---Promotion to higher class---Plaintiff was studying in medical college and failed in one subject in her MBBS 1st year examination---Both the Courts below declined to grant interim injunction allowing her to appear in MBBS 2nd year examination---Validity---Under no circumstances a candidate could be promoted to 2nd year MBBS till she had previously passed all subjects in 1st professional of Part-I Examination---Courts of law were bound to enforce law and protect its violation---High Court noted it with great concern that it had become a practice that in most cases students, otherwise not qualified got admission through Court orders in professional institutions and in majority cases, by misusing the same, completed studies---Such practice was not only heart burning for regular students but also mis-use of process of Courts---High Court declined to interfere in orders passed by two Courts below---Revision was dismissed in circumstances.

Alaptagin v. Principal, Saidu Sharif Medical College, Swat and 3 others PLD 2004 Pesh. 307 ref.

Muhammad Umar Wahid and others v. University of Health Sciences Lahore and others PLD 2006 SC 300 rel.

Gohar Rehman Khattak for Appellant.

Nemo for Respondents.

Date of hearing: 17th July, 2014.

2015 Y L R 76

[Peshawar]

Before Mrs. Irshad Qaiser, J

Haji NAZIR MUHAMMAD---Petitioner

Versus

MUHAMMAD RIAZ and others---Respondents

Civil Revision No.469-A of 2010, decided on 23rd June, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Qanun-e-Shahadat (10 of 1984), Art. 57---Talbs, performance of---Minor contradictions in the statements of witnesses--- Effect--- Plaintiff/Pre-emptor had specifically mentioned the date, time and place of performance of Talb-i-Muwathibat in the plaint along with the name of informer---Witnesses of plaintiff had also specifically mentioned the date, time and place of information of sale of suit land and detail of suit property---Defence was not able to shatter their statements with regard to date, time and place of said information---Minute contradictions in the statement of witnesses of plaintiff were on record which could occur when a person was examined after sufficient long time of the occurrence and those were not sufficient to discard their entire testimony---Human mind could not remember the minute details of conversation after lapse of sufficient time---Recording of evidence in the present case recorded in another case as evidence was not permissible under the law---Plaintiff had got no contiguity with Khasra No. "A" and except the said Khasra rest were situated in compact block---Plaintiff had proved his contiguity with regard to other Khasra except Khasra No. "A"---Revision was accepted partially in circumstances.

PLD 2003 Pesh. 179; PLD 1966 SC 708; 2002 CLC 1361 and 2004 MLD 1259 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Muwathibat---Meaning---Talb-i-Muwathibat was the immediate demand made by the pre-emptor in the same meeting and sitting without any loss of time as soon as he had received the information about the sale.

Sajjad Ahmed Abbasi for Petitioner.

Mehboob Ali (sic) for Respondents.

Date of hearing: 23rd June, 2014.

2015 Y L R 84

[Peshawar]

Before Rooh-ul-Amin Khan, J

KHALIL MUHAMMAD---Appellant

Versus

WATER AND POWER DEVELOPMENT AUTHORITY OF PAKISTAN through Chairman WAPDA and 6 others---Respondents

Regular First Appeal No.35 of 2011, decided on 5th March, 2014.

Land Acquisition Act (I of 1894)---

----Ss.18 & 23---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount for acquired land from Rs.4852 per Kanal to Rs.12,000 per Kanal along with 15% compulsory acquisition charges and 6% simple interest--- Validity--- Acquiring department acquired certain other land through same award by fixing its rate as Rs.4852 per Kanal but same was enhanced to Rs.1,00,000 per kanal along with other allied charges by the Referee Court---Chunk of land of land-owners acquired by the acquiring department had been divided into parts which had lost their utility in the present case---Acquired land was situated near the village abdi linked to main road with mettled road---Certain property was acquired prior to the property in question at a distance of 1/2 kilometer from the acquired land against a sale consideration of Rs.1,00,000 per kanal---Local commission had submitted his report that market value of acquired land was not less than Rs.65,000 per kanal---Acquired land had assumed the status of residential and commercial property---Efforts should have to be made to find out what market value of acquired land was or could be on the material date in case of compulsory acquisition---Factor for determination of market value would be the complexion and character of acquired land on the material date---Potentialities on the date of acquisition of acquired land could also be kept in view for determining fair compensation to be awarded to the owners as a result of compulsory acquisition---Market value of land should be the basis for determination of compensation but same should not be restricted only to the past sale of adjacent land or properties situated in the vicinity rather the potential value of acquired land should also be considered at the time of determining the market value---Market value of each and every land even acquired through one and same award should be determined independently---Claim of land owners was immaterial for determination of compensation---Court could award amount of compensation over and above what had been claimed by the land owners in reference provided sufficient material existed to justify the same---Referee Court had erred in partially disagreeing with the report of local commission which was exhaustive and deliberate report---Report of local commission was not binding on the court but same should not be ignored when same was supported by material evidence available on record---No illegality or irregularity had been pointed out in the report of local commission by the acquiring department--- Acquiring department had failed to refute the market value of acquired land assessed by the local commission---Local commission had considered all the relevant aspects in determining the value of acquired land---Impugned judgment and decree were modified and rate of compensation of acquired land was further enhanced from Rs.12,000 per kanal to Rs. 65,000 per kanal---Appeal of land-owners was accepted whereas that of acquiring depart-ment was dismissed accordingly.

Murad Khan's case 1999 SCMR 1447; Sher Muhammad Khan and 4 others v. Land Acquisition Collector PLD 1978 Pesh. 138; Sadaqat Ali Khan v. Land Acquisition Collector PLD 2010 SC 878; Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870; Muhammad Saeed v. Land Acquisition Collector 2002 SCMR 407; Nisar Ahmad v. Collector Land Acquisition PLD 2002 SC 25; Province of Sindh v. Muhammad Ramzan PLD 2004 SC 512 and 2014 SCMR 75 rel.

Iftikharul Haq Sheikh for Appellant.

Arif Rahim Ustrana for Respondents.

Date of hearing: 5th March, 2014.

2015 Y L R 112

[Peshawar]

Before Muhammad Daud Khan, J

MIR FAYAZ and another---Petitioners

Versus

NOOR BADSHAH and another---Respondents

Civil Revision No.29-B of 2008, decided on 28th April, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Talbs, performance of---Talb-i-Khasumat, performance of---Requirements---Institution of suit through attorney---Non-production of informer in the court---Scope---Right of pre-emption should be extinguished unless pre-emptor had established three ingredients stipulated in S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 in accordance with law---Talb-i-Khasumat was equally important and same would require specific mode and manner for performance---Pre-emptor was required to perform Talb-i-Muwathibat and Talb-i-Ishhad himself or through his/her attorney or agent---Talb-i-Khasumat could only be made by a person whether he was pre-emptor or his guardian or agent appointed by him who had satisfied the requirements of Talb-i-Muwathibat and Talb-i-Ishhad personally--Plaint was verified, signed by and instituted through attorney of plaintiffs---Talb-i-Khasumat was performed by the attorney but not by the pre-emptors---Plaintiffs had not got recorded evidence of informer to prove Talb-i-Muwathibat---If a party did not produce a witness in his favour, the court would draw an inference that had the witness been produced, he would not have supported the case of the party---Plaintiffs were bound to produce postman to prove delivery of registered notices of Talb-i-Ishhad---Burden of proving a positive assertion would lie on the party making such assertion---Negative assertion might be sufficiently proved by a statement recorded on oath---Burden to disprove the element of notices of Talb-i-Ishhad stood discharged by the defendants by making a statement on oath---Plaintiffs had failed to discharge their burden as they neither produced the postman nor relevant dispatch-book and could not prove Talb-i-Ishhad in accordance with law---Impugned judgment of Appellate Court suffered from misreading of evidence and same was not sustainable in the eye of law---Right of pre-emption being a feeble right was to be proved strictly in accordance with law with cogent, coherent and trustworthy evidence---Suit of pre-emptor could be filed by a person who himself had performed Talb-i-Muwathibat and Talb-i-Ishhad---Talb-i-Muwathibat and Talb-i-Ishhad were performed by the plaintiffs themselves in the present case but suit was instituted by attorney---Talb-i-Khasumat having not been performed according to law, suit was bad in law---Appellate Court had committed an illegality and irregularity by reversing the judgment and decree of Trial Court while decreeing the suit---Impugned judgment and decree passed by the Appellate Court were set aside and suit was dismissed---Revision was accepted in circumstances.

Sarwar Ahmad v. Iftikhar Ahmad and others 2012 YLR 2348; Mst. Zahida Parveen v. Mst. Parveen Akhter 2012 CLC 1497; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Basheer Ahmed v. Ghulam Rasool 2011 SCMR 762 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

Abdul Jabbar Khan Khattak for Petitioners.

Amanullah Khan Khattak for Respondents.

Date of hearing: 28th April, 2014.

2015 Y L R 163

[Peshawar]

Before Yahya Afridi, J

GOHAR AYUB---Appellant

Versus

MUHAMMAD SHAFIQ---Respondent

Regular First Appeal No.307-P of 2013, decided on 7th March, 2014.

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

----O. IX, R. 6---Ex parte decree, setting aside of---Scope---Trial Court without recording evidence with regard to period of limitation dismissed application of applicant when he was not personally served in the main suit---Case for setting aside ex parte decree had been made out in favour of applicant---Applicant should not be condemned un-heard and he should be given an opportunity to pursue his case by producing evidence---Impugned order was set aside and case was remanded to the Trial Court for giving an opportunity to the applicant to produce his evidence in support of his claim---Appeal was accepted in circumstances.

Haji Inayat Khan's case 2011 MLD 1697 and Usman Panjwani's case PLD 2012 Sindh 78 rel.

Asfandyar's case 2008 SCMR 287 and Honda Atlas's case 2005 SCMR 609 distinguished.

(b) Administration of justice---

----Decisions should be rendered on merits rather than rights being sacrifised at the altar of procedures, technicalities and rigors of rules---Courts should deny relief to those who had been indolent in seeking their rights or abusing the process of law by delaying legal proceedings.

Ziaur Rehman Tajik for Petitioner.

Hassan Gul Khan for Respondent.

Date of hearing: 7th March, 2014.

2015 Y L R 222

[Peshawar]

Before Muhammad Daud Khan, J

ZAFRAN---Petitioner

Versus

BAIDULLAH JAN---Respondent

Civil Revision No.29-B of 2009, decided on 19th May, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Use of words "after sham prayer" in the plaint---Connotation---Defendant contended that "after sham prayer" did not qualify specific time necessary to be mentioned in plaint---Validity---Definition of time was not so narrow that could only be determined in minutes and seconds---Words "after sham prayer" could calculate/determine specific time---Words 'after sham prayer' were within the ambit of specified time as required by law---Pre-emptor proved talbs in accordance with law---Revision was dismissed.

Syed Munawar Hussain Shah and another v. Sahib Khan 2013 CLC 1488 distinguished.

Abdul Latif alias Muhammad Latif alias Babu v. Dil Mir and others 2010 SCMR 1087; Muhammad Hanif v. Tariq Mehmood Civil Appeal No.1058 of 2011; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and 2002 SCMR 219 rel.

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

----S. 115---Revisional jurisdiction---Scope---Scope of revisional jurisdiction was limited---Concurrent findings could not be disturbed merely because a different view could be formed---Interference could only be made where such findings were patently illegal, without jurisdiction or result of misreading and non-reading of material evidence, based on conjectural presumptions or erroneous assumption.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 rel.

Aziz-ur-Rehman for Petitioner.

Muhammad Aslam Khan Machan Khel for Respondent.

Date of hearing: 19th May, 2014.

2015 Y L R 249

[Peshawar]

Before Assadullah Khan Chammkani and Muhammad Daud Khan, JJ

REHMATULLAH alias GUD---Appellant

Versus

JAN ALAM and 2 others---Respondents

Criminal Appeal No.63-B of 2011, decided on 27th March, 2014.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Child witness---Importance---Accused was directly and singularly charged for murder of the deceased and the story of the complainant did appeal to reason---Prosecution witness, who was brother of the deceased, and was a child of age of 7/8 at the time of occurrence, was a straightforward witness, and he was not expected to manipulate or concoct any event seen by him; what he had seen, he narrated before his father/the complainant; child, therefore, was a natural witness---Complainant had not any mala fide intention to falsely implicate accused as no evidence had been brought on record by the defence to prove previous motive of the complainant---Both prosecution witnesses had been subjected to lengthy and comb searching examination by the defence, but nothing fruitful could be extracted from them---Said witnesses stood firm to their stance---Ocular account furnished by prosecution witness had been substantiated and corroborated by circumstantial evidence in the shape of recovery of blood stained earth from the place of incident, blood-stained last worn clothes, as well as autopsy report of the deceased---Occurrence had taken place in the mode and manner as alleged by the prosecution witness---Minor discrepancies in the statement of prosecution witness, would not be fatal for the prosecution case, because accused who remained absconded for long period of ten years, was examined after that long period---Testimony of child witness, which was straightforward, reliable and confidence inspiring, could not be thrown away, merely on the ground that he was solitary witness of the incident---When the law permitted a fact to be proved through the statement of a single witness, there was no reason or logic to call for more witnesses than one---Conviction could be awarded on the basis of solitary statement of a witness, if it was found worth credence, dependable and consistent---Both the prosecution witnesses, though were related to the deceased, but their testimony could not be discarded for the sole reason of their relationship with the deceased---Prosecution had fully established the guilt of accused---No infirmity, illegality or irregularity or any misreading or non-reading of evidence was noticed in the impugned judgment of the Trial Court, which could call for interference of High Court in its appellate jurisdiction---Conviction and sentence recorded by the Trial Court against accused, was maintained, in circumstances.

Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 530; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Muhammad Mansha v. The State 2001 SCMR 199; Farooq Khan v. The State 2008 SCMR 917; Dildar Hussain v. Muhammad Afzaal alias Chala PLD 2004 SC 663; and Nazir v. The State PLD 1962 SC 269 ref.

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

----S.154---F.I.R., object and scope---Object of F.I.R., was to set the law into motion, and each and every detail was not necessary to be given in the same.

(c) Criminal trial---

----Evidence, appreciation of---Veracity and credibility of the witness---In criminal cases, what was more essential for the court to see, the veracity and credibility of the witness; and not the number, as it was the quality and not the quantity of the evidence, which mattered.

M. Rasheed Khan Dirma Khel for Appellant.

Saifur Rehman Add: A.G. for the State.

Iftikhar Ahmad Khan Durrani for the Complainant.

Date of hearing: 27th March, 2014.

2015 Y L R 308

[Peshawar]

Before Mrs. Irshad Qaiser, J

MUSHTAQ AHMAD and others---Appellants

Versus

TAHIR ADAM and others---Respondents

F.A.O. No.44-A of 2013, decided on 10th July, 2014.

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

----S. 17---Eviction of tenant---Bona fide personal need of landlord---Striking off defence of tenants---Validity---Relationship of landlord and tenant existed between the parties---Hindrance and delay was caused by the tenants in quick disposal of the case which was essential requirement of law---Tenants failed to produce evidence in spite of availing more than 18/19 adjournments and Rent Controller had no other option except to pass the order of striking off defence of tenants---Preference had to be given to the order passed by the court---Rent Controller had adopted legal procedure and had provided full/sufficient opportunity to the tenants but they failed to produce evidence---No illegality, irregularity or infirmity had been pointed out in the order for striking off evidence of tenants---No right of cross-examination was given to the landlord with regard to the copy of statement produced by the tenants and same could not be considered as piece of evidence---Landlord was not bound to disclose the nature of business to be started in the demised premises in order to seek ejectment of tenant from a commercial premises on the ground of his personal and bona fide need---Proof of having experience in the trade or business by the landlord was not necessary to prove personal need for such premises---Landlord, in the present case, was not in possession of any other property in the area suitable for his need and requirement---Sole testimony of landlord was sufficient to establish his personal and bona fide requirement---Statement of landlord and his witness on oath were consistent with the averments made in the eviction petition---Nothing was on record to contradict such statements---Tenants did not step in the witness box to controvert the testimony of landlord---Tenants had remedy under S.17(6) of Cantonments Rent Restriction Act, 1963 if landlord did not use the suit premises for his personal need---Rent Controller was justified in accepting the evidence of landlord and ordering eviction of tenants---Tenants were directed to vacate the premises within six months---Appeal was dismissed in circumstances.

2007 CLC 1084; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964; PLD 1993 SC 68; Abdul Majeed represented by legal heirs v. Lutfi Siddiqui and 2 others 1987 CLC 455; Col. (Retd.) Sadiq Hassan Sheikh v. Lt.-Col. Farooq Ahmed 1987 SCMR 1887; 1980 SCMR 593; PLD 1976 Kar. 832; 1989 SCMR 1368; 1997 SCMR 1062; Muhammad Iqbal v. Syed Sohail Wajid Gillani 2004 SCMR 1607; Haji Mohibullah and others v. Khawaja Bahauddin 1990 SCMR 1071; Shahid Mehboob v. Muhammad Ismail 2008 CLC 87; 1994 SCMR 355; 2001 SCMR 550; PLD 2007 SC 31; Messrs F.K. Irani Co. v. Begum Feroza 1996 SCMR 1178 and 2011 YLR 182 rel.

Muhammad Shoaib Khan for Appellant.

Ghazanfer Farrukh and Noman Bin Yousaf, Urfan Qureshi and Malik Waseem Fazal for Respondents.

Date of hearing: 2nd July, 2014.

2015 Y L R 344

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Ikramullah Khan, J

Messrs SPINZER TRAVELS (PVT.) LTD. through Director---Plaintiff

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Station Manager and 3 others---Respondents

Writ Petition No.1558-P of 2013, decided on 18th September, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contractual matter---Petitioner a Travel Agent sought direction to the effect that respondent Pakistan International Airlines pay commission to the petitioner on fuel surcharge collected by the petitioner on behalf of the respondent Airline---Contention of petitioner was inter alia that fuel surcharge was part of the fare and therefore, the petitioner was entitled to receive commission on the same---Held, that status of the contract entered between the parties was not of a standard agreement as approved by IATA, and any contractual rights, commitments, undertaking and obligations could not be interfered with by the High Court while exercising its Constitutional jurisdiction---Proper remedy for enforcement of contractual liability in such like matters lay in approaching courts of ordinary jurisdiction---Constitutional petition could not be filed to enforce contractual remedy---High Court observed that petitioner was at liberty to seek legal remedy from competent forum if available to petitioner, in accordance with law---Constitutional petition was dismissed, in circumstances.

High Court Justice, Queens Bench Division, London, United Kingdom dated 10-12-2012 ref.

Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Lahore Cantonment Co-operative Housing Society Limited Lahore Cantt., through its Secretary v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068 and Niazamuddin and others v. Civil Aviation Authority and 2 others 1999 SCMR 467 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition----Laches----When claim/cause of action was a recurring one; no question of laches would arise----Principle of laches was based on fair play, equity and natural justice---Bar of laches could not be over emphasized in a case where relief claimed was based on a recurring cause of action.

Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal heirs and others 2004 SCMR 400 and Umar Baz Khan through L.Hrs. v. Syed Jehanzeb and others PLD 2013 SC 268 rel.

M. Zahoor-ul-Haq for Petitioner.

Inayatur Rehman for Respondents.

Date of hearing: 10th September, 2014.

2015 Y L R 364

[Peshawar]

Before Qaiser Rashid Khan, J

KHITAB GUL and another---Petitioners

Versus

MUHAMMAD AMIR and another---Respondents

Criminal Miscellaneous (BA) No.1298-P of 2014, decided on 17th November, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.387 & 506---Anti-Terrorism Act (XXVII of 1997), S.7---Putting person in fear of death or of grievous hurt in order to commit extortion, criminal intimidation, act of terrorism---Bail, grant of---Further inquiry---Complainant allegedly received calls from various telephone numbers on his Cell Phone, whereby monetary demand was made from him; and even life threats were hurled to him and his family---No material was available on file whereby it could be ascertained that either calls were made from the mobile phones of accused persons to the complainant or the SIM's from which threatening calls were made to the complainant were used from the mobile sets of accused persons---Said factor alone took the matter to one of further enquiry---Accused were directed to be released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Syed Sikandar Hayat Shah, A.A.-G. for Respondents.

Date of hearing: 17th November, 2014.

2015 Y L R 371

[Peshawar]

Before Mazhar Alam Khan Miankhel and Ikramullah Khan, JJ

Syed ZAHIR SHAH---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and another---Respondents

Eh. Criminal Appeal No.7 of 2010, decided on 12th March, 2014.

(a) National Accountability Ordi-nance (XVIII of 1999)---

----S.14---Presumption of guilt---Commis-sion of offence---Onus to prove---Shifting of onus, principle of---Initial burden always lies on the shoulders of prosecution to prove charges levelled against accused and thereafter successfully discharging its legal obligation, it invariably shifts to accused to bring on record reasonable evidence to rebut presumption of guilt placed on him by special provisions contained in S. 14 of National Accountability Ordinance, 1999.

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

----Art.129---Presumption---Scope---Court may presume existence of any fact, which it think likely to have happened, regard being had to the common course of natural events, human conduct, public and private business, in relation to facts of particular case---Such is principle of law of evidence envisaged under Art. 129 of Qanun-e-Shahadat, 1984.

(c) National Accountability Ordi-nance (XVIII of 1999)---

----S. 5(da)--- Benamidar--- Scope--- All holdings when used for the benefit or enjoyment of accused would be deemed to be a Benami property on behalf of accused, though that actually entered in any official record in the name of accused or remain in possession of any other person.

(d) National Accountability Ordi-nance (XVIII of 1999)---

----Ss.2 & 9 (a) (iv)---Assets beyond known sources of income---Appreciation of evidence---Cut-off date---Scope---Accused was convicted for holding assets beyond known sources of his income and was sentenced to five years imprisonment along with fine and forfeiture of assets---Validity---Provisions of National Accountability Ordinance, 1999, had been given effect from 1-1-1985 but it did not exclude such assets accumulated through illegal means by a public servant prior to 1-1-1985, from accountability---No person could be charged under the provisions of National Accountability Ordinance, 1999, if he had seized to be a public servant before or on 1-1-1985---Accused had accumulated, amassed assets disproportionate to his known sources and had been rightly convicted and sentenced and properties mentioned were rightly forfeited to state---Appeal was dismissed in circumstances.

Chaudhry Aamir Ali v. State 2002 YLR 1902; Pir Mazhar ul Haq v. The State PLD 2005 SC 63; Syed Qasim Shah v. The State 2009 SCMR 790; Muhammad Hayat v. The State PLD 2002 Pesh. 118; Khalid Aziz v. The State 2011 SCMR 136; Muhammad Hashim Babar v. The State and another 2010 SCMR 1697; Mehmood Hussain v. The State and another 2003 PCr.LJ 1; Qazi Siraj v. The State PLD 2004 Quetta 136; Hakim Ali Zardari v. The State 2007 MLD 910; Farrukh Javed Ghumman v. The State PLD 2004 Lah. 155; The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118; Hayat Khan v. The State 2011 YLR 890; The State through Prosecutor-General Accountability, National Accountability Bureau, Islamabad v. Misbahuddin Farid 2003 SCMR 150; Zulfiqar Ahmad and another v. The State 2011 SCMR 492; Sultan Khan v. Sher Khan and others PLD 1991 SC 520; Abdul Wahab v. The Crown PLD 1955 FC 88; Shabbir Ahmad v. The State PLD 1995 SC 343; Din Muhammad v. The Crown 1969 SCMR 777 and Khan Muhammad and others v. The State PLD 1960 (W.P.) Lah. 218 ref.

Barister Masroor Shah for Petitioner.

Khalilullah Khalil for Respondents.

Dates of hearing: 20th, 21st, November, 17th December, 2013 and 15th January, 2014.

2015 Y L R 402

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

NIAZBULLAH and another---Appellants

Versus

LIAQ-UR-REHMAN and 2 others---Respondents

Criminal Appeal No.30-B of 2009, decided on 17th April, 2014.

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

----Ss.302(b), 324 & 34---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Sentence, reduction in---Story as set forth by injured complainant in his initial report, was fully supported by injured prosecution witnesses on each and every material aspects of the occurrence---Both witnesses had been subjected to lengthy and searching cross-examination, but no material contradiction could be brought in their testimony which could be beneficial for the defence---Both said eye-witnesses had given general role of firing to all the four accused persons, without attributing the fatal shot to any one of them, but role of effective firing had been clarified by court-witness, who was an independent witness, not related to any of the parties---Witnesses though related to deceased, but not having any reason to implicate accused falsely---Both said witnesses were bearing the stamp of injuries, received in course of the same incident---Incident had taken place in broad daylight, and the eye-witnesses had full opportunity of observing the whole incident---Juvenile co-accused who earlier were tried, had ultimately been acquitted---Version of court-witness found support and corroboration from circumstantial evidence in the shape of recovery of crime empties and medical evidence---Participation of accused in the occurrence, had been proved up to the hilt---Factum of commission of offence by accused, further got support from the medical evidence---Abscondence of accused was another circumstance, which had proved the guilty conscious of accused---Trial Court had totally overlooked the material, as well as circumstantial evidence, which proved the complicity and guilt of accused, and based its findings on conjectures and surmises, unsupported by the evidence---Impugned judgment being the result of misreading and non-reading of evidence leading to miscarriage of justice, was liable to be set aside---Prosecution had successfully proved the guilt of accused to the hilt through cogent and confidence inspiring evidence---No previous motive had been alleged by the prosecution, occurrence took place in the spur of moment without any pre-plan---To award the maximum sentence of death to accused was not appropriate rather life imprisonment would be the appropriate punishment to meet the ends of justice---Impugned judgment of acquittal by the Trial Court was set aside, accused were convicted and sentenced to imprisonment for life.

(b) Criminal trial---

----Site plan---Scope---Site plan, no doubt was not a substantive piece of evidence, but being the first reflection of the spot indicated or pointed out by the eye-witnesses, would furnish a panoramic view of the occurrence to scrutinize the evidence, tendered at the trial by the prosecution witnesses.

(c) Criminal trial---

----Maxim: Falsus in uno falsus in omnibus--- Applicability--- Scope---Testimony of the eye-witness, could on the principles of sifting the grain from the chaff, could be used against accused, on the basis whereof conviction could be recorded---Principles of 'falsus in uno falsus in omnibus' had been done away with---Courts while appreciating evidence, would apply the principles of sifting the grain from the chaff---If the courts found that a witness had falsely implicated accused, ordinarily he would not be relied upon with regard to the other accused in the same occurrence, but if the testimony of such witness was corroborated by very strong and independent circumstances regarding the other, then reliance could be placed on the same witness for convicting the other accused.

Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Muhammad Haleem and G. Safdar Shah.JJ Khairu and another v. The State 1981 SCMR 1136; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Irshad Ahmad v. The State PLD 1996 SC 138; Sarfaraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Ziaullah v. The State 1993 SCMR 155 ref.

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

----S. 417---Appeal against acquittal, scope---No doubt, court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, as scope of appeal against acquittal was considerably narrow and limited, but the findings of acquittal could be disturbed, if those were found arbitrary, fanciful and capricious on the face of it; or was the result of bare misreading or non-reading of any material evidence; or there had been complete misreading of evidence leading to miscarriage of justice.

The State Through Advocate-General N.W.F.P. Peshawar v. Hamayoun and others 2007 SCMR 1417 rel.

H.Hamayun Khan Wazir for Petitioner.

Saifur Rehman for the State.

Salim Ullah Khan Ranazai for the Complainant.

Date of hearing: 17th April, 2014.

2015 Y L R 435

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. ASIA KHATOON---Petitioner

Versus

KHAN SHAREEN---Respondent

Civil Revision No.338 of 2006, decided on 16th September, 2014.

Specific Relief Act (I of 1877) ---

----S. 42---Suit for declaration---Power-of-attorney---Plaintiff (executant) was deaf and blind and had no fair counselling---Effect---Transfer of property on the basis of power of attorney---Expert opinion---Scope---Mutation of sale---Evidentiary value---No description of property was given in the general power of attorney---Owner of suit land also had other property in the same village---Land in dispute was situated in one province and power of attorney had been executed and registered in the other province---Nothing was in the evidence of defendants as to when and where they paid the sale money---No proof existed as to whether all other brothers of plaintiff had executed special power of attorney---Disputed power of attorney was used for the benefit of very near relation with no special permission---Plaintiff was blind and deaf for the last 40 years---Marginal witness of power of attorney was dead and resided at place "X" whereas his address mentioned in the said power of attorney was quite different---Factum of transaction of payment of money and purchase of land was not mentioned in the disputed power of attorney---Plaintiff/ executant was not aware as to what he was signing as he was blind and deaf besides having no fair counselling with regard to power of attorney---Execution of power of attorney, in circumstances, was doubtful and same was not with free and fair consent of executant---Burden was on the beneficiary of power of attorney to prove the execution of the same but no cogent, convincing and strong evidence was on record rather interested witnesses were produced with lot of contradictions creating doubts---Beneficiary of said power of attorney the executant of which was blind and deaf was bound to prove/ establish by highly satisfactory and strong evidence that such person had fully understood the contents of document at the time of signing---Expert opinion was weak type of evidence in presence of confidence inspiring evidence on record---Mutation of sale had no evidentiary value as no agreement of sale in the disputed power of attorney was on record nor sale consideration and specification/particulars of sold land were mentioned in the same---Impugned transaction was fraudulent in nature---Judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---General power of attorney and impugned mutation were declared null and void---Revision was accepted in circumstances.

Firdos Shah v. Mst. Mehmoona Bibi 2007 CLC 500; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618; Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193; Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859 and Fida Hussain and others v. Murid Sakina 2004 SCMR 1043 rel.

Malik Muhammad Arif for Petitioner.

M. Naeem Anwar for Respondent.

Date of hearing: 16th September, 2014.

2015 Y L R 539

[Peshawar]

Before Abdul Latif Khan, J

Mst. SAMINA BIBI and 9 others---Petitioners

Versus

MUHAMMAD RAMZAN and 3 others---Respondents

Civil Revision Petition No.259-D of 2012, decided on 8th November, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

---Ss. 13 & 28---Talbs, performance of---Exchange mutation---Requirements---Scope---Contention of defendant was that impugned mutation was in fact "exchange mutation" and not that of sale---Trial Court decreed the suit but same was dismissed by the Appellate Court---Validity---Witnesses of plaintiff deposed that property in question was sold for consideration and had been given colour of exchange---Such statement had not been cross-examined by the defendant which would amount to admission on his part---Departure from pleadings could not be allowed unless permitted by the court through amendment---Burden to prove the genuineness of exchange mutation was on its beneficiary claiming exemption from pre-emption---Neither patwari halqa nor attesting revenue officer were examined who were important witnesses---Marginal witnesses of exchange mutation were not examined by the defendant---Mutation would not create title and once it was challenged, the burden would shift upon its beneficiary to prove the original transaction which resulted into entry and attestation of the same---No efforts were made in such regard and exchange mutation stood not proved---No evidence was produced to the effect that exchange transaction was made for better management nor same was averred in the written statement---Solitary statement of defendant with regard to "Sahoolat" would not amount to exchange for better management nor same would fulfil the requirements of "exchange mutation"---Suit property was in fact sale and same was pre-emptible---Attorney of plaintiff had reiterated the stance taken in the plaint and informer had fully supported his version---No contradiction existed with regard to performance of Talb-i-Muwathibat---Notice of Talb-i-Ishhad stood proved to the extent of its scribing, verification and delivery---Plaintiff had proved talbs in accordance with law---Appellate Court had focused upon minor discrepancies which were immaterial and could not be termed as variation in the statement---No amount was mentioned in the mutation as sale consideration and Trial Court rightly fixed the market value of the same by considering Ausat Yaksala prepared by the patwari---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored---Revision was accepted in circumstances.

Muhammad Akhtar's case 2001 SCMR 1700; Haji Muhammad Ameen's case PLD 2005 Pesh. 69; Din Muhammad's case 2001 SCMR 1992; Muhammad Anwar's case PLD 2003 SC 688 and Akbar Nawaz's case 1995 MLD 1061 rel.

Muhammad Younis Thaheem for Petitioner.

Amir Muhammad Baloch for Respondents.

Date of hearing: 8th November, 2013.

2015 Y L R 571

[Peshawar]

Before Muhammad Daud Khan, J

RIFATULLAH---Petitioner

Versus

ABDUL QAYUM and 6 others---Respondents

Criminal Miscellaneous Bail Petition No.17-B of 2014, decided on 10th March, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object---Bail, refusal of---Delay of one hour in lodging report, was not so fatal to be considered at bail stage, in view of 5/6 Kilometer distance between the place of occurrence and the Police Station---Accused was directly charged for murder of the deceased in broad daylight, witnessed by the complainant and his nephew---Parties being co-villagers inter se, there was no chance of misidentification---Single firearm entry wound on the body of the deceased, fully corroborated the F.I.R. and recovery memo---Complainant, in the F.I.R. had given a specific motive behind the offence---Prima facie case, was made out against accused in circumstances---Accused had been attributed a specific role of effective fire-shot on vital part of the body of deceased; co-accused, who had been released on bail, had been assigned the role of ineffective firing---Case of accused, in circumstances, did not fall under the rule of consistency---In view of substantial positive evidence in support of prosecution version, when otherwise there was no room for further inquiry, plea of alibi, could not be taken into consideration---Challan had already been put in court, and the prosecution witnesses were summoned, and case was fixed for framing of charge against accused---Accused having committed offence which came within the prohibitory clause of S.497, Cr.P.C., his bail petition was dismissed, in circumstances.

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

----S.497---Bail---Evaluation of evidence---When there was sufficient evidence in favour of the prosecution version, and some evidence in favour of defence, the safest course open for dispensation of justice was, that the matter be left for the Trial Court to evaluate the evidence of prosecution as well defence, and then form its opinion about guilt or innocence of accused.

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

----S. 497---Bail, grant of---Principles---No observation to be made by court at bail stage, about the evidence of either side, as it would affect their case at trial---Deeper appreciation of evidence, was not to undertaken at bail stage, particularly, when trial had commenced, or was likely to commence in the near future, because any expression on merits at such stage, would cause prejudice to either party, at trial.

Muhammad Ismail's case PLD 1989 (sic) 585 ref.

Muhammad Ismail Khan Alizai and Mirzal Khan for Petitioners.

Qadratullah Khan D.A.G. for the State.

Mohammad Anwar Khan Maidad Khel and Faqir Mehboob-ul-Hameed for Respondents.

Date of hearing: 10th March, 2014.

2015 Y L R 590

[Peshawar]

Before Rooh-ul-Amin Khan, J

Malik MOHSIN SAJJAD---Petitioner

Versus

UNIVERSITY OF PESHAWAR through Vice-Chancellor and 4 others---Respondents

Civil Revision No.528-P of 2013, decided on 20th January, 2014.

(a) Educational Institution---

----Fake/ bogus educational certificate/ degree---Menace to society---Cancellation of admission of student on the basis of fake certificate--- Justification---Circulation of fake degrees and certificate is a menace to the society and a serious threat to the integrity of both the certificate/degree holder and educational institution that awarded the same---High Court observed that pre-university institutions i.e. Boards of Intermediate and Secondary Education, Technical Boards and Universities are required to adopt a process that can ensure security of information and authenticity of certificate/ degree issued.

(b) Educational Institution---

----Degree--- Definition--- Degree in a particular subject signifies the position of a student on a scale of intensity, amount or quality---Degree is a specific identifiable position in a continuum, series, especially in a process and in fact an award conferred by the college or University signifying that the recipient has satisfactorily completed a course of study.

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

----S.42---Declaratory suit---Fake/bogus educational certificate/degree--- Cancel-lation of admission from University---Scope---Plaintiff, in the present case, was allowed admission as a student in the University for study, who at the time of his admission provided detail marks certificate issued by Intermediate and Secondary Education Board, which, was later on, after verification, was found bogus---University administration cancelled the admission of petitioner/student on account of bogus certificate---Suit filed by the plaintiff/student was decreed in his favour, but the appellate Court accepted the appeal of respondent/University by setting aside the judgment and decree passed by trial Court---Contention of the plaintiff/student was that he being a regular student has successfully completed three semesters and during final semester, admission was cancelled illegally---Validity---Admission of the plaintiff/student was based on the detail marks certificate issued by the Board of Intermediate and Secondary Education, which being provisional was liable to be recalled at any time, in case of fake and fictitious Certificate---Plaintiff/petitioner had committed fraud by getting admission through a bogus detail marks certificate, so neither any law nor in equity, relief could be granted to such errant, whose hands were sullied with improper conduct and against whom a finding of privy to and being beneficiary of fraud had not only been recorded by the Institution where he was studying but also affirmed by the Court of law---Any leniency in such like cases, would amount to encouragement of foul play and unfair means---Any student who got admission on fake certificate, shall destroy the fabric of the society and it was desirable that such students be weeded out from the education field, so as to create confidence in the deserving genuine students that the education imparted was to bring out honest citizen---Revision petition was dismissed.

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

----O.VI, R.7---Departure from pleadings---Scope---Parties are not allowed to go beyond their pleadings and any such statement made during trial, would not be admissible.

Muhammad Ibrahim Khan for Petitioner.

Waseemuddin Khattak for Respondents.

Date of hearing: 20th January, 2014.

2015 Y L R 624

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

FAZAL KHALIQ---Appellant

Versus

The STATE and 3 others---Respondents

Criminal Appeal No.100 of 2011, decided on 5th March, 2014.

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

----Ss. 302(b), 307 & 34---Qatl-i-amd, enforcement of qisas, common intention---Appreciation of evidence---Benefit of doubt---No motive had been shown---Accused and the deceased were shown in civil litigation with each other---Identification of accused having become doubtful, benefit of the same must go to accused; and that vital aspect of the matter alone was sufficient to discredit the prosecution version, and to entitle accused to acquittal---Occurrence had not taken place in the mode and manner as asserted by the prosecution and it was also doubtful as to whether the alleged eye-witnesses had seen the occurrence---Best evidence, available with the prosecution, having been withheld, adverse inference could be drawn against the prosecution---Only stamp of injuries on the prosecution witness, alone would not prove the presence of said witness at the relevant time; and such was not a guarantee of the truthfulness---Assailants, who were shown at a distance of 300 yards and were in ditch, their identification from such distance, was not possible---Doctor, who examined the deceased, had not been examined in the case, but an employee had been produced who had verified the report---Prosecution having failed to prove the guilt of accused beyond shadow of doubt, conviction of accused could not be maintained---Conviction and sentence awarded to accused by the Trial Court, were set aside extending him benefit of doubt and he was acquitted of the charges levelled against him.

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

----Ss. 302(b), 307 & 34---Qatl-i-amd, enforcement of qisas and common intention---Appreciation of evidence, rule of---General rule of appreciation of evidence was, that want of interest, or absence of enmity, would not stamp the statement of a particular witness with presumption of truth; that much would depend on the basic value of the statement of a witness---Real test was as to whether the statement of a witness was in consonance with the probability, whether it fitted in with the other evidence, and whether it inspired confidence.

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

----Art. 46---Dying declaration---Recording and scrutiny of---Scope---Close scrutiny of dying declaration, like the statement of an interested witness, was required under the law, and not to be believed as truth on the plea that dying person was not expected to tell a lie---Where maker of dying declaration was not subjected to cross-examination, great caution must be exercised in considering such kind of evidence---Court was to see that dying declaration inspired full confidence and should satisfy that there was no possibility of tutoring; prompting; and that court should satisfy itself that the deceased was in a fit state of mind to make the statement---Court should also see the statement of deceased, as to whether he was having the opportunity to observe, and identify the assailant.

(d) Criminal trial---

----Abscondence of accused---Scope---Abscondence of accused alone was not sufficient to record conviction, and it could be used only as a corroboratory and confirmatory in support of ocular account, but when the ocular account and dying declaration were disbelieved, then it was of a very little value for court for consideration.

Muhammad Sher Shah for Appellant.

Sher Muhammad Khan and M. Javed A.A.-G. for Respondents.

Date of hearing: 5th March, 2014.

2015 Y L R 688

[Peshawar]

Before Malik Manzoor Hussain, J

PROJECT DIRECTOR SWABI DEVELOPMENT AUTHORITY

and 2 others---Petitioners

Versus

NOORUL AMIN and 2 others---Respondents

Civil Revision No.167-P of 2013, decided on 10th February, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Cancellation of allotment of plot---Scope---Contention of plaintiff was that allotment of plot was cancelled by the Development Authority without notice---Suit was decreed concurrently---Validity---Allotment of plot of plaintiff was cancelled on the pretext that same had already been allotted to another allottee---Authority conveyed to the plaintiff that he would be allotted another plot but such commitment was not honoured---No notice was issued to the plaintiff prior to cancellation of allotment of plot---Authority had allotted other plots on the basis of 'draw' as well as on the basis of judgment of High Court after cancellation of allotment of plot of plaintiff---Authority was bound to honour its commitment when plaintiff was held entitled for allotment of plot---Authority was bound to allot an alternate plot to the plaintiff if plot in question was already allotted to another allottee---State functionaries were bound to make their decision honestly, judiciously and in accordance with law---Authority was bound to run their affairs fairly to maintain confidence of public---Authority, in the present case, had not only violated the relevant rules but had made certain concessions to their blue eyed person---No illegality or infirmity had been pointed out by the Authority in the impugned judgments passed by the courts below---Question of facts had thoroughly been determined by the Appellate Court which could not be disturbed in revisional jurisdiction by the High Court unless judgments passed were perverse or against the material available on record---Revision was dismissed with costs in circumstances.

Saleem Anwar Khan for Petitioners.

Pervez Khan for Respondents.

Date of hearing: 10th February, 2014.

2015 Y L R 703

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

FEROZ KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.181-B of 2013, decided on 7th May, 2014.

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

----S. 376--- Rape--- Appreciation of evidence--- Rule of res gestae---Applicability--- Scope--- Accused was directly charged by the complainant/ brother of the victim for committing forcible sexual intercourse with the victim---Whatever the complainant had narrated in his report, was complained by her victim sister---Defence had not denied the relationship of the victim with accused being her father-in-law---Husband of the victim had gone abroad during the days of incident---No evidence was available to prove that victim was not residing in the house of accused/her father-in-law during the days of incident, during which period, the victim girl remained prey of the sexual lust of accused, and she due to fear, shame and honour of the family kept mum---Delay of four months in lodging report, would not advance the case of defence keeping in view the norms of the society, where fathers-in-law were regarded by their daughters-in-law as their real fathers---Victim girl remained mum because of the fear that no body would believe her if she opened her mouth and because for her own family honour and of the fear of her husband that she was blaming her father---When she was pregnant and found the opportunity of reaching the house of her brother, she narrated the entire episode to his brother, who without any delay, reported the incident---Contention that it was a case of no eye-witness, was misconceived as offences of like nature were never committed in view of the general public---Victim being the daughter-in-law of accused was under his dominance day and night being living in his house---Victim had been examined by the medical board and according to the opinion of the board, she being not able to give evidence, was abandoned on valid grounds---Present was a case which fully attracted the rule of 'res gestae' which could safely be taken into consideration as an admissible evidence against accused---Pregnancy of the victim and delivery of baby was a proof that she had been subjected to sexual intercourse---Victim who was a simple illiterate house girl was not proved to be a woman of easy virtue; she had directly charged the accused for committing sexual intercourse with her---According to medical report, accused was capable of performing sexual intercourse---No upper age limit regarding impotency and infertility---Under conducive environment, a man of 65/70 years of age could perform sexual act---Prosecution had proved the guilt of accused through overwhelming evidence, and, documentary and scientific evidence---Trial Court had evaluated and assessed the evidence in its true perspective---In absence of any infirmity, illegality or irregularity or any misreading or non-reading of evidence in the impugned judgment of the Trial Court same could not be interfered with.

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

----Art. 19---Res gestae, principle of---Scope illustrated.

(c) Medical jurisprudence---

----'DNA', or 'Deoxyribonucleic acid', meaning and scope.

Israr ul Haq and Farzand Ali for Appellant.

Qudratullah Khan, A.A.G. for Respondents.

Date of hearing: 7th May, 2014.

2015 Y L R 719

[Peshawar]

Before Waqar Ahmed Seth, J

IRFAN KHAN BANGISH---Petitioner

Versus

GOVERNMENT---Respondent

Writ Petition No.815-A of 2013, decided on 1st October, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Mining concession---Prospecting license, grant of---New policy, introduction of---Retrospective effect---Good governance, equity and fair play, principles of---Scope---Petitioner applied for grant of prospecting license and before issuance of the same new policy was introduced and petitioner was directed to reduce the applied area according to the new policy---Validity---Petitioner filed the requisite application prior to the new policy which was kept pending by the department---Petitioner was not on fault in the present case---Public functionaries were required to act with the principles of good governance, equity and fair play---Policy formulated subsequently would not operate retrospectively---Subsequent change could not be made applicable retrospectively, adversely, affecting the rights of any individual---Petitioner had spent an amount to discover the applied mineral and due to mala fides on the part of respondent-department he was struggling for more than six years to get the prospecting license which was his right---Petitioner was being penalized on the inaction of department-respondents---Constitutional petition was accepted in circumstances.

S.M. Muneer for Petitioner.

A.A.-G. for Government.

Date of hearing: 11th October, 2014.

2015 Y L R 723

[Peshawar]

Before Mrs. Irshad Qaiser, J

MUHAMMAD SAQIB---Appellant

Versus

S.M. MUSHTAQ---Respondent

F.A.O. No.24-A of 2013, decided on 23rd December, 2013.

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

----S.17 (8)---Ejectment of tenant---Tentative rent order---Scope---Order passed by Rent Controller under S.17(8) of Cantonments Rent Restriction Act, 1963, is not appealable order---Rent Controller has the discretion to pass order in accordance with facts and circumstances of each case to save the interest of parties and also for quick disposal of case.

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

----S.17 (9)---Tentative rent, "default" in deposit---Striking of defence---Provisions of S. 17(9) of Cantonments Rent Restriction Act, 1963, are mandatory in nature and even one day's delay in making deposit is "default" within its meaning---Rent Controller has no power to extend time or condone delay in deposit of tentative rent.

Misbah Ullah Khan v. Mst. Memona Takinuddin 1995 SCMR 287; Province of Punjab and others v. Muhammad Jalilur Rehman 1986 SCMR 1705 and 1990 SCMR 557 rel.

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

----S.17---Ejectment of tenant---Default in deposit of rent---Striking of defence---Adjustment from security deposit---Tenant defaulted in payment of monthly rent and also did not comply with tentative rent order, therefore, Rent Controller passed ejectment order---Plea raised by tenant was that defaulted rent could have been adjusted from security deposit available with landlord---Validity---No covenant in tenancy agreement was mentioned for such adjustment and no advance rent was deposited with landlord, hence no adjustment could be made towards the rent of defaulted period---Tenant failed to comply order of Rent Controller, therefore, there was every justification with Rent Controller to strike off defence of tenant and no exception could be taken to such order of Rent Controller---Order passed by Rent Controller did not warrant any interference by High Court and tenant failed to point out any illegality in ejectment order---Appeal was dismissed in circumstances.

2001 CLC 1045; PLD 1997 Kar. 420; 2010 SCMR 771; 2004 SCMR 1070; PLD 1995 SC 609; 1993 MLD 2083; 1977 SCMR 217; 1991 SCMR 359; 1996 CLC 1616 and 2011 CLC 1579 ref.

Khadim Hussain v. Nazir Ahmed 2003 SCMR 1580; Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; 1982 SCMR 1120 and 2004 SCMR 1453 rel.

S. Hamad Hussain Shah for Appellant.

M. Shoaib Khan for Respondent.

Date of hearing: 23rd December, 2013.

2015 Y L R 727

[Peshawar]

Before Rooh-ul-Amin Khan, J

ABDUR RASHID KHAN and others---Petitioners

Versus

ABDUL QAYYUM and others---Respondents

Civil Revision No.303-B and C.M. No.232-B of 2013, decided on 22nd November, 2013.

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

----S. 42---Suit for declaration---Contention of plaintiffs was that impugned mutations had not been got attested by their predecessor during his life time---Suit was dismissed concurrently---Validity---Plaintiffs had failed to prove the attestation of impugned mutations after the demise of their predecessor---Sufficient evidence was available on file which had proved the attestation of said mutations by the predecessor of plaintiffs during his life time---Presumption of correctness was attached to the long standing entries in the revenue record which could only be rebutted through cogent and coherent evidence which was lacking in the present case---Appellate Court was justified by refusing the proposed amendment as plaintiffs had specifically prayed for cancellation of all subsequent mutations in the plaint---Mentioning of each and every subsequent mutation was not inevitable---Both the courts below had properly appreciated the evidence and had rightly non-suited the plaintiffs---No illegality, irregularity or any mis-reading or non-reading of evidence had been pointed out in the impugned judgments passed by the courts below---Revision was dismissed in limine.

(b) 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---Amendment could be sought at any stage of proceedings but same was subject to certain apparent formal defect in the plaint.

Noor Raza Ali Khan for Petitioners.

2015 Y L R 750

[Peshawar]

Before Malik Manzoor Hussain, J

MUHAMMAD AZAM KHAN and 17 others---Petitioners

Versus

MUHAMMAD SARWAR and 21 others---Respondents

Civil Revision Petition No.148-P and C.M. No.167-P of 2012, decided on 29th January, 2014.

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

----Ss. 172 & 53---Correction of revenue entries---Scope---Contention of defendants was that District Officer Revenue had got no power to change the entries which were incorporated in the record of rights through settlement---Suit was decreed concurrently---Validity---Plaintiffs were owners in possession of the suit property---Long standing entries from the year 1943 up till 1994-95 remained in the name of plaintiffs---Plaintiffs preferred application for correction of entry in the record of rights before the District Officer Revenue when same was altered---District Officer Revenue passed order for correction of entry in the light of record made available to him---Neither any area was enhanced in favour of plaintiffs nor the title or entitlement of the defendants was disturbed rather the entries were made with regard to the area already possessed and had been incorporated in the revenue record prior to wrong entry---Revenue Officer was bound to make correction whenever any wrong entry was noticed by him---Revenue Officer had power to pass order for correction of entry in the record of rights, periodical record or register of mutation---When question of title was involved then the provisions of S. 53 of West Pakistan Land Revenue Act, 1967 would be invoked---No question of title was involved in the present case but it was a mere correction of entry, therefore powers exercised by the Revenue Officer were supported by law---Revision was dismissed in circumstances.

Abdul Maqbool Khatak for Petitioners.

Muhammad Iqbal for Respondents.

Date of hearing: 29th January, 2014.

2015 Y L R 766

[Peshawar]

Before Abdul Latif Khan, J

GHULAM MUHAYUDDIN---Petitioner

Versus

HABIBUR REHMAN---Respondent

Civil Revisions Nos.145 and 218 of 2009, decided on 31st May, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Talbs---Talb-e-Ishhad---Proof---Procedure--Essentials---Plaintiff failed to mention the date of Talb-e-Ishhad in the plaint which was requirement of law under S.13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987---Factum of talbs was not proved---Delivery of notice of Talb-e-Ishhad to defendants was not proved by producing A.D. (Acknowledgment Due) Card or the postman which was necessary to prove the talbs---Plaintiff mailed photocopies of notices to defendants against mandate of law---Under S.13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 plaintiff was bound to make demand of the pre-emption in particular order and manner---Talb-e-Ishhad meant demand by establishing evidence through specific procedure---Whether requisite Talbs were made was a question of fact---Notices should have been served on defendants in original as photocopies thereof were inadmissible in evidence---Notices had to be served on defendants separately and not jointly---Sale consideration was genuine---Revision was allowed---Judgment and decree of appellate court were set aside while judgment of Trial Court dismissing the suit was restored.

Mian Pir Muhammad's case PLD 2007 SC 302; Bashiran Begum's case PLD 2008 SC 559; Ghafoor Khan through L.Rs. v. Israr Ahmad 2011 SCMR 1545; Bashir Ahmad's case 2011 SCMR 762; Amir Muhammad's case PLD 2011 Pesh. 116 and 2010 YLR 1190 rel.

Akbar Ali Khan for Petitioner.

Muhammad Waheed Anjum for Respondent.

Date of hearing: 31st May, 2013.

2015 Y L R 788

[Peshawar]

Before Qaiser Rashid Khan, J

GHULAM MUHAMMAD BADAL---Petitioner

Versus

ISLAM GUL and 9 others---Respondents

Civil Revision No.490-P of 2012, decided on 28th November, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 17---Dismissal of appeal in default---Scope---Appellate Court had erred while discussing the merits of the case in the impugned order where appeal was dismissed in default---High Court observed that courts were required to decide cases on merits by affording adequate opportunities to the parties to put across their viewpoints rather resorting to disposal of cases through dismissal---Impugned order was set aside and case was remanded for final disposal---Revision was accepted in circumstances.

Arshad Jamal Qureshi for Petitioner.

Muhammad Zafar Tahirkheli for Respondents Nos. 1 to 5.

Muhammad Sohail, DAG for Respondents Nos. 6 to 10.

Date of hearing: 28th November, 2013.

2015 Y L R 794

[Peshawar]

Before Rooh-ul-Amin Khan, J

RASHID ALAM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.131-B of 2013, decided on 28th October, 2013.

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

----Ss. 324, 337-F(v) & 34---Attempt to commit qatl-i-amd, causing hashimah, common intention---Appreciation of evidence---Role of effective firing had been attributed to accused, while role commanding 'Lalkara' had been assigned to co-accused, who had already been acquitted on the basis of compromise---Both the complainant and accused being co-villagers, question of mistaken identity and false implication or substitution did not arise---Six firearms injuries on the person of injured complainant, could not be caused by any friendly hands---Blood-stained earth and shirt of the injured, were sent to Forensic Science Laboratory for analysis and report, and according to Serologist report, it was human blood and of same group---Said material pieces of evidence, established the place of occurrence to be the same as disclosed by the complainant in his report---Injured complainant and other prosecution witness, who had directly charged accused for firing effectively at the complainant, were subjected to lengthy and comb searching cross-examination, stood firm to their stance, and nothing beneficial to defence could be extracted from their mouths which could create doubt in the prosecution case---Statement of injured witness, could not be brushed aside on the basis of minor discrepancies or contradictions---Solitary statement of the injured, corroborated by medical evidence, in hurt case, was sufficient for recording conviction, if it would ring true---Complainant had furnished the actual and truthful account of the occurrence which was corroborated by eye-witness and was supported by medical evidence---Accused who remained absconder for about 3 months, had not furnished any plausible explanation for his absconsion---Prosecution had successfully brought home the guilt of accused beyond any shadow of reasonable doubt; and the Trial Court after proper appraisal of evidence, had rightly convicted him---In absence of any infirmity, illegality or any misreading or non-reading of evidence, judgment of the Trial Court could not be interfered with---Appeal was dismissed.

(b) Criminal trial---

----Witness---Injured witness---Scope---Evidence of an injured witness must be given due weight being a stamped witness---Presence of such witness at the spot, at the time of occurrence, could not be doubted---Statement of an injured witness generally, was to be considered very reliable; and it was unlikely that he would spare the actual assailant in order to falsely implicate someone else---Testimony of such witness had its own relevancy and efficacy, as he had sustained injuries at the time and place of occurrence which would lend support to his testimony that he was present at the time and place of occurrence---Testimony of injured witness was accorded a special status in law; he was a witness that came with a built-in guarantee of his presence at the scene of crime---Very convincing evidence was required to discredit the testimony of an injured witness.

(c) Criminal trial---

----Witness---Minor discrepancies in the statements of prosecution witnesses---Scope---Minor discrepancies do ocular in the statements of the prosecution witnesses with the passage of time, which were in-built proof of veracity of their statements---Witnesses were never expected to give a tape-recorded statement, having no discrepancy inter se---Such like discrepancies, could not affect the merits of the case---Such contradictions were considered to be fatal which materially would negate the prosecution version.

(d) Criminal trial---

----Abscondence of accused---Abscondence, no doubt was mere piece of circumstantial evidence but it could be taken into consideration as an additional circumstance, when otherwise the prosecution had proved its case through cogent and confidence inspiring evidence.

Sakhi Janan for Petitioner.

Qudrat Ullah Khan Gandapur D.A.G. for the State.

Date of hearing: 28th October, 2013.

2015 Y L R 818

[Peshawar]

Before Waqar Ahmad Seth, J

ASLAM KHAN and others---Appellants

Versus

COLLECTOR LAND ACQUISITION---Respondent

R.F.As. Nos.135, 278, 242, 272, 249, 267, 282, 170, 258, 279, 328, 368, 269, 193, 261, 166, 284, 168, 271, 367, 198, 273, 276, 263, 265, 225, 277, 179, 262, 280, 192, 281, 245, 275, 189, 227, 283, 178, 274, 268, 270, 235, 185, 370, 260, 184, 266, 160, 259, 236, 234, 318, 264, 369 of 2010, 89 and 74 of 2011, decided on 26th March, 2014.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18 & 30---Enhancement of compensation---Criteria---Criteria of one year average could not be made basis for compensation of acquired land in view of extraordinary hike in landed property---Individual sacrificing land in public interest needed to be adequately compensated---Compensation should be fixed by criteria of a willing vendor and needy vendee---Land situated near road was always considered to be of more value than the land situated at a distance from the road---Enhanced amount was not found exaggerated or exorbitant---Appeals were dismissed.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719 and Sultan Shah and another v. Land Acquisition Collector Swabi and others PLD 2011 Pesh. 60 rel.

Abdur Rauf Khan for Appellants.

Munir Hussain Lughmani A.A.-G. for Respondent.

Date of hearing: 26th March, 2014.

2015 Y L R 887

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. Dr. SABINA IMRAN---Petitioner

Versus

Mst. ZUBAIDA BEGUM and 2 others---Respondents

Civil Revision Petition No.1171-P of 2012, decided on 5th March, 2014.

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

----Art.79---Specific Relief Act (I of 1877), S.42---Suit for declaration---Gift---Ingredients--- Scope--- Contention of plaintiff was that gift deed was not attested by two marginal witnesses---Suit was decreed concurrently---Validity---Marginal witnesses on a document---Purpose---Marginal witnesses were a sine qua non under Art. 79, Qanun-e-Shahadat, 1984---Neither name of second witness nor signature of the same existed on the gift deed---Marginal witnesses of a document were required to be produced not only to identify the signatures of executant but also to prove that executant had put his signatures in their presence---No reason existed for the plaintiff to deprive the respondent lady of her sole source of income and livelihood and her other two daughters and disinherit them from her sole legacy---Ingredients of gift were lacking in the present case---Defendant being beneficiary of gift deed was required to prove the same through cogent and reliable evidence but she had failed to do so---Both the courts below had properly appreciated the material available on record in true sense and passed well reasoned judgments---Revision was dis-missed in circumstances.

Abdul Sattar Khan for Petitioner.

Altaf Ahmad Khan for Respondents.

Date of hearing: 5th March, 2014.

2015 Y L R 894

[Peshawar]

Before Abdul Latif Khan, J

HABEEB ULLAH---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.57-P of 2015, decided on 23rd January, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss.5, 19 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Running of business of Hundi and Foreign Currency without any permission, money laundering---Bail, grant of---No test purchase had been conducted by the FIA Authorities at the time of raid; in order to ascertain the actual truth about involvement of accused in the business of Hundi/Hawala; as well as foreign currency---No independent witness had been cited on the recovery memo, which was clear violation of provisions of S.103, Cr.P.C., and S.19 of Foreign Exchange Regulation Act, 1947, showing mala fide on the part of complainant/FIA authorities---Offences with which accused was charged, did not come under the prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such like cases, was a rule, and its refusal an exception---Ultimate conviction and incarceration of a guilty person could repair the wrong caused by as mistaken relief of interim bail granted to him, but no satisfactory reparation could be offered to an innocent person for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run---Despite remaining in Police custody, accused had made no confession before the competent court, connecting him with the commission of offence---Accused was behind the bars since his arrest on 29-12-2014; and he was no more required to the FIA authorities for further investigation---Keeping accused behind the bars, would serve no useful purpose---Accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Applicant.

F.M. Sabir for the State.

Date of hearing: 23rd January, 2015.

2015 Y L R 912

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

AURANGZEB---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No.2-D of 2012, decided on 5th June, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(a)(b)(c) & 299 (as amended by Code of Criminal Procedure (Amendment) Act (VI of 2004))---Qatl-i-amd---Plea of honour killing---Grave and sudden provocation---Appreciation of evidence---Scope and application of clause (c) of S.302, P.P.C.---Accused killed the deceased when he found him with his (accused's) wife in objectionable condition in accused's house---Accused confessed his guilt in the name and on the pretext of honour---Trial Court convicted the accused under S.302(c), P.P.C. and sentenced him to three years simple imprisonment---Validity---Offence committed on the pretext of ghairat or family honour was different from the one committed on the ground of grave and sudden provocation which would be determined by looking into the circumstances of each case---Pre-planned murder with knowledge of immoral act of deceased would not be covered by S.302(c), P.P.C. which would be attracted in cases where ingredients of qatl-i-amd embodied/given in clauses (a) and (b) were missing---Case of accused fell within ambit of S.302(c), P.P.C.---Defence of honour of one's wife fell within ambit of S.302(c), P.P.C. for the reason that accused had no intention to take revenge or made preparation for commission of offence or received information of deceased's act---Rather accused saw deceased in compromising condition with his wife as he arrived home and committed murder of deceased on sudden provocation with axe he was carrying for cutting wood---Sudden provocation depriving a person of (self) control and resulting in an act without previous notice could not be saddled (equated) with immorality---Incident (murder) took place on the spur of the moment upon grave and sudden provocation defending honour of wife of accused which constituted mitigating circumstance---Case against accused was one of no evidence---Accused was acquitted of charges, in circumstances.

Rab Nawaz Anwar for Appellant.

Jehanzeb Ahmad Chughtai for the State.

Saifur Rehman Khan for Respondents.

Date of hearing: 5th June, 2013.

2015 Y L R 925

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

GUL FARAZ alias PALEY KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.43-B of 2010, decided on 17th June, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Conviction, could be recorded on the basis of statement of a solitary and interested witness, provided his testimony was worthy of credence, confidence inspiring, credible and irrefutable---Not the quantity, but quality of evidence, would be taken into consideration---Mere friendship or relationship with the deceased, would not be sufficient to discredit a witness, particularly, when there was no motive to falsely involve accused---Prime consideration for the court to accept the testimony of the eye-witnesses, was to see whether he had established his presence on the spot at the time of incident---Witness, who claimed his presence, in the present case, must satisfy mind of the court through some physical circumstances or through some corroborative evidence in support of his presence but in the present case, prosecution witnesses, could not prove their presence at the spot---Both the eye-witnesses being real brothers of the deceased, had not shown any effort to rescue their brother---Conduct of said eye-witnesses like silent spectator created reasonable doubt about their presence with the deceased---Prosecution witnesses, claimed that they were busy in cutting the trees at relevant time, but neither the axe had been shown, nor the trees---Testimony of eye-witnesses, had been contradicted by other prosecution witness, who recorded report of the complainant---Non-presence of the alleged eye-witnesses with the deceased at the relevant time, having been proved, their testimony, which was untrustworthy, and suffering from material contradictions and discrepancies, creating serious doubts in the prosecution case, could not be believed and relied upon---No crime empty had been recovered from the spot, despite indiscriminate firing by accused with automatic weapon like Kalashnikov---Recovered Kalashnikov in absence of crime empties, and Forensic Science Laboratory's report, could not advance the case of prosecution---Blood stained earth and garments, which were taken into possession, could only advance the case of prosecution to the extent that deceased was done to death with firearm, but could not tell the names of the assailant; and would not be sufficient to prove the guilt of accused---Abscondence of accused could not be a substitute of real evidence, and same would not be sufficient to prove the guilt of accused---Trial Court which had not evaluated the evidence in its true perspective, had reached to an erroneous conclusion by holding accused, guilty of offence---Impugned conviction and sentence awarded to accused, being not sustainable, were set aside, accused was acquitted of the charge, and appeal of accused was allowed.

Dildar Hussain v. Muhammad Afzaal alias Chala PLD 2004 SC 663; Nazir v. The State PLD 1962 SC 269; Riaz Ahmed's case 2010 SCMR 846; Asadullah's case PLD 1971 SC 541; Saifullah v. The State 1985 SCMR 410; Farman Ali and others' case PLD 1980 SC 201 and Muhammad v. Pesham Khan 1986 SCMR 823 ref.

(b) Criminal trial---

----Benefit of doubt--- Scope--- One substantial doubt was enough for acquittal of accused---Better to acquit hundred culprits than convicting one innocent soul---Acquitting by error, would be better than convicting by error.

Anwar ul Haq for Appellant.

Qudratullah A.A.-G. for the State.

Arif Awan (Pauper Counsel) for Respondent.

Date of hearing: 17th June, 2014.

2015 Y L R 957

[Peshawar]

Before Abdul Latif Khan, J

Chaudri SHAKEEL AHMAD and another---Petitioners

Versus

GHULAM FARID---Respondent

Civil Revision No.90-D of 2010, decided on 26th December, 2013.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex-parte decree, setting aside of---Contention of petitioners-defendants was that they were not served personally after remand of case from the High Court---Application for setting aside ex parte decree was dismissed concurrently---Validity---High Court in the present case, remanded the case in earlier round of litigation to the Trial Court and petitioners-defendants were required to get information about the proceedings---Petitioners-defendants were proceeded against ex parte after eight months but they did not inquire about the proceedings--Application for setting aside ex parte decree was moved after two years which was without any reason---Petitioners-defendants had to be vigilant and inquire about the date or proceedings as they were present before the High Court when matter was remanded to the Trial Court---Conduct of defendants-petitioners was not above board---Delay of each and every day had to be explained---Revision was dismissed in circumstances.

Saleemullah Khan Ranazai for Petitioners.

S. Mastan Ali Zaidi and Zainul Aabidin for Respondent.

Date of hearing: 26th December, 2013.

2015 Y L R 1040

[Peshawar]

Before Lal Jan Khattak, J

NAZU---Petitioner

Versus

ABDUL KARIM and 3 others---Respondents

Civil Revision No.136 of 2011, decided on 30th August, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Plaintiff had not men-tioned in the plaint the exact date and place as to when and where he performed Talb-i-Muwathibat---Pre-emptor must state in his plaint and depose in the court as to the date and place where he performed Talb-i-Muwathibat---Right of pre-emption of plaintiff would be extinguished in case of his failure to perform the said talb in such manner---Utterance of period could not be taken and considered as exact date of knowledge about sale transaction---Plaintiff was rightly held not entitled to the pre-emption decree---Pre-emptor (plaintiff) had also not mentioned the date of issuance of notice of Talb-i-Ishhad in his plaint which was necessary---No illegality was found in the impugned judgments and decrees of two courts below which were based on correct appreciation of evidence---Revision was dismissed in circumstances.

2009 SCMR 673 rel.

Muhammad Wahid Anjum for Appellant.

Nemo for Respondents.

Date of hearing: 30th August, 2013.

2015 Y L R 1059

[Peshawar]

Before Abdul Latif Khan, J

SAMIULLAH and 9 others---Petitioners

versus

AQAL MAND and 37 others---Respondents

Civil Revision No.632-M with C.M. No.992-M of 2013, decided on 4th August, 2014.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27, O. VII, R. 14, O. XIII, Rr. 1 & 2 & O. XVI, R. 1---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Production of additional evidence in Appellate Court---Scope---Suit was partially decreed against which appeal was filed wherein an application for production of additional evidence was moved by the plaintiffs which was accepted by the Appellate Court---Validity---Plaintiffs had produced entire evidence and no step was taken to move an application for production of additional evidence before the Trial Court---Plaintiffs were bound to produce the documents in their possession or power at the time of presentation of plaint and submit the list of documents intended to be produced which were not in their possession or power at that time---Plaintiffs had not annexed with the plaint any of the document to be produced as additional evidence nor same were mentioned in the list of witnesses filed before the Trial Court---Right had accrued in favour of defendants as decree had been in their favour---Court had no power to receive documents at subsequent stage of proceedings which were in possession or power of a party but not produced at first hearing of suit or list of relied documents which were not in possession or power of such party was not submitted unless good cause was shown for non-production of the same at that relevant time---Court had to record reasons for receiving such documents at belated stage---Plaintiffs should present list of witnesses whom they wanted to produce in evidence or produce the documents within specified time---Original documents had already been produced and plaintiffs could not be allowed to patch up weaker parts of their case and raise new points---Appellate Court could not record additional evidence within exception of O.XLI, R.27, C.P.C.--Grounds mentioned in O. XLI, R.27, C.P.C. on the basis of which additional evidence could be allowed were not attracted to the present case---Plaintiffs could not move an application for production of additional evidence without showing sufficient cause---Every "lis" before the court or even before the quasi judicial authority must be disposed of with reasoned judgment---Courts were not to fill any lacuna in the case of party and substantial justice had to be done---Parties were bound to comply with the provisions of law and no lenient view could be taken on the ground that technicalities should be avoided---Technicalities should not come in the way of justice but court had no power to allow delinquent parties with lenient view to receive documents at belated stage---Provisions of O. XLI, R.27, C.P.C. were not meant for filling gaps and lacuna rather was aimed at doing ultimate justice---Reasons given in the present application for production of evidence were not sufficient to attract the provisions of O. XLI, R. 27, C.P.C.---Appellate Court was not justified to allow the application for recording of additional evidence---Impugned order was without reasons and conscious and application of independent mind which was set aside---Appellate Court was directed to decide the main appeal on merits within a specified period---Revision was accepted in circumstances.

Muhammad Sadiq v. Alla Ditta 2012 CLC 495; Muhammad Anwar and others v. Mst. Ilyas Begum PLD 2013 SC 255; Mohabar Parshad's case AIR 1970 SC 1302; Salat v. Wadi Hussain and others 2012 YLR 2344 and Bashir Ahmad's case 1985 SCMR 1232 rel.

Qazi Midraullah and M. Ibrahim for Petitioner.

Abdul Halim Khan and Arshad Iqbal for Respondents.

Date of hearing: 4th August, 2014.

2015 Y L R 1128

[Peshawar]

Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ

MUHAMMAD FAROOQ---Petitioner

versus

MUNICIPAL COMMITTEE and others---Respondents

Writ Petition No.594-A of 2013, decided on 20th November, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Aggrieved person---Alternate remedy---Auction of Stand/Adda by Tehsil Municipal Administration---Double taxation---Scope---Contention of petitioner was that Bus Stands situated within the premises of Adda were part and parcel of the Adda and auction of stands was based on mala fide and was against law---Validity---Stands situated within the premises of Adda were part and parcel of Adda---Only Adda was auctioned and stands were not auctioned individually and minor fraction of amount from the tickets was spent on the welfare and needs of the transporters community---Petitioner was Chairman of Transporters Association registered with the Registrar of Trade Unions and was an "aggrieved person"---Auction was intended as some unauthorized persons were making illegal recoveries which were against the law---Auction was with regard to terminals within the Bus Stand---When Bus Stand had been auctioned then auctioning of its terminals in such a way would amount to double taxation which was prohibited under the law---Vehicles would have to pay once on coming out of terminal to the new contractor under the present auction and would have to pay second time while coming out of main Adda to the previous contractor and general public would suffer and would be taxed twice---When action was without jurisdiction and was illegal then it was not necessary to avail "alternate remedy"---Impugned action of Authority auctioning the terminals inside the Bus Adda was illegal and wrong---All the proceedings including award of contract were declared void and were cancelled---Constitutional petition was accepted in circumstances.

Pakistan Industrial Development Corporation v. Pakistan through the Secretary, Ministry of Finance 1992 SCMR 891; Muhammad Afzal and others v. Government of Pakistan and others 1987 SCMR 2078; Muhammad Azhar Siddique v. Government of Punjab through Chief Secretary Lahore and 18 others PLD 2010 Lah. 138; PLD 1986 Kar. 68 and 2004 CLC 1104 rel.

Tahirkheli for Petitioner.

S. Sajjad Hussain Shah and M. Naeem Anwar for Respondents.

Date of hearing: 20th November, 2013.

2015 Y L R 1224

[Peshawar]

Before Rooh-ul-Amin Khan, J

MISAL KHAN and others---Petitioners

versus

AZAM KHAN and others---Respondents

Civil Revision No.263-B of 2011, decided on 9th December, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 31 & 32---Pre-emption suit---Limitation---Notice---Talbs, performance of---Scope---Contention of plaintiffs was that Registrar had not given notice of sale of suit land and period of limitation for filing suit was to be computed from the date of knowledge of pre-emptors whereas defendants contended that suit was barred by time and postman was not examined to prove Talb-i-Ishhad---Suit was decreed concurrently---Validity---Defendants purchased suit land through registered deed on 6-2-2002 on the basis of which mutation was attested on 16-12-2003 and suit was filed on 31-3-2004---Registrar had not complied with the provision of S. 32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 but same would not change the explicit and mandatory provisions of S. 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 which had provided a fixed period for filing of suit in each situation---No extension in limitation in S. 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 had been provided if Registrar or Revenue Officer had failed to give such notice---Both Ss. 31 & 32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 should be read independently in nature and spirit without there being any nexus between both of them---Section 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 was mandatory while S. 32 was directory in nature as same did not provide any penal consequences in case of non-compliance---Provisions of statute should be construed and interpreted in such a way that another provision of the same statute would dovetail in to each other in such a way that entire statute should remain a well-knit, integrated and workable piece of legislation---Section 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 had regulated the course and manner for filing of suit for possession through pre-emption within the prescribed limit of time---Court could not modify the clear intention of law maker while interpreting certain provisions of law---Court was not to make law or construe in a manner which might result as "making the law"---Provisions of S. 32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 could not overrule or dilute the provisions of S. 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Plaintiffs had not filed suit within one hundred and twenty days from the date of registration of sale deed which was barred by time and was liable to be dismissed---Both the courts below had wrongly decided the issue of limitation by holding that suit was within time---Statements of witnesses of plaintiffs were inconsistent on material aspects of performance of Talb-I- Muwathibat which would be fatal to thecase of pre-emptors---Pre-emptors were bound to examine the postman to prove service of notice of Talb-i-Ishhad but they did not produce him---Plaintiffs had failed to prove performance of Talb-i-Ishhad---Proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad in chronological order were sine qua non for successful exercise of right of pre-emption---Suit of plaintiffs was bound to fail if same was deficient of any of one of such legal requirements---Both the courts below had failed to appreciate the evidence available on record in its true perspective and reached to a wrong conclusion by decreeing the suit---Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed---Revision was accepted in circumstances.

Hasnat Ahmad Khan v. Institution Officer 2010 SCMR 354; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Maulana Nur ul Haq v. Ibrahim Khalil 2000 SCMR 1305; Mian Asif Islam's case PLD 2001 SC 499; Khizar Hayat v. Sardar Ali Khan and others PLD 2013 SC 369; Khalid Nabi Khan v. Haq Nawaz and others 2012 YLR 126; Amanullah Khan v. Pirzada Muhammad Sabir Shah 2011 YLR 2219; Ameen ud Din v. Tehsil Khan 2009 YLR 2227; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasoo 2011 SCMR 762 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

---Ss. 13 & 31---Pre-emption suit---Limitation---Scope---Period of limitation for filing a suit for possession through pre-emption was one hundred and twenty days commencing from the date of registration of sale-deed in case of an alienation of property through the same---Such period was to commence from the date of attestation of mutation when property was transferred through attestation of sale mutation and in case of alienation of property otherwise through a registered sale-deed or a mutation was to be counted from the date on which vendee had taken physical possession of the property---Said period of limitation was to start from the date of knowledge of pre-emptor if sale was not through a registered sale-deed, a mutation or taking of physical possession of vendee.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

---Ss.13 & 32---Pre-emption suit---Notice---Scope---Registrar while registering sale deed or Revenue Officer attesting the mutation of sale was bound to give public notice with regard to such registration or mutation within two weeks of registration or attestation of the same---Notice should be deemed to have sufficiently been given if it was displayed on the main entrance of a mosque or other public place of village or where property was situated.

(d) Interpretation of statutes---

----Provision of a statute be construed and interpreted in such a way that another provision of the same statute dovetail into each other in such a way that entire statute should remain a well knit, integrated and workable piece of legislation---Court was not to make law or construe in a manner which resulted as "making the law".

Hasnat Ahmad Khan v. Institution Officer 2010 SCMR 354 ref.

Asghar Ali Khan for Petitioners.

H. Umar Daraz and Nasir Mehmood for Respondents.

Date of hearing: 9th December, 2013.

2015 Y L R 1258

[Peshawar]

Before Malik Manzoor Hussain, J

COLLECTOR LAND ACQUISITION and 3 others---Appellants

versus

SAFDAR ALI and 14 others---Respondents

R.F.A. No. 41 of 2011, decided on 16th September, 2013.

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

----S. 18---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount from Rs. 27,476.63 per Kanal to Rs.55,646 per Kanal along with compulsory acquisition charges and simple interest---Validity---Notification was published on 24-5-2001 whereas award was announced on 14-1-2005 after a period of about four years---Collector had assessed the amount of compensation on the basis of average for the year 2000-2001 while he was bound to take into consideration inflationary trend and depreciation in the currency between such period---None of the factors had been considered for assessment of compensation by the Collector---Neither the potentiality of land nor the purpose for which same was required or of which the land was capable or being put was considered---Price of similar land situated in the vicinity sold during the preceding 12 months from the date of award and not 4/5 years could be considered---Referee Court had rightly discarded the value of one year average for the year 2000-2001 relied upon by the Collector who fixed the value as per the average of 2004-2005---Value of land had correctly been fixed as Rs.55,646 per Kanal which was also in the interest of justice---Appeal was dismissed in circumstances.

Sardar Abdul Rauf v. Land Acquisition Collector/Deputy Commissioner Abbbottabad 1991 SCMR 2164 and Land Acquisition Collector Abbottabad v. Muhammad Iqbal 1992 SCMR 1245 rel.

(b) Public interest---

---Interest of public was supreme while the private interest was subordinate to the interest of the State.

Mian Arshad Jan A.A.-G. for Appellants.

Haji Zabir Shah for Respondents.

Date of hearing: 16th September, 2013.

2015 Y L R 1263

[Peshawar]

Before Abdul Latif Khan, J

Dr. ANWAR ZADA and others---Appellants

versus

Mst. YASMIN and another---Respondents

R.F.A. No.81 of 1998, decided on 2nd June, 2014.

(a) Defamation---

----Suit for damages---Allegation of humiliation of plaintiff and her family members by defendants/(doctors of a hospital)---Assessment of damages---Scope---No hard and fast rule existed for assessment of general damages in defamation cases---Court had discretion to award compensation on the basis of evidence available on file to the affected person---Compensation should be granted against the defendant who had caused defamation, mental agony and had defamed the plaintiff in the society---Plaintiff had based her claim for recovery of damages against a number of defendants (doctors) but their role had not been bifurcated in the incident---Medical Superintendent of the Hospital was not present on the day of incident---Defendant "A" had claimed to have been assigned with the duty of acting Medical Superintendent but plaintiff had failed to produce any evidence to such effect---No specific role had been attributed to defendant "B" to "H" by the plaintiff for which they could be held responsible for disgracing and humiliating the plaintiff---Nothing was available on record with regard to illegal admission of plaintiff into the hospital---Malice was on record on behalf of defendant "A"---Defendant "A" was a doctor having no nexus with the ailment of plaintiff or her admission in the hospital or her affairs as he was not occupying the status of either Incharge of hospital or private rooms---Said defendant had no locus standi to inquire about the character or relation of plaintiff lady with any characterless persons---Defendant "A" had levelled serious allegations against the plaintiff resulting into her humiliation and bad name in the society and he used abusive language against the plaintiff---Unfortunate incident had taken place in the hospital---Defendant "A" had acted as an Investigating Officer in a criminal case without any complaint lodged by any one against the plaintiff---Repeated inspections, search of the room, wash room and even body search of the plaintiff was neither the mandate of law nor was in the job descriptions of the doctor---Defendant "A" could not be exonerated of the responsibility as he was not authorized to enquire about the conduct of an ailing patient and enter into her room without her permission as she was not his patient---Allegations levelled against defendant "A" had been proved by tangible and confidence inspiring evidence---Plaintiff was confined in the hospital and no medicine was provided to her---Doctor had travelled beyond his powers by passing derogatory remarks against her---Plaintiff was publically humiliated without any proof against her---Subsequent unfortunate occurrence took place due to present incident and house of plaintiff was attacked by her relatives/maternal uncle solely on the ground that due to her humiliation they had been disgraced in the society resulting into murder of plaintiff's niece and injury on the person of her father---Mental tension and agony could not be compensated in monetary terms as money could not renew a shattered human frame but on account of damages monetary compensation could be awarded---Plaintiff was entitled for recovery of damages only against the defendant "A" to the extent of Rs.30,00,000--Appeal was dismissed to the extent of defendant "A" while appeals to the extent of remaining defendants was accepted and judgment and decree of Trial Court to their extent were set aside and suit was dismissed against them.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others PLD 2012 SC 80; Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991; Azizullah Sheikh v. Standard Chartered Bank Ltd. 2009 SCMR 276; Mrs. Alia Tareen v. Amanullah Khan PLD 2005 SC 99; C.K. Subramonia Iyar v. T Kunhikuttan Nair AIR 1970 SC 376; Waldon v. War Office (1956) 1 WLR 5; The Mediana's case 1900 AC 113; Cooper v. Firth Brown Lts (1969) 2 All ER 31 = 1963 1 WLR 418; Malik Gul Muhammad Awan's case 2013 SCMR 507 and Dr. Mehmood Nayyar Azam v. State of Chhat-tisgarh and others 2013 SCMR 66 rel.

(b) Defamation---

----Ingredients---Ingredients constituting defamation were that the allegations levelled against the plaintiff should be false, baseless and unfounded; that the wordings used and the allegations levelled on the face of it should have been defamatory and derogatory in nature; that such allegations should have been published in widely circulated newspapers or spoken in a large gathering; that the said publications made or wordings used should have been with malice without any reasonable excuse and justification and allegations should have been directly attributed to the plaintiff by specifically mentioning his name.

(c) Constitution of Pakistan---

----Art. 14---Dignity of man---Scope---Constitution had recognized and protected a right of a person that his dignity would not be violated.

Faqir-ur-Rehman Jadoon, Syed Abdul Haq, Sayyed Badshah, Naeem-ud-Din and Fazal Malik for Appellants.

Hazrat Rehman for Respondents.

Date of hearing: 2nd June, 2014.

2015 Y L R 1319

[Peshawar]

Before Mian Fasih-ul-Mulk and Yahya Afridi, JJ

Dr. IFTIKHAR---Appellant

versus

The STATE---Respondent

Criminal Appeal No.249-P of 2013, decided on 17th December, 2013.

Penal Code (XLV of 1860)---

----Ss.302 (b) & 222---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-Amd, intentional omission to apprehend accused and terrorism---Appreciation of evidence---Circumstantial evidence---Inquiry report---Proof---Two under-trial prisoners were brought to hospital for medical treatment and on their way back to prison police party was attacked resulting into death of three policemen and escape of prisoners---After inquiry three persons were sent to face trial, which included doctor and commander of police party---Trial Court convicted doctor and commander of police party and sentenced them to imprisonment for life, while the third was acquitted---Validity---Main evidence was described by Trial Court as circumstantial---Even though conviction could be founded on circumstantial evidence in appropriate cases but such evidence should be reliable, cogent, not imaginary and consistent only with the guilt of accused---Police did not examine any member of Inquiry Committee as witness in support of inquiry report duly exhibited on record---Such failure pointed out weakness of prosecution case against accused---Serious gaps existed in the chain of events to constitute circumstantial evidence---Chain of evidence must be so complete that it could not have left any reasonable ground for the conclusion consistent with innocence of accused and must show that in all human probability the act must have been done by accused---High Court declined to maintain conviction on the basis of circumstantial evidence and held that the accused were wrongly convicted for the offences charged with---High Court set aside the conviction and sentence awarded by Trial Court and acquitted both the accused of the charge---Appeal was allowed in circumstances.

M. Zahoor ul Haq for Petitioner.

Mian Arshad Jan, A.A.-G. for the State.

Date of hearing: 17th December, 2013.

2015 Y L R 1373

[Peshawar]

Before Abdul Latif Khan and Ikramullah Khan, JJ

SARHAD DEVELOPMENT AUTHORITY, PESHAWAR---Appellant

versus

NADIR KHAN and others---Respondents

R.F.A. No.337 of 2010, decided on 10th October, 2013.

Land Acquisition Act (I of 1894)---

----Ss. 18, 23 & 3 (e)---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount from Rs. 457 per Marla to Rs. 10,000 per Marla along with compulsory acquisition charges with simple interest---Validity---Average for the years 21-3-2003 to 22-3-2004 was relied for the purpose of ascertaining market value which was not safe criteria to be relied upon---Suit property was situated adjacent to road and commercial and residential properties---Potential value of property was high and assessment made by the Collector was meagre---Assessment made by the Trial Court seemed to be fair---No infirmity or illegality was pointed out in the impugned judgment---No exception could be taken to the said judgment---Compulsory acquisition charges were to be awarded at the rate of 25% if acquisition of land had been made for company---Sarhad Development Authority being body corporate was company and plaintiffs were entitled to compulsory acquisition charges to the tune of 25% instead of 15%---Appeals were dismissed with modification to the extent of compulsory acquisition charges.

Mst. Sumaira Gul v. Land Acquisition Collector GSC, WAPDA, Peshawar and others 2011 SCMR 118; Secretary to Government of NWFP, Peshawar v. Haji Fateh Khan 2001 SCMR 974 and Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others PLD 1983 Lah. 178 rel.

Muhammad Naeem Khan for Appellant.

Javed Iqbal for Respondents.

Date of hearing: 10th October, 2013.

2015 Y L R 1400

[Peshawar]

Before Lal Jan Khattak, J

Mst. NASREEN BIBI---Petitioner

versus

SHAMAS UN NISA---Respondent

Civil Revision No.90 of 2011, decided on 20th September, 2013.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Specific Relief Act (I of 1877), S.12---Suit for recovery of money---Vendor failed in actualizing the term of agreement---Recovery of money by vendee given as earnest money---Entitlement---Scope---Suit filed by plaintiff/vendee for recovery of money given as earnest money in consideration of sale of land was decreed in his favour---Appeal filed by vendor was dismissed by appellate Court---Contention of the vendor was that as per agreement deed possession of the entire suit land was given to the respondent/ vendee and as such vendee was under obligation to pay the remaining sale consideration to the vendor within the stipulated period in order to get attestation of mutation in her favour---Validity---Contention of the vendor was not tenable as though through the deed of agreement possession of full land was shown to have been given to the vendee but in fact such phraseology used in the deed had not been actualized and materialized in letter and spirit---Vendor herself moved application to the revenue officials for getting demarcation and defining boundaries of her land so that the respondent/vendee be given full possession of the suit land---If full possession had been given to the vendee by the vendor then what was the purpose of the application for demarcation moved by vendor to the Collector concerned---Petitioner had not performed her part of agreement---Entire suit land was not in her possession for its delivery to the vendee at the time of agreement, therefore, she was liable to return the received amount to the vendee as per agreement---Revision petition was dismissed.

Saleemullah Khan Ranazai for Petitioner.

Shaukat Hayat Khan Khakurini for Respondent.

Date of hearing: 20th September, 2013.

2015 Y L R 1440

[Peshawar]

Before Muhammad Daud Khan, J

IMRAN KHAN---Petitioner

versus

The STATE and another---Respondents

Cr. Misc. Bail Application No.108-B of 2014, decided on 20th June, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 537---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 20, 21 & 22---Bail, refusal of---Huge quantity of narcotics had been seized---No mala fide on the part of Police was shown---Accused was charged with heinous offence which fell within prohibitory clause of S.497, Cr.P.C.---Accused was not entitled to concession of bail---Section 21 of the Control of Narcotic Substances Act, 1997 pertained to raid only and was not applicable to the present case as Police Officials did not launch a raid---Apprehension of accused by Assistant Sub-Inspector was an irregularity which could be cured under S.537, Cr.P.C.---Provisions of Ss.20, 21 & 22 of the Control of Narcotic Substances Act, 1997 were directory in nature and non-compliance of the same would not be a ground for holding the trial conviction bad in the eyes of law---Bail application was dismissed.

Muhammad Hanif v. The State 2003 SCMR 1237; State through Advocate General v. Basher PLD 1997 SC 408; The State v. Abdali Shah 2009 SCMR 291; Zafar v. The State 2008 SCMR 1254; Ismail v. The State 2010 SCMR 279 and Muhammad Noor and others v. The State 2010 SCMR 927 rel.

Imran Ali Shah for Appellant.

Qudratullah Khan Gandapur Asst. A.G. for the State.

Date of hearing: 20th June, 2014.

2015 Y L R 1448

[Peshawar]

Before Qaiser Rasheed Khan and Assadullah Khan Chamkani, JJ

QASIM---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No.706-P of 2011, decided on 15th May, 2014.

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

----Ss. 302(b), 304, 308 & 310---Qatl-i-Amd, compounding of qisas, plea of guilt, reduction in sentence---Appreciation of evidence---Accused pleaded guilty and admitted his guilt of killing his brother and wife---Trial Court could record the evidence even accused pleaded guilty---Despite there being no bar for the acceptance of the plea of guilt of accused, conviction should not normally be based on the plea of guilt in cases involving punishment of death or imprisonment for life---Trial court in such circumstances, should record evidence itself and judge the case in the light of the evidence, so recorded which course, had rightly been adopted by the Trial Court in the present case---Interest of justice demanded to take the case and consider the guilt of accused on the basis of prosecution evidence, along with his retracted confession---Complainant, who furnished the ocular account of the incident, in his examination-in-chief he reiterated his early version set forth by him in his initial report---Mother of the deceased also gave ocular account of the incident---Both said eye-witnesses of the incident, had been subjected to lengthy cross-examination, but nothing beneficial could be extracted from their mouths by the defence---Eye-witnesses remained stuck on their earlier stance---Ocular account of said prosecution witnesses, got corroboration from circumstantial evidence---Complainant was father of accused and deceased and there was no reason that a father would charge his real son for murder of his other son falsely---Other prosecution witness, who was mother of the deceased and mother-in-law of accused, would never charge her own son-in-law falsely without any motive for murder of her daughter---Prosecution had successfully proved the guilt of accused through cogent and confidence inspiring evidence, ocular as well as circumstantial evidence, coupled with medical evidence---Case of accused, did not fall under clause (a) of S.304, P.P.C. as he had retracted from his confession/plea of guilt recorded at the time of framing of charge---Plea that it was a case covered by S.308, P.P.C. was also misconceived---Trial Court was right to award punishment under Tazir---Complainant/father of deceased, had compounded the murder of his son with accused by extending him pardon---Legal representative of lady deceased had not effected any compromise---Taking into consideration the fact that accused had a minor daughter, who had already lost her mother; and in case of maintaining the death sentence, she would also lose her father as mitigating circumstance, conviction of accused under S.302(b), P.P.C. was maintained on two counts, but his sentence was reduced from death to imprisonment for life.

(b) Criminal trial---

----Two aspects of the case---When there were two aspects of the case, the one favourable to accused, would be considered.

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

----S. 164--- Confession--- Retracted confession as basis of conviction---Retracted confession could not be made the sole base of conviction---Retracted confession, would be considered and conviction could be recorded over the same, provided same was corroborated by other material pieces of evidence---Interest of justice demanded to take the case, and consider the guilt of accused on the basis of prosecution evidence along with his retracted confession.

(d) Criminal trial---

----Sentence, determination of---Question of sentence was always determined on the basis of gravity of offence---Question of sentence demanded utmost care and caution on the part of the court dealing with life and liberty of the people---Sentence must be properly balanced, because the basic object of sentence, was to create a determent in the society, and while awarding sentence, all circumstances surrounding the guilt must be carefully borne in mind---In determining the sentence overriding consideration must be that it should be fair and produce correct results in the given case.

Ishtiaq Ibrahim for Appellant.

Muhammad Sohail, A.A.G. for the State.

Sar Muhammad Khattak for the Complainant.

Date of hearing: 15th May, 2014.

2015 Y L R 1465

[Peshawar]

Before Mazhar Alam Khan Miankhel and Ikramullah Khan, JJ

GHULAM RASOOL and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No.242 of 2011, decided on 18th December, 2013.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Complainant and the sole marginal witness, had contradicted each other on the factum of delivery of narcotics, and handing over accused person to the Investigating Officer---Police personnel who drafted the report, and the one who took the contraband to the Forensic Science Laboratory, were not produced as witnesses; even their names were not mentioned in the calendar of witnesses by the prosecution---No witness had disclosed the kind of the vehicle from which a huge quantity of narcotics was recovered; nor the prosecution had conducted investigation regarding the ownership of the vehicle---Sample of seized narcotics were sent to Forensic Science Laboratory with unexplained delay of 10 days---Accused persons had been awarded maximum punishment as provided under S.9(c) of Control of Narcotic Substances Act, 1997, whereas while awarding punishment to an accused for an offence, which entailed capital punishment, the standard of evidence would be above board to save the accused from any probability of injustice---Sentence imposed upon accused persons, in circumstances, was severe one and not appropriate and proportionate---Conviction of accused persons was upheld, but their sentence was reduced from life imprisonment to 5 years' R.I. with fine of Rs.50,000.

Noor Alam Khan for Appellants.

Syed Qaiser Ali Shah, A.A.G. for the State.

Date of hearing: 18th December, 2013.

2015 Y L R 1488

[Peshawar]

Before Waqar Ahmad Seth, J

MUNAWAR KHAN---Petitioner

versus

The STATE---Respondent

Miscellaneous Bail Application No.271-P of 2015, decided on 3rd April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324 & 353---Explosive Substances Act (VI of 1908), S.5---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, possessing explosive substances---Bail, grant of---Further inquiry---Firing between the Police party and accused persons allegedly continued for seven minutes, but neither anybody had been shown injured in the cross-firing, nor any bullet scratch had been noticed on the wall of the Hujra--Accused could not be linked with a crime attracting prohibition clause of S.497, Cr.P.C.---Case of accused being arguable for the purpose of bail, called for further inquiry---Accused was released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Syed Sikandar Hayat Shah A.A.-G. for the State.

Date of hearing: 3rd April, 2015.

2015 Y L R 1505

[Peshawar]

Before Malik Manzoor Hussain, J

ZAHIR SHAH---Petitioner

versus

SHANZEB---Respondent

Civil Revision No.433-P of 2013 with C.M. No.530-P of 2013, decided on 13th June, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for possession through pre-emption---Application for grant of temporary injunction---Scope---Defendant a bona fide purchaser, was not transferring suit land but he was making construction at his own risk and cost---No inconvenience would be caused to the plaintiff if he succeeded in the case as defendant was not claiming compensation from him---No improvement could be sought by vendee when any construction was made after filing of the suit for pre-emption---Defendant was bona fide purchaser and had every right to utilize the property in question until and unless a decree had been passed against him---To prohibit lawful owner was against the constitutional guarantee provided under the fundamental rights---Revision was dismissed in limine.

Khalid Mehmood for Petitioner.

2015 Y L R 1550

[Peshawar]

Before Rooh-ul-Amin Khan, J

ABDUL HAMEED through L.Rs. and others---Petitioners

versus

SARDARAZ KHAN and others---Respondents

Civil Revision No.17-B of 2008, decided on 20th September, 2013.

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

----O. XXIII, R. 1---Withdrawal of suit---Scope---Where a suit was allowed to be withdrawn with permission to file fresh one, it should be regarded as the previous suit had never been brought and if at the time of withdrawal no condition was imposed then plaintiff would be at liberty to file fresh suit.

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

----S. 11---Res-judicata, principle of---Applicability---Conditions---Essential condition to establish the plea of res judicata would be that the matter in issue and material points in dispute between the parties in the earlier litigation were directly and substantially in issue in the subsequent litigation---If matter in issue in the subsequent litigation was not substantially decided in the earlier litigation then it would not be res judicata actually or constructively---Principles of res judicata were not applicable where the subject matter in the previous and subsequent proceedings was different.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was limited---High Court could not set aside concurrent findings of facts recorded by the court of competent jurisdiction nor it could upset the same unless such were shown patently illegal, without jurisdiction or the result of mis-reading and non-reading of 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 rel.

M. Shah Nawaz Khan Sikandri for Petitioners.

Asghar Ali Khan for Respondents.

Date of hearing: 16th September, 2013.

2015 Y L R 1576

[Peshawar]

Before Mazhar Alam Khan Miankhel and Assadullah Khan Chamkani, JJ

AMIR AKBAR KHAN and another---Appellant

versus

ZARWAIZ KHAN and another---Respondents

Criminal Appeal No.968 of 2010, decided on 27th February, 2013.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Two persons were charged for murder of the deceased, but with no specific role---Complainant himself was not an eye-witness of the occurrence, but prosecution witness had informed him about the occurrence---Medical evidence was not supporting ocular version of the prosecution witnesses---Suppression of two injuries by the complainant as well eye-witnesses, had created serious doubt regarding the credibility of the witnesses---Prosecution witness had stated that firing was made inside the gate, but no empty was recovered from the courtyard of the house---Occurrence had not taken place in the manner and mode as alleged by the prosecution; thus no implicit reliance could be placed on the ocular evidence---Alleged recovered empties remained lying in "Malkhana" for sufficient time, and same were not sent to Forensic Science Laboratory, in order to ascertain as to whether same were fired with one weapon, or otherwise---Even the persons, who produced the weapons in questions to the Investigating Officer, were not produced before the Trial Court---Forensic Science Laboratory is Report, even if was positive, was of no avail to the prosecution in circumstances---Substantive piece of evidence in the shape of ocular account, having disbelieved, no conviction could be based on abscondance of accused alone---Site plan, medical evidence and motive did not corroborate prosecution version---Ocular testimony, was not confidence inspiring, in view of major inconsistency between the ocular and medical evidence---Prosecution having failed to prove the guilt against accused beyond any shadow of doubt, conviction and sentence awarded to accused, was set aside, they were acquitted of the charge, and were set free, in circumstances.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Abdul Subhan v. Raheem Bakhsh PLD 1994 SC 178; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(b) Criminal trial---

----Witness---Credibility of witness---Real test for acceptance of statement of witness was as to whether same was in consonance with the probabilities, fitted in with the other evidence, and whether it inspired confidence---To disbelieve a witness, it was not necessary that there should be numerous infirmities---If there was one which impeached the credibility of the witness, that could make the entire statement doubtful.

Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639 and Haroon alias Harooni v. The State and another 1995 SCMR 1627 rel.

(c) Criminal trial---

----Abscondence of accused---Effect---Mere abscondence, would not prove guilty mind---Abscondence, could be used only as a corroborative piece of evidence, which could not be read in isolation, but it had to be read along with substantive piece of evidence.

(d) Criminal trial---

----Motive---Failure to prove motive---Effect---When motive was alleged, but not proved, then ocular evidence, was required to be scrutinized with great caution.

Noor Muhammad v. The State 2010 SCMR 97 rel.

(e) Criminal trial---

----Benefit of doubt---Scope---For giving benefit of doubt; it was not necessary that there should be many circumstances creating doubt, but a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, would make him entitled to its benefit not as a matter of grace and concession, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

(f) Criminal trial---

----Conviction---Basis---Conviction must be based on unimpeachable evidence; certainty of guilt; and any doubt arising in the prosecution case, must be resolved in favour of accused.

Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

Sher Muhammad Khan and Khawaja Muhammad Khan for Appellants.

Badi-uz-Zaman Khan for the Complainant.

Ikramulah Khan for the State.

Date of hearing: 27th February, 2013.

2015 Y L R 1614

[Peshawar]

Before Lal Jan Khattak, J

Haji RAEES KHAN and others---Petitioners

versus

HAQ NAWAZ and others---Respondents

C.R. No.113 of 2009, decided on 16th September, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Pre-emption suit---Paramount points for consideration---Scope---Pre-emptor failed to establish performance of talbs---Effect---Initially the Court has to see a fact whether the pre-emptor had successfully performed the requisite talbs or not---If from the evidence it was proved that the pre-emptor had performed the necessary talbs according to law only then case to the next issues i.e. determination of real price paid by the vendee to the vendor or any improvement, etc; made in the pre-empted land was to be proceeded but in case it was found from the evidence that pre-emptor had failed in the performance of necessary talbs then in that eventuality the other issues of the case were eclipsed and there was no need to further proceed with the case on the other issues---In the present case, the pre-emptor had not performed the requisite Talb-e-Muwathibat which was a backbone in establishing the right of pre-emption---Failure in the performance of Talb-e-Muwathibat was sufficient to non-suit the pre-emptor without dilating upon the other issues raised in the case.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Right of pre-emption, enforcement of---Exact and definite time of making Talbs, determination of---Performance of Talb-e-Muwathibat at "Asr vela"---Effect---"Asr vela" in common parlance is equated with afternoon or pre-evening time which is stretched from noon to evening---"Asr vela" could not be interpreted and equated with any exact time rather it is a duration of time which lasts for one and half hour or so---Command of pre-emption law was that in order to succeed in the enforcement of a right of pre-emption the pre-emptor must give the exact time of his performance of Talb-e-Muwathibat---Exact time meant and included minutes and seconds of an event or moment---Pre-emptor allegedly performed Talb-e-Muwathibat at "Asr vela" which did not reflect any exact or definite time and as such pre-emptor had failed to perform Talb-e-Muwathibat---Judgment and decree passed by both the courts below in favour of pre-emptor was dismissed---Revision was allowed.

Rustam Khan Kundi and Muhammad Waheed Anjum for Petitioners.

S. Mastan Ali Zaidi for Respondents.

Date of hearing: 16th September, 2013.

2015 Y L R 1633

[Peshawar]

Before Malik Manzoor Hussain, J

NIAZ BADSHAH---Petitioner

versus

M. NOOR HADIM---Respondent

Civil Revision No.1377 of 2011, decided on 4th July, 2013.

Civil Procedure Code (V of 1908)---

----O. III, R. 4---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Compromise by pleader---Scope---Plaintiff filed suit which was decreed by the Trial Court but same was modified by the Appellate Court on the statement of counsel for the parties---Validity---Authority given by the plaintiff to his counsel had never been revoked by him either before or at the time of making the statement---Plaintiff had engaged the counsel to represent him in the appeal---Authority given to the counsel by the plaintiff included not only to represent him but also to make any statement including the compromise statement on his behalf---Plaintiff had not raised any objection before the Appellate Court about the statement recorded by his counsel---Element of misrepresentation or fraud alleged by the plaintiff was ruled out, in circumstances---Plaintiff had not denied his signature on the power-of-attorney---Plaintiff had neither initiated any action against the said counsel nor informed the court concerned or approached the said court for setting aside of decree---Presumption of correctness and sanctity was attached to judicial proceedings---Revision was dismissed.

Mobile Eye Service of Pakistan v. Director Social Welfare PLD 1992 Kar. 183; Messrs Azhar Asia Shipping Agency v. Ghaffar Corporation PLD 1996 SC 213; Khuram ljaz v. District and Sessions Judge, Hafizabad 2007 MLD 1945; Dr.Insar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634; Sourendra Nath Mitra and others v. Tarubala Dasi AIR 1930 PC 158 and Muhammad Ramzan v. Lahore Development Authority 2002 SCMR 1336 rel.

Asad Kamal for Appellant.

Ashfaq Ahmad for Respondent.

Date of hearing: 4th July, 2013.

2015 Y L R 1646

[Peshawar]

Before Mazhar Alam Khan Miankhel and Qaiser Rashid Khan, JJ

ABID ULLAH---Petitioner

versus

Mst. BIBI NASEEM and another---Respondents

C.M. No.181-P of 2013 with Writ Petition No.1275-P of 2012, 217 and 1493 of 2013, decided on 3rd October, 2013.

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

----Ss. 10(4) & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower and restitution of conjugal rights---Judgment and decree of Trial Court were well reasoned---Family Court dissolved marriage under S. 10(4) of West Pakistan Family Courts Act, 1964 but did not opt to order for return of benefits of marriage which was under its domain---Trial Court was bound to decide the matter of return of benefits of marriage---Husband was supposed to return gold in kind or its price prevailing at the time of its payment---Both the courts below had failed to exercise their jurisdiction in accordance with law---Findings of both the courts below were set aside---Constitutional petition was accepted in circumstance.

Dr. Fakhr-ud-Din v. Mst. Kausar Takreem and another PLD 2009 Pesh. 92; Mst. Sarwat Begam v. Farmanullah and 2 others PLD 2012 Pesh. 164; Nasir v. Mst. Rubina and 2 others 2012 MLD 1576 and Mst. Ayesha Shaheen v. Khalid Mehmood and another 2013 SCMR 1049 rel.

Muhammad Arif Khan for Petitioner.

Khurshid Ahmad Shahan for Respondents.

Date of hearing: 3rd October, 2013.

2015 Y L R 1661

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

MADA MEER JAN and another---Appellants

versus

The STATE and 2 others---Respondents

Criminal Appeal No.12 of 2012, decided on 2nd April, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Matter was reported after a delay of 1 hour and 45 minutes, and complainant had not furnished any explanation to justify said delay---Said period of delay had been consumed in deliberation and consultation---Medical evidence, did not support the version of the complainant, rather totally negated the time of occurrence---Version of the complainant, which seemed unnatural and improbable, had been negated by Medical Officer, who conducted autopsy of the deceased---Complainant, who had not established his presence at the spot, was not an eye-witness of the occurrence, and was a procured witness; statement of complainant was full of contradictions and discrepancies creating serious doubts in the prosecution case; and occurrence had not taken place in the mode and manner as alleged by the complainant---Role of firing with Kalashnikov, no doubt had been attributed to accused, and crime empties had allegedly been shown recovered from his place, but that being a corroborative piece of evidence, it would not be safe to be relied upon, when the direct evidence of the prosecution had been disbelieved being doubtful---Same could not advance the case of the prosecution---Motive which otherwise was amazing, was not proved---Prosecution could not seek support from factum of abscondence of accused, when eye-witnesses had not established their presence at the spot and their testimonies had been disbelieved---Prosecution had failed to bring home the guilt of accused through cogent, straightforward and confidence inspiring evidence---Trial Court had totally oversighted the material pieces of evidence creating serious doubts in the prosecution case, and thereby reached a wrong conclusion by convicting and sentencing accused---Appeal against judgment of the Trial Court was allowed, in circumstances.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution was duty bound to prove its case beyond any reasonable doubt; and if any single and slightest doubt was created, benefit of the same must go to accused; and it would be sufficient to discredit the prosecution story, and entitled accused for acquittal---No need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind, was sufficient for acquitting accused---Accused was always considered as the most favourable child of law, and every benefit of doubt, would go to him, regardless of the fact, whether he had taken any such plea or not.

Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 ref.

(c) Criminal trial---

----Abscondence of accused---Scope---Mere absconsion, was not a conclusive proof of guilt of accused, it was only a suspicious circumstance against accused---Suspicions after all were suspicions, same could not take the place of proof---Value of abscondence depended 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---Mere abscondence of accused, could not be made the basis for his conviction as accused could run away due to fear for suspicious circumstances---Abscondence, though was a relevant fact, but it could be used as 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.

Syed Fakhruddin Shah for Petitioner.

Saifur Rehman Add. AG for the State.

Nasir Ali Khan Qureshi for Respondent.

Date of hearing: 2nd April, 2014.

2015 Y L R 1680

[Peshawar]

Before Mrs. Irshad Qaiser and Waqar Ahmed Seth, JJ

GOVERNMENT OF N.-W.F.P. through Secretary Works and Services Department Peshawar and others---Petitioners

versus

SHAMS UR REHMAN and others---Respondents

W.P. No.316-A of 2005, decided on 8th October, 2013.

Khyber Pakhtunkhwa Public Property (Removal of Encroach-ment) Act (V of 1977)---

----S. 3---Limitation Act (IX of 1908), S.14---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Suit for declaration---Limitation---Burden of proof---Contention of plaintiff was that notice issued by the defendants/ Authority for removal of construction was against law and fact and was based on mala fide whereas defendants contended that Tribunal had no jurisdiction to pass declaration with regard to correction of mutation---Suit was decreed by the Tribunal--- Validity--- Tribunal had exclusive jurisdiction to adjudicate upon the suit and had rightly given declaration with regard to the property to be not a public property---Plaintiff had been pursuing his case with due diligence since issuance of impugned notice---Provisions of S. 14 of the Limitation Act, 1908 would be attracted and applicable in the present case---Suit of plaintiff was within time---Contention of plaintiff had been supported by the record produced by the revenue officials---Defendants-Authority had failed to prove as to how the Provincial Government was entered in the revenue record---Suit property had not been acquired by the defendants/Authority and they could not bring any record with such regard---Burden was on the Authority to prove that property in question was a public property---Authority had failed to discharge such burden by producing cogent and reliable evidence---Tribunal had committed no illegality and had taken into account all the relevant and important evidence---High Court could not reappraise evidence upon factual controversy while exercising constitutional jurisdiction---Constitutional petition was dismissed in circumstance.

Chief Engineer, Irrigation Department, NWFP Peshawar v. Mazhar Hussain and 2 others PLD 2004 SC 682 and Mst. Anwar Bibi's case 2002 SCMR 144 rel.

Muhammad Naeem Abbasi, A.A.-G. for Petitioners.

Muhammad Naeem Anwar for Respondents.

Date of hearing: 8th October, 2013.

2015 Y L R 1742

[Peshawar]

Before Mrs. Irshad Qaiser and Ikramullah Khan, JJ

Engineer MISKEEN---Petitioner

versus

CHIEF EXECUTIVE OFFICER, PESCO and 9 others---Respondents

Review Petition No.62-P in W.P. No.407-P with C.Ms. Nos.23, 24, 25 of 2013, decided on 3rd July, 2013.

Civil Procedure Code (V of 1908)---

----S. 114, O. XLVI, R. 1---Review---Scope---Power of review has a very limited scope---Such power might be exercised in the event of discovery of new matter of evidence, which after exercise of due diligence was not within the knowledge of the petitioner or could not be produced by him at the time when the order was made---Power of review might also be exercised on account of some mistake or error apparent on the face of record but review proceeding could not partake rehearing of a decided case, where full opportunity of hearing was given to all the interested parties attended thereto the previous proceeding of the Court---No party be permitted to convert a review petition into an appeal---Main object of jurisdiction of review was to enable the Court to correct its own mistake or error, to prevent injustice---Petitioner in review petition had raised the grounds already discussed and dilated upon in the impugned judgment in a comprehensive manner and could not point out any mistake or error on the face of record---Review petition was dismissed.

Gillani and Co. v. D.D. Wild Life and Parks 2010 CLC 301 and Ghulam Qadir v. Ghulam Abbas 2010 GBLR 325 rel.

Mian Muhibullah Kakakhel for Petitioner.

Abdurauf Rohulah for Respondents.

Date of hearing: 3rd July, 2013.

2015 Y L R 1751

[Peshawar]

Before Mrs. Irshad Qaiser, J

SHAH QASIM and others---Petitioners

versus

ARSHAN BIBI and others---Respondents

C.R. No.13 of 2006, decided on 18th June, 2013.

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

----S.42---Suit for declaration---Mutation--Scope---Burden of proof---Plaintiffs filed suit to the effect that they had purchased suit property through mutation from the defendants---Suit was dismissed concurrently---Validity---Mutation was not a document of title and same by itself did not confer any title, right or interest---Burden of proof would lie on the party who sought to establish the genuineness of transfer of property in his favour---Record of rights were not instruments of title but unless rebutted presumption of truth was attached to them---Defendants had been recorded in the revenue record as owner in possession of the suit land---Mutation was not entered in the revenue record at the instance of vendors---Neither the vendors nor the marginal witnesses either signed or thumb impressed the same---Material contradictions existed in the evidence of plaintiffs with regard to payment of sale consideration---Factum of consent, sale, fixation of consideration as well as receipt of sale consideration and extent of land could not be proved by the plaintiffs---Concurrent findings recorded by the courts below in respect of factual controversy required no interference by the High Court---High Court in revisional jurisdiction could not upset the concurrent findings of fact by means of re-examination of evidence---No misreading or non-reading of evidence was brought on record---Plaintiffs failed to suggest that courts below had drawn wrong conclusion from the evidence---Both the courts below had rightly dismissed the suit---Revision petition was dismissed.

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

----Ss. 42 & 45---Mutation---Scope---Burden of proof---Mutation was not a document of title and same by itself did not confer any title, right or interest---Burden of proof would lie on the party who sought to establish the genuineness of transfer of property in his favour---Record of rights were not instruments of title but unless rebutted presumption of truth was attached to them.

M. Ilyas Khan for Petitioners.

Khurshid Khan for Respondents.

Date of hearing: 18th June, 2013.

2015 Y L R 1770

[Peshawar]

Before Rooh-ul-Amin Khan, J

AWAL ZAMAN---Petitioner

versus

NASREEN BIBI and others---Respondents

Civil Revision No.235-B of 2013, decided on 30th September, 2013.

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

----S. 42---Suit for declaration---Limitation---Defendant contracted second marriage with the consent of plaintiff being his first wife regarding which certain terms and conditions were incorporated in the agreement deed---Contention of defendant was that said agreement was a fictitious and manipulated document---Suit was decreed concurrently---Validity---Witnesses of plaintiff were subjected to cross examination by the defendant but nothing favourable could be extracted from them---Execution of deed on the occasion of second marriage of the parties had been proved through cogent, coherent and confidence inspiring evidence---Plaintiff was entitled to receive the property and other shares in the salary and pension of the defendant as mentioned in the deed---Facts admitted need not to be proved---Nothing had been brought on record by the defendant to prove the expenditure allegedly incurred by the plaintiff on the marriage of their daughters---Defendant-husband had failed to prove the payment of maintenance to the plaintiff-wife for which he was bound by the terms and conditions of deed---Agreement was executed in the year 1994 and defendant was maintaining the plaintiff till 2007---Relations of the parties became strained after 2007 and cause of action accrued to the plaintiff thereafter---Plaintiff-wife would be liable to claim the properties mentioned in the deed in case of strained relations between the wives---Time for the purpose of limitation would be computed from the year 2007---Undertaking (Iqrarnama) was a written assurance by one party to another party for performance of agreed duties at a specific time---Signatures of executant and marginal witnesses were sine qua non for a validly executed deed---Acceptance of signature of person in whose favour Iqrarnama was executed was not requirement under the law---Iqrarnama in question was valid deed and instrument even without signature of the plaintiff---Both the courts below had discussed and appreciated the evidence on record and had reached to a just and proper conclusion---No infirmity had been pointed out by the defendant in the impugned judgments---Revision was dismissed in limine.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction of High Court was limited---High Court could not set aside the concurrent findings of facts recorded by the courts of competent jurisdiction nor it could upset the same even if on appreciation of evidence a different view could be formed unless such findings were shown patently illegal, without jurisdiction or the result of bare misreading and non-reading of material evidence, based on conjectural presumption or erroneous assumption.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 rel.

Masood Khattak for Petitioner.

Abid Anwar Khattak for Respondents.

Date of hearing: 30th September, 2013.

2015 Y L R 1777

[Peshawar]

Before Malik Manzoor Hussain, J

FARMAN ALI---Petitioner

versus

FAZAL RABI and another---Respondents

Cr. M. B.A. No. 918-P of 2014, decided on 21st July, 2014.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.365-B---Kidnaping a woman to compel her for marriage---Bail, grant of---Absondence of accused---Effect---Accused was arrested after recovery of abductee who alleged him for kidnaping her and illegally confining her---Validity---Two main components and ingredients of offence: Firstly there must be kidnaping or abduction of a woman and secondly the first act of abduction and kidnaping was with intent that she could be compelled to marriage or be forced or seduced to illicit intercourse---All such elements were missing against accused---Long abscondance of accused by itself was no ground for refusal of bail, when otherwise case for bail was made out on merits---Though offence was heinous in nature but mere fact that accused was charged for a heinous offence would not hamper in the way of bail, if otherwise, he had made out a case of bail on merits---Accused despite remaining in police custody made no confession before competent Court nor abductee had been recovered by local police from his possession, which had made case of accused one of further inquiry---Bail was allowed in circumstances.

Ishtiaq Ibrahim for Appellant.

Waqas Ahmad Chamkani for the Complainant.

Sohail Khan, A.A.-G. for the State.

Date of hearing: 21st July, 2014.

2015 Y L R 1786

[Peshawar]

Before Dost Muhammad Khan C.J. and Mrs. Irshad Qaiser, JJ

The STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar---Appellant

versus

AMIR REHMAN---Respondent

Cr. Appeal No.365-P of 2012, decided on 6th March, 2013.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Possession of narcotics---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Case was registered on 13-6-2011 while samples were sent to the Forensic Science Laboratory on 2-7-2011---Delay for sending samples had not been explained which created doubt and apprehension of tampering with the same---Investigation Officer had not given explanation with regard to safe custody of the contraband during the intervening period of sending samples---Material contradictions were on record with regard to occurrence and weight of contraband---Mode and manner of the recovery of contraband was doubtful---Trial court pointed out material contradictions in the statement of prosecution witnesses and irregularities which created dent in the prosecution case---When two explanations were equally possible, the one in favour of accused should normally be accepted---Benefit of doubt had rightly been given to the accused, in circumstances--Findings of the Trial Court could not be said to be the result of inapplicability of mind, non-reading and misreading, misinterpretation, misapplication of mind and evidence---Observations and grounds for acquittal of accused were recorded on the basis of sound and cogent analyses and appreciation of the evidentiary principles of criminal jurisprudence---Accused after his acquittal from the criminal charges enjoyed double presumption of innocence and courts while dealing with the appeal were bound to examine whether courts below had not ignored any evidence or had discarded any evidence for the reason not recognized by law---Appeal against acquittal was dismissed.

2007 SCMR 605; 2009 YLR 2169; 2004 SCMR 6249; 2002 SCMR 713; 2003 YLR 1731; 2004 SCMR 209; Inayat Ullah v. The State PLD 1979 SC 956 and Sheo Swarup and others v. King Emperor AIR 1934 Privy Council 227(2) rel.

(b) Criminal trial---

----When two explanations were equally possible, the one in favour of accused should normally be accepted.

2007 SCMR 605 rel.

(c) Criminal trial---

----Double presumption of innocence---Accused after his acquittal from the criminal charges enjoyed double presumption of innocence and courts while dealing with the appeal were bound to examine whether courts below had not ignored any evidence or had discarded any evidence for the reason not recognized by law.

2004 SCMR 6249; 2002 SCMR 713; 2003 YLR 1731; 2004 SCMR 209; Inayat Ullah v. The State PLD 1979 SC 956 and Sheo Swarup and others v. King Emperor AIR 1934 Privy Council 227(2) rel.

Alamgir Khan Durrani, D.A.G. for the Petitioner.

Nemo for Respondent.

Date of hearing: 6th March, 2013.

2015 Y L R 1845

[Peshawar]

Before Haider Ali Khan, J

KHALID KHAN---Petitioner

versus

Haji MUHAMMAD ANWAR and 2 others---Respondents

C.R. No.237-M of 2013, decided on 17th March, 2015.

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

----Ss. 42, 39, 12 & 54----Registration Act (XVI of 1908), S. 49---Limitation Act (IX of 1908), Art. 113---Suit for declaration on the basis of unregistered sale deed---Maintainability---Suit for specific performance---Limitation---Plaintiff filed suit for declaration and permanent injunction against defendants claiming that through two sale deeds he had purchased land from defendant and got possession thereof, but only a portion of said land was entered in his name through mutation in revenue record, which plaintiff sold out to other defendant, while remaining portion of the same was yet to be mutated in his name, which the defendant sold out to the other defendant, and that the said sale by defendant, being ineffective upon rights of plaintiff, was liable to be cancelled---Defendant also filed suit against plaintiff seeking cancellation of said two sale deeds claiming that plaintiff had not paid consideration for sale of land mentioned in the sale deeds and the same were cancelled with mutual consent of parties, and that suit of plaintiff was not maintainable as the sale deeds were neither registered nor acted upon---Defendant further contended that the other defendants had purchased portion of suit property from him through mutation---Trial court dismissed suit of defendants and decreed that of plaintiff---Validity---Parties had not acted upon, nor given effect to, the sale agreements, and the same had been incorporated in, and replaced by, mutations---Actual transactions that took place between parties were that of mutations as the sale deeds were not mentioned in said mutations---Plaintiff had taken contradictory stances in his plaint and oral statement---Marginal witnesses to the sale agreements had denied payment of sale consideration in their presence---Plaintiff filed suit for declaration on basis of two unregistered documents which had not created any title or right or interest in favour of plaintiff in disputed land as envisaged under S. 49 of Registration Act, 1908---Declaratory suit under S. 42 of Specific Relief Act, 1877 on basis of unregistered sale deeds was neither permissible nor maintainable---Suit was time-barred for the relief of specific performance of said agreements to sell as the suit was filed after lapse of five years, whereas limitation for specific performance was three years---High Court allowing revision petition set aside judgments and decrees of courts below and dismissed suit of plaintiff---Revision petition was allowed in circumstance.

2011 YLR 890 rel.

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

----S. 42---Registration Act (XVI of 1908), S. 49---Suit for declaration on the basis of unregistered sale deed---Maintainability---Plaintiff filed suit for declaration on basis of two unregistered documents, which had not created any title or right or interest in favour of plaintiff in disputed land as envisaged under S. 49 of Registration Act, 1908---Declaratory suit filed under S. 42 of Specific Relief Act, 1877 on basis of unregistered sale deeds was neither permissible nor maintainable.

Asghar Ali for Petitioner.

Ghafoor Khan and Fazal Rahman for Respondents.

Date of hearing: 17th March, 2015.

2015 Y L R 1875

[Peshawar]

Before Abdul Latif Khan, J

AMJAD ALI and 7 others---Petitioners

versus

ANWAR SHAH and 10 others---Respondents

Civil Revision No.1866 of 2010, decided on 25th February, 2015.

Specific Relief Act (I of 1877)--

----Ss. 8 & 9---Suit for possession through ejectment--- Competency--- Plaintiff instituted suit for possession through ejectment claiming to be owner and the defendants' father was tenant of property on 'Khak Shora'---Defendants denied relationship of landlord and their father as tenant but claimed themselves to be co-sharers vide mutation and registered deed---Defendants had acquired title prior to institution of present suit and they could not be precluded to agitate their title before the Court---Format of the suit being defective for ejectment was not sufficient to resolve controversy between the parties when defendants had dual status i.e. legal heir of deceased tenant and purchaser of suit property---Tenancy could not devolve in inheritance, specially where not proved through confidence inspiring evidence nor the payment of Khak Shora had been established---Trial Court decreed the suit but lower appellate Court had set aside the decree---Validity---When plaintiff was unable to establish defendants' father as tenant, no decree of ejectment could be passed and lower appellate Court rightly dismissed the suit, in circumstances.

Misbahallah for Petitioners.

Mazullah Barkandi for Respondents.

Date of hearing: 25th February, 2015.

2015 Y L R 1893

[Peshawar]

Before Muhammad Daud Khan, J

Mst. KHANZADA and another---Petitioners

versus

KHAN MUHAMMAD and another---Respondents

C. R. No.17-B of 2007, decided on 13th August, 2014.

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

----Ss. 12(2) & 29---Civil Procedure Code (V of 1908) S. 115---Specific Relief Act (I of 1877) S. 42---Suit for declaration---Delivery of certified copies---Computation of time of limitation---Legal objection---Time of limitation prescribed by special law---Applicability of Limitation Act, 1908---Scope---Plaintiff instituted suit for declaration of sale of property which was partially decreed---Appeal against judgment of trial Court was dismissed---Revision against judgment of Appellate Court---Defendant raised point of limitation as preliminary objection---Plaintiff resorted to S. 12(2) of Limitation Act, 1908 and contended that revision petition was filed within time of ninety days after excluding period of supply of copies of documents---Admittedly revision was filed after a gap of 152 days of judgment of Appellate court---Both parties applied for certified copies of documents on fourth day of judgment of Appellate court---Defendant procured copy of judgment after 16 days, whereas plaintiff procured the same after lapse of ninety days---Effect---When certified copies were prepared and ready for delivery after sixteenth day but plaintiff got certified copy after lapse of ninety days, in circumstances revision was held to be time barred---Period spent in obtaining certified copies was not allowed to be excluded from time of limitation in case of revision petition---When period of limitation was prescribed by any special law, only provisions contained in Ss. 4, 9, 18 & 22 of Limitation Act, 1908 would apply---Revision petition was held to be time barred.

City District Govt. Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Allah Dino and others v. Muhammad Shah 2001 SCMR 286 and Province of Punjab v. Muhammad Sarwar 2014 SCMR 1358 rel.

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

----S. 115---Revisional jurisdiction---Concurrent findings---Scope---Concurrent findings of courts below having been passed after proper appraisel of evidence and determination of legal issues could not be interfered with in revisional jurisdiction.

Muhammad Rashid Ahmad v. Muhammad Saddique PLD 2002 SC 293 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Haji Riaz Muhammad Khan for Petitioners.

Rustam Khan Kundi for Respondents.

Date of hearing: 13th August, 2014.

2015 Y L R 1905

[Peshawar]

Before Muhammad Daud Khan, J

Mst. PASHMEENA through Legal Heirs and 3 others---Petitioners

versus

DILNAWAZ and 5 others---Respondents

C.R. No.32-B of 2009, decided on 30th September, 2014.

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

----S. 42---Mutation of any transfer was to be attested in the village where property was situated.

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

----S. 42(6)---Scope, object and application of S. 42 of West Pakistan Land Revenue Act, 1967---Object of S. 42 was to follow a particular procedure with a view to minimize rather to exclude commission of any fraud firstly to deprive owner of its proprietary right and secondly to protect vendee/transferee once mutation was attested---Mere entry in "report of roznamcha" by recording statement of transferor was not permissible in law---Revenue officer would make order under S. 42(6) of West Pakistan Land Revenue Act, 1967, in presence of person whose right had been acquired after such person had been identified by two respectable persons, preferably Lamberdar or member of Union Council concerned, whose signature or thumb impression shall be obtained by Revenue officer on registration of mutation.

Faqir v. Gul Zaman and 7 others 1991 MLD 1870 rel.

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

----S.42(7)(8)---Mutation---Attestation of---Revenue Officer was to make enquiry in the area of estate in which subject matter of mutation was situated and according to S. 42(8) of West Pakistan Land Revenue Act, 1967, an inquiry should be made only in "Jalsa-e-Aam" of estate to which mutation was related.

Gharib Shah v. Zarmar Gul PLD 1984 SC 188; Ghulam Haider v. Mst. Subhan Bibi 1986 MLD 1952; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1922 SCMR 1832 and Mir Zada Khan v. Itbar Khan 2001 SCMR 609 rel.

(d) Power-of-attorney---

----Interpretation of---Implementation of Power of Attorney---Power of attorney must be strictly construed and it was necessary to show that on fair construction of whole instrument, the authority in question was found within four corners of instruments.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

(e) Gift---

----Proof---Declaration of gift and delivery of possession---In order to prove gift, the factum of delivery of possession must be shown clearly from the date when gift was made.

Boqar v. Allah Ditta 2003 SCMR 780 and Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 rel.

H. Zafar Iqbal for Appellants.

Amanulalh Jan Khattak for Respondents.

Date of hearing: 30th September, 2014.

2015 Y L R 1920

[Peshawar]

Before Malik Manzoor Hussain and Haider Ali Khan, JJ

AJMAL KHAN---Appellant

versus

PROVINCIAL GOVERNMENT through Secretary and 8 others---Respondents

R.F.A. No.404-P of 2010, decided on 11th February, 2015.

Land Acquisition Act (I of 1894)---

----S. 23---Acquisition of land--Compensation---"Market value" of land acquired, determination of---Determination of market value by Special Committee---Effect---Government selected land owned by petitioner for construction of Agricultural Research Center---Five members committee was also constituted to acquire the land that after holding several meetings fixed price of land at Rs. 275,000 per Kanal---District Collector fixed lower price that was contested before Referee Court---Referee court partially accepted objection petition of petitioner after framing of issues and appraisal of evidence--- Validity--- Government constituted high level committee for negotiating purchase rate with owner---Said committee unanimously fixed price at Rs. 275,000 per Kanal and land was selected out of five sites on basis of its soil texture and soil quality---Committee was authorized to fix market price and it had specifically mentioned in their report reason for fixation of higher price---Land was commercial in nature due to its location on road---District Collector had not considered potentiality of acquired land---Land was not acquired in accordance with approval of committee constituted for purpose of just and reasonable compensation---Appeal was allowed and market value of land was fixed at Rs. 275,000 per Kanal along with 15% compulsory land acquisition charges.

Jehanzeb Buneri for Petitioner.

Sabir Shah, A.A.-G. for Respondents.

Date of hearing: 11th February, 2015.

2015 Y L R 1941

[Peshawar]

Before Qalandar Ali Khan, J

ROMAN ALI KHAN TANOLI---Appellant

versus

Malik KHURRAM SHAHZAD---Respondent

R.F.A. No.175-A of 2013, decided on 1st December, 2014.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Institution of summary suit on the basis of negotiable instrument---Leave to defend, grant of---Scope---Leave to defend was granted subject to furnishing bank guarantee to the tune of amount in question---Defendant not only failed to comply with the direction of Trial Court but also did not submit written statement and his defence was struck off and suit was decreed---Validity---Trial Court was empowered to grant leave to defend unconditionally or subject to such terms as to payment into court giving security, framing and recording issues or otherwise as the court had deemed fit---Earlier, defendant failed to appear and ex-parte decree was passed in favour of plaintiff---Trial Court was justified to attach condition of furnishing bank guarantee to the tune of amount in question while granting leave to defend---Defendant had never denied execution of pronote or handing over of cheques dishonoured to the plaintiff---Defendant had failed to furnish the requisite bank guarantee and submit written statement in accordance with the direction of court---Ex-parte proceedings were properly initiated against the defendant resulting into decree in favour of plaintiff---Appeal was dismissed in circumstances.

2004 SCMR 882 rel.

Dildar Ahmad for Appellant.

Zulfiqar Ali Tanoli for Respondent.

Date of hearing: 1st December, 2014.

2015 Y L R 1952

[Peshawar]

Before Assadullah Khan Chamkani, J

FAZAL AMIN alias TORAY---Petitioner

versus

SHAHID ZAMAN and another---Respondents

Cr. Misc. B.A. No.1332-P of 2014, decided on 15th September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 109 & 34---Qatl-i-amd, abetment, common intention---Bail, grant of---Further inquiry---Accused was not charged in the FIR---No one had come forward to furnish the ocular account of the incident---Complainant, in his statement under S.164, Cr.P.C., recorded after a delay of eight days of the occurrence, had not furnished the source of his information and satisfaction qua complicity of accused in the commission of offence---On joint pointation of accused and co-accused memo of the crime venue had been prepared, wherefrom allegedly a piece of string and chappal, had been taken into possession---Evidentiary value of the joint pointation, was yet to be determined by the Trial Court---No identification parade, had been conducted about chappal of the deceased---On tentative assessment of the material available on record, sufficient grounds existed which made the case of accused arguable for the purpose of bail---Co-accused, whose role was identical to that of accused and other co-accused, had already been released on bail---On rule of consistency, accused was also entitled to concession of bail---Accused, was admitted to bail, in circumstances.

Nisar Ahmad v. The State and others 2014 SCMR 27 ref.

Zar Bad Shah Khan for Petitioner.

Mehwish Mukhtiar for the State.

Muhammad Saeed Khan for the Complainant.

Date of hearing: 15th September, 2014.

2015 Y L R 1958

[Peshawar]

Before Yahya Afridi and Muhammad Daud Khan, JJ

HABIB GUL---Petitioner

versus

Mst. SHAHEEN and 2 others---Respondents

W.P. No.1975 of 2010, decided on 2nd April, 2015.

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

----S. 5, Sched. & S. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower, dowry articles and maintenance allowance on basis of KabinNama---KabinNama, proof of---Second marriage by husband---Effect on maintenance allowance for wife---Trial court partially decreed suit on oral testimony of Nikah Khawan about maintenance but disregarded ground of execution of Kabin Nama, being unregistered and not proved by confidence inspiring evidence---Appellate court allowed appeal of wife against the order and held that execution of Kabin Nama had been proved by producing scribe and marginal witnesses---Validity---Trial court while appreciating evidence on record had wrongly given unnecessary weight to statement of NikahKhawan who was not present at the time of execution of KabinNama---Provisions of C.P.C. and Qanun-e-Shahdat, 1984 were not applicable to proceedings before Family Court---When husband had contracted second marriage without permission of first wife, she would be entitled to maintenance allowance irrespective of fact as to whether she left house at her own choice or was compelled to do so---Appellate Court rightly decreed suit of wife and constitutional petition was dismissed in circumstances.

Farzana Rasool v. Dr. Muhammad Bashir 2011 SCMR 1361; Farrah Bashir v. Muhammad Umar Tahir 2014 CLC 1605; Mst. Rozeena Khattak v. Raja Abdul Rasheed PLD 2012 Pesh. 108 and Muhammad Sharif v. Additional District Judge 2007 SCMR 49 rel.

Hizar Hayat for Petitioner.

Khan Ghawas Khan and Mukhtar Ahmad Khan for Respondents.

Date of hearing: 2nd April, 2015.

2015 Y L R 1974

[Peshawar]

Before Waqar Ahmad Seth, J

SAFIULLAH---Petitioner

versus

MUHAMMAD IQBAL and 4 others---Respondents

Civil Revision No.602-P of 2014, decided on 17th February, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Muwathibat, perfor-mance of---Principle---Plaintiff pre-emptor had come to know about sale of the suit property much before the attestation of mutation---When plaintiff had acquired knowledge of sale of pre-empted property he should have made immediate demand to invoke his right of pre-emption without any loss of time which he failed---Plaintiff, in the present case, had admittedly received information regarding sale of suit property prior to date mentioned in the plaint---Plaintiff, in circumstances, had failed to perform requisite talbs in accordance with the provisions of S. 13 of the Act---Suit was rightly dismissed.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 31---Suit for pre-emption---Limitation---Suit for possession through pre-emption was to be filed within period of 120 days of attestation of mutation and if such suit had been filed after due time same would be barred.

Sabit Ullah Khan Khalil for Petitioner.

2015 Y L R 1997

[Peshawar]

Before Malik Manzoor Hussain, J

SHER BAHADUR---Petitioner

versus

Syed HAMEED SHAH and others---Respondents

Civil Revision No.689-P of 2008, decided on 24th February, 2015.

Civil Procedure Code (V of 1908)---

----O. VI, R.16 & S. 153---Specific Relief Act (I of 1877), Ss. 42, 54 & 12---Amendment of pleadings---Powers of court---Scope---Sale, evidence of---Plaintiff filed suit for declaration and permanent injunction---After recording evidence suit was partially decreed against which appeals were filed by both the parties---Appellate court accepted appeal of defendant on the ground that it was a case of specific performance of contract and declaratory suit was not maintain-able---Validity---Matter in dispute rested on agreement to sell and it was incumbent upon plaintiff to file suit for specific performance of contract---High Court under its revisional jurisdiction and Appellate Court in appellate jurisdiction could convert relief in view of averments made in the plaint---Evidence adduced by parties was sufficient to prove sale and delivery of possession---Trial court, Appellate Court and Revisional Court could suo moto direct amendment of plaint without any application by plaintiff and the courts had powers to allow such amendment even when legal right had accrued in favour of other party---Revision was allowed in circumstances.

Karimdad v. Arif Ali PLD 1978 Lah. 679; Keramat Ali v. Muhammad Younas PLD 1963 SC 191 and Javaid Iqbal v. Abdul Aziz PLD 2006 SC 66 rel.

Khan Bahadar Khattak for Petitioner.

Muhammad Ikram Khan for Respondents.

Date of hearing: 24th February, 2015.

2015 Y L R 2022

[Peshawar]

Before Qalandar Ali Khan, J

ZUBAIR SHARIF---Appellant

versus

The STATE through Advocate General Khyber Pakhunkhwa, Peshawar---Respondent

Cr. A. No.166-P of 2014, decided on 8th December, 2014.

Penal Code (XLV of 1860)---

----Ss. 466, 468 & 472---Prevention of Corruption Act (II of 1947), S.5(2)---Forgery of record of court or of public register---Forging for purpose of cheating, making or possessing counterfeit seal etc., receiving illegal gratification---Name of accused figured in the FIR---Nothing detrimental to the prosecution case was brought on record from the statement of independent witness, despite lengthy cross-examination---Said witness was not shown to have nursed grudge or ill-will against accused---Testimony of said witness, being coherent and confidence inspiring, was correctly relied upon by the Trial Court for conviction and sentence of accused---Conclusion arrived at by the Trial Court with regard to the motorcar, and cash amount of Rs. two lac, which were declared ill-gotten, could not be agreed to, as no evidence had been adduced to show nexus with the alleged ill-gotten amount---No evidence was to prove receipt of illegal gratification against accused---Motorcar could not be held to have been purchased by ill-gotten money---Appeal of accused, was dismissed, but impugned judgment/order to the extent of confiscation of the motorcar and cash amount of Rs. two lac was set aside, in circumstances.

Amin ur Rehman for Appellant.

Muhammad Riaz Khan Paindakhel, A.A.-G. for the State.

Date of hearing: 8th December, 2014.

2015 Y L R 2039

[Peshawar]

Before Yahya Afridi and Qalandar Ali Khan, JJ

Haji AKBAR KHAN---Petitioner

versus

WAJID ZAHOOR and 2 others---Respondents

W.P. No.2825 of 2011, decided on 11th December, 2014.

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

----S. 13---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---"Landlord"---Status---Landlord filed application for ejectment of tenant from shop on ground of his bona fide personal need for setting up business of his son---Landlord had admitted that he had vast and extended business---Trial Court and Appellate Court below dismissed petition and appeal of landlord and had held that need of landlord lacked bona fide---Validity---Landlord had prerogative to choose shop suitable for his use, nevertheless he would be required to show as to how and why his other shops were suitable for business in order to prove his bona fide.

2006 SCMR 152, 2010 MLD 665 and 2000 SCMR 542 rel.

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

----S. 13---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Proof---Witness of landlord admitted that landlord was owner of several commercial plazas and markets and many were still vacant---Landlord's son for whom the shop was intended to be used admittedly had been managing a hospital---Landlord pleaded that on basis of statement on oath and his son that shop was required for bona fide personal need there had been no justification to deny vacant occupation to landlord---Effect---Proof of bona fide and good faith was sine qua non for an order of eviction by Rent Controller---Rent Controller and appellate court had arrived at the conclusion that necessary ingredients were missing and correctly declined eviction order---Constitutional petition was dismissed.

Haji Mohibullah v. Khawaja Bahauddin 1990 SCMR 1070; Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903; Syed Jan Muhammad and another v. Syed Abdul Khair 2001 SCMR 1287; Allies Book Corporation v. Sultan Ahmad 2006 SCMR 152; Ferozuddin v. Additional District Judge, Karachi East and another 2010 YLR 874; Pakistan Institute of International Affairs v. Naveed Merchant and others 2012 SCMR 1498; Ferozuddin and another v. Additional District Judge, Karachi East and another 2012 SCMR 1679 and Muhammad Younas v. Rana Muhammad Zahid PLJ 2012 Isl. 157 ref.

PLD 2000 SC 829 rel.

(c) Constitution of Pakistan---

----Art. 199---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Constitutional petition---Maintainability---rejectment petition of tenant---Concurrent findings---When both the trial and appellate courts concurrently dismissed eviction petition being devoid of merit, constitutional petition was not maintain-able, in circumstances.

Shabbir Hussain v. Muhammad Afzal and others 1972 SCMR 47; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore, through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Badruddin Roshan v. Mst. Razia Sultana and others 2002 SCMR 371; Muhammad Anwar v. Tahir Jabeen and 3 others 2003 CLC 878; Messrs Muhammadia Medical Hall, Khan Arm Dealers Through Khurshid Alam v. Mahmood-u-Hassan and 3 others NLR 1982 SCJ 23 and Rasee-Ud-Din and others v. Mian Muhammad Farooq and others 2001 SCMR 1801 rel.

Gul Rehman Mohmand for Petitioner.

M. Shoaib Khan, Hassan Zeb Rahim and Khan Zeb Rahim for Respondents.

Date of hearing: 11th December, 2014.

2015 Y L R 2072

[Peshawar]

Before Qalandar Ali Khan, J

FARMANULLAH and 6 others---Petitioners

versus

GHULAM HABIB---Respondent

C.R. Nos.735-P, 872-P and 1140-P of 2012, decided on 20th April, 2015.

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

----S. 115 & O. VII, R. 11----Specific Relief Act (I of 1877), Ss. 8, 42, 52 & 55---Limitation Act (IX of 1908), Art.120--Suit for declaration, possession, mandatory and permanent injunction---Maintainability---Limitation--- Successive entry in revenue record---Accrual of cause of action---Rejection of plaint on ground of limitation---Plaintiff filed suit for correction of mutation entry in revenue record claiming that his predecessor had acquired suit land from predecessor of defendants through exchange deed, whereas lesser measurement of land, than what had actually been exchanged, was mentioned in mutation entry which required correction and also that predecessor of plaintiff had subsequently purchased through sale mutation suit land, which he had exchanged with predecessor of defendants---Defendants took plea that his predecessor could not exchange more land than the land mentioned in mutation entry as he was not owner of more than that---Trial court decreed the suit and appellate court upheld judgment and decree of trial court---Defendants also filed two suits regarding suit property to counter the claim of plaintiff which were dismissed by both trial court and appellate court---Validity---Revenue record, evidence recorded and admission on part of defendants had proved claim of plaintiff as to mutations on basis of exchange and subsequent sale---Predecessor of defendants had not challenged impugned mutation during his life time---Suit of defendants was hopelessly time barred as the same was filed in 2011, whereas impugned sale mutation had been attested in 1973, and plaint could, therefore, be rejected under O. VII, R. 11, C.P.C.---Plaintiff filed suit in 2004 thereby challenging entries in record of rights for year 1999-2000---Suit of plaintiff was not time-barred as every successive entry in periodical record of rights gave fresh cause of action in favour of plaintiff , although, mutation in question had been attested in year 1973---Decree for correction or revenue record on basis of exchange and sale mutation was correctly passed and upheld by courts below---Defendants in revision were bound to show non-reading and/or misreading of evidence by courts below; they were not able to point out improper exercise of jurisdiction or illegality or irregularity in impugned judgments and decrees of courts below---Impugned judgments and decrees of courts below were maintained---Revision petitions were dismissed in circumstances.

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

----S. 115---Revision---Scope---Petitioner is bound to show non-reading and/or misreading of evidence by courts below.

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

----Ss. 42 & 55---Limitation Act (IX of 1908), Art. 120----Suit for declaration and mandatory injunction---Limitation---Successive entry in revenue record---Accrual of cause of action---Plaintiff filed suit in 2004 thereby challenging entries in record of rights for year 1999-2000---Suit was not time-barred as every successive entry in periodical record of rights gave fresh cause of action in favour of plaintiff although, mutation in question had been attested in year 1973.

Shakeel Ahmad for Petitioners.

Basharat Ali Khan for Respondent.

Date of hearing: 20th April, 2015.

2015 Y L R 2102

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Younis Thaheem, JJ

REHMATULLAH---Appellant

versus

ALI PUR and 5 others---Respondents

Cr.A. No.51-B of 2010, decided on 14th January, 2015.

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

----Ss. 302, 364, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, kidnapping or abducting in order to murder, rioting, common object---Appeal against acquittal---Principles---Reappraisal of evidence---Benefit of doubt---Complainant, who had levelled charges against many members of the same family, had introduced a 'CHIGHA' party, but no one among the said party had been produced as witness for the prosecution---Two witnesses, who were shown the members of 'CHIGHA' party, which were not produced and were abandoned, had created doubt, which would go against the prosecution---No blood stained earth and empties were recovered at the spot---Confessional statement made by accused before Judicial Magistrate, was inculpatory in nature---Prosecution did not produce the Judicial Magistrate for recording his statement in order to prove said confessional statement which caused a blow upon the prosecution case---Co-accused was acquitted by the Trial Court, and judgment of the Trial Court had attained finality, as said judgment of acquittal was neither challenged by accused nor by the State---Co-accused had the same role, and evidence recorded in his case having been disbelieved, judgment of his acquittal, having attained finality, accused also deserved alike treatment---Judgment of the Trial Court was based on correct and lawful appreciation of evidence and visualized no illegality---After earning the acquittal from the Trial Court, double presumption of innocence was acquired by accused---Court sitting in appeal against acquittal, would remain slow in reverting the judgment of acquittal, unless it was 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---No such infirmity had been found in the impugned judgment---Trial Court had rightly acquitted the accused by extending him benefit of doubt, after proper appraisal of evidence, for which no exception could be taken---Appeal was dismissed, in circum-stances.

Sabir Hussain v. State 2014 SCMR 494; Gul Habib v. Zamarud Khan and another 2014 YLR 1136; Muhammad Iqbal and others v. The State and others 2015 YLR 476; Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 and Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution, was duty bound to prove its case beyond any reasonable doubt; and if any single and slightest doubt was created, benefit of the same must go to accused; and it would be sufficient to disbelieve the prosecution story and acquittal of accused---Many doubts were not needed in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind, was sufficient for acquittal of accused---Accused was always considered as the most favourable child of law, and every benefit of doubt, would go to him, regardless of fact, whether he had taken any such plea or not.

Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Akram's case 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 rel.

Iftikhar Ahmed Khan Durrani for Appellant.

Qudrat Ullah Khan Gandapur, Asstt: AG for the State.

Sultan Mehmood Khan for the Respondents.

Date of hearing: 14th January, 2015.

2015 Y L R 2125

[Peshawar]

Before Haider Ali Khan, J

BAKHT ZADA---Petitioner

versus