YLR 2016 Judgments - Pakistan Legal Archive

Courts in this Volume

Board Of Revenue Punjab
Federal Shariat Court
Gilgit Baltistan Chief Court
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Shariat Court Azad Kashmir
Supreme Court Azad Kashmir

Board Of Revenue Punjab

YLR 2016 BOARD OF REVENUE PUNJAB 258 #

2016 Y L R 258

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

Mst. ZUBAIDA BIBI---Petitioner

Versus

Mst. AZIZ FATIMA---Respondent

ROR No.1479 of 2012, decided on 3rd April, 2015.

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

----Ss. 44, 53 & 164---Review of cancellation of mutation---Principle of lis pendens--- Applicability--- Petitioner claimed that he had purchased property in dispute from respondent who being owner of the same was lawfully entitled to sell the same---Respondent filed application to the District Officer (Revenue), mentioning therein that he became owner of land in question vide mutation; and that other respondent got registered a sale-deed through fabricated ownership certificate, and same was got implemented, through impugned mutation; and that other respondent was interfering into his possession and prayed for cancellation of said mutation---District Officer (Revenue) granted permission for review of said mutation---Appeal by other respondent against said order of District Officer (Revenue) before the Executive District Officer (Revenue), vide a sine die order was adjourned---Other respondent challenged said order before Member (Judicial) Board of Revenue on the ground that disputed property being under dispute before the civil court, Executive District Officer (Revenue) should have set aside the order passed by District Officer (Revenue)---Board of Revenue remanded the case to Additional Commissioner (Consolidation) for decision afresh after setting aside order passed by District Officer (Revenue)--- Additional Commissioner (Consolidation) set aside impugned order---Validity---Petitioner was not owner at the time of sanction of impugned mutation, and he purchased property in question from respondent during pendency of litigation which was hit by principle of lis pendens---In the present case, Competent Authority for seeking permission to review the mutation, was Naib Tehsildar, but District Officer (Revenue), at his own assumed the power, ignoring the relevant provisions of law, rendering the impugned order unsustainable in the eyes of law---Order passed by District Officer (Revenue), was rightly set aside by Additional Commissioner (Consolidation)---Petitioner had failed to point out any material irregularity or illegality in the impugned order---Petition was dismissed.

Shahid Mehmood for Petitioner.

Muhammad Tufail Alvi for Respondents Nos. 1A to 1E.

Ex parte proceedings have been initiated against remaining respondents on 7th

June, 2013.

YLR 2016 BOARD OF REVENUE PUNJAB 1005 #

2016 Y L R 1005

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD SHAFI---Petitioner

Versus

JAN MUHAMMAD and others---Respondents

R.O.R. No.357 of 2014, decided on 6th November, 2014.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 44, 45, 163 & 164---Correction of revenue record---Application for correction of revenue record pertaining to specific Khasra was allowed by Collector and appeal there against was dismissed---Matter pertained to determination of location of a water channel (Khal)---Irrigation Department, was in an exact position to resolve such controversy---District Collector while passing impugned order, obtained report of the department---Additional Commissioner, had also dismissed appeal on the same point, which was quite lawful---District Collector, had given permission to review the impugned entry---Petitioner would have still an opportunity to agitate his grievance before the Revenue Officer in terms of S.163(2) of Punjab Land Revenue Act, 1967---Revision petition before Board of Revenue was disposed of with the direction to Revenue Officer to observe requirements of S.163, while proceeding under the order of District Collector.

Malik Muhammad Afzal for Petitioner.

Jabbar Hussain Ch. for Respondent No.1.

YLR 2016 BOARD OF REVENUE PUNJAB 1089 #

2016 Y L R 1089

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD SALEEM and others---Petitioners

Versus

MUHAMMAD IMTIAZ---Respondent

ROR No.2643 of 2013, decided on 27th January, 2015.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 24, 32 & 34---Allotment of land as lambardari grant---Cancellation of allotment---Land in question was in the possession of respondent, who filed application wherein he requested for appointment of Superdar of the land in question---Land was got vacated by initiation of proceedings under Ss.32 & 34 of the Colonization of Government Lands (Punjab) Act, 1912---Both, petitioner and respondent, were not with clean hands---Petitioner being Lambardar of the village was allotted the land as Lambardari grant, but he leased out the part of that grant to the respondent---Receipt of payment of lease money and compromise arrived at between the parties, were irrebuttable evidence of such lease---Allottee was not competent to go into such agreement---Respondent had no locus standi, against impugned land---Petitioner, had even rendered himself ineligible to continue with the grant on account of violation of the terms and conditions of the grant in terms of S.24 of Colonization of Government Lands (Punjab) Act, 1912---Lambardari grant was cancelled and District Collector, was directed by Board of Revenue to resume the same in favour of State with immediate effect, which would be disposed of as per prevalent policy of the Government.

Ch. Muhammad Sharif and Ch. Muhammad Afzal for Petitioners.

Raja Ghulam Hassan Khan for Respondent.

YLR 2016 BOARD OF REVENUE PUNJAB 1610 #

2016 Y L R 1610

[Board of Revenue Punjab]

Before Nadeem Ashraf, Senior Member (Revenue)

MUHAMMAD SALEEM---Petitioner

Versus

AURANGZEB and 10 others---Respondents

ROR No.1189 of 2012, decided on 27th May, 2015.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 161, 163, 164 & 172---Correction of any entry in record-of-rights---Jurisdiction of Revenue Authorities---Petitioner, submitted an application before District Collector for correction of entries in revenue record pertaining to certain Khasra-Numbers---Collector, on report of Revenue Field Staff, recorded the remarks "As Proposed"---Respondents challenged said order in appeal---Additional Commission/Appellate Authority accepted appeal and set aside impugned order of Collector, with the observations that impugned order of the Collector was sketchy---Validity---District Collector on Office Note, without any independent application of mind recorded "As Proposed"---Such perfunctory approval granting permission to review the order of Revenue Officer concerned, could not sustain; as even permission to review would entail consequences for the parties, and would initiate a legal process, which the parties had to undergo---Reviewing Authority, would be required to hear the parties before passing any order to review, or to uphold the existing order in terms of S.163(1) of Punjab Land Revenue Act, 1967, but review sanctioning authority, had to examine and see; whether prima facie the facts agitated, warranted initiation of review, or fell within the ambit of grounds/parameters to invoke review---Such permission to review, should proceed on independent application of mind, rather than relying on an Office Note---Additional Commissioner, had rightly set aside the order of District Collector---In absence of any ground to interfere in the impugned order of the Additional Commissioner, revision petition was dismissed, in circumstances.

Mehmood Azam Baloch for Petitioner.

Petitioner in person.

Shahzad Abid Baig for Respondents.

Aurangzaib Respondent in person.

YLR 2016 BOARD OF REVENUE PUNJAB 2026 #

2016 Y L R 2026

[Board of Revenue Punjab]

Before Nadeem Ashraf, Senior Member (Revenue)

SHUJA NAWAZ and others---Petitioners

Versus

GULZAR KHAN and others---Respondents

R.O.R. Nos.2177 of 2013 and 509 of 2014, decided on 27th May, 2015.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 42, 43, 141, 162, 163 & 164---Review of mutation---Jurisdiction of Collector and procedure---Respondent and another one, were joint owners of land in equal share, measuring 8 Kanals, 8 marlas (4 Kanals 4 marlas each)---Said other one sold the entire land measuring 8 kanals 8 marlas in favour of vendee, which was in excess of his entitlement---Case for its determination, rested on the point; whether District Collector, on an application, made to him by respondent, was competent to review the mutation---Under S.163 of Punjab Land Revenue Act, 1967, Revenue Officers of various tiers, could review their respective orders, or orders of their predecessors, subject to fulfilment of certain conditions, either suo motu or on an application made by an aggrieved person---Procedure, laid down in that section, required Revenue Officers to obtain permission of his immediate next Superior Officer, when he was satisfied that an order of his predecessor needed review---Distinction, was automatically made between Reviewing Authority and Sanctioning Authority---District Collector, was custodian of the Record of Rights in the District; and he had been empowered under the Punjab Land Revenue Act, Land Administration Manual, Land Record Manual, and the instructions of the Board of Revenue etc., to order correction of entries of Revenue Record; and was duty bound to ensure that record was updated, and maintained correctly---District Collector was the Authority to sanction or accord permission for review of an order passed by predecessor of a Subordinate Revenue Officer---Additional Commissioner, had rightly held in impugned order that permission was only granted to review, which would mean that the Revenue Officer, was authorized to have a second look at the record in presence of the parties---Sanction to review under S.163 of Punjab Land Revenue Act, 1967, was just a permission according to a subordinate Revenue Officer to put the order of his predecessor to judicious scrutiny in presence of concerned parties---Concerned Revenue Officer, who was allowed to review the order, was not bound to necessarily modify, or reverse the previous order, but could also confirm after affording opportunity of hearing to the concerned parties---Subsequent to permission for review, said Revenue Officer was under legal obligation to pass an order in the prescribed manner---No legal infirmity or illegality was in the impugned orders of Additional District Collector; and of the Additional Commissioner (Revenue)---Revision petition, was dismissed, and impugned orders passed by Additional District Collector and Additional Commissioner, were upheld, in circumstances.

Tanveer Iqbal Khan for Petitioner (in R.O.R. No.2177 of 2013).

Muhammad Ejaz Ali for Petitioner (in R.O.R. No.509 of 2014).

Muhammad Asif, Ch. for Respondents.

YLR 2016 BOARD OF REVENUE PUNJAB 2532 #

2016 Y L R 2532

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

ALLAH BAKHSH and others---Petitioners

Versus

ATA ULLAH and others---Respondents

Review No.227 of 2013 in ROR No.2222 of 2013, decided on 8th September, 2015.

Thal Development Authority Act (XV of 1949)---

----Preamble---Review petition---Petitioner had alleged that impugned order of acquisition was against the law and facts of the case, and had been passed without appreciating contention of the petitioners; that controversy regarding adna and aala malik was not understood in its true perspective while passing impugned order; that vital rights of the petitioners, being at stake, case should have been decided on merits---Petitioner prayed that the review be accepted---Contentions of the respondents on the other hand were; that impugned order was passed after hearing contentions of the parties and consultation of record; that scope of review was very limited; that the petitioners did not raise any new ground in the review petition; that no irregularity or illegality had been committed in the impugned order which was valid and lawful in the eye of law; that review petition was liable to be dismissed---Respondents prayed that review petition be dismissed--- Validity--- Impugned acquisition, had been made under the provisions of Thal Development Authority Act, 1949---No power of review vested in authority under Thal Development Act, 1949 or Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973---Power of review being conspicuously absent, exercise of such powers by Authority in canceling allotment of land, was not warranted---Right or power of review being creation of statute, could not be exercised unless specifically provided under the law---Petitioners, could not resist such contention---Present review petition being not competent, was dismissed being not maintainable; in circumstances.

1993 CLC 589 ref.

Muhammad Sajjad Naeem for Petitioners.

YLR 2016 BOARD OF REVENUE PUNJAB 2560 #

2016 Y L R 2560

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari Member (Judicial-III)

SAID MUHAMMAD and others---Petitioners

Versus

The STATE and others---Respondents

ROR No.905 of 2015, decided on 10th June, 2015.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 4, 10 & 30---Punjab Land Revenue Act (XVII of 1967), S.164---Notification No.812.2010/582.C(V) dated 19-5-2010---Lamberdari grant---Allotment of land under Lamberdari grant---Proprietary rights---Refusal of---Petitioners contended that their father was Lamberdar, he was allotted 100-Kanals land under Lamberdari grant; that their father remained in cultivating possession of the same till his death; that on issuance of Notification in the year 1976 regarding grant of proprietary rights, his father applied for the same, but proprietary rights were not granted to him; that they submitted an application before the District Collector for attestation of inheritance mutation in their favour regarding land allotted to their father under Lamberdari grant; that respondent (new lamberdar) also submitted application before District Collector for allotment of said land in his name under Lamberdari grant, which application was granted, and application of petitioners was rejected and that appeal filed by the petitioners, before Additional Commissioner/Revenue, was dismissed---Validity---After death of the predecessor of the petitioners, respondent had been appointed Lamberdar of the village, and such appointment had been upheld up to the level of Supreme Court---As per Notification No.812-2010/586-C(V), dated 19-5-2010, such grant was to be trans-ferred to newly appointed Lamberdar---After losing the case up to Supreme Court, petitioners were trying to manipulate the things through frivolous litigation---Impugned order suffered with no lacuna, and warranted no interference---Petitioners, had no claim against the impugned land---Impugned order passed by Additional Commissioner (Consolidation) was upheld, in circumstances.

YLR 2016 BOARD OF REVENUE PUNJAB 2721 #

2016 Y L R 2721

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

BASHIR ALAM and others---Petitioners

Versus

MARTHAN and others---Respondents

R.O.R. No.1994 of 2011, decided on 23rd July, 2015.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 20---Succession Act (XXXIX of 1967), S.164---Inheritance---Entitlement of female descendant to inherent legacy of deceased (Christian) allottee of land---Land was allotted (to Christian) predecessor-in-interest of the parties---Petitioners, who were sons of deceased, got sanctioned inheritance mutation in their favour, depriving, the daughters of the deceased allottee---Deputy District Officer (Revenue) accepted the appeal and set aside impugned mutation---Section 20 of Colonization of Government Lands (Punjab) Act, 1912 provided that allotment in question was inheritable and was to be distributed among the successors of the deceased according to law---Contention of the petitioners was that case had wrongly been treated as case of succession---Petitioners contended that case of succession be dealt under Christian custom of succession, whereby only male offspring was entitled for succession of the deceased---Validity---Customary succession, so far as Christians were concerned, was altered by Succession Act, 1925, which also abolished custom in Punjab for the Christians---Christian female was allowed to inherit in presence of the male heirs---Succession Act, 1925, by statutory dispensation had determined the mode of succession, when a Christian male died, neither the custom nor any other law would be applicable---Both male and female offspring were entitled for succession of the deceased---Impugned order was quite lawful, which needed no interference---Order accordingly.

PLD 1992 SC 385 rel.

Anwar Mubeen for Petitioners.

YLR 2016 BOARD OF REVENUE PUNJAB 2803 #

2016 Y L R 2803

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD IQBAL HUSSAIN---Petitioner

Versus

IFTIKHAR HUSSAIN---Respondent

R.O.R. No.50 of 2015, decided on 30th November, 2015.

Punjab Tenancy Act (XVI of 1887)---

----Ss. 45 & 84---Punjab Land Reforms (Procedure of Ejectment Suits) Rules, 1977, R. 7--Ejectment of tenant from land---Contention of landowner, was that petitioner, who was his brother, was his tenant-at-will and was not paying his due share of produce, nor was cultivating the disputed land---Application filed by the landowner for ejectment of the petitioner, was accepted by Tehsildar, and decree for ejectment, was passed in favour of the respondent---Appeal of petitioner was dismissed by Assistant Commissioner---Validity---Details of payment of amount of "Hisa Pedawar"/share of produce to the respondent landowner, had shown that amount of "Hisa Pedawar" paid to the respondent from time to time, varied considerably---Some time, it seemed handsome, and some time was quite meagre---Said payments had not been made regularly---At one time, it was made just after harvesting the crop, and on other occasion after delay of about two years---No payment had been made after year 2013---Petitioner/tenant was established to have defaulted from the year 2013, despite the fact that amount of 'Hisa Pedawar' was determined by the Tehsildar---Matter having been disposed of comprehensively by authorities below after examining all the aspects of the issues, impugned orders were quite lawful, which needed no interference in revision by Board of Revenue---Impugned orders, were upheld in circumstances.

S.M. Zaman and Faisal Rafique Mirza for Petitioner.

Federal Shariat Court

YLR 2016 FEDERAL SHARIAT COURT 487 #

2016 Y L R 487

[Federal Shariat Court]

Before Sh. Najam ul Hasan and Zahoor Ahmed Shahwani, JJ

AMINULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.21-Q and Criminal Revision No.1-Q of 2012, decided on 5th June, 2015.

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

----Ss. 302(b), 308 & 379---Qatl-i-amd, qatl-i-amd not liable to qisas, theft---Appreciation of evidence---Accused in his judicial confession admitted his guilt and narrated each part of the story---Said statement was recorded by the Magistrate after fulfilling all legal requirements---Accused who alleged torture of Police for making confessional statement, could not prove the allegation---No sign of torture was observed by Magistrate, who recorded the confessional statement---Medical evidence fully corroborated the time of occurrence---Evidence produced on record, had fully proved involvement of accused in murder of the deceased and accused had failed to prove that he had been falsely involved in the case due to enmity with the prosecution witnesses---No reason existed for the complainant to leave real culprit, who killed his brother---Recovery of huge amount from the house of accused on his pointation, without any plausible explanation, was another circumstance, which corroborated the confessional statement of accused---Prosecution had proved the case against accused beyond any reasonable doubt---Conviction and sentence of accused under Ss.302(b), 379, P.P.C., was upheld---Case of accused not falling under Ss.306 or 307, P.P.C., he could not be convicted under S.308, P.P.C.---Conviction and sentence of accused under S.308, P.P.C., for payment of 'Diyat' to the legal heirs of deceased, being not maintainable, was set aside---In the present case, there was no eye-witness and whole case was based on circumstantial evidence---Co-accused whose name was introduced in the judicial confession of accused had been acquitted by the Trial Court while extending him benefit of doubt---No appeal was filed against said acquittal---Two sentences having been provided under S.302(b), P.P.C., sentence of imprisonment for life to accused would meet the ends of justice in circumstances.

Dadullah and another v. The State 2015 SCMR 856; Wazir Khan v. The State 1989 SCMR 446; Muhammad Amin v. The State PLD 2006 SC 219 and Ahmad Hassan another v. The State 2001 SCMR 505 ref.

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

----S. 164---Conviction on retracted confessional statement of accused---Scope---Conviction of accused, could be based on retracted confessional statement; if it was proved that such statement was made without any inducement, threat or promise; was based on true, natural, plausible and logical version of accused; that before recording such statement accused was informed of consequence of such confession; and he was informed that he would not be handed over to Police; even if he did not make confessional statement, he was provided time to think before making such confessional statement and his statement was not recorded in presence of the Police---Delay in recording of retracted judicial confessional statement, would not reduce its value.

Ahmed Hassan and another v. The State 2001 SCMR 505 and Muhammad Ismail and another v. The State 1995 SCMR 1615 ref.

Masoom Khan Kakar for Appellant (in Criminal Appeal No.21-Q-2012).

Abdul Sattar Khan Durrani, Addl. P.G. Balochistan for the State (in Criminal Appeal No.21-Q-2012).

Mehmood Sadiq Khokhar for Complainant/Petitioner (in Criminal Appeal No.21-Q-2012 and Criminal Revision No.01-Q-2012).

Date of hearing: 3rd June, 2015.

YLR 2016 FEDERAL SHARIAT COURT 658 #

2016 Y L R 658

[Federal Shariat Court]

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

MOMIN KHAN and 3 others---Appellants

Versus

UMAR WAHID and another---Respondents

Criminal Appeal No.6/P and Criminal Revision No.3-P of 2014, decided on 5th May, 2015.

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

----Ss. 392, 411, 148 & 149---Pakistan Arms Ordinance (XX of 1965), S.13---Robbery, dishonestly receiving stolen property, rioting common object, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Case of prosecution suffered from material legal infirmities, which had created dents in the whole case---No confession had been made by any one of accused persons---Case, initially was lodged against "unknown accused persons", who had allegedly snatched huge amount, Kalashnikov and pistol from the complainant and his companion, but no one was nominated in the FIR---Names of accused persons were mentioned in the FIR after arrest of accused persons---Complainant was unaware of identification of accused persons---Accused persons, though were arrested on the spot; in the interest of justice, there should have been identification parade, to attribute specific role to each one of them, but no identification parade was held---Subsequent recoveries of allegedly looted amount, Kalashnikov and 9 MM pistol, also did not support the prosecution case---Said recoveries, were effected on the third day of the occurrence---No person from the public was taken to that place to witness, said recoveries---Prosecution witness, had expressed his ignorance about amount allegedly recovered from accused persons---Said witness had conceded that there was nothing to show as to where that amount had gone---Recovered items were not made into sealed parcels and were kept in open condition---Handcuffs, allegedly used by accused persons in the occurrence, had also not been recovered---Person who was accompanying the complainant at the time of occurrence, when as alleged had been handcuffed, did not make any reference to that very pertinent factor, anywhere in his deposition---Said person had also expressed lack of knowledge, if looted amount, was ever returned to the complainant---Presence of said companion of the complainant on the spot, seemed highly doubtful---According to the prosecution, cross firing had taken place, but neither any empties were recovered, nor the Forensic Science Laboratory's report made any reference to the use of the recovered weapons in the cross-firing---Nothing could be inferred positively about the veracity of the prosecution version in that respect---Two of accused persons, allegedly were Police Officials; and contention of the complainant was that one of them was declared proclaimed offender---Prosecution, had not placed on record any document showing that till the day of occurrence, said accused had remained a proclaimed offender---Complainant and his companion claimed that they proceeded to "Charsadda" wherefrom they had entered the motorway for Islamabad, but the complainant had no entry pass nor any other proof worth the name to prove that he had actually entered the motorway through that entrance---Entry of accused persons to the motorway in their jeep, or even their exit therefrom had also remained, un-established on record---Recovered looted amount was not deposited in safe custody anywhere---According to prosecution witnesses looted amount was returned to the complainant, but neither any original receipt was exhibited nor any amount was produced later in the court---Even the date when said amount was returned to the complainant, had not been written over there; and it had not been signed by the Investigating Officer---It could not be said with judicial certainty that the amount in question was ever looted by accused persons; or that the complainant had actually entered the motorway in his car---No satisfactory basis for upholding the conviction and sentence of accused persons being available, appeal was allowed---Conviction and sentences awarded to accused persons by the Trial Court, were set aside; they were acquitted of the charges, and was released, in circumstances.

Amir Ali v. The State PLD 1960 (W.P.) Kar. 753; Islam Gul v. The State 1997 PCr.LJ 225; The State v. Pirak 1997 PCr.LJ 1900 and Sher Zaman and 4 others v. The State and another 2012 MLD 1601 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Burden of proving its case, was always the duty of the prosecution; and it had to stand on its own legs, but if there was any doubt about material aspects of the case, the benefit should go to accused---For giving benefit of doubt to an accused, it was not necessary that there should be many circumstances creating doubts---If there was a single circumstance, which would create reasonable doubt in a prudent mind about the guilt of an accused, then accused would be entitled to get the benefit thereof; and that too not as a matter of grace and concession, but as a matter of right.

Hussain Ali for Appellants.

Sahibzada Asadullah for the Complainant.

Arshad Ahmad Khan, Assistant Advocate General for the State.

Date of hearing: 22nd April, 2015.

YLR 2016 FEDERAL SHARIAT COURT 727 #

2016 Y L R 727

[Federal Shariat Court]

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

IRFAN---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.10/P of 2013 and Criminal Revision No.1/P of 2011, decided on 28th April, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 382, 397 & 411---Qatl-i-amd, theft after preparation made for causing death, hurt or restraint, robbery or dacoity, with attempt to cause death or grievous hurt, dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Initially, no one was charged in the case---Case was of circumstantial evidence---Evidence, in such like cases, should be consistent with the hypothesis of the guilt of accused---Every chain should be linked with each other; and if any chain link was missing, then the benefit of the same be given to accused---Nothing was available on the record to show that prosecution witness had charged accused in writing prior to his arrest---Said prosecution witness, who was second son of the deceased, in his statement before the court had submitted that, accused the private servant of the deceased, had taken away amount of Rs.70,000 in cash, golden ornaments weighing 96-Tolas, two laptops with C.D. Players and other things and documents---Was not known as to what was source of information of prosecution witness and how he came to know that said articles had been taken away by accused as said accused at the time of occurrence was not in the city---Said witness was required to give a written statement showing the details of the articles lost, to the Police prior to the arrest of accused, but nothing to that effect was available on the file---Nothing was on record to show that actually the deceased had Rs.70,000 in her purse or 97 Tolas golden ornaments were already available in the house---No gold ornaments were recovered from accused---Prosecution witness in his statement before the court submitted that he had produced the empty boxes of laptops to the Police, whereas the laptops were recovered from accused---Recovery, in circumstances, had become doubtful---Alleged confessional statement of accused, was thumb impressed by accused---Questionnaires as well as the certificate, were in English and already in printed form---Alleged confessional statement, in the first instance was recorded after three days and for those three days, accused had remained in custody of Police---Said statement, itself was not confidence inspiring, for the reasons, that it had not been proved that accused had actually been working at some medical store; accused was illiterate---Was not known as to how accused recognized the tablets which caused intoxication and unconsciousness---Story that accused went to Medical Store, stole the intoxicating tablets and easily came out, was unbelievable---According to the confessional statement, accused had tied the hands and feet of the deceased, but that statement was not proved by the medical evidence; confessional statement showed that accused had injured the throat of the deceased, but according to medical report, no injury was available on the throat of the deceased and he had not been killed with the knife---Nothing was available in the confessional statement about the articles mentioned by the prosecution witness which were taken away by accused---Confessional statement was not corroborated by the medical evidence; same could not be accepted---Submission of the counsel for the complainant that prosecution witness who opened the door of the premises, was having additional key and with that key he had opened the door, which was locked from the outside---Record did not support said submission as there was nothing on record to show that said witness had additional key---Also nothing was on record that accused while leaving the house had locked the door---Site plan showed only one main gate, and was totally silent about the nature of the lock---Case of prosecution was full of doubts---No consistency existed in the evidence---Giving benefit of doubt to accused, jail appeal was allowed; judgment of the Trial Court was set aside; accused was acquitted of the charge, and was set free, in circumstances.

Maqbool alias Booli v. Shaukat Ali and another 2011 YLR 1207; Tahir Javed v. The State 2009 SCMR 166; Imran alias Manu v. The State 2011 SCMR 932; Shahid Hussain and another v. The State 2011 PCr.LJ 652; Fateh Khan v. The State and 3 others 2011 PCr.LJ 1924; Taj Wali Shah v. The State 2014 PCr.LJ 323; Noor Shah Gul v. Asim Ullah and another PLD 2015 Pesh. 1 and 2008 SCMR 649 ref.

Gul Daraz Khan for Appellant.

Sohail Akhtar for the Complainant.

Muhammad Sohail, Assistant Advocate General KPK for the State.

Date of hearing: 21st April, 2015.

YLR 2016 FEDERAL SHARIAT COURT 978 #

2016 Y L R 978

[Federal Shariat Court]

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

GHULAM HAIDER and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.2/Q, 3/Q, 1/Q of 2013 and 15/Q of 2014, decided on 21st October, 2015.

Penal Code (XLV of 1860)----

----Ss. 302 & 304--- Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd liable to qisas---Reappraisal of evidence, proof of qatl-i-amd---Benefit of doubt---Dying declaration---Oral dying declaration before private persons---Scope---Perusal of record revealed that none of witnesses including complainant had seen the accused committing the offence and it was clear from evidence available on record that not one of the witnesses was an eye-witness of the incident who had seen accused persons firing at deceased and causing him injuries or robbing from the deceased---Trial Court considered the statement of the victim when he was injured as dying declaration and made it a basis for conviction of the accused and it had to be seen whether the injured had made any such statement before complainant and other witnesses and whether such statement could be termed as "dying declaration"---Material discrepancies existed in the depositions of the complainant and the prosecution witness; and from such material discrepancies; the presence of the complainant and prosecution witnesses at place of occurrence stood highly doubtful---Victim was rushed to the hospital in an injured condition and later succumbed to his injuries there; however, if victim was in a position to make a statement before other persons regarding incident at place of occurrence and police were also present at the spot; then the question arose as to why the police did not record dying declaration of the victim when even the police could register case on statement of injured victim at the spot---Nothing in the deposition of police witnesses had came on record to indicate that deceased had made such a statement; and in such circumstances; dying declaration of the deceased was highly doubtful and could not be established---Although there is no bar on oral dying declaration before private person(s); however in the present case the very statement of deceased before prosecution witnesses was highly doubtful and could not be believed and furthermore presence of prosecution witnesses at place of occurrence as last seen witnesses was also doubtful---Neither any crime weapon had been recovered from the accused nor chemical expert report in respect of blood stained clothes was produced---All prosecution witnesses were interested witnesses besides being close relatives of deceased and no independent witness had been associated to corroborate prosecution case despite availability of the same---Evidence of the prosecution, therefore, suffered from material discrepancies; having no independent corroboration which could not be relied upon and made basis for conviction of accused---Benefit of doubt, therefore, had to be extended to the accused---Convictions and sentences imposed on the accused were set aside and accused were acquitted of the charge---Appeals were allowed, accordingly.

Mst. Zahida Bibi v. The State PLD 2006 SC 255; Tahir Khan v. The State 2011 SCMR 646; Hameed Gul v. Tahir and 2 others 2006 SCMR 1628 ; Imran alias Dully and another v. The State 2015 SCMR 155; Khalid alias Khalidi and 3 others v. The State 2012 SCMR 327 and Sher Khan v. The State 2010 SCMR 1772 rel.

Ali Ahmed Lehri for Appellant (in Cr.A. No.2/Q of 2013).

Abdul Ghani Mashwani for Appellant (in Cr. A. No.3/Q of 2013).

Malik Sikandar Khan for Appellant (in Cr. A No.15/Q of 2014).

Liaqat Ali for the Complainant (in Cr. Rev. No.1/Q of 2013).

Abdul Sattar Khan Durrani, Addl. Prosecutor General for the State.

Date of hearing: 12th October, 2015.

YLR 2016 FEDERAL SHARIAT COURT 1050 #

2016 Y L R 1050

[Federal Shariat Court]

Before Sh. Najam Ul Hasan, Zahoor Ahmed Shahwani and Mrs. Ashraf Jahan, JJ

UBAID---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.19-Q and Criminal Murder Reference No.2-Q of 2014, decided on 14th January, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-A(v), 337-F(i), (ii), (v), (vi) & 394---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Khafifah, damiyah, Badiah, Hashimah, Munaqqilah, voluntary causing hurt in committing robbery, haraabah---Appreciation of evidence---Accused, who was apprehended at the spot along with weapon of offence, his name was mentioned in the FIR---Accused, along with his deceased co-accused, and two proclaimed offenders, was involved in the occurrence of robbery; and during the occurrence by their firing, nine persons were injured, and two persons lost their lives---Accused, in circumstances, was involved and liable under S.394, P.P.C., as he had common intention, and had acted for common object to commit robbery---Accused was vicariously liable under Ss.302(b) & 324, P.P.C., though no one received injuries at the hands of accused---Offence under S.394, P.P.C., having been made out against accused, Trial Court was not justified in not convicting accused under S.394, P.P.C., while relieving him from S.17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979---No evidence was available to indicate or assign any specific injury on any of the injured to accused---Conviction of accused and sentence under Ss.337-A(v), 337-F(i)(ii), (v)(vi), P.P.C., for causing injury to any of the injured, was set aside---Accused was convicted under S.394, P.P.C., and was sentenced to life imprisonment, with fine of Rs.10,000 instead of death sentence, with benefit of S.382-B, Cr.P.C.

Muhammad Din alias Manna v. The State 1976 SCMR 185 ref.

Kamran Murtaza for Appellant.

Nauman Shafiq D.P.G. Balochistan for the State.

Nemo for the Complainant.

Date of hearing: 4th January, 2016.

YLR 2016 FEDERAL SHARIAT COURT 1181 #

2016 Y L R 1181

[Federal Shariat Court]

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

MUHAMMAD UMMAR and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.12/Q, 13/Q and Criminal Revision No.20 of 2013, decided on 14th October, 2015.

Penal Code (XLV of 1860)---

----Ss. 396 & 302---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, dacoity with murder---Reappraisal of evidence---Delay in FIR---Defective identification parade---Accused were convicted under S.396, P.P.C. as tazir and sentenced to life imprisonment---Validity---Record showed that there was a delay of more than 8 hours in lodging of FIR by complainant and the explanation that such delay was due to taking the injured to hospital was not convincing as there was nothing on record to indicate that complainant had rushed the injured victim to the hospital for treatment---Such delay in FIR made prosecution case doubtful---Accused were not nominated in the FIR but according to a prosecution witness; he identified the accused by their body structure and eyes---Such description of accused and their structure was not mentioned in FIR as well as statements under S. 161, Cr.P.C. and in absence of said descriptions in the FIR as well as statements, the identification of accused persons during identification parade to be the same persons who committed the offence was not believable---Said identification parade was not conducted in accordance with prescribed rules as the identification parade form showed that names of all persons, who were present as dummies during identification parade, along with parentage and address had not been mentioned and said identification parade was not carried out under supervision of concerned Magistrate and according to prosecution, such identification parade was carried under the concerned SHO and another witness; and the said persons were not examined by the prosecution in support of its case; and therefore the identification parade was defective and unworthy of reliance---Contention that accused during investigation had led police to pointation of place of incident was not valid and could not be relied on as the same was inadmissible since place of occurrence was already in knowledge of police and mere such disclosure before police was not admissible unless new facts were discovered in pursuance of such disclosure---Non-securing of blood-stained earth from exact place of incident cast further doubt in prosecution story---Evidence led by prosecution against accused persons was not reliable and it could be concluded from available evidence that the incident did not take place in manner narrated by prosecution witnesses---Convictions of accused were set aside and accused were acquitted of the charge---Appeals were allowed, in circumstances.

PLD 2005 Quetta 116 and Muhammad Afzal alias Abdullah and others v. The State 2009 SCMR 436 rel.

Noorullah Kakar for Appellant (in Cr. A. No.12/Q of 2013).

Liaquat Ali for Appellant (in Cr. A. No.13/Q of 2013).

Noorullah Kakar for the Petitioner/Complainant (in Cr. Rev. No.2/Q of 2013).

Abdul Sattar Khan Durrani, Additional Prosecutor General for the State.

Date of hearing: 6th October, 2015.

YLR 2016 FEDERAL SHARIAT COURT 1543 #

2016 Y L R 1543

[Federal Shariat Court]

Before Allama Dr. Fida Muhammad Khan and Sh. Najam ul Hassan, JJ

MUHAMMAD ASHRAF---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.18-I of 2015 and Criminal Revision No.3-I of 2015, decided on 10th February, 2016.

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

----Ss. 302(b), 394, 396 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, voluntarily causing hurt in committing robbery, dacoity with murder, common intention, haraabah---Appreciation of evidence---Prosecution witness, who knew accused had identified accused in the court---Accused offered to make a confessional statement before Magistrate---Magistrate, satisfied himself that confession was made by accused voluntarily, without any coercion---Magistrate was thoroughly cross-examined, but nothing notable, in favour of accused was brought on record---Accused was given chance to think; and after fulfilling the requirements of Ss.164 & 364, Cr.P.C., the Magistrate recorded the confessional statement of accused---Recovery of stolen car and the pistol from accused, just few hours after the occurrence, provided corroboration to the confessional statement---Name of accused, along with number of stolen vehicle, was duly mentioned in the FIR---Statements of prosecution witnesses, had fully supported the prosecution case---Non-availability of Forensic Science Laboratory's report, was a circumstance, which would go against the prosecution, but in presence of other incriminating evidence and material, it would not affect the prosecution case---Accused could not produce any defence witness, or documents in proof of his stance of false involvement due to land dispute---Case against accused had been built on the basis of circumstantial evidence; evidence of last seen of the deceased with accused; evidence regarding the recovery of stolen car, medical evidence, confirming the time of occurrence, the weapon of offence; and cause of death---Prosecution had also relied upon the retracted judicial confessional statement---Accused having found solely responsible for committing robbery and murder, he could not be convicted under S.396, P.P.C.; because for conviction under S.396, P.P.C., minimum five accused persons were necessary---Conviction of accused, under S.396, P.P.C., was converted into one under S.394, P.P.C., but his sentence of life imprisonment was upheld---Accused was also convicted under S.302(b), P.P.C., for committing murder of the deceased in the process of robbery---Accused, was a young man of 20/22 years of age; and had no previous record---While taking lenient view he was sentenced to life imprisonment under S.302(b), P.P.C.---With such alteration in conviction and sentence, appeal of accused, was dismissed.

Muhammad Bashir Ahmad alias Bashir v. The State 1999 SCMR 2414; Dilbar and another v. The State PLD 1994 FSC 24; The State and others v. Rahim Dad and others 2005 MLD 1620; Naqibullah and another v. The State PLD 1978 SC 21; Siraj Ahmed v. The State 2011 PCr.LJ 48 and Abdul Mujeeb v. The State 1998 PCr.LJ 1381 ref.

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

----Ss. 164 & 364---High Court (Lahore) Rules and Orders, Vol. III, Chap. 3---Judicial confession--- Recording, admissibility, and scope---Judicial confession, was accepted at higher pedestrian than the extra judicial confession, mainly because, the judicial confession had to be recorded by a Judicial Officer after fulfilling the requirements mentioned under Ss.164, 364, Cr.P.C.; and Chap. 3 of Vol.III of High Court (Lahore) Rules and Orders---After fulfilling such requirements, judicial confession was presumed to be genuine; and was admissible in evidence against accused, who made the same; but if at some latest stage, same was retracted, then court could seek corroboration from other unimpeachable source to convict accused--- Sole retracted judicial confession, could be made a ground for conviction, if such judicial confession, was made, voluntarily; and was of confidence inspiring; and had not been obtained under coercion.

Ahmad Hassan and another v. The State 2001 SCMR 505; Dadullah and others v. The State 2015 SCMR 856 and Wazir Khan v. The State 1989 SCMR 446 rel.

Javed Aziz Sindhu for Appellant (in Jail Criminal Appeal No.18-I of 2015).

Abdul Latif Kakar, Addl. P.G. Baluchistan for the State (in Jail Criminal Appeal No.18-I of 2015).

Rizwan Ejaz for the Complainant (in Jail Criminal Appeal No.18-I of 2015).

Rizwan Ejaz for Respondents (in Criminal Rivision No.3-I of 2015).

Date of hearing: 28th January, 2016.

YLR 2016 FEDERAL SHARIAT COURT 1768 #

2016 Y L R 1768

[Federal Shariat Court]

Before Sheikh Najam-ul-Hasan, Zahoor Ahmed Shahwani and Mrs. Ashraf Jahan, JJ

SHABBIR HUSSAIN alias SHABBIR and another---Appellants

Versus

JEHANZEB and others---Respondents

Criminal Appeals Nos. 25/I, 5/P and Criminal Revision No. 2/P of 2014, decided on 14th April, 2016.

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

----Ss. 396 & 149---Dacoity with murder, common object--- Appreciation of evidence---Accused were not nominated in the FIR, but the complainant in his supplementary statement, got recorded under S.164, Cr.P.C., after lapse of thirty one days, implicated accused persons with the commission of alleged offence---Supplementary statement as well as deposition made by complainant before the court, was silent with regard to source through which he came to know about the names of accused persons---Supplementary statement, and deposition of complainant to the extent of nomination of accused persons and their identification, stood highly doubtful, which could not be relied upon---Identification parade of accused person through eye-witnesses, had not been conducted---No role of any accused was mentioned even the weapon had not specifically been mentioned---Both the witnesses, the complainant and his son had not identified any of accused; nor role, weapon or any other thing had been specifically assigned to any specific accused---In absence of specific role of an accused during the identification parade, or while appearing in court, such identification proceedings, were not considered worth reliance---Identification of accused persons, was highly doubtful---As per case of prosecution, deceased was present in the room along with his wife; his wife who was star witness, was not produced in the court and was given up by the prosecution---Recoveries of crime weapons, robbed articles i.e. Kalashnikov, golden ear rings etc. on the pointation of accused, were highly doubtful---Report of Fire-arms Expert, in respect of recovered Kalashnikov and empties, secured from the place of occurrence, was not helpful to case of prosecution---Entire prosecution evidence, was highly doubtful and not reasonable and convincing, but the Trial Court without proper appreciation of evidence, convicted accused and sentenced them by means of impugned judgment, which was not tenable in eyes of law---Impugned judgment was set aside; accused were acquitted of the charge and were released, in circumstances.

Nazir Ahmed v. Muhammad Iqbal and the State 2011 SCMR 527; Falak Sher v. The State 1995 SCMR 1350; Muhammad Saleem v. The State 2010 YLR 2115 Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

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

----Art. 22---Identification proceedings---Nature---Identification proceedings during the investigation, were of corroborative nature---In absence of specific identification of accused in court, such corroborative evidence, would lose its value.

Shafqat Mehmood and others v. The State 2011 SCMR 537 rel.

Muhammad Ilyas Siddiqi for Appellants (in Criminal Appeal No.25/I of 2014).

Zar Badshah Khan for Appellants (in Criminal Appeal No.5/P of 2014).

Syed Mubashir Shah for Petitioner (in Criminal Revision No.2/P of 2014).

Arshad Ahmed Khan, Asstt. A.-G. KPK for the State.

Date of hearing: 17th March, 2016.

YLR 2016 FEDERAL SHARIAT COURT 1903 #

2016 Y L R 1903

[Federal Shariat Court]

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

QAISAR ALI---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.9/I of 2015, decided on 12th May, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 387---Qatl-i-amd, putting person in fear of death or of grievous hurt, in order to commit extortion---Appreciation of evidence---Benefit of doubt---Accused was not nominated in the FIR, but was implicated on statements of prosecution witness recorded under S.164, Cr.P.C., after lapse of two days before Judicial Magistrate---Said deposition of the prosecution witnesses, was not convincing and reasonable because neither source was disclosed, nor any witness in that regard was produced---Occurrence was un-witnessed, and case of prosecution rested on judicial confession, and recovery of crime weapon from possession of accused, and matching report issued by Fire Arms Expert in respect of crime weapon---Confessional statement was not helpful to case of prosecution, because Judicial Magistrate had not observed requirements of provisions of S.364, read with S.164, Cr.P.C.---Alleged confession made by accused, was of stereotype and tailored one---Recovery of pistol was highly doubtful, and could not be relied upon---Matching report issued by Fire Arms Expert with regard to recovered pistol and empty, had lost its legal sanctity---Accused had already been acquitted of the charge in the case under Arms Act registered against him on the allegation of alleged recovered pistol---Judicial confession of accused, and Fire Arms Expert reports, which were the base of conviction had already been declared involuntary one and doubtful---Benefit of doubt, if any, must be extended in favour of accused---Prosecution having been unable to establish its case against accused, impugned judgment of the Trial Court, was set aside, accused was acquitted of the charge and was released in circumstances.

Azeem Khan and others v. Mujahid Khan and others 2016 SCMR 274 and Munawar Hussain v. The State 1993 SCMR 785 rel.

Nazir Ahmed Bhutta for Appellant.

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

Date of hearing: 20th April, 2016.

Gilgit Baltistan Chief Court

YLR 2016 Gilgit Baltistan Chief Court 204 #

2016 Y L R 204

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

FIVE STAR CONSTRUCTION COMPANY through Managing Director---Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary G.B. and 8 others---Respondents

Writ Petition No.67 of 2014, decided on 21st April, 2015.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71(2)---Writ petition---Maintainability---Case of contractual liability of parties---Writ petition was filed because authorities had initiated some action against the petitioner, a contractor, finding that the petitioner company had violated terms of contract arrived at between the parties---Petitioner company had very clearly averred that it was entitled to get the damages from the authorities for a suspended period under one of the clauses of the contract to meet the ends of justice---Question for determination, was the contractual liability of either of the parties to the case---Authorities had not taken any action amounting to violation of any constitutional right of the petitioner, nor the said actions of the authorities, amounted to any disparity etc.---Writ petition, was held to be not only incompetent in the present form, but frivolous also.

Sher Baz Ali Khan for Petitioner.

Assistant Advocate General for Respondents Nos. 1 to 5, 7 to 8.

Qaiser Ali Shah for Respondent No.6.

Date of hearing: 21st April, 2015.

YLR 2016 Gilgit Baltistan Chief Court 277 #

2016 Y L R 277

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

ZAHEER ABBAS and another---Appellants

Versus

ALI HAIBAT and 12 others---Respondents

C.F.A. No.11 of 2009, decided on 12th August, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Ascertainment of pecuniary jurisdiction of Appellate Court---Plaintiffs, had filed suit for possession of the suit vehicle and payment of Rs.500 pendency as rent of the same w.e.f. 1-1-1988 till return of the suit vehicle---Plaintiffs had further prayed for permanent injunction against registration of the suit vehicle in the name of defendant or against the cancellation of registration of suit vehicle in the name of father of plaintiffs---Plaintiffs had fixed the valuation of the suit for the purpose of court-fee and jurisdiction as Rs.10,000 only two defendants contested the suit, and Trial Court proceeded ex parte against the rest of the defendants---Validity---Only question required to be answered first was the ascertainment of pecuniary jurisdiction of Appellate Court to hear appeal---Plaintiffs, had specifically ascertained value of appeal for the purpose of court-fee and jurisdiction as Rs.2,50,000; with assertion that if decree was granted in favour of the plaintiff, then the value for the purpose of jurisdiction of the court would exceed Rs.2,50,000---Plaintiffs/ appellants, in circumstances, had filed appeal on mere assumption of valuation of suit amount---Appeal had been filed by the plaintiffs/appellants, on misconception of relevant law; as neither a decree-exceeding Rs.2,50,000 had been passed in favour of the plaintiffs; nor appellants/plaintiffs had fixed that amount as value of the suit in the plaint---Office of the court should not have received appeal---Office was directed by Chief Court for returning of memorandum of appeal to the appellants enabling them to present the same before court of competent jurisdiction.

Islam-ud-Din for Appellants.

Sharif Ahmed for Respondents.

YLR 2016 Gilgit Baltistan Chief Court 389 #

2016 Y L R 389

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

ALL RESIDENTS OF VILLAGE KURU, through Molvi Mohammad Hussain and 2 others---Petitioners

Versus

ALL RESIDENTS OF VILLAGE KUNIS/HARIKON, through Mohammad Baqir and 4 others---Respondents

Civil Revision No.12 of 2011, decided on 24th April, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiffs, had prayed for declaration to the effect that they were entitled to irrigate their agricultural lands through 24 channels from the water of relevant Nallah and that defendants, were not entitled to irrigate their lands from the said Nallah---Suit was concurrently dismissed by the Trial Court and Appellate Court---Validity---Two courts below had failed to appreciate the pleadings and evidence of the parties regarding actual dispute---Defendants, in their written statements, had also admitted the existence of 24 channels of the plaintiffs---Once the admission would come from the defendants through their written statement, Trial Court was legally bound not to frame any issue on the question admitted in the pleadings---Findings of the Trial Court dismissing the suit of the plaintiff was wrong---Trial Court did not discuss any evidence of the parties, and had passed the findings on mere conjuctures---Appellate Court below, also had passed the impugned judgment without any discussion on each and every issue---Revision petition was accepted and impugned judgments were set aside---Suit of the plaintiffs was decreed to the extent of declaration that plaintiffs had the right to irrigate their agricultural lands from said 24 channels.

Mohammad Isa for Petitioners.

Amjad Hussain for Respondents.

Date of hearing: 24th April, 2015.

YLR 2016 Gilgit Baltistan Chief Court 682 #

2016 Y L R 682

[Gilgit-Baltistan Chief Court]

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

JAN MOHAMMAD---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No.68 of 2015, decided on 26th October, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Manufacturing, owning, possessing and trafficking intoxicant---Bail, refusal of---Huge quantity of 3950 grams of opium, was attempted to be transported to an unknown place---All three accused persons were involved in the occurrence---Both the courts of Judicial Magistrate and Judge Anti-Narcotics, did not apply their judicious mind to the circumstances of the case and acted as ipse dixit of Police---Release of one of accused persons under S.169, Cr.P.C., was not justified, at bail stage---Quantity of narcotics in the present case, being huge, investigation of the case, must have been conducted by the Anti-Narcotics Force and not the police of concerned police station---Chief Court while dismissing the petition directed the Judge Anti-Narcotics/Sessions Judge to return or pass directions for returning the challan of case to the Director or Director Anti-Narcotics Force for investigation of the case; and resubmission of challan by said force in the court concerned.

Amjad Hussain for Petitioner.

Deputy Advocate General for the State.

YLR 2016 Gilgit Baltistan Chief Court 848 #

2016 Y L R 848

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

Mst. RUQAYYA and another---Petitioners

Versus

BAQIR and 7 others---Respondents

Civil Revision No.20 of 2014, decided on 20th August, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Impleadment as a party---Scope---Trial Court decreed the suit against which appeal was filed wherein application was moved for impleadment of a party which was dismissed---Validity---Shares claimed by the applicants in the property of their father and in the property of deceased son of plaintiff were different---Applicants should be impleaded to the suit but to the extent of determination of their shares in the property of deceased son of plaintiff---Applicants would be free to file a separate suit for their share in the property of their father---Shares of applicants in the property of their father could not be determined through the present suit---Trial Court should implead the applicants as plaintiffs and not as defendants as they had made a claim through the present petition---Impugned order as well as judgment and decree passed by the courts below were set aside---Case was remanded to the Trial Court with the direction to implead the applicants as plaintiffs to the present suit and also to the extent of their claim as to their share in the property of deceased son of plaintiff---Impleadment of applicants to the plaint as plaintiffs would not affect the claim of plaintiff of the suit as to her share in the suit property---Revision was allowed subject to payment of costs of Rs. 10,000/- subject to conditions elaborated.

Hidayat Ali for Petitioners.

Shoukat Ali for Respondents Nos. 1 and 2.

Mohammad Nazir for Respondent No.3.

Wazir Walayat Ali and Mohammad Ali for Respondent No.7.

YLR 2016 Gilgit Baltistan Chief Court 880 #

2016 Y L R 880

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Mohammad, JJ

BABA JAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.40 of 2014, decided on 9th April, 2015.

(a) 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, common object, mischief, 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---Conclusion of Trial Court, was completely contradictory to the prosecution evidence---Evidences of prosecution, referred by the Trial Court, were not available in the file, which would mean that said evidence had not been produced by the prosecution---Trial Court having not relied on the whole statement of the prosecution witnesses, views and findings of the Trial Court, were against the principle of acceptance of the 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 co-accused; and had discarded the other part of the statement of prosecution witnesses regarding some accused---Such view of the Trial Court was without any explanation---Trial Court had convicted accused, though none of the prosecution witnesses charged the accused for any of the offences---In a case of rioting by a mob, every member of the mob was responsible for the occurrence, while in the present case Trial Court had accepted selection of accused for trial---In such a case, to sustain a conviction for rioting, it was essential for prosecution, first to prove the existence of an unlawful assembly with a common object, and then to prove that one or more members of the assembly used violence or force in furtherance of the common object---Prosecution evidence, was silent about the common object of the alleged rioters---None of the prosecution witnesses had stated about any kind of common object of the rioters and had not charged accused for any of the offences---Prosecution witnesses only stated about mere presence of accused in the mob---Mere presence of accused at the place of occurrence, was never sufficient to prove that he shared the common object of unlawful assembly---Prosecution witnesses had not stated that accused did any act which amounted to offence under any of the said sections of law---Evidence of prosecution did not show any circumstance, attracting offences under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and offence of Ss.6/7 of Anti-Terrorism Act, 1997---Trial Court was not justified to try accused for said offences---Circumstances of the case stated by the prosecution witness, constituted a case under offences under Ss.147, 148, 149, 427, 436, 353 & 448, P.P.C.; and that also without any concrete evidence against accused---Prosecution evidence hardly showed presence of accused at the place of occurrence, but without showing any role of accused in commission of alleged occurrence---Accepting or reading the confessional statement of accused recorded under S.21-H of Anti-Terrorism Act, 1997, was not admissible, and irrelevant against accused in circumstances---Prosecution had levelled allegation of looting the weapons and cartridges from 'Malkhana' of Police Station, while no evidence showed that Police had stored any weapons in said Malkhana---Medical report was not against accused---Impugned order of conviction and sentence passed by the Trial Court being bad in the eye of law and merits, was set aside, in circumstances.

(b) Criminal trial---

----Circumstantial evidence---Scope---Once it was established that reading of ocular evidence against accused was not only insufficient, but was wrong also, in such circumstances, circumstantial evidence was not only of no worth, but also was irrelevant against accused; because circumstantial evidence was corroboratory of evidence---Such evidence could hardly corroborate the ocular evidence.

Ehsan Ali and Amjad Hussain for Appellant.

Deputy Advocate General for Respondent.

Date of hearing: 9th April, 2015.

2016 Y L R 1570

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

MUHAMMAD ASHRAF KHAN---Petitioner

Versus

CHIEF SECRETARY/REVENUE COMMISSIONER, G.B. GILGIT and 3 others---Respondents

C. Rev. 105 of 2015, decided on 15th March, 2016.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment in plaint---Scope---Suit for declaration was dismissed against which appeal was filed wherein application for amendment in the plaint was moved which was dismissed---Validity---Plaintiff intended to add some facts relevant to the dispute which were helpful for proper adjudication of the matter---Nature and shape of the pleadings would not change if required amendments were allowed---Defendants would also be entitled to amend the written statement as per amended plaint---Filing of an application for amendment at the belated stage was no valid ground for its rejection---Amendment could be introduced at any stage of proceedings provided that same was necessary for proper disposal of the case---Impugned order passed by the Appellate Court was set aside and application for amendment of plaint was accepted with cost of Rs.10,000/---Judgment and decree passed by the Trial Court were also set aside in circumstances and case was remanded to Trial Court for decision afresh after taking amended plaint and written statement from the parties---Revision was allowed accordingly.

Latif Shah for Petitioner.

A.G. for Respondents Nos. 1 to 3.

Munir Ahmad and Imtiaz Hussain for Respondent No.4.

Date of hearing: 25th February, 2016.

YLR 2016 Gilgit Baltistan Chief Court 1639 #

2016 Y L R 1639

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

AHSANULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No. 33 of 2016, decided on 8th April, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 345(2)---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Bail, grant of---Further inquiry---Offence under S.302, P.P.C., was compoundable as per S.345(2), Cr.P.C.---Statement of the father of the deceased was recorded by the Trial Court in which he stated that he had forgiven the accused; and did not want to prosecute him any further---Mother of the deceased, also appeared in the court and got recorded her statement in support of compromise---Victim whose life was attempted and had not entered into compromise had not received any injury; question of application of S.324, P.P.C., and quantum of sentence, if the offence was ultimately proved, would require further inquiry---Accused, was admitted to bail, in circumstances.

Amjad Hussain for Petitioner.

Dy. A.G. for the State.

Date of hearing: 8th April, 2016.

YLR 2016 Gilgit Baltistan Chief Court 1683 #

2016 Y L R 1683

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

TAHIR ALI TAHIR---Petitioner

Versus

The STATE---Respondent

W.P. No.161 of 2015, decided on 5th April, 2016.

Penal Code (XLV of 1860)---

----Ss. 124-A & 189---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 25 & 32---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71(2)---Writ petition---Sedition, threat of injury to public servant, act of terrorism---Transfer of case---Prima facie, an offence under S.124-A, P.P.C., was made out, which offence was triable by a court of session exclusively and not by the special court---Appeal was provided under S.25 of Anti-Terrorism Act, 1997 and no remedy was available against an interim order passed by Anti-Terrorism Court---High Court was under legal obligation to interpret the law; and give effect to any provision of law; and provide justice to the needy people by exercising their constitutional powers; and those powers could not be curtailed on one or the other pretext---High Court, had the jurisdiction to grant any appropriate relief to any party by converting one type of proceeding, provided the jurisdiction of the court would remain intact---Section 32 of Anti-Terrorism Act, 1997, though had an overriding effect, and only an appeal was provided under S.25 of Anti-Terrorism Act, 1997, Chief Court had ample powers under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 to grant relief to the parties, when the court was of the view that dictates of justice so demanded---By accepting writ petition order/judgment passed by Anti-Terrorism Court, was set aside, and case was transferred from Anti-Terrorism Court to the Court of Session for trial---Trial Court would dispose of the case on merits.

Ehsan Ali for Petitioner.

Deputy Advocate General for the State.

Date of hearing: 5th April, 2016.

2016 Y L R 2490

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

ZAMINDARAN-E-SAMIGAL BALA through Representatives and 7 others---Petitioners

Versus

ZAMINDARAN-E-DODOSHAL through Representatives---Respondent

Civil Misc. No.357 of 2014, decided on 30th November, 2015.

Civil Procedure Code (V of 1908)---

---O, XXXIX, Rr. 1 & 2---Land Acquisition Act (I of 1894), S. 18---Reference to ' court---Deposit of compensation amount in the court---Temporary injunction, grant of---Scope--Referee Court ordered for deposit of compensation amount in the court--Validity---Petitioners were required to establish prima facie case coupled with balance of inconvenience and irreparable loss in case petition for temporary injunction was not accepted---Petitioners had sought suspension of impugned order till the disposal of present appeal---Referee Court did nothing except the direction to deposit the subject amount in the court---Petitioners would not face any irreparable loss or any kind of inconvenience if they deposit the amount in question in the court---Referee Court had not directed for any payment of subject amount to any person---Impugned order had been passed as an administrative order---No temporary injunction was passed by the Trial Court on the application of either of the parties---Direction for deposit of subject amount was within the discretion of Referee Court---Amount required to be deposited in the court was disputed between the parties---Question for determination was the question of title of the parties as well as apportionment of the said amount---Petition for suspension of impugned order was based on mala fide on the part of petitioners---Referee Court would be free to go ahead with the execution or operation of impugned order---Petition for temporary injunction was dismissed in circumstances.

1994 CLC 987 and PLD 1967 Pesh. 191 distinguished.

2010 YLR 330 rel.

Mohammad Issa and Malik Shafqat Wali for Appellants.

Mohammad Hussain Shehzad and Johar Ali for Respondents.

Raja Muhammad Hanif Khan for Petitioners (in Writ Petitions Nos. 2015 and 2062 of 2012).

Nemo for Respondents Nos. 1 to 4 (in Writ Petition No.2015 of 2012).

Muhammad Yaqoob Khan Mughal and Khurshid Anwar Mughal for Respondents Nos. 5 and 6 (in Writ Petition No.2015 of 2012).

Nemo for Respondents (in Writ Petition No.2062 of 2012).

Muhammad Yaqoob Khan Mughal and Khurshid Anwar Mughal for Petitioner (in Writ Petition No.175 of 2012).

Nemo for Respondents Nos. 1 to 5 (in Writ Petition No.175 of 2012).

Raja Muhammad Hanif Khan for Respondents Nos. 6 to 12 (in Writ Petition No.175 of 2012).

YLR 2016 HIGH COURT AZAD KASHMIR 332 #

2016 Y L R 332

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Raja SAJJAD AHMED KHAN---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 6 others---Respondents

Writ Petition No.2010 of 2013, decided on 6th March, 2015.

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

----Ss. 79 (3) & 18---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---"Aggrieved person"---Scope---Elections of Local Councils---Right of vote---Fundamental right---When Local Council was suspended, fresh election of the same should be held within a period of ninety days after expiry of period of suspension---Government could not suspend local bodies and appoint administrators for an indefinite period---Government was bound to make necessary arrangements for elections of Local Councils in the country to ensure that elections were conducted honestly, justly, fairly and without corrupt practices---Right to be governed by chooser representatives through free will of the member was constitutional reality---Life of representative of democracy could not be envisaged without freedom to exercise political choice, the right of choice of political leader and elect the government of his/her choice---Every person enrolled as voter on the electoral roll should have a right to vote---Right to vote was a fundamental right of every person---Holding of a free, fair and transparent Local Council elections was a command of law---Petitioner who was an advocate had filed present writ petition for enforcement of law, he was a state subject and presumed to be enrolled as a voter, hence he should have the right of vote---Petitioner, therefore, was an "aggrieved person"---Government was directed to appoint Election Commissioner (Local Bodies) for organization, conduct and supervision of local bodies elections and hold local bodies elections throughout the country within specified period---Writ petition was accepted in circumstances.

President Balochistan High Court Bar Association v. Federation of Pakistan and others 2014 SCMR 1 ref.

Arshad Mehmood v. Commissioner/Delimitation Authority Gujranwala and others PLD 2014 Lah. 221; Imran Khan and others v. Election Commission of Pakistan and others PLD 2013 SC 120 and Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council and others PLD 2013 HC (AJ&K) 34 rel.

Petitioner in person.

Sardar Abdul Sammie Khan for Respondents.

YLR 2016 HIGH COURT AZAD KASHMIR 709 #

2016 Y L R 709

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MOHAMMAD ZAMAN and another---Appellants

Versus

MOHAMMAD KAREEM and 17 others---Respondents

Civil Appeal No.660 of 2009, decided on 30th September, 2015.

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

----S. 42---Suit for declaration---Co-sharer---Family partition---Scope---Contention of plaintiff was that defendant was co-sharer in the suit land who illegally and without partition wanted to snatch the possession of the said land---Suit was dismissed concurrently---Validity---Suit land was in the exclusive possession of defendant---Vendor/defendant had not alienated the land in excess of his share out of total suit property---Possession of vendor/defendant was on the specific land due to family arrangement---Family division even if admitted did not extinguish the title of other co-sharers---Possession and sale by the co-sharer would debar other co-sharers to get back such possession or challenge the instrument of alienation/sale---Such family arrangement would be subject to adjustment at the time of partition as would have been the case if vendor had not sold the land---No mis-reading or non-reading of evidence or misconstruction of law had been pointed out in the impugned judgments and decrees passed by the courts below---Appeal was dismissed in circumstances.

PLD 1978 SC (AJ&K) 75 and 2007 SCR 363 ref.

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

----S. 100---Second appeal---Scope---Concurrent findings recorded by the courts below could not be interfered with in second appeal unless there was some mis-reading or non-reading of evidence or some misconstruction of lay.

Raja Khalid Mehmood Khan for Appellants.

Babar Ali Khan for Respondents.

YLR 2016 HIGH COURT AZAD KASHMIR 760 #

2016 Y L R 760

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Mst. HASSAN JAN and 8 others---Appellants

Versus

AKHTAR JAN and 19 others---Respondents

Civil Appeal No.45 of 2003, decided on 21st October, 2015.

Gift---

----Gift deed---Inheritance---Limitation---Sale deed---Subsequent transaction---Scope---Both plaintiffs and defendants instituted suits against each other---Contention of plaintiffs was that they were owners of suit property and gift deed in favour of defendants was fictitious---Suit of plaintiffs was dismissed whereas that of defendants was decreed---Validity---Plaintiffs were in possession of the suit property---Gift deed in favour of defendants was without delivery of possession---Subsequent transaction could never be preferred over the existing one---Suit of defendants was time barred---Both the courts below had committed mis-reading and non-reading of evidence while dismissing suit of plaintiffs---Impugned gift deed was liable to be cancelled to the extent of property owned by the plaintiffs---Impugned judgments and decrees passed by both the courts below were set aside---Suit filed by the plaintiffs was decreed whereas that of defendants was dismissed and mutation in favour of plaintiffs was restored---Appeal was allowed.

2007 SCR 310; 1999 CLC 828; 2001 YLR 1299; 2005 SCR 67; 2001 MLD 184 and PLD 1975 SC 624 distinguished.

Raja Mohammad Aziz Kayani for Appellants.

Sardar Masood Ibrahim for Respondents.

YLR 2016 HIGH COURT AZAD KASHMIR 1469 #

2016 Y L R 1469

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

SHAFAQAT HUSSAIN and another---Petitioners

Versus

The STATE through Advocate General AJ&K Muzaffarabad---Respondent

Cr. Revision Petition No.21 of 2016, decided on 26th February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.436, 337-H(2), 427, 147, 148, 149 & 452---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Ordinance, 1979, S.14---Azad Jammu and Kashmir Anti-Terrorism Act, 2014, S.6-D---Mischief by fire etc., hurt by rash or negligent act, mischief causing damiah, rioting, common object, house-trespass, act of terrorism---Bail, grant of---Further inquiry---Bird eye view of the record, had to be taken into consideration at bail stage and deeper appreciation of evidence, was neither permissible nor desirable---Courts were not expected to pass a bail order in vacuum---Accused in the present case, were not nominated in the FIR, which created doubt in the prosecution story to the extent of accused persons; and further inquiry was required to prove their guilt---In case of non-mentioning the names of accused in the FIR court could extend concession of bail to such like accused---Co-accused who was nominated in the FIR was granted bail by the Trial Court---Rule of consistency demanded that accused persons, could also be extended concession of bail---Matter, was yet to be evaluated by the Trial Court after recording evidence---Police record did not show that accused persons were hardened, desperate, dangerous criminals; and were connected with the alleged offences---Challan had been submitted before the competent court of jurisdiction; and they were no more required for further investigation---Bail could not be withheld as punishment, if otherwise accused was entitled for the same; and no body should remain in criminal prison for indefinite period---Accused were granted bail, in circumstances.

Farrukh v. The State and another 2007 SCR 79; Muhammad Riaz v. Muhammad Sabir and 12 others 2011 SCR 126; Raja Muhammad Farid Khan v. Raja Sheraz and 2 others 2015 SCR 465; Imam Bux alias Amoo and another v. State PLD 2012 Sindh 212; Azizullah Niazi v. The State 2012 YLR (Sindh) 1071; Liaquat Hussain v. The State and another 2015 SCR 441 and Muhammad Arif v. Babar and another 2015 PCr.LJ 134 ref.

Abdul Hameed Khan Shahid for Petitioners.

Ch. Tariq Alam, Asst. A.G. for the State.

Sardar Karamdad Khan for the Complainant.

YLR 2016 HIGH COURT AZAD KASHMIR 1604 #

2016 Y L R 1604

[High Court (AJK)]

Before Azhar Saleem Babar, J

JAVAID AZIZ---Appellant

Versus

NUSRAT and 2 others---Respondents

Civil Appeal No.197 of 2013, decided on 12th February, 2016.

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

----S. 12---Civil Procedure Code (V of 1908), O. XXIII, R. 3--- Specific performance of contract---Declaratory decree in a suit for specific performance of agreement to sell---Scope---Compromise decree, setting aside of--- Application for setting aside decree was allowed by the Trial Court---Contention of appellant was that compromise decree could not be granted on the basis of agreement to sell--- Validity---Agreement to sell was not a title document rather it was an instrument for obtaining a title document---Decree in a suit for specific performance of contract could be issued directing the defendant to execute sale deed in favour of plaintiff or court might direct for registration of sale deed through any of its officials---Compromise decree between the parties was not issued on the basis of suit for specific performance of contract rather decree was passed on the basis of compromise---Such decree was lawful provided it fulfilled the requirements of O. XXIII, R. 3, C. P. C---Compromise between the parties might be of whole suit or a part thereof and might even include the matter that did not relate to the suit---Suit was validly decreed on the basis of compromise---Non-impleadment of a party did not constitute the element of fraud---Element of misrepresentation was not attracted in the present case---Application for setting aside of decree was not competent in circumstances---Impugned judgment passed by the Trial Court was set aside---Compromise decree was maintained---Appeal was allowed in circumstances.

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

----Ss. 42 & 12---Declaratory decree in a suit for specific performance of contract---Scope---Declaratory decree in a suit for specific performance of contract could not be issued.

2006 SCR 183; 2006 SCR 92; PLD 2006 SC (AJ&K) 19 = 2006 CLC 1872; 2001 CLC 1502 and 2012 MLD 1440 rel.

----O. XXIII, R. 3---Compromise of suit---Scope---Compromise between the parties might be of whole suit or a part thereof and might even include the matter that did not relate to the suit.

AIR 1932 Bom. 466 and AIR 1931 Bom. 295 rel.

(d) Co-sharer---

----Co-sharer was entitled to alienate his/her share from a specific survey number provided quantity of land of survey number did not exceed his/her overall share in the khewat.

2002 CLC 372 rel.

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

----S. 12(2)---Decree, setting aside of---Ingredients---Ingredients to set aside a decree, judgment and order were fraud, misrepresentation and want of jurisdiction.

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

----Ss. 4 & 6---Right of prior purchase---Scope---If preferential right of a pre-emptor had been affected by a decree then suit under Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) could be filed against such a decree.

K.D. Khan Tareen for Appellant.

Syed Nazir Hussain Shah Kazmi for Respondents Nos. 1 and 2.

Shabir Hussain Mughal for Respondent No.3.

Date of hearing: 12th February, 2016.

YLR 2016 HIGH COURT AZAD KASHMIR 1718 #

2016 Y L R 1718

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Syed ABBAS ALI BUKHARI and 8 others---Petitioners

Versus

TARIQ MASOOD and 15 others---Respondents

Multiple Application No.1 of 2006, decided on 19th February, 2016.

Pakistan Administration of Evacuee Property Act (XII of 1957)---

----Ss.18-B & 43(6)---Allotment of land---Contention of petitioners was that land in question was allotted in favour of respondent who was also included in the family of his father---Validity---Proprietary Rights Transfer Orders had been issued after due process---Petitioners could challenge vires of impugned allotments and Proprietary Rights Transfer Orders (PRTO) by filing an application before the Custodian of Evacuee Property---Petitioners could file review petition before the Custodian to challenge the same---Petitioners had filed present multiple application to frustrate the judgments of superior courts with un-clean hands which was not maintainable---Multiple Application was dismissed in circum-stances.

Tariq Mehmood and 3 others v. Khalid Sharif and 9 others 2007 SCR 281 distinguished.

Syed Riaz Hussain Naqvi for Petitioners.

Asad Khan for Respondents Nos. 1 and 2.

Sajid Hussain Abbasi for Respondents Nos. 3 to 8 and 16.

Gohar Altaf for Respondents Nos. 9 to 15.

YLR 2016 HIGH COURT AZAD KASHMIR 1836 #

2016 Y L R 1836

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

SADAQ MEHMOOD---Petitioner

Versus

JUDGE OF FAMILY COURT NO.1 and another---Respondents

Writ Petition No.246 of 2014, decided on 28th October, 2015.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched, Ss. 8, 9 & 14---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Maintainability---Suit for dissolution of marriage---Ex-parte proceedings, setting aside of---Appearance and filing of written statement by the defendant---Limitation---Interim order--- Appeal--- Discretion, exercise of---Scope---Husband filed application for setting aside ex-parte proceeding but same was dismissed---Validity---Defendant could appear and file written statement within fifteen days of service---Proclamation was made on 21-09-2013 and defendant was authorized to appear and file written statement till 06-10-2013---Any action against the defendant before the expiry of time limit was not warranted under the law---Ex-parte proceedings were not permissible in the present case before 06-10-2013---Application filed by the defendant on 22-10-2013 for setting aside ex-parte proceedings was within time---Impugned order passed by the Family Court was without any legal force---Said order was interim one against which neither appeal nor revision would lie---Discretion exercised by the Family Court dismissing the application for setting aside ex-parte proceedings was not in accordance with law and same could be looked into by exercising constitutional power---Discretionary orders were not immune from judicial review---Writ petition against such interim order was competent in circumstances---Ex-parte order passed by the Family Court was set aside---Defendant was directed to file written statement before the Family Court within fifteen days---Family Court was directed to decide the case on merits after hearing the parties within the stipulated period first deciding the territorial jurisdiction---Writ petition was allowed in circumstances.

Rafhat Rashid and 7 others v. Ghulam Sarwar 2000 YLR 2523; Mohsin Shah v. Qaseema Wahid 1995 MLD 1032; Mst. Shereen Masood v. Malik Naseem Hassan, Judge Family Court, Lahore and another 1985 CLC 2758 and Mst. Shahnaz Bibi and 2 others v. Munawar Din 2005 SCR 409 rel.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 14---Appeal against interim order---Scope---No appeal or revision would lie against an interim order passed by the Family Court.

----S. 44---Writ jurisdiction of High Court---Scope---Discretionary orders were not immune from judicial review.

Amjad Siddique for Petitioner.

Miss Kousar Awan for Respondent No.2.

YLR 2016 HIGH COURT AZAD KASHMIR 2031 #

2016 Y L R 2031

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

MUHAMMAD RAMZAN DATT---Appellant

Versus

COLLECTOR LAND ACQUISITION, MANGLA DAM RAISING PROJECT, MIRPUR and 3 others---Respondents

Civil Appeal No.324 of 2008, decided on 30th March, 2016.

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

----S. 18---Reference to court---Enhancement of compensation---Market value---Determination of---Classification of land---Discrimination---Scope---Land under reference was used for commercial purpose---Un-rebuttal evidence was sufficient proof of the case---Valuation table given by the District Collector could be considered for determination of market value of land---Supreme Court had fixed the compensation amount of the land acquired through the same award in the vicinity for specified amount per kanal---Present land owners could not be discriminated against under the rule of consistency and principle of equality---Referee Judge had wrongly fixed the compensation amount less than its market value---Classification of land with the use of chemical fertilizer had become insignificant---Amount of compensation of the land under reference was fixed accordingly along with 15% compulsory acquisition charges irrespective of its kind---Judgment and decree passed by the Referee Judge were set aside and award was modified---Appeal was allowed in circumstances.

2015 SCR 712 ref.

2013 YLR 969 and Murawat Khan v. Azad Govt. and others 2013 SCR 1224 rel.

(b) Words and phrases---

----'Hael'---Meaning.

----'Maira Awal'---Meaning.

Appellant in person.

Muhammad Zakria Bhatti and Sardar Sidra Latif for Respondents.

YLR 2016 HIGH COURT AZAD KASHMIR 2163 #

2016 Y L R 2163

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C J, M. Tabbasum Aftab Alvi, Azhar Saleem Babar and Muhammad Sheraz Kiani, JJ

MUHAMMAD AKHTAR and 183 others---Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, New Civil Secretariat, Muzafarabad and 7 others---Respondents

Writ Petition No.303 of 2016, decided on 31st March, 2016.

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

----S. 44---Memorandum No. Admin/ CS-2(6)/2015, dated 30.11.2015---Notification No. Secretariat/E & SE/ 24500-24510/ 2015, dated 26.11.2015---Notification No. SHE/1st/7911-30/2015, dated 26.11.2015---Writ petition--- Maintainability---'Education Package', validity of---Locus standi, absence of---'Aggrieved person'---Definition---Public interest litigation/pro bono publico---Scope---Question before the High Court was whether the petitioners had the locus standi to challenge the cabinet decision as well as notifications issued in pursuance thereof for upgradition of educational institutions---'Aggrieved person' was although not to necessarily qualify that right in strict sense yet the person must have, at least, shown that he had some interest that the authorities should have acted in accordance with law---In presence of well-organized and fully functional department, no outsider or stranger had the locus standi to approach the Court for protection of the department's interests---Court could not assume the function of policy making or determine the priority of the various development projects in the State, as the same was in the exclusive domain of the Executive/Government---Court was to refrain from interfering with the policies launched by the public authorities for the smooth working of the public institutions, until and unless the same were proved to have been repugnant to the Fundamental Rights of the citizens of the State---Court had to guard against frivolous petition, in the garb of public interest litigation---Matters were brought before the Court which were neither of public importance nor relatable to the enforcement of Fundamental Rights or public duty---Public interest litigation was a weapon which had to be used with great care and circumspection and the Judiciary had to be extremely careful to see behind the beautiful veil of public interest, an ugly private malice, vested interest, and/or publicity seeking was not lurking---High Court, however, ordered the authorities that in future, for the purpose of up-gradation of institutions in the education sector, there would be a high level committee, who would recommend the up-gradation of the institution on need basis in order to eliminate the impression of political involvement and that motivated decisions or some policy or guidelines would be framed in that regard---Writ petition was dismissed in circumstances.

Rehmatullah Khan and 3 others v. Azad Govt. of State of Jammu and Kashmir through Chief Secretary Muzaffarabad and 13 others PLJ 2015 SC AJK 64; Syed Qasim Gillani v. University of AJ&K and 5 others 2015 SCR 123; Fazal Hussain v. Fatima Bibi and 2 others 2015 SCR 1384; Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate and others PLD 2012 SC (AJ&K) 42 and Abid Akram v. Danish Zaib and 5 others 2015 SCR 732 ref.

Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat Sector F-5/2 Islamabad and others PLD 2013 AJK 34; Raja Tahir Majeed Khan and 7 others v. Azad Govt. and 6 others 2014 SCR 272; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167; Raja Iqbal Rasheed Minhas, Advocate v. AJK Council and 3 others PLD 2002 SC (AJ&K) 1; Noor-ul-Amin, Bar-at-law v. The Govt. of The State of Azad Jammu and Kashmir and 2 others PLD 1987 AJ&K 88; Dr. Akhter Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Ashok Kumar Pandey v. State of West Bengal AIR 2004 SC 280 rel.

Raja Muhammad Hanif Khan for Petitioners.

Barrister Humayun Nawaz Khan and Ch. Shoukat Aziz, A.A.G. for Respondents.

Islamabad

YLR 2016 ISLAMABAD 405 #

2016 Y L R 405

[Islamabad]

Before Aamer Farooq, J

KHUSHNOOD AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and others---Respondents

Writ Petition No.1090 of 2015, decided on 15th July, 2015.

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

----Ss. 5, 17 & 28---Ejectment of tenant---Lease agreement---Non-compliance of provision of Islamabad Rent Restriction Ordinance, 2001---Effect---Contentions of tenant were that lease agreement was required to be in writing, that there was no written agreement therefore Rent Controller did not have jurisdiction to decide the controversy---Eviction petition was accepted concurrently---Validity---Every lease agreement had to be in writing---Rent Controller had to invoke penalty where any provision of Islamabad Rent Restriction Ordinance, 2001 had been violated---Section 5 of Islamabad Rent Restriction Ordinance, 2001 was mandatory in nature---Scope and purpose of S. 28 of Islamabad Rent Restriction Ordinance, 2001 was to curtail frivolous denial vis-à-vis relationship of landlord and tenant---Section 28 be invoked at the earliest while proceedings were pending before the Rent Controller---Landlord had not complied with S.28 of the Ordinance---Mere tendering a document in evidence did not prove the same---Party relying upon the document had to prove the same in accordance with law---Judgments of both the courts below were set aside by the High Court and matter was remanded to Rent Controller to ensure compliance of S. 28 of Islamabad Rent Restriction Ordinance, 2001 and decide the case afresh on merits---Constitutional petition was accepted in circumstances.

Niaz Mohammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Barkatullah Khan v. Mirza Mohammad Hasan PLD 1986 Kar. 309; Shakeel Ahmed and another v. Mohammad Tariq Farogh and others 2010 SCMR 1925; Muneer Khan and another v. Uzma Ufaq and 3 others 2011 CLC 846; Javaid Ahmed v. Mohammad Imran Malik PLD 2011 Isl. 30; M/s Zakiuddin Ahmad Siddiqui and another v. Additional District Judge, Islamabad and 2 others 2011 CLC 652; Mohammad Taj v. Mohammad Younis Khilji and another 2008 CLC 1666; Dr. Raja Mohammad Kamran v. Shaheer Constructions through Rao Naveed Aftab and 3 others 2013 MLD 118; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; Amjad Iqbal v. Haji Sabir Hussain and 4 others 2009 CLC 289 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 ref.

Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others PLD 2013 SC 775; Hakim Ali v. Mohammad Salim and another 1992 SCMR 46; Moulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001; Mohammad Rafiq v. Messrs HBL 1994 SCMR 1012; Almas Ahmed Fiaz v. Secretary, Government of Punjab 2007 PLC 64; PLD 1971 SC 124; PLD 1965 SC 90 and Amanullah v. The State PLD 2003 Quetta 11 rel.

(b) Administration of justice---

----Question of law could be raised at any stage.

Raja Muhammad Aleem Khan Abbasi and Hamood-ur-Rehman Awan for Petitioners.

Tariq Mehmood Jehangiri and Farrukh Ahmed for Respondents.

Date of hearing: 26th June, 2015.

YLR 2016 ISLAMABAD 742 #

2016 Y L R 742

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

ZAHOOR AHMAD---Petitioner

Versus

IRFAN NAZIR---Respondent

Civil Revision No.467 of 2015, decided on 18th December, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit on the basis of negotiable instruments---Application for leave to appear and defend the suit---Scope---Defendant filed application for leave to appear and defend the suit which was dismissed by the Trial Court---Validity---Two distinct versions one by the plaintiff and other by the defendant were on record---Divergent stands required probe and same could not be decided without affording opportunity to both the sides to adduce evidence---Impugned order was short of reasoning and same could not be termed as a speaking order---Impugned order was set aside and leave to appear and defend the suit was granted subject to furnishing Bank guarantee or surety equal to the disputed amount to the satisfaction of Trial Court---Trial Court was directed to conclude the trial within two months---Revision was allowed in circumstances.

Imran Feroze Malik for Petitioner.

Irfan Nazir Respondent in person.

YLR 2016 ISLAMABAD 916 #

2016 Y L R 916

[Islamabad]

Before Aamer Farooq, J

PAKISTAN FOOTBALL FEDERATION and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.2372 of 2015, decided on 14th January, 2016.

Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S. 3 & Pre-amble---Quashing of inquiry---Football Federation, affairs of---Dispute was between two parties claiming to be representatives of Pakistan Football Federation affiliated with FIFA---Federal Investigation Agency started inquiry on the complaint filed by respondents and accounts of the Federation were frozen---Validity---Federation was a non-governmental entity and had no direct or indirect control over it by Federal Government---Employees of Federation were not "public servants" as defined in Pakistan Penal Code, 1860---Controversy was between two sets of office bearers who claimed to be President and Secretary---Parameters for initiation of inquiry/ investigation by Federal Investigation Agency were not met with, therefore, inquiry initiated was without jurisdiction and so was the act of freezing of accounts---Dispute between parties was of the nature in which Federal Investigation Agency had no jurisdiction or authority---High Court declared inquiry and all steps taken by Federal Investigation Agency, to be without lawful authority and of no legal effect---Constitutional petition was allowed in circumstances.

Pakistan Engineering Company Limited v. DG FIA 2011 YLR 337; The State v. Muhammad Amin Haroon 2010 PCr.LJ 518; Mian Hamza Shahbaz Sharif v. F.O.P. 1999 PCr.LJ 1584; Shahbaz ud Din Chaudhry v. The Director FIA 1992 YLR 678; Kamran Iqbal v. DG FIA and others PLD 2009 Lah. 137; Adam G Insurance Company v. Assistant Director Economic Enquiry Wing 1989 PCr.LJ 921; Muhammad Irshad Khan v. Chairman NAB 2007 PCr.LJ 1957 and Chairman NAB and others v. Muhammad Arshad Khan 2008 SCMR 1012 ref.

Muhammad Afzal Khan for Petitioners.

Syed Hasnain Ibrahim Kazmi

D.A.G. and Qaiser Masud, Addl. Director, FIA for Respondents.

Date of hearing: 22nd December, 2015.

YLR 2016 ISLAMABAD 1497 #

2016 Y L R 1497

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD SAJID AMIN---Petitioner

Versus

RIZWAN AHMED BHATTI and another---Respondents

C.R. No.231 of 2014, decided on 28th March, 2016.

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

----S. 12 (2) & O. XXIII, R. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Consent decree, setting aside of---Contention of applicant was that alleged decree had been obtained by misrepresentation, fraud and concealment of facts---Application for setting aside of said decree was dismissed by the Trial Court---Validity---Application for compromise of suit was signed and filed by the applicant---Said application was also supported by the affidavit sworn by the applicant---Statement of applicant was also recorded by the Trial Court---Trial Court had a duty and not discretion to record the lawful compromise between the parties---Applicant had moved said application under O. XXIII, R. 3, C.P.C. and was free to incorporate all the terms and conditions of compromise/understanding arrived at between the parties---Trial Court had simply allowed the applicant's prayer in his said application and was not bound to frame issues in the case---Impugned decree was in the nature of consent decree---Applicant was estopped from wriggling from his own statement---Revision was dismissed in circumstances.

Pakistan Industrial Credit and Investment Corporation v. Khairpur Sugar Mills Ltd. 2012 CLD 1192; Gamma Silk Milk Pvt. Ltd v. Abdul Salam 2006 CLC 1113; Muhammad Nawaz Khan v. Muhammad Khan 2002 SCMR 2003 and Zainab v. Allah Wasaya 2014 CLC 1014 ref.

Nasira Khatoon v. Aisha Bai 2003 SCMR 1050; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531; Amiran Bibi v. Muhammad Ramzan 1999 SCMR 1334; Muhammad Azeem v. National Bank of Pakistan 2001 MLD 135; Nazir Ahmed v. Muhammad Sharif 2001 SCMR 46; Barkat Ali v. Nadir Khan 2004 YLR 81; Shabana Irfan v. Muhammad Shafi Khan 2009 SCMR 40; Imam Din v. Siftan Bibi 2010 YLR 2825; Muhammad Sharif v. Ghulam Ali 2006 YLR 2909; Muhammad Yousaf v. Lal Din 2006 YLR 677; Saeed Iqbal v. Shabbir Ahmad 2008 YLR 2142; Muhammad Nazir v. Muhammad Arif 2006 MLD 187 and Qabul Khan v. Shah Nawaz 1991 SCMR 1287 rel.

(b) Maxim---

---"Volenti non fit injuria"---Meaning.

Muhammad Shakeel Abbasi for Petitioner.

Abdul Rafay for Respondent No.1.

Malik Mazhar Javed for Respondent No.2.

Date of hearing: 24th March, 2016.

YLR 2016 ISLAMABAD 1538 #

2016 Y L R 1538

[Islamabad]

Before Miangul Hassan Aurangzeb, J

NAJEEB ULLAH KHAN and another---Petitioners

Versus

Mst. HAMEEDA CHAUDHRY and others---Respondents

W.P. No.711 of 2016, decided on 21st March, 2016.

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

----S. 17---Ejectment of tenant---Non-deposit of arrears of rent---Defence, striking off---Scope---Rent Controller directed the tenant to deposit the arrears of rent which was not complied with---Defence of tenant was struck off---Validity---Direction of Rent Controller had to be complied with---Tenant failed to comply with the direction of Rent Controller and Rent Controller was left with no option but to pass eviction order of tenant---Order of Rent Controller to deposit arrears of rent was in accordance with law---Nothing was on record that default to deposit rent within the time fixed by the Rent Controller was unavoidable or beyond the control of tenant---Constitutional petition was dismissed in circumstances.

Wasal Khan and others v. Dr. Niaz Ali Khan 2016 SCMR 40; Messrs Uzma Construction Co. v. Navid H. Malik 2015 SCMR 642 and Hashim Khan v. Ghulam Nabi and 7 others 1973 SCMR 112 ref.

Mushtaq Ahmad Kiani v. Bilal Umair and others 2009 SCMR 1008; M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453; Bilal Abid v. District Judge (West) Islamabad 2015 YLR 2405; Shamshad Ali v. Ghulam Muhammad Chaudhry 2009 CLC 52 and Major (R) Shakil-ud-Din Ahmad v. Addl. District Judge, Islamabad 2007 CLC 601 rel.

(b) Administration of justice---

----Law assists those who are vigilant about their rights and not those who sleep over them.

Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd Karachi 1999 SCMR 1326 and Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 rel.

Rana Abid Nazir Khan for Petitioners.

Malik Mumtaz Ahmad for Respondent No.1.

Date of hearing: 15th March, 2016.

YLR 2016 ISLAMABAD 1690 #

2016 Y L R 1690

[Islamabad]

Before Shaukat Aziz Siddiqui and Mohsin Akhtar Kayani, JJ

Mrs. NUSRAT KAUSAR GILLANI---Petitioner

Versus

AFTAB AHMED KHAN and another---Respondents

R.F.A. No.53 of 2013, decided on 8th March, 2016.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S. 55---Suit for specific performance of contract---Discretionary relief---Time as essence of contract---Scope---Nothing was on record that plaintiff made effort to show his readiness to pay the balance sale consideration to the defendant---Time was not essence of contract as certain obligations had to be performed before application of time clause which were imposed through agreement upon the seller/vendor---When requirements of transfer of property were completed the time which was essence would start---Plaintiff had failed to perform the agreement in accordance with its terms---Plaintiff had no cause of action to file the present suit as he had been estopped by his words and conduct---Plaintiff was not entitled for discretionary relief of specific performance---Impugned judgment and decree were set aside and suit was dismissed---Amount of earnest money which had been received by the defendant was ordered to be returned with double rate as agreed by the parties in the Trial Court within one month---Appeal was allowed in circumstances.

Adil Tiwana and others v. Shaukat Ullah Bangash 2015 SCMR 828; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286 and Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 rel.

Syed Pervez Zahoor, Abdul Waheed Siddiqui and Dr. Salah-ud-Din Mengal for Appellants.

Mudassar Hussain Malik for Respondent No.1.

Date of hearing: 25th February, 2016.

YLR 2016 ISLAMABAD 2063 #

2016 Y L R 2063

[Islamabad]

Before Mohsin Akhtar Kayani, J

Raja ARSHAD MAHMOOD---Petitioner

Versus

MATLOOB ELLAHI PARACHA and others---Respondents

Civil Revision No.65 of 2016, heard on 27th May, 2015.

Civil Procedure Code (V of 1908)---

----O. XXIII, Rr.1 & 2 & O.VII, R.11---Withdrawal of suit---Without seeking permission to file fresh suit---Plaintiff earlier filed a suit which was dismissed as withdrawn without seeking any permission to file a fresh suit---Trial Court declined to reject plaint and dismissed application filed by defendant on the ground that there existed factual controversy---Validity---Limitation was to run against plaintiff and withdrawal of earlier suit with or without permission in terms of O. XXIII, R.1, C.P.C., did not exempt him to seek permission and extend period of limitation as there was no concept of extension of limitation under law---Trial Court failed to appreciate law on the subject and misconstrued question of limitation, cause of action and had also ignored provision of O.II, R.2, C.P.C., by simply declaring that factual controversy existed among parties---High Court in exercise of revisional jurisdiction, had ample powers to correct any illegal exercise of jurisdiction or could also interfere in order which was without jurisdiction---High Court set aside order passed by Trial Court and suit was dismissed being barred by law---Revision was allowed in circumstances.

2013 SCMR 464; 2013 SCMR 1099 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

2010 SCMR 1507; 2002 SCMR 144; 1969 SCMR 933; 1970 SCMR 141; 2006 YLR 717; 1999 SCMR 1782; 2007 YLR 1540; 2005 YLR 756; 2004 MLD 943 and 2015 CLC 1423 ref.

Wajid Hussain Mughal for Petitioner.

Muhammad Rauf Chaudhary for Respondent No.1.

Niaz Ahmed Abbasi for Respondent No.2.

Date of hearing: 27th May, 2016.

YLR 2016 ISLAMABAD 2676 #

2016 Y L R 2676

[Islamabad]

Before Mohsin Akhtar Kayani, J

[Sindh]

Before Syed Saeeduddin Nasir, J.

ABDUL REHMAN alias SAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.746 of 2015, decided on 27th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), S.23(1-A)---Possessing unlicensed arms---Bail, grant of---Further inquiry---Accused, was not previously convicted, or was a hardened, desperate and dangerous criminal; mere registration of criminal cases against him, was no proof of his being habitual offender; unless he was found guilty after the trial---No private mashir of the recovery of the weapon from accused was on record---Final challan had been submitted by the prosecution with the Trial Court; and accused had been committed to judicial custody---Accused, in circumstances, was no more required by the prosecution for investigation---Lesser punishment under S.23(1)A of the Sindh Arms Act, 2013, had been left at the discretion of the court, and maximum punishment was imprisonment for 14 years---Since the lesser punishment was not 10 years in the case, offence against accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Case against accused being that of further inquiry he was admitted to bail, in circumstances.

Shahid Ali Laghari v. The State 2014 PCr.LJ 429; Moundar and others v. The State PLJ 1989 SC 1; Liaqat Ali alias Lakki v. The State 2008 PCr.LJ 1573 and Raja Muhammad Younus v. The State 2013 SCMR 669 ref.

Fazal-ur-Rahman for Applicant.

Ms. Seema Zaidi, A.P.G. for the State.

YLR 2016 KARACHI HIGH COURT SINDH 40 #

2016 Y L R 40

[Sindh]

Before Shahnawaz Tariq, J

MUKHTIAR AHMED---Applicant

Versus

The STATE---Respondent

Crl. Bail Appln. No.S-566 of 2013, decided on 17th June, 2015.

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

----S. 497(2)----Penal Code (XLV of 1860), Ss. 409, 420, 467, 463, 471 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, or by banker or by agent, cheating or dishonestly inducing delivery of property, forgery, forgery of valuable security, will, etc., using as genuine a forged cheque, common intention, criminal misconduct---Bail, refusal of---Accused a public servant, was alleged to have embezzled government funds causing heavy loss to government exchequer---Case not falling within prohibitory clause of S.497, Cr.P.C.---Accused could not claim bail as matter of right, and court could decline concession of bail if there existed recognized exceptional circumstances---Alleged (embezzled) amount had been admittedly misappropriated on account of advance payments in violation of prescribed procedure and rules---Offender, in case affecting society, should have been dealt with iron hands and in absence of any exceptional circumstances, concession of bail must not be extended merely on ground that maximum sentence of alleged offence was up to ten years---Deeper appreciation of evidence at bail stage was not permissible under law---Accused could not claim bail on rule of consistency, as co-accused had been granted bail not on merits---Accused failed to make out case for grant of bail on ground of further inquiry---Bail application was dismissed accordingly.

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

----S. 497----Bail---Case not falling under prohibitory clause of S.497, Cr.P.C.---Exception to general rule---Accused, in a case not falling within prohibitory clause of S. 497, Cr.P.C, cannot claim bail as matter of right, and court can decline concession of bail if there existed recognized exceptional circumstances.

----S. 497----Bail---Offences affecting society---Principles---Offender, in a case affecting society, should be dealt with iron hands and in absence of any exceptional circumstances, concession of bail must not be extended merely on ground that maximum sentence of alleged offence is up to ten years.

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

----S. 497--- Bail--- Appreciation of evidence---Deeper appreciation of evidence at bail stage is not permissible under law.

Imtiaz Ahmed and another v. The State PLD 1997 SC 545 ref.

Khalid Iqbal Memon for Applicant.

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

YLR 2016 KARACHI HIGH COURT SINDH 62 #

2016 Y L R 62

[Sindh]

Before Muhammad Ali Mazhar and Shoukat Ali M. Memon

SIKANDAR ALI LASHARI---Applicant

Versus

The STATE and another---Respondents

Criminal Revision Application No.D-240 of 2014, decided on 22nd June, 2015.

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

----Ss. 302, 114, 109, 34 & 29---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 21-H & 27-B---Criminal Procedure Code (V of 1898), Ss.265-C, 161, 164 & 173---Qanun-e-Shahadat (10 of 1984), Arts.2(b) & 164---Constitution of Pakistan, Arts.4 & 10-A---Qatl-i-amd, abetment, common intention, act of terrorism---Supply of copies of 'CDS' and 'USB' (Universal Serial Bus), application for---Dismissal of application by Trial Court---Validity---Video cassette, fell within the purview of 'document', for the reason that definition of document contained in S.29, P.P.C. and Art.2(b) of Qanun-e-Shahadat, 1984, left no doubt that video cassette fell within the purview of matter expressed or described upon any substance by means of letters, figures or marks---Trial Court, had found that in order to avoid manipulation or alteration, generally a manuscript of the recording, was supplied to accused; and decided that video and CD or USB, would be played and heard after recording of evidence of both the sides in the open court; where accused could note down things, and file objections; and the court could pass any appropriate order for deciding objection; or could consider those objections at the time of writing judgment---Much emphasis was made in the impugned order that CD and USB would be played/watched and heard in the open court after recording of evidence of both the sides---Validity---Trial Court tried a case in which capital punishment could be awarded, if the charge was proved---Incumbent upon the Trial Court to provide fair and reasonable opportunity of defence to accused, which was also a basic and foremost prerequisite of administration of criminal justice---To enjoy the protection of law and to be treated in accordance with law, was inalienable right of every citizen of Pakistan under Arts.4 & 10-A of the Constitution---Trial Court had refused to supply the copy of CD and USB, which was not only against the mandate and command of Arts.4 & 10-A of the Constitution but also in violation of norms of administration of justice---Findings of the Trial Court were perverse and misconstrued---Once the typed/written transcripts of CD and USB were allowed to the applicant/accused by the Trial Court, then it had become his more fervent and stringent inalienable and incontrovertible right to get CD and USB for his defence---Unless he was supplied the copies, he would not be in a position to compare the recorded version/statements with the transcripts and make out his defence---Denial of said items amounted to dearth and scarcity of right to a fair trial---No substantial or conceivable rationale, was given in the impugned order to deny the copy of CD and USB---Impugned order was set aside, with direction to the Trial Court to supply the copies of CD and USB to the applicant in compliance of the provisions of S.265-C, Cr.P.C.---High Court observed that finding of High Court in the present case, being based on specific legal question, would not affect the merits of the case.

Government of Sindh v. Fahad Naseem and others 2002 PCr.LJ 1765; Arif Hashwani v. Sadaruddin Hashwani PLD 2007 Kar. 448; Rehmat Shah Afridi v. State PLD 2004 Lah. 829; Omparaksh v. State of Tamil Nadu 2013 Cri LJ 997 (SC); Halsbury's Law of England; 4th Ed. Vol. 17 P.1 and Law of Evidence, Commentary on Evidence Act, 1872, First Edition, 2013, Ram Jethmalani, Volume-I ref.

(b) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Roll of Government was to hold people to account for crimes they had committed; and ensure that justice was done and seen to be done---Government was also responsible to maintain law and order situation for the betterment of society, and to create deterrence against the crimes, so that the crime ratio be lessened and diminished---Grave responsibility, was also attached to the Government because convicting a person of a criminal offence, and potentially taking away liberty; was one of the most serious steps, which was only justified after the person had been given opportunity of fair trial, which was a best device of separating the guilty from the innocent; and protection against justice---Fair trial was also recognized internationally as a foundation of freedom and justice, and fundamental human right---'Due Process of Law', would mean a legal requirement that the State must respect all legal rights that were owed to a person---Due process, would balance the power of law of the land and protect the individual person which was analogous to the concept of natural justice and procedural justice.

Black's Law Dictionary Ninth Edition; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others AIR 1975 SC 1788 and Electronic Evidence", Second Edition, Stephen Mason, General Editor, LexisNexis' (Butterworths) ref.

Amjad Ali Sahito for Applicant.

Inam Ali Malik and Meer M. Burero for the Complainant.

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

Date of hearing: 21th April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 85 #

2016 Y L R 85

[Sindh]

Before Sadiq Hussain Bhatti and Abdul Maalik Gaddi, JJ

KHAN BUX---Appellant

Versus

The STATE---Respondent

Crl. Appeals Nos.D-53 and D-63 of 2013, decided on 26th November, 2014.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Evidence of complainant/Police Inspector and another Police Officer, regarding weight and recovery of narcotics, was contradictory, which was enough for extending benefit of doubt to accused persons---Complainant/ Police Inspector, had failed to associate private person to act as mashir of arrest and recovery, though some houses were near the place of recovery and arrest---Complainant, despite having sufficient time to call the private persons for making them as mashir in the case, failed to do so---Such omission had not been explained by prosecution to the satisfaction of the court---Evidence of Police Official though was as good as other witnesses, but, when availability of private persons, was not denied from the place of incident, and the same was withheld, presumption would be existed that the prosecution had some sinister motive behind it in not producing the evidence---Best independent and natural piece of evidence in the shape of cart pusher purchasing old scrap, was available; charas was weighed by his scale and he resided near the place of incident, he was not examined by the prosecution---No reason had been assigned for non-examination of such an important and best piece of evidence, which had created reasonable doubt about the prosecution case which led to adverse inference against the prosecution---Benefit of doubt, created by many discrepancies in the case, must go to accused persons---Prosecution having failed to prove the case against accused persons beyond any reasonable doubt, impugned judgment passed by the Trial Court against accused persons, was set aside and they were acquitted of the charge, in circumstances.

Iltaf Hussain v. The State 1996 SCMR 167; Ghous Bux v. The State PLD 2004 Kar. 201; Attaullah alias Qasim v. The State PLD 2006 Kar. 206 and Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

Asif Ali Abdul Razak Soomro, for Appellant (Khan Bux) (in Criminal Appeal No.D-53/2013).

Athar Abbas Solangi, for Appellant (Abdul Hameed alias Majeed) (in Criminal Appeal No.D-63/2013).

Imtiaz Ali Jalbani, Assistant Prosecutor General for the State, in both the appeals.

Date of hearing: 26th November, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 100 #

2016 Y L R 100

[Sindh]

Before Nazar Akbar, J

MUHAMMAD AYUB---Plaintiff

Versus

Miss. AMBREEN NAZ---Defendant

Suit No.1320 of 2004, decided on 10th February, 2015.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 102, 103 & 117---Contract Act (IX of 1872), S. 5---Suit for specific performance of agreement to sell---Oral agreement--- Scope--- Proposal and acceptance---Plaintiff was ready to perform his part of contract and he performed the same within stipulated time---Both the parties had entered into a valid contract---Written agreement could not be defeated by an oral agreement---Defendant, in the present case, had failed to prove the factum of oral agreement, and was estopped to allege and claim anything orally contrary to written commitments---Defendant had breached the agreement---Effect---Validly concluded agreement could not be revoked---Section 5 of Contract Act, 1872 barred revocation of proposals and acceptances once its communication was completed---Agreement had been concluded and offer of sale of property was accepted by the plaintiff by performing the condition of payment of 10% of sale consideration in advance---Receipt of advance payment by the defendant had confirmed that offer of sale of suit property was accepted by the plaintiff much before legal notice---Said acceptance was fully communicated to the defendant---Communication of proposal by the defendant and its acceptance was completed when advance/token amount of sale consideration was paid by the plaintiff and defendant issued receipt of part payment in writing---Communication of both proposal and its acceptance had been completed by either parties to each other prior to revocation through notice---Neither there was any occasion to revoke the offer nor notice after the completion of communication could be treated as revocation---Impugned agreement was capable of specific performance and plaintiff was entitled to the relief claimed---Defendant was directed to execute sale deed within a specified period and plaintiff be put in possession of suit property---Nazir of the court should execute sale deed in case of failure of defendant to execute the same in favour of plaintiff---Suit of plaintiff was decreed in circumstances.

2014 SCMR 1217 and 2002 SCMR 326 rel.

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

----Art. 103---Exclusion of evidence of oral agreement---Scope---Written agreement could not be defeated by an oral agreement.

----S. 5---Revocation of proposal and acceptance---Scope---Section 5 of Contract Act, 1872 barred revocation of proposals and acceptances once its communication was completed.

Zia Awan for Plaintiff.

M. Qutub-uz-Zaman (absent) for Defendant.

Date of Hearing: 18th December, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 120 #

2015 Y L R 120

[Sindh]

Before Muhammad Junaid Ghaffar, J

Mst. JAMILA and 3 others---Petitioners

Versus

MUHAMMAD IQBAL and 2 others---Respondents

C.P. No.S-206 of 2010, decided on 10th March, 2015.

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

----S. 15---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Default in payment of rent---Remand order---Effect---High Court remanded the matter to the Rent Controller with certain directions---Rent Controller accepted eviction petition after recording of evidence and following the directions as contained in the remand order---Validity---Once a matter was remanded with certain directions, scope of dispute was limited---Trial Court had to resolve the dispute only to the extent of remand order---Court trying a lis after remand had to regulate the proceedings in terms of the order of remand passed by the higher forum---If matter had been simply remanded without any directions, other issues could be agitated---Trial Court had followed the directions of High Court as contained in the remand order---Tenant could not argue or agitate insofar as the merits of the case which were not agitated in the earlier round of litigation---Findings recorded by the courts below were not perverse---No jurisdictional defect or mis-reading of fact was pointed out in the findings recorded by both the courts below---Constitutional petition was dis-missed in circumstances.

Mrs.Anis Haider and others v. S.Amir Haider and others 2008 SCMR 236; Hafeezuddin and 2 others v. Badaruddin and 2 others PLD 2003 Kar. 444; Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418; Ghulam Mustafa v. Rashid Akbar Ansari and others 2009 MLD 538; Muhammad Farooq M.Memon v. Government of Sind through its Chief Secretary, Karachi 1986 CLC 1408; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi (decd) through L.Rs. PLD 2007 SC 304 and Nasrullah Khan and others v. Mukhktar-ul-Hassan and others PLD 2013 SC 478 ref.

Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Secretary to the Government of Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Mehraj (Private) Limited v. Miss Lamia Saeed and others 2003 MLD 1033; Rehana Hafeez v.. Muhammad Ali alias Ehsan 2014 CLC 1242 and Ford Rhodes Sidat Hyder and Company v. James Finlay Limited 2013 YLR 2541 rel.

(b) Constitution of Pakistan---

----Art.199---Sindh Rented Premises Ordinance (XVII of 1979), S. 15---Ejectment proceedings---Constitutional jurisdiction of High Court---Scope---High Court could not appreciate evidence in such matters while exercising constitutional jurisdiction where concurrent findings of facts had been recorded by the courts below---Constitutional jurisdiction of High Court being discretionary was limited and same was not plenary in nature---Disputed questions of fact could not be agitated under constitutional jurisdiction.

A.M.Mobeen Khan for the Petitioner.

Mukesh Kumar G. Karara for Respondent No.1.

Agha Athar Hussain A.A.G.

Date of hearing: 2nd March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 139 #

2016 Y L R 139

[Sindh]

Before Salahuddin Panhwar, J

ASAL KHAN through Attorney and another---Applicants

Versus

TALUKA NAZIM QASIMABAD and 3 others---Respondents

Civil Revision No.168 of 2011, decided on 19th January, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & S. 11---Specific Relief Act (I of 1877), Ss. 42, 43 & 56---Suit for declaration---Plaint, rejection of---Scope---Plaintiff was directed to vacate disputed house and he filed suit which was disposed of with the order that he would not be ejected except in due course of law---Notice was issued for dismantling, removing and breaking the house and shops against which plaintiff instituted another suit wherein defendants moved an application for rejection of plaint---Contention of defendants was that plaintiff was encroacher---Application for rejection of plaint was accepted concurrently---Validity---Right of plaintiff was limited to resist his ejectment subject to 'due process'---Plaintiff could not continue his possession for an indefinite period over the property claimed by the defendant to be its own---Proceedings of ejectment had been initiated by the quarter concerned under the relevant laws---Notice (s) were issued to all the occupants---Defendants-authorities had not tried to remove/eject the occupants without providing them an opportunity of hearing---Present suit of plaintiff was hit by S. 11, C.P.C.---Plaintiff had sought no relief of his legal status and character except that of possession---Notice of removal/ejectment or dispossession itself was an acknowledgement of one to be in possession from area sought in the notice---Suit/lis would be barred by S.42 of Specific Relief Act, 1877 in absence of a declaration of legal right and status---Status of plaintiff had been determined in earlier round of litigation---Declaration in earlier round of litigation was binding upon the plaintiff---Plaintiff was an 'unauthorized occupant' who was liable to ejectment in resort to due process of law for such ejectment by the quarter concerned---Occupant over government property could not claim his permanent possession---Even the period of such encroachment/unauthorized occupation or even that of expenditure in construction should be of no help to change the status of an 'encroacher/unauthorized occupant' nor could be taken as a ground to continue unauthorized possession---Any act could only be legal if it was permitted by law---Where one was occupying the government property without any legal authority, he could only be termed either as 'encroacher' or 'unauthorized occupant'---Encroacher or unauthorized occupant could not resist his removal/ejectment but could at the most insist 'due process of law' for such removal/ejectment which should include service of notice (s) and an opportunity of hearing before taking coercive measures---Public interest could not be allowed to be defeated on the basis of unsustainable lis---Status of subject matter of the present case, lis was not disputed as 'government property'---Encroacher/unauthorized occupant was not legally justified to cause delay in schemes/projects meant for 'public benefit'---Suit of plaintiff was not sustainable under the law---No illegality had been committed by both the courts below---Government officials should feel free in resisting any encroachment/ unauthorized occupation over government property---Government department should ensure their existence and negligence on the part of local incharge should not be allowed to go unattended and proceedings against the delinquent officer should be initiated---Revision was dismissed, in circumstances.

Babar Hussain Shah v. Mujeeb Ahmed Khan 2012 SCMR 1235 rel.

Muhammad Arshad Pathan for Applicants.

Ashfaque Nabi Kazi, A.A.-G. for the State.

YLR 2016 KARACHI HIGH COURT SINDH 157 #

2016 Y L R 157

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD WASEEM GHORI and another---Plaintiffs

Versus

ALTAF HUSSAIN TUNIO and 6 others---Defendants

Civil Suit No.813 of 2009, decided on 27th May, 2015.

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

----O.VII, Rr. 10 & 11, Ss. 16, 17, 20 & 120---Specific Relief Act (I of 1877), Ss.42, 39, 8 & 54---High Court of West Pakistan (Establishment) Order (XIX of 1955), Art. 5---Sindh Courts Act (Bombay) (VII of 1926), S. 8---West Pakistan Civil Courts Ordinance (II of 1962), S.7---Return of plaint---Territorial Jurisdiction of Sindh High Court---Principles---Original civil jurisdiction of High Court---Basis and principles---Plaintiff filed suit for declaration, possession, cancellation of documents and permanent injunction before High Court challenging agreement to sell entered into with defendants----Defendants filed application under O. VII, R. 11, C.P.C. to challenge maintainability of present suit on ground that subject-matter property was situated out of territorial jurisdiction of court---Contention raised by plaintiff was that since cause of action had partly arisen at Karachi, court at Karachi was competent to adjudicate upon the matter even though the suit properties were situated out of Karachi---Validity---Sections 16, 17 & 20, C.P.C. did not apply to High Court in exercise of its original civil jurisdiction by virtue of S. 120, C.P.C.---Original civil jurisdiction of High Court was derived under Art. 5 of High Court of West Pakistan (Establishment) Order, 1955---Sections 16, 17 & 20 and clause 12 of Letters Patent prescribed forum and place for suing, but said provisions did not apply to High Court---Article 5 of High Court of West Pakistan (Establishment) Order, 1955 and S. 8 of Sindh Courts Act, 1926 did not prescribe place of suing---Article 5 of High Court of West Pakistan (Establishment) Order, 1955 saved jurisdiction of Karachi Bench as exercised by it under S. 8 of Sindh Courts Act, 1926---Jurisdiction of High Court was enlarged and not restricted by removing altogether restrictions contained in Ss. 16, 17 & 20, C.P.C.---Two alternative conclusions could arise from non-applicability of Ss.16, 17 & 20, C.P.C. to High Courts; first was that West Pakistan High Court could not entertain any suit, whatsoever, and second, it could entertain suits from all places within its jurisdiction---High Court observed that jurisdiction of Sindh High Court to entertain suits was basically neither ordinary nor extraordinary, original civil jurisdiction of High Court but simply district court jurisdiction---Jurisdiction of Sindh High Court to try civil suit was confined to matters where pecuniary value of subject-matter exceeded thirty hundred thousand rupees---Under S. 120, C.P.C., place of suing was not to be determined by Ss. 16, 17 & 20, C.P.C., but by provision which had conferred original civil jurisdiction on High Court---Original civil jurisdiction was conferred on the High Court under S.7 of West Pakistan Civil Courts Ordinance, 1962, which was limited only for territorial limits of Karachi---If suit did not fall within ambit of original civil jurisdiction of High Court then place of suing for such suit was to be determined under Ss. 16 to 20, C.P.C., and plaint was to be returned to be presented before court of appropriate jurisdiction---Provisions of S. 18, C.P.C. had not been made inapplicable under S.120, C.P.C.---Provisions of S. 19, C.P.C. had also not been made inapplicable to original civil jurisdiction of High Court under S. 120, C.P.C.---High court while exercising powers of original civil jurisdiction exercise jurisdiction that was exercised by civil court in civil district of Karachi that it was functioning as principal civil court or original jurisdiction for district of Karachi only under special statute---Present suit was to be filed before proper and competent court having jurisdiction---If property was situated outside Karachi, then High Court would have no jurisdiction---Section 120, C.P.C. had not enlarged scope of High Court with regard to property situated in whole of Sindh---If suit property was situated outside Karachi, then High Court Sindh had no jurisdiction to entertain the present suit---High Court returned plaint to be filed before court of competent jurisdiction---Application under O.VII, R.11, C.P.C. was allowed in circumstances.

West Pakistan Industrial Development Corporation v. Messrs Fateh Textile Mills Ltd. PLD 1964 (WP) Kar. 11; Abdul Kadir v. Mir Ashraf Ali Khan and others 1982 CLC 110; Mst. Fatima Bai v. Muhammad Anisuddin Khan Ghaznavi 1987 CLC 1771 and Mst. Rais Akhtar and another v. Muhammad Azizuddin 1993 MLD 2555 ref.

Muhammad Naved Aslam and others'case 2011 CLC 1176; Mst. Aisha Siddiqui's case PLD 2010 Kar. 261; Firdous Trading Corporation v. Japan Cotton and General Trading Company PLD 1961 Kar. 565 and Province of Sindh v. Haji Razzaq 1991 SCMR 920 rel.

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

----Ss. 16, 17, 18, 19, 20 & 120----High Court of West Pakistan (Establishment) Order (XIX of 1955), Art. 5---Territorial Jurisdiction---Principles---Whenever there is matter relating to property falling beyond territorial jurisdiction of Karachi, court shall always consider question of jurisdiction with reference to Ss. 16 to 20, C.P.C., whichever is applicable.

----S. 16----Territorial Jurisdiction---Principles---Options available to plaintiff---Matter falling within ambit of Ss. 16(a), (b), (d) to (f), C.P.C. cannot be filed at any other place except within local limits of whose jurisdiction property is situated, as word 'shall' has been used in said provisions---Discretion has been given to plaintiff in respect of matter falling under S. 16(c), C.P.C., which is confined to matters of foreclosure, sale or redemption---Under S. 16(c), C.P.C., case may be filed at option of plaintiff either at place where cause of action partly or as a whole arise or where property is situated.

(d) Interpretation of statutes---

----Interpretation of clauses of a section---Principles---Every clause or subsection is always explanatory but should not be taken to overlap or frustrate other clauses of same proviso.

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

----S. 16--- "Property"--- Meaning---Property under S. 16, C.P.C. means property situated in Pakistan.

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

----Art. 113---Civil Procedure Code (V of 1908), Ss. 16 to 20---Accrual of cause of action---Principles---Cause of action is not controlled by execution of document but denial or breach thereof as provided under Art. 113 of Limitation Act, 1908---Mere execution of document at one place would not mean accrual of cause of action---If parties entering into agreement complete their obligations thereunder, there is no cause of action---Cause of action means right to sue for certain legal rights or character.

(g) Words and phrases---

---"Foreclosure"---Meaning.

Black's Law Dictionary ref.

Ms. Shazia Hanjrah for Plaintiffs.

Naveed Ahmed Khan for Defendant No.6.

Muhammad Idrees Alvi for KMC.

Jam Habibullah, State Counsel.

YLR 2016 KARACHI HIGH COURT SINDH 187 #

2016 Y L R 187

[Sindh]

Before Abdul Maalik Gaddi, J

HABIB AHMED---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.155 of 2015, decided on 10th July, 2015.

Criminal Procedure Code (V of 1898)---

----S.426---Sindh Arms Act (V of 2013), S.23(1)(A)---Possessing unlicensed arms---Suspension of sentence pending appeal---Sentence awarded to accused by the Trial Court for two years and fine of Rs.20,000 was sought to be suspended on the ground that sentence was short one, and disposal of appeal would take some time---Accused had prayed for grant of bail while suspending the sentence---Keeping in view the short sentence, and that disposal of appeal could take some time and that evidence of the prosecution witnesses, and observation of the Trial Court, were still to be re-appreciated and re-evaluated, sentence awarded to accused was sus-pended, and accused was released on bail, in circumstances.

Abdul Hameed v. Muhammad Abdullah 1999 SCMR 2589 ref.

Muhammad Shahid for Appellant.

Muhammad Iqbal Assistant Prosecutor General, Sindh for the State.

YLR 2016 KARACHI HIGH COURT SINDH 214 #

2016 Y L R 214

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD ATHER HAFEEZ KHAN---Plaintiff

Versus

Messrs SSANGYONG AND USMANI J.V.---Defendant

Suit No.278 of 2012, decided on 1st April, 2013.

(a) Constitution of Pakistan---

----Art. 10-A---Terms 'fair trial; and 'due process'---Scope---After incorporation of Art. 10-A in the Constitution, a 'fair trial' and 'due process' has become a Fundamental Right---Any order passed or proceedings held in violation of 'fair trial' and 'due process' is null and void---Notice in writing is a mandatory requirement for each and every proceedings in view of the concept of 'fair trial' and 'due process'---'Notice' is always given to parties 'in writing' in court proceedings.

Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235, 1241; New Jubilee Insurance Company Limited, Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126 and Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863 rel.

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

----Ss. 30 & 33---General Clauses Act (X of 1897), S.9---Limitation Act (IX of 1908), S.12(2) & (4)---Award---Objections, filing of---Limitation---Notices were issued to parties after filing of award in court by sole arbitrator---Plaintiff objected the objections filed by defendants on 17-4-2014 as time-barred---Validity---Copies of award were furnished on or after 18-3-2012, therefore, presumption would be that date terminus quo for computing period of limitation in view of S.12(4) of Limitation Act, 1908, which expressly provided that time requisite for obtaining copy of award would be excluded and the defendants were served on 19-3-2012 and 20-3-2012---In terms of S.12(2) of Limitation Act, 1908, the day of announcement of award was also liable to be excluded as S.9 of General Clauses Act, 1897, also provided for exclusion of the first day in a series of days or any other period of time---Objections filed by defendants were well within time and not time-barred under Art. 158 of Limitation Act, 1908---Objection of plaintiff was overruled, in circumstances.

Muhammad Mushtaq Saigal v. Muhammad Wasi Saigal 2001 SCJ 96; Superintending Engineer, Communication and Works High Way Circle, Kohat v. Mian Faiz Muhammad and Company PLD 1996 SC 797; Ashfaq Ali Qureshi v. Municipal Corporation, Multan PLD 1985 SC 597; Messrs Shafi Corporation Limited v. Government of Pakistan PLD 1994 Kar. 127; Mian Asmat Shah and another v. Mian Faiq Shah and others PLD 2012 Pesh. 181; Panoo Ram v. Nebh Raj AIR 1930 Lah. 228; Kishanlal Malhothra v. Union of India AIR 1961 Punjab 5 (V 48 C3); Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants 1991 SCMR 132; Harichand v. Lachman Das and others AIR (35) 1948 East Punjab 11; Mst. Ghazala Rehman through attorney v. Najma Sultana through L.Rs. and 2 others 2012 MLD 188; Dar Okaz Printing and Publishing Ltd. Liability Company v. Printing Corporation of Pakistan (Pvt.) Ltd. PLD 2003 SC 808 (817); Pakistan through General Manager, Pak Railways v. Messrs Q.M.R. Expert Consultant PLD 1990 SC 800 and Shahi Textiles and 3 others v. Askari Bank Ltd. through President 2011 CLD 996 ref.

Mansoor-ul-Arfin for Plaintiff.

Kazim Hassan for Defendant (Foreign JV partner).

Muhammad Masood Khan for Defendant (Local JV partner).

Date of hearing: 12th March, 2013.

YLR 2016 KARACHI HIGH COURT SINDH 240 #

2016 Y L R 240

[Sindh]

Before Shahnawaz Tariq and Nadeem Akhtar, JJ

Messrs MUHAMMAD MUQEEM SOHAIL BUILDERS AND DEVELOPERS through Managing Partner---Petitioner

Versus

SHAMSHER ALI and 43 others---Respondents

C.P. No. D-2210 of 2012, decided on 16th April, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & S. 11----Specific Relief Act (I of 1877), Ss. 42, 39, 54 & 55---Partnership Act (IX of 1932), S. 40---Contract Act (IX of 1872), S. 202---Constitutional petition---Res judicata---Applicability---Rejection of plaint---Cause of action---Determination---Dissolution of partnership on death of partner---General power-of-authority in favour of partner---Revocability--Plaintiff filed suit for declaration, dissolution of partnership, cancellation of sale deeds, injunction, partition of property and restoration of property, against defendant claiming that a partnership agreement was entered between parties, and defendant being managing partner of firm, purchased suit property in name of the firm and revenue entries were made accordingly, but he subsequently by executing illegal sale deeds in his personal capacity disposed off the same without permission of the firm---Defendant sought rejection of plaint of suit under O. VII, R. 11, C.P.C., contending that partnership had already been dissolved and plaintiffs had no title in suit property---Both Trial Court and revisional court dismissed defendant's application for rejection of plaint---Contentions raised by defendant were that plaintiff had filed the suit on basis of general power of attorney which had lost its authenticity after death of its executants/other partners; that plaintiff did not file any fresh power of attorney, and that plaint disclosed no cause of action as previous suits filed by plaintiffs were dismissed---Plaintiff took the plea that he had filed suit as attorney of other co-sharers/plaintiffs, and his power of attorney was coupled with interest which was protected under S. 202 of Contract Act, 1872, and that previous suit were not decided on merits and reliefs sought in earlier suits and the present suit were different---Validity---Plaintiff had alleged in the plaint that defendant had committed fraud in collusion with revenue authorities and prepared stamp paper regarding dissolution of partnership deed---As per available evidence, stamp vendor who had issued said stamp paper was not registered---Plaintiff's claim of joint ownership over suit property was still unresolved and subjudice before Trial Court---Parnternship, prima facie, existed until it was determined by court---Factum of existence of partnership deed had created cause of action to plaintiffs---Irrevocable general power-of-attorney executed in favour of plaintiff having never been challenged or revoked by legal heirs of deceased partner, being authority coupled with interest in favour of attorney regarding suit property, was still in existence and valid---Earlier suits filed by plaintiff were not finally decided on merits and their plaints were rejected being barred under the law---Provisions of S. 11, C.P.C. nor principle of res judicata were attracted to the present suit---Suit filed by plaintiff was not barred by non-filing of fresh power-of-attorney by legal heirs, as in case some of the executants of power of attorney had expired during pendency of proceedings, authorization on behalf of remaining executants would continue to remain in force---Defendant failed to point out any illegality or material irregularity committed by courts below while dismissing application under O. VII, R. 11, C.P.C.---Constitutional petition was dismissed in circumstance.

Messrs United Bank Ltd. v. Messrs Iftikhar and Company and 6 others PLD 1990 Lah. 111; Syed Ghulam Hyder Shah alias Umaz Shah and 4 others v. Mst. Bibi Amir un Nissa and 4 others PLD 2011 Kar. 183; Bolan Beverages (Pvt.) Ltd. v. Pepsico. Inc. and 4 others PLD 2004 SC 860; Messrs Time N Visions International (Pvt.) Ltd. v. Dubai Islamic Bank Pakistan Ltd. PLD 207 Kar. 278; Mst. Zakia Begum v. Niaz Ahmed 1999 MLD 3156; Anis Fatima v. Anwar Hussain 1992 CLC 2137 and Jawid Arshad Mirza through legal representatives v. Trustees of Haji Sir Abdullah Haroon and others PLD 2005 Kar. 684 rel.

Muhammad Sachal Awan for Petitioner.

Raja Jawad Ali Sahar for Respondents Nos. 1 to 3.

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

Dates of hearing: 11th February 2014 and 11th April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 262 #

2016 Y L R 262

[Sindh]

Before Hasan Feroz, J

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator/

Secretary---Appellant

Versus

MUHAMMAD SAEED and 2 others---Respondents

IInd Appeal No.42 of 2013, decided on 18th August, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 100---Suit for declaration and injunction---Consent of parties---Plaintiff proposed to resolve controversy once for all by considering his pending application with administrator of defendant, Defense Housing Authority, for regularization of shop constructed on plot in question, justly and fairly and to regularize violation of shop constructed at aforesaid plot on payment of penalty/charges---Defendant DHA did not controvert the assertions made by plaintiff in view of equality before law stretching at par to defendant---Application was disposed of accordingly.

Raja Sikandar Khan Yasir for Appellant.

Imdad Khan for Respondent No.1 .

Date of hearing: 18th August, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 274 #

2016 Y L R 274

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD JAMIL---Petitioner

Versus

IMTIAZ AHMED and 2 others---Respondents

C.P. No.S-1757 of 2014, decided on 13th May, 2015.

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

----S. 15---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Tenant could not resist maintainability of ejectment proceedings pending against him on the ground of sale agreement---Genuineness of alleged agreement and its consequential effect would be independently determined by the civil court---Tenant, in the present case, resisting his eviction on the basis of un-registered sale deed---Tenant could not rely on such sale agreement to deny existence of relationship of landlord and tenant till he got its genuineness verified by a civil court---Both the courts below had rightly rejected plea of tenant---Constitutional petition was dismissed in circumstances.

Abdul Hamid v. Abbas Bhai Abdul Hussain PLD 1959 (WP) Kar. 629; Jamaluddin v. Saghir Ahmed Warsi 1993 MLD 1809; Malik Ghulam Murtaza v. Rent Controller, CBMC, 2005 CLC 1070; Sh. Manzoor Ahmed and others v. Mst. Iqbal Begum and others 1989 SCMR 949; Abdul Ghani v. Hafiz Jalaluddin 1995 CLC 348; Mst. Azeemunnisa Begum v. Ali Muhammad PLD 1990 SC 382; Muhammad Rafique v. Habib Bank Limited 1994 SCMR 1012; Afzal Ali v. Azhar Iqbal 1997 MLD 2262 and Iqbal Shah and others v. Mst. Abida Bi 1994 CLC 1891 ref.

Haji Juma Khan v. Haji Zarin Khan PLD 1999 SC 1101 rel.

Muhammad Ali Jan for Petitioner.

Anwar Muhammad Siddiqui for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 24th April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 291 #

2016 Y L R 291

[Sindh]

Before Hasan Feroz, J

NISAR AHMED---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.103 of 2014, decided on 8th July, 2014.

Sindh Arms Act (V of 2013)---

----S. 23-A---Criminal Procedure Code (V of 1898), S.265-H(2)---Constitution of Pakistan, Art.10-A---Possessing unlicensed arms---Appreciation of evidence---Trial Court conducted the trial in hasty manner---Two prosecution witnesses, who were Police Officials, were not cross-examined---Request of defence counsel for recalling said witnesses, made on the same day, was turned down without cogent reasons---No opportunity of arguments, was afforded to defence counsel, which was unfair---Fair trial was fundamental right of accused protected by Constitution---Such fundamental right of accused having been violated, impugned judgment passed by the Trial Court, suffered from infirmity which could not be sustained---Conviction and sentence awarded to accused under impugned judgment, were set aside, and case was remanded to the Trial Court for retrial after affording opportunity of hearing to parties, and to decide the case afresh strictly on merits in accordance with law.

Muhammad Arshad Tariq for Appellant.

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

Date of hearing: 17th June, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 300 #

2016 Y L R 300

[Sindh]

Before Aziz-ur-Rehman, J

Mst. HUMERA JABEEN and 2 others---Plaintiffs

Versus

MUHAMMAD ARSHAD and others---Defendants

Suit No.1634 of 2009, decided on 26th March, 2014.

Civil Procedure Code (V of 1908)---

----S. 151---High Court Sindh Circular No. GAZ/ XII. Z. 14 (HC) (i) dated 16-10-2012---Placing a case on 'fast track'---Recalling of an order---Scope---Applicant sought recalling of order whereby an application for placing a case on 'fast track' was accepted---Contention of applicant was that none of the defendants was above the age of 65 years---Validity---Choice of placing the case on 'fast track' was that the person (applicant) was above 65 years---No counter affidavit had been filed in rebuttal of the application---Contents of application and its supporting affidavit had gone un-rebutted---Plaintiffs could not fulfill the conditions to have the present case continue on 'fast track' any more---Office was directed to change file form 'red' cover to 'ordinary' cover and not to treat the case on 'fast track' any more---Application for recalling of an order for placing the case on 'fast track' was disposed of accordingly.

Ali Zaheer for Plaintiffs.

M. Qaiser Qureshi for Defendants Nos. 1 and 2.

Haris Arshad Khan, Advocate.

Tariq Mehmood for proposed Intervener.

Date of hearing: 26th March, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 315 #

2016 Y L R 315

[Sindh]

Before Sadiq Hussain Bhatti, J

GULZAR HUSSAIN through Attorney---Appellant

Versus

MUHAMMAD ASIF NAZIR---Respondent

II-Appeal No.34 of 2014, decided on 8th April, 2015.

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

----Ss.8 & 42---Suit for recovery of possession, declaration and mesne profit---Gift---Proof---Limitation---Admission by defendant's witness---Effect---Production of gift deed---Effect---Plaintiff filed suit for declaration, recovery of possession and mesne profit against defendant who was his father's real brother---Father of plaintiff had inducted defendant as licensee and after his demise when plaintiff asked him to vacate suit property he requested for two years' time---After lapse of two years, plaintiff served a legal notice and when it had not been responded, the suit was instituted---Defendant contested the suit mainly on ground that suit property was gifted to him by his brother and he had constructed house on suit property from his own resources---Gift deed was also produced by defendant---Defendant raised objection on ground of limitation that suit was instituted after lapse of thirty eight years of drawing of gift deed---Defendant stated details of remittances he had sent for construction, while he was abroad, in his pleadings---Defendant's son had appeared as witness for defendant and admitted that remittances sent from abroad were for house hold expenses in year 1976---Defendant's son had also admitted that he was born in the house constructed on suit property in year 1976---Trial Court decreed suit of plaintiff---Validity---Admission of defendant's son that he was born in house constructed on suit property proved it beyond doubt that family of defendant was already residing in the suit property and remittances receipts were for household expenses---Suit was not barred by limitation, since it was not instituted for cancellation of gift deed and even other-wise gift deed was produced by defendant for first time in evidence to support his claim---Courts below were justified in not believing contention of defendant---Appeal was dismissed, in circumstances.

Amroo Khan v. Dhanney Khan 1994 CLC 519; Australasia Bank Ltd. v. Mangora Textile Industries 1981 SCMR 150; Nishadah Begum v. Muhammad Ayub Khan PLD 1988 SC AJ&K 203 and Abdul Manan v. Sikandar Khan 1992 CLC 505 ref.

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

----Ss.8 & 42---Registration Act (XVI of 1908) S. 17(1)---Suit for recovery of possession, declaration and mesne profit---Gift deed, registration of---Principles---Gift was alleged to be made by donor in year 1971 but it had not been registered despite being necessary that suit property was transferred in name of donee during lifetime of donor---Once gift was reduced in writing in terms of provisions of S.17(1) of Registration Act, 1908 its registration becomes must if it was in respect of immoveable property worth rupees one hundred or more---Once gift deed had been drawn (unregistered) but suit property was bifurcated and one part of the same had been sold, it would raise doubts about the gift transaction.

----S. 100---Second Appeal---Concurrent findings---Scope---Concurrent findings of facts by Trial Court and Appellate Court could not be disturbed by High Court in second appeal, unless courts below while recording findings of facts had either misread the evidence or have ignored material piece of evidence on record or findings recorded by two courts below was perverse.

Abdul Manan v. Sikandar Khan 1992 CLC 505 rel.

Syed Ansar Hussain for Appellant.

Iqrar Ahmed for Respondent.

Date of hearing: 9th March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 323 #

2016 Y L R 323

[Sindh]

Before Zafar Ahmed Rajput, J

IMRAN KHAN---Applicant

Versus

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

Civil Revision Application No.5 of 2014, decided on 12th January, 2015.

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

----S. 42---Suit for declaration---Correction of date of birth in CNIC by NADRA---Scope---Contention of plaintiff was that he was born on 22nd May, 1993 but his date of birth had been recorded as 22nd May, 1990---Suit was dismissed concurrently---Validity---Plaintiff produced documents bearing his date of birth as 22-05-1993 which could not be refuted by the authorities---No reason existed to believe that the date of birth mentioned in the documents produced by the plaintiff, was managed one---Plaintiff was neither claiming any right in service nor having any other interest in seeking correction of date of birth in his CNIC---Correction of date of birth of the plaintiff would not adversely affect any right of any other person---No provision existed to prohibit NADRA from rectifying any mistake in the CNIC---Every citizen was required to be registered with the NADRA---Issuance of CNIC would mean that information contained therein was valid and correct, therefore, by not correcting an error on the CNIC, NADRA in fact was not performing its primary function---NADRA was bound to maintain a correct database and to print the correct information on the CNIC---Impugned judgments and decrees passed by the courts below were set aside and NADRA was directed to rectify the mistake as to date of birth of plaintiff appearing on his CNIC from 22-05-1990 to 22-05-1993---Revision was accepted, in circumstances.

Mrs.Farida Hanif v. Federation of Pakistan through Secretary Ministry of Interior Affairs, Islamabad and another 2011 CLC 511; Regional Commissioner of Income Tax Karachi and 2 others v. Shafi Muhammad Baluch 1997 MLD 2801 and Federal Board of Intermediate and Secondary Education, Islamabad through Chairman/Secretary v. Junaid Rehmat 2009 YLR 1296 ref.

Muhammad Salah-ud-Din v. NADRA PLD 2012 Lah. 378 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts recorded by the courts below could not be treated as sacrosanct and could be interfered with by the High Court in revisional jurisdiction when such findings were based on insufficient evidence, mis-reading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent error of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence had been taken.

Major Rashid Baig v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443; Muhammad Bakhsh v. Ellahi Bukhsh and others 2003 SCMR 286 and Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609 rel.

Muhammad Ali Waris Lari for Applicant.

Muhammad Qasim, Standing Counsel.

Ms. Samina Iqbal, Assistant Director, NADRA.

Date of hearing: 12th January, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 345 #

2016 Y L R 345

[Sindh]

Before Amer Raza Naqvi, J

REDTONE TELECOMMUNICATIONS PAKISTAN (PVT.) LTD. and 3 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary and another---Defendants

Suits Nos.1060 and 1109 of 2014, decided on 30th October, 2014.

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

----Ss.21 & 33-A---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Interim injunction, grant of---Plaintiffs were license holders and they were aggrieved of deregulation policy for telecommunication issued by authorities without giving them formal hearing---Validity---Review of policy was not sudden and there was no provision of law which required that before review of any policy, stakeholders were required to be given formal hearing---Point of view of license holders was considered at the time of previous policy and before reviewing of policy assailed, as it had only provided that APC component of ACR would be zero rated and it was also provided that ancillary matters pertaining to discontinuation of ICH regime would be handled by Pakistan Telecommunication Authority in consultation with Ministry of Information and Technology---Transition from one policy to the other could be made without any hindrance---Plaintiffs also failed to point out any technical aspect which could show that transition was not possible technically or otherwise---Plaintiffs failed to make out any prima facie case and as such were not entitled to the relief of injunction---Application for injunction was dismissed, in circumstances.

PLD 2007 Lah. 61; PLD 1991 SC 14; 1997 SCMR 1804; PLD 2002 SC 208; PLD 2008 SC 476; AIR 1979 SC 621; PLD 1996 Kar. 1; PLD 1959 SC (Pak) 45; PLD 2014 SC 1; PLD 2013 SC 167 and 2012 PLC (CS) 917 ref.

Arshad Tayebally for Plaintiff (in Suit No.1060 of 2014).

Haider Waheed for Plaintiff (in Suit No.1109 of 2014).

Salman Talibuddin, Additional Attorney General for Defendant No.1.

Babar Sattar for Defendant No.2.

Dates of hearing: 19th, 28th August, 10th, 18th, 23rd September 3rd, 16th and 30th October, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 359 #

2016 Y L R 359

[Sindh]

Before Shahnawaz Tariq, J

PATHAN KHOKHAR---Applicant

Versus

The STATE---Respondent

Ist Crl. Bail Appln. No.510 of 2014, decided on 1st June, 2015.

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

----Ss. 497(2) & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Control of Narcotic Substances Act (Government Analysts) Rules 2001, Rr. 4 & 5---Possession of narcotic drugs, import and export of narcotic drugs, trafficking or financing trafficking of narcotic drugs---Non-associating of public witnesses while recovery---Effect---Statement of police official---Admissibility---Sending of narcotic substance for examination---Principles---False implication---Proof---Two thousand and fifty grams of charas was alleged to have been recovered from accused---Bail was declined by Trial Court---Applicant contended that allegedly recovered substance was sent for chemical examination with delay of nine days, which had made prosecution story doubtful, and that despite prior information complainant had failed to associate private person to act as Mashir at time of alleged recovery---Validity---Applicant was apprehended by complainant (official) during patrolling and Charas was recovered from his possession in presence of police officials---Provisions of S. 103, Cr.P.C had been excluded by virtue of S. 25 of Control of Narcotic Substances Act, 1997---Non-associating of public witnesses at time of recovery of narcotics was of no consequence---Police officials were good witnesses and their statement could not be discarded if any kind of enmity or ill-will was not brought on record---Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, had imposed no bar on investigation officer from sending sample beyond seventy-two hours of seizure of narcotic substance---Said rules were directory in nature and not mandatory---Sending of sample beyond stipulated period in said rules, in absence of any allegation of tampering, would not frustrate entire case of prosecution---Complainant had failed to allege any kind of animosity against complainant for his false involvement nor was any complaint made to high-ups of police in that regard---Entire recovered substance was sent to Chemical Examiner and as per report, entire substance was charas---Applicant failed to make case for grant of bail---Bail petition was dismissed accordingly.

Ghulam Murtaza v. The State PLD 2009 Lah. 362; Muhammad Nadeem v. The State and another 2010 MLD 773; Noor Khan v. The State 2012 MLD 1542 and Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573 distinguished.

Muhammad Mushtaq and another v. State 2008 SCMR 742; Nasrullah v. The State 2011 PCr.LJ 277 and Yousuf Gul v. The State PLD 2009 Pesh. 39 rel.

Mazhar Ali Mangan and Mumtaz Ali Bughio for Applicant.

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

YLR 2016 KARACHI HIGH COURT SINDH 366 #

2016 Y L R 366

[Sindh]

Before Naimatullah Phulpoto, J

AKHTER MEHMOOD---Appellant

Versus

STATE and another---Respondents

Criminal Appeal No.7 of 2007, decided on 26th September, 2014.

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

----Ss. 161, 342 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Taking illegal gratification, wrongful confinement, common intention, corruption---Appreciation of evidence---Benefit of doubt---Inordinate delay of more than two days in lodging of FIR, had not been satisfactorily explained---Material prosecution witnesses had been given up by the prosecution on the ground that they had been won over by accused---Prosecution witness, in whose presence bribe was paid to accused, was declared hostile---Mere word of the complainant and his son that they had paid amount to accused as bribe, was not sufficient to record conviction, in circumstances---Trial Court had not discussed defence plea according to settled principles of law---No prosecution witness had deposed about having seen passing of money as bribe to accused and such money had not been recovered from possession of accused---No official of Anti-Corruption Establishment or Local Magistrate had been associated with alleged payment of money as bribe, on basis of which case had been lodged---Court had to be very careful in weighing evidence of interested witnesses in the case---Judicial approach had to be cautious in dealing with evidence---Accused had been convicted and sentenced by the Trial Court on mere surmises and insufficient evidence---No confidence inspiring evidence was available to establish charge against accused---Conviction of accused, was not to be based on the weakness of defence, but only on the strength of prosecution case---Prosecution having failed to prove its case against accused beyond any reasonable doubt, conviction and sentence recorded by the Trial Court against accused, was set aside, extending him benefit of doubt---Accused was acquitted of the charge, and he being on bail, his bail bond/surety stood discharged in circumstances.

(b) Criminal trial---

----Benefit of doubt---Concept and scope---Concept of benefit of doubt to an accused, was deep-rooted---For giving accused benefit of doubt, it was not necessary that there should be many circumstances creating doubts---If there was a circumstance, which would create doubt in a prudent mind about the guilt of accused, then accused, would be entitled to benefit of doubt not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Fiaz Ahmed Abro for Appellant.

Abdullah Rajput, Assistant Prosecutor General Sindh for Respondents.

Date of hearing: 26th September, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 388 #

2016 Y L R 388

[Sindh]

Before Munib Akhtar and Shahnawaz Tariq, JJ

NOOR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-31 of 2015, decided on 8th May, 2015.

Criminal Procedure Code (V of 1898)---

----S.426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking of narcotics---Suspension of sentence---Accused was charged under S.9(c) of Control of Narcotic Substances Act, 1997 for the recovery of 1250 grams charas---Trial Court convicted accused and sentenced him for 4 years and 6 months, with fine of Rs.20,000---Sentence awarded to accused, was short one, and disposal of main appeal would take some time as paper book had not been prepared by the office---Considering the quantum of backlog of the case, there was no probability for early hearing of the appeal---Sentence awarded to accused was suspended during pendency of main appeal, and accused was admitted to bail, in circumstances.

Irfan Ali Khuwaja for Appellant.

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

YLR 2016 KARACHI HIGH COURT SINDH 403 #

2016 Y L R 403

[Sindh]

Before Ghulam Sarwar Korai and Salahuddin Panhwar, JJ

ABDUL GHAFFAR and 3 others---Petitioners

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

C.P. No.D-408 of 2009, decided on 27th January, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498--- National Accountability Ordinance (XVIII of 1999). S.9(b)---Pre-arrest bail, grant of---Settlement with complainant---Principle of consistency---Applicability---Petitioners were accused who had been on bail since year 2009, and they were attending Trial Court regularly---Prosecution did not claim at any stage that petitioners had attempted to misuse concession of their bail---Petitioners had settled their dispute with aggrieved Bank who had recorded its "no objection" to their pre-arrest bail---Co-accused on almost similar grounds have been granted bail by High Court---Judicial propriety demanded that benefit of rule of consistency should be given to petitioners as of right---All petitioners were regularly attending Trial Court where their guilt was yet to be determined and they could well be given their due at the end of the trial, if found so deserving---Basic principle of criminal administration of justice was not to keep one behind bars but to give due for the offence---Bail was allowed in circumstances---Constitutional petition was disposed of accordingly.

Ms. Naheed A. Shahid and Aftab Ahmed for Petitioners.

Noor Muhammad Dayo, D.P.G. NAB and Wasif Riaz for KASB Bank for Respondents.

Date of hearing: 27th January, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 417 #

2016 Y L R 417

[Sindh]

Before Aftab Ahmed Gorar, J

ANWAR ALAM SIDDIQUI---Applicant

Versus

The STATE and another---Respondents

Cr. Misc. Appln. No.139 of 2013, decided on 15th October, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 173, 190 & 561-A---Penal Code (XLV of 1860), Ss.420 & 406---Cheating and dishonestly inducing delivery of property, criminal breach of trust---Application for quashing of order---Investigating Officer, submitted report under S.173, Cr.P.C. for disposal of case under 'A' class, but Judicial Magistrate did not accept the same and ordered for disposal of the case in 'C' class, holding that the element of mens rea, appeared to be missing in the case, and the matter was of civil nature---Validity---Magistrate was not bound by the report submitted by Police under S.173, Cr.P.C., and he could or could not agree with the conclusion reached by Investigating Officer---Nothing was provided in S.190, Cr.P.C., to prevent a Magistrate from taking cognizance of case under clause (b) of S.190, Cr.P.C., inspite of Police report---Magistrate was required by law to apply his independent mind to the material placed before him, and form his own opinion about the matter, and if he was of the opinion that the case was fit to be disposed of summarily; and accused was entitled to be discharged, he could pass such order---Magistrate was not required to issue notice to the complainant, or to hear his view point---If the complainant was not satisfied by the Police investigation, he could resort to the remedy of filing direct complaint, but in no case, provisions of S.173, Cr.P.C. would entitle him to get the person of his choice implicated in the case---Judicial Magistrate had not acted blindly on the basis of the report submitted by Investigating Officer, but it seemed that after having applied his judicious mind, he came to the conclusion---In the absence of any irregularity or illegality in the order passed by the Judicial Magistrate, same was upheld, in circumstances---Application for quashment was dismissed.

2005 PCr.LJ 560; 2004 PCr.LJ 1023 and Inayatullah and 4 others v. The State and another 1999 PCr.LJ 731 ref.

Choudhry Abdul Rasheed for Applicant.

Fareed Ahmed Dayo for Respondent No.2.

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

Date of hearing: 19th May, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 431 #

2016 Y L R 431

[Sindh]

Before Aqeel Ahmad Abbasi and Ghulam Qadir Leghari, JJ

AMIR RAZA and another---Petitioners

Versus

PROVINCIAL ELECTION COMMISSION through DEO and 5 others---Respondents

C.P. No.D-3866 of 2015, decided on 5th November, 2015.

Sindh Local Government Act (XLII of 2013)----

----Ss. 23 & 36----Sindh Local Councils (Election) Rules, 2015, R. 52---Scrutiny of nomination papers---Declaration of assets---Rejection of nomination papers on ground of default---Objection as to non-declaration of assets raised for first time before High Court---Permissibility---Both Returning Officer and Appellate Authority rejected joint nomination papers of petitioner on ground of default on payment of Bank loan and electricity dues on part of one of the petitioners---Respondents, in the present case, for the first time, raised the objection that petitioner had not disclosed his assets regarding inherited land---Validity---Returning Officer and Appellate Authority had not provided opportunity to petitioners to clear the outstanding amounts---Petitioner, the defaulter, however, had voluntarily paid the same and placed on record both the paid bill and "clearance certificate"---Petitioner had categorically denied the disputed fact that he had not declared his true assets; thus, High Court refused to examine the same---High Court declined to defranchise petitioners or to deprive them from their right to contest elections at that stage on flimsy grounds and allegations, which had not been seriously disputed---High Court, setting aside impugned orders of Returning Officer and Appellate Authority, directed the former to accept the nomination papers of petitioners and mention their names in Form VIII, however, respondents could still dispute eligibility of petitioners before Election Commission or Election Tribunal as per the law---Constitutional petition was allowed in circumstances.

Shabbir Ali Bozdar for Petitioners.

Ghulamullah Memon for Respondent No.5.

Noor Hassan Malik A.A.-G.

Mian Mumtaz Rabbani DAG.

YLR 2016 KARACHI HIGH COURT SINDH 463 #

2016 Y L R 463

[Sindh]

Before Salahuddin Panhawar, J

SADA BUX and another---Appellants

Versus

The STATE---Respondent

Cr. Appeal No.S-21 and Cr. Jail Appeal No.S-74 of 2008, decided on 2nd January, 2015.

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

----S. 302--- Unnatural death---Appreciation of evidence---Proving of unnatural death was not sufficient to convict accused, unless allegation of causing murder was established through ocular account---Medical evidence was nothing more than that of "a corroborative piece of evidence", which could, at the most, help prosecution to corroborate ocular account to the extent of seat and nature of injury and kind of weapon used in commission of offence but it could not connect accused with commission of offence---Injuries on person, was not sufficient to take the words of the person as 'truth', because injuries, at the most, could be indicative of presence, but could not stamp him as a truthful witness.

2009 SCMR 985; Amin Ali v. State 2011 SCMR 323; 1981 SCMR 795; Mehmood Hayat v. State 1996 SCMR 1411 and 2007 SCMR 670 rel.

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

----Ss. 302(b) & 324---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-i-amd, attempt to commit qatl-i-amd, possessing unlicensed arms---Appreciation of evidence---Incident was one of two parts and the set of witnesses to prove both the parts was also one and the same---Ocular account, medical evidence and mashirs of recovery, were same in both the cases---Injuries on person of injured witnesses of the first part of the incident also came through the same medical officer, who conducted the post mortem of the deceased---Evidence in respect of first part of the incident was found not sufficient to hold the conviction against accused persons of the first part of the incident---Accused persons of the first part of the incident had been acquitted by the Trial Court, while disbelieving the evidence of the same set of evidence, and on the same set of evidence accused persons were convicted---Witnesses having not come with full and complete truth, had brought their credibility under serious clouds---Prosecution also did not establish the recovery of crime weapon against accused persons as recovery effected from one accused was not believed and case against him ended in acquittal, while there was no recovery from his co-accused---Prosecution did not justify any reason or motive for initiation of the second part of the incident---Complainant party was resident of a place located at a distance of 2 and 2-1/2 Kms away from place of incident---Prosecution did not claim any altercation between accused persons and deceased (the person involved in second part of the incident) nor it was alleged that deceased was armed with any weapon, or was suspected by accused persons to cause harm to them---Targetting the deceased, in circumstances, appeared to be without any motive or consideration---Motive regarding matter of theft, though was pleaded against accused persons, but was never proved---Absence of any direct motive or reason, the second part of the incident was also the result of concealment of fact or was not full truth, benefit whereof was to be extended to accused persons---Place of incident being a market, not bringing the most natural witnesses in the court had adverse inference against the party who was expected to bring such natural and material witnesses---Two witnesses, not claiming to be in company of the complainant party in the first part of the incident, were not examined by the prosecution, but were given up under the plea of having been won-over by accused persons---Such plea was not legally justified to give up a witness---Though it was a prerogative of prosecution to examine witnesses which it wanted, but if evidence of a witness was material, he/she should be brought to court because it was the court to judge evidence of witnesses, and not the party itself---Shopkeeper of the place where the incident took place was neither won-over nor any ill-will was alleged against him, was not examined though he was an independent and natural witness---Accused persons, having never taken the plea of self-defence, Trial Court was not legally justified in considering the case from that aspect and in convicting accused persons on the same set of evidence, which was not believed for the accused persons of first part of the incident---Impugned judgment of the Trial Court was set aside and accused persons were acquitted and were directed to be released, in circumstances.

1995 SCMR 127; 2008 SCMR 95; 2006 SCMR 1707; 1993 SCMR 1602; PLD 2004 SC 663; PLD 2007 Lah. 606; 2005 YLR 1128; 2001 YLR 1392; 1997 PCr.LJ 1646; 2006 PCr.LJ 84; 2001 PCr.LJ 211; 2013 PCr.LJ 153; 1994 PCr.LJ 331; 2013 PCr.LJ 323; 1998 PCr.LJ 63; 2009 PCr.LJ 506; 2009 PCr.LJ 43; 2001 PCr.LJ 1682; 1995 MLD 1532; 2005 MLD 888; 1995 PCr.LJ 275; Zhar Iqbal v. State 2013 SCMR 383 and 2007 SCMR 1427 ref.

Noor Muhammad v. State 2010 SCMR 97 rel.

----Benefit of doubt---Principle---Where two probabilities were possible, the one favouring the accused, had to be taken in consideration, else the principle of benefit of doubt would fail.

Miss Nasira Shaikh for Appellants.

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

Raja Hansraj Naurang for the Complainant.

Date of hearing: 2nd December, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 500 #

2016 Y L R 500

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

MUHAMMAD SALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.233 of 2006 and Confirmation Case No.8 of 2006, decided on 16th April, 2015.

Penal Code (XLV of 1860)----

----S. 302----Qatl-i-amd---Appreciation of evidence---Recovery, proof of---Prosecution witnesses closely related to deceased---Principles---Last seen evidence--Delay in lodging FIR---Abscondance as corroborative piece of evidence---Long imprisonment in jail not to be treated as ground of mitigating circumstances---Accused was alleged to have taken deceased, with whom he had been engaged, at his clinic and murdered her by giving her animals' injection---Trial Court convicting accused, sentenced him to death---Unnatural death of deceased, as described by Medical Officer, had not been denied by defence---Efficiency of doctor had also not been questioned---Prosecution witness, employee of convict at his clinic, had given details of entire episode, which had happened at clinic leading to murder of deceased---Said witness had no motive to falsely implicate accused in the present case---Prosecution witness, member of same community, deposed that he had seen deceased while going with convict to his clinic and that he had also seen the dead body being recovered by police from clinic of accused---Prosecution witnesses had denied suggestion that convict had no clinic---Prosecution witness, mother of deceased, deposed that motive behind murder of her daughter was that accused was already engaged with her deceased daughter but he wanted to marry some other woman, for which reason he had murdered the deceased---Recovery of dead body of deceased provided full corroboration to last seen evidence---Deceased went with accused at his clinic and never returned---Matter was reported to police after three days of her disappearance, and after recovery of dead body, FIR was registered after about twenty days---Relatives of deceased had made efforts to search deceased and to contact accused---Delay in lodging of FIR had been sufficiently explained, and same would not be fatal to prosecution evidence---Evidence of prosecution witnesses was fully corroborated with medical evidence, which was quite reliable---Evidence of prosecution witnesses was quite reliable, trustworthy and confidence inspiring---Last seen evidence, corroborated by medical evidence, had connected accused with commission of offence---Accused failed to furnish plausible explanation as to at what point and where deceased had separated from him---Evidence on record, showed that dead body had been recovered from clinic of accused along with incriminating articles such as pickaxe, bloodstained Chadder and blood stained soap---No mala fide had been brought on record against prosecution witnesses---Brother and other relatives of deceased had identified her dead body and clothes---No enmity or defect in evidence had been pointed out---After commission of offence, accused had absconded away for six years, which was deliberate and intentional to avoid interrogation---Conduct of accused and his unexplained abscondance was also corroborative piece of evidence connecting him with the present case---Mere relationship of witnesses with deceased by itself was not sufficient to discard their evidence---Presence of accused, at place of occurrence, at relevant time, could not be doubted---All pieces of circumstantial evidence, when combined with together, provided strong chain of circumstances, leading to conclusion that accused had committed murder of deceased---Plea of accused that he had already remained in jail for more than thirteen years would not be ground of mitigating circumstances for lesser punishment---Present case was one of callous, brutal murder of innocent girl in premeditated and calculated manner---High Court maintained death sentence as awarded by Trial Court---Appeal was dismissed in circumstances.

Case-law ref.

Amir Mansoob Qureshi for Appellant.

Ms. Rahat Ashan, Deputy Prosecutor General Sindh for Respondent.

Shahadat Awan for the Complainant.

Date of hearing: 30th March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 523 #

2016 Y L R 523

[Sindh]

Before Abdul Rasool Memon, J

MOINUDDIN alias WASEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.237 of 2014, decided on 17th April, 2015.

Sindh Arms Act (V of 2013)---

----S. 23-A (ii)---Recovery of weapon---Appreciation of evidence---Benefit of doubt---Accused was convicted by Trial Court and sentenced to imprisonment for six years---Validity---Neither memo of arrest nor statement of complainant reflected that on seeing police, accused tried to escape from Wardat (occurrence)---Either prosecution witnesses were not present together at the time of alleged recovery or accused was not arrested as alleged by prosecution---Trial Court escaped such points while writing judgment---Not necessary that there should be many circumstances for extending benefit of doubt but if a simple circumstance had created reasonable doubt in prudent mind about guilt of accused then he was entitled to its benefit not as a matter of grace and concession but as a matter of right---Prosecution failed to establish charge against accused beyond shadow of doubt---High Court, extended benefit of doubt to accused, set aside conviction and sentence awarded by Trial Court---Appeal was allowed in circumstances.

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

2008 SCMR 1221 and 1995 SCMR 1395 rel.

Muhammad Arif Khan Niazi and Syed Aamir Shah for Appellant.

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

Date of hearing: 19th March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 546 #

2016 Y L R 546

[Sindh]

Before Irfan Saadat Khan and Shahab Sarki, JJ

DILDAR---Applicant

Versus

The STATE---Respondent

Cr. Misc. Application No.D-133 of 2015, decided on 30th March, 2015.

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

----Ss.7 & 19 (10)---Penal Code (XLV of 1860), Ss. 302 & 365-A---Criminal Procedure Code (V of 1898), Ss. 540 & 561-A---Terrorism, qatl-i-amd and kidnapping for ransom---Recalling of prosecution witnesses---Trial Court appointed senior advocate to defend accused on State expenses, later on accused engaged his own counsel who relied upon cross-examination conducted by previous counsel---Application filed by accused for re-summoning of prosecution witnesses for cross-examination was dismissed by Trial Court---Validity---Complainant and prosecution witnesses were cross examined at length and examination in chief and cross-examination of 8 out of 11 prosecution witnesses was conducted in presence of private counsel of accused, who chose to adopt cross-examination already conducted by the counsel provided by the State---No objection of any sort was available on record which could reflect that private counsel so engaged raised any objection or sought opportunity and the same was denied to them---High Court declined to interfere in order passed by Trial Court---Application was dismissed in circumstances.

Ghulam Rasool Shah and another v. The State 2011 SCMR 735; Ghulam Fareed and others v. Mohammad Shafique and another 2004 PCr.LJ 1060; Zaheer Abbas v. The State 2008 YLR 1225; Irfan Qadri v. ATC-III, Karachi and another PLD 2014 Sindh 364; Deedar v. Abdullah and another 2013 PCr.LJ 1593 and Mohammad Arif Mairaj v. The State and others PLD 2015 Lah. 26 distinguished.

Nusrat Hussain Memon for Applicant.

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

Date of hearing: 30th March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 559 #

2016 Y L R 559

[Sindh]

Before Hasan Feroz, J

MUHAMMAD ASLAM---Applicant

Versus

The STATE---Respondent

Crl. Misc. Application No.344 of 2012, decided on 3rd October, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.173 & 561-A---Copyright Ordinance (XXXIV of 1962), Ss. 56, 66, 67 & 74---Copyright, infringement of---Reinvestigation---Grievance of accused was that police submitted investigation report under class "C" which was accepted by Magistrate but on application filed by complainant he passed an order to reinvestigate the matter---Validity---No legal limit existed under S.173, Cr.P.C. to the number of investigations which could be held into a crime---When one investigation was not fully completed by submission of report under S.173, Cr.P.C. another could be begun to dig out and collect fact and evidence due to incomplete investigation---High Court declined to quash the order passed by Magistrate, as the same did not suffer from any infirmity---Petition was dismissed in circumstances.

Qamar Riaz for Applicant.

Waqar Ahmed Abbasi for the Complainant.

Abrar Ali Kitchi, APG for the State.

Date of hearing: 27th August, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 572 #

2016 Y L R 572

[Sindh]

Before Naimatullah Phulpoto and Shahnawaz Tariq, JJ

MUHAMMAD NADEEM---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.D-39 of 2014, decided on 23rd January, 2015.

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

----S. 13 (d)---Criminal Procedure Code (V of 1898), S. 103---Recovery of weapons---Appreciation of evidence---Public witness, non-association of---Police encounter---Proof---Benefit of doubt---Accused was convicted and sentenced to imprisonment for seven years by Trial Court---Validity---Encounter between accused and police party with the distance of some paces which continued for five minutes but none from either side sustained any bullet injury or any passerby as it happened in a populated area particularly in a bright day and availability of general public could not be ignored---Complainant police official did not depose that on his arrival at police station, recovered arms and ammunitions were handed over to Investigating Officer nor Investigating Officer stated in his evidence that such recovered arms and ammunitions were received by him from complainant for conducting investigation---Non-availability of such iota of evidence was fatal lacuna on the part of prosecution which established that prosecution story was not confidence inspiring---Investigating Officer failed to send alleged recovered arms and ammunition to Forensic and Ballistic Experts to find out that the same were in functioning condition nor any such report was produced before Trial Court---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

1995 SCMR 1345; 1998 PCr.LJ 1287; 1998 PCr.LJ 1399; 1999 PCr.LJ 595; 2002 PCr.LJ 51; 2004 PCr.LJ 290; PLD 1986 SC 146 and PLD 1966 SC 708 ref.

State v. Bashir and others PLD 1997 SC 408 rel.

(b) Criminal trial---

----Benefit of doubt---Applicability---For giving benefit of doubt to accused it is not necessary that there should be many circumstances creating doubts---If a single circumstance creates reasonable doubt in a prudent mind about guilt of accused then he is entitled to such benefit not as a matter of grace and concession but as a matter of right.

Safdar Ali G. Bhutto for Appellant.

Khadim Hussain Khooharo, DPG of the State.

Date of hearing: 14th January, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 577 #

2016 Y L R 577

[Sindh]

Before Dr. Rana Muhammad Shamim, Ali Sain Dino Metlo and Abdul Rasool Memon, JJ

JAVED AHMED SIDDIQUI and others---Appellants

Versus

The STATE---Respondent

Special Anti-Terrorism Appeals Nos. 77, 79 and 80 of 1999 and Confirmation Reference No.23 of 1999, decided on 29th January, 2015.

Per Dr. Rana Muhammad Shamim, J.; Abdul Rasool Memon, J., Agreeing [Majority view]

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

----Ss. 302(b), 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(i)---Qatl-i-amd, robbery, common intention, act of terrorism---Appreciation of evidence---Confession of accused persons, was partly inculpatory and partly exculpatory---Record showed admissions and confession of accused persons, one recorded before the Police and other before the Magistrate under S.164, Cr.P.C.---Accused persons in their statements before the Police, had admitted the murder, but while recording the statements before the Magistrate, they all had shifted the burden as to murder to each other, while admitting the robbery---Accused persons had failed to prove that there was no other evidence to show affirmatively that any portion of the exculpatory element in the confession was false---Prosecution had been able to adduce sufficient evidence bearing on the guilt of accused persons other than the confession---Female accused in her confessional statement had pointed out as to where the dead bodies were lying---Same was corroborated by other accused persons in their confessional statements---All accused persons had admitted the crime weapon to be two churries, which were recovered on the pointation of one of accused persons---Place from where said recovery was effected, was in their exclusive knowledge---All accused persons had clearly stated that they committed murder with two chhurries, which had also been corroborated by medical evidence---Said pieces of evidence, were sufficient to hold that the confessions of accused persons were corroborative in nature---Technicalities agitated by counsel for accused persons should not be considered, especially when those were so minor that same could be ignored in the facts and circumstances of the present case---Evidence had been properly recorded by the Trial Court---Evidence of witness of recovery, was consistent on material aspects, and defence could not shatter his testimony during lengthy cross-examination---Trial Court had carefully examined the evidence of defence witnesses in the impugned judgment---Counsel for accused persons, had not been able to give a satisfactory reply as to the contradictions in the evidence of defence witnesses---Prosecution in its evidence, had proved the presence of accused persons at the place of occurrence; on the other hand none of accused persons could produce any confidence inspiring evidence as to their presence somewhere else---Magistrate/Investigating Agencies, had taken all precautionary measures to have a transparent and impartial proceedings as to remand, identification parade, confessional statement etc. so that the court/Investigating Agencies, could not be scandalized---Prosecution had proved its case against accused persons beyond reasonable doubt; and accused persons had been rightly convicted by the Trial Court---No reasonable grounds existed to interfere with the judgment of conviction---Appeals were dismissed and Reference was answered in affirmative.

AIR 1952 SC 343 (354); AIR 1931 Allahabad 1; 2008 SCMR 670; AIR 1952 SC 159; 1975 PCr.LJ 70(74) A; PLD 1975 SC 187 (191) C; 1984 PCr.LJ 611 (616)C (619)E (620); 1985 MLD 604 (625)J (631)Q; PLD 1990 Kar. 275; PLD 1987 Quetta 96 (102)B; 2006 SCMR 1707 1713(E); AIR 1976 SC 6 (73); AIR 1999 SC 3318 (Paras 18 and 19); 1999 SCMR 1345; 1992 SCMR 196; PLD 1996 SC 1(D); PLD 1995 SC 336(B); 1995 SCMR 985 and 1995 SCMR 1359 distinguished.

PLD 1991 SC 923; PLD 2006 SC 219; PLD 1960 SC 313; PLD 2007 SC 202; 1972 SCMR 363; AIR 1958 SC 1958; AIR 1973 SC 264; AIR 1963 SC 1094; AIR 1966 SC 40; 2002 SCMR 1173; 2000 SCMR 1969; PLD 1984 FSC 55; PLD 2005 SC 477; PLD 2006 SC 30; 1999 SCMR 1818; 2004 SCMR 331 and 1992 SCMR 1983 ref.

Per Ali Sain Dino Metlo, J. [Minority view]

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

----Ss. 302(b), 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(i)---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, robbery, common intention, act of terrorism---Appreciation of evidence---Confession, scope and admissibility of---No eye-witness was on the incident, and case of the prosecution was mainly based upon the judicial confessions---For a confession to be admissible in evidence, it was necessary that it should be free and voluntary---Confession, which was not free and voluntary, could not be legally relied upon even if it was true---For the purpose of relying upon a free and voluntary confession, it was necessary that it should be true as well---It was not necessary that all voluntary confessions be true---There could be many reasons, such as mistake of bail, mistake of law, motives of love, hate, fear, hope, vanity etc., for a voluntary confession to be true---For a confession to be relied upon, it was necessary that it should be both voluntary as well as true---It could not be relied upon, if there be doubt about its truth or voluntariness---Conviction, was not to be based upon a retracted confession, unless materially corroborated by other evidence---That principle, which was called principle of prudence, was seldom deviated---Repudiation of confession, itself cast doubt about its truth and voluntariness---For the purpose of relying upon a retracted confession, it was necessary to keep in mind the methods of policing prevailing in country---True and voluntary confessions were supposed to be the outcome of penitence and remorse on the part of the confessers---Court of justice, needed to be very cautious in relying upon repudiated confession, particularly in a blind case of sensational nature---Present case in which three members of a family were brutally slaughtered, was of sensational nature---In the present case, not only the confessions were repudiated as soon as accused persons were brought before the Trial Court, but those also appeared to be neither voluntary nor true---Confession of female accused was recorded after seven days of arrest, her one of co-accused after six days and of other two after four days of their arrest---Mere delay in recording a confession, though could not be sufficient to discard it, but there must be some plausible explanation for the delay---For the purpose of ensuring voluntary nature of a confession, the most important precaution, Magistrate was required to take, was that he should remove the fear of Police from the mind of the confessor by assuring that he would not be handed over back to Police, even if he did not make the confession---In the present case no such assurance was given to accused persons---Truth of the confession made by accused persons, was also highly doubtful---So called confession of female accused, was in fact a plea of innocence and not confession---Female accused, neither admitted to be party to the offences, she was charged with, nor she admitted any fact constituting an ingredient of said offences---Her statement could not be termed as confession---Best way of testing truth of confessions of more than one partner in a crime, was to see whether they tally with each other---In the present case, all accused persons had given different versions about every material aspects of the case---Regarding murders also all accused persons had given different versions---In presence of material contradictions in the confession, their truth had become highly doubtful---All the accused had given different version about robbery---Evidence of recovery of crime weapons, which too had been heavily relied upon by the Trial Court, also did not inspire any confidence---It could not be said with any degree of certainty that the weapons were recovered on the pointation of accused---Recovery of stolen property, had been disbelieved by the Trial Court---Recovery of burnt shirt from a third ground on the pointation of accused, was also devoid of any evidentiary value---Evidence of identification of accused by prosecution witness, had been disbelieved by the Trial Court after a detailed discussion---Evidence of pointing out the place of incident and places of recovery of weapon of offences by accused persons, was also devoid of evidentiary value, as those places had already been inspected by the Police; and no secret was discovered on their pointation---Prosecution had failed to prove the charges against accused persons; and the Trial Court, was not justified in convicting them---Appeals of accused persons, were allowed, their convictions and sentences were set aside and they were acquitted; Reference for confirmation of death of accused persons, was rejected, in circumstances.

AIR 1952 SC 343 (354); AIR 1931 Allahabad 1; 2008 SCMR 670; 1985 MLD 604; AIR 1952 SC 159; 1975 PCr.LJ 70(74) A; PLD 1975 SC 187 (191) C and 1984 PCr.LJ 611 (616)C (619)E (620) ref.

----'Confession', dictionary meaning and juristic interpretation.

Per Abdul Rasool Memon, J., agreeing with Dr. Rana Muhammad Shamim, J. [Majority view]

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

----Ss. 302(b), 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(i)---Qatl-i-amd, robbery, common intention, act of terrorism---Appreciation of evidence---Prosecution case was based on circumstantial evidence---Accused could be convicted and sentenced on the basis of circumstantial evidence, provided no link of chain was found missing and all circumstances lead to the guilt of accused---Female accused, in the present case, was proved to be present in her home where incident took place and she was very much aware what happened at the time of incident---Complainant, had immediately reached on the place of incident, and had also acted as one of the Mashirs of inspection of warrant---Evidence of complainant disclosed the scenario of place of incident---Evidence of complainant was fully supported by prosecution witness---Incident did not seem to be an act committed by a single person---Magistrate, before recording the confessional statements of accused persons observed all legal formalities---Counsel for accused, could not point out any flaw, or defect in the manner in which confessional statements were recorded---Admission to guilt made by accused were not result of coercion, under influence; inducement or promise, but were made by them out of their free will---Each and every answer recorded in confessional statements, was authenticated by accused themselves by putting their respective signatures---In absence of any evidence, presumption would be towards its truthfulness---Mere fact that confessional statements were made after 4th or 6th day of their arrest, would not be indicative of any doubt regarding voluntariness---Accused persons, though retracted their confessions, but the reason given in the confessional statement, was in line with medical evidence, and found strong corroboration from other evidence produced by the prosecution---Judicial Magistrate, who recorded confessional statements under S.164, Cr.P.C., had fully supported the proceedings, when he appeared as witness in the court---Magistrate deposed that accused were taken into custody of court and after observing legal formalities, recorded confessional statements of accused, one by one; after providing them required time, turn by turn---Magistrate was satisfied that accused were confessing voluntarily---Proceedings conducted by Judicial Magistrate, could not be doubted, unless proved contrary---Factum of confessional statements being true, was further supported by medical evidence, which was also coincided with the confessional statements of accused---Evidence of Doctor, went unchallenged and un-rebutted as she was not cross-examined by defence---Confessional statements of accused, were also supported by evidence of prosecution witness---Recovery of crime weapon and robbed property, had supported the confessional statements---Motive, initially was not set up by the prosecution in FIR as no person was nominated as an accused---Clue of motive was given out by accused themselves for the commission of crime of murder of three human beings when they confessed their guilt before Investigating Officer and Magistrate---Nothing was brought on record by the defence to make evidence as doubtful---Evidence of both the defence witnesses, was quite contradictory with the statements of accused---Accused having not taken plea of alibi at initial stage during investigation, evidence of defence witness did not appear trustworthy and believable---Accused was obliged to prove the specific plea taken by him/her---Defence plea was totally baseless and concocted one---Prosecution had successfully established the charge against accused persons---Events and circumstances had proved that accused had committed heinous crime of brutal murder by cutting throat of three human beings in furtherance of their common intention; they were vicariously liable for punishment of murders---Plea of life expectancy, was per se not a valid ground for awarding lesser punishment---Normal penalty of death sentence imposed by the Trial Court upon accused persons, was proportionate to the gravity of offence---All appeals were dismissed and Reference made by the Trial Court was accepted.

PLD 1991 SC 923; 1992 SCMR 1983; PLD 2006 SC 219; PLD 1960 SC 313; AIR 1958 SC 1958 and AIR 1963 SC 1094 rel.

AIR 1976 SC 6 (73); AIR 1999 SC 3318 (Paras 18 and 19); 1999 SCMR 1345; 1992 SCMR 196; PLD 1996 SC 1; PLD 1995 SC 336 (B); 1995 SCMR 985; 1995 SCMR 1359; PLD 2007 SC 202; 1972 SCMR 363; AIR 1973 SC 264 and AIR 1966 SC 40 ref.

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

----S. 302(b)--- Qatl-i-amd--- Medical evidence--- Scope--- Medical evidence, simply would state the number and seat of injuries, the weapon used, probable time of occurrence and other ancillary details, but it could not identify the assailants, who inflicted those injuries, which had to be established either through direct ocular account or through circumstantial evidence.

Waqar Shah for Appellants (in Spl. ATA No.77 of 1999).

A.Q. Halepota for Appellants (in Spl. ATA No.79 of 1999).

Iqtidar Ali Hashmi for Appellants (in Spl. ATA No.80 of 1999).

Saifullah, Assistant Advocate General Sindh for the State.

Dates of hearing: 19th, 20th, 21st August, 1st, 8th, 15th and 22nd September, 2008.

YLR 2016 KARACHI HIGH COURT SINDH 633 #

2016 Y L R 633

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

RAFIQ SODHAR and 2 others---Appellants

Versus

The STATE---Respondent

Crl. Jail Appeal No.D-38 of 2013, decided on 1st April, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 149---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-i-amd, common object, act of terrorism---Appreciation of evidence---FIR was promptly lodged---Prosecution witness had provided elaborate details about the manner, in which a gruesome blood bath had taken place on the road during day time; and also role played by accused persons in the incident---Both eye-witnesses had absolutely no ill-will or animosity against accused; so as to prompt them to falsely implicate them in that grave offence---Both the eye-witnesses though were closely related to one of the deceased, but mere relationship with the deceased in the absence of established hostility, or any other motive to depose against accused, would not be sufficient to hold them to be interested witnesses; and their testimony would not be discarded on that ground alone---No previous enmity between the complainant party and accused persons had been established---Substitution was a rare phenomenon, close relatives of the deceased, would not allow the real murderer to go scot-free and to falsely implicate someone else in place of the original culprit---Not necessary in every case that all the persons who were under attack with firearms, ought to have received injuries---Mere fact that prosecution witnesses did not receive injuries, would not make their presence at the place of incident doubtful---Eye-witnesses had given probable cause of their presence at the place of occurrence; they could not be termed as chance witnesses, in circumstances---Ocular account, was consistent and inspired confidence on all material points---Contradictions in the prosecution evidence, as pointed out by defence Counsel, were minor in nature, and insignificant having no material bearing upon the fate of case---Evidence of eye-witnesses, was fully corroborated by the medical evidence---Demand of "Bhatta", recoveries of incriminating articles, and Ballistic Expert's positive report, had further corroborated the same---Motive as set up by the prosecution regarding demand of "Bhatta" from the deceased, though was not admitted by accused persons in their statements recorded under S.342, Cr.P.C., but in the cross-examination, it had not been specifically denied---Motive, in circumstances, was proved by the prosecution---No defence evidence had been led---Present case was one of callous, brutal and merciless butchery of two innocent persons in cold blood in a premeditated and calculated manner---Trial Court double murder case had taken a lenient view, and awarded lesser punishment without assigning the reasons---Prosecution had proved its case against accused persons; and Trial Court did not commit any illegality in recording the conviction against accused persons for the offence of murder of two persons---Impugned judgment did not suffer from any inherent defect---Trial Court had rightly appreciated the evidence in accordance with settled principles of appraisal of evidence---No interference, was required by High Court---Judgment of the Trial Court was upheld and appeal which merited no consideration, was dismissed, in circumstances.

Ijaz Ahmed v. The State PLD 2009 SC 99 ref.

Habibullah G. Ghouri for Appellants.

Khadim Hussain Khooharo, Deputy Prosecutor General for the State.

Date of hearing: 25th February, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 671 #

2016 Y L R 671

[Sindh]

Before Salahuddin Panhwar, J

Chaudhry MANZOOR AHMED through Legal Representatives and another---Applicants

Versus

FAISAL MANZOOR and 5 others---Respondents

Civil Revision No.102 of 2012, decided on 30th March, 2015.

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

----Ss. 9, 39, 42 & 54---Suit for declaration, cancellation, possession, mesne profit and permanent and mandatory injunction---Plaintiff and one of defendants i.e. his father inherited shares in suit property after death of his mother---Plaintiff alleged that since he had not been residing in the city he executed power-of-attorney in favour of his father in year 1996, however, after knowing his intention to dispose of suit property to another party he cancelled power-of-attorney in year 1997 and handed over cancellation deed to his father and demanded to hand-over possession of suit property---Defendant/father kept plaintiff on false hopes and by taking advantage of absence of plaintiff transferred suit property in favour of other person/Vendee i.e. his second wife---Defendant/Vendee contested suit by denying cancellation of power-of-attorney and claimed to have purchased land through a legal document for valuable consideration paid to the plaintiff and that suit property was in fact property of defendant/father and title in name of plaintiff's mother was benami---Defendant/vendee also alleged that sale in her favour was with consent of plaintiff and he never objected the same for about 10 years---Suit was dismissed being barred by limitation---Appeal against judgment of Trial Court was allowed---Validity---Plea of defendant that status of property was benami lost its substance in view of admission of defendant/father that his name was entered in fotikhata according to his shares after death of his first wife---Admission of defendant/father was sufficient to prove that he had never claimed property to be benami---Revision was dismissed in circumstances.

PLD 2003 SC 31 ref.

Amna Rani v. Ashfaq Ahmad 2008 SCMR 805 and Muhammad Yasin v. Dost Muhammad PLD 2002 SC 71 rel.

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

----S. 182---Agency---Scope---General power-of-attorney, construction of---'General words' interpretation of---Principles---Implied authority to alienate property---Scope---Transfer to fiduciary relationship, pre-requisites---Power-of-attorney is a written authorization by virtue of which principal appoints a person as his agent and confers upon him authority to perform certain acts---Power-of-attorney must be strictly construed and object and scope must be seen in the light of its recital to ascertain manner of exercise of authority in relation to terms and conditions specified in instrument---'General words' used in special power-of-attorney or object of instrument should be read and interpreted with reference to special power or object of instrument as it is not label but intention of instrument which matter---General words when mentioned in instrument were required to be construed with object and scope of the instrument---In order to achieve some object, instrument must contain a clear separate clause devoted to said object---Implied authority to alienate property would not be readily deduceable from words spoken or written which do not clearly convey principal's knowledge, intention and consent about the same---Whenever a general attorney transferred property of his principal in his own name or in name of his close fiduciary relations, he had to take special permission from the principal.

Amna Rani v. Ashfaq Ahmad 2008 SCMR 805; Muhammad Yasin v. Dost Muhammad PLD 2002 SC 71; Imam Din v. Bashir Ahmed PLD 2005 SC 418; Fida Mohammad v. Muhammad Khan PLD 1985 SC 341; Mohammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114 and Mohammad Yasin and another v. Dost Mohammad and others PLD 2002 SC 71 rel.

----Art. 92---Contract Act (IX of 1872), S. 182---Registration Act (XVI of 1908), S. 17---Presumption as to document---Registered document---Status---Abtalnama for revoking general power-of-attorney executed without consideration---Effect---When a document was registered document in accordance with law, it always carried sanctity therewith and strong evidence was required to cast an aspersion on genuineness thereof---Such document was not only binding between the parties executing same but it was also binding on third parties---When power-of-attorney executed was not claimed to be against consideration its executor was authorized to revoke the same.

Rasool Bukhsh and another v. Mohammad Ramzan 2007 SCMR 85 rel.

(d) Pleadings---

----Principle---What is not in pleadings could not be considered if taken up subsequently.

(e) Sale---

----Consideration of---Principles---Bona fide owner---Status---In absence of payment of consideration "sale" did not become complete and where vendee has failed in proving payment of consideration or due diligence before taking title, he could not claim protection available to bona fide owner.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Imam Din v. Bashir Ahmed PLD 2005 SC 418 rel.

(f) Limitation---

----Knowledge of party---Limitation ran from date of knowledge of party.

Sundar Das for Applicants.

Zahid Khan Bangash for Respondent No.1.

Ashfaq Nabi Qazi, Asstt. A.G. for the State.

Date of hearing: 16th February, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 719 #

2016 Y L R 719

[Sindh]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

GHULAM ZAKRIYA---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 5 others---Respondents

C.P. No.D-3986 of 2015, decided on 3rd November, 2015.

Sindh Local Councils (Election) Rules, 2013---

----R. 20----Withdrawal of candidature after due date---Legality---Petitioner, and respondent, filed joint nomination papers for post of Chairman---Returning Officer accepted application of respondent for withdrawal of his nomination papers even after date of expiry of date of withdrawal---Contention raised by petitioner was that respondent had been put under pressure by the ruling political party to withdraw his nomination, and signatures on the withdrawal application had been obtained forcibly---Counter affidavit was filed to support said contentions of petitioner---Validity---Factual controversy involved in the present case was undisputed---Respondent had categorically stated before the court that he wanted to contest the elections---Respondent had withdrawn his nomination papers and Returning Officer had passed order of withdrawal, after expiry of given date for withdrawal of nomination papers---Said withdrawal was, therefore, of no legal consequence---High Court, setting aside impugned order of withdrawal, restored nomination papers filed by parties---Constitutional petition was allowed accordingly.

Achar Khan Gabole for Petitioner.

Illahi Bux Jamali for Respondent No.6.

Noor Hassan Malik Asst. A.G. for the State.

Mian Mumtaz Rabbani DAG.

YLR 2016 KARACHI HIGH COURT SINDH 748 #

2016 Y L R 748

[Sindh]

Before Muhammad Shafi Siddiqui, J

Lt. CDR. Mirza MANSOOR HUSSAIN QAZALBASH through Attorney---Plaintiff

Versus

Syed MOHAMMAD FAHEEM and 4 others---Defendants

Suit No.164 of 1996, decided on 5th October, 2015.

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

----Ss. 42, 39 & 55----Transfer of Property Act (IV of 1882), S. 54---Suit for declaration, cancellation, mandatory injunction and damages---Bona fide purchaser without notice---Determination---Public notice before purchase of immovable property, requirement of---Principles---Transfer documents found to be forged under Handwriting Expert report---Special damages, award of---Scope---Plaintiff filed present suit claiming that while he was out of country, Defence Housing Authority had fraudulently transferred his plot to defendant, who subsequently transferred same to other defendant, and who finally transferred in favour of the other defendants-subsequent purchasers---Defendant-Defence Housing Authority took the plea that suit plot was transferred in favour of defendants after cancellation of original allotment order with notice to plaintiff---Defendants-subsequent purchaser took plea that they were bona fide purchasers without notice and had taken all necessary steps to ascertain title of suit plot---Validity---Defendant-DHA's witness had not denied issuance of allotment order in favour of plaintiff and stated that transfer of suit plot in name of defendants had been made on basis of transfer affidavit, undertaking and certified true copy of said allotment order---Allotment letter stood proved---Neither defendant's witness stated that DHA had cancelled allotment order nor any document was filed or exhibited in that regard---Defendant-DHA had only relied on documents regarding transfer of suit plot in favour of defendant, and had not exhibited the same---Defendant-DHA stated to have communicated allotment order to plaintiff after about nineteen years and that also at address different from the one available in original allotment order---Plaintiff produced certificate to show that address on subsequent disputed allotment or transfer order was not in existence, which was correct---Defendant-DHA was unable to satisfy as to how and in what manner subsequent allotment order was again issued to plaintiff after nineteen years---No notice appeared to have been served upon plaintiff regarding cancellation of his allotment on any account---Credibility of subsequent allotment order as relied upon by defendant-DHA was disputed---Subsequent allotment letter was, therefore, false and manipulated document and same was result of collusion between defendants---Original allotment order was never cancelled nor was any notice in that regard issued or served upon plaintiff---Passport entries of plaintiff showed that he was not available in Pakistan on the date of transfer of suit plot in favour of defendants or on any date when such transfer had allegedly taken place---Handwriting Expert's report suggested signatures of plaintiff on alleged transfer affidavit to be a "credible forgery"----Signatures on alleged transfer affidavits appeared to be dissimilar inasmuch as pen presentation, curve, tremor in connectivity of pen movement and credible evidence of copied forgery with those of specimen and routine signatures of plaintiff---Transfer documents relied upon by defendants were manipulated and forged and result of collusion between defendants---Defendants-subsequent purchasers did not cross-examine additional witnesses of plaintiff---Statements of defendant-DHA's witnesses were contradictory as to issuance of certified true copy for suit plot for transfer in favour of defendants---Plaintiff had not created any transfer of title or allotment of suit plot as claimed by DHA---Although defendants-subsequent purchasers had opted not to issue public notice before purchase of suit plot, but they could not have traced forgery, as record of DHA showed alleged entitlement of defendant to sale---Defendants-subsequent purchasers were, therefore, bona fide purchasers without notice---Present was not a case of serious negligence but a deliberate attempt to deprive plaintiff from his property by defendant-DHA and defendants---Plaintiff was entitled to claim damages, which were to be calculated according to market value of suit plot---Plaintiff was also entitled to special damages as he had been suffering both mentally and monetarily---Suit was decreed in favour of plaintiff to the extent of damages including sum of rupees equivalent to current value of suit plot and sum of rupees ten million as special damages.

Messrs Raeea Amrohvi Foundation (Regd.) v. Muhammad Moosa and others 1999 CLC 296 ref.

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

----S. 54----Immovable property---Bona fide purchaser without notice---Determination---Although defendants-subsequent purchasers had opted not to issue public notice before purchase of suit plot, but they could not have traced forgery, as record of Housing Authority showed alleged entitlement of defendant to sale---Defendants-subsequent purchasers were, therefore, bona fide purchaser without notice.

Muhammad Wasif Riaz for Plaintiff.

Waqar Muhammad Khan Lodhi for Defendants Nos. 3 and 4.

Jawed Iqbal for Defendant No.5.

Date of hearing: 17th September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 773 #

2016 Y L R 773

[Sindh]

Before Salahuddin Panhwar, J

PROVINCE OF SINDH through Secretary Forest Department and 2 others---Applicants

Versus

NOOR MUHAMMAD and 12 others---Respondents

Civil Revision Appln. No. 181 of 2009, decided on 24th December, 2014.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 79---Qanun-e-Shahadat (10 of 1984), Arts. 129 (g), 74, 75, 76 & 118---Suit for declaration and permanent injunction--- Field Book--- Secondary evidence--- Scope--- Darya Khurdi---Ingredients---Contention of defendants was that land in question was owned by the Forest Department---Suit was decreed concurrently---Validity---Field Book was not a 'title document' but it was a simple entry which was maintained/kept by the Tapedar while visiting the site---Field Book would not create any right of ownership unless incorporated into 'Jamabandi' (Haqan-jo-register) but the same would show only possession at a relevant date and time---Field Book record and Dhall receipts were the documents which would carry the signature of the Tapedar alone without any attestation or confirmation by other revenue officer(s)---Field Book entries produced by the plaintiffs were with regard to two months i.e. November, 1881 and December, 1881---Plaintiffs had failed to produce subsequent entries to establish continuity of possession---Plaintiffs had not produced a single document to show that entries of such Field Book were transcribed/entered in the record of rights---Non-production of such record should have been taken adverse to the plaintiffs---Plaintiffs had not produced the originals of such documents but had produced copies thereof---Document should be proved by 'primary evidence'---Plaintiffs though had produced the certified copy of such documents but not through the official (s) concerned who were the custodian of the record---No reason had been shown by the plaintiffs or justification for non production of 'primary evidence' on record as required by law---Secondary evidence without any proper explanation for non-production of primary evidence was not worth consideration---Owner of the lost land to the river would remain the owner upon the reformation of such land if it could be identified and act of nature or other acts upon which the owner had no control would not prejudice the right of owner if lost property was later reformed and identified---One would have to establish his ownership before eroding of the land; revival of land and reformation of land and its identification as the same land to claim a right of ownership over the property (land etc) under right of 'Darya Khurdi'---'Darya Khurdi' right could not be insisted without establishing eroding of owner's land/property and its reformation---Plaintiffs had failed to prove their such right over the land in question---Plaintiffs could not prove their ownership with regard to suit property---Only revenue authorities could demarcate the estate and fix boundaries thereof---Plaintiffs had not approached the revenue authorities for identification of their claimed eroded land nor had examined any witness or official to prove such aspect---Right of 'Darya Khurdi' of plaintiffs if any could not be entertained nor suit land could be given to them against such claim---Failure or weakness of rival should not be taken as a circumstance to prove the case of plaintiff rather he had to stand on its own stance---No issue with regard to title documents showing the suit land to be forest land was ever framed by the Trial Court---Court could not pass a judgment and decree which either directly or indirectly would affect the status of a document (title) without framing a proper issue with regard to legal status of such document---Plaintiff could not be absolved from his legal and bounden obligation to prove his claim where rival was such which had no interest to deny his claim---Findings recorded by the courts below were the result of improper appreciation of evidence, material and record---Plaintiffs could not claim to be in lawful possession of suit land---Plaintiffs had failed to establish their ownership with regard to land in question---Forest Department was owner of suit property having documentary proof in its favour---Plaintiffs had not challenged the legality of such documents---Suit of plaintiffs did not have complete relief available to them which they were required to make under O. II of Civil Procedure Code, 1908---Suit of plaintiffs was barred under providing clause of S. 42 of Specific Relief Act, 1877---Province should be sued through the Secretary to that department---Plaintiffs had not sued the Province properly as Province was sued through Deputy District Officer (Revenue)---Deputy District Officer (Revenue) was not the higher authority of the Forest Department nor did he qualify the meaning of "Head of the District" which was the 'Collector' (Commissioner)---Suit of plaintiffs was not maintainable under S. 79, C.P.C. which was mandatory in its nature---Impugned judgments and decrees passed by the courts below were result of misreading and non-reading of available record which were set aside and suit was dismissed---Revision was accepted in circumstances.

1991 SCMR 16; Muhammad Yousaf v. Muhammad Zafar 2009 YLR 90; Riazuddin v. Muhammad Aslam PLD 1985 Kar. 411(a); Evacuee Trust Property Board v. Mst. Sakina Bibi 2007 SCMR 262; Punjab Industrial Development Board v. United Sugar Mills Limited 2007 SCMR 1394; Muhammad Bashir v. Muhammad Hussain 1994 CLC 1207; Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 88; Farid Khan v. Abdul Latif PLD 1994 SC 353; Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676; Province of The Punjab v. Ch. Mehraj Din & Co. 2003 CLC 504; Sardar Khan Bahadar Khan v. Returning Officer Constituency LA-18. POONCH-2 Civil Judge Hajira. AK 2003 MLD 284; Islamuddin v. Ghulam Muhammad PLD 2004 SC 633, 2001; Sakhi Muhammad v. Muhammad Nasir Bashir 1999 CLC 454; Madad Ali v. Province of Sindh 1996 SCMR 336; Rehmatullah and others v. Saleh Khan 2007 SCMR 729 and Muhammad Ibrahim v. District Judge Appellate Authority Vehari 1985 CLC 2644 ref.

Miss Rifat Hamid Ghani and another v. Muhammad Shasul Jalil and 2 others 1987 CLC 1902 rel.

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

----Art. 74---Secondary evidence---Scope---Certified copy of a document would be considered as 'secondary evidence'.

----Arts. 75 & 76---Document, proof of---Scope---Document should be proved by 'primary evidence'.

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

----S. 79---Suit against government---Province should be sued through the Secretary (being head of the department) to that department.

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

----S. 115---Revision---Scope---Revisional jurisdiction could not be equated to that of appellate jurisdiction---Revision was meant only to correct an illegality/irregularity (in result of mis-reading or non-reading of evidence), question of jurisdiction or excess of jurisdiction was involved while in appeal the whole case would become open---Provision of S. 115, C.P.C. would vest authority to ensure no 'injustice' or 'serious prejudice' with parties should go un-attended.

Muhammad Idrees v. Muhammad Pervaiz 2010 SCMR 5; Noor Muhammad v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Administrator, Thal Development through EACO Bhakkar v. Ali Muhammad 2012 SCMR 730 and Sultan Muhammad v. Muhammad Qasim 2010 SCMR 1630 rel.

(f) Words and phrases---

----'Darya Khurdi'---Meaning---Right of 'Darya Khurdi' was a right which would protect the interest of an 'owner' with regard to his eroded 'land or property' which was later on reformed and identified.

(g) Words and phrases---

----'Raiti'---'Raiti' was a person hired/engaged to possess and cultivate the land for generating the revenue but his status would not be that of a 'landlord'.

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

----S. 4(12)(13)---"Landlord"---Meaning---'Landholder' or one paying 'land revenue' did not acquire the status of 'landlord' or 'landowner' by proving or establishing his possession or mere payment of 'land revenue'.

(i) Administration of justice---

----Court(s) were ultimate custodian of the 'rights of parties'.

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

----S.42---Suit for declaration of ownership of land---Plea that land in question was "forest land"---No issue with regard to title documents showing the suit land to be "forest-land" was ever framed by the Trial Court---Court could not pass a judgment and decree which either directly or indirectly would affect the status of a document (title) without framing a proper issue with regard to legal status of such document.

Ashfaque Nabi Qazi, Asstt. A.G. for Applicants.

Noor Ahmed Memon for Respondents Nos. 1 to 9, 12 and 13.

Date of hearing: 27th November, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 807 #

2016 Y L R 807

[Sindh]

Before Sadiq Hussain Bhatti, J

KADIR BAKHSH---Applicant

Versus

MUHAMMAD IBRAHIM BHUTTO and 3 others---Respondents

Revision Application No.232 of 2011, decided on 13th April, 2015.

(a) Islamic law----

----Pre-emption---Object---Adjacent land sold to a co-sharer---No danger of nuisance---Plaintiff was co-owner of 75% share in a survey and 25% of the survey belonged to defendants which they had inherited, who later on sold said 25 % to another person (defendant)---Plaintiff declared his intention to exercise his right of pre-emption by making Talb-i-Muwathibat and later Talb-e-Ishhad in presence of witnesses but did not produce any witnesses therefor---Plaintiff, after making Talbs, filed suit for pre-emption which was dismissed---Contention raised by plaintiff was that he having major share in said survey was Shafi-e-sharik and having made necessary demands/Talbs was entitled to pre-emption---Defendants took the plea that plaintiff, besides the present case, had filed four suits three for specific performance of contract and one for damages which were dismissed, and concurrent findings of courts below were not subject to interference in revision---Validity---Land owned by plaintiff was situated in boundary wall and there was no danger that any person buying adjacent land would cause any nuisance to him---Purchaser was also one of co-sharers and not a stranger who might cause inconvenience to other partners/co-sharers and it would not be proper and just to force a person to sell his property to neighbour rather than to his kith and kin---Plaintiff had not only claimed to have purchased suit land from its owners on basis of agreement to sell, but he had also filed the present suit for pre-emption, thereby admitting that suit land was validly sold by owners to purchaser---Demands (talbs) made by plaintiff were contrary and did not fulfill requirements of Talb-i-Muwathibat and Talb-i-Ishhad---Plaintiff was bent upon depriving defendants of small piece of land and had failed to show any misreading or non-reading of evidence---High Court dismissed petition for being devoid of merit.

(b) Islamic law---

----Pre-emption---Object---Object and purpose of law of pre-emption is to prevent inconvenience, which may be caused to co-sharer/neighbourer of same land due to introduction of disagreeable stranger as a co-partner or as a neighbour---When a person files suit for pre-emption, prime object will be to prevent any vexation/ trouble to partners/co-sharers, etc. and not to enrich him.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 and Muhammad Miskeen v. Sammandar Khan and 2 others PLD 1991 Lah. 217 ref.

Umar Lakhani for Applicant.

Syed Asad Ali Shah for Respondents.

Date of hearing: 10th March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 824 #

2016 Y L R 824

[Sindh]

Before Sadiq Hussain Bhatti, J

NAEEM ZIA KHAWAJA---Appellant

Versus

Mrs. HAMEEDA NIZAMUDDIN---Respondent

F.R.A. No.5 of 2014, decided on 30th April, 2015.

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

----S. 17----Eviction petition---Grounds---Bona fide personal need regarding use of commercial property by landlady's children---Maintainability---Landlady filed petition for eviction of tenant on ground of personal bona fide need for use by her children, which was allowed by Rent Controller---Contention raised by the tenant was that under S. 17 of Cantonments Rent Restriction Act, 1963, rented premises/commercial property could only be got vacated by landlady if the same was required by her for her personal bona fide need and not for use of any of her family members---Validity---Under S.17(4)(a)(i) of Cantonments Rent Restriction Act, 1963, landlady could apply for an order directing tenant to put landlord in possession of residential premises if she required the same for her own occupation or for occupation of any member of his or her family, but eviction of tenant from commercial property under S.17(4)(b)(i) of Cantonments Rent Restriction Act, 1963, could be filed by landlady if she required the rented premises in good faith for her own use only---Landlady had admitted in her cross-examination that she did not require the rented premises for her own use and that her children will do business over rented premises after vacation---Available record showed that landlady had never conducted any business activity on rented premises---Eviction sought on ground of need for occupation of children of landlady was not permissible in respect of commercial property---High Court, setting aside impugned order of Rent Controller, dismissed eviction petition---Appeal was allowed in circumstances.

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

----S. 17---Eviction petition---Transfer of rented property by landlord/landlady---Validity---Landlady deposed in her cross-examination that after vacation of rented premises by tenant, she would transfer the same to her children---Held, that there was no bar on transfer of rented premises, and landlady could transfer the same to her children.

Noor Jehan Bi v. Muhammad Yousaf 2002 SCMR 1933; Akbar Husain v. Zehra Bai 2002 SCMR 789; Muhammad Yousuf v. Noor Jehan Bi 2000 CLC 1952 and Aamir Waheed v. Haleem Akhtar 2013 CLC 622 rel.

Iftikhar Javaid Qazi for Appellant.

Obaid-ur-Rahman Khan for Respondent.

Date of hearing: 14th April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 829 #

2016 Y L R 829

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

Ms. TALAT EJAZ---Petitioner

Versus

CITY DISTRICT GOVERNMENT through City Nazim and another---Respondents

Const. Petitions Nos. D-1608 and D-1069 of 2005, D-261 and D-1087 of 2007, D-1442 and D-3466 of 2010, D-3010, D-3066, D-3067, D-3387, D-3388, D-3519, D-3683, D-3989, D-4014 to D-4021 and D-4039 of 2011, D-148, D-361, D-1819, D-2346 and 3048 of 2012, D-1558 and 3473 of 2013, decided on 23rd July, 2015.

Colonization of the Government Lands (Punjab) Act (V of 1912)----

----S. 10----Land Grant Policy, dated:12.01.1980, Cls. 2 (g), 5, 11 & 16---Grant of land, requirements for---Resumption of land by Government---Village, existence of---Determination---Petitioners claimed that they had been allotted plots by respondent-Karachi Development Authority (KDA) (now Karachi Metropolitan Corporation), but physical possession of the same could not be handed over to them as said plots had already been encroached upon by land grabbers---Petitioners sought possession of plots or provision of alternate plots---Revenue department, in its report, asserted that two thousand acres of land had been allotted for scheme to KDA, but for non-payment of price, thirty acres of land out of said two thousand acres was resumed by Government of Sindh and allotted to occupants of the Village pursuant to judgment and decree of civil court, and that KDA, therefore, did not have right or title to interfere in possession of said thirty acres of land---Karachi Metropolitan Corporation submitted that once subject land had been auctioned by KDA to Karachites (including petitioners) against consideration, then Government of Sindh had no authority to resume the same, and that under report submitted to Chief Minister, there was no village at subject land and intervenors and others with connivance of Revenue authorities had tried to usurp subject land of allottees-petitioners---Validity---Sale price had been duly paid by KDA---After allocation of land, area was duly developed by KDA by laying down roads, water and sewerage lines---To usurp subject land, ex parte judgment and decree was obtained in suit on basis of which a Goth was approved by Chief Minister and Sanads were issued to villagers---Appellate court, however, had set aside said judgment and decree, and plaint of the suit was ultimately rejected by Trial Court---On basis of same judgment and decree, summary was moved before Chief Minister proposing that request of villagers for regularization of said village over thirty acres of land could be entertained under S.10(1) of Colonization of the Government Land (Punjab) Act, 1912 by resuming land in question, which was approved---Nothing was in said summary to show that there was village at subject land; on the contrary, the summary stated that there were only few huts---Neither there was any Goth existing on subject land nor intervenors who allegedly have purchased subject land from dummy villagers, had made any payment---Neither intervenors nor Government of Sindh had better title to subject land than that of original allottees (including petitioners)---If KDA had failed to pay price of two thousand acres of land, then Government of Sindh should have resumed entire land and should not have chosen to resume only thirty acres of land according to its own summaries for allocation to dummy villagers, who did not exist---Government of Sindh after fifteen years of such allotment (by KDA) could at the most acquire land and had no power to resume the same---Officers of Board of Revenue in connivance with builder had tried to usurp subject land, which had been duly allotted by KDA to poor people (petitioners)---Clause 5 of Land Grant Policy made under S.10 of Colonization of Government Lands (Punjab) Act, 1912 provided that no land would be granted without prior approval of Board of Revenue; but record did not show that Board had ever given such approval---Clause 11 of Land Grant Policy provided that land allotted was to be used for sole purpose of establishment of village---Clause 2 (g) of Land Granting Policy defined 'village' as land for settlement of habilitation of people but did not include habilitation of less than ten houses---No village existed in terms of clause 2 (g) of Land Granting Policy---Regularization of subject land in favour of builders (intervenors) or representatives of fifty-nine non-existing dummy villagers and Sanad holders, was violative of Clause 11 of the Policy---Clause 16 of Land Grant Policy placed a condition on title of grantee providing that grantee would be entitled to proprietary rights over land only after payment of all dues and full compliance of terms and conditions to the satisfaction of Collectorate; whereas no price had been paid---Entire exercise of getting subject land resumed and Goth declared from Governor and Chief Minister on basis of misdirected and self-contradictory summaries by taking shield of fraudulent judgment and decree declaring existence of Goth itself was totally unlawful and in gross violation of the Land Grant Policy---Intervennors having no rights in respect of subject land, their applications requiring no merit were dismissed---Objection that notification whereby two thousand acres of land was given to KDA should have been issued by Chief Minister rather than Governor of Sindh was of no relevancy, as Government of Sindh had never disputed or questioned allocation of said land for laying scheme for Karachites---Letter whereby thirty acres of subject land was resumed by Government reflected that there was no verification in respect of existence of Goth before resumption or regularization of subject land---Letter issued by Secretary of Government of Sindh in respect of resumption of thirty acres of subject land and declaration of Goth thereon, being unlawful and without lawful authority, was quashed---High Court, allowing constitutional petitions, directed Karachi Metropolitan Corporation to take over possession of subject land and hand over the same to petitioners, original allottees and plots of allottees, who had already provided alternate plots, be sold out through auction in transparent manner---Constitutional petitions were allowed in circumstances.

Gharib Nawaz Dhaccawala for Petitioner (in Petition No.D-1608 of 2005).

Muhammad Naouman Jamali for Petitioners (in Petition No.D-1819 of 2012).

Abdur Rahman for Petitioner (in Petition No.D-3683 of 2011).

Sohail Abdul Rahim for Petitioners (in Petitions Nos. D-261 of 2007, 3066, 3067, 3387, 3388, 3519 of 2011, 361 of 2012, 1558 and 3473 of 2013).

Ahmed Ali Dewan for Petitioner (in Petition No.D-2346 of 2012).

Naseer Ahmed Khan for Petitioners (in Petitions Nos. D-4014, 4015, 4016, 4019, 4020, 4021 and 4039 of 2011).

Altaf Hussain for Petitioner (in Petition No.D-3989 of 2011).

Rafiullah for Petitioner (in Petition No.D-1087 of 2007).

Ahmed Pirzada for Respondent (in all Petitions).

Syed Sultan Ahmed for Respondent (in all Petitions).

Syed Wajahat Abbas for Intervenor (in Petition No.D-1608 of 2005).

Rasheed A. Akhund for Intervenor (in Petition No.D-1608 of 2005).

Dates of hearing: 30th October 2014, 13th November 2014 and 8th June, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 872 #

2016 Y L R 872

[Sindh]

Before Sajjad Ali Shah and Shahnawaz Tariq, JJ

Engr. Khwaja MUHAMMAD ASGHAR---Petitioner

Versus

DIRECTOR GENERAL, (DG) SINDH BUILDING CONTROL AUTHORITY (SBCA) and 7 others---Respondents

C.P. No.D-822 of 2014, heard on 2nd April, 2014.

Karachi Building and Town Planning Regulations, 2002---

----Regln. 4-11.4---Constitution of Pakistan, Art. 199---Constitutional petition---Locus standi---Petitioner was aggrieved of restoration of professional license of respondents---Validity---Held, it was incumbent upon petitioner to show his locus standi and establish that his legal right, directly or indirectly, was infringed or invaded by restoration of licenses of respondents, while exercising its legal authority under Regln. 4-11.4 of Karachi Building and Town Planning Regulations, 2002---Petitioner had failed to establish any right to be heard in petition, as no such legal substance was placed by petitioner on record to strengthen allegations emphasized by him---Petition was dismissed in circumstances.

Muhammad Aslam Khan v. Government of Punjab and 2 others PLD 1973 Lah. 120; Muhammad Botta and 77 others v. The Commissioner, Sargodha Division and 2 others PLD 1973 Lah. 580 and Wukala Mahaz Barai Tahafuz Dastoor v. Govt of Pakistan 1993 PCr.LJ 744 rel.

Petitioner in person.

Date of hearing: 2nd April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 890 #

2016 Y L R 890

[Sindh]

Before Syed Hasan Azhar Rizvi and Salahuddin Panhwar, JJ

ALLAH DINO and 6 others---Petitioners

Versus

ALI MUHAMMAD and 9 others---Respondents

C.P. No.D-1802 of 2011, decided on 26th March, 2015.

(a) Administration of justice---

----Court observations--- Scope---Observations by court did not determine rights or titles of parties for which an action was brought before court for adjudication---Court could not be deprived to consider and decide a legal or factual question/plea if raised even before Appellate Authority---Series of facts or circumstances were to infer a conclusion which may either be for or against---Fraud, mala fide, bona fide or even misrepresentation could not be determined without considering facts, circumstances and documents so referred for proving or disproving the same---Observation by court did not equate the status of adjudication unless intention was otherwise---When the observation end into determining any factual or legal issue that would attain status of adjudication.

(b) Public functionaries---

----Duties of---Duty of an official was not only to discharge his routine obligations/ duties but also to react as a responsible public officer whenever a question of government interest come before it else belief of public official i.e. a trustee of public rights will lose its value and substance---Court being an ultimate guardian of public rights could competently pass appropriate observations and even directions with regard to attitude and conduct of public officials so also of private parties and should never become a tool in letting parties to achieve indirectly what they could not receive directly---If a court record such observation with reference to obligations and duties required to be performed by officials then same could not be termed to be "excessive" on part of Court.

----Question of maintainability of suit could be examined competently by appellate or revisional court because object and scheme of administration of Justice was not to keep things hanging but to make efforts to give due either after proper trial or to bury an incompetent lis at its inception---Such powers of court were not subject to an invitation by parties but law itself insisted to exercise such powers whenever situation demand so.

PLD 1993 SC 147 rel.

(d) Administration of justice---

----Pleadings---Courts while admitting must go through contents of pleadings towards its maintainability---Such examination of contents should be prima facie without detailed inquiry towards factual controversy but legal questions at the same time be not ignored---Suits should not be admitted in a mechanical manner because admitting a lis brought subject matter i.e. legal character or interest of one in property into controversy/dispute---Since people and officials have honour for court proceedings hence admission of an incompetent suit may result in keeping legal and normal course into prejudice---Incompetent or legally unsustainable lis, should not be admitted rather dismissal thereof or return for presenting before proper court/forum or in proper shape was the demand from one who was believed to be having all law on his sleeves.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124 rel.

(e) Administration of justice---

----Held, it was neither in spirit of safe administration of justice or even equity that an incompetent suit be kept pending or be remanded to lower courts where maintainability on touchstone of legally established principles was barred.

Muhammad Iqbal v. Muhammad Ahmed Ramzani and 2 others 2014 CLC 1392 rel.

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

----S. 42---Suit for declaration---Scope---According to S. 42, Specific Relief Act, 1877, a person could seek a declaratory decree where his legal character or any right to any property was either denied or necessity arose to deny any such claim or interest, if raised by other person---In order to seek such right of decree, discretion was left upon person by using word "may" but it did not change legal position that omission towards such right would not be an excuse from escape of legal consequences of such deliberate omission---When a right to seek a decree arise, it became obligatory upon person to avail such right else his deliberate omission would bring legally known terms such as "waiver", "limitation", "estoppel" and "laches" come into play with their own legal consequences because every right to seek decree was subject to Limitation Act, 1908 which undeniably was a law meant to have an early action from person whose legal character or right to a property was denied or under threat.

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

----S. 42---Suit for declaration---Declaratory decree could be sought only by person whose legal character or status was being denied---In such a lis, legal character of person seeking declaration should be of much importance and without establishing the same he could not insist for a declaratory decree.

(h) Contract---

----One carrying an imperfect or disputed title could not become a competent person to make a legal contract.

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

----Ss. 12 & 18---Suit for specific performance of agreement---Not mere acceptance of promise which would create a binding contract but was competence of parties and legal consideration which turned consents of two or more into a legal contract---If party was not competent for agreed act or omission it would leave other party with no option but to seek legal remedy provided under S. 18 of Specific Relief Act, 1877 and right to seek enforcement should not be available to him---Decree for specific performance could only be obtained against competent person and not against the one who, either had no title, or had an imperfect or defective title.

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

----S. 12---Suit for specific performance---Relief as to decreeing specific performance could not be granted in a mechanical manner by courts nor it could be claimed as a matter of right but it was discretionary which was subject to application of a judicial mind.

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

----S. 25---Vendor or lessor having no title---Effect---According to S. 25, Specific Relief Act, 1877, where contract was by such a vendor or lessor who had no title, enforcement of such a contract could not be legally made---Where it was proved that vendor or lessor had no title then a suit for specific performance should not be continued.

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

----S.12----Suit for specific performance of agreement---Socpe---Lawful contract should give a right to vendee or lessee to seek enforcement and damages but a contract with one having no title or imperfect title should confine rights of vendee or lessee to compel vendor or lessor to make his title perfect or to seek for damages alone.

(m) Administration of justice---

----Courts had to confine to what was produced before it but judicial propriety always expect courts to react as a breathing one with active judicial conscious---Judicial conscious always demand to properly respond to cryptic pleadings and should never let itself to be a tool to allow parties to achieve indirectly what they could not achieve directly---Courts should not grant a decree in a mechanical manner nor courts be deceived from subsequent steps of parties whether it be in name of compromise or even ex-parte but legal character, maintainability of suit and entitlement of parties were requirements which court should always keep in mind while recording a decree.

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

----S.42---Suit for declaration--Terms 'legal character', 'maintainability of suit' and 'entitlement for reliefs' should always be given their due and judicial weight---"Legal character" was most important aspect of a lis and in absence thereof one could not maintain his lis though filed for a relief recognized under Specific Relief Act, 1877 or under any other law.

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

----O.VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Rejection of plaint---Scope---One bringing a lis though may have a "legal character" and relief sought was recognized by law but if pleadings for such a lis brought his case within exception of O. VII R. 11 C.P.C. then such a suit would receive no other result but rejection.

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

----S.42---Suit for declaration---Relief could not be granted in a mechanical manner but legal entitlement of person seeking such relief had to be judged cautiously with active judicial mind---Decree of competent court had binding effects and if passed without considering said legal requirements, one would attempt to get for which he was not entitled legally.

PLD 1993 SC 147; PLD 2007 Kar. 392; 2010 SCMR 115; 1999 SCMR 146; 1999 SCMR 16 and 2001 SCMR 1822 ref.

M.M. Aqil Awan for Petitioners.

Allah Bachayo Soomro, Addl. A.G. for Respondents.

Dates of hearing: 17th and 18th February, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 940 #

2016 Y L R 940

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

Professor ABDUL HAMEED---Petitioner

Versus

PROVINCE OF SINDH through Secretary Education---Respondent

C.Ps. Nos.D-1349, D-884, D-923 of 2011 and D-2324 of 2013, decided on 10th February, 2015.

Constitution of Pakistan---

----Art. 199--- Constitutional petition---Amenity plot, conversion of---Principle of waiver---Applicability---Dispute was with regard to utilizing of land of school for some other purposes and his appointment of principal of the School---Validity---Land of school was amenity plot and could not be allotted, converted or sold out by officer of Revenue Department---Amenity plot could not be utilized for any other purpose, therefore, encroachments over the land and permission of Deputy Commissioner to District Police for establishing Police Horse Riding Club through an agreement could not be treated as lawful possession---High Court directed the authorities to adopt all legal measures to get released the entire land from respective illegal occupants within specified time and hand over its physical possession to the public school, in accordance with law---High Court directed Inspector General of Police to make alternate arrangements for shifting of Police Horse Riding Club---High Court also directed the Provincial Government to look into the matter---Petitioner himself attended 128th meeting of Board of Governors of the School and signed minutes of the meeting---Petitioner himself informed Banks concerned regarding appointment of respondent as principal of the school and also introduced his specimen signatures to operate accounts of the school---Petitioner had waived his right as such he could not come forward to challenge appointment of respondent as principal which was hit under the principle of waiver---High Court directed Commissioner of the Division to appoint principal of the school instantly through Board of Governors---Petition was disposed of accordingly.

1995 SCMR 650; 2009 PLC (C.S.) 28 and 280; 1995 SCMR 1593; 1991 SCMR 2434; 1994 SCMR 2232; 1998 SCMR 2268; 2009 YLR 2414; PLD 2002 SC 303; PLD 2005 Kar. 316; 1987 CLC 393; PLD 1988 Kar. 401; 2002 CLC 601; 2007 SCMR 1328; 1980 SCMR 89; PLD 1992 SC 104; PLD 1987 SC 304; PLD 2006 SC 602; 2010 SCMR 1484; PLD 2010 SC 676; PLD 2011 SC 277; PLD 2010 SC 841; 2012 SCMR 64; 2005 SCMR 642; 2012 SCMR 673; 200(sic) SCMR 583; PLD 1989 SC 166 & 199; PLD 1997 SC 315 (329); 2013 SCMR 1707 (1742) and Muhammad Idrees's case PLD 2007 SC 681 ref.

Muhammad Sabir v. Major (Retd) Muhammad Khalid Naeem Cheema and others 2010 CLC 1879; Ardeshir Cowasjee and 10 others v. KBCA and 4 others 1999 SCMR 2883; Suo Motu Human Rights cases, 2011 SCMR 582 and Province of the Punjab, through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 rel.

Jhamat Jethanand for Petitioner (in C.Ps. Nos.D-1349, 884 and D-923 of 2011).

Syed Muhammad Saulat Rizvi for Respondent No.2 (in C.Ps. Nos.D-884 and 923 of 2011).

Aghis-us-Salam Tahirzada for Respondent No. 8 (in C.P. D-884 of 2011).

Allah Bachayo Soomro, Addl. A.G. Sindh (in all C.Ps.).

Aghis-us-Salam Tahirzada for Respondent No.4 (in C.P. No.2324 of 2013).

Ahmeduddin Hanjra for Contemnor, Secretary Education (in C.Ps. Nos.D-884 and D-923 of 2011), Dates of hearing: 18th, 24th February, 12th, 13th, 14th March, 2014, 26th January and 2nd February, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 970 #

2016 Y L R 970

[Sindh]

Before Zafar Ahmed Rajput, J

Peer JEHANZEB SHAH---Applicant

Versus

SADAQAT ALI and 5 others---Respondents

Criminal Revision Application No.03 of 2015, decided on 4th March, 2015.

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

----Ss. 3 & 5(1)----Prevention of illegal possession of property, etc.---Complaint, dismissal of---Title and possession, proof of---Dispute of civil nature---Complaint filed under S.3 of Illegal Dispossession Act, 2005 was dismissed by Trial Court on ground that as per enquiry report, dispute between parties was found to be of civil nature---Validity---Claim of complainant regarding ownership and possession of subject land was based upon Deh Form-VII, which showed mutation in favour of complainant's father---Deh Form-VII was not title document---After death of complainant's father, Record of Rights had not been mutated in favour of his legal heirs---Complainant failed to produce any evidence as to his possession over subject land before alleged dispossession---Complainant did not produce Chowkidar or guard named in his complaint for recording his statement before Inquiry Officer (during enquiry) under S.5(1) of Illegal Dispossession Act, 2005---Accused had not only produced title documents including sketch of subject land but also produced their predecessor (previous owner) before Inquiry Officer, who had admitted execution of sale agreement in favour of accused and handing over of possession of subject land in consequence thereof---No material was available with complainant to establish that accused belonged to any Qabza group or land Mafia or that they had occupied subject land by dispossessing complainant---Title and location of complainant's land was not clear, which could only be decided by civil court---Impugned order was proper and legal, and same, therefore, did not require any interference by High Court---Criminal revision was dismissed in circumstance.

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

----Preamble----Scope---Illegal Disposses-sion Act, 2005 was introduced in order to curb activities of Qabza group/property grabbers and land Mafia.

Ghanshamdas Dherani for Applicants.

Arshad Tayebally for Respondents Nos. 1 to 3.

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

Date of hearing: 3rd March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 975 #

2016 Y L R 975

[Sindh]

Before Shahnawaz Tariq, J

Mst. NAHEED---Applicant

Versus

AMEER BAKHSH and 5 others---Respondents

Criminal Revision Application No.8 of 2011, heard on 1st September, 2015.

Criminal Procedure Code (V of 1898)---

----S.200---Dismissal of direct complaint---Allegation of complainant was that respondents took gold ornaments from her place of residence---Statement of witnesses of applicant were contradictory, one witness alleging the incident against police officials, and the other against the respondents---Police report revealed that both respondents had long ago left their houses and shifted to the other province---Averments of complaint and statements of both witnesses had material contradictions, which were fatal to allegations levelled by the complainant---Very purpose of holding preliminary inquiry was to thrash out the truth---Trial Court, after minutely considering the material evidence found that no prima facie case was made out---Trial Court's order did not suffer from any illegality or irregularity---Revision was dismissed accordingly.

Bakhshan Khan Mahar for Applicant.

Abdul Rehman Kolachi APG for the State.

Date of hearing: 1st September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1008 #

2016 Y L R 1008

[Sindh]

Before Shahnawaz Tariq, J

ANWAR AHMED KHAN YOUSUFZAI through Legal heirs---Appellant

Versus

MUHAMMAD ALI HALEEM and 3 others---Respondents

First Civil Appeal No.19 of 2012, decided on 16th February, 2015.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.1 & 2---Limitation Act (IX of 1908), S. 5 & Art. 76---Plaintiff rendered loans to defendant against cheque and promissory note on different occasions---Cheque and promissory note were not honoured---Plaintiff filed summary suit along with application for condonation of delay---Defendant did not file leave to defend but filed their objection as to limitation---Application and suit were dismissed by Trial Court---Validity---Suit for recovery of amount to the extent of cheque was beyond the time of limitation, but limitation to the extent of promissory note was well within time---When the suit for recovery had been filed regarding multiple claims and out of which some of the claims were time barred, entire suit could not be dismissed on basis of being time barred---Court should have decided entire suit after recording of evidence supported with relevant documents and questions pertaining to maintainability of claims---In absence of application of leave to defend by defendant, presumption of consideration in respect of negotiable instrument could not be rebutted and same had to be decreed---Outright rejection of plaint in superficial manner without considering claims, documents and evidence was material irregularity and illegality---Order and decree passed by Trial Court was set aside, in circumstances.

United Bank Ltd. v. Mrs. Bilquees Begum and 3 others 1988 CLC 1613 rel.

Valueg Old Ltd. and 2 others v. United Bank Ltd. PLD 1999 Kar. 1; Muhammad Ashraf v. Habib Bank Ltd. 2005 CLD 1367 and Phool Badshah v. ADBP 2012 SCMR 1688 ref.

Mustafa Lakhani for Appellant.

Abdul Qayum Khan for Respondents.

Date of hearing: 24th December, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 1048 #

2016 Y L R 1048

[Sindh]

Before Amer Raza Naqvi, J

Mst. FEEROZA---Appellant

Versus

MUHAMMAD ANEES and 2 others---Respondents

Criminal Acquittal Appeal No.43 of 2014, decided on 24th November, 2014.

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

----Ss. 506-B, 337-A (i), 354 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)--- Criminal intimidation, shajjah-e-khafifah, assault or criminal force to woman with intent to outrage her modesty and common intention---Appeal against acquittal--- Reappraisal of evidence--- Double presumption of innocence---Scope---Accused persons were acquitted of charge only on the ground that no medical certificate was produced---Validity---Double presumption of innocence in a criminal acquittal appeal would be in favour of accused unless something concrete was pointed out or there was evident flaw in the judgment on acquittal and legal aspects---Ingredients of S. 506(2), P.P.C. were not available in the present case in view of evidence produced before the Trial Court---Multiple litigations between the parties and witnesses for the complainant was on record---Family dispute was converted into criminal proceedings---Impugned judgment was well reasoned---Evidence had properly been referred and read by the Trial Court---Complainant had failed to point out anything on the basis of which present appeal even could be admitted for regular hearing---Appeal was dismissed in circumstances.

(b) Criminal trial---

----Acquittal of accused---Double presumption of innocence---Scope---Double presumption of innocence in a criminal acquittal appeal would be in favour of accused unless something concrete was pointed out or there was evident flaw in the judgment.

Qasim Ali for Appellant.

Mobashir Ahmed Mirza for Respondents Nos.1 and 2.

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

YLR 2016 KARACHI HIGH COURT SINDH 1065 #

2016 Y L R 1065

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD NAWAZ JHATIYAL---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION, NASIRABAD and others---Respondents

Crl. Misc. Appln. No.S-223 of 2014 and M.A. Nos.2633 and 3066 of 2015, decided on 30th September, 2015.

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

----Ss.22-A, 22-B, 154 & 561-A---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd on the pretext of "Karap", common intention---Registration of second FIR---Setting aside order, application for---Application filed under Ss.22-A & 22-B, Cr.P.C. for registration of second FIR was rejected---Section 22-A(6), Cr.P.C., nowhere permitted directions for registration of second FIR---Issuance of instructions for 'registration of a criminal case' and that of registration of second FIR were not synonyms to each other---Application filed by the applicant for registration of second FIR, was not competent being beyond the ambit of S.22-A(6), Cr.P.C., which only permitted issuance of appropriate directions---In presence and continuity of an FIR, the direction for lodgment of second FIR, would not be appropriate---Reasons brought forward by the applicant was that his daughter, was murdered by accused against whom second FIR was sought to be registered, while son of applicant was not involved in her murder and that due to some reasons applicant was unable to lodge FIR at the concerned Police Station---Validity---High Court observed that if such practice was allowed, it would open a door of new trend for such applications, which no doubt, would cause serious prejudice to the case of prosecution---Second FIR could be lodged/ordered, which would require existence of extraordinary circumstances justifying such exceptional step, in such eventuality, it would require cancellation of first FIR, because two FIRs for one and the same offence, could not go parallel---No extraordinary circumstances existed, in the present case, justifying accepting such request---Since applicant's son was nominated in the FIR to be one of accused of murder of his real sister on the pretext of "Karap", it was duty of Investigating Officer to proceed according to law and to send-up those only against whom sufficient evidence justifying their trial came on evidence---Application was dismissed being devoid of substance.

Mst. Malika Jan v. Inspector General of Police 2000 PCr.LJ 320; Wajid Ali Khan Durani v. Government of Sindh 2001 SCMR 1556; Rana Ghulam Mustafa v. S.H.O. Police Station Civil Line, Lahore PLD 2008 Lah. 110; Mst. Allah Rakhi v. D.P.O Gujranwala 2009 MLD 99 and Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119 ref.

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

----Ss. 154 & 156---Lodging of FIR and investigation---Scope---Law, normally did not debar the officer-in-charge of a Police Station to lodge the FIR, or also officer-in-charge to wait for related or interested to come and report the matter---Lodging of FIR by a Police Officer, was as competent and legal, as the one lodged by a private person---Normally single FIR on information of commission of a cognizable offence was permissible---Object of S.154, Cr.P.C., was to set the law into motion; law once set into motion, would allow and permit the Investigating Officer not to allow the dotted line, but to take all measures to bring the truth on surface---Investigation was exclusive domain of the Investigating Agency, which was normally not interfered---Authority of the Investigating Officer was not necessarily confined to send the nominated accused to face the trial, but he (Investigating Officer) could competently declare the nominated accused as "innocent" and to place a given witness as an accused even while submitting the challan (charge-sheet), if investigation so concluded.

Ahsan Ahmed Qureshi, for Applicant.

Shahzado Saleem, A.P.G along with Inspector Ashfaque Ahmed Mangi the then S.H.O. Police Station Nasirabad for Respondents.

YLR 2016 KARACHI HIGH COURT SINDH 1081 #

2016 Y L R 1081

[Sindh]

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

YAR MUHAMMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos.312 and 389 of 2010, decided on 23rd November, 2015.

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

----Ss. 9(c) & 29---Recovery of narcotic substance---Appreciation of evidence---Principle of shifting of onus---Heroin weighing 43 kilograms and opium weighing 23 kilograms were recovered from the secret cavities of car in which accused persons were travelling---Trial Court convicted both the accused persons and sentenced them to imprisonment for life---Validity---Evidence led by prosecution was without any material variation or lapses---Memo of recovery and FIR were fully corroborated and resultantly proved to the satisfaction of Trial Court---Defense of accused persons was dependent upon mere denial of charge, case as well as evidence and no defense evidence was adduced by accused persons---Initial burden resting on prosecution stood discharged on its part and accused persons failed to rebut the same as provided under S. 29 of Control of Narcotic Substances Act, 1997 and also did not lead defense evidence establishing their innocence in the matter---Accused persons were first offender and bread earner members of their families who had served major portion of their sentence---High Court maintained conviction of the accused persons but reduced the sentence of imprisonment to one already undergone, which was 20 years and 8 months---Appeal was dismissed accordingly.

Amir Zeb v. The State PLD 2012 SC 380; Fareedullah v. The State 2013 SCMR 302; Shoukat Ali alias Billa 2015 SCMR 308 and Nasreen Bibi's case 2014 SCMR 1603 rel.

Farhad Khan and Malik Altaf Javaid for Appellants.

Zafar Ahmed Khan, APG for the State.

Date of hearing: 10th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1098 #

2016 Y L R 1098

[Sindh]

Before Salahuddin Panhwar, J

SIKANDER TEGHANI alias MUHAMMAD BUX TEGHANI---Appellant

Versus

The STATE---Respondent

Crl. Jail Appeal No.S-116 of 2010, decided on 29th September, 2015.

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

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Weapon, non-recovery of---Prompt FIR---Substitution phenomenon---Applicability---Accused was convicted by Trial Court for qatl-i-amd and was sentenced to imprisonment for life---Validity---Arrest of accused by police and reaffirming of him as culprit by eye-witnesses in promptly lodged FIR excluded or least lessened the chances of deliberation and consultation with others to wrongly involve accused---Prosecution witnesses had no enmity or grudge against accused to falsely involve him in the case on a capital charge to let off the real culprits---Where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to prosecution case---Accused along with absconding co-accused in furtherance of their common intention committed qatl-i-amd of deceased by causing him fire shot injury as alleged by prosecution---High Court declined to interfere in conviction and sentence awarded by Trial Court---Appeal was dismissed in circumstances.

Anwar Shamim v. State 2010 SCMR 1791; Qamar-uz-Zaman alias Kala v. State 2011 SCMR 856; Saeed Khan and 5 others v. The State 2008 SCMR 849; Akhter Ali v. State 2011 SCMR 937; Muhammad Latif v. State 2008 SCMR 1106 and Muhammad Nadeem alias Deemi's case 2011 SCMR 872 ref.

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

----S. 342--- Defence version--- Simple denial---Scope---Where prosecution successfully discharges its burden in proving charge against accused, then accused cannot take any advantage merely by denying allegation or pleading innocence in his statement under S. 342, Cr.P.C. rather he is required to do much more in such eventuality because burden then shifts upon him to prove his "stand" if there is any.

Shamsuddin Abbasi for Appellant.

Ghulam Sarwar Abdullah Soomro for the Complainant.

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

Date of hearing: 29th September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1108 #

2016 Y L R 1108

[Sindh]

Before Nazar Akbar, J

ANWAR HUSSAIN---Applicant

Versus

RAFIQUDDIN and 7 others---Respondents

Civil Revision Appl: No.38 of 2003, decided on 10th September, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Agreement to sell immovable property---Scope---Contention of plaintiff was that he was a bona fide purchaser of suit shop, since he had purchased the same after cancellation of agreement between defendants and the courts below had failed to appreciate that there was a penalty clause for defaulting party in case of failure to perform their part of agree-ment---Defendant's plea was that neither there was any stipulation in agreement that either party could seek cancellation of agreement on payment of penalty nor there was any justification for cancelling the agreement after having received the earnest money---Defendant also contended that his agreement with other defendants was coupled with the possession of suit shop and therefore his agreement was protected against any third party---Held, that plaintiff had failed to produce any evidence that at the time of purchase of suit shop he had made any effort to check the status of agreement between defendants---Defendant conceded in his evidence that he had purchased three shops and even there was no separate agreement of purchase of another shop after alleged cancellation of agreement of sale between defendants rather it was only interpolation in agreement of sale between plaintiff and sub-attorney of defendants that Shop No. 3 was changed to Shop No. 6 in said agreement with a view to obtain separate portion of building which was in fact in two parts---Plaintiff admitted that he was next door neighbour as he was already in possession of suit property but at no point of time defendant was contacted by plaintiff to confirm that agreement of sale with him was cancelled by defendants----Plaintiff had failed to establish his bona fide and in such circumstances, no case was made out for interference in concurrent findings of courts below---Revision was dismissed, accordingly.

Riazuddin Qureshi for Applicant.

Saeeduddin Siddiqui for Respondent No.1.

Nemo for Respondents Nos. 2 to 8.

Date of hearing: 10th September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1118 #

2016 Y L R 1118

[Sindh]

Before Nazar Akbar, J

MOHAMMAD AMEEN---Applicant

Versus

The STATE---Respondent

Cr. B.A. No.S-806 of 2015, decided on 30th September, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365-B, 34 & 511---Kidnapping, abduction or inducing woman to compel for marriage and common intention----Bail, refusal of---Accused sought post-arrest bail on the ground that complainant had executed/sworn affidavit of "no objection" to the grant of bail in favour of accused---Complainant had named the accused in FIR and abductee was his real niece---Contention was that affidavit of "no objection" to the grant of bail had been sworn by the complainant amounted to exonerating of accused from the charge and it also amounted to retracting from the contents of FIR---Validity---Once the contents of FIR were shattered then the door would be open for all accused persons to take benefit of doubt at the trial or even at bail stage---Affidavit sworn by complainant in favour of accused at bail stage could not be considered as a case of free will and if it was so, it was the most shameful act of the complainant that he was ready to exonerate the accused in a crime of abduction of his real niece, knowingly---Accused was not pressing the bail application as the Court tried to dig out the real reasons for swearing affidavit in favour of accused by the complainant---Bail application was dismissed, in circumstances, as not pressed.

Abdul Majeed Magsi for Applicant.

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

Complainant is present in Court.

Date of hearing: 30th September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1139 #

2016 Y L R 1139

[Sindh]

Before Shahnawaz Tariq, J

ALI MOHAMMAD and 7 others---Applicants

Versus

The STATE and another---Respondents

Criminal Transfer Application No.S-57 and Constitutional Petition No.S.2405 of 2015, heard on 7th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), Ss. 324, 504, 447, 337 H(2), 147, 148 & 149---Transfer of case---Grounds---Strong and cogent reasons---Applicant sought transfer of case from one court to another due to security risk---No legal embargo existed for transfer of any criminal case from one court to another if any genuine case or sound reasons were placed before the court; it was incumbent upon the court to examine such grounds for transfer as it was a routine of practice from litigants to move such applications with ulterior motive of delaying trial---Such applications based on flimsy grounds must be discouraged---Present application being based on ulterior motives, was dismissed.

Nisar Ahmed Bhambhro for Applicants.

Ghulam Shabbir Dayo along with Respondent Rahib for Respondent (in C.P. No.S-2405 of 2015).

Shaharyar Awan, Assistant A.G.

Zulifquar Ali Jatoi, D.P.G.

Date of hearing: 7th September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1163 #

2016 Y L R 1163

[Sindh]

Before Shahnawaz Tariq, J

NASRULLAH PANHWAR and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-292 and S-295 of 2013, decided on 12th October, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498----Penal Code (XLV of 1860), Ss. 409, 420, 467, 468, 471 & 34--- Criminal breach of trust by public servant, or by banker, merchant or agent; cheating or dishonestly inducing delivery of property; forgery of valuable security, will, etc.; forgery for purpose of cheating; using as genuine a forged document; common intention--- Bail before arrest, grant of---Consistency, rule of---Applicability---Factual controversy required recording of evidence---Documentary evidence in possession of prosecution---Accused, who had been assigned public construction work, were alleged to have misappropriated the public funds and failed to carry out work as per terms and conditions of the work order issued by the other official co-accused---Main official co-accused, who were allegedly to have assigned work orders to both present accused without approval of the competent authority, had already been granted bail by Trial Court---Present accused persons had been facing trial regularly, but prosecution had failed to examine even a single witness to substantiate the charge against them without any justification; prosecution witnesses were officials and to procure their attendance was not difficult task for prosecution---Present accused, while being on interim pre-arrest bail, had not misused the concession of bail---Case of prosecution was purely based on documentary evidence, which was in possession of the prosecution; there was, therefore, no apprehension of tampering with prosecution evidence---Prosecution version was, although, controverting the plea of defence regarding construction work carried out by present accused, but question of quality of work and measurement of constructed area could not be determined without recording evidence of witnesses and thoroughly examining relevant documents---Prosecution had not moved any application for cancellation of bail granted to the said main official co-accused---Present bail application had been pending since year 2013, and prosecution had also failed to pursue the same diligently for their timely disposal---Bail application was allowed accordingly.

2012 YLR 2913; 2013 PCr.LJ 318; 2000 SCMR 1072; PLD 2006 Kar. 1765; 2011 SCMR 1319; 2000 YLR 2925; 1985 PCr.LJ 569; 2000 YLR 852; 2010 YLR 2299 and 2011 YLR 1599 ref.

Khan Muhammad Sangi for Applicant (in Cr.B.A. No.292 of 2013).

Abdul Sattar N. Soomro for Applicant (in Cr.B.A. No.295 of 2013).

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

Date of hearing: 23rd September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1176 #

2016 Y L R 1176

[Sindh]

Before Naimatullah Phulpoto, J

Captain Syed MUHAMMAD ASLAM---Appellant

Versus

SAIFUL ISLAM and another---Respondents

Criminal Acquittal Appeal No.236 of 2011, decided on 12th August, 2015.

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

----Ss. 408 & 506-B---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Appeal against acquittal---Criminal trespass and intimidation by threats---Scope---Accused had executed rent agreement with the complainant, which was mutually cancelled by the parties and the possession of the land was handed over to the complainant---Complainant alleged that on the next day accused with his accomplices entered the premises by breaking the locks and threatened the complainant of dire consequences---Initial inquiry was conducted and the case was recommended to be disposed of but after second inquiry challan was submitted by the police---Evidence showed that there was no eye-witness of actual occurrence and prosecution witness admitted that possession was handed over after receiving rent---Prosecution had failed to show criminal trespass, or even criminal intimidation by threatening the complainant, and no prosecution witness had deposed that the criminal trespass was committed by accused---Evidence did not show the offence committed under Ss.408 & 506-B, P.P.C.---Trial Court had correctly stated that the accused's involvement was highly doubtful---Impugned judgement of Trial Court was neither perverse nor reasons assigned therein were artificial and flimsy or based on misreading or non-reading of evidence---Appeal was dismissed.

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

----S.417(2-A)---Appeal against acquittal---Appraisal of evidence---Principles---Appraisal of evidence at appellate stage for acquittal should be totally different than in the cases where the accused was convicted by the Trial Court---Appraisal of evidence in appeal against conviction was to be done strictly and in appeal against acquittal, the same rigid method of appraisement was not to be applied since there was a finding of the Trial Court, after proper analysis of evidence on record---Interference in appeal against acquittal would only be made if there was a gross misreading of evidence which would amount to miscarriage of justice---Appellate Court would not interfere merely because of re-appraisement of evidence it came to a conclusion which was different than the decision of the Trial Court---Scope against appeal against acquittal was considerably narrow and limited.

Captain S.M. Aslam v. Mst. Rubi Akhtar and another 1998 SCMR 1400 ref.

Muhammad Usman and 2 others v. The State 1992 SCMR 489 and Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 rel.

Syed Abid Hussain Shirazi for Appellant.

Ayaz Ali Chandio for Respondents.

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

Date of hearing: 3rd August, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1193 #

2016 Y L R 1193

[Sindh]

Before Sadiq Hussain Bhatti, J

Miss AFIFA---Petitioner

Versus

Mrs. NUSRAT HAFEEZ and others---Respondents

C.Ps. Nos. S-491 of 2009 and S-292 of 2010, decided on 31st August, 2015.

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

----S. 15---Ejectment of tenant---Landlords filed eviction petition which was accepted ex-parte and possession of demised premises was handed over to them---Tenant moved an application for setting aside of ex-parte order which was accepted and main ejectment petition was restored but same was dismissed due to non-production of evidence---Writ of possession was issued in favour of tenant but it was found that the second floor of the building which was under tenancy had already been demolished---Validity---If second floor of the property which was rented out was intact then landlord could have been ordered to hand over possession of the same to the tenant---Said floor of the property was not available any more thus no such order could be passed at the present stage---Constitutional petition was dismissed in circumstances.

PLD 2000 Kar. 238; PLD 1978 SC 185; PLD 1981 Kar. 82; PLD 1999 Quetta 56; PLD 1970 Kar.220; 1980 CLC 44; 1986 SCMR 261; 1982 SCMR 233; 1991 SCMR 1656; 1996 CLC 1036; 1986 CLC 1828; PLD 1995 Kar. 197; 2000 MLD 1809; 2008 SCMR 236; 2002 CLC 166; 1992 CLC 980; 2008 CLC 75; 2006 CLC 1018; 2000 CLC 1119; 1993 SCMR 1171; 1997 CLC 1260; 1992 SCMR 1284; 1993 SCMR 618; 2006 SCMR 219; PLD 1991 SC 476; 2006 SCMR 276; 1997 SCMR 484; 1968 SCMR 729; 1989 SCMR 918; 1993 SCMR 618; 2003 SCMR 549 and 1996 CLC 1034 ref.

2009 SCMR 385; 1992 SCMR 652; 1987 SCMR 380; 2005 CLD 1554; PLD 1981 Kar. 82; 2003 CLC 1321; 2009 CLC 513 and PLD 1999 Quetta 56 distinguished.

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

----S. 20---Powers of Rent Controller---Scope---Provisions of Civil Procedure Code, 1908 except those mentioned in S. 20 of Sindh Rented Premises Ordinance, 1979 were not invested in Rent Controller while deciding eviction application---Rent Controller had wide discretion to follow any reasonable procedure he deemed appropriate in circumstances of the case for the ends of justice which would include the use of Civil Procedure Code, 1908.

1992 SCMR 1152 and PLD 2001 Kar. 60 rel.

----O. I, R. 10---Impleadment as party---Scope---Application under O. I, R. 10, C.P.C. could only be filed in a pending suit and not in execution proceedings.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact could not be decided by the High Court while exercising constitutional jurisdiction.

Saifullah v. Muhammad Bux and others 2003 MLD 480 rel.

(e) Administration of justice---

----Court of law had to do justice between the parties and was not supposed to discharge its functions in an arithmetical or technical manner.

1993 CLC 1158 and 1995 CLC 78 rel.

(f) Administration of justice---

----Justice should not only be done but should be seen to be done.

1993 CLC 1158 and 1995 CLC 78 rel.

Shabbir Ahmed Shaikh for Petitioner.

Suhail H.K. Rana for Respondents Nos. 1 to 3.

Abdul Haleem Siddiqui for Respondent No.4.

Date of hearing: 21st August, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1216 #

2016 Y L R 1216

[Sindh]

Before Nazar Akbar, J

Mst. SHUMAILA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.338 of 2011, decided on 2nd January, 2016.

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

----S. 302---Qatl-i-amd--- Appreciation of evidence---Accused was alleged to have murdered her husband by strangulation----Neither the injuries to the victim in the present case were proved to have been caused by accused nor strangulation was proved by medical reports as postmortem report was declared substandard by Medical Board and except her natural presence at the scene of incident being wife nothing else was before the court to treat as circumstantial evidence connecting accused with the offence---Alleged rope said to have been used for strangulation was not recovered by prosecution---Trial Court in the impugned conviction order had already held that prosecution had failed to prove motive and medical evidence did not prove strangulation, thus accused had no reason/motive to kill and same was sufficient to disbelieve the prosecution story---Burden was on prosecution to prove accused's involvement particularly her criminal role in the unnatural death of her husband to be treated as murder but Trial Court shifted the burden on accused---Mere unnatural death without any corroborating piece of evidence in shape of medical reports could not be treated as murder on suspicion alone---Trial Court convicted the accused on sole presumption that sudden death of deceased in short span of time without any clinical cause and reason was unusual and since the death took place inside the house of the lady accused in the night hours, her failure to provide necessary treatment was wilful, though it was not the case of prosecution that deceased suffered death as medical aid was denied to him---Trial Court outrightly rejected or ignored the medical evidence---Trial Court had misunderstood place and value of motive in criminal cases and had declared that motive in a criminal case was of no consequence and its existence and non-existence by itself neither proved nor disproved commission of a crime---Judgment of Trial Court, in circumstances, was set aside and the accused was acquitted of charge, accordingly.

PLD 1966 SC 664 rel.

M. Arshad v. The State 1992 SCMR 1187; The State v. Habib ur Rehman PLD 1983 SC 286; M. Aslam v. M. Zafar and 2 others PLD 1992 SC 1; Akbar Ali v. The State 2007 SCMR 486; Israr Ali v. The State 2007 SCMR 525; Muhammad Asif v. The State PLD 1991 SC 170; Muhammad Asif v. The State PLD 1991 SC 170; NLR 1991 SC 65; KAK alias Abdul Razzak v. The State PLD 1965 Kar. 31; Umar Jehan v. The State 1979 SCMR 186; Mst. Farah Naz v. The State and others 1984 SCMR 646; Aftab Iqbal v. Manzoor Ahmed and another 1985 SCMR 269; Imtiaz Ahmed v. The State 2001 SCMR 1334 and Wazir Muhammad v. The State 1992 SCMR 1134 distinguished.

(b) Precedent---

----Use of precedents in criminal cases based on circumstantial evidence---Principles.

Allah Wadhayo and another v. The State 2001 SCMR 25; Tariq Mehmood and another v. The State 2002 SCMR 32 and Imtiaz Ahmed v. The State 2001 SCMR 1334 rel.

Mehmood Akhtar Qureshi and Jamshed Iqbal, for Appellants.

Zafar Ahmed Khan, Addl: Prosecutor General for Respondents.

Ammar Yasser for the Complainant.

Date of hearing: 28th October, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1241 #

2016 Y L R 1241

[Sindh]

Before Salahuddin Panhwar, J

MOULLA BUX and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-68 of 2007, decided on 9th September, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 (b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons--- Appreciation of evidence--- Aggressor party--- Member of unlawful assembly--- Accused persons were convicted by Trial Court and sentenced for various terms extending to imprisonment for life--- Validity--- Out of three accused persons prosecution failed to attribute any role played by two accused persons who reached at the spot even till death of deceased--- Prosecution witnesses did not even claim those two accused persons as members of any unlawfull assembly, the action whereof resulted into death--- Accused persons armed with weapons took positions in Morchas wherefrom caused fire arm injuries to prosecution witnesses--- Accused did not deny such allegations nor took the plea of alibi, they even in their statements under S. 342, Cr.P.C. did not say anything that they were innocent and prayed for justice--- Accused persons did not deny such allegation but came up with defence that there was head injury to accused (deceased) and assault was by complainant party--- Such defence established participation of accused persons in the case--- Firearm injuries on the persons of injured prosecution witnesses were also a matter of record, therefore, sharing a common object, being a member of unlawful assembly existed as accused could not be believed to be unaware of the consequences of their firing at prosecution witnesses from Morcha--- High Court set aside conviction and sentence awarded to accused persons under S. 302(b), P.P.C. and maintained convictions and sentences awarded under Ss. 324, 148 & 149, P.P.C.--- Appeal was dismissed accordingly.

Muhammad Altaf v. State 2002 SCMR 189 ref.

Habibullah G. Ghouri for Appellants.

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

Date of hearing: 9th September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1259 #

2016 Y L R 1259

[Sindh]

Before Naimatullah Phulpoto, J

ADIL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.673 of 2015, decided on 24th August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 376, 109 & 34---Rape, abetment and common intention---Bail, refusal of---Evidence of victim girl had been recorded by the Trial Court---Victim had fully implicated the accused who had committed rape with her---Trial of the case was in progress and evidence of Medical Officer had been recorded---No fresh material existed for subsequent bail application---Alleged offence was of henious nature---Deeper appreciation of evidence was not permissible at bail stage---Trial Court had made efforts to conclude trial within specified time---Reasonable grounds existed for believing that accused had committed the alleged offence---Sufficient material/evidence had been collected against the accused to connect him in the case---No case for grant of bail had been made out---Bail application was dismissed in circumstances.

Hidayatullah v. The State 2007 YLR 1311 and Jadeed Gul v. The State 1998 SCMR 1124 ref.

Mushtaq Ahmed for Applicant.

Abrar Ali Khichi APG Sindh for the State.

Bashir A. Mirani for the Complainant.

Date of hearing: 24th August, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1270 #

2016 Y L R 1270

[Sindh]

Before Syed Muhammad Farooq Shah, J

NOOR MUHAMMAD and another---Applicants

Versus

1ST ADDITIONAL DISTRICT JUDGE, BADIN and 4 others---Respondents

Civil Revision No.18 of 2013, decided on 27th August, 2015.

(a) Gift---

----Burden of proof---Entries in the revenue record---Evidentiary value---Inheritance---Limitation---Contention of plaintiff was that she had not gifted suit property and impugned gift was false and fabricated---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Neither declaration of donor nor acceptance of donees of gift through document or verbal was on record---Statement book was neither produced by the donees nor by the revenue authorities---Exhibiting only entries on record did not 'ipso facto' entitle the donees as owners of suit land through gift deed---Onus would lie on the person who wanted to establish the genuineness of transfer of property by gift---Beneficiaries/donees were bound to prove such documents but they had not produced any attesting witness nor scribe of alleged gift---Revenue officer had not supported the case of donees by not producing the relevant documents on record---Entries in the record of rights were admissible in evidence but their evidentiary value would depend upon the peculiar facts and circumstances of each case---No limitation would run in the matters of inheritance---Alleged donor was illiterate and 'parda' observing lady---Defendants had failed to prove the genuineness of entries in the revenue record by producing independent, confidence inspiring and cogent evidence---Plaintiff could not be deprived of her ancestral rights---Revenue entries itself were not sufficient to confer any right or title in favour of donees---Donor/ donees were not present at the time of sanctioning of mutations---No proof was on record with regard to statement of donor in favour of donees---Presence of a person whose right had been acquired and the identification of such person at least by two respectable persons was inevitable---Factum of gift had made the same doubtful---Impugned judgment passed by the Appellate Court was speaking one and was based on correct appreciation of evidence---Revision was dismissed in circumstances.

2004 SCMR 1502; 2007 SCMR 637; PLD 1990 SC 1; 2005 SCMR 911 and 2000 SCMR 346 rel.

(b) Islamic Law---

----Gift---Ingredients---Ingredients of gift were declaration; acceptance either express or implied and delivery of possession of gifted property by the donor to the donee.

----Inheritance---Limitation---No limitation would run in the matters of inheritance.

Irfan Ahmed Qureshi for Applicants.

Ch. Bashir Ahmed Gujjar, Asstt. A.G.

Syed Ali Anwar Shah for Respondent No.5.

Date of hearing: 6th August, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1288 #

2016 Y L R 1288

[Sindh]

Before Zafar Ahmed Rajput, J

NASURALLAH ODHANO---Petitioner

Versus

NAZIR AHMED and others---Respondents

Constitutional Petition No.S-126 of 2014, decided on 16th November, 2015.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Sindh Rented Premises Ordinance (XVII of 1979), S. 15---Eviction petition---Production of additional evidence in the appellate court---Scope---Rent Controller dismissed ejectment petition against which appeal was filed wherein application was moved for production of additional evidence which was allowed---Validity---Appellant had no right to produce additional evidence except when it was prayed in the Trial Court and same was refused---Appellate Court must be convinced as to why evidence was not produced in the original/Trial Court and whether the evidence in question was genuine and justified in resolving the real controversy between the parties---Party to litigation could not be allowed to fill-up the lacuna of his case at late stage i.e. appeal---None of the documents to be produced as additional evidence established the ownership of landlord---Appellate Court did not consider the fact as to whether the documents to be produced as additional evidence were relevant to the actual controversy---Ample opportunity was available to the landlord in the Trial Court to produce the alleged documents but he failed there---Case could not be remanded merely to provide an opportunity to a negligent litigant to fill gaps left by him in its case---Appellate Court was not justified to allow the application for production of additional evidence---Impugned order passed by the Appellate Court was set aside---Appellate Court was directed to decide the appeal on merits in accordance with law---Constitutional petition was accepted in circumstances.

Imdad Ali Mashori for Petitioner.

Abdul Hayee N. Siddiqui for Respondent No.1.

Miss Shazia Surahio, State Counsel.

Date of hearing: 16th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1304 #

2016 Y L R 1304

[Sindh]

Before Faisal Arab, C.J. and Muhammad Iqbal Kalhoro, J

Messrs NATIONAL FIBER LTD. and 5 others---Appellants

Versus

NATIONAL BANK OF PAKISTAN and 2 others---Respondents

Spl. HCA No.143 of 2015, decided on 3rd December, 2015.

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

----O.XXI, R.90, Ss. 12(2) & 47---Limitation Act (IX of 1908), Art. 166---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Execution---Sale, setting aside of---Reversal of decree---Compromise between parties---Appellant sought setting aside of sale in execution of decree on the plea that during proceedings under S.12(2), C.P.C. a compromise had been reached whereby decree was reversed--- Validity--- Decree could be reversed effectually through a compromise only when person in whose favour certain rights were created as a result of execution of decree, was willing to forego his rights and was made party in proceedings culminating in compromise---Private agreement between parties to reverse decree during pendency of appeal filed against dismissal of application under S. 12(2), C.P.C. could not be presumed to have actually varied or reversed decree, notwithstanding the fact it was incorporated in court's order---No action was taken within the prescribed period of 30 days in terms of Art. 166 of Limitation Act, 1908, by a party competent to do so, hence filing of application by appellant, that was after a long time, which ex facie was time barred never merited consideration on merits---Division Bench of High Court declined to interfere in the matter---Intra court appeal was dismissed in circumstances.

2006 YLR 1223; 2000 YLR 2117; 2009 SCMR 1161; 2009 SCMR 720; PLD 1961 DAKA 686; 2001 CLC 737 and 1998 (sic) 2419 ref.

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

----O.XXI, R.90---Sale, setting aside of---Pre-conditions---In terms of O. XXI, R. 90, C.P.C. sale has to be set aside on the ground of material irregularity or fraud in publishing or conducting it---Any objection though based on grounds of material irregularity or fraud in proceedings but does not relate to publishing and conducting sale cannot be taken under O. XXI, R. 90, C.P.C.---Material irregularity would imply a course adopted in selling of property that is not in conformity to rules regulating sales in execution of decree.

Mushtaq A. Memon for Appellant No.1.

Farooq H. Naek for Appellants Nos. 2 to 5.

Ms. Zahrah Sehr Vayani for Respondent No.1.

Adnan Iqbal Chaudhry for Respondent No.2.

A.I. Chundrigar for Respondent No.3.

Date of hearing: 15th October, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1321 #

2016 Y L R 1321

[Sindh]

Before Shahnawaz Tariq, J

SHER MUHAMMAD through Legal Heirs and 9 others---Applicants

Versus

Messrs SUI SOUTHERN GAS COMPANY LTD.---Respondent

Civil Revision No.129 of 2012, decided on 10th March, 2015.

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

----O.XVII, R.3----Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Dismissal of suit for non-appearance of plaintiff to produce evidence---Concurrent findings---Respondent, a Gas Company having installed new meter, issued bill of Rs. 2,39,979.77/- to petitioners (consumer) without any prior notice on allegations of tampering with previous meter and stealing of gas---Petitioners challenged said bill by filing suit for declaration and permanent injunction---Petitioners having filed their affidavits could not appear for his cross-examination on many dates of hearing, but had filed application for adjournment on ground of sickness---Trial Court dismissed the suit under O.XVII, R. 3, C.P.C. for continuous non-appearance of petitioners to produce evidence, and appellate court declined interference in said order of dismissal---Plea raised by petitioners was that impugned orders of courts below were bad both in law and on fact and their non-appearance was not deliberate, instead was due to unavoidable circumstances---Validity---Final disposal of suit by Trial Court was in accordance with the settled norms of justice as petitioners, with consent of other parties and after getting many opportunities, had been given final chance to lead evidence but they had failed to appear and give evidence---Overall conduct and demeanor of petitioners indicated that they had deliberately, willfully and malafidely prolonged the proceedings and failed to adduce their evidence despite numerous opportunities provided by Trial Court during period of two years and six months---Trial Court had no option but to decline the adjournment application along with dismissing the suit under O.XVII, R.3, C.P.C.---Petitioners failed to show any illegality or material irregularity in the impugned orders to cause interference in concurrent findings of courts below---High Court dismissed the revision petition being devoid of any substance.

Abdul Shakoor and others v. Province of Punjab and 4 others 2005 SCMR 1673 and Munawar Hussain v. Additional District Judge, Jhelum and 3 others 1998 SCMR 1067 rel.

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

----O. XVII, R.3----Scope---Order XVII, R.3, C.P.C. empowers courts to decide case promptly if party directed by them fails to adduce evidence or bring any required material on record.

----S.115---Revision---Scope--- Concurrent findings, interference with---Jurisdiction of High Court under S. 115, C.P.C. was narrower, and concurrent findings of fact could not be disturbed in revisional jurisdiction unless courts below while recording findings of fact had either misread evidence or ignored any material piece of evidence or findings were perverse and reflected some jurisdictional error.

Liaquat Ali Hamid for Applicants.

Farmanullah Khan for Respondent.

2016 Y L R 1364

[Sindh]

Before Khadim Hussain M. Shaikh, J

Mst. KHUSHBOO---Applicant

Versus

STATION HOUSE OFFICER and 7 others---Respondents

Cr. Misc. A. No.S-571 of 2015, decided on 16th November, 2015.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas corpus petition---Custody of minor---Custody of minor daughter of tender age of less than two years---Respondent/father was alleged to have forcibly snatched the minor daughter from the petitioner/mother---Minor, being of tender age of less than two years, would need constant care of her mother---Custody of the minor female child of such tender age with the father was improper----High Court observed that there could be no substitute of mother for the minor---Custody of minor was, therefore, handed over to the mother---Petition was allowed accordingly.

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

Athar Iqbal Shaikh for Applicant.

Illahi Bux Maitlo for Respondents Nos. 2 and 4.

Abdul Ahad Buriro for Respondents Nos. 6 and 7.

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

YLR 2016 KARACHI HIGH COURT SINDH 1370 #

2016 Y L R 1370

[Sindh]

Before Nazar Akbar, J

KHALID HUSSAIN through Legal representatives---Applicant

Versus

PROVINCE OF SINDH through Chief Secretary Government of Sindh and 7 others---Respondents

R.A. No.47 of 2003, decided on 11th November, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XLI, R. 31---Suit for declaration without seeking possession---Main-tainability---Gift---Proof of---Contention of defendants was that no valid and legal gift was made in favour of plaintiff---Suit was dismissed concurrently---Validity---No attesting witness of gift was produced by the donee---Nothing was on record with regard to possession of plaintiff on the suit property---Plaintiff had failed to prove the execution of gift in her favour---Suit for declaration without seeking possession was not maintainable---Both the courts below had decided the matter by referring evidence on record---Case should not be remanded when there was sufficient material available to examine the issues to settle the dispute between the parties---Sufficient compliance had been made of the requirements of O. XLI, R. 31, C.P.C.---No effort was made to claim possession pending the appeal before the Appellate Court---Revision could be dismissed on account of failure of plaintiff to seek possession along with declaration of ownership in circumstances---Revision was dismissed in circumstances.

National Bank of Pakistan v. Mst. Hajra Bai and 2 others PLD 1985 Kar. 431; Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs PLD 1994 Kar. 106; Messrs National Bottlers (Pvt.) Ltd. v. Additional Secretary, Federation of Pakistan and 2 others 1995 CLC 631; Auqaf Department v. Javed Shuja and others 1995 CLC 1173; Rashid Ahmed and others v. Sardar Bibi and others 1994 MLD 467; Nasrullah Khan v. Rasul Bibi 2001 SCMR 1156; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 ref.

Nasir Abbas v. Mansoor Haider Shah PLD 1989 SC 568; Syed Iftikhar-ud-Din Haider Gardezi and 9 others v. Central Bank of India, Ltd., and 2 others 1996 SCMR 669; Abdur Razzaq v. Sabar Khan 2004 CLC 950; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Sarfraz Khan v. Federation of Pakistan 1986 SCMR 1950; Niaz Ahmed Khan v. Kishwar Begum and 19 others PLD 2003 Lah. 48; Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376; Amanat Ali v. Abdul Haque and 27 others 1999 MLD 1148; Muhammad Yousaf and 3 others v. Mst. Zubeda Begum and another 1993 MLD 2138; Mir Zaman v. Mst. Begum Jan and 11 others PLD 1983 Pesh. 100; Mian Tahir Shah and another v. Additional District Judge, Swabi and others 1998 SCMR 858; Muhammad Yousaf v. Abdul Majid PLD 1993 Lah. 245; Haji Jan Muhammad v. Provincial Water Board, Balochistan, Quetta PLD 1994 SC 242 and Allah Bakhsh and another v. Ghulam Janat and 6 others PLD 1993 Lah. 254 distinguished.

Mst. Roshi and others v. Mst. Fateh and others 1982 SCMR 542 and Mst. Zaitoon Bibi v. Dilawar Muhammad through Legal Heirs 2004 SCMR 877 rel.

Jhamat Jethanand for Applicant.

Ashfaque Nabi Qazi for Respondents Nos.1 to 3.

Naimatullah Soomro for Respondents Nos.4 to 8.

Rafique Ahmed for Respondent No.5(v).

Zaheeruddin Sahito for alleged contemnor No.2.

Abdul Sattar Kazi for alleged contemnor No.4.

Bahadur Ali Baloch for alleged contemnor.

Date of hearing: 11th September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1401 #

2016 Y L R 1401

[Sindh]

Before Irfan Saadat Khan and Syed Saeeduddin Nasir, JJ

AMJAD HUSSAIN KHOKHAR,---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, TANDO ALLAHYAR and 3 others---Respondents

C.P. No.D-6514 of 2015, decided on 19th December, 2015.

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

----Ss. 12 & 99 (1-A)---Election for local government--- Nomination papers, submission of---Objections---Guarantor for repayment of loan---Effect---Objections to the candidature were filed on the ground that candidate was a loan defaulter and he was disqualified from contesting elections---Returning Officer dismissed the said objections and nomination papers were accepted---Validity---Loan was neither obtained by the candidate nor in the name of his spouse nor any one of his dependants---Candidate was a guarantor for repayment of loan obtained by his brother and he did not fall within the definition of a "defaulter"---Candidate could not be disqualified from contesting election in circumstances---Constitutional petition was dismissed in circumstances.

Sardar Sarfraz Ahmed Cheema v. Returning Officer and others 2013 CLC 1088; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA-158, Naushero Feroze and others 1994 SCMR 1299; Syed Nasir Ali Rizvi v. Mirza Nasir Baig and others 1997 CLC 719; Haji Khuda Bux Nizamani v. Election Tribunal and others 2003 MLD 607; 2015 PLC 45; Ejaz Ahmed Cheema v. Javed Mahmood Ghuman and another 1993 MLD 2507; Shahid Khan Nizamani v. Returning Officer and another 2010 CLC 1615; Nisar Ahmed Khuhro v. Election Tribunal and 3 others 2003 YLR 749; Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49 Islamabad and others PLD 2008 SC 487; Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others PLD 2008 SC 310; Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others 2004 SCMR 1602 and Muhammad Hussain Babar v. Election Commission of Pakistan through Secretary and others PLD 2008 SC 495 ref.

Ch. Mubashar Hussain v. Returning Officer, Kharian, District Gujrat and 3 others PLD 2008 Lah. 134; Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others 2013 SCMR 1246; Malik Umar Aslam v. Mrs. Sumaira Malik and others 2014 SCMR 45; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1054; Muhammad Yaqoob Sheikh v. Election Tribunal Multan 2013 CLC 1512; Allied Bank Limited through authorized person v. Inamullah Khan and another 2013 CLC 1310; Abbas Khan and another v. Appellate Authority, District and Sessions Judge, Attock and others 2002 SCMR 398 and Abdul Wajid Rasool v. District Returning Officer, Muzaffargarh and 2 others 2006 YLR 750 distinguished.

2006 SCMR 12; 2006 SCMR 276; Bhumbho Mehtaram and another v. District Local Board, Hyderabad Sindh through its Chief Officer AIR 1940 Sindh 199; National Commercial Bank Ltd., v. Muhammad Tufail and another PLD 1975 Kar. 671 and Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay and another PLD 1957 SC (India) 90 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Questions of facts could not be decided while exercising constitutional jurisdiction.

----Statute could not be interpreted in the light of language used in another statute except when the language which had to be interpreted was in the context open to more meaning than one.

Muhammad Haseeb Jamali and Hidayatullah Mangrio for Petitioners.

Mohammad Yousuf Leghari for Respondent No.3.

Mukesh Kumar Karara AAG for Respondent No.4.

Date of hearing: 17th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1436 #

2016 Y L R 1436

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Messrs QAMRAN CONSTRUCTION (PVT.) LTD. through Managing Director---Plaintaiff

Versus

MOHAMMAD ANIS and 26 others---Defendants

Suit No.1442 of 2000, decided on 5th January, 2016.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Proposed amendment did not change cause of action or complexion of the case---Application for amendment in the plaint was allowed---Plaintiff was directed to incorporate the proposed amendment within the specified period.

PLD 1971 SC 762; 1983 SCMR 1178; 1995 SCMR 69; PLD 1985 SC 351; 1986 SCMR 1575; PLD 1993 SC 88; PLD 1993 SC 332; PLD 1982 SC 30; PLD 1992 SC 180 and PLD 1980 Kar. 345 ref.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Ghulam Hyder v. Muhammad Ayub 2001 SCMR 133 rel.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Amendment in the pleadings could be allowed if nature of suit in so far as its cause of action, complexion and character of the case did not change---Amendment should not cause embarrassment to the other party.

Shahanshah Hussain for Plaintiff.

Raja Sikandar Khan Yasir for Defendants Nos. 3 to 8.

Date of hearing: 22nd December, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1477 #

2016 Y L R 1477

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Messrs SHAHTAJ TEXTILE LTD.---Applicant

Versus

STANDARD CHARTERED BANK (PAKISTAN) LTD. and 5 others---Respondents

Execution Application No.39 and Judicial Miscellaneous Application No.62 of 2015, decided on 23rd December, 2015.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 151, O. XXI, Rr. 30 & 58---Execution of decrees---Rival claims---Bank and private party laid their claim over mortgaged property for execution of decrees passed in their favour respectively---Validity---Burden was upon petitioner to demonstrate that judgment/ debtors and Bank played any fraud upon the Court and misrepresented facts---Neither judgment debtors nor Bank actively concealed any fact or misrepresented certain facts in such a fraudulent way which had it not been made or done, would have not resulted in passing of compromise decree in favour of Bank---Element of fraud was not present--High Court declined to entertain application under S.12(2), C.P.C., filed by petitioner---Execution preferred by petitioner/decree holder survived and would be adjudicated upon on its own merits---High Court refused to entertain objections filed by judgment debtors as order for depositing decretal amount was not complied with and that order was still holding the field---Objection petition was dismissed accordingly.

1995 CLC 99; 1999 PTD 2940; 2006 CLC 415; 1994 SCMR 2248; Messrs Dadabhoy Cement Industries v. National Development Finance Corporation Karachi PLD 2002 SC 500; PLD 1996 Lah. 99; Mobina Begum v. The Joint Secretary, Ministry of Religious and Minority Affairs, Government of Pakistan, Islamabad and 2 others 1994 MLD 1441; 1992 SCMR 2184 and Mohiuddin v. The Province of East Pakistan and others PLD 1962 SC 119 rel.

Syed Ali Ahmed Tariq for Decree Holder.

Irfan Haroon for Judgment Debtors.

Mrs. Soofia Saeed Shah for Applicant.

Syed Aijaz Hussain Shirazi Objector Chartered Bank (Pakistan) Ltd.

Date of hearing: 26th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1506 #

2016 Y L R 1506

[Sindh]

Before Salahuddin Panhwar, J

Mst. SARKAR KHANO A. MOLO---Plaintiff

Versus

ABDUL MALIK REHMATULLAH KASIM LAKHA through L.Rs. and others---Defendants

Suit No.624 of 1998 and Suit No.967 of 1996, decided on 28th May, 2015.

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

----O.XL, R.1, Ss.94 & 11---Appointment of Receiver---Scope and object---Second application--- Maintainability--- Res judicata---Applicability---Jurisdiction of court as to changed circumstances---Principles---Sealing of suit property under O. XL---Permissibility---Plaintiff filed application under O.XL, R. 1, C.P.C. in suit praying sealing of suit property/cinema or appointment of official assignee as Receiver for protecting and preserving the same and managing and administrating affairs thereof to save the same from being wasted and damaged---Trial Court on application previously filed by defendants in their suit had already appointed Nazir of court who had taken over the possession of cinemas, when the same were operational and making profits---Defendants took plea that the application for appointment of Receiver was liable to be dismissed on grounds that suit property had already been completely destroyed and damaged by plaintiff while the same was in possession of Nazir of court, so said application was misleading; that stay order was still operative against parties, and that an earlier application on same subject had already been disposed, so present application was hit by res judicata, and that subsequent suit filed by defendant was not for possession, hence application for appointment of Receiver was not maintainable---Validity---Legal object and purpose of appointment of Receiver was either to safeguard the interest of all parties or safeguard subject matter pending final determination of rights, liabilities and claims of parties in respect of subject matter---Regardless of respective disputed questions with regard to ownership of company, every one of parties was interested to safeguard the subject matter and benefits arising thereof----Suit property, both the cinemas, were no more operative and were seriously damaged, and purpose for which Receiver had taken over control or appointed to monitor earning thereof had come to an end---All parties were in agreement regarding present status of suit property---Purpose of applications was prima facie nothing but to preserve and protect subject matter of suits---Provision of O. XL, R.1, C.P.C. did not recognize sealing of suit property---Change of status of suit property, even during pendency of suit, could well be pressed as fresh ground to repeat application, even in existence of earlier order on application of same nature or title---Court was competent to take notice of change or development, even if the same happened during pendency of suit---Prayer as to preserve, manage and protect subject matter of suit had to be examined in view of changed circumstance---Interlocutory order passed on previous application of same nature, purpose whereof had ceased to exist, was to be taken to have come to an end for all purposes, even if the same was not formally declared so by court---Present application was not barred under principle of res judicata---Status of suit property had changed, no party was in possession of suit property, suit property (cinemas) was inoperative and the same was under control of court Nazir---Present application under O. XL, R.1, C.P.C. was not maintainable as subject matter thereof had become inoperative and damaged and none of the parties was in possession thereof---Object of appointment of Receiver was either to remove someone who was in possession, or to put officer of court in possession, or preserve suit property from being wasted, secure and collect proceeds for ultimately disposal thereof according to rights and priorities of entitlement---Provisions of S.94, C.P.C. were not applicable to the present case---Parties were in serious disputes with each other and their title and status was yet to be established---Court, instead of appointing Receiver, appointed Official Assignee for inviting offers from companies or individuals to take subject matter of suit on lease or rent for ten years---At the end of litigation, ultimate successor would be legally entitled to take back property or to allow continuity of further lease or rent---Applications were disposed off in circumstances.

(b) Companies Ordinance (XLVII of 1984)----

----S. 2(28)----Private limited company---Meaning---Ordinary meaning of private limited company is ownership of a company by its share-holders whose (company's) share are not offered to public, hence remain within share-holders---Any person claiming to be share holder is always supposed and believed to act and omit for benefit of company as individuals may join to form a private limited company but continuity thereof is subject to act for object thereof which may be as defined and agreed by such joined individuals but could not permit an act or omission of share-holder to harm the company.

----O. XL, R.1.----Appointment of Receiver--- Object--- Legal object and purpose of appointment of receiver was either to safeguard the interest of all parties or safeguard subject-matter pending final determination of rights, liabilities and claims of parties in respect of subject-matter.

[Case-law referred].

Khalid Javed for Plaintiff (in Suit No.624 of 1998).

Arshad M. Tayebaly, Amel Khan Kansi along with Muhammad Shahid for Defendant No.1(d) (in Suit No.624 of 1998).

Khawaja Shamsul Islam, Imran Taj and Shehzad Mehmood for Defendants Nos.3 (in Suit No.624 of 1998).

Jam Habibullah, State Counsel (in Suit No.624 of 1998).

Arshad M. Tayebaly and Amel Khan Kansi along with Muhammad Shahid for Plaintiffs Nos.1 (a) to 1 (d) (in Suit No.967 of 1996).

Khawaja Shamsul Islam for Defendant No.1. (in Suit No.967 of 1996)

Khalid Javed for Defendant No.2 (in Suit No.967 of 1996).

Date of hearing: 27th April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1526 #

2016 Y L R 1526

[Sindh]

Before Ghulam Sarwar Korai and Salahuddin Panhwar, JJ

The STATE through Assistant Collector of Customs---Applicant

Versus

GHULAM MUSTAFA---Respondent

Cr. Misc. Application No.6 of 2014, decided on 21st March, 2014.

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

----S. 497(1), proviso 3, Conditions (a)(b) & 4---Bail, granted on statutory delay---Proviso 3 to S.497(1), Cr.P.C. demanded release of accused, who being accused of an offence, per conditions (a)(b) of said proviso 3, had been detained for offence for continuous period exceeding one year or two years; but trial for such offence had not been concluded within such period---Such demand of release, was subject to satisfaction of the court, that delay in conclusion of trial, was not occasioned by any act or omission of accused---Such right to claim release on bail, was not of general application---Conditions (a)(b) of proviso 3 of S.497(1), Cr.P.C., were subject to the conditions that (i) accused was previously convicted for an offence punishable with death or imprisonment for life; (ii) person, who in opinion of the court, was hardened, desperate or dangerous criminal and (iii) person was an accused of an act of terrorism punishable with death or imprisonment for life---Court, while deciding bail application on the plea of delay, was under mandatory obligation to examine the conditions judiciously---Such benefit of bail, would not be extended for a 'hardened', 'desperate' and dangerous criminal---Court was to form an opinion, in the circumstances and facts of each case against a person, which being a mere opinion, would not be termed as a decision, or a judgment, but would be an observation---Whenever question of exercise of power under said proviso would come before the court, the court would satisfy that case of accused, did not fall within exceptions, as provided in the S.497, Cr.P.C., and then towards cls. (a), (b), because both clauses were subject to the rider, any departure of such conditions, would frustrate the whole scheme of law---Not the criminal record of accused alone would bring or get out the 'case' of accused from exceptions of 4th proviso, but the 'offence', impact thereof, and manner of committing thereof, was also to be kept in view.

2000 SCMR 299; Manzoor Ahmed v. The State 1999 SCMR 131 and Sher Ali alias Sheri v. The State 1998 SCMR 190 ref.

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

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, cancellation of---Allegation against accused was that he having joined hands with some of Security Officials of Airport, planned to transport huge quantity of heroin powder (73.5 Kg.) outside the country---Such was not an ordinary offence, but it had been the consequences of such offence, which remained compelling the legislature to introduce different enactments, including Control of Narcotic Substances Act, 1997---Drug traffickers and smugglers, adopted various methods to transfer, traffic and smuggle illegal articles from one country to another---Criteria and yardstick for examining the cases of normal possession or transportation of narcotic drugs, should be different from the cases of trafficking and smuggling of narcotic drugs---Attempted transport of narcotics in the case was a heroin powder, which, because of its consequences, had dangerous effect upon the society---Since it was also the "weight", which was a determining factor in such like cases, towards punishment, a person accused of trafficking huge quantity of heroin powder (73.5 Kg.) was not entitled for concession of bail---Trial Court did not touch said aspect of the matter, but in a mechanical manner, ordered for release of accused with reference to "non-objection" of Special Prosecutor for release of accused---Mere 'no objection' of the Special Prosecutor, or State Counsel, would not validate release of an accused of non-bailable offence; but it should always be the satisfaction of the court, based on judicial reasoning towards relevant parameter for release of such accused---Courts should not become tool for delaying tactics to allow accused in custody to claim bail on statutory ground of delay, especially in cases, which related to the hardened criminals who had net work for commission of offences---Impugned order of the Trial Court, whereby accused was granted bail, being perverse, illegal and not maintainable under the law, was set aside in circumstances.

Ghulam Mustafa for Applicant.

Respondent produced in custody.

Date of hearing: 5th March, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 1557 #

2016 Y L R 1557

[Sindh]

Before Muhammad Junaid Ghaffar, J

ABDUL HALEEM---Plaintiff

Versus

Messrs GULSHAN-E-FAISAL COOP. HOUSING SOCIETY LTD. through Secretary and 5 others---Defendants

Suit No.1018 of 2005, decided on 14th December, 2015.

(a) Gift---

----Ingredients---Scope---Contention of plaintiff was that he was owner of suit property and gift deed in favour of defendants was forged one---Validity---Limitation for cancellation of document had to be counted from the date of knowledge of such alleged forged document---Suit of plaintiff was within time---Defendants were bound to produce evidence in support of gift deed executed in their favour---No record with regard to impugned gift deed was produced in the court---Attesting witnesses of gift deed had not been produced by the defendants to prove the same---Impugned gift deed was doubtful---Nothing was on record that possession of suit property was handed over to the donee---No evidence had been produced by the defendants to prove alleged transaction of gift---Suit was decreed in circumstances.

Majeeduddin Khan and others v. Sardar Khan and others 1990 SCMR 1031; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Sirajuddin v. Mst. Jamilan and another PLD 1997 Lah. 633; Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others 2002 SCMR 1938; Shams Mohiuddin Ansari v. Messrs International Builders through Partners and another 2010 CLC 1622; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6; Qureshi Noor Hussain and 7 others v. Ghulam Jan and 5 others PLD 1984 Pesh. 86; Malik Bashir Ahmed Khan and others v. Qasim Ali and others PLD 2009 SC 183; Ashiq Hussain v. Ali Ahmed 1999 YLR 2209; Hyderabad Development Authority through MD Civic Centre Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Aurangzeb Khan and 9 others v. Ghulam Mustafa Khan 1990 CLC 1838; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182; Muhammad Ibrahim v. District Judge Appellate Authority Vehari and others 1985 CLC 2644; Mst. Marium Haji and others v. Mrs. Yasmin R. Minhas and others PLD 2003 Kar. 148 and Mian Muhammad Akram and others v. Muhammad Chiragh and others PLD 2003 Lah. 804 ref.

Umar Bibi and 3 others v. Bashir Ahmed and 3 others 1977 SCMR 154; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403; Rab Nawaz and others v. Ghulam Rasool 2014 SCMR 1181 and Abdul Sattar and others v. Muhammad Ashraf and others 2008 SCMR 1318 rel.

(b) Islamic law---

----Gift---Ingredients---Ingredients of gift were declaration of gift by the donor; acceptance of gift expressly or impliedly by or on behalf of donee and delivery of possession of subject matter to the donee.

----Art. 91---Cancellation of document---Limitation to be counted from the date of knowledge of such document.

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

----S.39---Cancellation of document---Limitation---Period of limitation to be counted from the date of knowledge of such document.

Khalid Dawood Pota for Plaintiff.

S. Hassan Imam for Defendants Nos. 2 and 3.

Nemo for Defendants Nos.1 and 4.

Defendant No.6 Ex parte.

Date of hearing: 3rd October, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1583 #

2016 Y L R 1583

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD IRFAN GHAZI---Plaintiff

Versus

IZO SPA and 4 others---Respondents

Suit No.871 of 2014, decided on 21st September, 2015.

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

----O. XXXIX, Rr. 1 & 2, O. VII, R. 10 & S. 20---Contract Act (IX of 1872), S. 28---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Maintainability---Foreign company---Agreement for distribution of foreign products in Pakistan---Agreement to settle dispute in foreign country---Stay of proceedings---Scope---Plaintiff engaged in business of imports, distribution, marketing and selling of defendant's (foreign company) products in the local markets in Pakistan---Contention of plaintiff was that defendant (foreign company) had terminated agreement to deprive him from the fruits of the same and to cause irreparable loss---Validity---Defendant was a company established and functional in a foreign country and manufacturing its product there---Parties were in notice and knowledge of their status and place of residence/business---Interpretation of agreement, words used therein or conduct of the parties had to be examined keeping such fact in view---Plaintiff had nowhere challenged the legality of the Court of foreign country nor it was his case that issue involved/raised by him could not be determined by such court or plaintiff's right could not be determined by such court---Status of plaintiff was that of 'distributor' of defendant-foreign company for products supplied through shipment---Such was a series of events---Every breach thereof would give a right to the plaintiff but every such right would be subject to 'arising from or in connection with the agreement'---Plaintiff had right to sue at the place where cause of action had accrued which would be in a foreign country---Civil Procedure Code, 1908 did explain the 'jurisdiction', 'try all suits unless barred', 'rejection of plaint or return thereof for presentation before proper forum' but nowhere permitted the courts to stay proceedings of the suit---Once a lis was brought to a file of courts then law would provide mechanism for disposal of the same but it did not include an order of stay proceedings for an indefinite period---Procedure in courts in a foreign country might be different from one provided in Civil Procedure Code, 1908---Returning of plaint for presentation before proper forum would not meet the requirement of law rather result in causing prejudice to plaintiff---Suit before High Court in Pakistan was not maintainable which was dismissed in circumstances---High Court observed that dismissal of suit would not prejudice the rights of plaintiff to institute proper proceedings for adjudication of its grievances/claims as per applicable limitation of law if any.

PLD 2014 Sindh 175; 2012 SCMR 1027 and State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 rel.

(b) Words and phrases---

---'Ordinary'---Meaning.

Black's Law Dictionary rel.

Muhammad Nouman Jamali for Plaintiff.

Z.U. Mujahid for Defendant No.1.

Date of hearing: 15th April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1597 #

2016 Y L R 1597

[Sindh]

Before Anwar Hussain, J

HUSSAIN BUX alias MOHAMMED HUSSAIN through Attorney---Applicant

Versus

NABI BUX and 6 others---Respondents

R.A. No.92 of 2009, decided on 18th January, 2016.

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

----Arts. 14 & 120---Civil Procedure Code (V of 1908), O. VII, R. 11---Grant of land--- Cancellation--- Ex-parte order, setting aside of---Scope---Order passed in violation of principles of natural justice---Setting aside of---Limitation---Suit for declaration---Plaint, rejection of---Member (Land Utilization) Board cancelled grant of land while passing ex parte order against which appeal was filed which was dismissed in default---Suit for declaration was filed against the said order wherein application for rejection of plaint was moved and plaint was rejected being time barred---Validity---Impugned order was passed behind the plaintiff who was not party therein---Plaintiff was not heard who was owner of land in question---Order passed behind the plaintiff was against principles of natural justice which was null and void in the eye of law and therefore question of limitation did not arise---Limitation for such order would start from the date of knowledge---Article 14 of Limitation Act, 1908 was not applicable in the present case as suit was for declaration as to ownership of land in question against the official orders of revenue officer as illegal, arbitrary, fanciful, null and void and of no legal effect and no prayer for setting aside such orders was made---Article 120 of Limitation Act, 1908 therefore was applicable in the present case---Plaint could not be rejected partially in presence of main prayer for declaration of ownership---Impugned judgments and orders passed by the courts below were set aside---Trial Court was directed to dispose of the case on merits within six months---Revision was allowed in circumstances.

2004 SCMR 1502; 1995 SCMR 284; 2009 MLD 67; 2006 SCMR 489; PLD 1985 SC 345; 2010 CLC 1646; 2011 CLC 1556; 2006 CLC 1042 and 2003 CLC 1443 ref.

1988 CLC 412; 1988 MLD 1980; 1992 MLD 1166 and 2002 MLD 526 distinguished.

Rehmat Bibi v. Punnu 1986 SCMR 962; Government of Sindh v. Khalil Ahmed 1994 SCMR 782; Punhal v. Secretary Revenue, 1982 CLC 660; Hussain A. Haroon v. Mrs. Laila Sarfraz 2003 CLC 771; Malhar v. Government of Sindh 2005 CLC 285; Nazeeruddin v. Province of Punjab 1999 MLD 833; Zardad Khan v. Safia Begum 1998 CLC 2008; Karim Dad v. Arif Ali PLD 1978 Lah. 679; Hamid Ali v. Rahela Khatun PLD 1963 Dacca 734; Punjab Province v. Nisar Ahmed PLD 1960 Lah. 801; Thiruvenkatacharyulu v. Secy. of State AIR 1934 Madras 147(D.B); Krishen Lal v. Mohan Lal AIR 1951 Ajmer 01; Province of East Pakistan v. AK Razaul Karim PLD 1969 Dacca 280. (D.B); Pakistan v. Muhammad Abdul Kuddus PLD 1961 Dacca 616; Province of Punjab v. Ashiq Muhammad Khan PLD 1990 Lah. 153; Rashid Inayat v. The Federation of Pakistan PLD 1957 Lah. 378; Union of India v. Kedareshwar AIR 1959 H.P. 32; Rehman v. Yara 2004 SCMR 1507; Wali v. Akbar 1995 SCMR 284; F.K. Khan v. Govt. of Pakistan PLD 1964 SC 520; Attaullah v. Sanaullah PLD 2009 Kar. 38; Izhar Muhammad v. Memon Housing Services 2009 MLD 1378; E.F.U. General Insurance Company v. Zahid Gee Textile Mills 2005 CLC 848; Muhammad Ameen v. Sardar Ali PLD 2006 SC 318; Rashid Baig v. Rehmatullah PLD 2001 SC 443; Saheb Khan v. Muhammad Pannah PLD 1994 SC 162 and Muhammad Hayat v. Mazhar Hussain 2006 SCMR 1410 rel.

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

----S. 42---Limitation Act (IX of 1908), Art. 120--- Suit for declaration---Limitation---Suit for declaration could be filed within six years from the date when right to sue accrued.

----O. VII, R. 11---Plaint, rejection of---Scope---Plaint could not be rejected partially.

(d) Limitation---

----Void order---Principle---If order was null and void then question of limitation did not arise.

(e) Natural justice, principles of---

----Any order in violation of natural justice would be null and void.

(f) Administration of justice---

----Decision of the cases should be made on merits instead of non-suiting for technical reasons including limitation.

Managing Director, S.S.G.C. v. Ghulam Abbas PLD 2003 SC 724 and Muhammad Hanif Bukhari v. President, NBP 2004 PLC (C.S.) 14 rel.

(g) Interpretation of statutes---

----Plain and literal meaning to be given to the words used in the statute/provision of law.

Deedar Hussain Balouch for Applicant.

Harish Chandar for Respondents Nos. 1, 2 and 3.

A.B. Soomro, Additional A.G. for Respondents Nos. 4 to 7.

Date of hearing: 16th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1618 #

2016 Y L R 1618

[Sindh]

Before Aftab Ahmed Gorar and Muhammad Iqbal Mahar, JJ

GHULAM NASAR KHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-81 of 2012, decided on 26th November, 2015.

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

----Ss. 9(c) & 25---Possessing and trafficking narcotics---Appreciation of evidence---Both the prosecution witnesses deposed in same line, and supported case regarding recovery of 85 kilograms of charas from the truck driven by accused---Evidence of both the witnesses was consistent on material points---Despite lengthy cross-examination by defence counsel, nothing could be achieved in favour of accused---Time of recovery being 5.00 a.m., at such early time, availability of the private persons at National Highway, could not be expected---Section 25 of Control of Narcotic Substances Act, 1997, had excluded applicability of S.103, Cr.P.C., in narcotic cases---Non-association of the private mashir at the time of recovery of charas from the truck driven by accused, would neither cause any dent in the prosecution case, nor vitiate the proceedings---Accused being driver of the truck, was incharge of the same, was in knowledge of the contents and articles lying therein---Accused was responsible for transportation of charas, in circumstances---Acquittal of co-accused would not be helpful to accused, as said co-accused was neither owner, nor co-driver, and neither cleaner of the truck, but was only sitting with accused---Responsibility of said person was not at par with the accused---Complainant, had admitted that during investigation, co-accused was found innocent, and was released under S.169, Cr.P.C.---Prosecution having proved its case against accused beyond any shadow of doubt, impugned judgment did not call for any interference and was maintained, in circumstances.

Amjad Ali v. The State 2012 SCMR 577 distinguished.

Mst. Jameela and another v. The State PLD 2012 SC 369; PLD 2006 SC 61; 2008 SCMR 1254; Kashir Amir v. The State PLD 2010 SC 1052 and Faiz Muhammad and another v. The State 2009 SCMR 1403 ref.

Syed Muhammad Waseem Shah for Appellant.

Syed Meeral Shah Deputy Prosecutor General for the State.

Date of hearing: 25th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1629 #

2016 Y L R 1629

[Sindh]

Before Muhammad Iqbal Mahar, J

PATHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-824 of 2014, decided on 25th March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, refusal of---Two persons had lost their lives and two others had sustained injuries at the hands of accused---Occurrence was day time incident, parties were known to each other, no question of mistaken identity existed---Accused, along with others was nominated in the FIR, with specific role of firing at deceased and injuring prosecution witnesses---Prosecution witnesses in their statements under Ss.161 & 164, Cr.P.C., had supported the version of complainant given by him in FIR---Medical evidence, also corroborated the ocular evidence---Version of the complainant, was corroborated by recovery of empties from the place of incident, and recovery of pistol from accused---Reasonable grounds appeared to believe that accused had committed the offence, which was punishable with death or imprisonment for life; which came within the prohibitory clause of S.497, Cr.P.C.---Delay in FIR had fully been explained---Accused, having failed to make out a case for bail, his bail application, was dismissed, in circumstances.

2004 PCr.LJ 1843; 2010 SCMR 1178 and 2011 SCMR 1543 rel.

Badal Gahoti for Applicant.

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

Ghulamullah Chang for the Complainant.

YLR 2016 KARACHI HIGH COURT SINDH 1642 #

2016 Y L R 1642

[Sindh]

Before Salahuddin Panhwar and Syed Saeeduddin Nasir, JJ

RAHIMDAD MOHAMMADANI---Appellant

Versus

The STATE---Respondent

Crl. Jail Appeal No.D-34 of 2015, decided on 11th September, 2015.

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

----S. 365-A---Kidnapping for ransom---Appreciation of evidence---One abductee, was not examined, whereas the other one had negated the version of police with categorical statement that accused was not the same person who abducted them---Best evidence available with the prosecution to insist for conviction of accused was evidence of the abductees, who were star witnesses, for which burden was upon the prosecution---Prosecution, in discharge of such burden, had failed to bring one abductee into witness box, while the other abductee did not implicate co-accused---Case of abduction revolved around the abductee, and it was not safe to convict the accused where the abductees did not point finger on accused claiming him as culprit of abduction---Accused was not arrested from place of recovery of the abductee---Allegation against accused persons, were one and the same---Fate of trial for said accused persons including the present accused was the result of same set of evidence---Out of three accused persons, two had been acquitted and their acquittal had attained finality as same was not challenged---Present accused, in circumstances, was also entitled for the same treatment---Accused having succeeded to make out his case of acquittal, impugned judgment was set aside and accused was acquitted of the charge and was released.

Ali Hassan v. The State 2009 MLD 1198 and Muhammad Akram v. The State 2012 SCMR 440 ref.

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

----S. 365-A---Constitution of Pakistan, Arts.10-A & 13---Kidnapping for ransom---Trial in absentia---Trial in absentia, was illegal and against the spirit of "fair trial" as provided under Art.10-A of the Constitution; as it would give an opportunity to the aggrieved to come and seek de novo trial---Article 10-A of the Constitution was equally applicable to either side; hence prosecution, could come with such plea---Such right was not meant to prejudice Art.13 of the Constitution or its application, which even barred prosecution for one and the same offence more than once.

Rashid Mustafa Solangi for Appellant.

Shahzado Saleem Nahiyoon, Assistant Prosecutor General for Respondent.

Date of hearing: 4th September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1652 #

2016 Y L R 1652

[Sindh]

Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ

MUHAMMAD HANIF KHAN thorugh Attorney and another---Petitioners

Versus

MALIR DEVELOPMENT AUTHORITY through Director General and 2 others---Respondents

C.P. No.D-2744 of 2010, decided on 19th January, 2016.

(a) Karachi Buildings and Town Planning Regulations, 2002---

----Reglns. 3-3 & 5.4---Sindh Buildings Control Ordinance (V of 1979), S. 21-A---Notification No.DCO/CDGK/MPGO/ 2010/25 dated 16-04-2010---Developing a Housing Scheme---Approval of layout plan---Outer Development Charges, enhancement of---Vested rights---Scope---Layout plan of the property was approved by the development authority only on the payment of 50% Outer Development Charges and 50% Charges were to be charged after a period of six months---Petitioner paid 50% Outer Development Charges whereafter enhanced/revised Outer Development Charges were demanded by the Development Authority---Contention of Development Authority was that petitioner had failed to pay remaining 50% Outer Development Charges within six months and competent authority had enhanced/revised the said Charges and petitioner was bound to pay the same at enhanced/revised rates---Validity---50% Outer Development Charges were to be charged after six months and not within six months---Development Authority was bound to demand and/ or issue challan for the balance 50% Outer Development Charges after six months to the petitioner but same was not done till the rates of the said Charges were enhanced/revised---Outer Development Charges were to be calculated on the rates applicable on the date when layout plan was approved---Petitioner had been condemned unheard and he had been deprived of vested right already accrued in his favour---Old rates of Outer Development Charges were applicable to those old cases wherein 50% or more Development Charges had already been paid---New rates of Outer Development Charges were applicable to those old cases where less than 50% Charges had been paid---Petitioner had already paid 50% Outer Development Charges at the old rates---Impugned letters were illegal and without lawful authority---Development Authority was directed to accept 50% balance amount as being Outer Development Charges---Constitutional petition was disposed of in circumstances.

Government of Pakistan through Secretary Ministry of Commerce, Pak. Secretariat, Islamabad v. Messrs Village Development Organization, V.P.O. Landrwan, District Laki Marwat through (General Attorney) Sher Adam 2005 SCMR 492 rel.

(b) Constitution of Pakistan---

----Art. 10-A---Due process---Scope---'Fair opportunity of hearing' and 'due process' was fundamental right of all the citizens and litigants.

Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236 and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 rel.

Shabbir Shah for Petitioners.

Iqbal Khurram for Respondent No.1.

Sartaj Malkani for Respondent No.3.

Date of hearing: 15th December, 2015.

2016 Y L R 1750

[Sindh]

Before Hassan Feroz, J

STANDARD CHARTERED BANK (PAKISTAN) LTD. and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE-VII SOUTH, KARACHI and others---Respondents

Constitutional Petitions Nos. S-353 to S-355, S-358 to S-368 and S-372 to S-387 of 2011, decided on 27th February, 2015.

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

----S. 2(a)---Term 'Building'---Connota-tion---Even 'godown-cum-workshop' and 'open space' fall within the definition of 'building' in terms of S. 2(a) of Sindh Rented Premises Ordinance, 1979---Rent Controller has jurisdiction to entertain and decide application for ejectment of tenants from such premises.

Oosman Brothers v. Muhammad Aslam and 3 others 1999 CLC 2012 rel.

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

----S. 15---Ejectment of tenant---Oral tenancy---Effect---No bar exists in creating tenancy either verbally or in writing and the only difference between the two is with regard to period for which default has to be counted.

----S. 4---Power of attorney---Object, purpose and scope---Power of attorney or letter of attorney is an authority whereby one is set in the turn, instead or in place of another to act for him and such authority in writing is the power of attorney---Person authorized to do any lawful act instead of another is called the attorney or the donee of the power of attorney---Person who gives the power is called the donor---Definition of power of attorney does not seek to include cases of contracts creating relationship of principal and agent---Power of attorney enables the attorney not only to do lawful things on behalf of principal so as to bind the latter but also to use the latter's name in instruments executed by him as the attorney---In instruments thus executed, the principal himself figures as the party to transaction though his name is written on seal used by attorney or his attorneys---In the case of agency, agent himself executes instrument though the transaction is binding on principal---Power of attorney, on the other hand, enables the person authorized not only to act on behalf of his principal but also to use the latter's name in all transaction effected by him in the capacity as an attorney---Where one is authorized in writing, on behalf of another and in his name to do lawful acts that is an appointment of an attorney---Capacity to appoint attorney is practically coextensive with the capacity to contract---Power of attorney given by infant is void except for doing acts by which the infant himself could be legally bound---Power of attorney has two aspects, first, the power to do something on behalf of the principal which is generally beneficial to him and secondly, power to exercise description depriving the principal of right to his assets, properties etc.---Where attorney has given power to do all things on behalf of principal, such attorney cannot be deprived of power to file suit or appeal on behalf of principal---Legal nature of a document of power of attorney is to be determined by its contents and not by the stamp duty paid on it.

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

----Ss. 15 & 19---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Dismissal of ejectment application---Change of attorney---In ejectment proceedings, during recording of evidence of attorney of landlord, an application was filed by landlord for change of his attorney---Rent Controller refused to allow change of attorney and ejectment application was dismissed---Order passed by Rent Controller was maintained by Lower Appellate Court---Validity---No decision of ejectment applications on merits existed as Rent Controller while deciding interlocutory application moved under S. 151, C.P.C. on behalf of landlord proceeded to simultaneously dispose of application while holding that applications were also not maintainable and such findings of the Rent Controller was not based on proper inquiry and appreciation of evidence to decide controversy involved at such stage when the applications were fixed for evidence and witness of landlord was partly cross-examined---Rent Controller was obliged to have completed evidence and then to decide such controversies and in such a way Rent Controller could also be able to have discussed evidence so brought on record, such decision by Rent Controller was premature and was not sustainable so also the conclusion reached at by Lower Appellate Court in dismissing appeal without appreciating that the order passed by Rent Controller was interlocutory / interim in nature whereby rent applications were also dismissed in slipshod/haphazard manner---Two Courts below failed to judicially assess the controversies involved in the matter---High Court in exercise of Constitutional jurisdiction set aside the order and judgment passed by Rent Controller and Lower Appellate Court respectively---High Court directed Rent Controller to initiate proceedings from the stage of evidence by taking affidavit of proposed attorney of landlord and thereupon cross-examination by tenants---Petition was allowed in circumstances.

Case law referred.

Nafees A. Siddiqui and Sattar Awan for Petitioners.

Tanveer Ashraf, Rao Liaquat Ali Khan, Abdul Waheed Kanjoo and Munawar Malik for Respondents.

Date of hearing: 5th November, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 1779 #

2016 Y L R 1779

[Sindh]

Before Muhammad Iqbal Kalhoro and Muhammad Iqbal Mahar, JJ

IBRAHIM and 7 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-113 and Criminal Revision Application No.D-80 of 2014, decided on 10th March, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 (b) & 324---Criminal Procedure Code (V of 1898), S. 439---Qatl-i-amd and attempt to commit qatl-i-amd---Appreciation of evidence---Mitigating circumstances---Two accused were assigned specific role of causing injuries to deceased by causing hatchet blows to him while allegation against remaining accused was that they fired at complainant party and fires hit three injured prosecution witnesses---Trial Court convicted all accused persons and imposed various sentences extending up to imprisonment for life---Complainant party sought enhancement of sentence of imprisonment for life to death sentence---Validity---As per medical evidence injuries sustained by injured prosecution witnesses were caused to them by hard and blunt substance and only one injured prosecution witness sustained one fire arm injury---Fire arm injury was not specifically attributed to any of the accused---No strong motive was alleged by prosecution and the incident was a result of free fight between the parties without any pre-concert on the part of accused persons---One accused was aged about 70 years, there were two head injuries on the person of deceased which one proved to be fatal or by whom it was caused were unanswered questions, which could be construed as mitigating circumstances and the same could not be over looked while deciding quantum of sentence---High Court set aside conviction and sentence awarded by Trial Court to accused persons alleged to have caused injuries to prosecution witnesses and acquitted them of the charge---High Court maintained conviction and sentence awarded by Trial Court to two accused who caused injuries to deceased---Appeal was disposed of accordingly.

2003 YLR 166; 2011 SCMR 910; 1972 SCMR 144; 2015 SCMR 840; 2005 MLD 1451; 2011 SCMR 323; 1997 MLD 997; 2011 SCMR 45; 2014 PCr.LJ 299; 1997 SCMR 871; 1998 PCr.LJ 1730; 1997 SCMR 1296; 2008 SCMR 266; 1997 PCr.LJ 1757; 1994 SCMR 1; 1994 PCr.LJ 288 and 1998 PCr.LJ 1901 ref.

Muhammad Riaz and others v. The State 2007 SCMR 1413 rel.

Syed Madad Ali Shah for Appellants (in Criminal Appeal No.D-133 of 2014) and for Respondents Nos.1 to 8 (in Cr. Rev. Application No.D-80 of 2014).

Zaheeruddin Leghari for Applicant and Complainant (in Cr. Appeal No.D-113 of 2014).

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

Dates of hearing: 27th January 3rd, 9th, 10th and 18th February, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 1797 #

2016 Y L R 1797

[Sindh]

Before Salahuddin Panhwar, J

HINA GHORI and 2 others---Plaintiffs

Versus

NATIONAL LOGISTIC CELL through Field Command and 2 others---Defendants

Suit No.1395 of 2005, decided on 21st September, 2015.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Road accident---Suit for recovery of compensation amount---Negligence---Burden of proof---If defendant had taken a specific plea with regard to manner of accident while not denying the happening thereof then burden to prove would rest upon him if negligence had been put on the part of victims---Defendants had examined only one witness who was neither one of the defendants nor he produced any power of attorney---Defendants had not come into witness box to discharge the burden which they themselves had taken with regard to incident---Plea of slow speed would not be sufficient to dislodge the cases of road accident rather it would rest on the point of negligence---Mere speed alone could not result into accident but negligence of the holder of steering would result into accident---Speed or manner of driving alone could not be considered but fitness of the vehicle and mental/physical condition of driver were also important aspects for examining the cases of road accident---Nothing was on record to establish the mental fitness of driver at the relevant time---Nothing had been brought on record to establish fitness of the vehicle---No document had been produced to substantiate the skills, experience and carefulness of driver driving the vehicle which was material aspects in the present case---Adverse inference would be drawn against the defendants who had withheld the best evidence---Beneficiary of the vehicle would be responsible for any loss/damage if occurred during the way---Compensation could not equate any loss but pecuniary loss would cover the expected losses of the plaintiffs---Ordinary and middle class family would require earning of Rs. 20,000/- per month at least---Age of deceased (who died at the age of 35 years) was taken as 'seventy year' for compensation/damage and Rs. 20,000/- per month average income of the deceased was fixed---Compensation for the plaintiffs was fixed as Rs.20,160,000/---High Court observed that procedural changes should be made in the relevant law including compulsory insurance for third party particularly for heavy transport and public transport; mechanism to ensure immediate payment of such insurance amount to the victims or family of victims of road accidents and special procedure to deal with fatal accident should be introduced---Suit was dispose of in circumstances.

Islamic Republic of Pakistan through Secretary, Ministry of Defence, Islamabad and others v. Mst. Farzana Shabbir and others 2010 MLD 54; National Logistics Cell v. Abdul Qayyum Khan 2009 MLD 948; Punjab Road Transport Corporation v. Zahid Afzal and others 2006 SCMR 207; Mushtari v. Islamic Republic of Pakistan through Secretary, Ministry of Planning and Development, Islamabad and 2 others 2006 MLD 19; Haji Abdul Razaque v. Pakistan 2005 MLD 114; H.C.A. No.67/2000 (Karachi Water and Sewerage Board v. Mirza Qasim Baig), Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation 2004 MLD 361; Aijaz and others v. KTC 2004 MLD 491; Mst. Sabira Khatoon and others v. Muhammad Akram Siddiqui and others 2003 MLD 39; Shamim Akhtar v. Muhammad Arif Baloch 2001 YLR 821; Shaukat Ali v. KESC 2001 MLD 1845; Mst. Nusrat Irfan v. Federal Government of Pakistan 2001 CLC 928; Bibi Khaida v. Govt. of Sindh 2000 CLC 381; Ashiq Masih v. Abbot Laboratories Pakistan Ltd. 2001 CLC 913; Roshan Bai v. Pakistan Steel Mills Corporation 2000 CLC 111; Kazi Arifuddin v. Govt. of Sindh PLD 1991 Kar. 291; Hayat Services (Pakistan) Ltd. v. Kandan 1989 CLC 2153; Spin Gul v. Ikramul Haq 1987 MLD 2402; Abdul Haque v. Pakistan Railways Telecommunication Department 1987 MLD 898; Mrs. Nimmi Francis v. Muhammad Saeed Qureshi 1982 CLC 1703; Mst. Zebunnisa v. Sindh Road Transport Corporation 1982 CLC 1228; Mrs. Gul Bano v. Muhammad Raman 1982 CLC 1120 ref.

Anisur Rehman v. Govt. of Sindh 1997 CLC 615; Mst. Sakina v. National Logistic Cell 1995 MLD 633; Pakistan Steel Mills of Corporation v. Malik Abdul Habib 1993 SCMR 848 and Islamic Republic of Pakistan v. Abdul Wahid and others 2011 SCMR 1836 rel.

Farrukh Usman and Aamir Maqsood for Plaintiffs.

Muhammad Sarfaraz Sulehry for Defendant No.1.

Date of hearing: 30th April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1819 #

2016 Y L R 1819

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Muhammad Iqbal Mahar, JJ

NOUSHAD ALI---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Revision Application No.D-07 of 2015, decided on 23rd December, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 23---Qatl-i-amd, common intention, act of terrorism---Transfer of case to ordinary court of competent jurisdiction---Anti-Terrorism Court wherein case was filed, returned the FIR to S.H.O. with direction to send the same to the ordinary court of competent jurisdiction---Validity---Deceased and accused both were employees of same Bank; and both were present in the Bank on the date and time of incident---Case of the prosecution was that after exchange of harsh words over matter of exchange of money, at the spur of moment, accused allegedly fired at the deceased inside the room of the Bank---No firing in air or at prosecution witnesses, or at public in order to create terror, sense of insecurity or destablize the public at large, was alleged against accused---Design or purpose of the offence as contemplated by S.6 of Anti-Terrorism Act, 1997 was not attracted---Order passed by Judge Anti-Terrorism Court, did not require interference, as impugned order did not suffer any illegality---Revision petiton having no force, was dismissed, in circumstances.

Asif Ali Abdul Razzak Soomro for Applicant.

Habibullah Ghouri for Respondents Nos. 2 and 3.

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

Date of hearing: 17th December, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1829 #

2016 Y L R 1829

[Sindh (Larkana Bench)]

Before Aftab Ahmed Gorar and Amer Raza Naqvi, JJ

MUMTAZ ALI MACHHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-30 of 2009, decided on 18th February, 2015.

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

----Ss.9(b) & 48---Possession of narcotics--Appreciation of evidence---Benefit of doubt---Conflicting opinions of two courts in similar matter---Contradictory statements by prosecution---Prosecution witness at one occasion stated that recovered "charas" was in one piece and 250 grams were separated and sent to the chemical examiner and on another occasion he stated that "charas" was in three pieces---Another prosecution witness stated that 250 grams was separated from one piece of charas and was sent to chemical examiner, on the other hand report of chemical examiner stated that one sealed parcel containing three brown black pieces of charas was sent for examination---Accused filed evidence in a case under law of Arms registered by the same complainant against accused for the same incident---Held, that when in respect of the same incident there were two conflicting opinions of two courts in respect of same document, a doubt was created---Slightest doubt in the prosecution case was sufficient to acquit the accused, even if trial and judgment in other case was to be totally ignored even then, in the present case, the prosecution case was doubtful, therefore, appellant was entitled to benefit of doubt and was acquitted.

2013 PCr.LJ 1185 rel.

Akbar Ali H. Dahar for Appellant.

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

Date of hearing: 18th February, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1847 #

2016 Y L R 1847

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

MUHAMMAD ARIF and others---Appellants

Versus

Mst. MUMTAZ HAROON and 6 others---Respondents

Second Appeals Nos. 11 and 12 of 2014, decided on 9th December, 2014.

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

----S. 114 & O. XLVII, Rr. 1, 2 & 4---Limitation Act (IX of 1908), Arts. 161, 162 & 173---Review of judgment---Limitation---Trial Court decreed suit filed by plaintiffs and that by defendants was dismissed---Lower Appellate Court earlier allowed both the appeals filed by defendants, but on review dismissed the appeals---Plea raised by defendants was that review application filed by plaintiffs was barred by limitation---Validity---Review in question was in respect of judgment passed by Lower Appellate Court, which did not fit within the meaning of Arts. 161 & 162 of Limitation Act, 1908, therefore, would fall within the meaning of Art. 173 of Limitation Act, 1908, which provided period of ninety days for review---Review in question was filed within a period of 24 days; therefore, such review was not hit by Art. 173 of Limitation Act, 1908---Review was maintainable, in circumstances.

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

----Ss.114, 152 & O. XX, R.3---Judgment, alteration of--- Competence of Court---Principle---Courts can alter or add in pronounced judgment while exercising jurisdiction under S. 152, C.P.C. or on review---Competence of Court to alter or add in already pronounced judgment is protected by law itself.

----O. XLVII, R. 1(1)(c)---Review---Term 'sufficient reasons'---Reviewing Court---Jurisdiction--- Scope--- Term 'sufficient reason' does not authorize reviewing court to act as appellate Court.

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

----O. XX, R. 4(2)---Term 'reasons for such decision'---Scope---Term 'reasons for such decision' leaves nothing ambiguous that 'decision' should be based on reasons---If a decision does not find conformity with reasons for such decision, it cannot be a 'legal judgment' because it is the reasoning which result into conclusion.

(e) Words and phrases---

----Decree---Defined.

Black's Law Dictionary, Sixth Edition rel.

(f) Fraud---

----Proof---Uttering word 'fraud' itself never establishes fraud but it is the circumstances, facts or documentary evidence through which 'fraud' can only be established.

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

----S.100---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction--- Second appeal--- Gift---Essentials of--- Proof--- Concurrent findings of fact by two Courts below---Plaintiffs claimed to be owners on the basis of registered lease deed, whereas defendants relied upon a gift in their favour---Trial Court and Lower Appellate Court concurrently decided the matter in favour of plaintiffs---Validity---Plaintiffs were claiming their title through registered lease deed---Both the Courts below rightly found that donor of the gift was no more owner of suit property at the time of making of alleged oral or written gift---Defendants did not attempt to establish requisite ingredients of gift which were express offer by competent person; acceptance thereof and delivery of possession hence the donor was not competent to make any gift---Judgments and decrees passed by both the Courts below did not require any interference hence were maintained as such---Second appeal was dismissed in circumstances.

PLD 2014 Sindh 468; 2003 CLC 1773; 1996 CLC 1003; 1991 MLD 1070; PLD 1971 Lah. 59; 2012 CLC 1418; 1999 MLD 2096; 2006 CLC 1430; 2006 SCMR 1304 and 2007 CLC 27 ref.

Saeeduddin Siddique for Appellants.

Abdul Haseeb Khuwaja for Respondents Nos. 1 to 5.

Mukhtiar Ahmed Khanzada for Respondents Nos.6 to 8.

Date of hearing: 12th November, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 1864 #

2016 Y L R 1864

[Sindh]

Before Syed Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

GHAZNA MOHAMMAD RAFIQ and 7 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Education and 5 others---Respondents

C.P. No.D-1292 of 2015, decided on 12th June, 2015.

Educational Institution---

----Petitioners being students of M.B.B.S. programme---Failure of students in the examination---University refused to promote the petitioners in the higher class (professional)---Validity---No student should be promoted to the next class unless all the subjects of previous class were cleared---University had allowed the petitioners to make another attempt in the examination---Petitioners had applied to appear in such examination---Petitioners were not entitled to be promoted to the next class until and unless they had passed in the failed subjects---Students who were unable to pass in the subject of Third professional could not be allowed to be promoted to the fourth professional---Petitioners had already paid tuition fee---University was directed to consider the request of students sympathetically with regard to reduction or waiver of tuition fee payable in respect of failed subjects and if Rules so permitted, then accommodate them to the maximum extent---Constitutional petition was dismissed in circumstances.

Nadir Khan v. Principal Khyber Medical College Peshawar and others 1995 SCMR 421; Muhammad Umar Wahid and others v. University of Health Sciences Lahore PLD 2006 SC 300 and Zainab Idrees v. Principal Ayub Medical College, Abottabad and 3 others 2009 YLR 708 rel.

Ms. Humaira Junaid for Petitioners.

Afaq A. Saeed for Respondents.

Date of hearing: 4th June, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1878 #

2016 Y L R 1878

[Sindh (Hyderabad Bench)]

Before Aftab Ahmed Gorar and Muhammad Iqbal Mahar, JJ

ALI MUHAMMAD BROHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-458 and Conf. Case No.23 of 2010, decided on 26th November, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-D, 353 & 114----Qatl-i-amd; attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty; abettor present when offence committed---Appreciation of evidence---FIR lodged with delay of five hours without any plausible explanation---Complainant failed to explain source of his knowledge about full description of accused in FIR---Contradiction as to number of injuries mentioned in FIR and postmortem report---Postmortem conducted before lodging of FIR---Empties sent to Laboratory after fifteen days which destroyed the evidentiary value of the recovery---Accused, along with two others, was alleged to have attacked the police officials with firearms while they were present in court premises along with under-trial prisoners and killed a prisoner and injured a Head Constable---Trial Court, having convicted the accused, sentenced him to undergo imprisonment along with payment of Arsh to the injured and also sentenced him to death---Alleged incident had been reported after about five hours; whereas, the distance between the place of incident and police station was only two kilometers---Explanation for said delay, given by the complainant, was not plausible---No prosecution witness, except the complainant, had implicated the accused---Prosecution/police/eye-witnesses deposed that they could not identify the accused, as the accused persons were with muffled faces at time of alleged incident---Complainant had nominated the accused in the FIR with his parentage, caste and full address, but during trial, he had not explained as to how he had identified the accused and as to whether they were known to each other prior to the incident---In absence of such explanation, nomination of the accused with full description in the FIR lodged with delay of five hours made the version of complainant doubtful, especially when his version was not supported by the said eye-witnesses, who were his subordinates---Medical evidence had also not supported the complainant's version---Five injuries had been allegedly caused to the injured police constable and three to the deceased, but as per Medical Officer, four injuries existed on person of the deceased and on the body of the constable---Medical Officer produced a letter, which he had received from the police along with dead body of the deceased for postmortem, which revealed that the same had been sent to the Medical Officer three hours prior to lodgment of the FIR, which made the prosecution case further doubtful---Empties allegedly recovered from the place of incident had been sent to the Forensic Science Laboratory after fifteen days---Said delay in sending the empties had destroyed evidentiary value of said piece of evidence, and said recovery, therefore, could not be considered to be corroboration of the ocular testimony---Alleged incident had taken place in the court premises, but none from the court staff had been examined by the prosecution---Deceased, at time of the incident, was handcuffed along with another prisoner in one chain, but neither said prisoner had sustained any injury nor he had been examined by the prosecution---Prosecution had failed to prove the charge against the accused beyond shadow of doubt---High Court, setting aside impugned judgment, acquitted the accused---Appeal against conviction was accepted accordingly.

Ali Sher and others v. The State 2008 SCMR 707 rel.

Madad Ali Shah and Amjad Ali Sahto for Appellants.

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

Date of hearing: 24th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 1899 #

2016 Y L R 1899

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

Syed NAZAR ALI SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.771 of 2015, decided on 22nd December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 114, 337-F, 337H, 148 & 149---Attempt to commit qatl-i-amd, abettor present when offence committed, hurt by rash or negligent act, rioting, armed with deadly weapon, common object---Bail, grant of---Rule of consistency---Scope---Contention of accused was that he was falsely implicated in the FIR by complainant due to ulterior motive and co-accused had already been granted bail to whom an identical role had been assigned and in view of rule of consistency, accused also deserved for same concession---Validity---While examining the question of bail, court had to consider minimum aspect of sentence provided for alleged offence in the Schedule to Cr.P.C.---Parties were already disputed to each other which was reflected from averments in the FIR---None of the culprits repeated fire though complainant and injured were purely at their mercy, which prima facie indicated that they had no intention to commit murder of injured or complainant which controverted applicability of S. 324, P.P.C., and same required further probe---Medical report showed that injured person did not sustain any bone fracture, thus, factum of one injury sustained fell within the purview of S. 337-F, P.P.C., which was punishable for imprisonment for 3 years and same was not attracted by restraining clause of S. 497, Cr.P.C.---Co-accused had already been granted bail by High Court to whom an identical role was assigned and on the rule of consistency, accused was also entitled for same concession---Bail was granted, accordingly.

2009 MLD 348; 2010 MLD 1052; 2000 PCr.LJ 1917; 1994 PCr.LJ 1769 and 1998 SCMR 500 rel.

Imtiaz Ali Soomro for Applicant.

A.R. Kolachi APG for the State.

YLR 2016 KARACHI HIGH COURT SINDH 1922 #

2016 Y L R 1922

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

SHAHZAD MASIH and 2 others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No.12 of 2009 and Confirmation Reference No.1 of 2009, decided on 21st January, 2016.

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

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)(e)---Criminal Procedure Code (V of 1898), S.103---Qatl-i-amd, kidnapping or abduction for ransom, common intention, act of terrorism---Appreciation of evidence---Delay in lodging FIR, had fully been explained---Mere fact that abductee was of tender age, would not ipso facto make his evidence unreliable---Close and careful scrutiny, which was required for relying upon the evidence of child witness, was fully adopted by the Trial Court---Evidence of Doctors, was also quite reliable for the reasons that they had no enmity or motive to falsely implicate accused persons in the case---Recoveries, had been proved by the prosecution by confidence inspiring evidence---Huge evidence was on record to connect accused persons in the commission of the offence---Defence plea raised by accused persons, was an afterthought---Mere raising of defence plea, without substance, would not destroy strong prosecution evidence---Prosecution witnesses, including abductee child had given details about involvement of accused in the process of kidnapping of child for ransom---Prosecution evidence was truthful and confidence inspiring---Complicity of accused for commission of offence of kidnapping for ransom; and object was fully proved by prosecution evidence---No glaring defect, material irregularity or legal infirmity could be pointed out by defence in the finding of the Trial Court; as regards appreciation of evidence, or quantum of sentence awarded to accused---Insistence upon strict compliance with the terms of S.103, Cr.P.C., in the recoveries, would be unjustified---Defence, had failed to shake the credibility of prosecution witnesses---No mitigating or extenuating circum-stances, warranting lesser punishment, were present in the case---Accused persons having committed offence in the brutal manner, they did not deserve any leniency in the sentence---Appeal, was dismissed, in circumstances.

Ameer Hamza alias Hamza v. The State 2015 PCr.LJ 1402; Ayub v. Munsif and another 2015 PCr.LJ 369; Shoukat Ali v. The State 2009 PCr.LJ 26; The State v. Haider Zaidi and 2 others 2001 SCMR 1919; Qasim and 3 others v. The State 1999 SCMR 2841 and Zakir Khan and others v. The State 1995 SCMR 1793 rel.

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

----Art. 3---Evidence of child witness---Child, if gave statement which indicated that such witness, understood the questions; and gave answers intelligently and rationally, same could not be ignored due to the tender age of the witness.

Moulvi Iqbal Haider for Appellants.

Muhammad Iqbal Awan Assistant Prosecutor General Sindh for Respondent.

Dates of hearing: 11th and 12th January, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 1964 #

2016 Y L R 1964

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahemd Gorar, JJ

MUHAMMAD MITHAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.144 of 2007 and Confirmation Case No.2 of 2008, decided on 11th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Plea of grave and sudden provocation---Scope---Eye-witnesses had fully implicated accused, that he had fired upon both the deceased---Said eye-witnesses had given probable cause of their presence at the place of incident and they were consistent in their statements---FIR was lodged promptly---Ocular evidence was corroborated by the medical evidence, so also recovery of weapon from accused---Motive had been established by the prosecution---Prosecution witnesses had no enmity with accused to implicate him in the case---Empties were sent to the Ballistic Expert so also the rifle to connect accused in the commission of offence and the Trial Court had rightly appreciated the evidence according to settled principles of law---Counsel for accused had contended that sentence of death awarded to accused, could be reduced to life imprisonment as accused had acted in grave and sudden provocation---Validity---Plea of grave and sudden provocation had not been raised by accused---Even in the statement of accused, nothing had been mentioned regarding said plea---Said plea of grave and sudden provocation was not borne out from the record---Simpliciter plea of grave and sudden provocation, could not brush aside the huge prosecution evidence, which had been found by the Trial Court trustworthy---Accused, who had committed cold blooded premeditated murder of two persons, could not be extended concession of lesser sentence from death to imprisonment for life, on the ground that accused had been incarcerated for long period---No mitigating circumstance or factor was on record to convert the sentence of death to imprisonment for life---When the prosecution had proved its case in the matter of capital punishment, court was duty bound to impose deterrent punishment to make evil doers, an example and warning to likeminded people---Appeal was dismissed; Reference made by the Trial Court for confirmation of death sentence, was answered in affirmative, in circumstances.

Muhammad Sharif v. The State PLD 2009 SC 709; Ghulam Abbas v. The State 2012 SCMR 1195; Muhammad Nawaz and another v. The State and others PLD 2005 SC 40; Zafar Iqbal v. The State PLD 2015 SC 307 and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 ref.

Mohammad Farooq for Appellant.

Abrar Ali Khichi, Assistant Prosecutor General for Respondent.

Date of hearing: 22nd January, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 1986 #

2016 Y L R 1986

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

MOHAMMAD PALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-34 of 2005, decided on 12th February, 2015.

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

----Ss. 154, 190, 200 & 403---Lodging of FIR or filing of direct complaint---Procedure--'Lodgment of FIR' or 'Filing of a direct complaint', would not mean taking of cognizance by the court, but both were meant to bring the law into motion; only for purpose of determination; whether there was sufficient material to try any person for an offence or otherwise---Court would not determine the guilt of accused on the outcome of the preliminary enquiry or investigation but it was the 'trial' and only 'trial' which, per procedure would ensure proper and fair opportunity to accused facing the charge to disprove the allegation by cross-examination; and producing witnesses or documents in support of his plea or disproof of allegations/charge---Opinion of the Investigating Officer or that of the court in result of procedure as provided by Chapter XVI, Cr.P.C., would not necessarily require to be stamped by 'Competent Court' trying the case, but 'acquittal' or 'conviction' would require an entirely independent procedure, provided by Cr.P.C., normally known as 'trial', except where acquittal was in exercise of jurisdiction, created by S.265-K or S.249-A, Cr.P.C.---Determination of guilt or innocence of accused, was the exclusive domain of only the courts of law established for that purpose---For purpose of 'trial', it was immaterial, whether the cognizance of offence was taken upon a 'police report' or a 'complaint'---Status of 'material' collected during course of investigation; or during course of 'preliminary enquiry', being one and same, one could competently choose of said available remedies which were of equal status, value and substance for purpose of 'trial'---Motion of law by S.154, Cr.P.C., could not be dependent upon wish and will of one (complainant/informer), but needed to be left to complete its cycle---Even if, the complainant (informer), was no more interested in sticking with outcome of investigation, conducted on his own FIR yet the FIR would continue holding field imploring for its legal disposal---Filing of the direct complaint for the same offence in existence of pending investigation or trial of State case, was itself indicative that the complainant party was not satisfied with same, so they thought it proper to resort to alternative remedy---Law, no where permitted trial of one person twice, or two places for same offence, but it prohibited such practice---There could be no other proper and safe procedure, but to stay the proceedings of the State case and to proceed with the complaint case---Result in the complaint case would also be a result 'determination' of the State case.

Muhammad Ahmed v. State 2010 SCMR 660; PLD 1978 SC 121; 2003 PCr.LJ 56 and 2001 YLR 1448 ref.

(b) Words and phrases---

----'Amalgamation'---Meaning explained.

Black's Law Dictionary ref.

----Evidence---Scope---Use of same evidence in one in another case---Evidence in one case, even if under name of same offence, could not be legally used for determination of question of guilt or innocence in another case.

(d) Criminal trial---

----Witness---Truthful witness---To believe or disbelieve a witness, all depended upon intrinsic value of the statement made by him---Person, who was reported otherwise to be very honest, above board, and very respectable in society, if would give a statement; which was illogical, and unbelievable, no prudent man, despite his nobility, would accept such statement---One, who would remain changing his stance, or attempting to improve his statement, would loose his credibility, hence could not be termed to be a truthful witness.

Abid Ali and 2 others v. State 2011 SCMR 208 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Complainant party, not only remained changing their stance in respect of witnessing incident, but also in respect of 'motive' for the murder of the deceased---Complainant party first alleged that motive was "illicit relation/Karo' then substituted it with 'dispute over land' and lastly claimed the incident to be without any 'motive'---Witnesses, placed no reason for their improved claim of their joint presence in the house of the complainant, when they, per sketch of the place were residing separately---Witnesses of ocular account, also remained changing their stance from "finding the deceased already dead" to one that, they witnessed accused causing fire-arm shot at deceased---Such conduct of the witnesses, was sufficient to hold them not truthful witnesses---No conviction, in a capital charge could sustain on such type of testimonies of witnesses---Set of witnesses of ocular account, was closely related to each other---Testimonies, of said witnesses required to be thrashed with great care and caution, but that had not been done---All other co-accused were acquitted on the basis of the same set of evidence---Trial Court believed 'motive' as one of 'ghairat' though the witnesses of ocular account, did not stick to such motive---Trial Court had given no reasonable legal justification or explanation, which could be stamped as an act of 'sifting the grain from chaff'---In absence of such explanation, same set of evidence, which was disbelieved qua the involvement of co-accused, could not be relied upon to convict accused on a capital charge---Evidence, so brought on record, was neither natural, nor confidence inspiring; no conviction could sustain on such evidence---Accused was acquitted from the charge, and was directed to be released, in circumstances.

Abid Ali and 2 others v. State 2011 SCMR 208 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Status of medical evidence was also 'corroborative' in nature, the purpose whereof stood limited as to provide corroboration regarding manner of injury or cause of death and weapon used for such purpose, but it could not help in identifying the culprits.

Mrs. Fozia Zahoor Baloch and Zulqarnain Hyder for Appellants.

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

Date of hearing: 9th February, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 2008 #

2016 Y L R 2008

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD HABIB and 2 others---Plaintiffs

Versus

Messrs HUMAYUN LTD. and 3 others---Defendants

Suit No.871 of 1987, decided on 18th February, 2016.

Specific Relief Act (I of 1877)---

----Ss. 12, 19 & 22---Suit for specific performance of agreement to sell---Defendant became helpless to evict the tenant from a portion of suit property---Agreement to sell had become impossible to perform---Defendant should have deposited the part payment with the Nazir of the Court even if plaintiffs had refused to receive it which was never done---Present suit could not be decreed as plaintiffs refused to complete sale transaction---Present suit was not maintainable against the tenant who could have been evicted from the suit property by way of an amicable settlement or by way of an appropriate proceedings---Amount of Rs. 75,00,000/- was not refunded to the plaintiffs which had been utilized by the defendant in its business for three decades---Plaintiffs to be compensated in terms of S.19 of Specific Relief Act, 1877---Value of money/part payment of plaintiffs had declined whereas suit property had appreciated in its value---Defendant should refund part payment of Rs. 75,00,000/- to the plaintiffs along with Rs.5,00,000,00/- as compensation---Defendant was directed to refund part payment of Rs. 75,00,000/- to the plaintiffs in addition to Rs.5,00,000,00/- as compensation---Suit was decreed in circumstances.

2002 YLR 2242; AIR 1946 Patna 384; AIR 1936 Patna 35; PLD 1929 Lah. 840; PLD 1965 W.P Kar. 274; PLD 1965 SC 61; PLD 1978 Kar. 585; 1993 SCMR 804; AIR 1944 Madras 239; 1989 MLD 3429; 1984 CLC 3080; AIR 1936 Sindh 26; 2006 CLC 1110; 1992 SCMR 1629; 1984 CLC 1280; 2001 MLD 1181; 1999 YLR 1523 and 1991 MLD 1101 ref.

PLD 1980 Kar. 213; PLD 2005 SC 63 and 1986 SCMR 1735 distinguished.

PLD 1970 Lah. 845; PLD 1960 Dacca 308; PLD 1965 SC 37 and Liaquat Ali Khan v. Falak Sher PLD 2014 SC 506 rel.

Liaquat Merchant and Ghulam Murtaza for Plaintiffs.

Makhdoom Ali Khan, Sami-ur-Rehman Khan and Jam Zeshan Ali for Defendants Nos. 1 to 3.

Arshad Warsi for Defendant No.4.

Date of hearing: 20th January, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 2078 #

2016 Y L R 2078

[Sindh]

Before Syed Saeeduddin Nasir, J

GHULAM NABI QURESHI---Plaintiff

Versus

MUSHTAQ AHMAD QURESHI---Defendant

Suit No.736 of 2008, decided on 22nd November, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit for recovery of money on the basis of cheque---Application for leave to appear and defend the suit---Defendant did not appear and his application for leave to appear and defend the suit was dismissed---Validity---Claim of plaintiff had been stated on oath which had not been denied by the defendant---Plaintiff was entitled for the grant of decree in his favour---Suit was decreed in circumstances.

Ms. Muhammad Arif for Plaintiff.

None for Defendants.

Date of hearing: 19th November, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 2087 #

2016 Y L R 2087

[Sindh]

Before Nazar Akbar, J

FARIDA GUL AGHA and others---Applicants

Versus

SAEEDA BANO AHMED and others---Respondents

R. A. 77 of 2007, decided on 26th February, 2016.

(a) Islamic law---

----Gift---Revocation of---Death of donor and donee---Effect---Suit was filed for cancellation of gift deed after the death of donee/beneficiary---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Donor being mother of donee was related to the donee within the prohibited degree---Donor could not revoke the gift after the death of donee even through court---Appellate Court had failed to appreciate that first burden of proof was on the plaintiff and unless it was discharged by evidence consistent with the pleadings the defendant could not be required to prove anything from his pleadings---Evidence of the parties had not been discussed by the Appellate Court and suit had been decreed---Findings recorded by the Appellate Court were contrary to evidence---Donor had already transferred suit property by way of gift by handing over possession and original title document to the donee---Requirements of Islamic Law had been complied with in the present case---No further act/action was required on the part of donor and donee---Actual physical dispossession of the donor from the suit property was not required in the present case---Cause of action had died/buried with the death of donor as gift might be revoked by donor but not by his legal heirs after his/her death---Suit filed by the donor had abated by her death---Proceedings after the death of donee were coram non judice---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

Mulla's Muhammadan Law para. 167 ref.

(b) Islamic law---

----Revocation of gift after death of donee---Scope---Donor could not revoke the gift after the death of donee even through court.

----S. 96---Appellate Court---Duty of---Appellate court was not supposed to write a fresh judgment of its own without commenting and explaining the circumstances for forming an opinion contrary to the opinion/reasoning of the Trial Court---Appellate court unless found the judgment of Trial Court suffering from improper treatment of evidence such as wrongly placing the burden of proof on the parties in deciding the issues between them or finding it in conflict with some law on the subject could not reverse finding of Trial Court---Appellate court had to meet the reasoning of the Trial Court in the first instance and thereafter reappraise the evidence on record while reversing the findings of Trial Court.

Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 rel.

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

----Art. 117---Burden of proof---Whoever approaches the Court of law to give judgment as to his legal right or liability dependent on the existence of facts which he asserts in the plaint, must prove that those facts exist.

Aziz A. Munshi and Abdullah Munshi for Applicants.

Usman Shaikh for Respondent No.3.

Mian Khan Malik for Respondent No.6.

Tariq Ahmed for Respondent No.2.

Dates of hearing: 12th, 15th, 21st October, 10th, 24th November and 10th December, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2109 #

2016 Y L R 2109

[Sindh]

Before Muhammad Faisal Kamal Alam, J

RICE EXPORT CORPORATION OF PAKISTAN---Plaintiff

Versus

STAR TRADING COMPANY---Defendant

Suit No.796 of 1987, decided on 18th March, 2016.

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

----Arts. 72 & 130--- Suit for recovery of money--- Documentary evidence--- Fact not cross-examined--- Plaintiff filed suit for recovery of money on the allegation that defendant failed to render Reserve Stock Accounts in respect of rice stock and Bardana (bags) in terms of agreement between parties--- Validity--- Infirmity in deposition of witness of plaintiff was not of that degree which could result in dismissal of plaintiff's claim--- Such part of testimony of plaintiff's witness was diluted in presence of unchallenged documentary evidence--- Position would have been different and to the detriment of plaintiff, if undisputed documentary evidence were not there particularly the contract and final statement of inventory, besides admission of defendant's witness in his cross-examination--- Contradiction in written statement and affidavit in evidence of defendant's witness went against defendant--- Plaintiff made claim of Rs.3,61,30,050,08/- as cost of rice stocks and gunny bags found short and/or unaccounted for, which had been converted into monetary terms by pegging the cost of unaccounted for stock to export price of rice prevalent at that time--- Such assertion as contained in plaint as well as in affidavit in evidence was not disputed by defendant nor plaintiff's witness was specifically cross-examined on such material part of his evidence and the same stood proved against defendant--- Suit was decree in circumstances.

Messrs Mastersons v. Messrs Ebrahim Enterprises and another 1988 CLC 1381; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Mst. Ghazala Yasmeen and others v. Sarfraz Khan Durrani 2013 CLC 1406; PLD 1996 Kar. 210; Hyder Ali Bhimji v. VIth Additional District Judge, Karachi (South) and another 2012 SCMR 254 and 1991 SCMR 2300 ref.

Ghulam Muhammad Dars for Plaintiff.

Nemo for Defendant.

Date of hearing: 15th March, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 2124 #

2016 Y L R 2124

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD ANWAR---Plaintiff

Versus

HABIB BANK LTD. and 2 others---Defendants

Suit No.1375 of 2008, decided on 19th March, 2016.

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

----O. XXI, R. 92 & O. VII, R. 11 & S. 11---Specific Relief Act (I of 1877), Ss. 42 & 56---Sale of mortgaged property by Banking Court---Suit for declaration by the tenant on the basis of amount of pagri---Maintainability---Plaint, rejection of---Res judicata, principle of---Applicability---Plaintiff filed application for purchase of suit tenement but he failed---Contention of plaintiff was that proceedings before the Banking Court were collusive, fraudulent and illegal---Validity---Plaintiff having no legal character or right in the suit tenement---Suit was barred under S.42 of Specific Relief Act, 1877---Plaint did not disclose any cause of action for filing the present suit---Sale of mortgaged property by the Banking Court and or the title of purchaser of such property could not be called in question in a civil suit---Plaintiff was in fact seeking setting aside and cancellation of sale of suit tenement in favour of defendant which had attained finality---Present suit was barred under O. XXI, R. 92, C.P.C.---Principle of res judicata was applicable in the present suit as issue of sale had already been decided by the competent court in previous proceedings---Plaint was rejected with costs of Rs. 25,000/- in circumstances.

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

----O. XXI, R. 92---Specific Relief Act (I of 1877), S. 42---Sale of mortgaged property by Banking Court---Suit for declaration---Maintainability---Sale of mortgaged property by the Banking Court and or the title of purchaser of such property could not be called in question in a civil suit.

Naseer Ahmed for Plaintiff.

Suleman Huda for Defendant No.1.

Muhammad Yasin Azad for Defendant No.3.

Date of hearing: 8th October, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2132 #

2016 Y L R 2132

[Sindh (Hyderabad Bench)]

Before Aftab Ahmed Gorar and Anwar Hussain, JJ

Haji GHULAM ALI---Petitioner

Versus

ELECTION COMMISSIONER OF PAKISTAN through Secretary, Islamabad and others---Respondents

Constitutional Petition No.D-2592 of 2015, decided on 17th November, 2015.

Sindh Local Government Act (XLII of 2013)---

----S. 36 (1) (e)---Sindh Zakat and Ushr Act (X of 2011), S. 23---Election for the seat of Member District Council---Candidate being Chairman Zakat and Ushr Committee---Nomination papers, rejection of---Scope---Nomination papers of candidate were rejected on the ground that he was Chairman of Zakat and Ushr Committee---Validity---Candidate being Chairman Zakat and Ushr Committee resigned and statutory period of six months had not elapsed---Candidate was engaged in the administration of Sindh Zakat and Ushr Act, 2011 and was a "public servant"---Constitutional petition was dismissed in circumstances.

Tariq Hussain's case 2013 CLC 1620 distinguished.

Muhammad Khan's case PLD 2014 Bal. 128 and Zulekhan Bibi's case 2015 YLR 1584 rel.

Mian Taj Muhammad Keerio for Petitioner.

Khowaja Azizullah and Company for Respondent No.11.

Allah Bachayo Soomro, Addl. A.-G. for Official Respondents.

Date of hearing: 12th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2138 #

2016 Y L R 2138

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

GHULAM RAZA---Applicant

Versus

SAMO KHAN and 25 others---Respondents

Criminal Revision Application No.S-40 of 2012, decided on 15th February, 2015.

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

----Ss. 3 & 4----Prevention of illegal possession of property etc.---Complaint, dismissal of---Estoppel against contradictory stances taken in pleadings---Civil litigation, pendency of---Principles---Complainant having already filed suit against the accused persons in respect of suit land, had filed present complaint with contradictory stances; in said suit the complainant claimed his peaceful possession over the land and prayed for issuance of permanent injunction against the accused, while in present complaint, the complainant alleged that the accused had forcibly dispossessed him from the land, while conversely, in his joint written statement filed in the suit the accused, the complainant had admitted the possession of the accused in the capacity of their being cultivators---Said conflicting stances taken by the complainant were not only self-contradictory, but the same had invalidated his allegations of dispossession from the land, which prima facie indicated the mala fide and ulterior motives on part of the complainant and that he had not come to the Court with clean hands---Said conduct of the complainant was hit by the principle of estoppel---When question of title to property in dispute was already sub-judice before the competent civil court prior to filing of direct complaint, then civil proceedings should have been adjudicated and decided first, and if the complaint succeeded to get decision in his favour, then he might approach the court by preferring the direct complaint---Impugned order of dismissal of the complaint was just and proper---Revision petition was dismissed in circumstances.

Abdul Haleem v. The State and others 1982 SCMR 988; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Haji Ghulam Rasool and others v. Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376 rel.

(b) Estoppel----

----Applicability----Evidence, retraction from---No person should be permitted to retract and repudiate from the stance taken earlier in his pleadings or evidence adduced by him, and he shall face the consequences and repercussions of declaration already made by him.

Haji Ghulam Rasool and others v. Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376 rel.

----Meaning.

Black's Law Dictionary ref.

Ghulam Shabbir Dayo for Applicant.

Sarfaraz A. Akhund for Respondents Nos.3, 4, 13, 14 and 24.

Zulfiqar Ali Naich for Respondents Nos.1, 5, 6, 9 to 12, 15, 17 to 20 and 23.

Abdul Rehman Kolachi, A.P.G. for Respondents.

Date of hearing: 1st September, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2147 #

2016 Y L R 2147

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

ABDUL RAHEEM alias WALHARI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-165 of 2015, decided on 11th January, 2016.

Criminal Procedure Code (V of 1898)---

----S.426---Sindh Arms Act (V of 2013), S. 23(1)(a)---Possessing unlicensed arms---Application for suspension of sentence--- Short sentence--- Scope---Sentence awarded to accused, was only for two years, which fell within the ambit of "short sentence"---Accused had remained in custody from the date of his arrest---Due to heavy backlog of cases pending with the court, final hearing of appeal and its decision, was not in sight in near future---Application for suspension of sentence, was allowed, and sentence awarded to accused was suspended during pendency of main appeal; and accused was directed to be released on bail, in circumstances.

Wali Muhammad Jamari for Appellant.

Shahid Ahmed Shaikh, Assistant Prosecutor General Sindh for Respondent.

YLR 2016 KARACHI HIGH COURT SINDH 2158 #

2016 Y L R 2158

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro, J

ABDUL REHMAN and others---Applicants

Versus

Mst. HALEEMA KHATOON through L.Rs.---Respondents

Civil Revision Application No.190 of 2015, decided on 29th January, 2016.

Civil Procedure Code (V of 1908)---

----S. 12 (2)---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Remand of case---Death of party---Non-impleading of legal heirs---Fraud and misrepresentation---Decree, setting aside of---Scope---Case was remanded to the Appellate Court for referring thumb impressions of defendant-vendor to the hand writing expert for his opinion---Defendant-vendor expired during the proceedings and Appellate Court decreed the suit without impleading her legal heirs---Contention of applicants was that impugned judgment and decree were obtained by fraud and misrepresentation---Application for setting aside decree was dismissed by the Appellate Court---Validity---Nothing was on record as to whether any attempt was made to implead legal heirs of defendant-vendor in the proceedings before passing impugned judgment---Appellate Court did not advert to the claim of applicants that no attempt was made to serve them in the proceedings after death of vendor-defendant---Evidence of the parties was to be recorded to decide the disputed facts among them and to arrive at a just conclusion---Remand of the case for decision afresh did not bar the court to decide such application on its own merits---Applicants being legal heirs of the vendor-defendant had right of representation in the proceedings initiated against her in her life time---Appellate Court had not carefully and attentively dealt with the matter and had not considered available record properly---Impugned order had not been passed on appreciation of any material available on record which was set aside---Matter was remanded to the Appellate Court for decision afresh by considering the entire material available on record---Revision was allowed in circumstances.

Harish Chandar for Applicants.

Rao Faisal for Respondents

Date of hearing: 14th January, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 2176 #

2016 Y L R 2176

[Sindh]

Before Nazar Akbar, J

ABDUL KHALIQ through L.Rs. and others---Petitioners

Versus

Mrs. RAZIA BEGUM through L.Rs. and others---Respondents

Constitutional Petitions Nos.S-49, S-50 and S-76 of 1994, decided on 15th February, 2016.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)--

----S. 20---Transfer of evacuee house to the occupants (petitioners and respondents)--Revisional courts/authorities were not supposed to record fresh evidence or direct the parties to prove anything by means of an affidavit or document at revisional stage---Fact which was not available on record of proceedings before lower forums could not be taken on record at the revisional stage to interfere with the impugned order.

Barkat Ali v. Settlement and Rehabilitation Commissioner PLD 1991 SC 610; Mst. Shahjahan Begum v. Mst. Shabbir Fatima and another PLD 1991 SC 614 and Mst. Shahzada Begum v. Ahmed Kamal and 18 others PLD 1991 SC 617 ref.

Nafees Ahmed Siddiqui for Respondents (in Constitutional Petitions Nos.S-49 and S-50 of 1994).

M.G. Dastagir for Petitioners (in Constitutional Petition No.S-76 of 1994).

Nafees Ahmed Siddiqui for Respondents (in Constitutional Petition No.S-76 of 1994).

Date of hearing: 24th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2197 #

2016 Y L R 2197

[Sindh]

Before Muhammad Junaid Ghaffar, J

Haji ABDUL RAZZAK through L.Rs. and others---Plaintiffs

Versus

MUSLIM COMMERCIAL BANK LTD. and others---Defendants

Suit No.735 of 2011, decided on 29th March, 2016.

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

----O. XIII, Rr. 1 & 2----Production of documents---Principles---Order XIII, R. 1, C.P.C. caters a situation, wherein, a party to suit has filed documents before the court and subsequently wants to bring and add some other documents, which initially have not been provided in the list of documents filed in terms of the said rule---Order XIII, R. 2, C.P.C. enables the court to even consider the documents, which though were not initially in the list of documents filed before the court but are being brought subsequently on record through an application---Court is empowered, if any good cause was shown to its satisfaction, to allow and bring such documents on record.

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

----O. XIII, Rr. 1 & 2----Production of documents/ witnesses, list for---Condonation of delay---Principles---In the present case, condonation was being sought for the delay only in filing of list of witnesses and list of documents, and the stage had not yet arrived to see that any additional documents were being brought on record---Order XIII, Rr. 1 & 2, C.P.C., read in juxtaposition, appeared to be directory and not mandatory so as to non-suit a party by refusing production of documents and adducing its evidence---Only requirement was that the party seeking permission under said rules had to show 'good cause' (for delay) to the satisfaction of the court---Defendant, on production of the documents, would be within his own right to question those documents as well as cross examine the witnesses thus produced on behalf of the plaintiff; hence, no prejudice would be caused---Plaintiff was admittedly seriously ill and had expired thereafter; therefore, the plaintiff was not expected to be vigilant enough to comply with the directions of the court to file list of witnesses and documents within the specified period---Sufficient cause/'good cause' was available to condone the delay in filing of the lists---Delay of only six /eight days in filing of the lists ought to have been condoned---Delay in filing of the lists was condoned---Applications were allowed in circumstances.

Kohinoor Tobaco Co. v. S.M. Idress Allawala 2013 CLC 1789 rel.

----O. XIII, Rr. 1 & 2----Production of document---Powers of court---Order XIII, R. 1 & 2, C.P.C. empower the court to allow consideration of documents even during recording of evidence or even after the evidence had been completed.

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

----O. XIII, R. 2----Production of documents---Delay, effect of---Interpretation of O.XIII, R.2, C.P.C.---Provision of O. XIII, R. 2, C.P.C. are to be construed liberally, and delay in producing documents by itself is not a good ground for refusal.

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

----O. XIII----Production of documents---Discretion of court---Scope---Where rule of exclusion apply and the documents could not be filed without leave of the Court leave was not to be ordinarily refused, it would be erroneous to assume that there was no discretion left with the court---Court has the discretion which must be allowed to be exercised in each case in the light of the peculiar facts of the case before the court.

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

----O. XIII, Rr. 1 & 2----Production of documents---Principles---Order XIII, R. 2, C.P.C. is an exception to O. XIII, R. 1, C.P.C., and the same is to be liberally construed in that the permission to file documents after hearing in a case has commenced, should be granted as an exception, rather than as a rule, but not so if hearing has not commenced.

Kohinoor Tobaco Co. v. S.M. Idress Allawala 2013 CLC 1789 rel.

Anwar Mansoor Khan and Bashir Ahmed Khan for Plaintiff.

Mansoor-ul-Arfin for Defendant No.1.

Dates of hearing: 15th February and 9th March, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 2246 #

2016 Y L R 2246

[Sindh]

Before Syed Saeed Uddin Nasir, J

The GOVERNMENT OF IRAQ through Embassy of the Republic of Iraq---Plaintiff

Versus

DEEDAR HUSSAIN and others---Defendants

Suit No. 109 of 2000, decided on 16th February, 2015.

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

----Ss. 42 & 8---Qanun-e-Shahadat (10 of 1984), Arts. 129 (e) & 5 (5)---Suit for declaration, recovery of possession of immovable property and mesne profits---Registered document---Presumption of truth---Registered document had sanctity attached to it and strong evidence was required to cast aspersion to its genuineness---Nothing was on record to prove that sale deed in favour of plaintiff was either forged, fictitious or a manipulated document---Mere assertion that sale deed was forged and fictitious without proving such allegation by leading strong evidence would not per se lead to a conclusion that its veracity was doubtful---Presumption as to genuineness, correctness and authenticity of a registered document could not be dispelled by oral assertion--- Plaintiff had produced registered document in proof of its title with regard to suit property---Oral assertions of defendant was not sufficient to rebut such document---Executant of power of attorney had died when same was allegedly executed and registered by the Sub-Registrar---Sale deed in favour of defendants was a forged, fabricated and bogus document which was void ab initio, invalid and of no legal effect---Said sale deed was liable to be cancelled and delivered up in the court---Sale deed in favour of defendants being forged and sham did not convey any title to the suit property---Plaintiff was entitled to a declaration that the title of suit property would vest in it---Possession of suit property should be delivered immediately to the plaintiff after getting vacated from the defendants---Defendants were in illegal possession of suit property on the basis of forged, fabricated and manipulated documents---Defendants had caused huge financial losses to the plaintiff on account of illegal possession of suit property---Plaintiff was entitled to be granted mesne profits to be recovered from the defendants jointly and severally---Suit of plaintiff was decreed in circumstances with costs and registered power of attorney and registered sale deed in favour of defendants were cancelled and ordered to be delivered up in the court within specified period.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462; Muhammad Iqbal v. Fakhar-ul-Islam 2004 MLD 888; Auqaf Department v. Javed Shuja and others 1993 CLC 1173; Sabir Hussain v. Eisa 2004 MLD 963; Muhammad Hussain v. Waheed Ahmed 2000 MLD 281; Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Muhammad Tufail v. Abdul Aziz PLD 1998 Lah. 137; Amirullah Khan v. Muhammad Akram 2004 YLR 709; Tahir Hussain Malik v. Mst. Najam Rafi 1995 SCMR 1407; Muhammad Ali and others v. Sher Muhammad and others 1989 MLD 135; Muhammad Sher and 2 others v. Muhammad Azim and others PLD 1977 Lah. 729 and Gopal Das and others v. Sri Thakarji and others AIR 1943 PC 83 rel.

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

----S. 39---Cancellation of instrument---Conditions---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 defendant against the plaintiff when evidence to impeach it might be lost or that it might through a cloud or suspicion over the title or interest of plaintiff---Conditions for exercise of jurisdiction under S. 39 of Specific Relief Act, 1877 were that the instrument was void or voidable and plaintiff had reasonable apprehension that such instrument if left outstanding might cause him serious injury---Court might grant this relief of preventive justice if it was proper to grant in the circumstances of the case---Remedy under S. 39 of Specific Relief Act, 1877 was to remove a cloud upon the title by removing a potential danger but it did not envisage an adjudication between competing titles---When there was a cloud on the title of plaintiff and an apprehension that if such instrument was left outstanding then it might be a source of danger then remedy of cancellation of instrument could be sought---When 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.

Sattar Muhammad Awan for Plaintiff.

Ashiq Ali Anwar Rana for Defendants Nos.2 and 3.

Nazar Hussain Dhoon for Defendant No.6.

Date of hearing: 18th December, 2014.

YLR 2016 KARACHI HIGH COURT SINDH 2286 #

2016 Y L R 2286

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

Messrs RABIA RANA AND COMPANY through Managing Partner---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others---Respondents

C.P. No. D-632 of 1990, decided on 22nd April, 2016.

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

----Ss. 28-A & 34--- Additional compensation and interest--- Petitioners were landowners and their land was acquired by Port Bin Qasim---Grievance of petitioners was that compensation was not properly calculated and they were also entitled to additional compensation along with interest---Validity---Petitioners were entitled for grant of compensation from the date from which their land was taken in possession till the date they were finally paid---High Court directed authorities to recalculate amount of compensation granted to petitioners and to pay them compensation as provided under S. 34 of Land Acquisition Act, 1894 from date of possession till the date they were finally paid---Petitioner was not entitled to additional compensation under S. 28-A of Land Acquisition Act, 1894---Constitutional petition was dismissed in circumstances.

Muhammad Shah v. Syed Khalid Hussain Shah 2015 SCMR 869 and Province of Sindh v. Ramzan and others PLD 2004 SC 512 ref.

(b) General Clauses Act (X of 1897)---

----S. 6---Phrase 'unless a different intention appears'---Connotation---If a different intention appears then in such case rights, privileges and obligations cannot be claimed.

Shahenshah Hussain for Petitioners.

Ali Zardari, Assistant Advocate-General Sindh for Respondents Nos.1, 4 and 5.

G. N. Qureshi for Respondents Nos. 2 and 3.

Date of hearing: 13th April, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 2305 #

2016 Y L R 2305

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

ISMAIL---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No. S-43 of 2015, decided on 26th October, 2015.

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

----Ss. 498 & 497---Penal Code (XLV of 1860), Ss. 324, 452, 337-D, 114, 504, 147, 148 & 149---Attempt to commit qatl-i-amd, house trespass after preparation for hurt, assault or wrongful restraint, Jaifah, abetment, intentional assault with intent to provoke breach of peace, rioting, armed with deadly weapon and common intention---Pre-arrest bail, cancellation of---Accused, as described in the FIR, had trespassed into the house of the complainant after making preparation for hurt and was armed with repeater---Accused persons had fired upon the complainant, causing six firearm injuries on his body---Report of the Medical Board had declared one of the injuries as Itlaf-i-Salahayat udw---Delay in lodging of the FIR had been sufficiently explained---Ingredients for grant of pre-arrest bail were missing in the present case---Co-accused was absconding---Prima facie, ample evidence was available on the record to connect the accused with the commission of the offences---No mala fide, either on part of the complainant or the Investigation Officer, had been pointed out---Offences in question fell within the ambit of prohibitory clause of S. 497, Cr.P.C.---Pre-arrest bail already granted to the accused was recalled accordingly.

Riaz Ahmed v. The State 2009 SCMR 725 rel.

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

----S. 497--- Bail--- Deeper appreciation of evidence is not warranted at bail stage.

Gulzar Ali Soomro for Applicant along with Applicant.

Ishrat Ali Lohar for the Complainant.

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

YLR 2016 KARACHI HIGH COURT SINDH 2322 #

2016 Y L R 2322

[Sindh]

Before Syed Saeeduddin Nasir, J

SHIN SATELLITE PUBLIC COMPANY LIMITED through Attorney---Plaintiff

Versus

Messrs KASB TECHNOLOGY SERVICES LIMITED---Defendant

Suit No. 185 of 2004, decided on 4th January, 2016.

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

----S. 34--- Stay of proceedings--- Pre-conditions---Person applying under S. 34 of Arbitration Act, 1940 has to satisfy the Court firstly; that there was an agreement to refer, secondly; that suit related to any matter agreed to be referred to arbitration and thirdly; that there was a 'dispute' between parties which was covered by arbitration clause in agreement---Unless such is shown, suit cannot be stayed.

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

----S. 34---Civil Procedure Code (V of 1908), O. VII, R. 2---Suit for recovery of money---Stay of proceedings---Taking any other step in proceedings---Defendant sought stay of proceedings without specifying detail of dispute---Written statement was not filed by defendant but was given time to file same on several dates on specific requests in such regard time was granted to file written statement---Validity---Such adjournments amounted to taking steps in proceedings and filing a separate counter suit also amounted to acquiescence in proceedings---Mere existence of an arbitration clause in agreement between parties did not bar a suit or alternate legal proceedings in Court which otherwise did not qualify to be referred to arbitration---In application for stay of suit, defendant was required to state matter briefly; the matter that plaintiff alleged and he denied or he alleged and plaintiff denied but no such averment was made in application---Defendant simply said that as there were arbitration clauses in agreement, therefore suit should be stayed---Non-payment of dues by defendant to plaintiff was an independent cause of action and same could not be termed as a dispute which should be referred to arbitration---High Court declined to stay proceedings---Application was dismissed in circum-stances.

Pakistan International Airlines Corporation v. Messrs Pak Saf Dry Cleaner PLD 1981 SC 553; Pakistan Mobile Communication Ltd. v. Naimatullah Achakzai 2012 CLC 12; Hyderabad Municipal Corporation v. Messrs Columbia Enterprises 1990 CLC 47; Nuruddin Abdul Hussein v. Abu Ahmed Abdul Jalli AIR (37) 1950 Bombay 127 (C.N. 35); Bhowani Das Ramgobind v. Pannachand Lacham Pat 1925 Calcutta 801 and Austin and Inhiteley Limited v. S. Bowley and Son King's Bench Division Vol. 108-021 distinguished.

Messrs Eakhardte Co. Marine GmbH v. Mohammad Hanif PLD 1993 SC 42; Novelty Cinema, Lyallpur v. Firdous Films and others PLD 1958 (W.P.) Lah. 208; Syed Arshad Ali v. Sarwat Ali Abbasi 1988 CLC 1350; BOC Pakistan Limited v. National Gases (Pvt.) Limited 2013 CLD 898; Rachappa Guruadappa Bijapur v. Gurusiddated Appa Nuraniappa 1990 MLD 1383; State of Uttar Pradesh and another v. Messrs Janki Saran Kailash Chandra and another (1973) 2 SC 96; Mohammad Farooq v. Nazir Ahmed and others PLD 2006 SC 196 and Messrs Shell Pakistan Ltd. v. Bhoja Air (Pvt.) Ltd. 2007 MLD 1424 rel.

Abdul Razzaq for Plaintiff.

Ms. Zahra Saher Vayani for Defendant.

Date of hearing: 5th November, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2347 #

2016 Y L R 2347

[Sindh]

Before Shahnawaz Tariq, J

JAVAID IQBAL---Petitioner

Versus

Khawaja ABDUL JALIL and 2 others---Respondents

Constitutional Petition No.S-319 of 2011, decided on 30th April, 2015.

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

----Ss. 15 & 18--- Constitution of Pakistan, Art. 199--- Constitutional petition---Eviction petition---Change of ownership---Notice to tenant---Personal bona fide need of landlord--- Proof--- Concurrent findings--- Jurisdiction of High Court---Proof of ownership of landlord---Requirement---Provision as to property---Fundamental right of landlord as to his property--- Enforcement of--- Landlord having purchased rented premises issued notice to tenant under S. 18 of Sindh Rented Premises Ordinance, 1979 which was replied by tenant---Rent Controller allowed the application---Contention raised by landlord was that he was already running his business at the shop adjacent to rented premises and wanted the rented premises for expansion of said business---Tenant took plea that landlord/new owner of the property had not provided him with ownership documents---Validity---Basic requirement of S. 18 of Sindh Rented Premises Ordinance, 1979 was transmission of intimation by new owner through notice to tenant regarding change of ownership---Tenant had categorically admitted receipt of such notice which the tenant had replied and demanded ownership documents---Tenant could not compel new landlord to supply ownership documents after purchasing rented premises as per scheme of section 18 of Sindh Rented Premises Ordinance, 1979---Sole testimony of landlord was sufficient to establish his personal bon fide need for rented premises, when his statement on oath was quite consistent with averments made in ejectment application and nothing could be brought on record to contradict the same---Rent Controller had to evaluate genuineness and honest aspect of statement of landlord and if the same was not tainted with malice, he should not have hesitated to allow the application---Contention raised by tenant that landlord intended to sell rented premises would not defeat personal bona fide need while testimony and veracity of landlord was not shaken during cross-examination---Owner and landlord of rented premises could not be deprived of his right and interest to use his property in any manner suited to his requirements and any unreasonable restrictions on right to choose any of his property for his need in good faith would offend his constitutional rights guaranteed under Art. 23 of Constitution---High Court had no jurisdiction under Art. 199 of the Constitution to substitute its own findings for findings of tribunals below---Landlord had succeeded to prove his personal bona fide requirement for rented premises in good faith---Tenant failed to point out any illegality or infirmity or mis-appreciation of evidence of parties while passing of concurrent findings---While scrutinizing concurrent findings passed by both courts below, High Court would not treat Constitutional petition as second appeal---Concurrent findings of courts below did not call for any interference---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings by Tribunal---Interference by High Court---While scrutinizing concurrent findings passed by courts below, High Court will not treat Constitutional petition as a second appeal---High Court has no jurisdiction to substitute its own findings for findings of tribunals below.

----Art. 23----Provisions as to property---Landlord and tenant---Fundamental right of landlord---Principles---Owner and landlord of rented premises cannot be deprived of his right and interest to use his property in any manner suited to his requirements and any unreasonable restrictions on right to choose any of his property for his need in good faith which will offend his constitutional rights guaranteed under Art. 23 of Constitution.

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

----S. 15----Eviction petition---Bona fide personal need of landlord---Proof---Sole testimony of landlord was sufficient to establish his personal bona fide need for rented premises, when his statement on oath was quite consistent with averments made in ejectment application and nothing could be brought on record to contradict the same---Rent Controller had to evaluate genuineness and honest aspect of statement of landlord and if the same was not tainted with malice, he should not have hesitated to allow the application.

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

----S. 18---Scope---Change of ownership---Notice to tenant---Requirement---Basic requirement of S. 18 of Sindh Rented Premises Ordinance, 1979 was transmission of intimation by new owner through notice to tenant regarding change of ownership---Tenant had categorically admitted receipt of such notice which tenant had replied through advocate and demanded ownership documents---Tenant could not compel landlord to supply ownership documents after purchasing premises which did not fall within scheme of S. 18 of Sindh Rented Premises Ordinance, 1979.

Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; Atiuddin v. Saleem Karim 1993 MLD 410; Jahangir Rustam Kakalia through Legal heirs v. Messrs Hashwani Sales and Services (Pvt.) Ltd. 2002 SCMR 241; Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Mazhar Hussain Shah through L.Rs. v. Member Board of Revenue Punjab, Lahore and others 2006 SCMR 959; Malak Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488 and Hafiz Shafatullah v. Mst. Shamim Jehan and another PLD 2004 Kar. 502 rel.

Muhammad Zahid Khan for Petitioner.

Abdul Wajid Wyne for Respondent No.1.

Date of hearing: 16th March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2359 #

2016 Y L R 2359

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

JAN MOHAMMAD alias JANOO---Appellant

Versus

The STATE---Respondent

Cr. Jail Appeal No. 154 along with Confirmation Case No. 5 of 2011, decided on 29th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in--- Mitigating circumstances---Accused, along with two others, was alleged to have murdered the deceased for his failure to give share in the shop owned by the deceased---Trial Court sentenced the accused to death as Qisas convicting him under S. 302(a), P.P.C.---Eye-witnesses remained firm on all the major particulars of the case, such as date, time and place of occurrence---Prosecution witnesses had no enmity with the accused to falsely implicate him---Mere relationship of the prosecution witnesses with the deceased was no criteria to discard their testimony and they could not be termed as the interested witnesses---Failure to conduct postmortem exami-nation of the deceased would not demolish the prosecution case---Unnatural death of the deceased and nature of the injuries were not disputed by the defence counsel---Motive set up by the prosecution was not strong enough, and the same had not been proved---Events happened immediately before the incident were not certain---Reasons for the relatives of the deceased to forcibly take the dead body from the hospital without postmortem examination were not clear---Report of the Chemical Examiner regarding the bloodstained clothes of the deceased had not been produced---No crime weapon had been recovered from the accused---Seven/eight fires were allegedly made by the accused, but only four empties had been collected from the place of incident---Prosecution had not explained said ambiguities of the case---Said factors of the case were regarded as the mitigating circumstances for lesser penalty---Conviction of accused under S. 302(a), P.P.C. was erroneous, and rather, he was liable to be convicted under S. 302(b), P.P.C.---Death sentence was, therefore, converted into imprisonment for life---Appeal was dismissed accordingly.

Imran Ashraf and 7 others v. The State 2001 SCMR 424; Mohammad Ranzan and others v. The State 2009 PCr.LJ 533 and Nazim Khan and 2 others v. The State 1984 SCMR 1092 distinguished.

Mst. Nazakat v. Hazrat Jaml and another PLD 2007 SC 453; Amal Sherin and another v. The State PLD 2004 SC 371; Mohammad Akbar and another v. The State PLD 2004 SC 44; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676; Bashir Ahmed v. The State 2004 PCr.LJ 1326 and Salam alias Toor Jan v. The State 2013 PCr.LJ 1461 ref.

Amal Sherin and another v. The State PLD 2004 SC 371; Haji v. The State 2010 SCMR 650; Raqib Khan v. The State 2000 SCMR 163; Abdur Rehman v. The State 1998 SCMR 1778; Mohammad Attique v. The State 2011 SCMR 1378; Dilawar Hussain v. The State 2013 SCMR 1582; Ghulam Mohy-ud-Din v. State 2014 SCMR 1034; Hassan v. State PLD 2013 SC 793; Mohammad Sarwar alias Saru v. The State 2016 SCMR 210; Abid Hussain v. The State PLD 1994 SC 641; Naubahar v. The State 1999 SCMR 637; Abid Ali and others v. The State 1995 PCr.LJ 834; Mohammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313; Khalid alias Khaldi v. The State 2003 PCr.LJ 638 and Ehsan Sharif v. The State 2005 YLR 639 rel.

Abdul Rasheed Nizamani for Appellant.

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

Date of hearing: 4th February, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 2370 #

2016 Y L R 2370

[Sindh]

Before Nazar Akbar, J

Syed GHAZANFAR HUSSAIN through Legal Heirs and 17 others---Applicants

Versus

NOORUDDIN and another---Respondents

Revision Application No.266 of 1987, decided on 15th April, 2016.

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

----S. 54---Suit for permanent injunction---Illegal construction---Proof---Plaintiffs challenged the illegal construction by the defendants on the open space around their property---Trial Court, deciding the issue as to ownership of the plaintiff in affirmative, dismissed the suit regarding the illegal construction, and the appellate court upheld the findings of the Trial Court---Validity---Revision petition had been pending for 29 years due to the delaying tactics of the defendants---Defendants had not filed any objection to the Nazir report, which was supported with the photographs and details of encroachments upon the open spaces---Both the courts below had not taken into consideration the proceedings of the earlier identical suit filed by the predecessor of the plaintiffs against the defendants---Defendants had challenged the judgment passed in the said earlier suit in appeal which had been dismissed---Appellate court in said appeal had inspected the premises and inspection/observations of the court were part of the judgment delivered against the defendants---Both courts below had refused to give any importance to the Commissioner's reports, without assigning any reason for not taking those reports into consideration, in which case, for proper and fair adjudication of the issue of raising construction in open spaces on the property, the courts had to personally inspect the site in dispute---Commissioner, who had inspected the site, had appeared as a witness and also produced photographs along with the inspection reports showing blocking of the passages, and the defendants had failed to prove anything contrary to the actual inspection reports, nor had they filed any objections to the inspection reports---Inspection reports prepared twice on order of the High Court had confirmed the inspection reports, whereunder, the defendants had been found to be in occupation of open spaces---Trial Court had failed to appreciate the documentary evidence including the site plan issued by the Settlement Department showing the exact location of open spaces at the disputed site---Said site plan had been first endorsed by the civil court in earlier suit, and on the basis of the same, the defendants had been forced to remove illegal constructions from the open spaces in execution of the judgment and decree, and the site plan had been again endorsed by the Settlement Department, which was reconfirmation of the plan---Order of the Settlement Department, whereby said site plan had been endorsed, had been further endorsed by the High Court---Open spaces as shown in the site plan had been confirmed as true and correct for the third time by the Survey Department, while they were assisting the Nazir of the High Court---Courts below had not applied their judicial mind to the documentary evidence of the defendants---Once the issues as to the tenement of the plaintiffs being surrounded by four lanes, one on each side, had been decided in favour of the plaintiffs, the existence of any structure or construction adjacent to and attached to the construction on the plot of the plaintiffs was illegal---Findings of said issue in favour of the plaintiff in fact was acceptance of both the site plans produced by the plaintiffs, which site plans had not only complemented each other but the same also had their origin in the official record of the Settlement Department---Defendants had already been declared encroachers under various judgments of the courts---Plaintiffs had successfully proved the illegal construction on the open space at the disputed site, which had been perpetuated for over 29 years directly or indirectly under the cover of pendency of present revision---Courts below, therefore, ought to have directed the defendants to remove whatever construction was on the lanes surrounding the plaintiffs' premises---High Court, setting aside impugned judgments, directed the Nazir of the Court to get cleared each and every encroachment as per the available site plans---Revision was allowed in circumstances.

1999 CLC 312 and 2011 SCMR 1255 rel.

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

----S. 115---Revision petition---Limitation--Time period of 90 days for filing revision petition was prescribed under Art. 162-A of Limitation Act, 1908, which had been omitted from the Act by Limitation (Amendment) Act, 1965; however, in the year 1992, by an amendment in C.P.C., third proviso was added in S. 115, C.P.C. through Civil Procedure Code (Amendment) Act, 1992 providing a period of 90 days for filing revision against the decision of the subordinate courts---Period of 90 days was not applicable to the filing of revision in the High Court, as the same had been filed in the year 1987---Plaintiff had specifically pointed out in the memo of the revision petition that time had been spent in obtaining the certified copies of some of the relevant documents, which ought to have been filed along with the revision in compliance of S. 115, C.P.C., which position had not been disputed by the defendants through any counter affidavit---Revision petition, therefore, had been filed within reasonable time-Revision, even otherwise, could not be dismissed on the question of limitation particularly in view of the fact that the defendants had hopeless case and their conduct was also questionable.

----S. 115--- Revisional jurisdiction---Concurrent findings---Scope---Concurrent findings of the courts below, suffering from misreading and non-reading of several documents including the inspection reports, warranted interference in the revisional jurisdiction of the High Court---Concurrent findings of the kind and quality of the impugned judgments could not be treated as sacrosanct and lawful.

Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.-W.F.P. Peshawar 2015 SCMR 799 rel.

Vizarat Hussain Zaidi for Applicants.

Nemo for Respondents.

Date of hearing: 29th January, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 2393 #

2016 Y L R 2393

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD IBRAHIM THAHIM through Duly Constituted Attorney---Plaintiff

Versus

PROVINCE OF SINDH through Secretary Mines and Minerals Development and 6 others---Defendants

Suit No. 1351 of 2011, decided on 21st September, 2015.

(a) Sindh Mining Concession Rules, 2002---

----R. 70---Specific Releif Act (I of 1877), S. 42---Civil Procedure Code (V of 1908), S. 16 & O. VII, Rr. 2, 11---Contract Act (IX of 1872), Ss. 2 & 37---Contract for collection of royalty of surface minerals---Suit for declaration---Maintainability---Contractual liabilities and rights---Scope---Plaintiff was given license/contract for collection of said royalty---Contention of plaintiff was that defendant had refused to pay royalty to the plaintiff whereas defendant contended that event referred by the plaintiff was outside the contract area---Validity---Suit for declaratory decree could be instituted with reference to rights and liabilities arising out of an agreement/contract---Plaintiff would be required to first establish his legal character with reference to contract/agreement or a right as to any property---Plaintiff could not claim any right, title and interest in the area falling out of contract area---Party could claim with regard to his rights and liabilities arising out from promise or series of promises alone---Events happened or happening outside the contract area had no relevance with the obligations of the parties arising out of the contract---Plaintiff could not make activities out of his contract area---Plaintiff had no cause of action or case to avoid his liabilities arising out of the contract or to expand the scope, object and even the area of the same---Plaintiff could not maintain his suit for a declaratory relief with reference to area out of the contract area---Plaintiff had no cause of action within territorial jurisdiction of the Court---Court within territorial jurisdiction of which subject matter was situated could entertain the suit of plaintiff---Action or omission of third party (not party to contract) could not be made a ground to avoid obligation---Plaintiff had not made any application before the licensing authority---Suit of plaintiff was not maintainable---Plaint was rejected in circumstances, however he would be justified to bring his claim for recovery against those who avoided or had not paid such royalty to him collected from contract area---Authorities were directed to frame a policy for the development of area given under Sindh Mining Concession Rules, 2002.

Commanding Officer, FWO v. Haji Abdul Waheed and others 2003 SCMR 225 distinguished.

Bolan Beverages (Pvt.) Ltd. v. Pepsico, Inc. PLD 2004 SC 860 and RTS Flexible Systems Ltd. v. Molkerei Alois Muller GmbH and Co. KG 2012 SCMR 1027 rel.

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

----S. 42---Suit for declaration---Scope---Suit for declaratory decree could be instituted with reference to rights and liabilities arising out of an agreement/contract.

----S. 2--- "Agreement"--- Meaning---Contract/agreement was the name of a 'promise' or series of 'promises'---Proposal and acceptance were must for legal contract/agreement which could bind either parties.

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

----S. 16---Institution of suit where subject matter situated---Scope---Where subject matter was situated within the jurisdiction of 'different courts', then suit could be filed in any of the 'different courts' where 'any portion of property' was situated but subject to 'accrual of same cause of action, for the 'property' portions whereof falling within the jurisdiction of 'different courts'.

Ravi R. Panjani for Plaintiff.

Javed Iqbal for FWO.

Jam Habibullah, State Counsel along with SIP Roshan Ali Tunio, PS Jamshoro and Farhan Ahmed Qureshi, Assistant Director, Mines and Minerals Department for Defendants.

Date of hearing: 21st April, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2413 #

2016 Y L R 2413

[Sindh]

Before Zafar Ahmed Rajput, J

MOEEN-UD-DIN---Applicant

Versus

Ms. FAHMEEDA BEGUM through Legal Heirs---Respondent

Civil Revision Application No. 29 of 2011, decided on 6th March, 2015.

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

----Ss. 42 & 54---Suit for declaration with permanent injunction--- Benami transaction---Proof---Possession of title deed---Plaintiff alleged that he had purchased suit property (house) in name of his wife/defendant as benamidar from his sources for benefit and use of his family, parents and relatives who had also contributed to said transaction---Plaintiff alleged that defendant (wife) had no means and resources to purchase suit property and alleged that she having lost love for him due to serious disease endangering his life and on the instigation of her brothers and apprehending his sudden death, left the home after disgracing him---Possession of suit property lay with plaintiff---Plaintiff produced counter foils of cheque book, bank deposit slips, truck sale receipt as documentary evidence--- Defendant contested suit and alleged that plaintiff being a clerk could not purchase suit property and he along with his relatives were illegally residing in suit property---Defendant alleged that her mother had sold out her gold ornaments and thereafter she purchased suit property through his brother and telephone and electricity connections were installed in his brother's name---Trial Court dismissed suit---Validity---Evidence deposed by plaintiff contradicted his pleadings---Plaintiff had admitted in his cross-examination that he was serving as government employee and drawing meager salary---Record showed that defendant was operating numerous bank accounts with substantial transactions and deposit slips of account also bore handwriting of defendant's brother---Telephone and electricity connections were admittedly in name of defendant's brother---No evidence was produced by plaintiff to prove object of benami transaction---Plaintiff had not produced any evidence about his disease on account of which defendant had left his house---Original documents were also in possession of defendant---No case was made out on the ground of any material irregularity or illegality, judgments of Courts below did not call for any interference--- High Court dismissed revision petition.

(b) Benami transaction---

----Essential elements--- Whether a transaction was benami or not was to be proved with five ingredients: first source of consideration and its payment, second motive for benami transaction, third, real intention of parties; fourth, possession of property and fifth, possession and production of the document.

----S. 115---Revision petition---Jurisdiction of High Court---Scope---Concurrent findings---Powers of High Court were very limited in revisional jurisdiction---Even if on reappreaisal of evidence, a different view is possible, High Court cannot substitute its own view and upset concurrent findings of courts below---Such findings can only be interfered with if courts below have misread and misconstrued evidence of record or have committed any jurisdictional defect or any material irregularity and illegality in arriving at such findings.

Khawaja Naveed Ahmed for Applicant.

M. Qaiser Qureshi for Respondent.

Date of hearing: 6th March, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2425 #

2016 Y L R 2425

[Sindh]

Before Munib Akhtar and Zulfiqar Ahmad Khan, JJ

Mrs. SAHIDA BIBI and 7 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary to Government of Sindh Land Utilization and 6 others---Respondents

C. P. No. D-7161 of 2015, decided on 7th March, 2016.

Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001)---

----Ss. 5 & 4(2)----Sindh Government Lands (Cancellation of Allotments, Conversions and Exchange) Rules, 2003, R. 3(1)---Withdrawal/cancellation of regularized allotment of commercial/ residential land---Legality---Secretary to the Provincial Government, Land Utilization, vide impugned letter, withdrew/cancelled earlier regularization of commercial/residential land on the ground that a civil suit was pending between the petitioners and other claimants of the land in dispute, and that impugned letter had been issued as a precaution to avoid future contempt of court proceedings in case any adverse order was passed in the suit---Validity---Impugned letter had affected the prior rights of the petitioners, and the same had been issued on flimsy grounds in the garb of anticipated contempt of court proceedings and seemed to be an attempt to seek anticipatory injunction against the respondent---Letter in question was, therefore, nullity in the eye of law and void ab initio which was cancelled---Constitutional petition was allowed in circumstances.

Rehman Aziz Malik and Zia-ul-Haq Makhdoom for Petitioners.

Ahmed Pirzada and Shabir Shaikh for Respondents.

Date of hearing: 2nd December, 2015.

YLR 2016 KARACHI HIGH COURT SINDH 2439 #

2016 Y L R 2439

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Muhammad Iqbal Mehar, JJ

MUHAMMAD UMAR QURESHI---Petitioner

Versus

GOVERNMENT OF SINDH through Vice-Chancellor and 3 others---Respondents

Constitutional Petition No. D-2997 of 2015, decided on 22nd March, 2016.

Educational institution---

----Admission---Appearing name of candidate in the merit list---Effect---Candidate got first position in the test and his name was shown in the merit list of a specific category but he was not admitted in the said category---Contention of University was that name of petitioner was mistakenly shown in the merit list---Validity---Mere appearance of name of the petitioner on merit list did not confer on him any inalienable right to be considered for admission at the peril of other candidates having higher marks than him---Constitutional petition was dismissed in circumstances.

Umaid Ali Khowaja for Petitioner.

Liaquat Ali Malik for Respondent No.4.

Allah Bachayo Soomro, Additional A.-G. for Respondents.

Date of hearing: 15th March, 2016.

YLR 2016 KARACHI HIGH COURT SINDH 2451 #

2016 Y L R 2451

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Khadim Hussain M. Shaikh, JJ

Mst. SHAHARBANO and another---Petitioners

Versus

CHIEF ELECTION COMMISSIONER and 9 others---Respondents

Constitutional Petition No. 241 of 2016, decided on 12th February, 2016.

(a) Sindh Local Council (Election) Rules, 2013---

---R. 50---Nomination papers for reserved seats---Contention of petitioners was that nomination papers of candidates were not properly accepted---Validity---Petitioners could have availed the remedy by filing appeals against the decision of accepting nomination papers of candidates---Constitutional petition being not maintainable was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction, invocation of--- Requirement---Constitutional jurisdiction could be invoked only when there was no other remedy in the law or when remedy(ies) available have been availed and exhausted in accordance with law.

K. B. Lutuf Ali Leghari for Petitioners.

YLR 2016 KARACHI HIGH COURT SINDH 2457 #

2016 Y L R 2457

[Sindh]

Before Syed Muhammad Farooq Shah, J

STATE LIFE INSURANCE CORPORATION---Petitioner

Versus

Messrs ASIATIC ENTERPRISES and 2 others---Respondents

Constitutional Petition No. 23 of 2008, decided on 5th May, 2016.

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

----S. 8--- Fair rent, fixation of--- Principles--- Rent Controller, on application of landlord enhanced rent to Rs. 8 per sq. ft. per month--- Lower Appellate Court modified fair rent fixed by Rent Controller and reduced same from Rs. 8 per sq. ft. per month to Rs. 6.27 per sq. ft. per month---Validity---Cost of construction had raised manifold including property taxes which had been enhanced---Location of premises and environmental situation of demised premises was located in prime area of the city i.e., renowned market---Keeping in view locality of property besides other factors, increased fair rent could be claimed with passage of time---High Court set aside order passed by Lower Appellate Court and restored that of Rent Controller---Constitutional Petition was disposed of accordingly.

Zahid Hussain for Petitioner.

Nemo for Respondents.

YLR 2016 KARACHI HIGH COURT SINDH 2471 #

2016 Y L R 2471

[Sindh]

Before Salahuddin Panhwar, J

SHOAIB KHAN---Plaintiff

Versus

Messrs KARACHI WATER AND SEWERAGE BOARD through

Managing Director and 5 others---Defendants

Suit Nos.326, 330, 354, 355 and 356 of 2016, decided on 10th February, 2016.

Civil Procedure Code (V of 1908)-

---O.XXXIX, Rr.1 & 2---Specific Relief Act (1 of 1877), Ss.42 & 54---Suit for declaration and permanent injunction--- Contract to install hydrants---Temporary injunction, grant of---Scope---If defendant had breached the contract, plaintiff could ascertain damages likely to be caused in result of such breach---Breach of contract did not advance the case of plaintiffs for grant of an injunction---Matter with regard to contract as in the present case because under discussion before the Supreme Court observations had been passed therein---High Court could not take any exception to such observations given by the Supreme Court---Plaintiffs having no case for grant of injunction, application for grant of injunction was dismissed.

Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 rel.

Salahuddin Ahmed and Nadeem Ahmed, for Plaintiff (in Suit No.326/2016).

Rehman Ghous for Plaintiff (in Suit No.330/2016).

Umar Awan for Plaintiffs (in Suits Nos.354 to 356/2016).

YLR 2016 KARACHI HIGH COURT SINDH 2507 #

2016 Y L R 2507

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar, J

ZAMIR AHMED and 2 others---Applicants

Versus

The STATE---Respondent

Cr. B. A. No.255 of 2016, decided on 7th June, 2016.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 497---Penal Code (XLV of 1860), Ss. 506/2, 337-A(i), 337-F(iv), 147, 148, 149 & 504---Criminal intimidation; shajjah-i-khafifah; ghayr-jaifah/munaqqilah; rioting, intentional insult with intent to provoke breach of the peace; common object---Bail before arrest, grant of---Principles---Rule of consistency--- Applicability--- Co-accused had already been granted post-arrest bail by the trial Court---Case of present accused persons was on better footing than that of the co-accused, and the only difference was that the co-accused had been arrested and granted post-arrest bail, while the present accused were seeking pre-arrest bail---No useful purpose would be served if the pre-arrest bail was refused to the accused persons on any technical ground, as they, after arrest, would again be allowed bail on ground that the co-accused in similar circumstances had already been granted bail---Bail application was allowed accordingly.

Muhammad Ramzan v. Zafrullah and another 1986 SCMR 1380 rel.

Khan Muhammad Shaikh, for Applicants.

Complainant in person.

YLR 2016 KARACHI HIGH COURT SINDH 2516 #

2016 Y L R 2516

[Sindh]

Before Khadim Hussain M. Shaikh, J

HASSAN---Applicant

Versus

IQBAL PERVAIZ and 9 others---Respondents

Civil Revision Application No.79 of 2010, decided on 22nd April, 2016.

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

----S. 8---Civil Procedure Code (V of 1908), O. VII, R. 3---Qanun-e-Shahadat (10 of 1984), Arts. 76 & 129(g)---Suit for possession--- Maintainability--- Secondary evidence, production of---Requirement---Document, proof of---Procedure---Plaintiffs were required to describe the boundaries of suit property---Plaint did not contain the boundaries of subject matter---Photocopy of document was inadmissible in evidence---Secondary evidence could not be allowed unless conditions laid down in Art. 76 of Qanun-e-Shahadat were satisfied---Plaintiffs had not summoned any official witness of the custodian of record to produce original thereof in the court---Adverse presumption could be drawn against the plaintiffs in circumstances---No valid or authentic piece of evidence had been produced with regard to grant of state land in favour of predecessor-in-interest of plaintiffs---Nothing was on record that predecessor of plaintiffs or his legal heirs ever remained in possession on subject land or had even deposited any amount towards price of suit land---Suit simplicitor for possession in the wake of specific denial with regard to ownership or title of plaintiffs over the subject land without seeking relief of declaration of ownership or title was not maintainable---Suit property was government land but concerned government functionaries and the Province had not been impleaded as party who were necessary to be impleaded as defendants---Present suit was liable to be dismissed on these premises also---Plaintiffs had failed to discharge burden of proof rested on them---Findings of Trial Court declaring the plaintiffs as owners of suit land were not sustainable and were liable to be reversed---Judgment and decree passed by the Appellate Court decreeing the suit were without any evidence which were set aside--Suit filed by the plaintiffs was dismissed---Revision was allowed in circumstances.

Muhammad Aslam v. Muhammad Azeem Shah 1996 SCMR 1862; Muhammad Zafar v. Yousaf Ali 2003 CLC 1922; Maqbool Ahmed v. Hakoomat-e-Pakistan 1991 SCMR 2063; Ghulam Rasool v. Muhammad Hussain PLD 2011 SC 119; Muhammad Hanif v. Province of Punjab 2007 CLC 1309; Noor Muhammad v. Abdul Qadeem 1995 SCMR 522; Dewan Ali Khan v. Jehandad Khan 1995 CLC 136; Maqsood Hussain Shah v. Noor Hussain Shah PLD 1989 SC (AJ&K) 45; Walayat Khan v. Muhammad Yusaf PLD 1995 SC (AJ&K) 41; Muhammad Anwar v. Darul Uloom Ghausia Hanfia 2007 SCMR 1510 and Wazir Khan v. Qutab Din PLD 2009 SC 95 ref.

Wazirdullah and 9 others v. Land Acquisition Collector, A.C. Swabi PLD 2003 Pesh. 235; Mukhtar Ahmad through Legal Heirs v. Muhammad Yunus and 4 others 2001 CLC 1796; Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Muhammad Azam and 5 others v. Abdullah and 15 others 1999 CLC 200; Province of Punjab and 5 others v. H. Nizam Din and Sons Ltd. 2005 YLR 2007; Oriental Shipping Co. Ltd., Karachi v. Panaghia Odigitria and 2 others 1991 MLD 148; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Muhammad Iqbal and another v. Mukhtiar Ahmed 2008 SCMR 855 and Molvi Noor Muhammad v. Sheikh Abdul Qadeem 1995 SCMR 522 rel.

(b) Sindh Land Revenue Act (XVII of 1967)---

----S. 163--- Review--- Scope--- Scope of review was very limited.

Mukhtiar v. The State 1975 SCMR 113 rel.

----Void order did not require to be set aside.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635 and Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 rel.

Suresh Kumar for Applicant.

Ejaz Ali Hakro for Respondents.

YLR 2016 KARACHI HIGH COURT SINDH 2545 #

2016 Y L R 2545

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh and Nadeem Akhtar, JJ

SAIFULLAH---Petitioner

Versus

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

C.P. No.D-1926 of 2013, heard on 25th February, 2016.

Constitution of Pakistan---

----Art. 199----Constitutional petition---Petitioner claimed that he was entitled to be appointed as Police Constable in place of his deceased uncle, who had been murdered during a police encounter while performing his duty, on 'Shaheed Quota' policy---Petitioner was shown to have prepared bogus Matriculation Certificate and made forgeries in his CNIC's by changing his date of birth; thus, the petitioner had rendered himself liable to be dealt with according to law---High Court directed the police authority to take action against petitioner in accordance with law---Constitutional petition was dismissed with costs in circumstances.

Ghulamullah Chang for Petitioner.

Ashfaq Nabi Kazi, Assistant, A.G. for the State.

2016 Y L R 2600

[Sindh]

Before Anwar Hussain, J

MISRI KHAN JATOI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.38 and M.A. No.1581 of 2016, decided on 16th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S. 5(2)---Public servant taking gratification other than legal remuneration in respect to an official act---Criminal misconduct---Suspension of sentence pending appeal---Release of accused on bail---Sentence awarded to the accused was short---Preparation of the paper book and decision (in appeal against conviction/sentence) would take sufficient time---High Court, therefore, suspending the sentence, released the accused on bail during pendency of the appeal---Application under S. 426, Cr.P.C. was accepted accordingly.

1999 SCMR 2589 rel.

Ali Nawaz Ghanghro for Appellant.

YLR 2016 KARACHI HIGH COURT SINDH 2609 #

2016 Y L R 2609

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MUHAMMAD IBRAHIM---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.S-555 of 2015, heard on 11th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-H(2), 452, 147, 148 & 149---Attempt to qatl-i-amd, rash and negligent act, house trespass and rioting armed with deadly weapons---Bail, grant of---Fugitive from law---Related witnesses---Accused committed trespass into the house of complainant with preparation and armed with a pistol and caused firearm injury to victim lady making her permanently disabled---Validity---Accused disappeared from scene after commission of alleged offence and remained fugitive from law for a considerable time---Accused surrendered himself before Court when his brother was granted pre-arrest bail by High Court on the ground that no overt act was attributed to him---Incident occurred inside the house of complainant so family members were the witnesses of incident and their testimony could not be discarded merely on the ground of their relationship with complainant who was otherwise trustworthy---Accused could not claim concession of bail as a matter of right, even if alleged offence did not fall within prohibitory clause of S. 497, Cr.P.C.---Applicant failed to establish case of further inquiry as envisaged in S. 497(2), Cr.P.C.---Bail was declined in circumstances.

2010 YLR 2889; 2001 PCr.LJ 125; 2012 YLR 1053; 2010 YLR 737; 2011 YLR 2657; 2001 PCr.LJ 1345; 1994 SCMR 2051; 2011 SCMR 1392; 2008 SCMR 1621; 2004 PCr.LJ 692; 2004 SCMR 772 and 2002 SCMR 442 ref.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 445 rel.

Miran Bux Shar for Applicant.

Ghulam Shabbir Dayo for the Complainant.

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

YLR 2016 KARACHI HIGH COURT SINDH 2624 #

2016 Y L R 2624

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Muhammad Faisal Kamal Alam, JJ

MUNIR AHMED SEELRO---Petitioner

Versus

FEDERATION OF PAKISTAN through Chairman National Accountability Bureau (NAB), Islamabad and 3 others---Respondents

Const. Petition No.D-4570 of 2015, decided on 19th April, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S.9---Embezzlement in G. P. Fund---Bail, grant of---Further inquiry---No specific role had been assigned to the accused with the alleged offence---Accused had been implicated on the basis of statement of co-accused---Prosecution had some doubt with regard to identity of accused---Facts required further inquiry for proving the guilt of the accused with regard to alleged offence---Accused opted for plea bargain which could not operate as a bar for withholding the bail if accused otherwise had made out a case for grant of bail on merits---Accused was granted bail subject to bond of Rs. 5,00,000/- in the like amount to the satisfaction of Trial Court.

Hussain Bakhsh Baloch for Petitioner.

Muhammad Zubair Malik, Special Prosecutor NAB for the Complainant.

Mian Mumtaz Rabbani, D.A.G. for the State.

YLR 2016 KARACHI HIGH COURT SINDH 2629 #

2016 Y L R 2629

[Sindh (Larkana Bench)]

Before Anwar Hussain, J

INAYAT alias INAYATULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-387 of 2015, decided on 16th May, 2016.

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

----S. 497----Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, refusal of---Police opinion not binding on court---FIR of the incident had been promptly lodged---Accused, along with the co-accused, had been nominated in the FIR with specific role of making direct firing on the deceased, causing five firearm injuries on his vital part, which had resulted in his death---Accused was prima facie vicariously liable and his sharing common intention with the co-accused had been established from the role played by him in the commission of the offence---Recovery of empties from the place of incident also proved the presence of the accused at the time of the incident---Medical Report supported the prosecution case---Police although had found the accused innocent by placing his name in column No. II during the course of investigation, but, the opinion of the police was not binding upon the Court at bail stage, and the same would be looked into at the time of trial---Reasonable grounds existed to believe the guilt of the accused---Bail application was dismissed accordingly.

1980 SCMR 784; 2014 PCr.LJ 740; 1974 PCr.LJ 450; 1987 MLD 1668; 2003 PCr.LJ 135; 1979 SCMR 65 and 2002 PCr.LJ 1277 ref.

1995 SCMR 1118; 2010 MLD 1809; 2000 PCr.LJ 31; 2005 YLR 1676; 2010 SCMR 1861; 2003 PCr.LJ 135 and Muhammad Siddiqui v. Imtiaz Begum PLJ 2001 SC 1361 rel.

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

----S. 497----Bail---Principles---No one can claim bail as of right in non-bailable offences, even though, the same do not fall under the prohibitory clause of S. 497, Cr.P.C.

Muhammad Siddique v. Imtiaz Begum PLJ 2001 SC 1361 rel.

Faiz Muhammad Larik for Applicant.

Abdul Qadir Abro for the Complainant.

YLR 2016 KARACHI HIGH COURT SINDH 2638 #

2016 Y L R 2638

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

KAMAL DIN---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.591 of 2015, decided on 18th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 161, 467, 468, 471, 477A & 34---Public servant taking illegal gratification forgery of valuable security, using as genuine a forged document falsification of accounts and common intention---Bail, grant of---Scope---Contention of accused was that during commission of alleged offence, he was posted as Junior Clerk in the office and subsequently, he was promoted as Senior Clerk and he had not granted any land with his signatures---Complainant's plea was that accused being "Mukhtiarkar Estate" had issued one revised form for land from 16 to 28-29 acres, hence, had committed alleged offence---Validity---While examining the question of bail, court was to consider minimum aspect of the sentence provided for alleged offence in Schedule and bail could not be withheld as punishment---Alleged offence was committed during investigation period of 2004 to 2009 and after a lengthy inquiry, FIR had been lodged by complainant without assigning any plausible explanation for delay of 6 years for lodgment of FIR and even then no specific role had been assigned to accused in FIR regarding commission of alleged forgery---Final challan had already been submitted before Trial Court and accused was no more required to police for further investigation---Entire prosecution case was based on documentary evidence and there was no apprehension of tampering with prosecution evidence, therefore, further detention of accused in jail would not serve any useful purpose---In such circumstances, bail was allowed and accused was admitted to post arrest bail subject to furnishing a solvent surety.

Saeed Ahmed v. The State 1996 SCMR 1132 rel.

Manzoor Hussain Balouch for Applicant.

YLR 2016 KARACHI HIGH COURT SINDH 2648 #

2016 Y L R 2648

[Sindh (Larkana Bench)]

Before Abdul Maalik Gaddi, J

MEHBOOB---Applicant

Versus

The STATE---Respondent

2nd Crl. Revision Appln. No.S-7 of 2016, decided on 29th February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 514---Surety amount, recovery of---Abscondance of accused---Accused was released on bail against surety submitted by petitioner---Accused jumped bail and Court issued notice to petitioner who also absconded---Trial Court imposed fine of Rs.200,000 upon petitioner---Validity---Petitioner surety after service of notice under S. 514, Cr.P.C., put in appearance before Trial Court, engaged counsel and sought time for filing of reply---Time was granted to petitioner but instead of filing reply to notice under S. 514, Cr.P.C., petitioner also deserted away---Petitioner appeared before Trial Court later on and again kept on seeking time to submit reply with the explanation that accused had already been murdered---High Court declined to interfere in the order passed by Trial Court---Revision was dismissed under circumstances.

Ghulam Dastagir and 3 others v. The State PLD 2011 SC 116 and Waqas Mehmood and another v. Wajid Hussain and another 2012 PCr.LJ 1936 ref.

YLR 2016 KARACHI HIGH COURT SINDH 2659 #

2016 Y L R 2659

[Sindh]

Before Nazar Akbar, J

Mst. JAMILA BANO through L.Rs.---Applicant

Versus

Mst. SHAHANA BEGUM alias PAROO and 3 others---Respondents

R.A. No.227 of 2002, decided on 23rd May, 2016.

Civil Procedure Code (V of 1908)---

----O. XXII, R. 4(1) & XXIII, R. 1----Death of parties---Status/right of legal heirs of deceased plaintiff to be determined by Trial Court after framing of an issue, and not by the appellate court---Applicant/ legal heir of the deceased plaintiff had filed application under O. XXII, R. 4(1), C.P.C., which, along with the suit, was dismissed by the Trial Court on the ground that the same should have been filed under O. XXII, R. 3, C.P.C. and that the same had been filed beyond a period of 90 days---Appellate court had maintained said orders---Applicant contended that the suit could have been dismissed along with the application, as the right to sue had survived in favour of the legal representatives of the plaintiff---Validity---Appellate court had failed to examine the provisions of O. XXIII, R. 1, C.P.C.; therefore, impugned order of dismissal of the suit itself was against the provisions of law---Appellate court had dismissed the appeal against the impugned orders while determining the status of the applicant as legal heir of the deceased plaintiff as her next friend; whereas, the question as to filing of the application by the applicant as legal heir of the plaintiff should have been left to be decided by the Trial Court, and the question, whether the applicant had no locus standi to become party on the death of the actual plaintiff in the suit as legal heir, should have been decided on merits after framing an issue by the Trial Court---Dismissal of the suit was, therefore, result of incorrect application of the law---Present revision petition had been pending for about 13 years due to lack of interest on part of the applicant; however, the High Court, accepting the petition subject to cost, remanded the case to the Trial Court for decision afresh on merits and in line with the specific directions issued for disposal of the suit---Revision petition was allowed accordingly.

Syed Jamil Ahmed for Applicant.

Thawar Ali Khan for CDGK/KMC.

YLR 2016 KARACHI HIGH COURT SINDH 2671 #

2016 Y L R 2671

[Sindh]

Before Abdul Maalik Gaddi, J

TAUSEEF RIAZ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.267 of 2016, decided on 1st July, 2016.

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

----S. 497----Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd; common intention---Bail, refusal of---Ground of statutory delay in conclusion of trial---Accused had been nominated in the FIR with the specific allegations as to murder of the deceased, which fact was also found support from the statements of the prosecution witnesses recorded under S. 161, Cr.P.C---Nothing was available on the record to show that the prosecution witnesses had any ill will or grudge against the accused---Accused was prima facie involved in the case, falling under the prohibitory clause of S. 497, Cr.P.C---Accused had claimed bail on statutory delay, but out of thirteen prosecution witnesses, eight material witnesses, including the complainant, had already been examined, four witnesses had been given up by the prosecution and evidence of only one witness/Investigating Officer was left, and non-conclusion of the trial within the period of two year was due to the non-availability of the defence counsel on many dates and the adjournment made on his request---Defence counsel had sought adjournments on thirteen occasions, which showed that the defence was responsible for causing delay in finalization of the trial---Law had to see whether finalization of the trial had taken place on account of delay caused by the defence---Substantial progress had already been made in the case and the trial of the accused was near completion---Deeper appreciation of the evidence, under said circumstances, was not permissible at bail stage---Bail application was dismissed accordingly.

Zaigham Ashraf v. The State and others 2016 SCMR 18; Chairman NAB through PGA NAB Islamabad v. Muhammad Khalid 2016 SCMR 676; Muhammad Nadeem Anwar and another v. National Accountability Bureau and others PLD 2008 SC 645; Sher Ali alias Sheri v. The State 1998 SCMR 190; Ghulam Sarwar v. The State 1990 SCMR 1045; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Jaggat Ram v. The State 1997 SCMR 361; Shaukat Ali v. Ghulam Abbas and others 1998 SCMR 228; Haji Muhammad Siddique and others v. The State PLD 1994 SC 93; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Abdur Rashid v. The State 1998 SCMR 897; Muhammad Yaqoob alias Qoobi v. The State PLD 1984 SC 1 and Mohib Syed v. The State 2001 PCr.LJ 1908 ref.

Akhtar Abbas v. The State PLD 1982 SC 424; Muhammad Younis v. The State 1995 SCMR 1087; Javid-ur-Rehman and another v. The State 2010 SCMR 1744 and Haji Muhammad Siddique and others v. The State PLD 1994 SC 93 rel.

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

----S. 497----Bail---Principles---Each case has to be decided on its own facts and circumstances, and the court is required to exercise jurisdiction independently.

The State v. Haji Kabeer Khan PLD 2005 SC 364 and Muhammad Faiz alias Bhoora v. The State and another 2015 SCMR 655 rel.

Muhammad Akbar Khan for Applicant.

Tariq Qureshi and Saima for the Complainant.

Ms. Seema Zaidi, A.P.G. for the State.

YLR 2016 KARACHI HIGH COURT SINDH 2719 #

2016 Y L R 2719

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar, J

ARSHAD---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.160 of 2016, decided on 15th June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), Ss.302, 324, 337-H (2), 147, 148 & 504---Qatl-i-amd; attempt to commit qatl-i-amd; hurt by rash or negligent driving; rioting; rioting, armed with deadly weapon; intentional insult with intent to provoke breach of peace---Bail, grant of---Abscondence---Effect---Complainant and the two injured prosecution witnesses had not implicated the accused in their evidence (recorded before the Trial Court)---Trial Court had already acquitted the two co-accused for the similar allegations; therefore, the accused was entitled to the grant of bail---Bail could be granted to the accused if he had a good case on merits, and, while granting him bail, his mere abscondence would not come in the way---Bail application was allowed accordingly.

Mitho Pitafi v. The State 2009 SCMR 299 rel.

Saeed Jamal Lund for Applicant.

YLR 2016 KARACHI HIGH COURT SINDH 2728 #

2016 Y L R 2728

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

MOHAMMAD NAVEED---Appellant

Versus

MOHAMMAD ISMAIL and 2 others---Respondents

Cr. Acquittal Appeal No.D-40 of 2013, decided on 24th February, 2016.

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

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd; attempt to commit qatl-i-amd; common intention---Appeal against acquittal---Appreciation of evidence---Complainant had not given the names, "hulyas" (description) of accused either in the FIR or in his statement under S. 161, Cr.P.C. and instead had mentioned two unidentified persons in the FIR---Names of the accused persons had been disclosed in their statements under S. 164, Cr.P.C.---Identification parade of one of the accused persons had not been held---Prosecution injured witness had deposed that the names of accused persons had been disclosed to him by his father, the complainant---Identification of the accused was therefore, being doubtful, had no credibility---Identification of the accused before the Magistrate carried no weight in the eyes of law---Prosecution witnesses had made contradictory statements during cross-examination---Injured prosecution witness had deposed that he had not seen any accused person, and the present accused were not the same as he had not seen them at the time of the incident at the place of occurrence, and that his statement before the police had not been recorded---Testimony of the Mashir of Danishnama of the deadbody of the deceased, injuries of the injured, place of occurrence and recovery of the empties, who had supported the prosecution case, was not sufficient to convict the accused person, as no trustworthy ocular evidence existed to implicate them in the commission of offence---No material evidence had been collected against present accused during the investigation, and the accused persons had been found innocent during police investigation and they had been challaned on application to the Magistrate after identification parade---Magistrate was under duty to arrange dummies of different size, heights, and colours, which had not been done---Eye-witnesses had admitted to have already seen the accused before the identification parade at the police station---Impugned order of acquittal was based on correct appreciation of evidence and application of law; hence, the same did not require any interference in appeal---Appeal against acquittal was dismissed accordingly.

Shabbir Ali alias Fouji v. The State 2011 SCMR 563; Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305 and Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 rel.

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

----Ss. 417 & 410----Appeal against conviction/acquittal---Scope---Principles of appeal against conviction and those against acquittal are altogether different---Accused, in appeal against acquittal, earns double presumption of innocence: one before trial and the other after acquittal---Complainant, for reversal of the acquittal of the accused, has to bring on record that the prosecution had not been properly considered and the order of acquittal was fanciful, perverse and not in accordance with the law---On examination of the order of acquittal as a whole, credence should be accorded to the findings of the subordinate court---Order of acquittal can only be interfered with if the same is found unreasonable, perverse and manifestly wrong.

Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305 and Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 rel.

Ghulam Shabbir Shar for Appellant.

Rukhsar Ahmed Junejo and J.K. Jarwar for Respondents.

A.R.Kolachi, A.P.G. for the State.

YLR 2016 KARACHI HIGH COURT SINDH 2748 #

2016 Y L R 2748

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD NAEEM KHAN---Petitioner

Versus

MUHAMMAD ISMAIL and another---Respondents

First Appeal No.5 of 2014, decided on 8th October, 2015.

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

----O. XXXVII, Rr. 2 & 3 & S. 114---Institution of summary suit on the basis of cheque---Conditional leave to defend the suit subject to furnishing surety---Non-compliance of condition imposed in leave granting order---Effect---Application for review of order---Conditions---Application for leave to appear and defend the suit was conditionally allowed subject to furnishing surety equal to the amount claimed in the suit---Defendant instead of furnishing surety filed an application for review of leave granting order which was ordered to be heard along with the main suit---Trial Court decreed the suit and application for review of leave granting order was dismissed---Validity---Neither there was any discovery of new and important matter or evidence nor was there any mistake apparent on the face of record which could justify filing an application for review of leave granting order---Review could only be filed on the grounds to correct error in the order---If defendant was not satisfied with the order of Trial Court granting conditional leave to him then he should have assailed the same by approaching the higher forum---Application filed by the defendant to challenge the leave granting order was not maintainable and was rightly dismissed---Trial Court had no option but to decree the suit in case of non-compliance of conditions imposed in leave granting order---Trial Court was justified in decreeing the suit once defendant failed to comply with the conditions imposed in the leave granting order---No infirmity was pointed out in the impugned judgment passed by the Trial Court---Appeal was dismissed in circumstances.

Muhammad Yousaf v. Allah Yar PLD 1987 Lah. 101 ref.

Murtaza Haseeb Textile Mills v. Sitara Chemical Industries 2004 SCMR 882 rel.

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

----O. XLVII, R. 1 & S. 114---Application for review of judgment---Conditions---Condition precedent for filing review application was discovery of new and important matter or evidence which was not within the knowledge of applicant or could not be produced by him at the time when the decree was passed or order was made or if there was some mistake or error apparent on the face of record.

Muhammad Nadeem Khan for Appellant.

Muhammad Yaqoob for Respondent No.1.

None for respondent No.2.

YLR 2016 KARACHI HIGH COURT SINDH 2760 #

2016 Y L R 2760

[Sindh]

Before Shahnawaz Tariq, J

SALAMUDDIN---Applicant

Versus

S.H.O. P.S. HALANI and another---Respondents

Cr. Revision Application No.S.79 of 2015, decided on 31st March, 2016.

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

----Ss. 3 & 4----Specific Relief Act (I of 1877), Ss. 9, 42 & 54---Illegal possession of property---Complaint and civil suit---Maintainability---Trial Court dismissed to complaint on ground that civil litigation was already pending between the parties regarding same property---Complainant had claimed to be the owner of the subject land by way of sale by the actual owner thereof, who had sworn his affidavit before the Trial Court and supported said claim stating that he had sold out the land to the complainant and that the complainant was in peaceful possession thereof when his brother/accused had dispossessed him; said affidavit had controverted the contentions raised by the accused---Trial Court must have considered said affidavit prudently, and ignoring the same was a serious infirmity committed by the court---Complainant thus having established his ownership of the land, recording of evidence to determine the allegations of forcible dispossession by the accused person was essential---Civil suit and direct complaint could be filed by the same party simultaneously---Through civil suit any party could approach the concerned civil court for determination of his legal rights over property in dispute, and through criminal complaint the offender was to be punished for the offence---Mere pendency of the civil suit regarding declaration etc. would not debar and prohibit the complainant from availing other efficacious remedy by approaching the court having competent jurisdiction---Trial Court, while dismissing present complaint, therefore, had committed serious illegality and material infirmity---High Court, setting aside the impugned order, remanded the case for decision afresh on merits thereof.

Muhammad Ramzan alias Jani v.

Muhammad Aslam and others 2007 PCr.LJ 1784 rel.

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

----Ss. 9, 42 & 54----Illegal Dispossession Act (XI of 2005), Ss. 3 & 4---Illegal possession of property by other person---Suit for possession, declaration and permanent injunction---Maintainability---Civil suit and direct complaint under Illegal Dispossession Act, 2005 can be filed by the same party simultaneously; through civil suit any party can approach the concerned civil court for determination of his legal rights over property in dispute, and through complaint the offender is to be punished for the offence.

Muhammad Ramzan alias Jani v. Muhammad Aslam and others 2007 PCr.LJ 1784 rel.

Iftikhar Ali Arain for Applicant.

J.K. Jarwar for the proposed accused.

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

YLR 2016 KARACHI HIGH COURT SINDH 2786 #

2016 Y L R 2786

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

GOPIMAL through attorney---Appellant

Versus

Haji KHAN MUHAMMAD through Legal Heirs and another---Respondents

Civil Misc. Appeal No.S-02 of 2014, decided on 11th January, 2016.

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

----O. XLI, R. 19---Appeal, restoration of---Limitation---Condonation of delay---Parties to remain vigilant and pursue their cause properly---Court could not allow further time to file an application for condonation of delay to fill the lacuna---Applicant having knowledge of delay remained silent for two years without any justification---Parties were bound to explain the delay of each day adequately which had created a valuable right in favour of opposite party---Application for restoration of appeal was dismissed.

(b) Limitation---

----Condonation of delay---Parties had to explain the delay of each day adequately.

----Parties to remain vigilant and pursue their cause properly.

Lachhman Das G. Rajput for Appellant.

Syed Abdul Latif Shah Jilani for Respondents.

YLR 2016 KARACHI HIGH COURT SINDH 2798 #

2016 Y L R 2798

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

RIAZ MUHAMMAD---Applicant

Versus

DILDAR MUHAMMAD and 11 others---Respondents

Civil Revision Application No.S-101 of 2011, decided on 11th March, 2015.

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

----O. XLI, R. 20---Impleadment of party in appeal---Discretionary relief---Application condonation of delay in impleadment of party---Scope---Appeal was dismissed on the ground that plaintiff had not arrayed all the defendants in the suit as respondents in the appeal---Validity---Plaintiff had arrayed only one respondent in the appeal and had left out other defendants in the suit who were required to be arrayed as respondents in appeal---Plaintiff had not made any effort to seek permission of the Appellate Court in spite of objection by the defendants for bringing on record the remaining defendants as respondents in the appeal---No explanation was appended with the appeal to justify such conduct on the part of plaintiff whereby other defendants in the suit were left out and not arrayed as respondents in the appeal---Appellate Court was bound to look into such conduct of the party seeking discretionary relief---Interest of other party would be prejudiced and rights accrued would also infringe without being any mistake on behalf of other party if such discretion was exercised---Neither any application was filed by the plaintiff for bringing the other defendants on record nor had sought condonation of delay by filing of application---Appellate Court had rightly upheld the objections which otherwise ought to have prevailed looking at the conduct of the plaintiff in the facts and circumstances of the present case---Appeal had been rightly dismissed being incompetent in law and impugned order being unexceptionable did not require any interference---Revision was dismissed in limine.

Mst. Sardar Begum v. Muhammad Anwar Shah 1993 SCMR 363 and Muhammad Siddique v. Kareem Bakhsh 2008 CLC 1586 rel.

Muhammad Jamil v. Chairman, Industrial Court, West Pakistan and another PLD 1994 SC 559 and Mst. Murad Begum v. Muhammad Rafiq PLD 1974 SC 322 ref.

(b) Administration of justice---

----Procedural provisions should be construed liberally in order to advance the cause of justice---Party to lis should not be denied relief on account of technicalities in the procedural law.

YLR 2016 KARACHI HIGH COURT SINDH 2815 #

2016 Y L R 2815

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

MAZAR alias FOUJI and another---Appellants

Versus

The STATE---Respondent

Cr. Jail Appeal No.201 along with Confirmation Case No.3 of 2010, decided on 29th March, 2016.

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

----Ss. 302/34----Criminal Procedure Code (V of 1898), Ss. 164 & 364---Qanun-e-Shahadat (10 of 1984), Art. 129 (b)---Qatl-i-amd; common intention---Appreciation of evidence---Benefit of doubt---Prosecution witness, who was holding torch while sitting on the rear seat of the motorcycle with the eye-witness, who was driving the motorcycle, had been given up by the prosecution, for the reason that the evidence on the same point had already come from the mouth of the eye-witness---Eye-witness, driving the motorcycle, was not in a position to witness the incident in the manner, in which the same could have been seen by the witness sitting on the rear seat and holding torch in his hand---Fact of giving up said witness created serious doubt, including the presumption that if he had been examined, he might not have supported the prosecution case---Non-production of said witness was, therefore, fatal for the prosecution---Confessional statement of the accused persons had been recorded after a delay of three days without any plausible explanation---Language of the confessional statements of both the accused were almost the same---Accused person in the confessional statement had categorically stated to have made the statements at the instance of the police---Confessional statements were retracted during the course of the trial---Such statements were not in consonance with the prosecution story and lacked necessary information as to weapon used in the crime, place of occurrence and motive---Confessional statements of the accused persons were, therefore, doubtful and involuntary---Recoveries of the bloodstained clothes and Katties from the accused on their joint pointation could not be relied upon, and such piece of evidence was to be discarded from consideration---Alleged conduct of both the accused persons as to concealing the crime weapons at one and the same place also seemed to be unnatural---Hundreds of persons had gathered at the place of occurrence, but the police had associated only the relatives of the deceased/complainant as Mashirs---High Court, extending benefit of doubts, acquitted both the accused persons---Appeal against conviction was allowed accordingly.

Naseem Akhtar v. State 1999 SCMR 1744 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Ghulam Hyder v. The State 1970 PCr.LJ 640; Fazal Rehman and others v. The State PLD 2004 SC 250; Nazir Ahmed v. The State 2009 SCMR 523; Iftikhar Ahmad v. The State 2005 SCMR 272; Mst.Nazakat v. Hazrat Jamal and another PLD 2007 SC 453 and Mohammad Asghar and others v. The State 1997 MLD 2197 ref.

Sanaullah v. The State PLD 1991 FSC 186; Manzoor and others v. The State and others 1991 SCMR 2037; Mohammad Shafi v. The State 2010 SCMR 1009; Israr Ali v. The State 2007 SCMR 525; Saleemuddin and others v. The State 2011 SCMR 1171; Mir Mohammad alias Miro v. The State 2009 SCMR 1188; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Rukan Zaman v. Khizar Hayat and others 1988 SCMR 950; Mohammad Yaqub v. The State PLD 1969 Lah. 548; Ishtiaq Masih v. The State 2010 SCMR 1039; Noor Mohammad v. The State and another 2010 SCMR 97; Naeem Akhtar and others v. The State 1993 PCr.LJ 769; Naseem Akhtar and another v. The State 1999 SCMR 1744; Ahmad and another v. The State 1977 PCr.LJ 662; Rasool Bux and another v. The State 1980 SCMR 225 and Allah Ditta v. The State 1999 YLR 1478 distinguished.

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

----S. 164---Confession, recording of---Scope---Magistrate had admitted in his cross-examination, that during the time of reflection given to the accused for two hours, the accused persons were sitting in the court room and he was sitting in his chamber---Magistrate had made both the accused to sit together during the given period for reflection---Accused, in such situation, might not have exercised his will and might have been under the influence or intimidation of the co-accused---Possibility, in such case, could not be ruled out that one accused might have induced the other that both of them would confess their guilt but after recording of confessional statement of one accused, the other might have refused to have his confessional statement recorded; therefore, confessional statement of one accused already recorded could not be said to be voluntary, and the same could not be relied upon for conviction.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

----S. 164----Confession, recording of---Magistrate, after recording of confessional statement of the accused, remanded them to judicial custody through peon of the court, which was not in violation of the relevant instructions prescribed under the law for recording of the judicial confession.

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

----S. 164--- Confession--- Retracted confession, validity of--- Retracted confession could be made basis for conviction even in case of capital punishment, but it was conditional upon the fact that the confessional statement, on the face of it, appeared to be voluntary.

(e) Criminal trial----

----Benefit of doubt---Accused is entitled to benefit of doubt as a matter of right---Accused cannot be deprived of such benefit merely because there is only one circumstance which creates doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Abdul Qadir Halepota for Appellants.

Mohammad Iqbal Awan for the State.

YLR 2016 KARACHI HIGH COURT SINDH 2842 #

2016 Y L R 2842

[Sindh (Hyderabad Bench)]

Before Anwar Hussain, J

SHAHNAWAZ---Applicant

Versus

The STATE---Respondent

Cr. B. A. No.S-684 of 2015, decided on 23rd December, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 161----Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd; common intention---Bail before arrest, refusal of---Examination of witnesses by police---Affidavits of prosecution witnesses/close relatives favouring the accused could not be considered at bail stage and were not equal to statement under S. 161, Cr.P.C---Accused persons, brothers of the deceased, had murdered her during broad day light, as she had married out of her own free will---Accused persons had also caused hatchet blows on body of mother and sister-in-law of the deceased, who had intervened to save the deceased---Crime weapon, blood stained hatchet, had been recovered on pointation of accused---Accused earlier had filed two bail applications before court below along with affidavits of the prosecution witnesses, who had no objection as to grant of bail to the accused, which had already been dismissed---Affidavits of the prosecution witnesses, in said circumstances of the case, were nothing but somersault and the same could not be equated with the evidence in presence of statements recorded under S. 161, Cr.P.C---Deponents of said affidavits were close relatives including the mother and sister-in-law of the accused persons; therefore, the affidavits could not be of any help at bail stage, as the offence, being punishable with death or life imprisonment, was heinous---Complainant had lodged the FIR after coming to Pakistan from Dubai, which was plausible explanation for the delay in registration of the case---Accused had confessed to have murdered the deceased for said motive---Bail application was declined accordingly.

PLD 1997 SC 347; 2006 SCMR 1265; PLD 1990 SC 83; 2013 PCr.LJ 904; 1999 PCr.LJ 1696; 2004 PCr.LJ 550 and 1999 MLD 1254 Lah. rel.

Ahsan Gul Dhari for Applicant.

Dilbar Khan Leghari for the Complainant.

Irum Ahemd, D.D.P.P. for the State.

Lahore High Court Lahore

YLR 2016 LAHORE HIGH COURT LAHORE 1 #

2016 Y L R 1

[Lahore]

Before Ayesha A. Malik and Faisal Zaman Khan, JJ

Messrs RANA TEXTILES LTD. through Chief Executive---Appellant

Versus

SUI NORTHERN GAS PIPELINES LTD. through Authorized Attorney and others---Respondents

I.C.A. No.146 of 2015, heard on 3rd June, 2015.

Establishment of Office of the Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Arts. 2(2) & 11---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Ss. 11 & 42---Law Reforms Ordinance (XII of 1972), S. 3---Intra-Court appeal---Maladministration and Complaint Resolution Procedure---Appellant was consumer of natural gas who invoked jurisdiction of Ombudsman against issuance of incorrect utility bills---Validity---In case of a complaint filed before Ombudsman element of maladministration committed by agency or its employees had to be highlighted---Ombudsman was not to look into or decide about fate of act which followed act of maladministration---If the Ombudsman arrived at a conclusion that there was a consequence to an act of maladministration, he could make his recommendations under Art. 11 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, which could include undoing of the act done in consequence of act of maladministration---Cases to the extent of maladministration could be looked into and decided by the office of the Ombudsman, however, the issues which fell within the ambit of dispute resolution mechanism provided under Oil and Gas Regulatory Authority Ordinance, 2002 and NEPRA Act, 1997, the same were to be adjudicated upon and decided by available foras---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court as the same was unexceptionable and did not require any interference---Intra-court appeal was disposed of accordingly.

Capital Development Authority through Chairman and another v. Zahid Iqbal and another PLD 2004 SC 99; The Prince Glass Works Ltd. v. National Beverages Ltd. and another PLD 1987 Kar. 49; Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; Capital Steel Re-rolling Mills v. Managing Director SNGPL Lahore and another PLD 2012 Lah. 174; Almas Khanum v. Federation of Pakistan and others 1994 MLD 6 and Rahat Hussain v. Collector of Customs (Rev.) Customs House Karachi and 2 others 2003 CLC 1860 ref.

Muhammad Shahzad Shaukat for Appellant (in I.C.A. No.146 of 2015).

Hafiz Ahsan Ahmad Khokar for Appellant (in I.C.As. Nos.196 to 199 of 2015).

Umar Sharif for Respondents.

Date of hearing: 3rd June, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 15 #

2016 Y L R 15

[Lahore]

Before Ali Baqar Najafi, J

Syed MUHAMMAD ALI RAZA---Petitioner

Versus

PROVINCE OF PUNJAB, through DCO Lahore and others---Respondents

W.P. No.26026 of 2014, decided on 19th May, 2015.

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

---Ss. 7 & 8---West Pakistan Rules made under Muslim Family Laws Ordinance, 1961, R.3(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Divorce---Shia law---Issuance of certificate for effectiveness of divorce---Scope---Shia personal law of divorce was not so strict so as to make a woman slave of the man who would always remain unable to get divorce without his permission---Wife who had been delegated the right of divorce by the husband could pronounce divorce by sending a notice in writing to the Chairman Union Council---Such notice had to be sent to the Union Council of the union where wife to whom Talaq had been pronounced was residing at the time of the pronouncement of Talaq---Notice had to be sent to the Union Council where Nikah was registered in case of divorce by the wife with delegated powers by the husband---No illegality had been committed while issuing certificate of effectiveness of divorce---Constitutional petition was dismissed in circumstances.

Khawaja Muhammad Shoaib v. Nazim Union Council and others 2010 YLR 1; Syed Asad Raza Naqvi v. Mst. Saima Fatima and another 2014 MLD 254; Maj. Zahid Hussain v. Chairman, Arbitration Council, Cantonment Board, Lahore and 3 others PLD 2005 Lah. 644; Syed Ali Nawaz Shah Gardezi v. LT. Col. Muhammad Yusuf Khan, Commissioner, Quetta Division PLD 1962 (W.P.) Lah. 558; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Minas Parveen v. Additional Sessions Judge/Ex-Officio Justice of Peace, Shorkot and others PLD 2015 Lah. 231; Mst. Khurshid Mai v. The Additional District Judge, Multan and 2 others 1994 MLD 1255; Inamul Haque v. Mst. Sharifan Bibi and 2 others 1993 CLC 46 and Mst. Ghulam Zohra v. Faiz Rasool and others 1988 MLD 1353 ref.

Ijaz Ali Akbar Sabzwari for Petitioner.

Saad Rasool for Respondent No.3.

YLR 2016 LAHORE HIGH COURT LAHORE 29 #

2016 Y L R 29

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD BAKHSH---Petitioner

Versus

MUHAMMAD JUNAID and others---Respondents

W.P. No.8753 of 2015, decided on 11th June, 2015.

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

----S. 5, Sched---Civil Procedure Code (V of 1908), S.11---Decree of maintenance by Family Court---Bar to further suit---Applicability of S.11, CPC---Scope---Contention of mother of minor was that maintenance allowance which was fixed in 2009 was not sufficient due to hiking prices and growing needs of minor---Held, that suit for enhancement of maintenance was maintainable if circumstances were changed with passage of time---Section 11, C.P.C. was not applicable to the suit for enhancement of maintenance allowance.

Ejaz Ahmed v. Judge, Family Court and 5 others 2005 CLC 1913; Muhammad Ali v. Judge Family Court, Depalpur and 2 others 2010 YLR 520; Malik Ahmed Nawaz Awan v. Fariha Malik and another 2011 YLR 435; Muhammad Iqbal v. Mst. Nasreen Akhtar 2012 CLC 1407 and Muhammad Islam v. Mst. Rashdah Sultana and 4 others 2013 CLC 698 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court, in exercise of constitutional jurisdiction could not substitute findings of courts below unless they were against the law and evidence brought on record, and was a result of erroneous exercise of jurisdiction.

Mian Kamran Bin Lateef for Petitioner.

Aziz-ur-Rehman, A.A.-G. on Court's call.

YLR 2016 LAHORE HIGH COURT LAHORE 56 #

2016 Y L R 56

[Lahore]

Before Amin-ud-Din Khan and M. Sohail Iqbal Bhatti, JJ

MUHAMMAD RIAZ through Special Attorney---Petitioner

Versus

GHULAM HUSSAIN through Legal Heirs---Respondent

Civil Revision No.998 of 2006, decided on 15th December, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs, performance of---Evidence of plaintiff with regard to Talb-i-Muwathibat was contradictory---Pleadings could not be considered as evidence---Plaintiff had failed to prove performance of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law---Revision was dismissed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13 (1) (a)---"Sitting" or "Meeting" (Majlis)---Meaning.

Mutali v. Khizar Hayat and 6 others PLD 2012 Lah. 1; Oxford Advanced Learner's Dictionary 8th Edition; The Chember's Dictionary 12th Edition; Judicial Dictionary 16th Edition by K J Aiyar; Black's Law Dictionary 8th Edition; Feroz-ul-Lughat Urdu published by Feroz Sons (Pvt.) Ltd.; Muhammadan Law by D.F.; Ghulam Muhammad and another v. Mian Abdul Karim through L.Rs. 2014 YLR 774 and Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721 rel.

----S. 13---Talb-i-Muwathibat---Meaning.

Muhammadan Law by D.F. ref.

(d) Pleadings---

----Scope---Pleadings could not be considered as evidence.

Malik Noor Muhammad Awan for Petitioner.

Aamier Majeed Rana and Muhammad Abdul Rahman Janjua for Respondent.

Date of hearing: 24th November, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 80 #

2016 Y L R 80

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD ALI---Petitioner

Versus

The STATE and others---Respondents

W.P. No.10468 of 2014, decided on 21st April, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 176, 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---Death in police custody---Judicial inquiry---Application to Justice of Peace seeking direction to police for registration of case against the accused persons---Judicial Magistrate who conducted judicial inquiry declared the encounter as fake wherein one person lost his life while the other was injured---Lower Appellate Court in exercise of revisional jurisdiction set aside inquiry report of Judicial Magistrate and application filed by petitioner for registration of case against police was set aside by Ex-officio Justice of Peace---Validity---Judicial Magistrate did not examine official record of wireless control and log book containing police wireless statement of complainant of FIR, nor he recorded his statement---Report of Judicial Magistrate was without any basis therefore, such findings were without material---Judicial Magistrate acted on the statements of witnesses appeared on behalf of petitioner and did not consider documentary and medical evidence---No illegality, infirmity or irregularity in judgment passed by Lower Appellate Court and order passed by Ex-officio Justice of Peace was found---High Court declined to interfere in the orders passed by Lower Appellate Court---Petition was dismissed in circumstances.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 rel.

Ch. Ghulam Sarwar Nihung for the Petitioner.

Muhammad Nasir Chohan, AAG.

Munir Hussain Bhatti for Respondent No.4.

Mian Safwan Abbas for Respondent No.5.

Mian Pervaiz Hussain for Respondents Nos.7 to 10.

Naveed Ahmad Khawaja, for Respondent No.11.

YLR 2016 LAHORE HIGH COURT LAHORE 92 #

2015 Y L R 92

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD ARSHAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.1949 of 2014, heard on 25th June, 2015.

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

----S. 9(c)----Prohibition of possession, import or export and trafficking or financing trafficking of narcotic drugs, etc.---Nature and quantity of narcotic substance, determination of---Requirement---Case property kept in manner different from what described by prosecution--- Effect--- Psychotropic substance not alleged to have been recovered--- Psychotropic substance detected during chemical examination of narcotic materials--- Conviction for psychotropic substance without indictment---Benefit of doubt---Quantum of narcotic substances, determination of---Principles---Huge amount of heroin, charas, weapons with ammunition and cash amount were alleged to have been recovered from accused persons, while they were transporting the same by car---High Court in previous appeal against conviction had remanded case to Trial Court with direction to send case property to Chemical Examiner to ascertain remaining quantity and nature of the same and then to decide the case afresh in light of report of Chemical Examiner and after examining accused under S. 342, Cr.P.C. to the extent of said report---Trial Court, after post-remand proceedings, convicting accused under S. 9(c) of Control Narcotic Substances Act, 1997, sentenced them to imprisonment for life along with fine---Accused, through present appeal, only sought reduction of their sentence---High Court, while remanding previous appeal to Trial Court, had observed that Trial Court had failed to ascertain actual quantity of narcotic substances/case property produced in court and nature of same which was absolutely necessary for just decision of case, and that quantity of narcotics allegedly recovered from accused was relevant factor while deciding case under Control of Narcotic Substances Act, 1997, and that Trial Court, having made observations as to quantity and nature of case property in peculiar circumstances of case, did not send case property for its analysis and allowing de-sealing of same---Trial Court, as directed, sent remaining case property to chemical examiner for chemical analysis and reports whereof revealed that heroin and charas had been detected from case property, but no opium could be detected; psychotropic substance was also detected in suspected parcels of heroin and charas---Trial Court, in its judgment, had stated that plastic Toras in which case property had been secured were not sealed, and alleged packets were not in shoppers as was the case of prosecution, but the same were in white cloth, which reflected that case property was no more intact---Psychotropic substance was of no use for prosecution for the reasons that even if Psychotropic material had been detected from case property, firstly, it was not case of prosecution, secondly, said material was not found sealed and intact when produced before Trial Court, thirdly, matter was remanded to Trial Court but accused were never indicted for recovery of any psychotropic substance from their possession---Conviction of accused for said psychotropic substance was not warranted by law---Benefit of every doubt was to be extended to accused---Accused could only be convicted for narcotics as detected by Forensic Science Agency as per report and quantity of sent narcotics for chemical analysis mentioned in said report---High Court, maintaining conviction, sentenced accused to rigorous imprisonment for period already undergone by them; and amounts of fine were reduced---Appeal against sentence was allowed in circumstances.

Ameer Zeb's case PLD 2012 SC 380 ref.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

(b) Criminal trial----

----Benefit of doubt---Benefit of every doubt it to be extended to accused.

Malik Saeed Hassan for Appellants.

Ch. Muhammad Mustafa, Deputy Prosecutor General for the State.

Date of hearing: 25th June, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 110 #

2016 Y L R 110

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. RIFFAT SULTANA and others---Petitioners

Versus

NADIR HAYAT and others---Respondents

C.R. No.828 of 2005, heard on 12th November, 2014.

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

----Ss. 51 & 54---Qanun-e-Shahadat (10 of 1984), Art. 78---Suit for declaration---"Sale"---Ingredients---Mutation---Burden of proof---Pleadings---Scope---Plaintiff had neither mentioned date for striking of bargain nor witnesses in whose presence oral sale was finalised---Even terms and conditions of bargain were missing from the contents of plaint---Benefit of S. 51 of Transfer of Property Act, 1882 could not be claimed in the absence of requisite formalities being accomplished in the seriatim---Application of S. 51 of Transfer of Property Act, 1882 was not a question of law simpliciter which could be agitated at any stage of proceedings rather factual foundation within the said provisions of law had to be laid at the very inception of the case i.e. the pleadings of the parties---Plaintiff had failed to establish the exact venue, time, date, month, year and the names of the witnesses to show as to where, when and in whose presence the sale transaction was negotiated and finalized between the parties---Fact not asserted in the pleadings could not be proved by producing evidence and even if any evidence was led, the same had to be ignored---No one could be allowed to prove his case beyond the scope of his pleadings---Plaintiff had deviated from his pleadings---Pleadings in the shape of plaint or written statement could not be treated as a piece of evidence unless the same were proved by the production of evidence and adversaries were afforded opportunity to rebut the same through cross-examination of the witnesses and produced the evidence---Mere filing of conceding written statement by one of the defendants containing somersault plea could not be used for the benefit of plaintiff---Revenue officer cancelled the mutation in the common assembly but said order was not challenged by the plaintiff before the higher forum in the revenue hierarchy for a long period---Plaintiff was estopped to directly file suit in the civil court without availing the adequate remedy---Plaintiff had failed to prove the requisite essential ingredients of "sale"---If payment of sale had not been proved on record, there could be no sale in the eye of law---Plaintiff got attested mutation just to deprive the ladies from their property---Mutation per se was not a deed of title but merely indicative of some previous oral transaction of sale---Whenever any right of title had been asserted on the basis of mutation, burden would be on the beneficiary of transaction to prove the valid attestation of the same as well as the original transaction---Plaintiff had failed to prove the basic transaction of alleged sale---Mere admission of putting thumb impression or signatures by any person on some instrument without proving the contents thereof would not amount to prove its execution---Impugned judgments and decrees were result of misreading and non-reading of evidence on record and suffered from excess of jurisdiction exercised by the courts below---Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed with costs---Revision was accepted, in circumstances.

Inayat Ali Shah v. Anwar Hussain 1995 MLD 1714; Pir Wali Khan v. Niaz Badshah 2013 MLD 1106; Mir Laiq Khan v. Sarfraz Jehan 2013 MLD 1449; Mst. Ghazala Yasmeen v. Sarfraz Khan Durrani 2013 CLC 1406; Messrs Choudhary Brothers Ltd., Sialkot v. Jaranwala Central Co-operative Bank Ltd., Jaranwala 1968 SCMR 804; Ahmad Ali v. Bashir Ahmed 2013 YLR 1870; Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688; Fida Hussain v. Murid Sakina 2004 SCMR 1043; Muhammad Munir v. Muhammad Saleem 2004 SCMR 1530; Fida Hussain v. Abdul Aziz PLD 2005 SC 343; Muhammad Afzal v. Matloob Hussain PLD 2006 SC 84; Abdul Hameed v. Mst. Aisha Bibi 2007 SCMR 1808 and Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah 2007 SCMR 1884 rel.

Daulat Ali through legal heirs and 2 others v. Ahmad through legal heirs and 2 others PLD 2000 SC 792; Muhammad Nafeez Khan v. Gulbat Khan and others 2012 SCMR 235; Haji Abdul Ghafoor Khan through his L.Rs. v. Ghulam Sadiq through his L.Rs. PLD 2007 SC 433; Ch. Hakim Ali v. Sultan Khan and 3 others 2001 MLD 563; Muhammad Ashiq and 2 others v. Muhammad Aslam and another 2004 CLC 902; Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267(b); Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309; Abdul Aziz v. Sheikh Fateh Muhammad 2007 SCMR 336; Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817; Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293; Fayyaz Ali Khan and others v. Ashfaq Ali Khan and others 2004 YLR 2868; Sardar Ali v. Abdul Hameed and others 2000 YLR 2851; G.R. Syed v. Muhammad Afzal 2007 SCMR 433 and Zaitoon and others v. Muhammad Akram and others 2003 SCMR 1359 distinguished.

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

s----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court against concurrent findings of fact was limited but such findings could be interfered with if courts below had misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence which had direct bearing on the issue involved.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

----Pleadings in the shape of plaint or written statement could not be treated as a piece of evidence----Fact not asserted in the pleadings could not be proved by producing evidence---No person could be allowed to prove his case beyond the scope of his pleadings.

(d) Mutation---

----Mutation per see was not a deed of title.

Barrister Mian Belal Ahmed, Rashid Mehmood Gill and Mian Shaoor Ahmad for Petitioners.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 12th November, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 131 #

2015 Y L R 131

[Lahore]

Before Mirza Viqas Rauf, J

MUHAMMAD NAWAZ---Petitioner

Versus

KHIZAR HAYAT through L.Rs. and another---Respondents

Civil Revision No.2359 of 2006, heard on 22nd April, 2015.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 30, 13 & 2(d)----Limitation Act (IX of 1908), S.4---Pre-emption suit---Limitation--- Computation--- Performance of Talbs---Proof---Material discrepancies in evidence---Effect---Superior right of pre-emption---Principles---Completion of sale---Determination---Limitation expired during court holidays---Computation of limitation---Principles---Plaintiff filed suit to pre-empt sale on basis of superior right of pre-emption---Both Trial Court and appellate court dismissed the suit on ground of limitation and non-performance of Talbs---Validity---In terms of S. 2(d) of Punjab Pre-emption Act, 1991, "sale" would be completed with exchange for valuable consideration---No evidence was produced to show that sale price and possession of land had been passed on to vendee before attestation of mutation, in given circumstance, sale would be deemed to have completed on attestation of mutation, after which right of pre-emption had accrued---Plaintiff had performed Talb-i-Muwathibat before attestation of mutation, which was of no consequence---Plaintiff witness had not deposed about date of knowledge of sale and performance of Talb-i-Muwathibat and stated contradictory times of alleged performance of Talb-i-Muwathibat---Such discrepancies in evidence were material, and the same were fatal for right of pre-emption---Plaintiff had failed to prove performance of Talbs in terms of S. 13 of Punjab Pre-emption Act, 1991---Plaintiff, in terms of S. 30 of Punjab Pre-emption Act, 1991, was bound to file suit within four months from date of attestation of mutation---Said limitation, in the present case, expired during summer vacations of courts, and plaintiff had filed suit on first working day after vacations, so the suit was within time---Findings of courts below on point of limitation were not sustainable, and the same were set aside---As both plaintiff and vendee were admittedly co-sharers in same Khewat, both courts below had, therefore, rightly found that both of them were equally entitled to right of pre-emption---Concurrent findings of both courts below were based on proper appraisal of evidence---Plaintiff failed to point out any misreading or non-reading of evidence in impugned judgment and decree---Failure of plaintiff to prove performance of Talbs was sufficient to non-suit him---Findings of courts below were maintained except with regard to computation of limitation---Revision petition was dismissed in circumstance.

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

----S. 115----Revision---Concurrent Findings---Interference by revisional court--- Principles--- Jurisdiction under S.115, C.P.C. can only be exercised for correcting legal error committed by subordinate courts---Mere erroneous decision cannot be called for interference unless it was established that same is based on no evidence.

Jalal Khan v. Nawazish Ali and others 2005 CLC 1087; Fazal Rehman and others v. Abdul Qayyum and others 1996 SCMR 1201; Muhammad Tariq and 4 others v. Asif Javed and another 2009 SCMR 240; Wali Muhammad v. Saif-ur-Rehman 2004 CLC 610; Khushi Muhammad and 3 others v. Sher Muhammad and 6 others 1985 MLD 1432; Allah Bakhsh and others v. Mst. Wilayat Khatoon 1998 CLC 1982; Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582 and 1 Atiq ur Rehman. Minor 2 Din Muhammad v. Muhammad Amin PLD 2006 SC 309 ref.

Fazal Rehman and others v. Abdul Qayyum and others 1996 SCMR 1201; Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Mst. Rooh Afza v. Aurangzeb and others 2015 SCMR 92; 1. Atiq ur Rehman. Minor 2. Din Muhammad v. Muhammad Amin PLD 2006 SC 309; Gul Hussain Shah v. Mulazim Hussain Shah 1996 SCMR 294; Ghulam Murtaza v. Ghulam Haider 1996 SCMR 1284 and Wali Muhammad v. Saif-ur-Rehman 2004 CLC 610 rel.

Muhammad Siddique Garwah for Petitioner.

Mukhtar Abbas for Respondents.

Date of hearing: 22nd April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 152 #

2016 Y L R 152

[Lahore]

Before Muhmmad Tariq Abbasi and Qazi Muhammad Amin Ahmed, JJ

ADNAN MAHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.7 and Capital Sentence Reference No.1 of 2008, decided on 25th November, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Alteration of sentence of death to imprisonment for life---Accused killed 7 members of his family, including his father, mother, 3 sisters and 2 brothers---Dead bodies of 7 persons, were buried by accused in the storeroom of the house underneath the floor where accused along with his family members resided---Silence of accused for so long a period, and false explanation in respect of absence of his family members, heavily militated against his bald denial---Sufficient evidence, saddled accused with the exclusive knowledge of the presence of dead bodies inside the house, he lived; and his disclosure leading to recovery thereof---Memo reflected seizure of dead bodies from the place pointed out by accused---Contention of accused that absence of recovery memo of dead bodies, adversely affected the prosecution's case had no force---Prosecution had also successfully proved that accused, presented a woman, who impersonated herself to be his mother for the execution of Power of Attorney in his name, on the basis whereof he sold residential house---Such circumstance heavily reflected intention and motive of accused---Nothing was on record to suggest as to why real uncle of accused and Police Officials would implicate accused in an incident about which they were clueless---Statements of prosecution witnesses left no space to entertain any doubt regarding culpability of accused---Recovery of hammer and bughda, coupled with the findings of Medical Officers regarding nature of weapons used in the occurrence, had provided corroborative support of the prosecution's case---Prosecution having proved its case to the hilt, beyond a shadow of doubt, conviction of accused on all counts was maintained---Sentences of death awarded to accused were altered to imprisonment for life on each count with benefit of S.382-B, Cr.P.C.---Fine and compensation imposed, was kept intact---Sentences would run concurrently.

Prince Rehan Iftikhar Sheikh and Arslan Masood Sheikh for Appellant.

Ch. Faqir Muhammad for the Complainant.

Malik Muhammad Jaffer, Deputy Prosecutor General for the State.

Date of hearing: 25th November, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 177 #

2016 Y L R 177

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ASIF KAMAL---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.24570 of 2013, decided on 31st July, 2015.

(a) Public functionaries---

----Duties of---Scope---Public functionaries are required to exercise their authority in particular while dealing with public property and public funds in fair, transparent, just and reasonable manner to safeguard rights of the people of Pakistan.

Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 rel.

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

----S. 3---Exit from Pakistan (Control) Rules, 2010, R. 2 (1)---Constitution of Pakistan, Art. 199---Constitutional petition---Exit Control List---Petitioner was Chairman of Trust Investment Bank Ltd. and a criminal case alleging criminal breach of trust to the extent of Rs. 396.546 million was registered and his name was placed on Exit Control List---Validity---To travel abroad was a fundamental right of a person enshrined in the Constitution but no fundamental right guaranteed by the Constitution was absolute---State was empowered to impose certain 'reasonable' restrictions to regulate such right---No bar existed in exercising such right but interest of public at large was to be guarded as public policy---Prima facie the petitioner was instrumental in illegally misappropriating a large amount of public money and was not ready to return the same---High Court, in order to safeguard interest of public, declined to interfere in the action taken against him by placing his name on Exit Control List---Petition was dismissed in circumstances.

Prime Minister Inspection Team National Highway Authority v. Zaheer Mirza and others 2011 SCMR 371 rel.

Messrs United Bank Ltd. v. Federation of Pakistan 2014 CLD 544; Mian Ayaz Anwar v. Federation of Pakistan PLD 2010 Lah. 230; Jehangir Mehmood Cheema v. Government of Pakistan, Ministry of Interior through Secretary and 2 others PLD 2015 Lah. 301 and Munir Ahmad Bhatti v. Government of Pakistan, Ministry of Interior through Secretary and others PLD 2010 Lah. 697 distinguished.

Shahid Ikraam Siddiqui for Petitioner.

Babir Sohail Saeed for Respondent No.3.

YLR 2016 LAHORE HIGH COURT LAHORE 198 #

2016 Y L R 198

[Lahore]

Before Ali Akbar Qureshi, J

Haji GHULAM MUHAMMAD through L.Rs. and others---Petitioners

Versus

TAHIR MEHMOOD and others---Respondents

C.R. No.299 of 2003, heard on 3rd June, 2015.

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

----S.30---Objections against award---Petitioners did not file objection under S.30, Arbitration Act, 1940 at the time when award was submitted before Trial Court for making the same rule of court---Petitioner, in circumstances, admitted the award and was not permitted to raise any such objection at belated stage.

Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others 2007 CLC 1372; Bashir Ahmad and 21 others v. Shah Muhammad and another 2010 CLC 734; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.R.s and others 2013 SCMR 1300; Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Musaddaq Ali Khan, and others v. Sharif Rahat Qureshi, and others NLR 2001 Civil 137; Karim Bakhash v. Gul Rehman 1990 CLC 1200, Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; China International Water v. Pakistan Water and Power Development Authority PLD 2005 Kar. 670; Inayat Ullah Khan v. Obaidullah Khan and others 1999 SCMR 2702 and Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816 ref.

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

----S.115---Revision---Interference in concurrent findings on facts by courts below---Scope---Concurrent findings on facts not to be interfered in routine but in an extraordinary circumstances when courts below had committed serious jurisdictional error or legal infirmity.

Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Abdul Ghafoor and others v. Kallu and others 2008 SCMR 452 rel.

Malik Noor Muhammad Awan and Ejaz Ahmad for Petitioners.

Naveed Shaheryar Sheikh and Fayyaz Ahmad Kaleem for Respondents.

Date of hearing: 3rd June, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 209 #

2016 Y L R 209

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD KHALID MEHMOOD---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.1769 and Criminal Revision No.1057 of 2006, decided on 21st April, 2015.

Penal Code (XLV of 1860)---

----Ss.100, 302(b) & 302(c)---Qatl-i-Amd---Appreciation of evidence---Right of self defence, causing death---Sentence, reduction in---Complainant filed private complaint against two persons allegedly committed qatl-i-amd of his son---Accused was convicted by Trial Court and sentenced to imprisonment for life whereas his co-accused was acquitted of the charge---Validity---Occurrence was not denied by accused and prosecution version was not found correct in totality during investigation---Direct private complaint was filed in which the trial was held to ensuing the acquittal of co-accused and by accepting the plea of accused to be put forth during the trial but diversity was shown so far as conviction and sentence of accused was concerned---Right of private defence of his own body or two of his kith and kin could not be measured by a golden scale and perception of a man could vary to another in such like situation but once it accrued to its exercise, to its proof then the Court might not go in obsession to oblivion in accepting the same in a bodacious way in all down rightness---High Court transmuted conviction of accused under S. 302(b), P.P.C. to S. 302(c), P.P.C. and reduced imprisonment for life to imprisonment for ten years---Appeal was dismissed accordingly.

Altaf Hussain Bhatti and Sardar Sajjad Ahmad Dogar for Appellant.

Ch. Fakhar uz Zaman Khan for the Complainant.

Iftikhar ul Haq, Addl. P.G. for the State.

Date of hearing: 21st April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 237 #

2016 Y L R 237

[Lahore]

Before Shahid Karim, J

ZAHEER BROTHERS through Zaheer Ahmad---Appellant

Versus

MULTAN DEVELOPMENT AUTHORITY and others---Respondents

R.S.A. No.93 of 2005, heard on 18th May, 2015.

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

----S. 32 & Preamble--- Arbitration agreement---Dispute between the parties---Arbitration---Once dispute between parties had been referred to arbitration then only remedy was under Arbitration Act, 1940 and not through a suit.

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

----S. 32---Arbitration agreement---Stay of legal proceedings, power of---Section 32 of Arbitration Act, 1940 merely barred a suit to challenge a decision upon existence, effect or validity of an arbitration agreement or award otherwise than as provided in the Act.

Abdul Quddus Khan Tareen for Appellant.

Muhammad Amin Malik, MDA and Rana Muhammad Hussain, A.A.-G. for Respondents.

Date of hearing: 18th May, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 251 #

2016 Y L R 251

[Lahore]

Before Amin-ud-Din Khan, J

Mrs. PERIN J. DINSHAW---Appellant

Versus

MUBARAK ALI and another---Respondents

R.S.A. No.17 of 2006, decided on 11th February, 2014.

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

----Ss. 12 & 28---Civil Procedure Code (V of 1908), O.XLI, R.27---Qanun-e-Shahadat (10 of 1984), Arts.59, 60 & 61---Suit for specific performance of agreement to sell---Evidence of handwriting expert---Scope---Plaint did not mention whether agreement to sell was oral or written---Neither details of property nor date of performance of agreement was mentioned---Attesting witnesses had signed and thumb marked the draft of sale deed before signatures of vendors---Attesting witnesses of the sale deed had to testify the document on behalf of vendors as such witnesses had to testify the signatures of vendors/sellers before them (in their presence)---Plaintiff did not make it clear as to whether the receipt was original agreement or some oral agreement existed between the parties prior to said receipt---Alleged draft of sale deed did not mention the said receipt---Plaintiff did not move any application for correction of parentage of defendants despite objection raised in the written statement---Report of Handwriting Expert, being opinion of such expert, was not binding on the court under the law---Opinion of expert was relevant but same did not amount to conclusive proof---Opinion of the handwriting expert was a very weak type of evidence and same was only confirmatory or explanatory of direct or circumstantial evidence---Confirmatory evidence could not be given preference where confidence inspiring evidence was available---Signatures on disputed receipt were not found by High Court to be similar to the admitted signature---Plaintiffs' witness had stated that price of suit property was three million as against the value of Rs.100,000 mentioned by plaintiffs who were bound by the statements of their witnesses---First appellate court, in view of S.28 of the Specific Relief Act, 1877, could not pass the decree as price was grossly inadequate---Defendant witness' deposition as to value of suit property having not been challenged in cross-examination, would be accepted as such under the law---Evidence recorded by Trial Court beyond the scope of remand order could not be considered---First appellate court could not exclude statement of attorney of defendants from consideration---Defendants were not required by law to prove their denial of agreement to sell or the receipt of earnest money---Appeal was accepted in circumstances.

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

----Arts. 59, 60 & 61---Opinion of handwriting expert---Scope---Report of handwriting expert, being opinion of such expert, was not binding on the court under the law---Opinion of expert was relevant but same did not amount to conclusive proof---Opinion of handwriting expert was a very weak type of evidence and same was only confirmatory or explanatory of direct or circumstantial evidence---Confirmatory evidence could not be given preference where confidence inspiring evidence was available.

Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193 rel.

Ahmad Waheed Khan for Appellant.

Rana Muhammad Yaqoob, Special Attorney in person for Respondent No.1.

Malik Abdul Wahid for Respondent No.2.

Dates of hearing: 10th and 11th February, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 267 #

2016 Y L R 267

[Lahore]

Before Arshad Mahmood Tabassum, J

WAPDA through Chairman and 4 others---Petitioners

Versus

Messrs CHINA PETROLEUM ENGINEERING CONSTRUCTION CORPORATION---Respondent

Civil Revision No.337 of 2006, heard on 15th April, 2015.

Electricity Act (IX of 1910)---

----Ss.26, 26-A & 54-C---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Civil court, jurisdiction of---Detection bill---Licensee/ defendant issued detection bill to consumer/plaintiff on account of theft of electricity by way of tampering with meter---Trial Court and Lower Appellate Court decided the suit and appeal in favour of consumer/plaintiff---Validity---Notice issued to consumer/plaintiff was pursuant to provisions of S. 26-A, of Electricity Act, 1910 and mechanism for resolution of such dispute was given in S.26(6) of Electricity Act, 1910---Trial Court as well as Lower Appellate Court failed to consider objection raised by licensee/defendant with regards to maintainability of the suit---Suit was not maintainable and was liable to be dismissed on such score but Trial Court illegally assumed jurisdiction in the matter and passed judgment and decree without having any lawful authority and same illegality was perpetuated by Lower Appellate Court---High Court set aside the judgments and decrees passed by both the Courts below---Revision was allowed in circumstances.

Wapda and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others PLD 2012 SC 371 rel.

M.D. Shehzad Khan for Petitioners.

Ex part for Respondents.

Date of hearing: 15th April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 272 #

2016 Y L R 272

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

ALLA-UD-DIN---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

W.P. No.5415 of 2014, decided on 9th July, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154----Penal Code (XLV of 1860), Ss. 418 & 423---Constitution of Pakistan, Art. 199---Constitutional petition---Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect, dishonest or fraudulent execution of deed of transfer containing false statement of consideration---Powers of Justice of Peace---Scope---Information in cognizable offences---Registration of FIR---Principles---Civil dispute, determination of---Petition for registration of FIR against respondent-accused alleging that accused, showing himself absolute owner of subject property, had received earnest money as part payment of sale consideration, but the property later on turned out to have been pledged with Bank, and that accused had deprived petitioner from huge amount by fraud---Justice of Peace directed police to register case against respondent---Validity---Respondent-accused filed civil suit for cancellation of sale agreement, which was later withdrawn on basis of agreement between the parties---During execution proceedings of Bank recovery decree, application was filed for deposit of decretal amount on behalf of respondent-accused---Banking Court, allowing said application, directed to deposit decretal amount, but he failed to do so---No criminal liability against-petitioner was established---Ex-officio Justice of Peace, while passing impugned order, had not properly appreciated facts of the present case; order had been passed in mechanical manner, and same was, therefore, not sustainable in eyes of law---Order in question was set aside---Constitutional petition was accepted in circumstances.

Muhammad Ajmal Adil for Petitioner.

Wali Muhammad Khan, A.A.-G. and Sarfraz, A.S.-I. for Respondents.

Salman Arif for Respondent No.2.

YLR 2016 LAHORE HIGH COURT LAHORE 285 #

2016 Y L R 285

[Lahore]

Before Ch. Muhammad Iqbal, J

Sheikh GHULAM HUSSAIN---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER and others---Respondents

Writ Petition No.243-R of 2009, decided on 14th November, 2014.

(a) Scheme for the Management and Disposal of Available Urban Properties, 1977---

----Constitution of Pakistan, Art. 199---Constitutional petition---Allotment of evacuee land---Contention of petitioner was that land in question was sold to him in compliance of summary approved by the Chief Minister and he had become owner of said land after payment of amount---Validity---Property in question was evacuee land and same could be disposed of under Scheme for the Management and Disposal of Available Urban Properties, 1977---Chief Minister had no power to alienate or transfer/allot the evacuee land which was ultimately a property of public at large---Evacuee property should be disposed of under Scheme for the Management and Disposal of Available Urban Properties, 1977---If law required a thing to be done in a particular manner then it should be done in that manner only and not otherwise---Only Member Residual Properties was competent to dispose of evacuee land under Scheme for the Management and Disposal of Available Urban Properties, 1977---Confirmation/ sanction letter issued by the Secretary Colonies Department under the approval/ order of Chief Minister was illegal, without lawful authority and same was cancelled---Constitutional petition was dismissed in circumstances.

Nabi Bakhsh v. Ali Buksh PLD 1978 Revenue 15; Din Muhammad v. MBR and others 1992 ALD 582(1); Islam Din v. Muhammad Din PLD 1964 SC 842 and 1985 MLD 1574 ref.

Province of Punjab through Secretary Revenue and others v. District Bar Association Khanewal and others 2014 SCMR 1166; Al-Shafeeq Housing Society Haydrabad v. Pakistan Medical Association Karachi and 5 others PLD 1992 SC 113; Sindh People's Welfare Trust (Regd) through Secretary v. Government of Sindh through Secretary Housing Town Planning and Local Government and 2 others 2005 CLC 713; Ramzan's case 1997 SCMR 1935 and Member Board of Revenue Punjab Lahore v. Rafaqat Ali 1988 SCMR 2596 rel.

(b) Administration of justice---

----If law required a thing to be done in a particular manner then it should be done in that manner only and not otherwise.

Ramzan's case 1997 SCMR 1935 and Member Board of Revenue Punjab Lahore v. Rafaqat Ali 1988 SCMR 2596 rel.

Ch. Muhammad Iqbal Khan for Petitioner.

Hafiz Muhammad Yousaf for Respondent No.1.

Mian Muhammad Ilyas and Rana Mushtaq Ahmad for Respondent No.4.

Ms. Asma Hamid, Assistant Advocate General.

YLR 2016 LAHORE HIGH COURT LAHORE 296 #

2016 Y L R 296

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

SHEHZAD ALAM---Petitioner

Versus

SECRETARY, HOUSING AND PHYSICAL PLANNING and others---Respondents

Writ Petition No.17865 of 2011, decided on 16th April, 2015.

(a) Punjab Procurement Rules, 2009---

----R. 19---Constitution of Pakistan, Art. 199--- Constitutional petition---Blacklisting of contractor by Authorities---Life time ban---Petitioner failed to fulfil contract within the specified period, resultantly authorities blacklisted him for life time---Validity---Petitioner could not fulfill his obligation to complete awarded contract within a specified period of time but there was no material available on record that his performance in previous contracts awarded to him, if any, was consistently poor---No notice as envisaged in R.19 of Punjab Procurement Rules, 2009, was issued to petitioner prior to passing of order in question---Petitioner was an approved contractor on Government list and his blacklisting had cast stigma on it---Principles of natural justice demanded that due opportunity should have been provided to him to defend his case before passing such order---High Court set aside the order passed and imposed cost upon the authorities---Petition was allowed in circumstances.

Erusian Equipment and Chemicals Ltd., v. Messrs State of W.B. (SC) 1975 AIR (SC) 266 and Raghunath Thakur v. State of Bihar (1989) 1 (SCC) 229 rel.

(b) Administration of justice---

----Wrong done---Penalty, quantum of---Decision which overrides Fundamental Right must correspond to wrong done---Punishment should be commensurate to the wrong done.

Ranjit Thakur v. Union of India 1987 (4) SCC 611 rel.

Rana Mushtaq Ahmad Toor for Petitioner.

Waqar A. Sheikh for Respondents.

Siraj-ul-Islam Addl. A.G.

YLR 2016 LAHORE HIGH COURT LAHORE 304 #

2016 Y L R 304

[Lahore]

Before Muhammad Khalid Mahmood Khan, J

LAHORE REGENCY (PVT.) LTD.---Appellant

Versus

WYNDHAM HOTEL and others---Respondents

F.A.O. No.300 of 2013, decided on 11th February, 2015.

Civil Procedure Code (V of 1908)---

----O. XL, R. 1, O. XXXIX, Rr. 1 & 2, O. XXXVIII, R. 5 & O. I, R. 10----Suit for recovery of damages---Appointment of receiver--- Temporary injunction--- Attachment of franchise fee before judgment---Permissibility---Parties to suit---Execution of decree, mode of---Plaintiff filed suit for damages against defendants, foreign companies, and the other defendants, who were franchise holder of said companies, for loss caused due to violation of Letter of Intent---Trial Court, while declining applications of plaintiff for grant of temporary injunction and attachment of franchise fee, deleted names of defendants, franchise holders, from the suit; revisional court maintained the order of Trial Court---Plaintiff contended that defendants, foreign companies, were doing business abroad and were not maintaining assets in Pakistan, except the franchise fee payable by defendants (franchise holders) which be attached till pendency of the suit to make recovery of damages possible in case decree was passed---Validity---Names of defendants, franchise holders, had already been deleted from array of defendants; thus, case of plaintiff to the extent of attachment of franchise fee before judgment could not proceed---Plaintiff had claimed damages only against defendants, foreign companies---Plaintiff, in case a decree was passed, might file application for execution of decree for attachment or execution of decree against the franchise fee---Restraining order, as the suit had not been decreed so far, could also not be passed on probability---Appeal against order was dismissed in circumstances.

Ch. Bashir Hussain Khalid for Appellant.

Syed Hassan Ali Raza and Asad Javed for Respondents Nos.1 and 2.

Hafeez-ur-Rehman Ch. for Respondent No.3.

Rustam Khan Parhar for Respondent No.4.

YLR 2016 LAHORE HIGH COURT LAHORE 307 #

2016 Y L R 307

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD YOUNAS GUJJAR and 2 others---Petitioners

Versus

DISTRICT POLICE OFFICER and others---Respondents

W.P. No.14215 of 2015, decided on 24th June, 2015.

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

----Ss. 491, 561-A, 497, 498 & 369---High Court (Lahore) Rules and Orders, Vol V, Part-F, Chap. 4, R.3----Constitution of Pakistan, Arts.199 & 10-A---Penal Code (XLV of 1860), S. 392---Constitutional petition---Robbery---Habeas Corpus, petition for---Scope---Powers of Magistrate---Scope---Conversion of application under S. 491, Cr.P.C. into petition under Ss. 497/498, Cr.P.C---Permissibility---Right to fair trial---Accused were produced before Magistrate in a case registered under S. 392, P.P.C., who sent them to judicial remand for identification parade---Respondent filed application under S. 491, Cr.P.C. regarding same accused before Sessions Judge under which said accused were produced before court---Court, finding accused subjected to torture after their medical examination, released them on bail by converting said application into petition under Ss. 497/498, Cr.P.C.---Court, while releasing accused, also directed police authorities to transfer investigation of their case---Magistrate, having been apprised of production and release of accused recalled and reviewed the first order of remand, and directed SHO concerned to register case against Investigating Officer for producing, and obtaining judicial remand regarding, some other persons instead of actual accused---Petitioners, police officials, contended that Sessions Court had wrongly admitted accused to bail and made wrong observations as to investigation of case---Validity---Magistrate had not asked about identity of accused before sending them to judicial remand---Magistrate had recalled earlier order and directed registration of case against petitioner without probing into matter or issuing any direction for investigation to determine whether act of petitioner was in fact matter of impersonation or not---Whole process adopted by Magistrate had been performed in hasty manner---Magistrate was competent to recall or review earlier order if same had been procured through misrepresentation, or fallen within ambit of S. 369, Cr.P.C. and had amounted to be against principles of natural justice---Magistrate had not adopted proper procedure to scrutinize if the earlier order had been procured through misrepresentation---Impugned order passed by Sessions Court with regard to transfer of investigation was also against proper procedure of law on the subject---Conversion of application filed under S. 491, Cr.P.C. into petition under Ss. 497 & 498, Cr.P.C. was well supported by delegation of powers given by High Court to Sessions Court as provided under R. 3, Part-F, Chapter 4, Volume V of High Court (Lahore) ,Rules and Orders---High Court observed that Sessions Court could only secure liberty of person by ordering their immediate release from unlawful detention and could not grant any other relief in respect of allegations of wrongful detention or any allegations of torture or some other inhumane acts committed on his person---Sessions Court should have refrained from making said observations in the order to enable both parties to have access to fair trial, which was otherwise guaranteed under Art.10-A of the Constitution---Impugned order passed by Sessions Judge to the extent of its said observation was set aside---Constitutional petition was disposed of accordingly.

Kh. Muhammad Rafiq v. The State PLD 1967 Lah. 833 and Mohsin Raza v. Dr. Bashir Ahmad and another 1980 PCr.LJ 180 rel.

(b) Administration of justice---

----'Justice delayed is justice denied'; 'Justice hurried is justice buried' is equally applicable---Balance is to be struck between the two principles.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Sharif Shar v. The State 2000 PCr.LJ 1882, Muhammad Javed v. The State 2001 MLD 1206 and Mst. Kishwar Bibi and others v. Mst. Fazal Bibi and 2 others PLD 2004 Lah. 717 rel.

Muhammad Zubair Khalid Chaudhry for Petitioners.

Ashfaq Ahmad Kharal, Assistant Advocate-General with Riaz, A.S.-I.

Hafiz Ansar-ul-Haq for Respondent No.2.

Malik Ali Hussain Thaheem for Respondent No.3.

YLR 2016 LAHORE HIGH COURT LAHORE 321 #

2016 Y L R 321

[Lahore]

Before Ch. Mushtaq Ahmad, J

Mst. YASMEEN RIAZ through Special Attorney ---Petitioner

Versus

RIAZ AHMAD and 7 others---Respondents

Civil Revision No.897-D of 2014, decided on 25th November, 2014.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 3 & O. VII, R. 11---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell--- Compromise--- Scope--- Parties reached at compromise during pendency of suit---Plaint was rejected on the ground that plaintiff was not in possession of suit property and he had not prayed for recovery of possession as consequential relief; therefore, the suit was not maintainable--- Validity--- Parties had reached a compromise during pendency of suit---Defendants had conceded that compromise had been voluntarily made by the parties and they had no objection if suit was decreed in favour of plaintiff---Suit could be adjusted wholly or in part by any lawful agreement or compromise to the satisfaction of court---Where defendant had satisfied the plaintiff with regard to whole or any part of the subject matter of suit, court should order such agreement, compromise or satisfaction (to be recorded) and should pass decree in accordance therewith---Making a prayer for possession in a suit for specific performance was not necessary---Relief by way of delivery of possession in a suit for specific performance would spring out of contract for sale and would be incidental to main relief of specific performance granted in the suit---Both the courts below had committed illegality in exercise of jurisdiction and wrongly rejected the plaint---Impugned judgments and decrees passed by both the courts below were set aside and suit filed by the plaintiff was decreed in terms of compromise---Revision was accepted, in circumstances.

Rahim K. Sheikh v. United Bank Limited 1998 SCMR 1504; M/s Arokey Limited and others v. Munir Ahmed Mughal and 3 others PLD 1982 SC 204 and Khadim Hussain and 2 others v. Waris Ali and another 2005 CLC 1144 rel.

Sheikh Iftikhar Ahmed for Petitioner.

Khurram Masood Kayani for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 328 #

2016 Y L R 328

[Lahore]

Before Zafarullah Khan Khakwani, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

ANWAR ALI---Respondent

Civil Revision No.191-D of 2001, decided on 1st July, 2014.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---Suit for declaration---Lease of agricultural land---Grant of proprietary rights to lease holders under Temporary Cultivation Scheme---Proprietary rights of the suit property were not granted in favour of the plaintiff on the ground that he was in government service at the time of grant of original lease---Validity---Plaintiff was not in government service and was eligible for grant of lease at the time of grant of original lease under Temporary Cultivation Scheme---Plaintiff had paid all the requisite dues to the Government for the whole period of tenancy i.e. from 1975 to 1980 and valuable right had accrued in his favour during such period---Plaintiff filed an application for grant of proprietary rights within stipulated period---Possession of plaintiff on the suit property had also been established from the record---No bar existed for grant of proprietary rights to government servants---Neither the courts below had either misread the evidence nor ignored any material piece of evidence while recording findings of fact---No irregularity, jurisdictional defect or any miseading and non-reading of evidence was pointed out in the impugned judgments---Revision was dismissed in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not upset the concurrent findings of fact recorded by the courts below while exercising revisional jurisdiction---Revisional jurisdiction was purely for correction of jurisdictional errors and material irregularities---Revisional Court had no powers of court of appeal.

Shiv Shakti Co-op. Housing Society, Nagpur v. Messrs Swaraj Developers and others AIR 2003 SC 2434; Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 and Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 rel.

----S. 115---Revision---Scope---Revision was not a right but was a privilege and was available only where right of appeal had not been given whereas appeal was a right created by the statute.

Muhammad Bashir Lakhesir, Asstt. Advocate General with Waseem Hassan Raja, Naib Tehsildar Dahranwala and Asad Sher, Halqa Patwari for Petitioners.

Nadeem Iqbal Chaudhry for Respondent.

Date of hearing: 1st July, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 343 #

2016 Y L R 343

[Lahore]

Before Aslam Javed Minhas, J

ASGHAR ALI---Petitioner

Versus

The STATE and others---Respondents

Cr. Misc. No.2536-B of 2015, decided on 5th August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.376---Rape---Bail, grant of---Further inquiry---According to DNA Analysis Report, accused did not commit rape with the daughter of the complainant---Medico Legal Report, had shown that gang-rape was not committed with the victim girl---If zina was committed, same was with her own free will---Such being a daylight occurrence it was not possible for accused and his co-accused to abduct forcibly daughter of the complainant among so many people working in the fields; and to take her to their dera for commission of gang-rape---No eye-witness of the occurrence of abduction was available on record---Accused had been arrested, but nothing had been recovered from his possession---According to report of Police Inspector, accused had been declared innocent---Case of accused required further inquiry, he was admitted to bail, in circumstances.

Malik Muhammad Saleem for petitioner.

Rao Rehman Ali for the Complainant.

Ch. Muhammad Akbar, DPG along with Javed SI.

YLR 2016 LAHORE HIGH COURT LAHORE 356 #

2016 Y L R 356

[Lahore]

Before Amin-ud-Din Khan, J

SHAMSHAD ALI---Petitioner

Versus

KHAN MUHAMMAD and 2 others---Respondents

Civil Revision No.1239-D of 2004, heard on 4th June, 2015.

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

----Art. 120---Civil Procedure Code (V of 1908), O.VII, R. 6---Limitation---Fraud---Proof of---Defendants had been recorded in Jamabandi/record of rights as owners of suit property since its transfer in their favour---Impugned sale mutation was duly incorporated in the Jamabandi after attestation of the same---If any person claimed that any transaction was fraudulent then he was required to plead fraud specifically and prove the same by producing concrete, convincing and reliable evidence---Important question in the present case, was that of limitation---Plaintiff was to satisfy on the point of limitation only then the principle of shifting of onus would have come into picture---Six years period had been provided to sue when the right for the same had accrued---Present suit had been filed more than four years after the prescribed period of limitation---Plaintiff was required to plead grounds for exemption from limitation law in accordance with O. VII, R. 6, C.P.C.---No detailed pleadings with regard to commission of fraud had been mentioned which were necessary---Plaintiff was not entitled for exemption from period of limitation---Present suit was barred by law---Findings recorded by the courts below were in accordance with the evidence available on record and in accordance with law---No misreading, non-reading or procedural defect had been pointed out in the findings recorded by the courts below---Revision was dismissed in circumstances.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Mst. Rashida Hussain v. Qazi Aslam Hussain and 8 others PLD 1983 Lah. 687 and Ghulam Muhammad v. Malik Abdur Rashid and 2 others 2002 CLC 295 rel.

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

----Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation---Period for filing a suit for declaration had been provided as six years.

----S. 54---Punjab Municipal Act (III of 1911), S. 214---Punjab Government Notification No. 15246-74/2237-LRV dated 30-12-1974---Punjab Government Notification No. 3097-8/1511-LRI dated 22-11-1978--- Sale--- Registration of---Applicability of S. 54 of Transfer of Property Act, 1882---Scope---Section 54 of Transfer of Property Act, 1882 was not applicable in the rural areas of Punjab.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not substitute its findings against concurrent findings of facts recorded by the courts below unless there was some misreading and non-reading of evidence or some procedural defect fatal to the case.

Malik Junaid Farooq for Petitioner.

Syed Qalab Hussain for Respondents.

Date of hearing: 4th June, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 363 #

2016 Y L R 363

[Lahore]

Before Shezada Mazhar, J

TAIMUR ASAD KHAN---Petitioner

Versus

HIGHER EDUCATION COMMISSION and others---Respondents

Writ Petition No.32898 of 2013, decided on 6th January, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution--- Degree, verification of---Procedure---Equivalence certificate---Scope---Degree which was required attestation was issued by a University duly recognized/registered with Higher Education Commission---Attestation of degree was required for getting employment and not for further education---"Equivalence of Higher Education Commission" would be required if a candidate wanted to get attestation of any Bachelor or Matric Degree obtained from abroad---Higher Education Commission had failed to produce any law, rules, regulations with regard to verification of degree/transcripts/ diplomas---Commission was directed to verify whether the degree presented by the petitioner was issued by the concerned School or not and if degree was issued by the said School then same be attested within a specified period---Constitutional petition was accepted in circumstances.

Miss Mobeen Sheikh and others v. The Federation of Pakistan and others 1998 SCMR 2701 distinguished.

Muhammad Umar Malik for Petitioner.

Mehboob Azhar Sheikh for Respondent No.2.

Pervaiz Iqbal Gondal, Deputy Attorney General.

Nazir Hussain Director HEC, Lahore.

YLR 2016 LAHORE HIGH COURT LAHORE 383 #

2016 Y L R 383

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD SIDDIQUE and others---Petitioners

Versus

Mst. AYESHA BIBI and others---Respondents

C.R. No.2017 of 2002, decided on 5th June, 2015.

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

----S. 42---Suit for declaration on the basis of inheritance---Limitation---Findings of Trial Court not challenged in appeal---Effect---Plaintiffs filed suit for declaration on basis of inheritance claiming that their father and husband was son of deceased/ mother who died leaving estates at two different places, but he had been given his share only in her one estate and was kept in ignorance regarding the other one and that his share had been illegally transferred in favour of defendant, husband of the deceased---Trial Court dismissed the suit on ground of limitation, whereas appellate court setting aside judgment and decree of Trial Court decreed the same---Contention raised by defendant was that the deceased was issueless and that predecessor of plaintiffs had never challenged the disputed mutation in his life time---Plaintiff took plea that limitation was not applicable in cases of inheritance---Validity---Trial Court had decided that husband and father of plaintiffs was son of the deceased and disputed mutation had been illegally sanctioned---Defendants had not assailed findings of Trial Court nor had they filed any cross objection against decree of Trial Court before appellate court---Findings of Trial Court had, therefore, attained finality and the same could not be challenged in revision petition---Defendants, in the present appeal, could only assail findings of appellate court on point of limitation and not on other issue---Disputed mutation was void being outcome of fraud---Limitation against fraudulent act started from day of knowledge of fraud---Defendants had specifically asserted in their plaint that they had come to know about fraudulent mutation few days before filing suit¬---Succession of Muslim could not be defeated by law of limitation---Suit of plaintiffs was within time---Fraud vitiated all solemn acts---No illegality or irregularity was pointed out in impugned judgment and decree of appellate court, and the same was maintained---Revision petition was dismissed in circumstance.

Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Muhammad Rustam and another v. Mst.Makhan Jan and others 2013 SCMR 299; Abdul Haq and another v. Mst.Surrya Begum and others 2002 SCMR 1330; Muhammad Farooq and 5 others v. Muhammad Haneef and others PLJ 2011 SC 44; Nawab Khan and others v. Rehmat Bibi and others 2000 YLR 621; Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Majeeduddin Khan and others v. Sardar Khan and others 1990 SCMR 1031 and Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462 ref.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 rel.

(b) Fraud---

----Limitation in cases of fraud---Limitation against fraudulent act starts from day of knowledge of fraud.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 rel.

----Fraud vitiates all solemn acts.

(d) Islamic law---

----Inheritance---Scope and limitation---Succession of Muslim could not be defeated by Law of limitation---Islamic law of succession was divine law and had preference on man-made law---In Islam, succession opens on death of owner and his legal heirs become owner of their respective share according to Islamic law of inheritance on day of death of owner of estate.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 rel.

Khalil Ahmad Ali for Petitioners.

Zahoor-ur-Haq Chaudhry for Respondents.

Date of hearing: 1st April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 393 #

2016 Y L R 393

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

HABIB KHYZER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1059 of 2011, heard on 3rd February, 2015.

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

----S. 7(c)(h)---Penal Code (XLV of 1860), S.324---Act of terrorism, attempt to commit qatl-i-amd---Appreciation of evidence---Previous enmity existed between the parties, and occurrence had taken place on the road side out of the District Courts premises---Offences under S.7(c) & (h) of Anti-Terrorism Act, 1997, were not attracted---Convictions and sentences recorded by the Trial Court under S.7(e)(h) of the Anti-Terrorism Act, 1997, were set aside, in circumstances.

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

----S.324---Attempt to commit qatl-i-amd---Appreciation of evidence---Incident was a daylight occurrence---Co-accused were acquitted, because effective firing was not attributed to them---Maxim "falsus in uno falsus in omnibus" had no universal application---Court was to sift the grain from the chaff---Credibility of eye-witnesses, could not be said to have been shattered due to acquittal of co-accused---All said eye-witnesses, were cross-examined at length, but their evidence could not be shaken---Said witnesses corroborated each other on all material aspects of the case to the extent of accused; their evidence (to the extent of accused) was straightforward, trustworthy and confidence inspiring---Medical evidence, had fully supported the ocular account, furnished by eye-witnesses---Alleged recovery of .30 bore pistol from the possession of accused in absence of positive report of Forensic Science Laboratory, was inconsequential---Prosecution had proved its case against accused beyond shadow of doubt through ocular account supported by medical evidence---Accused had failed to prove his defence plea and Trial Court had rightly discarded the plea with sufficient reasons---Accused had rightly been convicted by the Trial Court under S.324, P.P.C.---Conviction and sentence awarded by Trial Court to accused under S.324, P.P.C., were maintained, with benefit of S.382-B, Cr.P.C.---Appeal of accused to that effect, was dismissed.

Ms. Nighat Saeed Mughal for Appellant.

Sahir Mehmood Bhatti for the Complainant.

Tariq Javed, DPP for the State.

Date of hearing: 3rd February, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 415 #

2016 Y L R 415

[Lahore]

Before Ayesha A. Malik, J

PUNJAB EDUCATION BOARDS EMPLOYEES through Chairman---Petitioner

Versus

PUNJAB BOARD COMMITTEE and others---Respondents

W.P. No.16398 of 2012, decided on 30th April, 2014.

Punjab Procurement Rules, 2014---

----Rr.4 & 67---Constitutional of Pakistan, Art. 199---Constitution petition---Maintainability and locus standi---Peittioner sought that contract, awarded to respondent, be declared as illegal on ground that large amount of money had been siphoned away by the private party for execution of the same---Authorities took the plea that no details of alleged illegality or fraud had been given in the present petition---Validity---Relevant years, regarding which disputed contract was awarded, had already been concluded; thus the contract was no more subsisting between the authorities and the party---Contract, in fact, did exist between the private party and authorities in the manner as alleged by petitioners, as there were more than one such contract---Grievance of petitioner on basis of public interest stood negated by conclusion of work in question---Petitioner, did not append any document to show legal basis as to formation of their federation and as to who was competent authority for purposes of authorization---Petitioner, not being aggrieved person, had no locus standi to file present petition, as their right or interest was not adversely affected in any manner due to award to contracts in question---Constitutional petition was dismissed in circumstances.

Akhtar Shah for Petitioners.

Mehboob Azhar Sheikh for Respondents.

Mrs. Samia Khalid, A.A.-G.

Ali Masood Hayat for Respondent No.3.

Syed Hassan Ali Raza and Asad Javed for Respondent.

Date of hearing: 25th February, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 423 #

2016 Y L R 423

[Lahore]

Before Amin-ud-Din Khan and Mahmood Ahmad Bhatti, JJ

QASIM RAFIQUE---Appellant

Versus

MUHAMMAD RAFIQUE through L.Rs. and others---Respondents

R.F.A. No.368 of 2010, heard on 7th April, 2015.

(a) Gift---

----Ingredients---Burden of proof---Oral gift---Plaintiff did not spell out the details with regard to the date, time and place as to when and where the alleged oral gift was made---No instrument was required to constitute a gift nor registration of the same was required---Factum of oral gift was never reported to the Patwari Halqa---Plaintiff had not specified the names in his plaint in whose presence alleged gift was made---Plaintiff could not be allowed to flesh out in his deposition---Party could not be allowed to lead evidence with regard to material fact unless it had laid down the foundation in its pleadings---Onus would be on the beneficiary in case of disputed transaction to prove its execution, correctness, validity and legality thereof---Donee was bound to prove that donor had made gift to him voluntarily, without duress and in all senses and he accepted the same and possession was delivered to him in its wake---If any of the ingredients/components was missing then claim of the donee would be rejected outright---Donee was required to prove offer of gift, its acceptance and delivery of possession by leading cogent, convincing, sound and incontrovertible evidence---Declaration and acceptance of gift were critical to the validity of the same but sine qua non thereof was the delivery of possession to the donee---Plaintiff had failed to prove the factum of oral gift---Donee had never been in possession of the suit land as an owner thereof by virtue of the purported gift made to him---No mis-reading or non-reading of evidence had been pointed out in the impugned judgment passed by the Trial Court---Appeal was dismissed in circumstances.

Muhammad Zaman Khan v. The Additional Chief Land Commissioner 1986 SCMR 1121; Khurshid Ahmad and 4 others v. The Senior Member, Federal Land Commission and 5 others PLD 1989 Kar. 610; Hakim Khan v. Aurangzeb and another PLD 1975 Lah. 1170; Muhammad Ijaz v. Khalida Awan 2010 SCMR 342; Maulvi Abdullah v. Abdul Aziz 1987 SCMR 1403; Mst. Nagina Begum v. Tahzin Akhtar 2009 SCMR 623; Ghulam Zainab and another v. Said Rasool and 8 others 2004 CLC 33; Mst. Imam Sain and 4 others v. Dr. Shahid Mahmood and another 2006 YLR 1102; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwala 1968 SCMR 804; Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhamad PLD 1976 SC 469; Hakim Ali v. Muhammad Salim 1992 SCMR 46; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151; Mubarak Ali and others v. Khushi Muhammad and others PLD 2011 SC 155; Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562; Aurangzeb through L.Rs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368; Muhammad Shafi and others v. Sultan 2007 SCMR 1602; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Province of Punjab v. Ibrahim and Sons 2000 SCMR 1172; Suo Motu Case No.10 of 2009 2010 SCMR 885; Sh. Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460; Zulfiqar and others v. Shahadat Khan PLD 2007 (sic) 582; Malik Muhammad Faisal v. State Life Insurance Corporation through Chairman 2008 SCMR 456; Aurangzeb through L.Rs and others v. Muhammad Jaffar and another 2007 SCMR 236; Muhammad Saee v. Mst. Sharaf Elahi and another 2010 SCMR 1358; 2010 SCMR 1370; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Mst. Khurshid Bibi and others v. Ramzan and others 2006 CLC 1023; Mst. Kalsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Barkat Ali through Legal Heirs and others v. Muhammad Ismail, through Legal Heirs and others 2002 SCMR 1938; Saleem Khan and 9 others v. Karim Khan 2006 CLC 1006; Nawab Din through Legal Representatives v. Said and 6 others 2005 YLR 2024; Liaqat Ali v. Province of Punjab through D.C.O. Gujrat and 6 others 2005 YLR 2529; Muhammad Idrees v. Mst. Zeenat Bibi 2005 SCMR 1690; Mst. Shafqat Parveen v. Muhammad Iftikhar Amjad and others 2012 SCMR 1602 and Muhammad Yaqoob through Legal Heirs v. Feroz Khan and othes 2003 SCMR 41 rel.

(b) Pleadings---

----Party could not be allowed to lead evidence with regard to material fact unless it had laid down the foundation in its pleadings.

Ch. Ghulam Din Aslam for Appellant.

Tariq Zulfiqar Ahmad Chaudhry for Respondents.

Date of hearing: 7th April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 439 #

2016 Y L R 439

[Lahore]

Before Eurm Sajad Gull, J

SHAHZAD ASGHAR GONDAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.8660-B of 2015, decided on 1st September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Pakistan Telecommunication (Re-organization) Act (XVII of 1996), S.31(1)---Penal Code (XLV of 1860), Ss.420 & 109---Illegal telephone gateway exchange and cheating---Pre-arrest bail, refusal of---Accused was guilty of operating illegal gateway exchange and causing loss to government exchequer---Accused was creating serious security threats as communication via unknown routes could not be tapped or monitored by security intelligence agencies---No mala fide of Federal Investigating Agency to falsely implicate accused was on record---Offences under Ss. 36 & 37 of Electronic Transactions Ordinance, 2002, were not bailable---Accused was required for further investigation and granting pre-arrest bail to accused would mean that he was exempted from joining investigation and by not joining investigation prosecution case could suffer for want of further recoveries---Pre-arrest bail was refused in circumstances.

Sarwar Sultan v. The State and another PLD 1994 SC 133 and Malik Aqeel v. The State 2011 SCMR 170 rel.

Rana Imtiaz Hussain for Petitioner.

Muhammad Almas Standing Counsel along with Fakhar Abbas, SI (FIA) for Respondents.

Muhammad Naveed Chohan for PTA.

YLR 2016 LAHORE HIGH COURT LAHORE 452 #

2016 Y L R 452

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Sher BAZ KHAN and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 3 others---Respondents

Writ Petition No.10336 of 2010, decided on 29th July, 2015.

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

----S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Application for setting aside judgment---Locus standi to file application---Concurrent orders passed by two courts below---Scope of constitutional petition---Petitioners assailed judgment and decree passed on the basis of compromise between both the parties---Trial Court as well as Lower Appellate Court declined to set aside the consent judgment and decree---Validity---Predecessor in interest of petitioners was alive till the year, 1997, but he neither objected to decree in question nor filed any application under S.12(2), C.P.C., during his lifetime when it was fully in his knowledge---Petitioners who are legal heirs had no locus standi to file application under S. 12(2), C.P.C.---Advocate who appeared on behalf of predecessor in interest of petitioners and got the statement recorded, was not pleaded as party to the application under S.12(2), C.P.C., filed by the petitioners---Scope of constitutional petition had become very limited in case of concurrent findings of courts below---Both the decisions of courts below were concurrently against petitioners and the same were immune from interference by High Court in its constitutional jurisdiction unless some gross illegality, irregularity, jurisdictional defect or misreading and non-reading of evidence was floating on surface but the same was not pointed out by petitioners---High Court declined to interfere in concurrent orders passed by two courts below---Petition was dismissed in circumstances.

Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12; Muhammad Nawaz alias Nawaz and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Khuram Shafi v. Mst. Inayat Bibi and others 2005 SCMR 766; Muhammad Saleem v. Muhammad Tariq 2009 CLC 1295; Ilahi Bakhsh v. Sheikh Muhammad Sadiq and 2 others 2005 CLC 1704; Fazal Hussain Shah through Legal Heirs and others v. Rustam through Legal Heirs 2010 YLR 297; Sardar Din v. Mst. Khatoon and others 2004 SCMR 1102; Jam Hussain Shah and others v. Additional District Judge and others 2014 YLR 749; Ameer Umar and another v. Additional District Judge, Dera Ghazi Khan and others 2010 SCMR 780; Sultan Ahmad and others v. Mehr Din and others 1994 MLD 1671; Muhammad Yar and another v. Allah Ditta and others 2008 CLC 795; Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58; Mrs. Alia Khalid and others v. Nazir Ahmad and others 2005 SCMR 1273; Muhammad Hanif through Legal Representatives v. Province of Punjab through District Collector, Vehari and others 2005 YLR 3331; Gul Sher and 5 others v. Province of Punjab through E.D.O.R Toba Tek Singh and 8 others 2008 YLR 2277; Allah Bakhsh and 10 others v. Abdul Rahim and 23 others 2005 CLC 1643; Mst. Mehr Bhari and 5 others v. Province of Punjab through Collector Chakwal and another 2003 YLR 603; Muhammad Razzaq v. Faqir Hussain and another 2010 CLC 170; Mrs. Sher Bano v. Kamil Muhammad Khan PLD 2012 Sindh 293 and Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345 distinguished.

Saifa Bibi and 5 others v. Hidayat and 4 others 2007 MLD 1167; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Chief Engineer, N.A.P.W.D Gilgit and 4 others v. Late Shaheen Khan, Contractor through Legal Representative and others 2008 CLC 1385; Nawab Din v. Abdul Khaliq and another 2004 MLD 827; Khan Gul, and others v. Azim Shah, and others PLD 1994 Pesh. 204; Muhammad Nawaz v. Barkat Ali PLD 2004 Lah. 21; Nizar Ali v. Noorabad Cooperative Housing Society Ltd and others PLD 1987 Kar. 676; Abdul Jabbar through L.Rs. and others v. Abdullah through L.Rs. and others 2006 SCMR 1541; Abdul Razzaq and 3 others v. Sultan Mahmood Akbar and 3 others 1998 SCMR 2428 and Habibur Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424 ref.

Muhammad Ashraf v. Kashif Iqbal through Mst. Fakhar-un-Nisa and another 2014 MLD 109; Javed Iqbal v. Abdul Aziz and another PLD 2006 SC 66; Raja Muhammad Arshad v. Raja Rabnawaz 2015 SCMR 615; Sh. Abdur Rashid v. Sh. Mubarak Ali and others 1994 CLC 1617; Nanjegowda and another v. Gangamma and others 2012 SCMR 1246; Abdul Jabbar and others v. Mst. Maqbool Jan and others 2012 SCMR 947; Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others 2008 YLR 2309; Hafiz Muhammad Sharaf-Ud-Din v. District Judge, Khushab and others 2015 MLD 1081; Manzar Shah alias Manzar Hussain Naqvi v. Ch. Shafquat Hussain and 2 others 2015 YLR 595 and Sadruddin v. Aslam Madad Ali and others PLD 2008 Kar. 2005 rel.

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

----S. 12(2)---Judgment, setting aside of---Plea of fraud---Proof---Petitioners did not give particulars of fraud in their application moved under S. 12(2), C.P.C., or in their evidence---Even witnesses produced by petitioners did not say anything about commission of fraud upon the court---Application under S. 12(2), C.P.C., was not maintainable under circumstances.

Subedar Sardar Khan through legal heirs and others v. Muhammad Idrees through General Attorney and others PLD 2008 SC 591 and Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others 2013 SCMR 1419 rel.

----S. 54---Civil Procedure Code (V of 1908), O. XXIII, R.3---Transfer of land---"Consent decree" and "sale deed", distinction---"Consent decree" and document on the basis of which land is agreed to be transferred, cannot be termed as "sale deed".

Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470 and Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through Legal Heirs and others 2015 SCMR 1081 rel.

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

----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Judgment, setting aside of---Limitation---No period of limitation has been prescribed in Limitation Act, 1908 for filing application under S. 12(2), C.P.C., so the same falls under Art. 181 of Limitation Act, 1908, which provides a period of three years from the date of accruing of right to apply.

Muhammad Mahmood Saeed and others v. Mehdi Hassan Shah and others 2015 CLC 307; Muhammad Younus and another v. Venue Gurdas Advani and others 2015 CLD 390 and Fida Hussain v. Ghulam Sarwar 2002 SCMR 1554 rel.

Muhammad Anwar for Petitioners.

M. R. Fakhar Baloch for Respondents.

Date of hearing: 29th July, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 478 #

2016 Y L R 478

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

BADAR DIN---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector Khanewal---Respondent

C.R. No.932-D of 2000, decided on 28th July, 2015.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---Complaint by stranger---Locus standi---Concurrent findings of facts by two courts below---Suit land was allotted in favour of plaintiff under "Grow More Food Scheme" on 14-04-1958 but the allotment was cancelled on 04-11-1984 on the application of a person stranger to the proceedings---Suit and appeal filed by the plaintiff were concurrently dismissed by Trial Court and Lower Appellate Court, respectively---Validity---While passing judgments and decrees, both the courts below did not consider the material fact that basic order dated 04-11-1984 was passed on an application moved by a third person who had no locus standi to file application before Revenue authorities against allotment of land in question to plaintiff---Third person who had no right, title and interest in the allotment/land in dispute, had no right to file an application, appeal/revision before revenue authorities---Filing of application by the third person and assumption of jurisdiction thereon by revenue authorities was illegal and void ab initio---High Court in exercise of revisional jurisdiction set aside the orders passed by Revenue authorities and also set aside judgment and decree of both the courts below and remanded the case to District Collector to conduct detailed inquiry afresh---Revision was allowed accordingly.

Agha Fakhruddin v. Muhammad Faryal and others PLD 1989 SC 16; Sardar Muhammad and another v. Akram and others 2002 SCMR 807; Fazl-I-Ezad Khan v. Board of Revenue, Lahore, and others 1986 MLD 2391; Anjuman Araian, Bhera v. Abdul Rashid and others PLD 1982 SC 308 and Nur Bakhsh and others v. The Crown PLD 1950 Punjab (Rev.) 73 rel.

(b) Void Order---

----Subsequent orders---Effect---If on the basis of void order, subsequently orders have been passed either by the same authority or by other authorities, the whole series of such orders together with superstructure of rights and obligations built upon them must unless some statute or principle of law recognizing as legal the changed position of parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are based---Pure question of law can be raised at any stage of proceedings.

Mustafa Lakhani v. Pakistan Defense Officers Housing Authority, Karachi 2006 SCJ 702; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Muhammad Iqbal v. Muhammad Ahmed Ramzani and 2 others 2014 CLC 1392; Secretary Communication and Works Department Government of Balochistan and others v. Dad Baksh and another 2013 CLC 343; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Moulana Atta-ur-Rehman v. Al-hajj Sardar Umar Farooq PLD 2008 SC 663; Faisal Jameel v. The State 2007 MLD 355; Talib Hussain v. Member, Board of Revenue 2003 SCMR 549; Muhammad Siddiq v. Ashraf Ali 2000 MLD 781 and Abdul Hameed v. Deputy Commissioner/ Administrator, Zila Council Mandi Baha-ud-Din 1997 CLC 540 rel.

Syed Muhammad Ali Gilani and Ch. Muhammad Riaz Jahania, for Petitioner.

Aziz-ur-Rehman, A.A.G. for Respondents.

Date of hearing: 29th June, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 495 #

2016 Y L R 495

[Lahore]

Before Farrukh Gulzar Awan, J

Mian IFTIKHAR AHMAD---Petitioner

Versus

D.S.P. RANGE CRIME BRANCH and 2 others---Respondents

Writ Petition No.21032 of 2015, heard on 15th July, 2015.

(a) Police Order (22 of 2002)---

----Art. 18-A [as substituted by Punjab Police Order (Amendment) Act (XXI of 2013)]---Criminal Procedure Code (V of 1898), S. 173---Penal Code (XLV of 1860), Ss. 365 & 511---Kidnapping or abducting with intent secretly or wrongfully to confine a person, attempt to commit offences punishable with imprisonment for life or for shorter term---Report of police officer---Reinvestigation of criminal case and second transfer of investigation---Principles/permissibility--- Complainant, being dissatisfied with two consecutive earlier investigations, moved application to Regional Police Officer for transfer of investigation, which was accepted---Challan, in the present case, had been sent up to court for trial---Trial Court, having distributed copies of statements to accused under S. 241-A of Cr.P.C, had framed charge against accused and fixed case for recording of prosecution evidence---Impugned order of second transfer of investigation had been passed prior to commencement of trial and third round of investigation was underway---In the present case, matter had been investigated twice and order of second change of investigation had been made by competent authority before framing of charge and commencement of trial---If any material or evidence was to be brought on record, then there was no bar to submit supplementary report under S. 173, Cr.P.C.---Trial had not been finally disposed of---Under Art. 18-A (2) (5) (b) of Police Order, Regional Police Officer had lawfully exercised powers vested in him for second change of investigation---No legal bar existed for reinvestigation of criminal case even after submission of final report under S. 173 of Cr.P.C, but same could be done before commencement of trial---Impugned order had been passed before Trial Court had taken cognizance of matter framing charge---No illegality or infirmity or arbitrary exercise of powers or transgression of powers was shown to have been committed by Authorities while passing the impugned order---Constitutional petition was dismissed in circumstances.

Qari Muhammad Rafique v. Additional Inspector-General of Police (Inv.) Punjab and others 2014 SCMR 1499; Raja Khurshid Ahmad v. Muhammad Bilal and others 2014 SCMR 474; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Khalid Javed v. Board through Deputy Inspector-General of Police (Investigation), Lahore and 5 others PLD 2009 Lah. 101 ref.

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

----S. 156---Investigation into cognizable case and re-investigation---Object---Object and purpose of investigation as well as re-investigation of criminal case is to probe and find evidence and place all such material before court of competent jurisdiction, and not to satisfy complainant or aggrieved party, if any such material provided by investigating agency would definitely help court for arriving at just conclusion.

----S. 173---Report of police officer---Supplementary challan, submission of---Permissibility---If any material or evidence is to be brought on record, then there is no bar to submit supplementary report under S.173 of Cr.P.C.

Munir Ahmad Bhatti for Petitioner.

Sarfraz Khan Gondal for Respondent No.3.

Ch. Iftikhar Iqbal Ahmad, Deputy Prosecutor General Ghulam Mustafa DSP and Afzal, A.S.-I. for the State.

Date of hearing: 15th July, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 518 #

2016 Y L R 518

[Lahore]

Before Shahid Karim, J

MUHAMMAD ILYAS through L.Rs. and others ---Petitioners

Versus

Mst. AMNA through L.Rs. and others---Respondents

C.R. No.73-D of 1993, decided on 17th April, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Contention of plaintiff was that on migration to Pakistan the claims filed by the parties were accepted and property in dispute was allotted---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Plaintiff was bound to prove that the said claim had been validly filed and accepted---Nothing was on record to establish any such claim having been filed or having been accepted---Evidence produced by the plaintiff was not convincing and did not inspire confidence---Plaintiff did not produce any evidence showing that she had some property in India which was claimed on migration and was accordingly accepted---Suit property was in the name of defendants in the revenue record---Plaintiff had not sought cancellation of entries in the revenue record as a relief in the suit---Plaintiff did not offer a valid justification for the delay in filing of suit to assert a right on the basis of inheritance---Concluded rights could not be upset on the basis of flimsy challenges---Suit filed by the plaintiff was dismissed and revision was accepted in circumstances.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 and Bashir Ahmed v. Abdul Aziz and others 2009 SCMR 1014 rel.

Rana Muhammad Ashraf Jamil and Wasif Saeed for Petitioners.

Nemo for Respondents.

Date of hearing: 14th April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 539 #

2016 Y L R 539

[Lahore]

Before Mahmood Ahmad Bhatti, J

Mst. HAYATAN MAI---Petitioner

Versus

Mst. AZIZ MAI alias AZIZI through L.Rs.---Respondents

Civil Revision No.893-D of 2006, heard on 4th June, 2015.

(a) Gift---

----Ingredients---Burden of proof---Departure from pleadings---Effect---Onus would be on the beneficiary in case of disputed transaction to prove the execution, correctness, validity and legality of the gift---Donee was bound to prove that donor had made gift to him/her voluntarily, without duress and in all senses and he/she had accepted the same and possession was delivered to him/her in its wake---If any of the ingredients/ components was missing then claim of the donee should be rejected outright---Donee had to prove the ingredients of gift by leading cogent, convincing, sound and incontrovertible evidence---Party was required to first allege material fact in the pleadings before leading evidence with regard to the same---No one could be allowed to spring a surprise on its adversary---Defendant had demolished her own case by making a departure from the stance adopted in the written statement---Donor did not go to the Patwari Halqa nor did she report the alleged factum of gift made in favour of donee---Nothing was on record as to when, where and in whose presence donor declared to have made a gift of suit land---Donee had not accepted the gift made in her favour---Impugned mutation did not bear signatures or thumb impressions of alleged donor or donee---Neither the donor nor the donee appeared before the Revenue Officer who attested the gift mutation---Findings of Appellate Court had to be preferred to that of the Trial Court---Donee had failed to discharge the onus with regard to correctness, validity and legality of impugned mutation---Ingredients of valid gift were missing in the present case---Suit was rightly decreed by the Appellate Court---No illegality or irregularity had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Aurangzeb through L.Rs and others v. Muhammad Jaffar and another 2007 SCMR 236; Muhammad Saee v. Mst. Sharaf Elahi and another 2010 SCMR 1370 Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Mst. Khurshid Bibi and others v. Ramzan and others 2006 CLC 1023; Mst. Kalsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Barkat Ali through Legal Heirs and others v. Muhammad Ismail, through Legal Heirs and others 2002 SCMR 1938; Saleem Khan and 9 others v. Karim Khan 2006 CLC 1006; Nawab Din through Legal Representatives v. Said and 6 others 2005 YLR 2024; Liaqat Ali v. Province of Punjab through D.C.O. Gujrat and 6 others PLJ 2006 Lah. 177; Muhammad Idrees v. Mst. Zeenat Bibi 2005 SCMR 1690; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Mst. Shafqat Parveen v. Muhammad Iftikhar Amjad and others 2012 SCMR 1602; Ghulam Zainab and another v. Said Rasool and 8 others 2004 CLC 33; Mst. Imam Sain and 4 others v. Dr. Shahid Mahmood and another 2006 YLR 1102 and Amjad Ikram v. Ms. Asiya Kausar and 2 others 2015 SCMR 1 rel.

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

----O. XLI, R. 31---Judgment in appeal---Points for determination---Appellate court was not required to give issue-wise findings like the Trial Court.

Umar Din v. Ghazanfar Ali 1991 SCMR 1816; Muhammad Amir v. Muhammad Sher 2006 SCMR 185 and Qadir Bukhsh v. Allah Dewaya 2011 SCMR 1162 rel.

----Party was required to first allege material facts in the pleadings before leading evidence with regard to the same.

Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Messrs Essa Engineering Company (Pvt.), LTD, and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwala 1968 SCMR 804; Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469; Hakim Ali v. Muhammad Salim 1992 SCMR 46; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151; Mubarak Ali and others v. Khushi Muhammad and others PLD 2011 SC 155 Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Shafi and others v. Sultan 2007 SCMR 1602; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Province of Punjab v. Ibrahim and sons 2000 SCMR 1172; Suo Motu Case No.10 of 2009 2010 SCMR 885; Sh. Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460; Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582 and Malik Muhammad Faisal v. State Life Insurance Corporation through Chairman 2008 SCMR 456 rel.

Sh. Abdul Samad for Petitioner.

Sahibzada Muhammad Nadeem Fareed for Respondent.

Date of hearing: 4th June, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 551 #

2016 Y L R 551

[Lahore]

Before Amin-ud-Din Khan, J

LIAQAT ALI---Appellant

Versus

MUHAMMAD ASHRAF and others---Respondents

R.S.A. No.99 of 2009, heard on 7th March, 2014.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of contract---Rival claimant---Principles---Oral agreement to sell---Scope---Both plaintiff and defendant filed suits for specific performance of contract which were consolidated and suit of plaintiff was decreed whereas that of defendant was dismissed by the Trial Court but Appellate Court dismissed the suit of plaintiff and decreed that of defendant---Validity---Plaintiff could succeed only on the basis of oral agreement to sell if he had pleaded the same specifically in the plaint keeping in view the specific date, time and place of agreement arrived at between the parties and the witnesses of the same as well as earnest money paid under such agreement and had also pleaded the full terms of agreement as in oral agreement there was no document in support of version of the plaintiff---First thing on the basis of oral agreement to sell which would come in the shape of writing according to the version of plaintiff was his plaint and whole building on the basis of oral agreement to sell was built upon such foundation which was made in the same---Plaintiff could not succeed if nothing was pleaded in the plaint---Plaintiff would be at liberty to introduce through evidence at every stage the new terms of agreement favourable to him or proof thereof if in general language the oral agreement was pleaded in the plaint---Oral agreement must be pleaded in the plaint in full details so that the other party might defend the suit if same was denied by such party---Previous suit filed by a party even withdrawn subsequently could not be presumed to have never been brought before the court and pleadings therein could be used against the party filing the same---Claim as well as agreement of defendant had been admitted by the original owners---When there were two parties pressing their agreement to sell of immovable property against the same property as well as owner and if original owner had admitted the claim of one party and contested the claim of other party then the party whose claim was denied by the original owner if succeeded to prove his agreement to sell then the agreement in favour of other party which was later in time if admitted by the owner had to be proved against the first party by producing marginal witnesses of such agreement---Plaintiff had failed to prove his oral agreement to sell in accordance with law---Claim of defendant had been admitted by the plaintiff and he was not bound to produce the witnesses to prove his claim against him---Whole of the statement of witness was to be considered and parts of statement supporting the plaintiff could not be used against the defendant---Plaintiff had failed to prove his case whereas defendant had proved his case in accordance with law---Appellate Court had rightly dismissed the suit of plaintiff and reversed the findings of Trial Court and granted the decree for specific performance in favour of defendant---Findings recorded by the Appellate Court were in accordance with law---Appeal was dismissed with costs throughout.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah. 336; Mushtaq Ahmad and others v. Muhammad Saeed and others 2004 SCMR 530; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Rasool Bakhsh Naich thorugh L.Rs. and others v. Syed Rasool Bakhsh Shah through L.Rs. 2010 SCMR 988; Mst. Khair-ul-nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Muhammad Tufail and others v. Kafiat Ullah and others 2000 YLR 594; Haji Hakimullah v. Saghiruddin and 2 others PLD 1975 Kar. 509; Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 and Abbas Ali v. Liaqat Ali 2013 SCMR 1600 ref.

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 rel.

Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lahore 336; Mushtaq Ahmad and others v. Muhammad Saeed and others 2004 SCMR 530; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Rasool Bakhsh Naich thorugh L.Rs. and others v. Syed Rasool Bakhsh Shah through L.Rs. 2010 SCMR 988; Mst. Khair-ul-nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Muhammad Tufail and others v. Kafiat Ullah and others 2000 YLR 594 distinguished.

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

----O. XXIII, R. 1---Withdrawal of suit---Filing of fresh suit---Bar---Applicability---When second suit was filed on same cause of action during pendency of first suit which was subsequently withdrawn then bar of O. XXIII, R. 1, C.P.C. was not applicable.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 and Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah. 336 rel.

Ch. Mushtaq Ahmad Khan and Ishfaq Qayyum Cheema for Appellant.

Sh. Naveed Shehryar and Miss Humera Bashir for Respondents.

Date of hearing: 7th March, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 565 #

2016 Y L R 565

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD BASHIR---Appellant

Versus

GOHAR NASEEM---Respondent

R.S.A. No.155 of 2010, heard on 15th October, 2014.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 78---Suit for specific performance of contract---Illiterate executant of document---Document, proof of---Scope---Sale of property in case of contract would take effect in the terms settled therein between the parties---Agreement to sell would not itself create any interest or charge and onus would lie on the beneficiary to prove the same---Stamp vendor was not produced in witness box in the present case---Agreement was not scribed by a license holder deed writer rather same was drafted by an advocate---Advocate could not be treated at par with Petition Writer and his deposition would have no evidentiary value for not having produced his register for examination of court---Advocate was not bound to keep any such record and such a writer could not be treated as a licensed Petition Writer who maintained a register with page marking and entries were carried with serial numbers and dates---Statement of advocate was of no help to the plaintiff---Defendant was an illiterate person---Where document was allegedly executed by an illiterate person the beneficiary of said document was bound to establish by satisfactory and strong evidence that not only the document had been executed by said person but also that such person had fully understood the contents of such document---Impugned agreement to sell had not been read over to the executant after its writing---Witnesses of plaintiff were not consistent with regard to the venue where transaction was settled---Such contradictions could not be considered to be of minor nature but same was on material point---Evidence available on record was not sufficient to prove the valid execution of agreement to sell---Execution of document was to be proved by its beneficiary---Execution of document would not mean mere signing or putting thumb impression but something more than signing or putting thumb impression by the executant---Plaintiff was bound to prove that thumb mark was made in the presence of marginal witnesses of agreement to sell which was read over and also understood by the vendor---Identification of executant of document should also be proved by reliable and authentic evidence that a person who had affixed thumb marks or signature was the same person who owned the land and sold the same to the vendee---Plaintiff had failed to prove the execution of impugned agreement to sell---Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed---Defendant was directed to surrender Rs. 5 lac in favour of plaintiff which he had admitted to have been borrowed by him as security---Appeal was accepted in circumstances.

Qasim Ali v. Khadim Hussain through Legal Representatives and others PLD 2005 Lah. 654; Altaf Hussain Shah v. Nazar Hussain Shah 2001 YLR 1967; Mst. Safia Begum v. Muhammad Ajmal 2007 YLR 3030; Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808 and Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Scope of interference with concurrent findings of fact was limited but if such findings appeared to have either mis-read the evidence on record or while assessing the same omitted from consideration some important piece of evidence which had direct bearing on the issue involved then revisional jurisdiction could be exercised.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 rel.

Ali Raza Khan for Appellant.

Ahmad Raza Malik for Respondent.

Date of hearing: 15th October, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 616 #

2016 Y L R 616

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

MUHAMMAD SHAHID---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.1234 of 2006, heard on 9th December, 2014.

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

----Ss. 302 & 148---Qanun-e-Shahadat (10 of 1984), Art.129, Illus.(g)---Anti-Terrorism Act (XXVII of 1997), S.7(a)(h)---Qatl-i-amd, rioting, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused had not been attributed any injury on the person of deceased---Complainant, had not stated that accused had made an ineffective fire upon prosecution witness---Major discrepancies existed in the statements of three prosecution witnesses regarding the role of accused, which could not be ignored---Most important and relevant witness, whose evidence was the best piece of evidence, which prosecution could have relied upon for proving the case to the extent of accused, was not examined---Presumption under illustration (g) of Art.129 of Qanun-e-Shahadat, 1984, could be drawn that had said witness been produced, his evidence would have been unfavourable to the prosecution---Motive was not attributed to accused, but was attributed to proclaimed offender---Investigating Officer had admitted that the accused had no pistol at the time of occurrence; and that accused did not make firing---Serious doubts existed regarding participation of accused in the occurrence---Case of the prosecution, to the extent of accused, was not free from doubt---Prosecution having failed to bring home guilt of accused, Trial Court was not justified in convicting and sentencing accused---Extending benefit of doubt to accused, his conviction and sentence, were set aside, and he was acquitted of the charge---Accused being on bail, his surety stood discharged, in circumstances.

Riaz Ahmed v. The State 2010 SCMR 846 rel.

(b) Criminal trial---

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

Muhammad Akram v. The State 2009 SCMR 230 rel.

Arshad Mehmood for Appellant.

Munir Ahmad Sial DPG along with Muhammad Aslam for the Complainant.

Date of hearing: 9th December, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 623 #

2016 Y L R 623

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

AJMAL and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Appeal No. 1953 of 2012 and Capital Sentence Reference No.39-T of 2012, heard on 25th February, 2015.

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

----Ss. 365-A, 302 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)(e)---Kidnapping for ransom, qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Delay of one day in reporting the matter to the Police, was not fatal to the case of prosecution, especially in the circumstances when nobody was named in the FIR, and that fact could not be made basis for acquittal of accused---Both witnesses of last seen who were residents of the same locality and were very well known to deceased, had no ill-will or grudge with accused to falsely involve him in the case---Even defence could not establish any bad blood between accused and said witnesses to prove false implication of accused---Evidence adduced by said two witnesses with regard to last seen, could not be disbelieved when intrinsic worth of their testimony remained unshaken before the Trial Court---Ocular evidence adduced by prosecution witnesses, with regard to demanding ransom amount, was confidence inspiring which could be relied upon---Said prosecution witnesses proved that it was none else but the accused, who firstly abducted the deceased, thereafter demanded ransom amount from the complainant/father of the deceased and later committed murder of the deceased by strangulation---Accused had pointed out the place from where the dead body of the deceased was recovered---Recovery of motorcycle by which accused had taken away the deceased, from the house of accused and other articles belonging to the deceased at the pointation of accused, had provided ample corroboration to the prosecution story---Medical evidence, had further supported the prosecution that the deceased was done to death by strangulation, as disclosed by accused---All the prosecution witnesses were subjected to cross-examination by the defence at length, but nothing favourable to accused, or adverse to the prosecution had been extracted from said witnesses---Said witnesses remained consistent on each and every material point---No plausible reason had been brought on record by the defence to prove false involvement of accused in the case, especially when all said witnesses had no previous ill-will or animosity with accused---Complainant, who was real father of the deceased, would not spare the real culprit who committed the murder of his son to go scot-free and falsely involve somebody else without any rhyme or reason---Confidence inspiring evidence of all the witnesses, was worthy of reliance---Defence remained unable to shatter the credibility of prosecution witnesses---Story introduced by the complainant, and substantiated by the other witnesses had been proved beyond any shadow of doubt---Prosecution had proved its case against accused beyond any shadow of doubt through confidence inspiring evidence---Appeal was dismissed to the extent of accused---Capital Sentence Reference to the extent of accused was answered in the affirmative, and death sentence passed against accused, was confirmed, in circumstances.

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

----Ss. 365-A, 302 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)(c)---Kidnapping for ransom, qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Allegation levelled against two co-accused persons was that when the deceased was being taken away by main accused along with his (absconder) co-accused on motorcycle, said co-accused persons were following them in a rickshaw---House, from where the dead body of the deceased was recovered, was in possession of main accused, and said two co-accused had no concern with the same---Motorcycle, by which the deceased was taken away, also belonged to main accused---Co-accused had not been assigned any overt act at the scene of crime---Only connecting material available with the prosecution against said two co-accused, was disclosure made by them and pointed the place from where the dead body was recovered---Complainant did not pin-point that persons who had been making calls for demanding ransom, were the two co-accused---SIM, recovered from one of co-accused, was not used in transaction of demanding ransom amount---Such type of recovery, could not connect co-accused with the commission of offence---SIM belonging to deceased, recovered from other co-accused, was not proved to have been used by the co-accused for demanding ransom amount---Accused, could not be sentenced only on the ground that some recovery had been effected from him, because, at the most it could be considered only one incriminating material against accused, which was corroboratory in nature---Prosecution for proving the guilt of accused had to produce a compact and concrete composition of evidence, which was missing in the case qua the culpability of said two co-accused---Prosecution had failed to prove the guilt of two co-accused to the hilt---Appeal of said co-accused was allowed and they were acquitted of the charge by extending them the benefit of doubt, and were released from jail, in circumstances.

----Appreciation of evidence---Parties to criminal case always try their best to prove or disprove the guilt of accused by using every possible tact---Court, in such an ugly situation must not be deterred, but after assessing and evaluating the available evidence, was to sift the grain from the chaff.

Khadim Hussain v. The State 2010 SCMR 1090 rel.

Ijaz Ahmad Chadhar and Barrister Salman Safdar for Appellants.

Khurram Khan, Deputy Prosecutor General for the State.

Muhammad Qaiser Saleem for the Complainant.

Date of hearing: 25th February, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 668 #

2016 Y L R 668

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD SIDDIQUE through Legal Heirs and others---Petitioners

Versus

HADAYAT ALI through Legal Heir and others---Respondents

C.R. No.579-D of 1995, heard on 15th December, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Document, proof of---Male member of the family to identify the lady who was illiterate or "Pardanashin"---Two marginal witnesses of the document were required to prove the same---Only one marginal witness of agreement to sell had appeared in the present case---Plaintiff had failed to prove the execution of alleged agreement to sell---Concurrent findings recorded by the courts below should not be interfered in routine unless there was any serious misreading or non-reading of evidence or jurisdictional defect---Revision was dismissed in circumstances.

Muhammad Ibrahim through Legal Heirs and others v. Mst. Basri through Legal Heirs and others 1998 SCMR 96; Faiz Muhammad through Legal Representatives and others v. Mst. Khurshid Bibi PLD 2009 Lah. 41; Muhammad Afzal Khan, and others v. Mian Ashfaq Ahmad 2007 SCMR 1840; Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984 and Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 rel.

Nemo for Petitioners.

Muhammad Ramzan Khalid Joiya for Respondents.

Date of hearing: 15th December, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 687 #

2016 Y L R 687

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

GHULAM QASIM and others---Appellants

Versus

The STATE and others---Respondents

Crl. Appeals Nos. 12, 15, 97, 98 and 99-ATA, W.P. No.12481 and Capital Sentence Reference No.1 of 2011, decided on 11th February, 2015.

Penal Code (XLV of 1860)---

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7 (e)---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping for ransom and rioting with deadly weapons---Appreciation of evidence---Benefit of doubt---Identification parade---Accused were convicted by Trial Court and sentenced to death---Validity---Prosecution gave no explanation as to why abductee, who was the best person to identify accused did not participate in test identification parade---Credibility of son of abductee was found shattered and the same would haunt other aspects of his statement as well---One tainted piece of evidence could not corroborate another tainted piece of evidence---Occurrence took place in the month of August which was sizzling hot season in the region and abductee was head of a well off family who was supposed to be within comfortable confines of his dwelling instead of offering himself as an easy catch to his abductors at his well---Such various aspects of the case did not synchronize themselves within the ambit of probability---Prosecution was not able to bring home the charge against accused persons beyond a shadow of doubt and it would be extremely unsafe to maintain convictions in safe administration of criminal justice---High Court extended benefit of doubt to accused persons and set aside conviction and sentence awarded to them by Trial Court and they were acquitted of the charge---Appeal was allowed in circumstances.

Zia-ur-Rehman, Tahir Mehmood, Sardar Tariq Sher Khan Khosa, Ch. Akbar Ali, Mian Ahmad Mehmood and Ghulam Abbas Ponta for Appellants.

Chaudhry Faqir Muhammad for the Complainant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General for the State.

Date of hearing: 11th February, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 715 #

2016 Y L R 715

[Lahore]

Before Masud Abid Naqvi, J

MK PAKISTAN (PVT.) LTD. through Chief Executive Director---Petitioner

Versus

MANAGING DIRECTOR PAKISTAN TOURISM DEVELOPMENT CORPORATION and another---Respondents

Writ Petition No.483 of 2015, decided on 22nd May, 2015.

(a) Vested right---

----Scope---Vested right is created when it is considered mature in all aspects and no contingency exists before its completion.

Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Auction proceedings---Discretion of authorities---Petitioner was the highest bidder but authorities cancelled the auction---Validity---Petitioner participated in auction proceedings by accepting stipulated terms and conditions duly written in auction proclamation wherein authorities reserved their right to accept or reject the bid---Exercise of discretion by relevant authority was not amenable to interference in Constitutional jurisdiction unless the same was arbitrary, fanciful or violative of any of the fundamental rights---Relevant authority had exercised its discretion as conferred by law---Auction in favour of petitioner was not approved, therefore, petitioner did not acquire any vested right in the land and had no locus standi to ask for its transfer---Action of relevant authority was not arbitrary, fanciful or violative of any of the fundamental rights requiring interference in Constitutional jurisdiction---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

2011 SCMR 1675; PLD 2006 SC 697; PLD 2014 SC 1; 2007 MLD 423; 2010 MLD 486; AIR 1988 SC 157 and AIR 1985 SC 1147 ref.

Province of Punjab and another v. Munawar Hussain 2013 SCMR 1611 and Pervez Qureshi v. Settlement Commissioner Multan 1974 SCMR 337 rel.

Muhammad Faisal Butt for Petitioner.

Raja Saim ul Haq Satti for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 744 #

2016 Y L R 744

[Lahore]

Before Shahid Hameed Dar and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.38 of 2015, heard on 28th September, 2015.

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

----S. 9(c)---Recovery of narcotic substance---Appreciation of evidence---Benefit of doubt---Place of recovery not in exclusive possession---Heroin weighing 1145 grams was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for six years---Validity---Case property was handed over to prosecution witness at 7pm on 14-12-2013 and the same had given rise to a question as to how the parcel was received in concerned office on the same day at or after 7pm because the office did not remain open till such time---Room from where contraband material was recovered at the pointing of accused was not locked when Investigating Officer reached there along with police party to effect recovery---Almirah from which heroin was allegedly recovered at the pointing of accused was also not locked and accessible for other dwellers of the abode---Such had created doubts about veracity of recovery of contraband material at the instance of accused---Single circumstance which created reasonable doubt regarding prosecution case, the same was sufficient to give benefit of the same to accused---High Court extended benefit of doubt to accused person, set aside conviction awarded by Trial Court and acquitted him of the charge---Appeal was allowed under circumstances.

Ikramullah and others v. The State 2015 SCMR 1002; 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.

Malik Jamil Akhtar for Appellant.

Qaiser Mushtaq, Deputy District Public Prosecutor for the State.

Date of hearing: 28th September, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 765 #

2016 Y L R 765

[Lahore]

Before Atir Mahmood, J

TAIMOOR ALAM SATTI---Petitioner

Versus

Mst. AALIA BIBI and others---Respondents

Writ Petition No.564 of 2014, decided on 11th May, 2015.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.----Constitution of Pakistan, Art. 199---Constitutional petition---Pronouncement of Talaq---Mode and proof---Immovable property gifted to wife and entered in Nikkah Nama---Jurisdiction of Family Court---Wife filed suit for maintenance and dower amount---Family Court decreed the suits allowing maintenance to both wife and minor with annual increase, along with recovery of property gifted by husband---Appellate court dismissed the appeals of parties except disallowing annual increase in maintenance of minor and enhancing maintenance of the wife---Contentions raised by husband were that wife, having been divorced, was not entitled to any maintenance, and that the property gifted to wife could only be claimed through civil suit---Validity---Suit for recovery of dower as well as personal property and belongings of wife came within domain of Family Court under Schedule Part I of Family Courts Act, 1964---Property gifted to wife had come within definition of "personal property and belongings of wife"---Husband and his father had admitted to have the property gifted to wife and entered the description of khasra numbers in Nikkah Nama, which was sufficient to negate their contention that Family Court was not competent to decree the suit---Husband had alleged to have divorced the wife in presence of witnesses in Jirga meeting, but he failed to mention date of divorce and holding of said Jirga, but the wife had admitted that matter of divorce had been put before Mufti Sahib who had given Fatwa that divorce had taken place, which was sufficient to establish Talaq between parties---Talaq could be announced orally and could be in written form, but when husband had taken specific stance then it was his duty to prove the same---Date of sending of notice to Chairman of union council could not be proved---Date of pronouncement of Talaq could be taken when written statement had been filed---Wife was entitled to maintenance till completion of Iddat period---No illegality, irregularity, misreading and non-reading of evidence could be pointed out---Constitutional petition was dismissed in circumstances.

Allah Dad v. Mukhtar and another 1992 SCMR 1273 rel.

Al-Haj Habib ur Rehman for Petitioner.

Raja Khurshid Alam Satti for Respondents.

Date of hearing: 11th May, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 769 #

2016 Y L R 769

[Lahore]

Before Ch. Mushtaq Ahmad, J

MUHAMMAD SHAFI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.539 and Criminal Revision No.348 of 2003, heard on 27th April, 2015.

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

----Ss. 302(b) & 100---Qatl-i-amd---Appreciation of evidence---Accused had also sustained injuries during the same occurrence---Time and place of occurrence, was admitted by the parties---Only the manner in which occurrence had taken place was narrated in different ways by the prosecution and the defence---Trial Court, having concluded that the prosecution had failed to prove its case beyond reasonable doubt against accused, the only option remained with the court was that the defence version be accepted as true---Accused, claimed that he caused injuries to the deceased in exercise of his right of private defence but accused had exceeded right of private defence, of his person and property---Accused, who was under attack by the deceased, and had received five injuries at his person, his case fell within the four corners of general exception as enumerated in S.100, P.P.C.---Trial Court disbelieved prosecution version, acquitted co-accused persons but convicted accused under S.302(b), P.P.C., and sentenced for life as 'Tazir'---If prosecution evidence was disbelieved by the Trial Court, then the statement of accused, was to be accepted or rejected as a whole---Legally, it was not possible to accept the inculpatory part of the statement of accused, and to reject the exculpatory part of the same statement---Conviction and sentence recorded by the Trial Court against accused through impugned judgment, were set aside---Accused was acquitted of the charge, and his surety stood discharged of the liability of bail bonds.

Muhammad Asghar v. The State PLD 2008 SC 513 ref.

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

----Ss. 99 & 100---Private defence, right of---Restrictions on exercise of such right---Scope---If assault, would reasonably cause the apprehension that death would, otherwise be the consequence of such assault, right of private defence of the body would extend, under the restrictions mentioned in S.99, P.P.C., to the voluntary causing of death or of any other harm to the assailant.

Abdul Razzaq for Appellant.

Hassan Mahmood Khan Tareen, Deputy Prosecutor General for the State.

Date of hearing: 27th April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 797 #

2016 Y L R 797

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MANZAR-UL-HAQ SHAH JAHAN---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No.608 and Crl. Revision No.491 of 2012, decided on 24th June, 2015.

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

----S. 295-C---Use of derogatory remarks etc., in respect of Holy Prophet (P.B.U.H.)---Appreciation of evidence---Benefit of doubt---Consulted complaint---Contradictions in evidence---Accused was Station House Officer of a police station who was convicted by Trial Court under S.295-C, P.P.C., and sentenced to imprisonment for life---Validity---Complaint was prepared by friends and companions of complainant and not by himself---One of the prosecution witnesses did not support prosecution version during the course of investigation, as well as, during the course of trial---Police officer in whose room the alleged occurrence had taken place, did not support the prosecution accusation---Accused during the course of investigation had sworn on the Holy Quran that he had not committed any offence as contained in the crime report---Accused belonged to a religious family of Fiqa-e-Hanfia and a madrassa for religious education was also being run by him and his family---Complainant used to visit police station in connection with investigation of certain cases being conducted by accused himself and on his refusal to favour the party of his choice the complainant had filed application for change of investigation---Such facts created serious dents in the authenticity of the prosecution version which had gone to its root---High Court declined to maintain conviction/sentence as inflicted by Trial Court because it was against the canons of safe administration of justice specially when none of the complainants and prosecution witnesses was having adequate Islamic knowledge to be tested upon touchstone of Tazkia-tul-Shuhood---Whole prosecution version was hinging upon conjectures and surmises and could not be considered as legal evidence to connect accused with commission of offence---Trial Court was not justified in convicting accused while basing such an inconsistent/ incoherent evidence which even other-wise was full of material contradictions/ flaws---High Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

(b) Criminal trial---

----Suspicion---Scope---Court may err in letting off hundred guilty but should not convict one innocent person on the basis of suspicion.

Munir Ahmed Bhatti for Appellant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

Aziz Ahmed Malik and Hafiz Abdul Rehman Ansari for the Complainant.

Date of hearing: 10th June, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 817 #

2016 Y L R 817

[Lahore]

Before Shahid Hameed Dar and Muhammad Qasim Khan, JJ

BABAR WILLIAM---Petitioner

Versus

ASIF YOUNAS alias CHHOTOO and 3 others---Respondents

Crl. Appeal No.43 of 2008, decided on 11th May, 2015.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), S. 417(2)A---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Incriminating articles, non-producing of---Principle of double presumption---Complainant was aggrieved of judgment passed by Trial Court whereby accused persons were acquitted of the charge---Validity---Motorcycle on which deceased was allegedly shifted to hospital was neither produced before Investigating Officer nor during course of trial---Despite opinion of Investigating Officer, complainant did not file private complaint to prosecute the accused---Prosecution case looked more of jigsaw-puzzle than being a case-in-order---Observations made in judgment in question were compatible with evidence available on record, which was appraised unerringly by Trial Court---Judgment of acquittal could not be upset sparingly as accused enjoyed double presumption of innocence, one relating to pre-judgment stage that every accused was innocent till proved otherwise and the other one through a judicial verdict---Complainant though used adjectives, illegality, infirmity or improbability as to judgment in question but without any element of self-assurance and articulation---Judgment of acquittal could only be interfered with if it looked wholly perverse, capricious, arbitrary, artificial, speculative or based on misreading or non-appraisal of evidence on record resulting in miscarriage of justice---High Court declined to interfere in judgment passed by Trial Court as the result drawn was unexceptionable---Appeal was dismissed in circumstances.

Altaf Hussain and 4 others v. The State PLD 2000 Lah. 216 and Nazira v. Mukhtar Ahmad and 2 others 2003 SCMR 528 ref.

Alam Khan v. Swans Khan and 3 others 1996 SCMR 1742; Inayatullah Butt v. Muhammad Javaid and 2 others PLD 2003 SC 563 and Mst.Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 rel.

Gohar Razzaq Awan for Appellant.

Dr. Muhammad Anwar Khan Gondal, Additional Prosecutor General Punjab (on court's call).

YLR 2016 LAHORE HIGH COURT LAHORE 846 #

2016 Y L R 846

[Lahore]

Before Hafiz Shahid Nadeem Kahloon, J

JAFFAR MEHMOOD and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Misc. No.3304-B of 2015, decided on 30th July, 2015.

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

----S. 497(2)----Penal Code (XLV of 1860), Ss. 462-B, 462-F & 379---Theft, tampering with petroleum pipelines, etc., Damaging or destructing the transmission or transportation lines, etc.---Bail, grant of---Further inquiry---Accused nominated through supplementary statement---Accused was implicated on suspicion---Involvement in other criminal case without conviction---Effect---Co-accused already enlarged on bail---Rule of consistency---Applicability---Recovery, absence of---Accused persons were alleged to have committed theft of fuel from high pressure fuel pipe-line through clump---Held, accused were not nominated in FIR for committing theft of fuel, and their names had been introduced through supplementary statement---No plausible source of information had been given in supplementary statement for implicating accused---No identification parade had been held for identification of accused---Mere suspicion, howsoever grave, could not take place of evidence connecting accused regarding their guilt---Accused were previously not known to complainant--Supplementary statement made by complainant did not disclose as to how he had come to know accused---Accused, in given circumstances, could not be believed to have committed alleged offences, which fell within prohibitory clause of S. 497(2), Cr.P.C.---Nothing could be recovered from accused during their physical remand---Accused had been involved in the present case on basis of suspicion and hearsay evidence---Accused though were involved in another case, but they had not been previously convicted---Involvement in other case, therefore, did not dis-entitle accused to concession of bail---Co-accused had already been enlarged on bail by Trial Court---Case of accused being at par with that of co-accused, they were entitled to same relief on basis of rule of consistency---Accused had made out case for grant of post-arrest bail under S. 497(2), Cr.P.C.---Accused were admitted to bail.

Jaffar and others v. The State 1980 SCMR 784 and Naeem Akhtar v. The State 1996 SCMR 511 rel.

(b) Criminal trial---

----Suspicion---Mere suspicion, however grave, cannot take place of evidence connecting accused regarding his guilt.

Jaffar and others v. The State 1980 SCMR 784 rel.

Malik Aamir Manzoor Awan for Petitioners.

Shaukat Ali Ghauri, Addl: Prosecutor General for the State.

Muhammad Farooq Khan Buzdar for the Complainant.

Faiz Ahmad, A.S.-I. with record.

YLR 2016 LAHORE HIGH COURT LAHORE 856 #

2016 Y L R 856

[Lahore]

Before Altaf Ibrahim Qureshi and Sadaqat Ali Khan, JJ

GUL MUHAMMAD alias GULLA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.336 and M.R. No.42 of 2011, heard on 22nd September, 2014.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was not nominated as an accused in the case, and complainant had not given any description of any accused about their identification marks, structure and physique etc.---Complainant and other prosecution witnesses, who were closely related to the deceased, and claimed to be eye-witnesses, did not appear in the identification parade for identification of accused---Prosecution, did not give any explanation for not producing those witnesses in the identification parade---When said prosecution witnesses had not given features of accused in their statements before the Police during investigation, and did not appear during identification parade, there identification, in the court with delay of about seven years from the date of occurrence, was not acceptable; especially when they stated that they had identified accused in the light of torch---Occurrence took place at 11.30 in dark night, and witnesses, who claimed to have seen accused in the light of torch, did not give any feature of accused in their statements recorded by the Police during investigation---Evidence of said witnesses, was disbelieved---Case of prosecution was not free from doubt---Prosecution had failed to bring home guilt of accused to the hilt; and the Trial Court was not justified in convicting accused while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses; which even otherwise was full of material contradiction---Conviction and sentence awarded to accused by the Trial Court were set aside, extending him benefit of doubt---Accused was acquitted of the charge and was directed to be released, in circumstances.

Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706 and Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to qatl-i-amd---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 anothers v. Fakhar Hussain and others 2008 SCMR 1103 rel.

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

Muhammad Akram v. The State 2009 SCMR 230 rel.

Farooq Haider Malik for Appellant.

Malik Dost Muhammad Awan for the Complainant.

Asghar Ali Gill, DPG for the State.

Date of hearing: 22nd September, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 866 #

2016 Y L R 866

[Lahore]

Before Arshad Mahmood Tabassum, J

FAKHAR-UD-DIN---Petitioner

Versus

MUHAMMAD FEROZE and 2 others---Respondents

C.R. No.1485 of 2004, heard on 25th September, 2014.

Specific Relief Act (I of 1877)---

----Ss. 12, 19 & 20---Suit for specific performance of agreement to sell property---Denial of defendant to perform his part of agreement---Trial Court passed decree for specific performance of agreement to sell but Appellate Court modified the same and only granted compensation to the plaintiff---Validity---Both the courts below had arrived at the conclusion that agreement to sell was validly executed---Plaintiff had fully established valid execution of agreement to sell by producing one marginal witness of the same and scribe apart from producing the stamp vendor---Witnesses of plaintiff remained consistent in their depositions---Plaintiff had proved the execution of document in accordance with law by producing one marginal witness and scribe of the same---Non-production of second marginal witness did not in any manner damage the cause of plaintiff---Possession of suit land had been delivered to the plaintiff---Plaintiff being in possession of suit land could maintain the suit for specific performance and could institute the same against the defendant on his refusal to perform his part of contract---Appellate Court had modified the decree of Trial Court considering the amount equal to the amount of sale price to be adequate compensation for breach of contract---Granting a decree for specific performance of contract was discretionary with the court but such discretion had to be exercised judiciously and not arbitrarily---Compensation could be awarded only when specific performance of contract ought not to be granted---Contract between the parties existed which had been broken by the defendant and plaintiff was entitled to compensation for such breach---No reason existed as to why the Appellate Court decided that specific performance should not be granted---Contract otherwise to be specifically enforced might be enforced though a sum be named in the same as the amount to be paid in case of its breach and party in default was willing to pay the same---Defendant was not ready to pay the amount of compensation as ordered by the Appellate Court rather he had assailed the same---No hurdle existed in granting the decree for specific performance of the agreement---Mere existence of penal clause in the agreement to sell that "in case of non-performance the vendor would be liable to pay compensation" did not justify modification of the decree passed by the Trial Court---Modification made by the Appellate Court in the impugned decree was unjustified as nothing was available to prevent the specific performance of agreement---Revision was accepted in circumstances.

Nazir Ahmad v. Muhammad Rafiq 1993 CLC 257; Muhammad Saleem v. Muhammad Shafi and 4 others 2004 YLR 1882; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 and Abdul Aziz v. Maqsood Ahmad 2000 MLD 1875 rel.

Muhammad Zulfiqar Bhatti for Petitioner.

Muhammad Asif and Muhammad Shakeel Farooq Chishti for Respondents.

Date of hearing: 25th September, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 877 #

2016 Y L R 877

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

MOHSIN ABBAS---Petitioner

Versus

REGIONAL POLICE OFFICER and others---Respondents

W.P. No.24605 of 2014, decided on 6th May, 2015.

Criminal Procedure Code (V of 1898)---

----S. 156---Constitution of Pakistan, Art. 199--- Constitutional petition---Investigation, change of---Scope---Petitioner's plea was that investigation of case should be changed---Contention of prosecution was that Trial was almost at its final stage as statements of nine prosecution witnesses including eye-witnesses and medical officer had been recorded---Record revealed that during investigation qua cross version, petitioner moved an application to Police for change of investigation of case whereupon matter was referred to District Standing Board which declined the change of investigation---Held, that trend of striving for change of investigation only to score a favourable police finding merely to counter earlier result of investigation was to be deprecated---In absence of any relevant fact or evidence, omitted or neglected by earlier Investigation Officer necessitating collection of same by Investigation Agency to put before court of competent jurisdiction, change of investigation would be a futile exercise which could not be approved---Constitutional petition was dismissed, accordingly.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787; Naseer and others v. Khuda Bakhsh and others 2011 SCMR 1430 and Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474 distinguished.

Qari Muhammad Rafique v. Additional Inspector-General of Police (Inv.), Punjab and others 2014 SCMR 1499 rel.

Syed Qaiser Gillani for Petitioner.

Ch. Iftikhar Iqbal Ahmad, Assistant Advocate General along with Muhammad Yousaf, S.I. with record for Respondents.

Tasawar Hussain Chadhar for Respondent No.4.

YLR 2016 LAHORE HIGH COURT LAHORE 887 #

2016 Y L R 887

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

AYYUB KHAN and 4 others---Petitioners

Versus

MUHAMMAD YOUSAF and 7 others---Respondents

Writ Petition No.10020 of 2009, heard on 13th January, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Suit for specific performance---Contention of petitioner was that lower revisional court while rendering impugned judgment failed to apply independent judicious mind and findings of Trial Court in verbatim were reproduced in its judgment---Validity---Duty and obligation of superior courts to decide controversy between parties after application of judicial mind---Any superior court while hearing appeal or revision had to decide the same after application of independent mind and mere reproduction of findings of Trial Court to concur therewith while dismissing revision was not in consonance with law---High Court remanded civil revision filed by petitioner to revisional court for decision afresh and avoided to dilate upon merits of case in its constitutional jurisdiction.

Punjab Industrial Development Board v. United Sugar Mills Ltd. 2007 SCMR 1394 rel.

Mohammad Qamar-uz-Zaman for Petitioners.

Ch. Zahid Javed for Respondents.

Date of hearing: 13th January, 2016.

YLR 2016 LAHORE HIGH COURT LAHORE 920 #

2016 Y L R 920

[Lahore]

Before Mazhar Iqbal Sidhu and Sikandar Zulqarnain Saleem, JJ

IBRAR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.126 and Murder Reference No.23 of 2012, heard on 25th November, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Delay in lodging of FIR having properly been explained, same could be used as a corroborative piece of evidence to the ocular account---Both the eye-witnesses had given plausible explanation for their being present at the time and place of occurrence---Both the eye-witnesses could not be termed as chance witnesses, as both were the residents of the same area, where the occurrence took place which allegedly was committed on a public thoroughfare---No possibility of mistaken identity of accused existed, as both the parties were known to each other prior to the occurrence being residents of the same locality---Manner in which the occurrence took place, weapon of offence used by accused, receipt of injuries by the deceased and time of occurrence were fully corroborated by other eye-witnesses---Complainant, though was closely related to the deceased, yet that relationship alone was no ground to disbelieve or discard his evidence, when he had no enmity, grudge or animosity against accused to falsely implicate him in a case entailing capital sentence---Other prosecution witness was an independent witness---Evidence of eye-witnesses, could not be shaken during cross-examination---Said witnesses corroborated each other on all material aspects of the case, their evidence was straightforward and confidence inspiring---Prosecution witnesses, had not made any dishonest improvement or contradictions on material aspects of the case---Alleged improvements and contradictions, were minor and not significant, which normally occurred in the statement of the witnesses due to lapse of time---Medical evidence, had fully supported the ocular evidence---Time of occurrence seat of injuries and the kind of weapon used by the accused had fully tallied with medical evidence---Motive, as alleged by the prosecution, had not been proved in the case---Recovery of knife, on pointation of accused, was legally inconsequential, and could not be used as a corroborative piece of evidence for the reasons that recovery had been effected in violation of S.103, Cr.P.C., as no person from the locality, despite being available, was joined; that it was not recovered from the place, exclusively owned and possessed by accused and that the knife was sent to the office of Chemical Examiner, one day prior to the effecting of its recovery---Prosecution having been able to prove the case against accused beyond any shadow of doubt, conviction, of accused recorded by the Trial Court against accused under S.302(b), P.P.C., was maintained---Some mitigating circumstances in favour of accused, were available to the effect that accused inflicted a single blow with knife, and he did not repeat it; that, recovery of knife from the possession of accused, had been disbelieved and that prosecution remained unable to prove the motive in the case---As to what was the real cause of occurrence and what had actually happened immediately before the occurrence, which had resulted into death of the deceased was not determined---Age of accused at the time of occurrence was proved to be below 18 years, but the Trial Court had not mentioned the age of accused, in statement of accused recorded under S. 342, Cr.P.C.---Benefit of discrepancy regarding non-mentioning of age of accused, should be extended, to accused in circumstances---Death sentence awarded to accused by the Trial Court, was converted into imprisonment for life, with benefit of S.382-B, Cr.P.C., in circumstances.

Criminal Appeal No.24-L of 2009; Khalid Saif Ullah v. The State 2008 SCMR 688; Basharat and another v. The State 1995 SCMR 1735; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 and Javid Iqbal v. The State 1982 SCMR 447 ref.

Muhammad Bashir Paracha for Appellant.

Muhammad Usman Mirza, Deputy Prosecutor General and Muzafar, A.S.-I. for the State.

Date of hearing: 25th November, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 931 #

2016 Y L R 931

[Lahore]

Before Shahid Hameed Dar and Muhammad Qasim Khan, JJ

SHAUKAT ALI and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.2638 and 400-J of 2010 and Murder Reference No.13 of 2011, heard on 6th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148, 149 & 337-J---Qatl-i-amd, rioting, common object, causing hurt by poison---Appreciation of evidence---Complainant and eye-witnesses were first cousins inter se, and they all were residents of the same village, which was 14/15 kilometers away from the place of occurrence; they made complete departure from their previous statements, which they rendered during the course of investigation; and they could not offer any plausible explanation in that context---Complainant, did not claim to be an eye-witness of the occurrence, and contended that he had seen accused and his four unknown companions running towards the river; and that he had suspected of the crime-in-issue---Complainant, did not name any one as eye-witness of the occurrence, in the FIR---Complainant in the private complaint did not change his position of being a witness of circumstantial evidence, and kept it intact, as to the contents of the FIR---Testimony of the complainant rendered him an irrelevant person qua the occurrence---One prosecution witness rendered an equally ambiguous statement like the complainant, and he introduced such factors in his statement which simply were unbelievable---Said witness virtually failed to bring any worthwhile circumstance on the record which might incriminate accused persons---Other two prosecution witnesses were self-claimed eye-witnesses of the occurrence, as the complainant did not cite their names in the FIR as eye-witnesses, nor he quoted them as such in his supplementary statement, which he rendered on the following day of the registration of the FIR---Yet another prosecution witness stated to have witnessed the occurrence from a distance of four Kanals in the torch light, which torch was neither presented before the Investigating Officer, nor was it taken into possession---Testimony of said witness looked preposterous and hard to believe---One of the prosecution witnesses dishonestly improved upon his previous statement, and he failed to offer any explanation, as to why he posed himself an eye-witness of the occurrence; his testimony, like that of his co-witnesses, did not inspire confidence, nor could it be believed to have been rendered by a forthright person, his testimony was struck off---Statements of all the eye-witnesses suffered from material discrepancies and dishonest improvements they were neither present at the spot at the relevant hour, nor they had witnessed the occurrence---Deceased had callously been done to death, most probably by some unknown accused at some unknown time during the darkness of the night---Testimonies of the witnesses, were not above board nor could they be considered to have been rendered by truthful persons---Testimonies of said witnesses, was rejected---Recovered blood stained kassi, was sent to the office of Chemical Examiner, and report received therefrom was in positive, and report of the Serologist as to the origin of the blood, showed it as that of human being---Investigating Officer, in circumstances, ought to have preserved the finger prints thereon, and obtained expert report from the Forensic Science Agency, so as to use it as an incriminating piece of evidence against accused, but he did nothing of that sort, and virtually destroyed said crucial piece of evidence---Medical evidence being a corroboratory circumstance, could not identify the author of bodily injuries of a dead or a living person---Prosecution had failed to bring home the guilt of accused person beyond reasonable shadow of doubt---Impugned judgment had been passed merely on conjectural and whimsical reasons, which could not be approved of---Impugned conviction and sentence of accused persons, were set aside and accused were acquitted of the charges and were released, in circumstances.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 ref.

Mian Muhammad Waseem for Appellants.

Muhammad Atif Rao, District Public Prosecutor for the State.

Zafar Iqbal Tarhana for the Complainant.

Date of hearing: 6th May, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 969 #

2016 Y L R 969

[Lahore]

Before Mamoon Rashid Sheikh, J

AMANAT ALI---Petitioner

Versus

Mst. NASEEM AKHTAR and others---Respondents

W.P. No.9661 of 2014, decided on 20th April, 2015.

Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Suit for recovery of maintenance---Source of income of father, proof of---Family Court decreed the suit for maintenance of minors with ten per cent annual increase---Father took the plea that the maintenance had not been determined keeping in view his source of income---Validity---Trial Court had passed the impugned judgment and decree after detailed appreciation of the evidence brought on record---Defendant claimed to be a driver in government hospital, however, his pay slip stated that he was a Naib Qasid---Said pay slip was, therefore, questionable---No infirmity or illegality in the impugned judgment and decree existed---Defendant failed to point out the circumstances to warrant exercise of Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Ch. Muhammad Tufail for Petitioner.

Muhammad Umar Malik for Respondent No.1.

YLR 2016 LAHORE HIGH COURT LAHORE 987 #

2016 Y L R 987

[Lahore]

Before Mehmood Maqbool Bajwa, J

SHER MUHAMMAD through L.Rs. and others---Petitioners

Versus

ABDUL LATIF alias ABDUR RAUF---Respondent

C.R. No.2572 of 2002, decided on 17th April, 2014.

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

----S. 42---Suit for declaration---Limitation---"Hissa Bataai"---Execution of document, proof of---Scope---Contention of plaintiff was that mutation was result of fraud and mis-representation---Suit was dismissed concurrently---Validity---Plaintiff had failed to produce convincing evidence with regard to payment of "Hissa Bataai"---Defendant was in cultivating possession of suit property as an owner after attestation of mutation---Plaintiff had not disclosed the source of information with regard to knowledge of factum of fraud---Contents of plaint were silent as to when defendant refused to give "Hissa Paidawar"---Present suit was barred by time---Assertion made in the plaint was sufficient to discharge initial onus with regard to fraud and defendant was bound to prove affirmatively that plaintiff had agreed to sell suit property and was consenting party to the transaction while getting the mutation entered---Mere putting of signature or thumb mark by a person upon a certain instrument would not be sufficient to suggest execution of the same---Mutation did not confer any title in favour of a party and genuineness of the same had to be established by a person claiming benefit under said transaction--- Impugned transaction entered into mutation was incorporated in Jamabandi which would carry presumption of correctness but defendant was bound not only to produce evidence to prove genuineness of Rapt but also that said transaction of sale was settled between the parties which fact was required to be established independent of proving genuineness of mutation of sale---Evidence of defendant, in order to prove the genuineness of transaction as well as sale agreement was neither convincing nor worthy of credit---Plaintiff was not identified by any person at the time of entry of Rapt---No evidence was available on record that plaintiff got the Rapt entered and made statement before Tehsildar with conscious state of mind understanding the nature of transaction and consequences of the same---Findings of both the courts below with regard to entitlement of plaintiff of suit property were perverse, arbitrary and result of mis-reading and non-reading of evidence which were not sacrosanct---Revision was dismissed in circumstance.

Muhammad Azam and others v. Muhammad Yar and others 1988 CLC 2388; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Mst. Raj Bibi and others v. Province of Punjab through District Collector Okara and 5 others 2001 SCMR 1591; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Abdul Rahim and others v. Muhammad Hayat and others 2004 SCMR 1723; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119; Muhammad Sami v. Additional District Judge, Sargodha and 2 others 2007 SCMR 621; Sahdeo Mauar v. Pulesar Nonia AIR 1930 Patna 598; Ghulam Nabi and others v. Mst. Zainab Bibi and others 2005 MLD 153; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Muhammad Arif and others v. Feroz Khan and others 2011 CLC 929 and Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513 ref.

Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others PLD 2007 Lah. 254; Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808; Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50; Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5; Brig. (R) Sher Afghan v. Mst. Sheeren Tahira and 6 others 2010 SCMR 786; Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817 and Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984 rel.

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

----O. XLI, R. 22---Objection to decree---Procedure--- Judgment-debtor upon hearing might object to the decree with reference to adverse findings on certain issues provided he had filed cross-objection---Judgment-debtor could verbally challenge findings on any issue going against him at the time of hearing of appeal while supporting decree but decree could not be assailed legally without cross appeal.

Suba and others v. Abdul Aziz and others 2008 SCMR 332 and Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119 rel.

Taki Ahmed Khan for Petitioners.

Sh. Naveed Shahryar, Muhammad Yaqoob Ch. and Ms. Humaira Bashir for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 1002 #

2016 Y L R 1002

[Lahore]

Before Shahid Hameed Dar, J

SHAHZAD AKHTAR alias SAJJAD---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.5448-B of 2015, decided on 23rd June, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 87---Penal Code (XLV of 1860), S.489-F---Dishonoring of cheque---Bail, grant of---Abscondence of accused---Accused defrauded his brother-in-law and received a huge amount of Rs. 1,50,00,000 at the rate of 4% and 5% profit per month---Complainant got 10 FIRs under S.489-F, P.P.C., registered against accused and he had still with him 5 more cheques of Rs. 10,00,000 each allegedly issued by accused and bounced by Bank for identical reasons which had not been reported to police as yet---Accused remained as absconder for about one year and he was proceeded against under S.87, Cr.P.C., pending investigation on 21-6-2014---Effect---Accused could not claim that he had no knowledge about registration of case against him---Such was a situation wherein unexplained abscondence of accused would adversely affect his quest for bail---No extra importance could be given to the fact that offence was not covered by prohibitory clause of S. 497(1), Cr.P.C.---In a case not falling under prohibitory clause, accused could not claim bail as a matter of right, unless his case was open to further probe into the guilt within the scope of S.497(2), Cr.P.C., or no exceptionality was attached thereto---Case of accused neither fell within the ambit of further inquiry nor could it be so that it was sans any exceptional element---Details of occurrence revealed that each and every bit of it painted an exceptional situation, bringing it within the category of cases wherein bail could not readily be allowed--- Bail was declined in circumstances.

Shameel Ahmad v. The State 2009 SCMR 174 rel.

Ch. Muhammad Zafar Iqbal for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State with Mazhar Hussain A.S.-I.

Complainant in person.

YLR 2016 LAHORE HIGH COURT LAHORE 1042 #

2016 Y L R 1042

[Lahore]

Before Raja Shahid Mehmood Abbasi, J

ABID HUSSAIN and others---Appellants

Versus

The STATE---Respondent

Jail Appeal No.62-J of 2013, decided on 31st July, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 & 34----Criminal Procedure Code (V of 1898), Ss. 382-B, & 544-A---Qatl-i-amd, common intention---Appreciation of evidence---Presence of eye-witnesses at place of occurrence not established---Previous enmity as motive---Determination---Ocular account in contradiction with medical evidence---Trial Court, acquitting co-accused giving benefit of doubt, convicted present accused under S. 302(b), P.P.C. and sentenced him to life imprisonment along with award of compensation to legal heirs of deceased---Prosecution case was that three shots had been fired at deceased from carbine---Prosecution witness, son of deceased, being at distance of about sixty feet from deceased at time of occurrence, had not tried to rescue deceased during reloading after first shot---Eye-witnesses failed to establish their presence at place of occurrence at relevant time---Prosecution witness had admitted that present accused had forgiven his deceased father for murdering his son after receiving Diyat---Previous heart-burning between parties had stood forgotten in view of compromise, thus motive (previous enmity) set out by complainant without any independent corroboration did not appeal to prudent mind---Three fire shots were attributed to present accused, but during spot inspection, only two crime empty had been collected by police---Deposition of witnesses as to ocular account of occurrence did not support medical account furnished by doctor witness---Prosecution witnesses failed to explain the injuries, which had been mentioned by doctor witness---Eye-witnesses alleged to have been grazing cattle near place of occurrence, but police witness, who had taken rough notes of place of occurrence on pointation of complainant and eye-witness, had not shown any point where cattle were grazing---Said witness also stated that at place of occurrence, there was no fodder and soil was hard surface---Explanation given by eye-witnesses for their presence at place of occurrence caused serious doubts as to their veracity---Making of supplementary statement at belated stage to bring evidence in line with medical evidence led to conclusion that eye-witnesses were not present at place of occurrence---Police had initially mentioned use of twelve bore gun but later substituted same with carbine---Statements of recovery witnesses were contradictory---Involvement of present accused in case was skeptical and allegation against him regarding alleged murder of deceased were speculative---Occular account was brushed aside being false, discrepant and unbelievable---Evidence as to recovery of twelve bore carbine at instance of accused and positive report of Forensic Science Laboratory hinting at matching of crime empties with said carbine was inconsequential when prosecution case against accused had otherwise stood disproved---Prosecution had failed to prove its case against present accused beyond any reasonable doubt---High Court, setting conviction and sentence, acquitted accused---Appeal was accepted in circumstances.

Raja Ghaneem Aabir and Mushtaq Ahmad Mirza for Appellants.

Muhammad Waqas Anwar, Deputy Prosecutor General with Ch. Fayyaz, S.I. for the State.

Date of hearing: 16th July, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1060 #

2016 Y L R 1060

[Lahore]

Before Abdul Sami Khan and Shehram Sarwar Ch. JJ

ABID ASHRAF---Appellant

Versus

The STATE and another---Appellants

Crl. Appeals Nos.1975 and 2363 of 2010, heard on 25th November, 2015.

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

----Ss. 9 (c) & 29---Recovery of narcotic substance---Appreciation of evidence---Shifting of onus---Five accused persons were convicted and sentenced by Trial Court for maximum imprisonment for three years as Charas weighing different quantities maximum upto three kilograms were recovered from each accused---Validity---Prosecution led sufficient evidence to prove case against all five accused persons beyond any shadow of doubt---Once initial burden of proof was discharged by prosecution with cogent evidence then in terms of S. 29 of Control of Narcotic Substances Act, 1997, accused persons had come under heavy burden to prove their innocence through reliable evidence---Accused did not opt to appear as their own witnesses under S. 340(2), Cr.P.C. to prove their innocence---No evidence was available on record on behalf of accused persons that police had some grudge against them to falsely implicate them in the case---Improbable to plant such a huge contraband against accused persons without any reason---High Court declined to interfere with conviction and sentence awarded to accused persons---Appeal was dismissed in circumstances.

Amjad Ali v. The State 2012 SCMR 577 and Sajjad Naeem and 2 others v. The State 2013 YLR 64 ref.

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

----S.36---Government Analyst, report of---Quantity of sample---Principle---For the purpose of conducting chemical analysis, only a small sample from recovered substance is sufficient to determine as to whether the same is narcotic drug or not, as defined in Control of Narcotic Substances Act, 1997---Law does not prescribe any specific quantity for the purpose of analysis.

Zulfiqar Ahmad v. The State 2006 SCMR 800 and Amer Zeb v. The State PLD 2012 SC 380 rel.

----Preamble---Sending of parcels---Scope---Rules regulating sending of parcels are not mandatory rather are directory.

Tariq Mehmood v. The State through Deputy Attorney General, Peshawar PLD 2009 SC 39; Shah Muhammad v. The State 2012 SCMR 1276 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Ms. Nighat Saeed Mughal for Appellant (in Crl. Appeal No.1975 of 2010).

Naveed Afzal Basra for Appellant (in Crl. Appeal No.2363 of 2010).

Rana Abdul Majeed Addl: Prosecutor General for the State.

Date of hearing: 25th November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1078 #

2016 Y L R 1078

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

JAVED ASIF---Petitioner

Versus

Rana ALMAS LIAQAT and 2 others---Respondents

Writ Petition No.29791 of 2015, decided on 9th October, 2015.

Punjab Local Government Act (XVIII of 2013)---

----S. 27(1)(b)----Qualifications and disqualifications for candidates and elected members---Age of candidate, determination of---Different dates mentioned on National Identity Card and Matriculation Certificate---Principles as to preference---Date of birth recorded on Matriculation Certificate---Evidentiary value---Both Returning Officer and Appellate Authority accepted the nomination papers of respondent---Petitioner raised objection as to candidature of respondent on ground that , given his date of birth on his matriculation certificate, he was not qualified to contest the election for being less than twenty-five years of age at time of filing his nomination papers---Validity---High Court observed that date of birth noted on record of educational testimonials was to be given preference to that noted on National Identity Card---Date of birth, recorded in record of Education Board, being earlier in time, would be the correct and true date of birth of respondent---High Court further observed that, in preference to oral or other version with regard to age, date of birth recorded on matriculation certificate would be considered as unimpeachable evidence---Appellate authority, while holding that respondent had fundamental right to contest the election, had ignored that every fundamental right was subject to law, and the law did not favour respondent having less than twenty-five years of age to claim himself being valid candidate as his fundamental right---Appellate Authority also erred in law by holding that technical objections must have been avoided---Law in question was although a technical subject, but if technicalities were not observed, then that would lead to allow foul play everywhere, which was not the intention of law---Respondent was not qualified, and his nomination papers had been illegally allowed---High Court, setting aside orders of Returning Officer and Appellate Authority, rejected nomination papers of the respondent---Constitutional petition was allowed in circumstances.

Malik Muhammad Faisal and another v. State Life Insurance Corporation through Chairman, Karachi and 2 others PLD 2007 Lah. 453 and Sher Baz Khan and others v. Mst. Malkni Sahibzadi Tiwana and others PLD 2003 SC 849 rel.

Ch. Mohammad Amin Javaid for Petitioner.

Rana Intezar for Respondent No.1.

Khawar Ikram Bhatti, Additional Advocate-General Punjab with Mohammad Ilyas ARO.

YLR 2016 LAHORE HIGH COURT LAHORE 1093 #

2016 Y L R 1093

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

KHANI GULL---Appellant

Versus

The STATE another---Respondents

Criminal Appeal No.2668 of 2010, heard on 20th November, 2015.

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

----Ss. 9(c), 6, 7 & 8----Qanun-e-Shahadat (10 of 1984), Art. 129 (g)---Possession, import and export, trafficking and financing the trafficking of narcotic drugs etc.---Appreciation of evidence---False implication, plea of---Benefit of doubt---Court may presume certain facts---Seventy-five kilogram of Charas was alleged to have been recovered from the car of the accused while he was transporting the same---Trial Court convicted the accused and sentenced him to undergo life imprisonment along with payment of fine---Material prosecution witnesses remained inconsistent with regard to the recovery of the narcotics including colour and shape of the narcotics, preparation of samples of the same, sending of the same to the Chemical Examiner, its safe custody, relevant dates, etc.---Said contradictions in statements of the prosecution witnesses reflected that the prosecution had failed to prove the safe custody of the samples and case property, which had caused dent in the prosecution story and missed the link in the chain of prosecution evidence---Prosecution had also withheld the best available evidence in shape of prosecution witness, who had allegedly handed over the complaint, sample parcels and case property to the other prosecution witness, which led to draw adverse inference in view of Art. 129(g) of Qanun-e-Shahadat, 1984---In view of the defence statement recorded under S.342, Cr.P.C, the prosecution evidence deserved to be rejected---Possibility of false implication of the accused could not be ruled out---Conviction was based on misreading, non-reading and mis-appreciation of available evidence---High Court, extending benefit of doubt, acquitted the accused---Appeal was allowed in circumstances.

Muhammad Rafique and others v. The State and others 2010 SCMR 385; Lal Khan v. The State 2006 SCMR 1846; Akhtar Iqbal v. The State 2015 SCMR 291 and Gul Noor Ali v. The State 2015 SCMR 279 rel.

R.M. Razzaq for Appellant.

Muhammad Atif Rao, DDPP for the State.

Date of hearing: 20th November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1105 #

2016 Y L R 1105

[Lahore]

Before James Joseph and Hafiz Shahid Nadeem Kahloon, JJ

ALLAH BAKHSH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.184 of 2015, heard on 9th July, 2015.

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

----Ss. 48, 32 & 74----Vehicle involved in transferring narcotic substances---Superdari of vehicle---Car allegedly containing narcotic substance of heavy quantity was apprehended by the Police---Application for supardari was dismissed---Applicant being the sole owner of car had a right of supardari for said car especially when after passage of 5-6 months there had been no progress in the case---Retention of car for an indefinite period would only deteriorate or damage the car---Absolute bar for temporarily returning the vehicle on supardari during the pendency of trial could not be justified---Prima facie it was established that applicant had no knowledge about existence of narcotic substances in his car---Court which can grant a final relief can also grant an interim relief---Since there was no material evidence which showed that the applicant knew about the narcotic substance, therefore, applicant was entitled for the supardari of his car on presenting of a surety bond and with an undertaking that the vehicle shall be produced in court as and when ordered---Appeal was allowed accordingly.

Haji Abdul Razzak v. Pakistan through Secretary Ministry of Finance and another PLD 1974 SC 5; Allah Ditta v. The State 2010 SCMR 1181 and Abdul Salam v. The State 2003 SCMR 246 rel.

Malik Aamir Manzoor Awan for Appellant.

Muhammad Ali Shahab, D.P.G. for the State.

Date of hearing: 9th September, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1113 #

2016 Y L R 1113

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD SARWAR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.1519 of 2001, heard on 1st July, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 365, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd---Appeal against acquittal---Previous enemity---Police encounter---Appreciation of evidence---Scope---Complainant contended that the police officials in connivance with other co-accused committed the murder of the sons of the complainant and in order to save their skin gave it a colour of police encounter---Complainant of the case was not an eye-witness of the abduction/ murder of the deceased, and prosecution's case was only based upon the evidence of prosecution witness who claimed that he was present at the place of occurrence when the deceased were abducted by the police officials and that on the asking of complainant he followed the accused----Held, that there was no occasion for the prosecution witness to stay at complainant's place when his own residence was 14 Kilometers away from the complainant's place of residence and he further claimed that he followed the accused in taxi car to the police station but driver of the said taxi was not produced before the Trial Court---Deceased, in the present case, were record-holders and had history of involvement in number of criminal cases including murder, dacoity and possessing illicit arms and they were killed in a genuine police encounter, whereas private accused were involved by the complainant on account of previous enemity with him---Tainted piece of evidence could not furnish any corroboration to another tainted piece of evidence---Trial Court while acquitting the accused did not commit any misreading or non-reading of evidence and when an accused was acquitted from the case after a regular trial, he enjoyed double presumption of innocence and his acquittal could not be disturbed without any strong exceptional reason---Appeal being devoid of any merit was dismissed.

Khalid Javed and another v. The State 2003 SCMR 1419; Haji Amanullah v. Munir Ahmed and others 2010 SCMR 222 and Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel.

Nemo for Appellant.

Ch. Muhammad Mustafa, Deputy Prosecutor General along with Muhammad Yasin, A.S.I. for the State.

Syed Zahid Hussain Bukhari, for Respondents Nos.2 to 4.

Ch. Riaz Ahmad Kataria, for Respondents Nos.5 and 7 to 9.

Respondents in person.

Date of hearing: 1st July, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1123 #

2016 Y L R 1123

[Lahore]

Before Ch. Mushtaq Ahmad and Qazi Muhammad Amin Ahmed, JJ

ABDUL MAALIK---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No.649 and Murder Reference No.151 of 2010, heard on 3rd November, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 364 & 201---Qatl-i-amd, kidnapping and disappearing evidence---Appreciation of evidence---Extra-judicial confession---Dead body was discovered eight months after disappearance of the deceased---Two accused faced Trial Court of which one was acquitted of the charge while the second was convicted and various sentences were imposed including death sentence---Statement attributed to accused was intriguingly comprehensive and detailed which was encyclopedia of prosecution and it embodied a very long narrative---Person under the stress of his conscious, in his quest to bring himself at peace with his soul was not expected to be so elaborate to oblige prosecution with details necessary for his prosecution---Such statement of accused was disbelieved to the extent of his co-accused who was acquitted from the charge without challenge in appeal---Confessional statement was to be accepted in totality---Present was a case of circumstantial evidence and confessional statement with disclosure pursuant thereto constituted a central link---Departure of deceased in the company of accused eight months prior to registration of case did not qualify proximity of time and space so as to be treated as last seen evidence---Circumstantial evidence could not sustain a capital charge unless found consistent and confidence aspiring so as to exclude every hypothesis of innocence through a chain of circumstances constituting a nexus between crime and the culprit---High Court set aside the conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Sardar Usman Khosa, and Ms. Sabiha Ali Chughtai, for Appellants.

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

Malik Muhammad Saleem for the Complainant.

Date of hearing: 3rd November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1147 #

2016 Y L R 1147

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

SALMAN FAROOQI---Appellant

Versus

Messrs ROSETEX through Mohammad Tariq---Respondent

F.A.O. No.243 of 2013, heard on 28th October, 2014.

Civil Procedure Code (V of 1908)---

----Ss. 39, 42, 46, O. XXI, R. 6 & O.XXXVII, Rr.1, 2---Recovery of money---Executing Court---Territorial jurisdiction--Transfer of decree---Money decree was passed by Court at place "F" and to satisfy the decree, Executing Court attached amount lying in account of judgment debtor at place "K"---Plea raised by judgment debtor was that bank account at place "K" was outside territorial jurisdiction of Executing Court at place "F"---Validity---If judgment debtor did not own property within the local limits / territorial jurisdiction of Court passing decree, sufficient to satisfy the decree, the decree could be transferred to the Court within the local limits of whose jurisdiction judgment debtor's other property was situated---Transferee Court could execute decree against such property as was situated within its territorial limits, otherwise no purpose would be served by keeping execution petition pending in the Court which had passed the same---Proper course for Executing Court was that for the satisfaction of decree, it should have transferred execution petition under S. 39, C.P.C. read with O. XXI, R. 6, C.P.C. to the Court, where bank accounts of judgment debtor were lying or where judgment debtor was residing---High Court set aside order passed by Executing Court and matter was remanded for deciding execution petition afresh---Appeal was allowed accordingly.

Ijaz Ahmed Chadhar for Appellant.

Muhammad Chand Khan for Respondent.

Date of hearing: 28th October, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 1151 #

2016 Y L R 1151

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Malik ALLAH DITTA, through L.Rs. and 9 others---Petitioners

Versus

MEMBER BOARD OF REVENUE and another---Respondents

Writ Petition No.23-R of 2010, decided on 26th June, 2014.

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

----S. 3---Scheme for Disposal of Un-allotted Rural Agricultural Land---Constitution of Pakistan, Art.199---Constitutional petition---Allotment of land---Market price of land---Petitioners were aggrieved of decision made by Board of Revenue whereby they were asked to pay price of land at current market price plus 50% penalty---Validity---Petitioners might be in possession of land in question since 1972 as pleaded by them but date of possession was not at all relevant to determine market price of land rather it was date of submission of application intimating intention to exercise option for purchase of land---Petitioners were estopped by their conduct to claim fixation of price of land other than the market price, for they themselves had agreed to purchase land in question by making payment at market price before High Court earlier on 26-3-1991, when a compromise deed was filed which was signed and thumb marked by all petitioners and was available on record of High Court---No illegality or irregularity was noticed in order passed by Board of Revenue---Constitutional petition was dismissed in circumstances.

Abdul Majid v. Deputy Settlement Commissioner and others PLD 1978 Lah. 912 ref.

Saif-ul-Haq Ziay for Petitioners.

Ghazanfar Khalid Saeed for Respondents.

Muhammad Nasir Chohan, A.A.-G. for the State.

Date of hearing: 5th June, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 1173 #

2016 Y L R 1173

[Lahore]

Before Aslam Javed Minhas, J

ABDUR RAB PATWARI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.442 of 2009, heard on 12th November, 2015.

Prevention of Corruption Act (II of 1947)---

----S. 5 (2)---Penal Code (XLV of 1860), S.409---Criminal breach of trust and misconduct---Appreciation of evidence---Misuse of official power---Entering of wrong mutations---Accused was Patwari (revenue official) consolidation who entered disputed mutations without any authority, despite restriction imposed by Consolidation authorities---Trial Court convicted the accused and sentenced to imprisonment for two years---Validity---Accused misused his official powers by entering disputed mutations despite he was not competent to enter any mutation after 23-1-2002, till finalization of the operation i.e. 30-6-2005 as per letter addressed by Consolidation authorities---Series of mutations were entered by accused and on so many mutations, no date had been mentioned there and the same were also without signatures of competent authority---Such act of accused was very crucial and beyond his official powers which caused loss to government treasury---Accused also admitted allegation while recording his first version before investigating officer to the effect that he on the asking of co-accused since declared proclaimed offender entered mutations after mutation of Ishtarak on assurance of Consolidation Officer but he rejected the same to legalize mutations registered afterward---Accused failed to point out any misreading or non-reading of evidence---High Court declined to interfere in conviction and sentence awarded to accused as judgment passed by Trial Court was based on proper appraisal of proof---Findings of Trial Court were fully supported by evidence on record---Appeal was dismissed in circumstances.

Shakeel Javed Ch., for Appellant.

Ch. Muhammad Akbar, DPG.

Nazir Ahmed A.S.-I. with Abdur Rab for the State.

Date of hearing: 12th November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1191 #

2016 Y L R 1191

[Lahore]

Before Muhammad Tariq Abbasi, J

MUHAMMAD ALTAF---Petitioner

Versus

DISTRICT JUDGE and 3 others---Respondents

Writ Petition No.3150 of 2011, decided on 2nd June, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Consent decree, setting aside of---Contention of applicant was that he had decree of same property in his favour---Application moved under S. 12(2), C.P.C. was dismissed concurrently---Validity---Framing of issues was not always necessary in an application filed under S. 12(2), C.P.C. but same would not mean that issues in such application should not be framed at all---Issues should be framed and evidence should be recorded if serious questions of facts and law were involved which could not be decided without evidence---Framing of issues and recording of evidence/version of both the parties was necessary to decide present application---Applicant should be given an opportunity to prove the document and respondents to contradict the same---Criminal proceedings against the applicant for preparing forged document and filing the same in the court should be initiated if such document was found to be a forged one---Way in which both the courts below had decided the present application was not justified---Impugned orders were set aside and case was remanded to the Trial Court for deciding the same after framing of issues---Constitutional petition was accepted in circumstances.

Muhammad Umar Awan for Petitioner.

Haider Mehmood Mirza for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 1205 #

2016 Y L R 1205

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

SAEEDA GULL and others---Appellants

Versus

The STATE---Respondents

Criminal Appeals Nos.947 of 2010 and 135-J of 2012, heard on 27th October, 2015.

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

----S. 9(c)----Possession, import or export, trafficking or financing trafficking of narcotic drugs---Appreciation of evidence---Prosecution failed to prove recovery of narcotic substances and safe custody of the same---False implication, plea of---Twenty kilograms of Charas along with cash were alleged to have been recovered from accused, while they were transporting the same---Trial Court, having convicted accused under S. 9(c) of Control of Narcotic Substances Act, 1997, sentenced them to undergo life imprisonment, along with payment of fine---Prosecution had neither established safe custody of recovered substance, nor had it produced all recovery witnesses---Statements of police witnesses as to handing over of accused and case property were contradictory---Prosecution was under duty to establish by cogent evidence that the Charas, seized from possession of accused, had been kept in safe custody---Place, where samples of the recovered substance had been kept during time from its seizure till its deposit in Malkhana on the same day, was not clear---Recovered narcotic substance was shown to have been handed over to police constable for its transmission to Chemical Examiner Office after many days of the recovery; whereas, the samples were deposited in Chemical Examiner Office on the next day---Mere oral evidence as to recovery of Charas could not discharge the heavy burden, which lay on prosecution---Prosecution, in view of said inconsistencies and contradictions, was not able to prove safe custody of the recovered substance through material and cogent evidence---Police witness deposed that he had separated ten grams from each packet for chemical analysis, but during cross-examination, he had admitted that they had weights in their investigation box from twenty grams to two kilograms---Said contradictions in deposition of police officials could be stated to be minor and irrelevant in absence of positive and material evidence---Prosecution had failed to prove the charges against the accused---High Court, setting aside conviction, acquitted all accused---Appeals against conviction were accepted accordingly.

Mian Abdul Waheed for Appellants (in Crl. A. No.947 of 2010).

Shahid Ali Shakir for Appellants (in Crl. A. No.135-J of 2012).

Muhammad Akhlaq, Deputy Prosecutor General for the State.

Date of hearing: 27th October, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1211 #

2016 Y L R 1211

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD MUKHTAR and 7 others---Petitioners

Versus

MUHAMMAD ASLAM---Respondent

C.R. No.959-D of 2005, decided on 4th June, 2015.

Partition Act (IV of 1893) ---

----S. 4---Civil Procedure Code (V of 1908), O. VII, R. 14---Qanun-e-Shahadat (10 of 1984), Art. 140---Suit for possession through partition---Family settlement---Scope---Plaintiffs attempted to improve their case which was not permissible under the law---Plaintiffs had not mentioned any writing in the plaint with regard to private partition of suit property---Private partition stated to have been effected between the parties was not reduced into writing---Had such document been in existence then a copy thereof would have been annexed to the plaint or reliance could have been made---Document of private partition was not put to the defendant or to any of his witnesses which had cast doubt on its genuineness---Both the courts below had rightly discarded said document of private partition---Family partition had taken place but same was never reduced into writing---Findings recorded by the courts below were not open to challenge when same were neither contrary to record nor offensive to the law---Revision was dismissed in circumstances.

Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564; Mst. Zaitoon Begum v. Nazeer Hussain 2014 SCMR 1469; Noor Muhammad v. Mst. Azmat Bibi 2012 SCMR 1373 and Administration Thal Development Authority's case 2012 SCMR 730 rel.

Tahir Mahmood for Petitioners.

Malik Abdul Khaliq for Respondent.

YLR 2016 LAHORE HIGH COURT LAHORE 1233 #

2016 Y L R 1233

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

FARZAND ALI and others---Petitioners

Versus

BASHIR AHMAD---Respondent

C.R. No.807 of 2005, heard on 16th January, 2015.

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

----S. 42---Transfer of Property Act (IV of 1882), S. 54---Qanun-e-Shahadat (10 of 1984), Arts. 129 (g) & 78---Suit for declaration---Limitation---Sale deed---Proof---Non-appearance of plaintiff in witness box---Effect---Contention of plaintiff was that he was owner in possession of suit land and sale deed in favour of defendant was illegal, void and was result of fraud and misrepresenta-tion---Suit was decreed by the Trial Court but the same was dismissed by the Appellate Court---Validity---Defendant being beneficiary of sale deed had failed to produce the scribe, identifier, Sub-Registrar and one of the marginal witnesses of the same before the Trial Court to prove the valid execution of sale deed---Best evidence had been withheld by the defendant without any justification---Inference under Art. 129 (g) of Qanun-e-Shahadat, 1984 had to be drawn against the defendant---Solitary statement of one marginal witness of sale deed was not sufficient to prove its valid execution---Beneficiary could not succeed to prove his case as pleaded in the written statement in absence of such best evidence---No presumption of truth would attach to the registered document the execution of which had been disputed---Execution of such document had to be proved by production of relevant evidence---Defendant being beneficiary was bound to prove that executant had validly sold out the suit property in terms of disputed sale deed after receiving the entire sale consideration and possession of suit land was delivered to him in pursuance thereof---Defendant being beneficiary should have produced the witnesses in whose presence the bargain of sale was struck and price was paid to the vendor---If payment or the consideration of the alleged sale had not been proved on record, there could be no sale in the eye of law---Whenever any instrument/deed/ document was challenged, the burden would lie on its beneficiary to prove the same as well as original transaction embodied in the said document which he was required to fall back upon---Beneficiary had failed to prove the sale transaction alleged to have been effected between the parties---Plaintiff was an illiterate person and there was no evidence on record that he was aware of the contents of sale deed when he had put his thumb impression thereon---Mere admission of putting thumb impression on the instrument would not amount to prove its execution---Non-appearance of plaintiff in the witness box was not fatal as defendant had failed to prove valid execution of sale deed as well as settlement of transaction by production of relevant witnesses---No limitation would run against fraud---Every new entry in the revenue record on the basis of a forged document would create a fresh cause of action---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored---Revision was accepted in circumstances.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688; Fida Hussain v. Murad Sakina 2004 SCMR 1043; Fida Hussain v. Abdul Aziz PLD 2005 SC 343; Muhammad Afzal v. Matloob Hussain PLD 2006 SC 84; Mir Ajam Khan v. Mst. Quresha Sultana and others 2006 SCMR 1927; Gul Daraz v. Gul Noor 2010 CLC 1331; Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385; Ahmad Ali v. Bashir Ahmed 2013 YLR 1870 and Abdul Rahim v. Jannatay Bibi 2000 SCMR 346 rel.

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

----Sched. I, Art. 1---Specific Relief Act (I of 1877), Ss. 42 & 39--- Suit for declaration and cancellation of document---Court fee, determination of---Procedure---Plaint as a whole should be looked at in order to determine the court fee payable on the same---Substance of the plaint and not its ostensible form would matter for the purpose of determining the court fee---When a party had sought to establish a title to the property in himself and could not establish that title without removing as obstacle such as deed by which he was otherwise bound, he must get that deed avoided and his suit though camouflaged in a declaratory form must in reality be a suit for cancellation of the document---Plaintiff was alleged to have sold out properties in favour of the defendant and unless sale deed was avoided in toto the plaintiff could not succeed in his suit for cancellation of document---Registered sale deed was an insuperable obstacle in the way of the plaintiff for getting the appropriate relief claimed by him---Suit was put in the form of declaratory relief for avoidance of registered sale deed yet the suit was visibly intended for cancellation of sale deed---Plaintiff was liable to payment of ad valorem court fee on the value of the subject matter in dispute---Plaintiff was directed to affix court fee of Rs. 15,000/- on the instant civil revision and another court fee of Rs. 15,000/- should also be affixed by the plaintiff on the plaint before the Trial Court within a specified period.

----S. 54---"Sale"---Ingredients---Essential ingredients of "sale" were the parties; the subject matter; the transfer of conveyance and the price or consideration.

(d) Fraud---

----Limitation---No limitation would run against fraud.

Mehdi Khan Chohan and Tahir Naved Mughal for Petitioners.

Sarfraz Khan Gondal for Respondent.

Date of hearing: 16th January, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1252 #

2016 Y L R 1252

[Lahore]

Before Masud Abid Naqvi, J

Messrs HAROON OILS LTD. Through General Sales Manager---Petitioner

Versus

PAKISTAN RAILWAYS through Director Property and Land and others---Respondents

Writ Petition No.13248 of 2013, decided on 31st December, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Impugned letter was undisputedly issued by the competent authority making demand of outstanding rental/arrears---No illegality had been pointed out in the impugned letter to bring the case within the ambit of constitutional jurisdiction---Disputed questions of facts requiring a full fledged trial for their resolution could not be agitated in constitutional jurisdiction---Constitutional jurisdiction was not intended for deciding disputed facts and to frustrate the general or procedural law---Disputed questions of facts could only be adjudicated after recording of evidence of the parties in trial before the forum of plenary jurisdiction---Inquiry was needed to settle issues of facts requiring oral as well as documentary evidence for which constitutional petition was not an appropriate remedy---Constitutional jurisdiction was intended for providing prompt remedy in cases where legality or illegality of the assailed act of the executive or other authority could be established without an intricate inquiry into complex or uncertain facts---Constitutional petition involving contractual rights, commitments, undertakings, minutes of meetings, obligations and factual controversies requiring recording of evidence was not cognizable by the High Court in its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Khalid Mahmood v. Collector of Customs, Lahore, Custom House, Lahore 1999 SCMR 1881; Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. PLD 2001 Kar. 344; Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37; Messrs SF Engineering Services through Proprietor v. Federation of Pakistan through Secretary, Water and Power, Islamabad and 4 others PLD 2014 Sindh 378; Abdul Hadi v. Government of Balochistan, Local Government Rural Development Agrovilles Department through Secretary and 2 others 2014 CLC 1450 ref.

Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37; Messrs SF Engineering Services through Proprietor v. Federation of Pakistan through Secretary, Water and Power, Islamabad and 4 others PLD 2014 Sindh 378; Pakcom Ltd.'s case PLD 2011 SC 44; Noor Muhammad Qureshi and another v. The Divisional Superintendent, Pakistan Railways, Quetta 1979 SCMR 157; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Piple Lines (Pvt.) and others 2004 SCMR 1274 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268 rel.

Ahmad Rauf for Petitioner.

Lisanullah Khan, Muhammad Iftikhar-ur-Rasheed, AAG with Deputy Director Property and Land Railways and Basharat Hussain, Sr. Legal Inspector Railway, Lahore for Respondents.

Date of hearing: 4th December, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 1266 #

2016 Y L R 1266

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD NAEEM IQBAL KHAN---Petitioner

Versus

WASEEM SHAFI and 12 others---Respondents

C.R. No.32 of 2015, heard on 21st January, 2015.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Application under S.12(2), C.P.C.---Scope---Such application was to be filed before the court which passed the "final judgment"---When second appeal had not been decided on merit, same could not be termed as "final judgment" within purview of S. 12(2) of C.P.C---Final judgment, decree and order could only be challenged by filing an application under S.12(2), C.P.C., if the case had been decided on merits both on points of facts and the law involved therein.

Nasrullah Khan and others v. Mukhtar-ul-Hassan and others PLD 2013 SC 478 and Muhammad Aslam (deceased) through L.Rs. and others v. Molvi Muhammad Ishaq (deceased) through L.Rs. 2012 SCMR 147 ref.

Muhammad Shareed Karkhi Khera for Appellants.

Makhdoom Ijaz Hussain Bukhari and Mian Anwar Mubeen Ansari for Respondents.

Date of hearing: 21st January, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1285 #

2016 Y L R 1285

[Lahore]

Before Zafarullah Khan Khakwani, J

AHMED DIN---Petitioner

Versus

MUHAMMAD SAEED and 2 others---Respondents

Civil Revision No.279 of 2006, heard on 23rd December, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Talb-i-Ishhad, performance of---Requirements---Pre-emptor was bound to serve notice of Talb-i-Ishhad upon the vendee conveying him that he having superior right over the vendee; wanted to purchase the disputed land as he was in need of the same and in case he was not given the said land, he had intention to pre-empt---Pre-emptor was bound to produce marginal witnesses of notice of Talb-i-Ishhad to prove the same---Major contradiction was on record with regard to performance of Talb-i-Ishhad---Notices of Talb-i-Ishhad were not delivered to the defendants---Plaintiff had failed to prove that notice of Talb-i-Ishhad was delivered to the defnendats or not and his suit was rightly dismissed---Both the courts below had thoroughly examined the evidence available on record and passed the concurrent judgments---No illegality, irregularity or non-reading/misreading of evidence was pointed out in the impugned judgments passed by the courts below---Revision was dismissed, in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

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

----S. 115---Revisional jurisdiction of High Court--- Scope--- Limited--- High Court could not re-appraise and re-evaluate the merits of the case in absence of any illegality or non-reading/mis-reading of evidence while exercising revisional jurisdiction.

Kanwal Nain v. Fateh Khan PLD 1983 SC 53; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 and Maulvi Muhammad Azeem v. Alhaj Mahmood Khan Bangish and another 2010 SCMR 817 rel.

Mahmood Azam Baloch for Petitioner.

Khalid Mahmood Mughal for Respondents.

Date of hearing: 23rd December, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 1300 #

2016 Y L R 1300

[Lahore]

Before Masud Abid Naqvi, J

Mst. ROSHAN ARA BEGUM and 8 others---Petitioners

Versus

MUHAMMAD BANARAS and another---Respondents

C.R. No.917-D of 2012, decided on 12th January, 2015.

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

----Ss. 42 & 8---Suit for declaration and possession--- Co-sharer--- Scope---Contention of plaintiffs was that disputed property was gifted to their father---Suit was dismissed concurrently---Validity---Plaintiffs had failed to prove the gift and their exclusive possession on the suit property through documentary as well as oral evidence---Defendants were owners in possession of disputed property---Registered sale deed had been properly executed in favour of defendants---Defendants had purchased the suit shop from a co-sharer and had also become co-sharer in the joint property---Co-sharer could not file a suit for declaration and possession against the other co-sharer but only a suit for partition could be filed---No misreading or non-reading of material evidence had been pointed out in the impugned judgments passed by both the courts below---Both the courts below had meticulously examined the entire evidence of the parties---No infirmity, legal or factual had been pointed out in the impugned judgments---Revision was dismissed in limine.

Mst. Sanobar Sultan and others v. Obaidullah Khan and others PLD 2009 SC 71 and Abdul Qadoos through L.Rs. v. Habibur Rehman and others 2010 SCMR 52 rel.

(b) Co-sharer---

----Co-sharer could not file a suit for declaration and possession against the other co-

sharer but a suit for partition could only be filed.

Mst. Sanobar Sultan and others v. Obaidullah Khan and others PLD 2009 SC 71 rel.

Haroon Arshad Janjua for Petitioners.

YLR 2016 LAHORE HIGH COURT LAHORE 1316 #

2016 Y L R 1316

[Lahore]

Before Mirza Viqas Rauf, J

WAHAB AHMAD---Petitioner

Versus

Mst. SHAISTA JABIN and another---Respondents

Writ Petition No.2603 of 2015, heard on 2nd February, 2015.

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

----Ss. 7(2) & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Amendment in list of witnesses---Omission to mention names of all witnesses in the list appended with plaint---Application under S. 7(2) of the Family Courts Act, 1964 for incorporation of additional witnesses in the list of witnesses---Maintainability---Family Court allowed the application and incorporated the names of witnesses in the list---Petitioner assailed said order on the ground that as names of the intended witnesses had not been initially mentioned in the list appended with plaint, application under S. 7 of Family Courts Act, 1964 was not maintainable---Validity---Provisions of S. 7 did not contain any inflexibility to cater with such a situation, as proviso to the subsection (2) of S. 7 of the Family Courts Act, 1964 bestowed authority upon the Court to permit a party to call any witness at any later stage where the Court considered such evidence expedient in the interest of justice---No consequences were provided for non-compliance of S. 7, which brought its provision out of the mandatory nature---Constitutional petition was dismissed in limine.

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

----S.7----Civil Procedure Code (V of 1908) O. XVI---Calling or producing witnesses other than the ones mentioned in the list of witnesses---Scope---Command contained in O. XVI, C.P.C. was entirely different from the mandate given under S. 7 of the Family Courts Act, 1964---Under O. XVI, C.P.C., three pre-conditions were to be satisfied before seeking permission to call or produce a witness other than those contained in the list of witnesses that were: permission of court, party applying for permission to show good cause for omission to mention names of all witnesses in the list of witnesses and court had to record reason for allowing a party to produce a witness---Under S. 7 of the Family Courts Act, 1964, while allowing application for production of a witness not mentioned in the list of witnesses, the only point for the consideration of the court was as to whether such evidence was expedient in the interest of justice.

----S.17----Civil Procedure Code (V of 1908), Ss.10 & 11---Procedure of Family Court---Applicability of provisions of C.P.C. to the proceedings before Family Court---Scope---Section 17 of the Family Courts Act, 1964 specifically states that the provisions of Civil Procedure Code, 1908 are not applicable to the proceedings before Family Court---Family Court has been absolved from the procedural rigors provided under the Civil Procedure Code, 1908---Section 17 of the Family Courts Act, 1964 has exempted all the provisions of the Civil Procedure Code, 1908 from their applicability to the proceedings before Family Court except its Ss. 10 & 11.

(d) Family Courts Act (XXXV of 1964)---

----Preamble---- Scope--- Intent of legislature---Family Courts Act, 1964 provides speedy mechanism for the resolution of issues arising from the matrimonial relations---Intent of legislature is to provide the speedy justice to all the concerned by simplifying the procedure for resolution of family disputes---Family Court, for advancement of justice, can adopt any of the mode which is not specifically prohibited under the law.

(e) Constitution of Pakistan---

----Art. 199---Constitutional Jurisdiction---Scope---Interlocutory and interim order---Unless an interlocutory and interim order suffers with patent illegality, or either side is prejudiced, constitutional jurisdiction cannot be exercised to set the same at naught.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 distinguished.

Malik Irfan Ahmed Gheba v. Zubi Irfan and 4 others 2004 MLD 635; Amjad Javed v. JFC and others 2005 MLD 1776 and Muhammad Akram v. Judge, Family Court and others 2009 CLC 269 ref.

Ch. Muhammad Ismail for Petitioner.

Date of hearing: 2nd February, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1329 #

2016 Y L R 1329

[Lahore]

Before Ch. Mushtaq Ahmad, J

MEHDI HASSAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.297 and Criminal Revision No.231 of 2007, heard on 2nd July, 2015.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Complainant and prosecution witnesses stated that they had witnessed the incident under a light of bulb and that the accused and co-accused opened fire at the deceased while one of the co-accused gave butt blows on the forehead and nose of the deceased---No description of weapon were mentioned by complainant or any of the prosecution witnesses; accused remained on judicial remand but nothing was recovered from him---Electric bulb was not taken into possession---Accused persons were found innocent in the investigation---Prosecution was bound to prove its case beyond reasonable doubt and benefit of doubt was to be given to the accused as a matter of right but not as a grace, accused was acquitted, and appeal was allowed accordingly.

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

----Art. 46---Dying declaration---Scope---Statement of deceased (then injured) in the form of dying declaration---No certificate from the doctor regarding fitness of deceased having been obtained prior to recording his statement, statement of injured was not reliable.

Mudassar Altaf Qureshi for Appellant.

Hassan Mahmood Khan Tareen, Deputy Prosecutor General for the State.

Mian Qamar-ud-Din for the Complainant.

Date of hearing: 2nd July, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1341 #

2016 Y L R 1341

[Lahore]

Before Farrukh Gulzar Awan, J

RAB NAWAZ---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No.6953-B of 2015, decided on 2nd July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Pakistan Arms Ordinance (XX of 1965), S.13(2)(c) [as substituted through Punjab Arms (Amendment) Act (XV of 2015)]---Recovery of arms and ammunition---Bail, grant of---Exercise of discretion---Principles---Accused was caught red-handed at the spot along with huge quantity of prohibited ammunition---Ammunition if not recovered would have been used against public tranquility---Grant or refusal of bail was totally a discretionary relief but in the offenses punishable with death, imprisonment for life or imprisonment for ten years the court had to exercise its discretion for refusal of bail firstly on the ground that there was likelihood of abscondence of accused, secondly, there was apprehension of accused tampering with prosecution evidence, thirdly, there was danger of offense being repeated and lastly, where the accused was a previous convict---Accused was resident of province of Khyber Pakhtunkhwa and there was every possibility of his being abscondence if released on bail---Charge against accused was heinous in nature and in such like cases of public tranquility court should limit itself to exercise its discretion for grant of bail---Bail was dismissed in circumstances.

Raja Nadeem Haider for Petitioner.

Abdul Jabbar Dogar, DDPP and Mazhar Iqbal, ASI for the State.

YLR 2016 LAHORE HIGH COURT LAHORE 1350 #

2016 Y L R 1350

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD UMAR GULL---Appellant

Versus

NASIR JAVED---Respondent

R.S.A. No.248 of 2014, decided on 2nd February, 2015.

Specific Relief Act (I of 1877)---

----Ss. 12 & 21 (d)---Contract Act (IX of 1872), S. 55---Suit for specific performance of contract---Time as essence of contract---Scope---Whether time was essence of contract had to be determined from the intention of the parties as gathered from the facts and circumstances of the case---Mere mentioning of time in the contract did not necessarily lead to the conclusion that time was the essence of the contract---Plaintiff, in a case when time was essence of the contract, had failed to perform his part of agreement up till the due date---Agreement had become void and unenforceable---Suit for specific performance was not maintainable---Plaintiff had been rightly non-suited by the courts below in accordance with law---No misreading, non-reading of evidence, perversity, factual or legal infirmity had been pointed out in the impugned judgments and decrees passed by the courts below---Second appeal was dismissed in circumstances.

Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431 rel.

Nisar Ahmad for Appellant.

YLR 2016 LAHORE HIGH COURT LAHORE 1362 #

2016 Y L R 1362

[Lahore]

Before Muhammad Yawar Ali and Aalia Neelum, JJ

The STATE---Appellant

Versus

NAZIRAN BIBI---Respondent

Crl. Appeal No.764 of 2008, decided on 15th December, 2014.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S.417---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Possessing and trafficking narcotics---Appeal against acquittal---Reappraisal of evidence---Law Officer had submitted that reappraisal of marginal witness of the recovery memo, who was star witness, was required---Even assuming that another view could be taken against accused in respect of the charge, that could not be ground to set aside an order of acquittal---In order to succeed, the State must show that the findings recorded by the Trial Court, could effectively be dislodged; and such findings were unwarranted---Said marginal witness of recovery memo, had furnished ocular account of alleged recovery, whereas during the cross-examination he denied his presence at the time of alleged recovery and arrest of accused---Evidence of the witness had left the impression that alleged recovery of narcotic substance was not recovered in his presence from the possession of accused; and that he had, later, on come to know that alleged narcotic was recovered from the accused---Said witness had himself laid the foundation for disbelieving him---Prosecution had offered no explanation for non-citing name of important witness, a lady constable, who searched accused---No effort was made by the prosecution to join the lady constable in the investigation to bring the witness as prosecution witness---Evidence of the lady constable, in the totality of facts and circumstances of the case, was 'material' for the purpose of the case---Court was entitled to draw an adverse inference as provided in Art.129(g) of Qanun-e-Shahadat, 1984; and came to the conclusion that said witness had been purposely not cited in calendar of the witnesses, because, if produced, it would have been totally unfavourable to the prosecution version---Star witness did not support the prosecution case---Prosecution had failed to bring home the charge against accused to convict her for the commission of alleged offence---No probability existed that accused would be convicted of the offence charged for appeal against acquittal of accused being without merit, was dismissed, in circumstances.

Iftikhar-ul-Haq, Addl. Prosecutor General Punjab for Appellant.

Nemo for Respondent.

YLR 2016 LAHORE HIGH COURT LAHORE 1367 #

2016 Y L R 1367

[Lahore]

Before Mushtaq Ahmad Tarar, J

Hafiz BASHEER AHMAD---Petitioner

Versus

APPELLATE AUTHORITY/ ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

W.P. No.16748 of 2015, heard on 12th November, 2015.

Punjab Local Government (Conduct of Elections) Rules, 2013---

----Rr. 12 (3) (b), 14 (6) & 16---Punjab Local Government Act (XVIII of 2013), S. 13---Election for local government---Joint candidature of Chairman and Vice Chairman of Union Council---Withdrawal of nomination papers by one member from the panel---Procedure---One of the members of panel of Chairman and Vice Chairman submitted application for withdrawal of his nomination papers which was rejected by the Returning Officer---Validity---Individual candidate could file application or he could submit notice in writing signed by him for withdrawal of his candidature but in case of joint candidatures said notice or application must be signed by both the candidates---Chairman and Vice Chairman of Union Council had to contest the election in a panel of joint candidates---Both the said candidates had to submit joint nomination papers signed by both of them as well as their proposer and seconder---Returning Officer had to accept or reject their nomination papers jointly and not individually---Both the candidates had to sign the application for withdrawal of their nomination papers or notice for withdrawal for the said purpose---Neither the candidate for Chairmanship nor for Vice Chairman could withdraw the joint nomination papers submitted by them in the panel as joint candidature---Candidate-petitioner had no right to withdraw joint nomination papers at his own without consent and signature of other candidate---Impugned orders had been passed in accordance with law---Constitutional petition was dismissed accordingly.

Sheikh Jamshed Hayat for Petitioner.

Malik Muhammad Usman Bhatti for Respondent No.3.

Shaukat Bilal Khan Bangush, Standing Counsel with Dr. Irshad Hussain, Returning Officer, UC 164- 171.

Date of hearing: 12th November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1398 #

2016 Y L R 1398

[Lahore]

Before Raja Shahid Mehmood Abbasi, J

SHAHEEN ULLAH---Petitioner

Versus

ALLAH NOOR and another---Respondents

Crl. Misc. No.1016-BC of 2015, decided on 3rd November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 497(5)---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, cancellation of---Case of further inquiry---Opinion of investigating officer---Accused was granted bail by Trial Court on the ground of further inquiry as investigating officer had found version of complainant as false---Plea raised by complainant was that ipse dixit of police was not binding on Court and accused had misused concession of bail---Validity---Prima facie case of accused fell within the ambit of further inquiry and sound reasons were furnished by Trial Court---Although the Court was not bound to the Ipse dixit of police yet the same was relevant at bail stage specially when finding was with regard to innocence of accused---If accused person was enlarged on bail under S. 497(2), Cr.P.C., then ordinarily the Court should be very slow to interfere with that order on the ground of misusing the concession of bail---Reasons for grant of bail and its cancellation were totally different---Court could only exercise its powers under S. 497(5), Cr.P.C., where reasons for grant of bail were artificial, fanciful or arbitrary---Complainant failed to point out any such reason---Application was dismissed in circumstances.

Doctor Muhammad Aslam v. The State 1993 SCMR 2288; Manzoor and others v. The State PLD 1972 SC 81; Bashir Ahmad v. The State 2005 PCr.LJ 967; Nasir Khan v. Waseel Gull and another 2011 SCMR 707 and Munir Ahmed Saifi v. Muhammad Javed and 6 others 2007 PCr.LJ 108 rel.

Raja Muhammad Farooq and Ghulam Sarwar for Petitioner.

Naveed Ahmad Warraich, DDPP with Nazeer Baig for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 1433 #

2016 Y L R 1433

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD ASHRAF---Petitioner

Versus

Mst. UZMA QAMAR and others---Respondents

W.P. No.26492 of 2014, decided on 17th December, 2015.

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

----Ss. 9 & 12---Guardianship petition---Welfare of minor, determination of---Temporary custody of minors---Guardian Court, while dismissing the guardian petition, gave custody of two minor sons to the respondent/mother and allowed the petitioner/father to get their temporary custody on every Saturday for twenty-four hours, for three days on Eid-ul-Azha, for the month of July of every year during summer vacations and for the last week of December of every year during winter vacations---Appellate Court upheld the order of the Guardian Court with the modification that the minors were allowed to see the father only once a month on Saturday---Validity---Confidence shown, and achievements already made, by the minors were due to the care and attention by their mother---Mother had not contracted second marriage, and she appeared to be committed with the minors--- Development of child's personality was directly in proportion to the level of care and attention given by the mother---Mother should have been given the credit of the appreciable conduct of the minors---Best intention or acts of the father could not possibly substitute the company of the mother---High Court, maintaining the concurrent findings of the courts below, restored the meeting schedule as set out by the Guardian Court--- Constitutional petitions were dismissed in circumstances.

Shehzada Mazhar for Petitioner.

Mian Shahid Iqbal for Respondent No.1.

YLR 2016 LAHORE HIGH COURT LAHORE 1441 #

2016 Y L R 1441

[Lahore]

Before Mehmood Maqbool Bajwa, J

PERVAIZ RASHEED and others---Petitioners

Versus

EX-OFFICIO JUSTICE OF PEACE and others---Respondents

W.P. No.22661 of 2014, decided on 26th August, 2014.

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

----S. 22-A(6)---Constitution of Pakistan, Art.199---Constitutional petition---Power of Justice of Peace to issue appropriate direction to the Police authorities---Scope---Prayer for constitution of larger bench to determine the legality and binding force of S.22-A, Cr.P.C. in view of admission of constitutional petitions for regular hearing, issuance of injunctive order regarding suspension of proceedings before Justice of Peace; and order made by Justice of Peace, issuance of notices to Federation of Pakistan, and Governor of Punjab was declined by High Court.

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

----S. 22-A---Constitution of Pakistan, Art. 199---Powers of Justice of Peace---Scope---Leave granting order of Supreme Court---Effect---Leave granting order by the Supreme Court, and issuance of notices to Attorney General and Advocate Generals of the four Provinces in an appeal whereby vires of S.22-A, Cr.P.C. was challenged, by itself would not be sufficient to suspend the proceedings relating to scope of S.22-A, Cr.P.C. in constitutional petitions before the High Court---"Leave granting order or leave refusing order" by the Supreme Court was not a "judgment".

University of Health Sciences and others v. Mumtaz Ahmad and another 2010 SCMR 767 ref.

----S. 22-A(6)---Powers of Justice of Peace to issue appropriate directions to the Police authorities---Hearing of accused---Necessity---Hearing of accused, was not necessary by Justice of Peace, prior to making any order while deciding the petition under S. 22-A(6), Cr.P.C.

Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208; Sanaullah v S.H.O., Police Station Civil Lines, Gujrat and 3 others PLD 2003 Lah. 228; and Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 ref.

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

----Ss. 22-A(6), 154 & 156---Purpose and object of recording of FIR---Inquiry as to correctness or otherwise of allegations---Recording of FIR, was to set the criminal law in motion, and to obtain first hand information of occurrence, in order to exclude possibility of fabrication of story; or consultation or deliberation, and to safeguard accused of such like happenings---Registration of FIR against a person, would not prove his guilt till decision by court of competent jurisdiction---Such report could not be used as substantive piece of evidence against any accused, unless proved in accordance with law---Inquiry as to correctness or otherwise of allegations, was not required to be made prior to registration of FIR, though degree of care and caution was required while proceedings under S.22-A(6), Cr.P.C.---Investigating Officer was supposed to collect evidence in order to reach conclusion regarding veracity or falsity of allegations referred to in the crime report---Arrest of a suspect or an accused, was not necessary during the course of investigation; and the general impression in that regard, was misconceived, because a person named in the FIR, was not to be arrested straightaway upon registration of FIR, or as a matter of course, unless there was sufficient incriminating evidence regarding culpability of accused---Arrest of accused was to be deferred till the availability of incriminating evidence in order to satisfy the Investigating Officer regarding correctness of allegations levelled by the complainant against person named in the crime-report.

Mushtaq Hussain and another v. The State 2011 SCMR 45; Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Sanaullah v. S.H.O. Police Station Civil Lines, Gujrat and 3 others PLD 2003 Lah. 228 and Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 ref.

(e) Constitution of Pakistan---

----Arts. 185(3) & 189---Order granting or refusing leave by Supreme Court---Binding force of---Order of issuing notices to the Attorney General for Pakistan and Advocate General, in order to hear view point of Government and other adversary on the point agitated in the case, would not be sufficient to suggest those orders as 'judgment'; because there was no final adjudication in that regard, and no question of law had yet been decided---Order granting leave or refusing the same, was not a "judgment" and as such was not binding.

Khairullah v. Sultan Muhammad and another 1997 SCMR 906; Rustam Ali and 2 others v. Haider Bakhsh and another 1988 Civil Law Cases 779; Noor Muhammad v. Province of Sindh and others 1995 Civil Law Cases 952; Muhammad Amin v. Muhammad Yasin and another 2002 Civil Law Cases 231; Syed Ghazanfar Hussain through Legal Heirs and others v. Noor-ud-Din and others 2011 Civil Law Cases 1303; University of Health Sciences and others v. Mumtaz Ahmad and another 2010 SCMR 767; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208; Sanaullah v S.H.O., Police Station Civil Lines, Gujrat and 3 others PLD 2003 Lah. 228; Lal Bakhsh v. The State PLD 2004 Kar. 532 and Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" PLD 2005 Lah. 470 ref.

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

----S. 22-A(6)---Powers of Justice of Peace---Scope---Discretion had been given to the Justice of Peace to decide the matter keeping in view the facts and circumstances of the case---No compulsion in each and every case to issue direction for registration of case---Justice of Peace had to pass a suitable and proper order while taking into consideration the facts and circumstances of the case; and yardstick to exercise jurisdiction---Each and every case, had to be decided keeping in view its own facts and circumstances; and no hard and fast rule could be formulated as to which type of order had to be made by Justice of Peace---Justice of Peace, must be conscious that order had not to be made in a mechanical way---Discretion had to be exercised justly, fairly, reasonably; and arbitrary exercise of discretion, would be held to be inconsistent with the mandate of the Constitution---If a person would approach the court for registration of the case, the omission on the part of local Police, while taking into consideration the reasons for such non-feasance, would give domain to Justice of Peace to make an appropriate order---Provision of S.22-A, Cr.P.C., was part of procedural law, just providing a forum to redress the grievance of aggrieved party subject to the conditions mentioned therein, and did not highlight a yardstick for making appropriate order.

Ramana Dayaram Shetty v. International Airport Authority of India and others (1979) 3 Supreme Court Cases 489; Commissioner of Income Tax, Bombay and others v. Mahidra and Mahindra Ltd. and others AIR 1984 SC 1182; Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650; Abid Hussain and others v. P.I.A.C. and others 2005 SCMR 25; State of NCT of Delhi and another v. Sanjeen alias Bittoo (2005) 5 Supreme Court Cases 181 and Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817 ref.

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

----Ss. 22-A(6) & 154---Justice of Peace---Exercise of discretion---Scope---Discretion had to be exercised for making an appropriate order---If there was no yardstick before the Justice of Peace, he would not be able to make an appropriate order in the case brought before him under the provisions of S.22-A(6), Cr.P.C., which had provided alternate and additional forum for redressal of grievance of public-at-large; keeping in view the complaints regarding non-cooperation of the Police---Forum of the Justice of Peace had to proceed under S.22-A(6), Cr.P.C., and had to keep in mind certain principles for making an 'appropriate order'---If there was no yardstick and principles provided by the statute for exercising the authority by Justice of Peace, then it would not only be impossible for the forum to make appropriate order while exercising discretion, but would also be difficult for the superior forum/court to determine, whether discretion was exercised judicially, fairly or suggest extraneous consideration---Provisions of S.154, Cr.P.C., in fact controlled the discretion of Justice of Peace, which had been vested upon him---Expression "every information relating to commission of a cognizable offence", had been used in S.154, Cr.P.C.---Word "relating" was important and significant, not only in order to settle the controversy in the present case, but in all cases which were brought before the Police or before the Justice of Peace---Information, put either before the officer incharge of a Police Station, or the Justice of Peace, should provide information pertaining to the commission of a cognizable offence---Requirement of S.154, Cr.P.C. was not that there must be information regarding actual commission of cognizable offence---Allegations contained in application made by complainant were to be examined, but not in depth and detail to avoid prejudice to the case of any of the parties during the course of investigation or trial.

The Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Ch. Muhammad Aslam v. C.P.O. Rawalpindi and others 2011 PCr.LJ 1870; Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Ishaq Lashari, Inspector v. The State PLD 2009 Kar. 14; Sabin Bibi v. Station House Officer and others PLD 2007 Lah. 370; Muhammad Azam v. Inspector-General of Police, Islamabad and 2 others PLD 2008 Lah. 103; Afzal Khan v. A.S.J., Sheikhupura and 7 others 2011 YLR 963; Zulfiqar Ali v. The Justice of Peace/Sessions Judge and 7 others 2012 PCr.LJ 138; For Arrest of Accused of Murder of Her Daughter Waheeda 2014 SCMR 83 and Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 ref.

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

----S. 154---Registration of FIR---Nature, purpose and object---Requirement of FIR was not to give detail of each and every incident, and fact---Such exercise had to be made during the course of investigation by Investigating Officer---In order to satisfy the yardstick contained in S. 154, Cr.P.C., only the allegations and accusations contained in the crime report, were to be examined---Court, while examining the allegations, could not make comments upon the correctness of stance of the complainant which exercise, in fact was the assignment of Investigating Officer---Purpose and object of recording FIR, was to set criminal law in motion, and to obtain first hand information of the occurrence in order to exclude possibility of fabrication of story, consultation or deliberation; and to safeguard accused of such like happening---Veracity or falsity of allegations were not required to be examined while examining the material put by the complainant on the touchstone of S.154, Cr.P.C.---Correctness or otherwise of the allegations, was to be scanned during the course of investigation, when the persons against whom there was an accusation, would be associated providing an opportunity to them by Investigating Officer to submit their stance and view point---In order to stamp any person as an accused, credible information and evidence had to be produced by the complainant during the investigation; and it would not be duty of the person against whom there was an allegation to prove his innocence unless there was credible evidence regarding his culpability.

Mushtaq Hussain and another v. The State 2011 SCMR 45; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 and Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 rel.

(i) Constitution of Pakistan---

----Art. 4--- Fundamental Right of individual to be dealt with in accordance with law---Each and every citizen of Pakistan, was to be dealt with according to the mandate of the Constitution, irrespective of his status; and no action detrimental to the life, liberty, reputation or property of any person, would be taken, except in accordance with law---Expression "except in accordance with law" qualified the command of Art.4 of the Constitution---Each citizen of Pakistan had to be dealt with according to the mandate of law.

(j) Administration of justice---

----Law had to take its own course, keeping in view facts and circumstances of each case, and any of the parties, either in civil or criminal administration of justice, should not be penalized and prejudiced on extraneous consideration.

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

----S. 154---Registration of case---Arrest of accused---Accusation against a person, which had been made in the crime report, by itself would not give authority to officer Incharge of a Police Station to make his arrest straightaway upon registration of FIR---Mere registration of case, would not stamp any of the persons as an accused, and could not be arrested as a matter of course, unless there was sufficient incriminating evidence regarding culpability of accused---Arrest of accused was subject to the satisfaction of Investigating Officer regarding correctness and veracity of allegations levelled by the complainant against the persons named in the crime report.

Khizar Hayat and others v. Inspector-General of Police (Punjab Lahore and others PLD 2006 Lah. 470; Ishaq Lashari, Inspector v. The State PLD 2009 Kar. 14; Muhammad Javaid Khan v. Additional Sessions Judge Multan and 2 others 2007 PCr.LJ 124 and Ch. Muhammad Aslam v. C.P.O. Rawalpindi and others 2011 PCr.LJ 1870 ref.

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

----S. 154---Registration of second FIR---Second FIR, could be registered, if a distinct and separate cognizable offence was disclosed; or if any aggrieved person got reservation about the first FIR grousing that contents of the FIR already registered, did not disclose the true picture of the occurrence---Second FIR, could not be registered if the same was just an amplification or elaboration of the earlier.

Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Muhammad Azam v. Inspector-General of Police, Islamabad and 2 others PLD 2008 Lah. 103; Mst. Allah Rakhi v. D.P.O. Gujranwala and 5 others 2009 MLD 99; Mushtaq Hussain and another v. The State 2011 SCMR 45 and Zahid Ali v. Station House Officer, Police Station Patni, Taluka Rohri, District Sukkur and another 2012 PCr.LJ 180 ref.

Azam Nazeer Tarar, for Petitioners (in Writ Petition No. 22661 of 2014).

Waqar Hassan Mir for Petitioner (in W. P. No.22890 of 2014).

Mansoor-ur-Rehman Khan Afridi, assisted by Agha I.A. Imran for Respondent No.3.

Muhammad Hanif Khatana, Advocate General, Punjab.

Sarfraz Hussain (Probono).

Syed M.J. I. Jafferi of Risalpur.

YLR 2016 LAHORE HIGH COURT LAHORE 1474 #

2016 Y L R 1474

[Lahore]

Before Abdul Sami Khan and Shehram Sarwar Ch., JJ

MOHAMMAD MUNIR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.918 of 2010, heard on 26th November, 2015.

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

----S. 9(c)---Recovery of narcotic substance---Appreciation of evidence---Sentence, reduction in---Charas weighing five kilograms was recovered from the possession of accused in five packets and 10 grams sample was taken out from each packet---Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life along with fine---Validity---Charge against accused was of 5 kilograms Charas and he had already served out period of more than six years of his substantive sentence excluding the remissions---High Court maintained conviction of the accused but reduced the sentence to already undergone and amount of fine was also reduced from Rs.100,000 to Rs. 35,000.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 fol.

Nemo for Appellant.

Rana Abdul Majeed, Additional Prosecutor General for Respondents.

Date of hearing: 26th November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1503 #

2016 Y L R 1503

[Lahore]

Before Hafiz Shahid Nadeem Kahloon, J

AHMED HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.3948-B of 2015, decided on 26th August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-A(i)(ii), 337-L(2), 148 & 149---Qatl-i-amd, causing Shajjah-i-Khafifah, Shajjah-i-Mudihah, hurt, rioting, common object---Bail, grant of---Further inquiry---Only injury, attributed to accused, was not cause of death of the deceased---Deceased, during incident also made two fire shots hitting in right side of chest and right wrist of accused; and one fire shot on co-accused, but those facts had been suppressed by the complainant at the time of lodging of FIR---Prima facie, it appeared that accused side, in self-defence made fire-shots upon the deceased; and they had a right of private defence; and whether they exceeded the same, would only be considered during the trial of the case---Vicarious liability for causing injuries, either to the injured witnesses or deceased; and also as to which party was aggressor and which party was aggressed upon, would be ascertained by the Trial Court after recording evidence---Case to the extent of accused was also covered by subsection (2) of S.497, Cr.P.C.---Nothing had been recovered from accused; and his presence had been found established empty handed at the scene of occurrence; and declared innocent by the Police, which was never challenged by the complainant party---In cross-version, if one party was allowed bail, then other party also would become entitled for the same treatment---Accused had been languishing in jail since 17-4-2015 and no more required for further investigation which was complete---Continuous incarceration in jail, would not serve any beneficial purpose to the prosecution---Accused was admitted to bail, in circumstances.

Mitho. v. The State 1978 SCMR 231; Muhammad Ashiq v. The State and another 2013 YLR 1133; Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58; Allah Bachayo @ Bachoo v. The State 2013 PCr.LJ Sindh 1387; Khalil Ahmed v. The State and another 2013 PCr.LJ 389; Muhammad Abbasi v. The State and another 2011 SCMR 1606 and Raja Ibrar Hussain v. The State 2008 PCr.LJ 1604 ref.

Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 rel.

Javed Hashmi for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Rana Asif Saeed for the Complainant.

Ghulam Haider, S.I.with record.

YLR 2016 LAHORE HIGH COURT LAHORE 1517 #

2016 Y L R 1517

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

SAJJAD HUSSAIN alias SHAHZAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.5-J of 2008 and Murder Reference No.755 of 2006, heard on 12th November, 2013.

Penal Code (XLV of 1860)---

----S. 302(b) & 302(c)---Qatl-i-Amd---Appreciation of evidence---Sentence, reduction in---Grave and sudden provocation---Honour killing---Multiple murders---Accused was charged for committing murder of his wife, her paramour and his own three minor children---Trial Court convicted the accused and sentenced him to death on five counts---Validity---Accused had seen his wife and her paramour in objectionable position, when other deceased and injured were also present in the house---Both the major deceased had been found contemporaries so far as their ages were concerned---Ambient circumstances compelled accused to get rid of his wife, her alleged paramour and his own children in order to absolve himself from opprobrium life and odium living---High Court modified the conviction of accused from S. 302(b), P.P.C. to S. 302(c), P.P.C. and his sentence of death on five counts was commuted to sentence of imprisonment for twenty five years on five counts---Appeal was allowed accordingly.

S: IV, Verse 34 rel.

Azeem Ullah Khan for Appellant.

Nemo for the Complainant.

Saeed Ahmad Sheikh, Addl. Prosecutor General for the State.

Date of hearing: 12th November, 2013.

YLR 2016 LAHORE HIGH COURT LAHORE 1552 #

2016 Y L R 1552

[Lahore]

Before Atir Mahmood and Masud Abid Naqvi, JJ

Khawaja AFTAB AHMAD---Appellant

Versus

Qazi ABDUL ALI---Respondent

R.F.A. No.201 of 2001, decided on 8th June, 2015.

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

----O. XXXVII----Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Negotiable Instruments Act (XXVI of 1881), S. 118---Summary procedure on negotiable instruments---Comparison of signatures---Finding of court---Principles---Plaintiff filed suit for recovery under O. XXXVII, C.P.C. on basis of pronote claiming that defendants, having executed agreement and promissory note in his favour for payment of money, had failed to pay the same---Both courts below decreed the suit---Contention raised by plaintiff was that presumption of truth was attached to promissory note under S.118 of Negotiable Instruments Act, 1881---Defendants took the plea that said agreement and promissory notes were to be attested by two marginal witnesses under Arts. 17 & 79 of Qanun-e-Shahadat, 1984, whereas promissory note admittedly was not signed by any witness---Validity---Execution of documents could not be proved through cogent and credible evidence, as there were material discrepancies between oral and documentary evidence---None of the witnesses had deposed that any amount was paid in their presence---Plaintiffs had not produced best available evidence and negative inference could be drawn against plaintiffs for withholding the same---Plaintiffs failed to establish the amount claimed to be outstanding against defendants---Report of handwriting expert showed that signatures of defendant did not tally with his signatures on disputed documents---Trial Court, having not relied on the handwriting expert report, failed to give its own finding as to comparison of signatures of defendant---If Trial Court was not satisfied with report of handwriting expert, it should have given its own findings in that regard---Impugned judgment and decree were not sustainable and the same were set aside---Appeal was accepted in circumstances.

Qadir Bakhsh (deceased) through L.Rs. v. Allah Dewaya and another 2011

SCMR 1162; Manzoor Ahmed v. Qamar ul Zaman 2011 CLC 1756 and Manzoor Ahmed Khan v. Mst. Minhajunnisa 1975 SCMR 1657 rel.

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

----Arts. 17 & 79---Disputed Signatures---Opinion of handwriting expert---Court having not relied on the opinion of expert was to give its own finding as to the comparison of signatures.

Mujeeb ur Rehman Kiyani for Appellant.

Syed Ijaz Hussain Hamdani for Respondent.

Date of hearing: 18th May, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1573 #

2016 Y L R 1573

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD AKRAM and another---Petitioners

Versus

The STATE---Respondent

Criminal Appeals Nos.82-J, 77-J and Murder Reference No.171 of 2010, heard on 6th November, 2014.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Benefit of doubt---Inordinate, unexplained delay in reporting the matter to the Police, and in conducting postmortem examination of the deceased, had adversely affected the prosecution case---Both prosecution witnesses, who were produced as eye-witnesses, were real brothers inter se and maternal cousin of the deceased and the complainant; and were residents of a village situated at a distance of twenty miles from the place of occurrence---The witnesses could not give any reason for their presence at the scene of occurrence at relevant time---Both the witnesses were chance witnesses, and they had made improvements in their statements---Accused was not named in the FIR---Two accused persons, who were nominated in the FIR with specific role of pressing the neck of the deceased had been acquitted of the charge by Trial Court while disbelieving the same prosecution evidence and no appeal against their acquittal had been filed, either by the complainant or the State---Evidence, which had been disbelieved to the extent of one accused, could not be believed qua the other accused, unless and until there was some strong independent corroboration, but no such corroboration was available on record---Prosecution failed to prove motive part of the occurrence against any of accused persons---Possibility could not be ruled out that co-accused, had been implicated in the case due to mala fide on the part of the complainant and his maternal cousins/prosecution witnesses---Evidence of "Wajtakkar", was furnished by prosecution witness, but statement of said witness, was to be kept out of consideration, being not believable, as that piece of evidence, was introduced for the first time when the private complaint was filed by the complainant after a period of more than two months of the occurrence---Chaddar, allegedly recovered, was not blood-stained due to which the same was not sent to the office of Chemical Examiner for its analysis---Recovery of chaddar was not only insufficient to connect accused with the alleged offence, but was inconsequential---Prosecution had failed to discharge its responsibility of proving the case against accused persons beyond shadow of any reasonable doubt---Case was replete with circumstances which had created reasonable doubt about prosecution story---Conviction and sentence recorded by the Trial Court against the accused persons were set aside, they were acquitted from the charge against them and were released, extending them the benefit of doubt.

Akhtar Ali and others v. The State 2008 SCMR 6; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Irshad Ahmed v. The State 2011 SCMR 1190; 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) Criminal trial---

----Benefit of doubt---Scope---Prosecution was supposed to prove its case against accused by standing on its own legs; and could not take any benefit from the weaknesses of the case of the defence---If there was a single circumstance which would create reasonable doubt regarding the prosecution case, same would be sufficient to give benefit of the same to accused.

Zaka-ur-Rehman Awan for Appellant (in Crl. Appeal No.82-J of 2010).

Salah-ud-Din Siddiqui for Appellant (in Crl. Appeal No.77-J of 2010).

Ch. Muhammad Mustafa, Deputy Prosecutor General for the State.

Mehboob Rasool Awan for the Complainant.

Date of hearing: 6th November, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 1613 #

2016 Y L R 1613

[Lahore]

Before Muhammad Tariq Abbasi, J

Sheikh ABDUL WAHEED---Appellant

Versus

SAEED QALBI and another---Respondents

Criminal Appeal No.835 of 2003 and Criminal Revision No.24 of 2004, heard on 14th April, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Case was of two versions and story of the complainant, was not correct and it was established that complainant and witnesses were not present at the spot---Nothing was recovered from accused---Motive was not proved---Prosecution story and charge against accused were highly doubtful---If a simple circumstance would create reasonable doubt in a prudent mind about guilt of an accused, then he would be entitled to such benefit, not as a matter of grace or concession, but as of right---Impugned judgment, was set aside, accused was acquitted of the charge, while extending him the benefit of doubt---Accused being on bail his bail bonds were discharged.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Muhammad Bilal Butt for Appellant (in Criminal Appeal No.835 of 2003).

Shaukat Ali Ghauri, Addl. Prosecutor General for the State.

Tariq Zulfiqar Ahmad Chaudhry for the Complainant (in Criminal Revision No.24 of 2004).

Date of hearing: 14th April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1625 #

2016 Y L R 1625

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD ASHRAF---Petitioner

Versus

MUHAMMAD ASLAM SHAD and others---Respondents

Writ Petition No.35088 of 2015, decided on 27th November, 2015.

(a) Punjab Local Government Act (XVIII of 2013)

----S. 27--- Constitution of Pakistan, Art. 199--- Constitutional petition---Maintainability---Disqualification of candidate---Contention of petitioner was that at the time of filing of nomination papers, respondent was underage as his date of birth as per NADRA record was 25-09-1991---Respondent's plea was that petitioner should seek alternate remedy of filing election petition---Validity---Admittedly respondent had been declared as returned candidate but his result had not so far been notified in the official gazette by Election Commission ---Remedy of filing election petition was not available to the petitioner---No doubt petitioner had not availed the remedy of appeal before Appellate Authority against the acceptance of nomination papers of respondent but such fact did not create any hurdle in the way of petitioner in invoking the Constitutional jurisdiction of High Court---If statutory remedy available under the law was considered inadequate and inefficacious, and relief as claimed could not be granted to the aggrieved person, then constitutional petition, was maintainable particularly when controversy between parties could be resolved from the available record.

(b) Punjab Local Government Act (XVIII of 2013)

----S. 27---Constitution of Pakistan, Art. 199--- Constitutional petition---Nomi-nation of a candidate---Disqualification of candidate for being under age---Scope---According to CNIC, date of birth of respondent was 25-09-1986 whereas its entry in CNIC varied from the date preserved with NADRA where his date of birth was recorded as 25-09-1991---Copies of both CNIC's had the same number and even date of issuance and date of expiry was the same---Photocopy of CNIC attached with nomination papers of respondent was tampered with to change his actual date of birth---Respondent had placed on record same photocopy of CNIC of respondent, which had already been appended by petitioner with the petition---Photocopy of CNIC produced by petitioner had been obtained by him from online verification of NADRA ---- High Court observed that there was no force in the argument that date of birth had wrongly been recorded in CNIC of respondent---CNIC was issued to respondent on 21-12-2013 and he remained silent for about two years and did not make any effort to get his date of birth corrected from NADRA---Date of birth of respondent shown in his computerized Birth Certificate also did not tally with his date of birth mentioned in the photocopy of ID card appended with nomination papers ---Respondent at the time of filing of his nomination papers was having inherent defect of disqualification, therefore, he was not qualified to hold any public office on such basis ---- Respondent was disqualified from being elected as General Councillor and Election Commission of Pakistan was ordered to hold re-election within a period of two months---Constitutional petition was allowed accordingly.

Ch. Abrar Hussain for Petitioner.

Ch. Khalid Mehmood for Respondent No.5.

Shahid Qayyum Chaudhry for Respondent No.3.

Hamid Rafiq for NADRA.

Muzammal Akhtar Shabbir, Deputy Attorney General for Pakistan along with Muhammad Akram Shad, Returning Officer.

YLR 2016 LAHORE HIGH COURT LAHORE 1640 #

2016 Y L R 1640

[Lahore]

Before Shahid Hameed Dar, J

HAROON KALEEM USMANI---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.5866-B of 2015, decided on 7th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Contention of accused was that allegation against him was not based on any evidence, and he had been dragged into the case through clever tactics of complainant; and that he borrowed some amount of money on interest from complainant and ended up in a vicious circle---Accused also contended that complainant himself admitted before arbitrators that he had been receiving profits against debt amount from accused and it was merely an amount of Rs. 2,60,000 which figured in his books as receivable---Complainant's plea was that accused being a Bank Officer befooled complainant and usurped heavy amount of money from him under the garb of a mortgage-agreement and cheques having been dishonestly issued by accused to complainant were bounced by the Bank one after the other---High Court observed that the probability could not be ruled out that accused had been falsely involved in the present case by complainant through some exaggerative allegations based on malice or ulterior motives---Bail application was accepted and ad interim pre-arrest bail was granted to accused, in circumstances.

Musthaq Ahmad Mohal for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State with Zafar SI.

Mian Muhammad Naseem for the Complainant.

YLR 2016 LAHORE HIGH COURT LAHORE 1648 #

2016 Y L R 1648

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUDASSAR MUNIR---Petitioner

Versus

RETURNING OFFICER, U.C. Nos.1 to 8 and others---Respondents

Writ Petition No.35411 of 2015, decided on 23rd November, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 16(1)---Withdrawal of nomination papers of candidate for Vice-Chairman---Joint candidacy---Scope---Interpretation of R.16(1) of Punjab Local Government Elections Rules, 2013---Respondent moved an application of his own accord for withdrawal of his candidature as Vice Chairman of Union Council which was entertained and allowed by Returning Officer---Question which required determination was whether in a joint candidacy, one of the candidates could move an application for withdrawal of nomination papers for his candidature---Held, that in R.16(1) of Punjab Local Government (Conduct of Elections) Rules, 2013, word "candidate(s)" was used which was of much significance and showed intention of legislature---By separating the alphabet 's' by parenthesis/brackets, Legislature had stressed that term 'candidate(s)' could be used in a singular as well as plural form as per the requirement of the action to be taken by the sole candidate or by the joint (two) candidates as the case may be---In case of a joint candidature any one of the two candidates singularly or both of them could jointly withdraw his/her/their candidature, had it not been so, Legislature would not have used the letter 's' in parenthesis/brackets in R.16---Intention of Legislature that in case of joint candidature even a single candidate could withdraw nomination papers was manifest---Constitutional petition was dismissed, accordingly.

(b) Punjab Local Government (Conduct of Elections), Rules, 2013---

----R. 14(6)--- Joint candidacy---Withdrawal of nomination papers of Vice-Chairman---Effect---Rule 14(6) of Punjab Local Government (Conduct of Elections) Rules, 2013, it was abundantly clear that joint candidates for the seat of Chairman and Vice-Chairman had to share the fate of acceptance/rejection of nomination papers with each other---In the event of rejection of nomination of one of the candidates, the nomination papers of the joint candidates would be rejected and that the other candidate should automatically be deemed to be ineligible for elections---No legislative restraint existed in a joint candidature, uptil the stage of voluntary withdrawal of the nomination papers, so that any one of the joint candidates could withdraw his/her nomination papers from the joint candidature---In case of joint candidacy, it was to be assumed that both the candidates had an inseparable bond in terms of their ideology, common goals, purpose of public services etc. therefore, while selecting a co-candidate due caution was exercised so that the co-candidate was not so weak that it could be won-over by opponents---Court could not take away the fundamental rights of a potential candidate, albeit a candidate of a joint candidacy, to exercise his/her right of withdrawing from an election contest during the process of finalization of candidacy when he/she had been provided a right to do so, as per the scheme of the election procedure---Returning Officer had rightly accepted the respondent's withdrawal application and no exception could be drawn therefrom---Constitutional petition was dismissed, accordingly.

Zaheer Saghir Syed for Petitioner.

Muzammil Akhtar Shabbir, DAG along with Nasir Sadiq Returning Officer.

Azam Nazeer Tarar for Respondent No.3.

YLR 2016 LAHORE HIGH COURT LAHORE 1679 #

2016 Y L R 1679

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

TASEER KHAN---Petitioner

Versus

ISLAMABAD ELECTRICITY SUPPLY COMPANY (IESCO) through Executive Engineer---Respondent

C.Rs. Nos.212, 213 and 255 of 2013 and 345 of 2014 heard on 19th November, 2015.

Limitation Act (IX of 1908)---

----Arts. 49 & 149---Civil Procedure Code (V of 1908), S. 79---Suit for recovery of amounts---Suits filed by or on behalf of Government--- Scope--- Contention of plaintiff Electricity Distribution Company/ WAPDA was that it had a limitation of 60 years to file a suit in view of provisions of Art. 149 of Limitation Act, 1908---Validity---Per S.79, C.P.C., WAPDA or a Distribution Company could not claim its status to be that of "Government"---Although Distribution Company's/ WAPDA's affairs to some extent were controlled by government but for all practical purposes, it was an independent entity and authorized to carry out business of utilization of water and power resources of country and to generate electricity and that WAPDA or any Distribution Company, like plaintiff was not performing any of sovereign functions of the State, so as to be declared as a body corporate performing functions with affairs of Federation---In the present case, suit was filed in the name of plaintiff company through its Chief Executive but neither any resolution of company had been pleaded in or annexed with plaint authorizing any particular person to represent the company, nor any power was shown to have been extended in favour of Chief Executive of company to file or verify the plaint on its behalf---Lis could not be initiated on behalf of company which was a juristic person, without having due authority either in terms of Articles of Association or by resolution of the Board of Directors which in reported matter, were conspicuously missing, and when litigant had not even appended any document to establish that Chief Executive of company who even in reported matter put his signatures to memo of appeal was not having any authority to do so, hence, appeal would be termed as not maintainable and will be dismissed---Article 149 of Limitation Act, 1908 provided a period of limitation of sixty years for a suit by or on behalf of Federal or Provincial Government, but when such fact was established that plaintiff could, in no way, attain the status of either Federal or Provincial Government, provisions of Article 149 of Limitation Act, 1908 were of no help to plaintiff---Revision was allowed, accordingly.

Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147 and Telecard Limited through Authorized Representative v. Pakistan Telecommuni-cation Authority through Chairman 2014 CLD 415 rel.

Zaheer Ahmed Qadri for Petitioner (in Civil Revisions Nos.212, 213 and 255 of 2013).

Malik Sardar Khan for Petitioner (in Civil Revision No.345 of 2014).

Malik Fazal-ur-Rehman for Respondent.

Date of hearing: 19th November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1725 #

2016 Y L R 1725

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

ANJUM IQBAL and others---Petitioners

Versus

The STATE and others---Respondents

Crl. Misc. No.56-M of 2014, heard on 10th June, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 145 & 561-A---Constitution of Pakistan, Art.20---Proceedings under S.145, Cr.P.C.---Scope---Freedom to profess religion and to manage religious institutions---Magistrate ordered sealing of mosque apprehending breach of peace---Validity---Proceedings under S.145, Cr.P.C. were meant for special purpose, regarding particular property---Dispute endangering breach of peace must be regarding any land or water including a building, markets, fisheries, crops or other produce of land, and the rents or profits of any such property---Mosque did not fall under any of the categories contemplated under S.145, Cr.P.C.---Magistrate should have mentioned reasons for the passing of the order---Magistrate ordered the sealing on the sole ground that the mosque belonged to the sect but that ground was found false as the mosque belonged to the Sunni sect---Mosque admittedly was the "House of Allah Almighty", same could not be sealed to deprive people from worship according to their sect---Under Art.20 of the Constitution every citizen had a right to profess, practice and propagate his religion---Petition was accepted---Proceedings under S.145, Cr.P.C. were set aside.

Abdul Majeed v. The State and others 1968 PCr.LJ 659 and Abdul Razzaq v. The State and others 2013 PCr.LJ 718 rel.

Malik Itaat Hussain Awan for Petitioners.

Naveed Ahmad Warraich, A.D.P.P. for the State.

Ch. Mehmood Akhtar Khan for Respondents.

Date of hearing: 10th June, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 1739 #

2016 Y L R 1739

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ZARKA MUZAMMAL---Petitioner

Versus

The PROVINCIAL OMBUDSMAN and others---Respondents

Writ Petition No.26925 of 2013, decided on 3rd February, 2014.

(a) Punjab Office of Ombudsman Act (X of 1997)---

----Preamble, Ss.2(3)(4) & 3---"Office of Ombudsman"---Historical background.

(b) Punjab Office of Ombudsman Act (X of 1997)---

----Preamble & S.9---Preamble---Scope---Jurisdiction, functions and powers of the ombudsman---Preamble of Punjab Office of Ombudsman Act, 1997 was an immensely wide worded, and all pervasive provision that encompassed possibly all and any instances of public wrong doings, and omissions, and injustice in the public domain whenever any Government Agency i.e. Government Departments, emanations of the State, next step Agencies of the Government, statutory corporations, autonomous bodies; were accused of malpractice, or corrupt practice---High Court and its subordinate courts, and the "Provincial Assembly", were excluded from the definition of a "Government Agency"---If the contents of Preamble were real in isolation, and to the exclusion of the other provisions of the Act, 1997, it would emerge that whenever, and wherever a public functionary, performing functions in connection with the affairs of the Province was accused of maladministration or corrupt practice; the Ombudsman would have the necessary jurisdiction to rectify the injustice so caused; thereby protecting the rights of the people; and uphold the rule of law---Such would lead to chaos resulting into a clash of jurisdiction, both in terms of the Constitution and the law; with more than one forums clamoring for the same jurisdiction---For instance, the term 'maladministration' or 'corrupt practice', or their ingredients, pretty much cover all ingredients and facts of S.5 of the Prevention of Corruption Act, 1947, besides all attracting the Scheduled offences of P.P.C.---Such being the intent of legislature, that the widely worded all encompassing Preamble had been qualified by other provisions of the Act---Most notable in the present context being the provisions of Ss.2(2), 9, 10, 11, 12, 13, 14, 16, 29 and 32 of the Punjab Office of the Ombudsman Act, 1997.

Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142 and International Cargo Handling Company (Pvt.) Limited v. Port Bin Qasim Authority through Secretary, Bin Qasim Authority PLD 1992 Kar. 65 ref.

----Ss. 2(2), 9, 11, 12 & 29---Maladministration--- Jurisdiction of Ombudsman---Scope--- Maladministration--Meaning---Term 'maladministration' in the context of assumption of jurisdiction under Punjab Office of Ombudsman Act, 1997, would mean any instance, action, process, omission etc. of a Government Agency, rooted either in illegality, irrationality, procedural impropriety or disproportionality, adversely affecting the rights of a citizen---Same would be amenable through the jurisdiction of the Ombudsman---Domain of Ombudsman with regard to matters of investigation, was hedged and constrained by a broad proviso of S.9 of the Act, which denuded the Ombudsman from performing his jurisdiction to deal with an allegation, that was sub judice before a court of competent jurisdiction on the date of receipt of complaint---Proviso to S.9 of the Act provided for the bar to be applicable, if a matter was sub-judice on the date of the receipt of a complaint or reference---Subject to other relevant provisions, if the Ombudsman had got jurisdiction to entertain the matter regarding maladministration, at the most, he could forward recommendations and communicate the same to the dealing agency, along with certain remedial measures, listed out in the spirit of S.11 of the Punjab Office of Ombudsman Act, 1997---Recommendations of the Ombudsman, were not binding, which was further evident from the provisions of S.12 of said Act; wherein it had been provided that if any public servant of any agency/department, would not abide by recommendations of Ombudsman, he could only forward the matter to Government; and it was only Government, which could finally direct the agency to implement the recommendations or not; and that too after hearing the public servant, ouster clause of S.29 of Punjab Office of Ombudsman Act, 1997 would apply, if order of the ombudsman was well within four corners of jurisdiction allocated to him by S.9 of said Act---Provincial Ombudsman, had no jurisdiction to interfere in investigation of Investigating Officer, as there was a special mechanism provided under Police Order, 2002, and rules made thereunder---Main domain of Provincial Ombudsman, was conferred to look into the matters involving maladministration, thereby making recommendations and proceed further in view of provisions of Ss.11, 12 of the Punjab Office of Ombudsman Act, 1997, but subject to provisions of S.9 of said Act, which created a bar qua adjudica-tion of the matters before the court of law.

Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Muhammad Aslam Khan v. Acting Wafaqi Mohtasib, and others 1993 PLC (C.S.) 345 = PLD 1993 Kar. 41; Amber Ahmed Khan v. Pakistan International Airlines Corpora-tion, Karachi Airport, Karachi PLD 2003 Kar. 405; Mahmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426; International Cargo handling Company (Pvt.) Ltd. v. Port Bin Qasim Authority through Secretary, Bin Qasim Authority PLD 1992 Kar. 65 and Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142 ref.

(d) Interpretation of statutes---

----Special law---Overriding effect of---Whenever there was a special law, it would override the general law---Even if there were two parallel laws, even then the law which was later in time, would prevail.

(e) Punjab Office of Ombudsman Act (X of 1997)---

----Ss. 9, 14 & 29---Penal Code (XLV of 1860), Ss.395 & 397---Dacoity, robbery or dacoity with attempt to cause death or grievous hurt---Bar of jurisdiction---S.H.O./Investigating Officer were summoned by the Ombudsman regarding the investigation process of case in offence under Ss.395, 397, P.P.C.---Same being the prerogative of the Investigating Agency, summoning of Investigating Officer by Ombudsman could not be given any legal sanctity and same was set aside---Ombudsman, was directed by High Court to remain within the bounded limits as provided by the law.

Ms. Salma Siddique for Petitioner.

Shan Gull and Khawar Ikram Bhatti, Additional Advocates General for the State.

Ch. Abdul Ghaffar for the Complainant.

Azam Nazeer Tarar, Shehram Sarwar Chaudhry and Umer Sharif, Advocates/amici curiae.

YLR 2016 LAHORE HIGH COURT LAHORE 1778 #

2016 Y L R 1778

[Lahore]

Before Amin-ud-Din Khan and Shahid Waheed, JJ

COLONY SUGAR MILLS LTD.---Appellant

Versus

DIRECTOR GENERAL, PUNJAB ENVIRONMENTAL PROTECTION AGENCY and others---Respondents

I.C.A. No.221 of 2014, decided on 6th March, 2014.

Constitution of Pakistan---

----Art.199---Punjab Local Government Act (XVIII of 2013), S. 143----Punjab Local Government Ordinance (XIII of 2001), S. 190---Constitutional jurisdiction of High Court---Scope---High Court under Art. 199 of the constitution could not comment upon the validity of, or the defects in, the impugned order, even if the order was defective, as the petitioner had the right of appeal against the same before the forum provided under S. 190 of Punjab Local Government Ordinance, 2001 and S. 143 of Punjab Local Government Act, 2013---Constitutional petition was, therefore, not competent.

Jamal Mamdot for Appellant.

Iftikhar-ur-Rasheed, AAG.

Zamir Hussain, A.C. Phalia.

Rizwan Bashir, T.O. (R), Phalia.

YLR 2016 LAHORE HIGH COURT LAHORE 1791 #

2016 Y L R 1791

[Lahore]

Before Mehmood Maqbool Bajwa and Miss Aalia Neelum, JJ

Sh. MUHAMMAD AFZAL---Petitioner

Versus

JUDGE ACCOUNTABILITY COURT NO.I and others---Respondents

W.P. No.1264 of 2014, decided on 18th March, 2014.

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

----S.17 (a) (b) & (c)---Expression "notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force"---Scope---Use of such expression suggests intention of legislature that provisions of clauses (a) and (b) are subject to provisions of clause (c) of S. 17 of National Accountability Ordinance, 1999, and the later mentioned clause has overriding effect---In certain cases, Accountability Court has jurisdiction to dispense with any provisions of Criminal Procedure Code, 1898, and can follow such procedure as it may deem fit in circumstances of the case.

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

----S.17(c)---Expression "for reasons to be recorded"---Scope---Provisions of Criminal Procedure Code, 1898, dispensing with---Principle---Powers given to Accountability Court are controlled by S.17(c) of National Accountability Ordinance, 1999, due to use of words "for the reasons to be recorded"---If Accountability Court is of the view that any provision of Criminal Procedure Code, 1898, in the circumstances of case, even if mandatory, is to be dispensed with, reasons have to be recorded by that Court---If no reason has been given or reasons given while dispensing with the provision of Criminal Procedure Code, 1898, are not convincing, the order would be nullity in the eyes of law.

Bhag Singh and others v. Emperor AIR 1928 Lah. 69 distinguished.

Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607 and Mohtarma Benazir Bhutto v. The State PLD 1999 SC 937 rel.

----Ss.9 (a) & 17 (c)---Criminal Procedure Code ( V of 1898), S. 353---Constitution of Pakistan, Art. 199--- Constitutional petition---Evidence in absence of accused---Accused filed application for re-recording of evidence of more than 60 prosecution witnesses in his presence but Trial Court declined the request and directed the accused to cross-examine all those witnesses who were recorded in his absence---Validity---All accused persons faced inquiry as well as investigation prior to year, 2008, and as such, it was rightly opined that direct statements of such witnesses, if re-recorded would cause hardship to accused facing agony of trial since long---Reasons recorded by Trial Court were neither arbitrary nor fanciful---Trial Court rightly passed the order keeping in view the mandate of S. 17 (c) of National Accountability Ordinance, 1999---High Court declined to interfere in the order passed by Trial Court---Petition was dismissed in circumstances.

Bhag Singh and others v. Emperor AIR 1928 Lah. 69; Muhammad Riaz Fatiana v. The State PLD 2006 Lah. 137 and Hidayatullah and another v. The State 2000 YLR 2330 ref.

Ch. Mohammad Aslam for Petitioner.

Haroon ur Rasheed Cheema, ADPG for NAB.

YLR 2016 LAHORE HIGH COURT LAHORE 1812 #

2016 Y L R 1812

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD RIAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.191-J of 2010, decided on 17th December, 2015.

Penal Code (XLV of 1860)----

----Ss. 302 (b) & 34----Qatl-i-amd; common intention---Appreciation of evidence--- Eye-witnesses behaved unnaturally at the time of occurrence---Recovery of hatchet with blood stains effected from open place---Accused, along with others, were alleged to have killed accused's step mother with hatchet---Trial Court, on private complaint, convicted the accused and sentenced him to undergo life imprisonment along with payment of fine and compensation---Co-accused persons had been declared innocent during investigation and acquitted on basis of compromise with the complainant party---All eye-witnesses were young as compared to the deceased, and their common force might have prevailed upon the accused to save life of the deceased---Eye-witnesses, being three in number could have overpowered the accused and snatched the hatchet---Eye-witnesses, being inmates, might be considered natural witnesses, but their behaviour during the incident remained unnatural and unbelievable---Presence of said witnesses at the time of incident, therefore, could not be believed---Alleged motive, that was pendency of criminal litigation between the complainant and the accused persons, in fact, was against the complainant, who had been spared by the accused; had the complainant been present at the spot, he would have also been the victim of the incident---Forensic report regarding the recovered hatchet was although positive as to existence of blood stains thereon, but the same had been allegedly effected from an open place which was accessible by any person---Secondary evidence (recovery of the hatchet) could not be relied upon when the primary evidence had been disbelieved---Prosecution had failed to prove the case against the accused beyond shadow of reasonable doubt---High Court, setting aside conviction, acquitted the accused---Appeal against conviction was accepted accordingly.

Nadeem alias Manha alias Billa Sher v. The State 2010 SCMR 949 rel.

Ali Muhammad Zahid Bokhari Defence Counseil at State expense for Appellant.

Iftikhar ul Haq Ch., Addl. P.G. for the State.

Date of hearing: 17th December, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1827 #

2016 Y L R 1827

[Lahore (Multan Bench)]

Before Aslam Javed Minhas, J

MARGHOOBUL HASSAN---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.6740-B of 2015, decided on 25th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498----Penal Code (XLV of 1860), Ss. 471, 468, 420, 419, 170 & 171---Prevention of Corruption Act (II of 1947), S. 5 (2)---Using as genuine a forged document; forgery for purpose of cheating; cheating and dishonestly inducing delivery of property; cheating by personation; wearing a garb or carrying token used by public servant with fraudulent intent; personating a public servant; criminal misconduct---Bail before arrest, refusal of---Rule of consistency---Applicability---Accused persons, in collusion with co-accused, were alleged to have prepared fake appointment/transfer letters and other related documents and thereby inducted fake constables in the police department---Accused sought confirmation of pre-arrest bail already granted to them on ground of rule of consistency, as the co-accused had already been granted bail by the High Court---High Court, distinguishing the case of the co-accused from present accused persons, declined to apply the rule of consistency---Anti-corruption Establishment, after conducting detailed inquiry, had declared the accused persons guilty---Bail applications were, therefore, dismissed.

Ch. Muhammad Haroon for Petitioner.

Asghar Ali Lodhi and Safdar Ali Qureshi for Petitioner.

Ch. Muhammad Akbar, D.P.G.

Shafique-ur-Rehman AD(I) ACE, Multan with record.

YLR 2016 LAHORE HIGH COURT LAHORE 1845 #

2016 Y L R 1845

[Lahore (Multan Bench)]

Before Atir Mahmood and Mushtaq Ahmad Tarar, JJ

The HEAD OF RETAIL FINANCE DIVISION, THE BANK OF PUNJAB and another---Appellants

Versus

MUSHTAQ AHMAD and others---Respondents

I.C.A. No.335 in W.P. No.5179 of 2015, decided on 24th November, 2015.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S. 3---Intra court appeal---Administration of justice---Appellant Bank was aggrieved of order passed by Single Judge of High Court whereby Constitutional petition filed by respondent was disposed of on the basis of undertaking given by Bank Manager---Validity---Appellant Bank was not given proper opportunity to contest constitutional petition nor report and para-wise comments were awaited---No proper hearing was given to appellant and simply on undertaking given by its Manager, the petition was disposed of---Manager of appellant Bank was not authorized by appellant to give the undertaking---Bank had produced official documents which reflected that show cause notice was issued regarding matter in hand to the Manager who in reply had sought unconditional apology for giving said undertaking while submitting that his appearance before Court was only in obedience of the court and nothing else---Division Bench of High Court, set aside the order in question and remanded the matter to Single Judge of High Court for decision afresh in accordance with law---Intra court appeal was allowed accordingly.

Muhammad Saleem Iqbal for Appellants.

Muhammad Adnan Shahid Sherwani for Respondent.

YLR 2016 LAHORE HIGH COURT LAHORE 1863 #

2016 Y L R 1863

[Lahore]

Before Sardar Ahmed Naeem, J

ALI RAZA---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.1941-B of 2016, decided on 3rd March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.440---Mischief committed after preparation made for causing death or hurt---Pre-arrest bail, refusal of---Accused was specifically nominated in the FIR with specific role of firing at the complainant and committing mischief---Investigating Officer, during the spot inspection, took into possession ten empties---Prosecution witnesses implicated accused in their statements recorded under S. 161, Cr.P.C.---Recovery was yet to be effected---Accused failed to establish mala fide on the part of the complainant, or the Police for his false involvement in the case---Accused failed to make out a case for confirmation of his ad interim pre-arrest bail---Bail petition being meritless, was dismissed, in circumstances.

Shahzad Saleem Warraich for Petitioner.

Abdul Jabbar, Deputy District Public Prosecutor along with Sabir Nasir, ASI for the State.

Muhammad Shoaib Khokhar for the Complainant.

YLR 2016 LAHORE HIGH COURT LAHORE 1875 #

2016 Y L R 1875

[Lahore (Multan Bench)]

Before Shahid Karim, J

GHULAM HAIDER---Petitioner

Versus

FAZAL AHMAD---Respondent

Civil Revision No.571-D of 1996, heard on 2nd June, 2015.

Specific Relief Act (I of 1877) ---

----S. 12---Suit for specific performance---Oral agreement---Plaint did disclose a date on which purported agreement to sell was entered between the parties ---Nothing was on record that possession of suit property was delivered to the plaintiff---No evidence was available with regard to payment of consideration amount----No material irregularity had been pointed out in the judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Amjad Ikram v. Asiya Kausar 2015 SCMR 1 rel.

Malik Muhammad Tariq Rajwana for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd June, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1891 #

2016 Y L R 1891

[Lahore]

Before Sardar Tariq Masood and Abdul Sami Khan, JJ

ZAFAR IQBAL and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.245-J of 2013, Criminal Appeal No.746 of 2010 and Murder Reference No.314 of 2010, heard on 28th January, 2014.

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

----Ss.302(b) & 392---Qatl-i-amd, robbery---Appreciation of evidence---Claim of the complainant and the witnesses being that they could identify accused persons, if brought before them, identification parade, in circumstances, was must, which was dispensed with in the case without any plausible explanation---Complainant while lodging the FIR, had not given any specific description of robbers who fired upon the deceased---Prosecution's own case being that prior to identifying accused persons in the court, complainant had seen accused persons in the Police Post in the custody of the Police; no reliance could be placed upon said identification; and sanctity could not be attached to the identification test held in the court---Ocular account was not confidence inspiring, without any legal identification parade---Recovery of the Pump Action gun from accused, was effected in another criminal case---Said weapon of offence was never produced during the trial to prove that it was the same gun which was allegedly recovered on the pointation of accused---No positive report of Forensic Science Laboratory was on the file---In absence of any positive report of the Forensic Science Laboratory, recovery of any weapon was inconsequential, and no reliance could be placed upon said recovery---Evidence which was disbelieved to the extent of remaining accused, could not be taken into consideration against accused persons without any independent corroboration---In the present case, no independent corroborative piece of evidence was available to the ocular account---Most important witness, who was present at the time of occurrence, and had seen the occurrence, was not produced in the case by the prosecution---Adverse inference, could be drawn against prosecution, in circumstances---Prosecution having failed to prove its case against accused persons, beyond any shadow of doubt, conviction and sentence recorded against accused persons by the Trial Court, was set aside---Accused were acquitted of the charge and were released, in circumstances.

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

----Art. 22---Identification parade---Scope and necessity---Conditions---Identification parade was necessary in criminal cases to ascertain whether the witnesses could identify the culprits, who were allegedly seen by them during occurrence---One of the conditions in said test, was that before said test, the witnesses had no occasion or opportunity to see the culprits in the custody of the Police, or any one else---Identification parade, could be conducted under the supervision of a Magistrate, who was required to conduct the same, according to the High Court Rules and Orders---Identification parade duly conducted under the supervision of a Magistrate, had a great value and strength; and that strength could not be given to the identification of an accused in the court; for the simple reason that possibility of seeing said accused in the court before the said identification could not be ruled out---Identification of accused produced as an accused in the court, years after the event, could not satisfy the requirements of law for proving the identity of the culprits.

----Art. 38---Disclosure before Police Officer, admissibility---Disclosure before the Police Officer was inadmissible being hit by Art.38 of Qanun-e-Shahadat, 1984---No weight could be given to such disclosure of accused before Police Officer while in Police custody.

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

----Arts. 38, 39 & 40---Information or disclosure by accused in custody of Police, admissibility---Prosecution in order to apply Art.40 of Qanun-e-Shahadat, 1984, had to establish that information given by accused led to the discovery of some new fact; and the discovery must be of some fact which the Police had not previously learnt from any other corner; and said fact was for the first time derived from the information given by accused---Information or disclosure by any accused in custody of the Police before a Police Officer was inadmissible/irrelevant under Arts.38 & 39 of Qanun-e-Shahadat, 1984.

Miss Humaira Kaiser for Appellant (in Cr.A. No.245-J of 2013) and Syed Kafait Hussain Naqvi for Appellant (in Cr.A. No.746 of 2010).

Mirza Abid Majeed, D.P.G. for the State.

Nemo for the Complainant.

Date of hearing: 28th January, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 1909 #

2016 Y L R 1909

[Lahore]

Before Abdul Sami Khan and Muhammad Tariq Abbasi, JJ

MUHAMMAD MUNAWAR HUSSAIN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 446-J of 2014 and 167-J of 2009 and Murder Reference No.456 of 2009, heard on 30th March, 2015.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Extra-judicial confession---Value---Scope---Benefit of doubt---Story as narrated by the complainant, was not plausible, because despite murder of his son at 1.00 a.m., he remained satisfied till 4.00 a.m., when he and other family members raised alarm---As per the complainant, the fire was made while placing the pistol at the head of the deceased, but during post mortem examination, no sign of close range firing was observed---House of occurrence was located in a populated area, but name of none was given in the complaint---As per report of Forensic Science Laboratory, pistol allegedly recovered at the instance of accused, was in working condition, but no empty having been collected from the spot, or sent for comparison with weapon/ pistol, said recovery and report was inconsequential---Complainant, during whole of the trial, did not come forward and make any statement in the court---Evidence of extra judicial confession furnished by the prosecution witnesses could not be believed for the reason; firstly, as to why accused persons had made such confession before said prosecution witnesses as no evidence was on record regarding their social status or influence over the bereaved family; secondly, from the narration of facts given by both said prosecution witnesses in their statement alleged extra judicial confession made by accused persons appeared to be of joint nature---Said prosecution witnesses, were related inter se and were also related to the complainant party, their statements could not be relied upon without independent corroboration, which was very much lacking in the case; and charge against accused persons could not be proved and established on such extra judicial confession---Impugned judgment of the Trial Court, was set aside, and accused were acquitted of the charge, while extending them benefit of doubt.

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

----Art. 3--- Witness--- Believing or disbelieving a witness depended upon the intrinsic value of his statement---Statement and not the person (witness) was to be seen and adjudged by the court.

Abid Ali and 2 others v. The State 2011 SCMR 208 rel.

----S. 164---Extra judicial confession---Evidentiary value---Extra judicial confession, was always considered a weak type of evidence.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Tahir Javed v. The State 2009 SCMR 166 ref.

(d) Criminal trial---

----Benefit of doubt---If a single circumstance would create reasonable doubt in the prudent mind about guilt of an accused, then he would be entitled to such benefit, not as a matter of grace or concession, but as of right---Better that ten guilty persons be acquitted, rather than one innocent person be convicted.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Ms. Sheeba Qaisar for Appellant (in Criminal Appeal No.446-J of 2014).

Maqbool Ahmad Qureshi for Appellants (in Criminal Appeal No.167-J of 2009).

Khurram Khan, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 30th March, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1916 #

2016 Y L R 1916

[Lahore]

Before Mirza Viqas Rauf, J

Writ Petition No.39623 of 2015

LESCO through Chief Executive Officer, LESCO Ltd. and 3 others---Petitioners

Versus

Malik MUHAMMAD MUNIR through Muhammad Zaman and 2 others---Respondents

Writ Petition No.16172 of 2015

FESCO through SDO Nia Lahore Sub Division---Petitioner

Versus

NEPRA AUTHORITIES and others---Respondents

Writ Petitions Nos.39623 and 16172 of 2015, heard on 25th April, 2016.

(a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997) [As amended by Regulation of Generation, Transmission and Distribution of Electric Power (Amendment) Act (XVIII of 2011)]---

----Ss.38 (3), 12-A &11----Electricity Act (IX of 1910), Ss. 24 (2) & 26 (6) & 35---National Electric Power Regulatory Authority (Procedure for filing Appeal before the Authority) Regulations, 2012 Regls.3 & 4---Punjab (Establishment and Powers of Office of Inspection) Order, 2005, Art. 10---Appeal against the decision of the Provincial Office of Inspection/Electric Inspector---Limitation---Copy of decision by Provincial Office of Inspection/Electric Inspector to aggrieved person not transmitted---Effect--Petitioner filed petition before the Provincial Office of Inspection/Electric Inspector challenging the bill issued by the Electric Supply Company which was allowed; the authorities filed appeal against said decision before National Electric Power Regulatory Authority, which was dismissed on ground of limitation---Validity---Contention was that the appeal against the decision of the Provincial Office of Inspection/Electric Inspector was to be regulated by Art. 10 of Punjab (Establishment and Powers of Office of Inspection) Order, 2005, was misconceived---Article 10 Punjab (Establishment and Powers of Office of Inspection) Order, 2005 provided the remedy of appeal to an aggrieved person against the final order made by the Office of Inspection before the Government, or if the Government, by general or special order, so directed, to the Advisory Board constituted under S. 35 of Electricity Act, 1910, within 30 days, and the decision of the Government or Advisory Board would be final in that regard---Limitation for filing appeal against the decision or order of the Provincial Office of Inspection/ Electric Inspector was available in S. 38(3) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 [As amended by Regulation of Generation, Transmission and Distribution of Electric Power (Amendment) Act (XVIII of 2011)], which specifically provided that appeal might be preferred within 30 days of the receipt of the order; however, any ambiguity in that regard could be resolved by referring to National Electric Power Regulatory Authority (Procedure for filing Appeal before the Authority) Regulations, 2012---Regulation 3 postulated that any person aggrieved by any decision or order of the single Member of the Authority or Tribunal constituted under S. 11 of the Act or from decision given by the Provincial Office of Inspection/Electric Inspector might file an appeal before the Authority within 30 days of the order or decision---Appeal against the decision or order of the Tribunal would be filed within 30 days of such decision or order---In case appeal against the decision of Electric Inspector/Provincial Office of Inspection appointed under S.38 of the Act, Regln.4 of the Regulations, 2012 provided a mechanism for calculation of period of limitation for filing of appeal, under which period of limitation would start from the receipt of the copy of the decision or order by the aggrieved person which was sent to them by the Provincial Office of Inspection/Electric Inspector through any of the modes prescribed in Reglns 4(2)(a) to (c)---Remedy of appeal provided under S. 12-A of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 [As amended by Regulation of Generation, Transmission and Distribution of Electric Power (Amendment) Act (XVIII of 2011)] was restricted to the decision or order of the single Member of the Authority or the Tribunal established under S. 11 of the Act; whereas, appeal provided under S. 38(3) of the Act related to the decision or order of the Provincial Office of Inspection which was to be filed within thirty days from receipt of the order to the Authority in the prescribed manner---Provincial Office of Inspection/Electric Inspector was bound to transmit the copy of order to the aggrieved person through the modes provided under Regln. 4 and in that way the period of limitation for filing appeal in terms of S. 38(3) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 [As amended by Regulation of Generation, Transmission and Distribution of Electric Power (Amendment) Act (XVIII of 2011)] would be calculated from the date of receipt of the order---Authority had committed an illegality while dismissing the appeals on account of limitation by way of impugned order which was completely in oblivion of the provisions of law---High Court, setting aside the impugned order, remanded the case for decision afresh---Constitutional petition was allowed in circumstances.

FESCO through Chief Executive Officer and 3 others v. Al-Murtaza Cotton Factory, through Director and 2 others 2015 MLD 1307

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches, principle of---Scope/applicability--Principle of laches could not be equated with the limitation---Effect of delay in filing the Constitutional petition was to be determined on the basis of facts and circumstances of each case---Laches could not be pleaded against an order which was apparently illegal and unlawful.

Saeed Ahmad Bhatti for Petitioner (in Writ Petition No.39623 of 2015).

Mehr Shahid Mahmood, Saeed Ahmad Bhatti, Ch. Fayyaz Ahmad Singhairah, Dr. Muhammad Irtiza Awan, Shabbir Ahmad, Mian Muhammad Javaid and Shahbaz Ahmad Bajwa for Petitioners (in Writ Petition No.16172 of 2015).

Umer Sharif, Advocate/Legal Advisor, Kh. Salman Mahmood, Asstt. Advocate-General, Muhammad Bilal Pervaiz and Ch. Muhammad Imran Bhatti for Respondents (in Writ Petitions Nos.39623 and 16172 of 2015).

Date of hearing: 25th April, 2016.

YLR 2016 LAHORE HIGH COURT LAHORE 1938 #

2016 Y L R 1938

[Lahore]

Before Shahid Hameed Dar, J

ATTA MUHAMMAD---Petitioner

Versus

ILAM DIN and 9 others---Respondents

Criminal Appeal No.568 of 1994, decided on 3rd July, 2015.

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

----Ss. 325, 326, 452, 148 & 149---Criminal Procedure Code (V of 1898), Ss. 417(2) & 367---Attempt to commit suicide, thug, house-trespass after preparation for hurt, rioting armed with deadly weapon and unlawful assembly---Private complaint---Appeal against acquittal---Reappraisal of evidence---Plea of private defence---Judgment without discussion of evidence and giving any reason would not be a proper judgment and valid in the eye of law---Prosecution had failed to bring home the guilt of the accused beyond any reasonable shadow of doubt---Outcome of the case would have been the same as drawn by the Trial Court through impugned judgment---Plea of private defence could be raised in appeal if spelt out from the prosecution evidence though not specifically taken at trial---Accused had justifiably exercised their right of private defence and had not exceeded such right at any stage---Accused had not committed any offence for which they should be punished---Conclusion drawn by the Trial Court with regard to innocence and acquittal of accused was upheld---Appeal was dismissed in circumstances.

Phulail Khan v. The State 1972 SCMR 95 ref.

Abdul Rashid Munshi and 3 others v. The State PLD 1967 SC 498; Sahab Khan and 4 others v. The State and others 1997 SCMR 871; Ashiq Hussain and others v. The State and 2 others 2003 SCMR 698; Muhammad Osman v. The State 1992 PCr.LJ 88; Ghulam Hussain and others v. The State 1996 PCr.LJ 514 and Abdul Qayum v. The State 1996 PCr.LJ 1427 distinguished.

Latif v. The State 1980 PCr.LJ 1101; Sultan Khan and 3 others v. The State and 2 others 1987 SCMR 237; Askar Ali and others v. The State PLD 1959 SC (Pak.) 251; Muhammad Abdullah v. Muhammad Safdar Khan and another 1973 SCMR 26; Muhammad Yousaf's case 1994 SCMR 1733 and Ghulam Rasul and 3 others v. The State PLD 1970 Lah. 832 rel.

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

----S. 173---Report of police-officer---Evidentiary value---Report under S. 173, Cr.P.C was merely a gist of investigation which could not be proved being inadmissible in evidence.

----S. 367--- Judgment--- Points for determination, framing of---Scope---Judgment must be lucid, should contain discussion of evidence, reasons of the decision and not merely the conclusion.

(d) Criminal trial---

----Private defence---Plea of---Plea of private defence could be raised in appeal if spelt out from the prosecution evidence though not specifically taken at trial.

Ch. Ali Muhammad for Appellant.

Muhammad Ahsan Bhoon for Respondents Nos.1 to 9.

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State.

Date of hearing: 3rd July, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1955 #

2016 Y L R 1955

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

GULZAR AHMAD---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.338-J and Capital Sentence Reference No.22-T of 2012, heard on 13th February 2015.

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

----Ss. 302(b) & 336-B---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-i-amd, killing by burning, act of terrorism---Appreciation of evidence---Incident had taken place exactly on the date which was mentioned in the FIR---Delay of four days in registration of FIR which was plausibly explained, was immaterial in circumstances of the case---Incident was a daylight occurrence, wherein accused was named in the FIR by the deceased herself, in her Dying Declaration made before the Civil Judge---Specific role of pouring Kerosene oil on the deceased after tiding her hands and putting her on fire, attributed to accused, was duly borne out from the Medico-Legal Certificate of the deceased and post-mortem examination---Story mentioned in the FIR was quite natural---Both witnesses, had correctly explained strained relations of the spouse, and the manner as well as mode of taking place of the occurrence---Said witnesses had remained constant on each and every material point, despite having a lengthy cross-examination by the defence---Said witnesses were dependable witnesses and their evidence extended adequate confidence to the court---Complainant being real brother of the deceased, it was not expected from close relative to falsely involve accused, who was his brother-in-law in the case---Case was not that of mistaken identity of accused or his false implication---Medical evidence was absolutely in line with the ocular account, which had provided full support to the same---Minor discrepancies, could crop up with the passage of time, slip of tongue, and same were not material enough to be considered---Recovery effected in the case, provided full corroboration to the ocular account---Motive set out by the prosecution, which had fully been proved, had provided sufficient support to the ocular account---Accused, who was desperate person, had acted in a merciless and ruthless way; and indulged into a hard-hearted occurrence, which took life of his wife, for which a sense of panic provided in the locality---Normal penalty of murder was death, and accused did not deserve any leniency---Prosecution having proved its case against accused without any shadow of doubt, conviction and sentence passed against accused, were upheld and maintained---Sentence of death, was confirmed, in circumstances.

Sikandar Shah v. Raza Shah and another 2015 SCMR 10 rel.

(b) Criminal trial---

----Witness---Related witness---Fact of relationship of the witnesses with the complainant, or with the deceased, would not be sufficient to smash the evidence adduced by such witnesses; or to disbelieve their credibility as well as legal sanctity---Such witnesses could be believed, if intrinsic worth of their testimony would inspire confidence of the court---Rule requiring independent corroboration of testimony of related or interested witnesses, was a rule of prudence, which was not to be applied rigidly in each case, especially when the courts of law would not feel its necessity.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 rel.

Mrs. Nighat Saeed Mughal and Mrs. Amera Salam for Appellants.

Khurram Khan, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 13th February, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 1980 #

2016 Y L R 1980

[Lahore (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi, J

Syed ALTAF HUSSAIN GILLANI and others---Petitioners

Versus

GHULAM MUHAMMAD and others---Respondents

Civil Revision No.828 of 2011, decided on 5th August, 2015.

Civil Procedure Code (V of 1908)---

----O. XL, R. 1---Receiver, appointment of---Requirements---Words "just and convenient"---Scope---Plaintiffs filed an application for appointment of receiver which was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Civil court had jurisdiction to appoint Receiver of suit property to protect and preserve the same pending judicial determination---Such discretion had to be exercised judiciously to protect the rights of citizen---Party seeking relief of appointment of Receiver was required to make out a prima facie case and establish his prima facie title to the suit property---Such party had also to show that suit property would be wasted, misappropriated and destroyed if Receiver was not appointed---Apprehension of mismanagement or misappropriation alone would not be sufficient to call for appointment of Receiver---Appointment of Receiver would tantamount to dispossessing a person who was already in possession of the property---Plaintiffs had neither been able to make out a prima facie case of imminent risk of misappropriation, waste and destruction of suit property nor had they prima facie established their title to the suit property---Provisions of O. XL, R. 1, C.P.C. could only be exercised when court had come to the conclusion that it was just and convenient to appoint the Receiver to preserve and protect the property during the pendency of litigation---Words "just and convenient" used in O. XL, R. 1, C.P.C. had to be interpreted depending upon the facts of each case---Such words would denote convenience of the party and not that of the court---Property in the present case, was in the possession of defendants---Defendants should not be dispossessed from the suit land on the ground of some unfounded, unproven facts---Nothing was on record to prove the allegations leveled by the plaintiffs to substantiate their averments---Defendants were administering the shrine being "Mutawalli"---Earlier suit for declaration filed by the plaintiffs with regard to the same subject matter had been dismissed on merits---Plaintiffs had failed to show any emergency and loss demanding immediate action---Findings recorded by the Appellate Court were in conformity with the law---Revision was dismissed in circumstances.

Media Max (Pvt) Ltd. through Chief Executive v. ARY Communication Pvt. Ltd. through Chief Executive and another PLD 2013 Sindh 555; Naseem-ul-Haq through Attorney and another v. Raes Aftab Ali Lashari through Guardian ad-litem and 5 others 2015 YLR 550; Mobin Rafique and another v. Rashid Ahmed and 2 others PLD 2012 Sindh 449; Syed Anwar Adil Shah v. Syed Qamar-uz-Zaman Shah PLD 2011 Kar. 112; Mst. Saeeda Khatoon v. Haji Zangi Khan and others 2009 YLR 175; Jamil ur Rehman v. Anisur Rehman 2009 MLD 1082 and M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54 rel.

Muhammad Mehmood Ashraf Khan and Muhammad Arshad Masood for Petitioners.

Kareem-ud-Din Khilji and Mian Tanvir Kamran for Respondents.

Date of hearing: 5th August, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2000 #

2016 Y L R 2000

[Lahore]

Before Manzoor Ahmad Malik, C J

MUMTAZ AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.199-J of 2013, heard on 13th July, 2015.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about five hours in reporting the matter to the Police, had not been satisfactorily explained which had cast serious doubts regarding the veracity of the prosecution case---Complainant and prosecution witness, having not assigned any plausible reason for their presence at the spot at the relevant time, their presence at the relevant time was doubtful---Medical evidence did not advance the prosecution case---Prosecution had not been able to substantiate the motive against accused---Abscondence of accused, was not of much help to the prosecution, because the prosecution witnesses who allegedly executed the warrants and proclamation to procure the attendance of accused, had not been produced before the Trial Court; and the evidence of abscondance, was not put to accused while recording his statement under S.342, Cr.P.C.---Co-accused, who were implicated and tried along with accused were acquitted by the Trial Court; and no appeal against their acquittal was filed---Case of accused was on better footings than that of acquitted co-accused---Prosecution evidence, which had been disbelieved to the extent of acquitted co-accused, could not be used against accused for maintaining his conviction on a capital charge---Prosecution case to the extent of accused was doubtful in nature---Opinion of Police qua innocence or guilt of accused being inadmissible in evidence, accused could not be convicted merely on the ground that he was declared guilty by the Police during the course of investigation---Prosecution having failed to connect accused with the commission of crime beyond any shadow of doubt, judgment passed by the Trial Court, was set aside; accused was acquitted of the charge framed against him, and was released, in circumstances.

Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

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

----S. 342---Examination of accused---Piece of evidence, not put to accused while examining him under S.342, Cr.P.C., could not be relied for recording/ maintaining his conviction.

----Abscondance of accused---Effect---Abscondance of accused, was merely a corroborative/supportive piece of evidence; and relevant only when the primary evidence would inspire confidence.

(d) Criminal trial---

----Evidence, appreciation of---Principle of "falsus in uno falsus in omnibus", applicability of---Said principle was not applicable for the safe administration of justice, the courts were required to sift grain from the chaff.

Barrister Sehr Khosa, Defence Counsel for Appellant.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Nemo for the Complainant.

Date of hearing: 13th July, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2036 #

2016 Y L R 2036

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

IMRAN KHAN alias MANA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.1678 and C.S.R. No.33-T of 2009, heard on 22nd January, 2015.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-i-amd, act of terrorism---Appreciation of evidence---FIR, was registered promptly within 30 minutes---Occurrence had taken place at night at a place where electric bulbs were lit---Sufficient light being available at the place of occurrence, mis-identity of accused was not possible especially when both the parties were known to each other---Presence of eye-witnesses at the time of occurrence could not be considered as improbable or unnatural---Substitution, was a rare phenomenon, and it was not expected from father of the deceased to let off the real culprit and involve accused in the case---Witnesses were cross-examined at length, but their evidence could not be shaken during the process of cross-examination; they corroborated each other on all material aspects of the case and their evidence, was straightforward, trustworthy and confidence inspiring---Medical evidence had fully supported the ocular account furnished by prosecution witnesses---Motive, had not specifically been denied by accused---Prosecution had proved motive of occurrence against accused---No discrepancy existed in the statements of witnesses of recovery---Report of Forensic Science Laboratory showed that crime empties had been fired from the rifle recovered from the possession of accused---Prosecution had proved its case beyond shadow of doubt against accused---Defence plea of accused, was nothing except denial, which was not believable, and same was discarded---Accused had committed shocking and callous murders of two deceased persons and caused injuries to two injured---In absence of any mitigating circumstance, accused, did not deserve any leniency---Conviction and sentence awarded to accused under S.302(b), P.P.C., and S.7(a) of Anti-Terrorism Act, 1997, were maintained---Death sentence awarded to accused by the Trial Court was confirmed, and his appeal to that extent was dismissed.

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

----S. 324---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Attempt to commit qatl-i-amd, causing bodily harm and injury---Trial Court, while convicting accused under S.324, P.P.C., and S.7(c) of Anti-Terrorism Act, 1997, sentenced him with life imprisonment, which was not provided under S.324, P.P.C.; maximum sentence of imprisonment provided under said section was ten years---Conviction of accused under S.324, P.P.C. and S.7(c) of Anti-Terrorism Act, 1997, was maintained, but his sentence was altered from life to ten years on two counts, in circumstances.

Ijaz Ahmad Chadhar for Appellant.

Abdul Rehman for the Complainant.

Khurram Khan, DPG for the State.

Date of hearing: 22nd January, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2055 #

2016 Y L R 2055

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf, J

QAISAR ABBAS---Petitioner

Versus

DISTRICT ELECTION COMMISSIONER, VEHARI and 5 others---Respondents

Writ Petition No.14181 of 2015, heard on 6th October, 2015.

(a) Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)(e)---Punjab Agricultural Produce Markets Ordinance (XXIII of 1978), S. 9---Punjab Agricultural Produce Markets (General) Rules, 1979, R. 11---Election for local government---Chairman Market Committee---Nomination papers, submission of---Objection---Petitioner being voter of constituency preferred objection against the nomination papers of respondent but same was rejected by the election authorities---Contention of petitioner was that respondent being Chairman of Market Committee was not eligible to offer his candidature to be elected as Chairman of Union Council---Validity---Respondent being Chairman Market Committee tendered his resignation to contest local bodies election---Nothing was on record to show that the resignation of respondent had been accepted---Candidature of respondent was hit by S. 27(2)(e) of Punjab Local Government Act, 2013---Respondent could only qualify to contest the local bodies election if he had resigned from being Chairman Market Committee and a period of not less than two years had elapsed since his resignation---Respondent being Chairman Market Committee was debarred to contest local bodies election---Acceptance of nomination papers of respondent by the election authorities was not warranted by law---Impugned orders passed by the election authorities were set aside being illegal and unlawful---Constitutional petition was accepted in circumstances.

Sahibzada Tariqullah v. Haji Amanullah Khan and others PLD 1996 SC 717 ref.

Saqib Naseeb v. Returning Officer, PP-226, Sahiwal VII and another 2013 CLC 1024 distinguished.

Mirza Muhammad Tufail v. District Returning Officer and others PLD 2007 SC 16 rel.

(b) Punjab Agricultural Produce Markets (General) Rules, 1979---

----R. 11---Termination of membership of Market Committee---Scope---Chairman Market Committee would continue to be member of the Market Committee so long as resignation tendered by him was not accepted by the Government.

Ahmad Raza for Petitioner.

Muhammad Naveed Rana for Respondents Nos. 1 to 4.

Khalid Ibn-e-Aziz for Respondents Nos. 5 and 6.

Date of hearing: 6th October, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2070 #

2016 Y L R 2070

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

LIAQAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.2769 and Murder Reference No.639 of 2010, heard on 15th January, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Matter was reported to the Police without any deliberate or conscious delay---Prosecution produced only complainant/ sister of the deceased to furnish ocular account---Quality of the evidence would weigh with the courts and not the quantity---Complainant, resided in the same house where incident took place; her presence in her own house was quite natural and believable---Complainant was "Bhabhi", 'Sali' and paternal cousin of accused; and she had no enmity against accused for his false implication in such a heinous offence---No such specific enmity or motive had been pointed out by the defence against complainant---Even at the time of trial, she had been living with her husband, who was real brother of accused---Said lady (complainant), not only got registered FIR, but also appeared before Trial Court to depose against accused---Such fact fairly showed that the prosecution story narrated in the FIR by the complainant, was genuine---Complainant lady had furnished a straightforward ocular account of the incident---Defence could not derive anything beneficial to accused during cross-examination, as she remained firm, confident and stuck to her stance taken by her in statement recorded under S.154, Cr.P.C., without noticeable deviation---Defence, avoided to cross-examine the complainant, qua the actual occurrence of quarrel between spouses, and causing of firearm injuries by accused to her deceased wife, which had confirmed the guilt of accused, and the truthfulness of the testimony of the complainant---In view of the relationship of two given up (being won-over) eye-witnesses with accused, their non-appearance to support the prosecution story, was not sufficient to discredit the testimony of the complainant---No question of mis-identification, false implication, or substitution arose in the case---Complainant, was worthy of credence, confidence inspiring, credible, and had rightly been considered by the Trial Court---Prosecution case against accused found corroboration from the medical evidence---Motive had been proved by the prosecution---Nothing was recovered from accused during the course of investigation---Case of prosecution in the FIR was that accused, after throwing the gun, fled away from the spot by scaling over the wall---Even the report of Forensic Science Laboratory regarding said gun, was only to the extent of its being in working order---Alleged recovery of .12 bore double barrel gun at the instance of accused was inconsequential to the prosecution case---Statement of defence witness recorded under S.161, Cr.P.C., was in line with the version of the complainant narrated in FIR---Witness had admitted that he never joined the investigation---Said defence witness resiled from his previous statement made by him under S.161, Cr.P.C.---Presence of accused at the crime scene, quarrel between the spouses had been admitted by defence witness---Story narrated by the defence witness, was discrepant, which further rendered the defence version doubtful---Prosecution remained successful to prove its case against accused, beyond any shadow of reasonable doubt---Trial Court had rightly convicted accused---Evidence of recovery of crime weapon .12 bore double barrel gun was inconsequential---Accused had committed the murder of his wife under the impulse during the quarrel with her which started in presence of the elder family members; and there seemed to be no premeditation by accused to commit such a heinous offence---Whatever was done by accused, was the result of irritation, created in his mind during the quarrel between spouses which could be taken as mitigating/ extenuating circumstance---Death sentence awarded to accused was harsh in the peculiar circumstances of the case---Alternative sentence of imprisonment for life to accused would meet the ends of justice---Maintaining conviction of accused, his sentence was altered from death to imprisonment for life, with benefit of S.382-B, Cr.P.C.

Muhammad Mansha v. The State 2001 SCMR 199; Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Muhammad Anees v. The State 2002 SCMR 1068 ref.

Saqib Jillani, Defence Counsel at State expenses for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 15th January, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2085 #

2016 Y L R 2085

[Lahore (Multan Bench)]

Before Muhammad Tariq Abbasi, J

MUHAMMAD JAFFAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.226 of 2014, heard on 11th March, 2015.

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

----Ss. 336 & 337-A(ii)---Itlaf-i-Salahiyyat-i-Udw, causing Shajjah-i-Mudihah---Accused had not challenged his conviction and sentence, but had requested for instalments, towards payment of amount of 'Arsh'---Deputy Prosecutor General, as well as counsel for the complainant/victim, had no objection in determining the instalments for payment to the amount of 'Arsh', and release of accused from jail---Accused was awarded imprisonment of five years under S.336, P.P.C., and two years under S.337-A(ii), P.P.C.---Accused had served out imprisonment of 4 years, 1 month and 26 days, and remaining portion of sentence was 10 months and 4 days---In the light of settlement arrived at between the parties, un-served portion of sentence, should be forgiven, as the term of sentence which accused had already undergone, was sufficient to meet the ends of justice---Upholding conviction and sentence of 'Arsh' awarded to accused, High Court directed to make payment of amount of 'Arsh' in instalments mentioned in the settlement---Sentence of imprisonment of accused was reduced to already undergone.

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

----S. 331---Recovery of Diyat---Object and purpose---Object and purpose of recovery of Diyat amount, was that the victim should be compensated according to the rate which was prevailing at the time of pronouncement of judgment.

Tariq Mehmood Dogar for Petitioner.

Malik Muhammad Jaffer, D.P.G. for the State.

Mehr Ashraf Sial for the Complainant.

Date of hearing: 11th March, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2106 #

2016 Y L R 2106

[Lahore]

Before Ch. Mushtaq Ahmad, J

Mst. AYESHA MALIK---Petitioner

Versus

S.H.O. POLICE STATION CITY JAMPUR DISTRICT RAJANPUR and 4 others---Respondents

W.P. 1144 of 2015, decided on 27th February, 2015.

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

----S. 365-B---Criminal Procedure Code (V of 1898), S.561-A---Kidnapping, abducting or inducing woman to compel for marriage---Quashing of FIR---Petitioner/ alleged abductee, had sought quashing of FIR, on the ground that she being sui juris, had contracted marriage with respondent, with her free consent; and that no body had abducted her---Copy of Nikahnama, annexed with the petition, showed that Nikah was performed---Contents of petition, as well as other documents available on record, like Nikahnama and certified copy of the statement of the petitioner before the Illaqa Magistrate, showed factum of marriage between the petitioner and respondent---Petitioner, herself appeared before the court, and supported the contents of the petition; and affidavit submitted by her stating that she had contracted marriage with her free consent and without any pressure; and that she was not abducted by any body---After her admission of having contracted marriage with respondent, there remained no case, or charge to be tried---Case being fit for quashing of FIR, petition was allowed and impugned FIR, was ordered to be quashed, in circumstances.

Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; Haqnawaz v. Muhammad Afzal and others 1968 SCMR 1256; Malik Salman Khalid v. Shabbir Ahmad 1998 SCMR 873 and Miraj Khan v. Gull Ahmed and 3 others 2000 SCMR 122 ref.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Inherent powers of High Court---Scope---High Court had inherent powers to pass such order as could be necessary to prevent abuse of process of court, or otherwise to secure the ends of justice---Phrase "ends of justice", though, had not been defined in the Cr.P.C., nor in any other statute, but 'ends of justice' would necessarily mean the just, as administered by the courts; and not in its abstract sense---Where the continuation of process of the court would result in futile exercise and undue harassment; it would be in the fitness of things, and in the interest of justice to quash the proceedings---Abuse of process of court signified the perversion of very purpose of law and justice resulting in undue harassment---Impugned FIR was ordered to be quashed.

Ms. Farzana Kausar Rana for Petitioner.

Mian Abdul Qayyum APG with Habib Ullah, ASI.

Respondent No.2 in person.

YLR 2016 LAHORE HIGH COURT LAHORE 2119 #

2016 Y L R 2119

[Lahore]

Before Mirza Viqas Rauf, J

Mst. FAHMIDA---Petitioner

Versus

SAJJAD ASHRAF and another---Respondents

Writ Petition No.30422 of 2014, heard on 27th November, 2014.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Jurisdiction of High Court---Scope---Custody of minor---Right of Hizanat---Minor son, whose custody was sought by petitioner mother, was suckling baby of about 1-1/2 years---Such minor required protection and care for twenty four hours and nobody, other than real mother could look after him---Jurisdiction under S.491, Cr.P.C., was to be exercised with great caution and restraint---Where minor was of tender age, and had been snatched from lawful custody; and there was real urgency in the matter keeping in view the welfare of the minor, provision of S.491, Cr.P.C., provided efficacious and speedy relief---Section 491, Cr.P.C. protected right of a person, who had been kept under illegal or improper custody---Arrangements under S.491, Cr.P.C., were temporary in nature, which were to be dealt with by way of parental jurisdiction---Question of custody, could be decided by the Guardian Judge---Trial Court, in circumstances was not justified in disallowing the custody of minor to the mother; only on the ground that she had approached the court with considerable delay---High Court observed that such matter, should not be dealt with in a mechanical manner, or on the basis of technicalities---Courts below had to invoke the parental jurisdiction---Impugned order passed by the Trial Court was set aside by High Court with the direction that the minor be handed over to the mother, who had right of 'Hizanat' qua him.

Mst. Saima Bibi v. Raheel Butt and 3 others 2014 MLD 38; Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1; Naziha Ghazali v. The State and another 2001 SCMR 1782; Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533; Mah Rukh Bajwa v. Aftab Alam and 2 others 2008 MLD 751 and Mst. Ghulzadi v. Government of Sindh through Home Secretary and others PLD 2014 Sindh 386 ref.

Muhammad Zafar Sultan and A.D. Dahar for Petitioner.

Naveed Ahmad Khawaja for Respondent No.1.

Date of hearing: 27th November, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 2128 #

2016 Y L R 2128

[Lahore]

Before Atir Mahmood, J

MUHAMMAD KHAN---Petitioner

Versus

MONDA through L.Rs. and others---Respondents

Civil Revision No.2831 of 2011, heard on 10th September, 2011.

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

----S. 42---Suit for declaration---Maintainability---Assertion made in the plaint had not been proved through oral or documentary evidence---Evidence in the case was beyond the pleadings which could not be taken into consideration---Plaintiff was not in possession of the suit property---Suit was not maintainable as claim for possession had not been made---Suit filed by the plaintiff was defective from its very inception---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Khalid Mahmood v. Anees Bibi and 2 others PLD 2007 Lah. 626; Muhammad Ismail and others v. Roshan Ara Begum and others PLD 2001 Lah. 28; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983; Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; Ahmad Din v. Muhammad Shaft and others PLD 1971 SC 762; Sheikh Muhammad Ashraf v. Mst. Bilqees Akhtar and 4 others 2000 YLR 408; Muhammad Yar v. Mst. Iffat Sultana 2000 MLD 531; Muhammad Sher and others v. Mst. Taj Meena and others PLD 1996 Pesh. 6; Muhammad Saeed and others v. Muhammad Asif and others 2001 MLD 1861; Mst. Perveen Akhtar and others v. Muhammad Hussain and others 2000 SCMR 1881 and Messrs Javed and Co. v. Messrs Daewoo Pakistan Motorway Services Ltd. through Chief Executive 2000 CLC 1611 ref.

Hazrat Khan v. Amanullah Khan and others 1996 SCMR 1217 rel.

(b) Evidence---

----Evidence beyond pleadings could not be taken into consideration.

Malik Noor Muhammad Awan for Petitioner.

Ch. Muhammad Naeem and Muhammad Ibrahim Khalil for Respondents Nos.6 to 8.

Proceeded against ex parte vide order dated 19.3.2015 (Respondents Nos.1 to 5).

Date of hearing: 10th September, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2135 #

2016 Y L R 2135

[Lahore]

Before Miss Aalia Neelum, J

Rana ZEESHAN AHMED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, LAHORE and 3 others---Respondents

Writ Petitions Nos.6356 and 6814 of 2013, decided on 20th February, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Registration of FIR---Petitioner got registered criminal case against respondent under Ss.420, 468 & 471, P.P.C.---During investigation of said case, respondent filed application for registration of criminal case against petitioner before Justice of Peace---Cross-version of respondent was registered---Allegations raised in said application/complaint, were in respect of alleged act of preparing of fictitious and forged document and was filed by respondent by suppressing earlier application for registration of case---Earlier application was investigated and was found baseless on the ground that no case was made out; as his claim was fake and bogus---Respondent filed second application, wherein he did not state anything about the earlier round of litigation---Concealment of said facts, had disclosed the mala fide of respondent and ulterior motive with which successive application for registration of criminal case came up to be filed against the petitioner---Said subsequent application was filed by the respondent to harass and put pressure upon the petitioner---Act of respondent was an attempt to take vengeance against the petitioner for registration of criminal case under Ss.420, 468 & 471, P.P.C.---Respondent had been unable to make out a distinct and separate version---Application for registration of criminal case under Ss.22-A & 22-B, Cr.P.C., had been filed for same accusations levelled in the earlier application---Justice of Peace, was not justified to pass impugned order---Order passed by Justice of Peace had been declared null and void, and was dismissed---Constitutional petition by the petitioner succeeded, whereas that of respondent dismissed, in circumstances.

Jahanzaib Khan for Petitioner.

Muhammad Nasir Chohan, AAG and Iftikhar, ASI along with record.

Jehanzaib Masood Mir, for Respondent No.4.

YLR 2016 LAHORE HIGH COURT LAHORE 2148 #

2016 Y L R 2148

[Lahore (Multan Bench)]

Before Mehmood Maqbool Bajwa and Farrukh Gulzar Awan, JJ

ATTA ULLAH and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.421 and Murder Reference No.32 of 2010, heard on 30th November, 2015.

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

----Ss. 302(b), 353, 397, 186, 148 & 149---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, robbery or dacoity with attempt to cause death or grievous hurt, obstruction of public servant in discharge of his public functions, rioting, common object---Appreciation of evidence---Benefit of doubt---Complainant, saw accused persons in darkness, as no source of light was at the place of occurrence and it was not possible for the complainant to know and preserve the particulars and description of accused persons as assailants---Deposition of prosecution witness that he noted the particulars and description of accused persons in the light of motorcycle, would not advance the plea of prosecution in order to save description of accused persons in the mind---Such fact by itself put serious dent in the case of prosecution in order to act upon the report of identification parade---Identification parade of all accused persons, was conducted together though it should have been held separately---Dummies, in identification parade though were of similar age and height, but general remarks had been given in that regard---No separate role was given against each dummy suggesting his structure and age etc.---Complainant had admitted that he did not disclose the role of any culprit---Proceedings of identification parade, could not be acted upon, in circumstances---Evidence adduced by prosecution, was neither worthy of credit, nor confidence inspiring---Same could not be believed, relied upon and acted upon, in circumstances---Prosecution, having failed to prove its case against accused persons beyond shadow of doubt, benefit of such doubt, had to be extended in favour of accused persons, as a matter of right---Judgment of the Trial Court, was set aside, accused were acquitted of all heads of charge, and were released, in circumstances.

Mansoor Ahmad and others v. State and others 2012 YLR 2481 ref.

Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 and Noor Muhammad v. The State and another 2010 SCMR 97 rel.

(b) Criminal trial---

----Evidence of injured witness, veracity of---Sustaining of injuries by a person, though would prove his presence at the place of occurrence, but mere receipt of injuries, would not be sufficient to stamp him as a truthful witness, and to act upon his evidence on that score alone---Veracity of injured eye-witness had to be tested on its own merits, keeping in view the facts and circumstances of the case.

Sajjad Hussain v. The State 1997 SCMR 174 ref.

----Evidence of recovery---Scope---Evidence of recovery would not advance the plea of prosecution to prove the guilt of accused, because factum of recovery, was a corroborative piece of evidence; and by itself would not be sufficient to prove the case of prosecution.

Saifullah v. The State 1985 SCMR 410 and Noor Muhammad v. The State and another 2010 SCMR 97 ref.

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

----S. 302(b)---Medical evidence---Scope---Medical evidence, would not substantiate the case of prosecution in order to know the identity of accused as assailants; because it could only be used in order to know the seat and locale of injuries, and weapon of offence used in the occurrence; and same could not connect the person in the commission of crime; which aspect could only be proved, either by direct or circumstantial evidence.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 rel.

Rana Muhammad Nazir Khan Saeed for Appellants.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General, Punjab for the State.

Nemo for the Complainant.

Date of hearing: 30th November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2173 #

2016 Y L R 2173

[Lahore]

Before Muhammad Anwaarul Haq and Ch. Mushtaq Ahmed, JJ

RAFAQAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1572 of 2006, heard on 10th November, 2015.

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

----Ss. 9 (c) & 6----Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic drugs etc.---Appreciation of evidence---Police officials as sole recovery witnesses, competency of---Principles---Accused was alleged to have been arrested while he was in possession of forty kilogram of "Poast"---Trial Court, having convicted accused, sentenced him to undergo life imprisonment along with payment of fine---Recovery witnesses had fully supported the complainant's version---Prosecution witnesses had been put to lengthy cross-examination, but defence could not shatter their testimony on material points like date, time and place of recovery of contraband material from the accused---Prosecution case was although based on the testimony of police officials only, but no ill-will or animosity had been brought on record during investigation and trial, that could prompt the police witnesses to falsely involve the accused in present case---Police witnesses were as good and competent witnesses as anybody else, unless they were proved to be inimical against the accused---Report of Chemical Examiner was positive, which had corroborated the ocular account furnished by the prosecution witnesses---Prosecution had proved the charge against the accused beyond shadow of reasonable doubt---Appeal was dismissed accordingly.

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

----S. 103----Search to be made in presence of witnesses---Object of S.103, Cr.P.C.---Police officials as sole recovery witnesses, competency of--- Principles--- General tendency exists that people from public are reluctant to become witnesses due to fear of desperate persons---Non-association of members of public in recovery proceedings is neither a requirement of law nor an absolute rule---Main aim and object of enacting S.103, Cr.P.C. is to ensure that the search and recovery is conducted honestly and fairly and to exclude the possibility of concoction and transgression---Section 103, Cr.P.C. is never meant to disbelieve official witnesses under any circumstance.

Yaqoob Shah v. The State PLD 1976 SC 53; Muhammad Naeem alias Naeema v. The State 1992 SCMR 1617; Muhammad Hanif v. The State 2003 SCMR 1237; Tariq Mehmood v. The State PLD 2009 SC 39; Zafar v. The State 2008 SCMR 1254; Abdul Rasheed v. The State 2009 SCMR 306 and Ismail v. The State 2010 SCMR 27 rel.

Muhammad Latif Khawaja for Appellant.

Rana Abdul Majeed, Deputy Prosecutor General for the State.

Date of hearing: 10th November, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2191 #

2016 Y L R 2191

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, J

MUHAMMAD BASHIR---Petitioner

Versus

SHAHID HAROON---Respondent

Civil Revision No.632 of 2009, heard on 20th October, 2015.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3 & O. IX, R. 13---Ex parte decree, setting aside of---Closure of evidence---Scope---Application for seeking adjournment was moved but Trial Court closed the evidence and rejected application for setting aside ex parte decree---Validity---Applicant was present before the Trial Court when his evidence was closed---Trial Court was bound to offer the applicant to appear in the witness box in order to get his statement recorded---Trial Court had failed to record statement of applicant who was present when penal provisions of O. XVII, R.3, C.P.C. were exercised---Provisions of O. XVII, R.3, C.P.C. could not be applied in circumstances---Trial Court had failed to fulfill its obligation and committed illegality and irregularity while closing evidence of applicant---Impugned judgments were set aside---Case was remanded to the Trial Court to the extent of recording of testimony of applicant by providing one last opportunity whereafter by recording evidence of other side the application be determined in accordance with law---Revision was allowed accordingly.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 and Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401 rel.

Ch. Afrasiab Khan, Ch. Imran Hassan Ali, Malik M. Hafeez and Qamar Hayat Bhuttah for Petitioner.

Nemo for Respondent.

Date of hearing: 20th October, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2202 #

2016 Y L R 2202

[Lahore (Multan Bench)]

Before Masood Abid Naqvi and Ch. Muhammad Iqbal, JJ

Messrs AL-SAEED COTTON INDUSTRIES through Partner and 2 others---Appellants

Versus

E.F.U. GENERAL INSURANCE COMPANY LTD. through Chief Executive and 2 others---Respondents

F.A.O. No. 58 of 2013, heard on 21st December, 2015.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Application for recovery of insurance amount---Closure of evidence---Scope---Evidence of the applicants was not available on the dates fixed for production of the same---Trial Court granted six opportunities to the applicants to produce evidence but they failed to adduce the same---Despite availing several opportunities applicants failed to examine even a single witness---Applicants had failed to point out any unavoidable/compelling circumstances or reasonable grounds due to which they could not produce evidence---Right of evidence of the applicants was rightly closed by the Trial Court---Impugned order did not suffer from any infirmity---Appeal was dismissed in circumstances.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 rel.

Muhammad Suleman Bhatti for Appellants.

Hamid Aziz for Respondent No.1 and Muhammad Saleem Iqbal for Respondent No.3.

Date of hearing: 21st December, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2236 #

2016 Y L R 2236

[Lahore]

Before Miss Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

SHAHID IQBAL and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 1743, 2269 of 2010 and Murder Reference No.661 of 2010, heard on 20th April, 2015.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Complainant, was not an eye-witness---Sequence of firing and testimony of witnesses, had rendered the entire story of prosecution improbable which could be discarded as un-reliable---Witnesses whose presence at the spot was admitted by the complainant were not examined by the prosecution---Witnesses, who were named in the Fard Beyan had not come to the court as eye-witnesses, purposely, which was fatal for prosecution evidence---Complainant, through private complaint, had improved his case and introduced witnesses of abetment by increasing number of accused, which cast a serious doubt about the reliability of the testimony of the complainant---Clear contradictions and inconsistencies existed in the two versions of the complainant---Material witnesses including important eye-witnesses were withheld by the prosecution---Private complaint was filed belatedly i.e. more than seven months and ten days---Death had occurred much earlier to the time mentioned by the prosecution--- Deposition of the complainant about the place of incident and place of reporting of the occurrence to the Police, had created doubt---No crime empty was secured from the place of occurrence---Report of Forensic Science Laboratory, was only to the effect that the weapon allegedly recovered from accused, was in working condition---Said recovery of weapon from accused, was of no consequence---Motive, as alleged, was an afterthought and had not been proved by any credible evidence---Whole prosecution case seemed to be hinged upon conjectures and surmises, and prosecution had failed to lead incriminating corroborative, independent evidence to bring home guilt of accused in the case of capital charge---Trial Court was not justified in convicting accused, while basing upon such untrustworthy, un-corroborative evidence--Conviction, passed by the Trial Court, in circumstances, was against all canons of law recognized for the dispensation of criminal justice---Sentence awarded to accused was set aside; accused was acquitted of the charge and was ordered to be released, in circumstances.

Muhammad Tufail v. The State PLD 2002 SC 786; Muhammad Safdar v. The State PLD 2002 SC 781 and the State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

(b) Criminal trial---

----Benefit of doubt---Prosecution had to stand on its own legs---Prosecution was to prove the charge beyond any shadow of doubt and could not take any benefit of weakness of defence plea.

Shera Masih and another v. The State PLD 2002 SC 643 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Hafiz Rizwan Aziz for Appellant (in Crl. Appeal No. 1743 of 2010).

Ms. Sheeba Qaisar, Defence counsel for Appellant (in Crl. Appeal No. 1743 of 2010).

Ch. Pervaiz Iqbal Gondal for the Complainant.

Humayoun Aslam, Deputy Prosecutor-General for the State.

Date of hearing: 20th April, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2276 #

2016 Y L R 2276

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf, J

SUFIYAN AKRAM and another---Petitioners

Versus

APPELLATE AUTHORITY ADDITIONAL DISTRICT JUDGE SAHIWAL and 3 others---Respondents

W. P. No. 15117 of 2015, heard on 15th October, 2015.

(a) Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)(e)---Zakat and Ushr Ordinance (XVIII of 1980), Ss. 18(4)(10)(11) & 23---Elections for local government---Candidate being member of District Zakat and Ushr Committee---Public servant---Nomination papers, submission of---Objections---Scope---Candidate being member of District Zakat and Ushr Committee submitted his nomination papers for contesting local government elections against which objections were filed which were declined by the Returning Officer but same were accepted by the Appellate Authority---Validity---Zakat and Ushr Committee was supervised and controlled by the Government---Candidate being member of the Local Zakat and Ushr Committee would be deemed to be a "public servant" in the service of statutory body controlled by the Provincial Government---Member of Zakat and Ushr Committee should remain aloof from the political activity---Chairman and member of Zakat and Ushr Committee would continue to hold office until his resignation was accepted by the District Committee---Candidate, in the present case, tendered his resignation to contest elections of local government but same had not been accepted---Candidate was in the service of Zakat and Ushr Committee being its member and his candidature was hit by S. 27(2)(e) of Punjab Local Government Act, 2013---Such candidate could only qualify to contest the local government elections if he resigned from being member of Zakat and Ushr Committee and a period of not less than two years had elapsed since his resignation---Candidate being member of Zakat and Ushr Committee was barred to contest the local government elections---Order passed by the Returning Officer was illegal and unlawful which was rightly set aside by the Appellate Authority---Constitutional petition was dismissed in circumstances.

Ch. Liaqat Ali and another v. Election Appellate Authority/District Returning Officer, Lahore and 3 others 2001 YLR 953 and Saqib Naseeb v. Returning Officer, PP-226, Sahiwal VII and another 2013 CLC 1024 distinguished.

Zulikha Bibi v. Election Commission of Pakistan through Secretary and another 2015 YLR 1584; Mirza Muhammad Tufail v. District Returning Officer and others PLD 2007 SC 16 and Muhammad Khan v. Amanullah and 2 others PLD 2014 Bal. 128 rel.

(b) Zakat and Ushr Ordinance (XVIII of 1980)---

----S. 18(11)---Chairman and members of the Local Zakat Committee---Chairman and member of Zakat and Ushr Committee would continue to hold office until their resignation was accepted by the District Committee.

Syed Muhammad Ali Gilani for Petitioners.

Muhammad Naveed Rana Standing Counsel for Respondents Nos.1 and 2.

Ahmad Raza for Respondents Nos.3 and 4.

Date of hearing: 15th October, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2297 #

2016 Y L R 2297

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ABDUL GHAFOOR and others---Petitioners

Versus

ANJUM KAMAL MIRZA and others---Respondents

W. P. No. 16121 of 2005, decided on 15th April, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 11 & 6---Transfer of Property Act (IV of 1882), S. 119---Limitation Act (IX of 1908), S. 14---Specific Relief Act (I of 1877), S. 8---Suit for possession--- Limitation--- Plaint, rejection of--- Exclusion of time for prosecuting the case before a court not having jurisdiction--- Requirements---Defendants moved application for rejection of plaint which was dismissed by the Trial Court but appellate Court rejected the same being time barred---Validity---Cause of action arose in favour of plaintiffs in the year 1977---Plaintiffs instead of approaching the civil court in the first instance assailed the order of cancellation of allotment before the High Court and then before the Supreme Court---Plaintiffs after failure from the Supreme Court had not resorted to civil court which was the ultimate court for cancellation of registered document---Plaintiffs continued to prosecute their case before the revenue hierarchy and even after final order of the Member Board of Revenue they had not approached the civil court but assailed his order in constitutional petition---Plaintiffs had filed the present suit without application under S. 14 of Limitation Act, 1908 after dismissal of their constitutional petition---No particulars and dates of institution of earlier civil proceedings before the revenue courts and High Court and Supreme Court had been given in the plaint---Plaintiffs had not asserted in the plaint that they were prosecuting their case before different courts under bona fide impression that said courts had jurisdiction to decide the matter---Plaintiffs had not claimed exception for excluding of time in their plaint which according to them was consumed in prosecuting the litigation in revenue courts and High Court---Plaintiffs had to first admit that their suit or appeal was time barred then court could consider the request for condonation of delay---Plaintiffs could not take the benefit of O. VII, R. 6, C.P.C. and S. 14 of Limitation Act, 1908---Plaintiffs had not claimed that defendants were privy to the fraudulent allotment and S. 119 of Transfer of Property Act, 1882 was attracted in the present case---Constitutional petition was dismissed in circumstances.

Narayan Jivangouda Patil and another v. Puttabai and others AIR (32) 1945 Privy Council 5 and Muhammad Rafiq and others v. Muhammad Siddique and others 2006 MLD 892 ref.

Mubarak Ali and others v. Khushi Muhammad and others PLD 2011 SC 155; Muhammad Jan v. Suleman and others PLD 1968 Pesh. 181; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513 and Pakistan Industrial and Commercial Leasing Ltd. through Authorized Manager Recovery v. Haq Knitwear (Pvt.) Ltd. through Chief Executive and 2 others PLD 2009 Lah. 52 rel.

Muhammad Shahid Piracha for Petitioners.

Aurangzeb Mirza and Syed Muhammad Shah for Respondents.

Date of hearing: 9th March, 2016.

YLR 2016 LAHORE HIGH COURT LAHORE 2312 #

2016 Y L R 2312

[Lahore (Rawalpindi Bench)]

Before Sayyed Mazahar Ali Akbar Naqvi and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD RASIB alias BABU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 351 and Murder Reference No.52/Rwp of 2010, heard on 17th March, 2014.

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

----Ss. 302(b) & 364--- Qatl-i-amd, kidnapping or abducting in order to murder--- Appreciation of evidence---Circumstantial evidence--- Scope--- No direct evidence was on record and prosecution case hinged on the circumstantial evidence---Utmost care and caution was required for reaching at a just decision of the case---Every circumstance was to be linked with each other, and it should form such a continuous chain that its one end would touch the dead body and other to the neck of accused---If any link in the chain was missing, its benefit must go to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. The State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

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

----Ss. 302(b) & 364--- Qatl-i-amd, kidnapping or abducting in order to murder--- Appreciation of evidence---Benefit of doubt--- Dead body of the deceased was recovered after two days of the occurrence and the delay of about six hours in lodging the FIR had created a serious doubt about the prosecution case---Evidence of last seen furnished by the prosecution was not worthy of reliance---Circumstantial evidence produced by the prosecution through prosecution witness, was inconsequential, as said witness did not state that he had seen the accused in the company of the deceased---Prosecution had not produced in evidence the report of Forensic Science Laboratory with regard to one empty recovered from the place of occurrence, and pistol recovered from the possession of accused---Best evidence to connect accused with the crime, was withheld by the prosecution---In absence of matching report of empty with pistol, alleged recovery of pistol, was of no avail to the prosecution---Incident was a case of unseen occurrence, and was replete with number of circumstances, which had created serious doubt about the prosecution story---Prosecution having failed to prove its case against accused beyond the shadow of doubt, conviction and sentence recorded by the Trial Court against accused, were set aside; accused was acquitted extending him the benefit of doubt and was ordered to be released forthwith.

Akhtar Ali and others v. The State 2008 SCMR 6; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161; Waqar-ul-Islam and another v. The State 1997 PCr.LJ 1107; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMr 230 ref.

----S. 302(b)--- Qatl-i-amd--- Medical evidence---Scope---Medical evidence, was a type of supporting evidence, which could confirm the ocular account with regard to receipt of injury, nature of injury, kind of weapon used in the occurrence, but it would not identify the assailant.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 ref.

(d) Criminal trial---

----Benefit of doubt---If there was a single circumstance, which would create doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

Raja Ghaneem Aabir Khan for Appellant.

Ch. Muhammad Sarwar Sidhu, A.P.-G. for the State.

Raja Muhammad Farooq for the Complainant.

Date of hearing: 17th March, 2014.

YLR 2016 LAHORE HIGH COURT LAHORE 2339 #

2016 Y L R 2339

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

HASHMAT BIBI---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer Revenue, Vehari and others---Respondents

Civil Revision No. 1087-D of 2006, decided on 6th October, 2015.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 19-A---Punjab Board of Revenue Act (XI of 1957), S. 8---Inheritance of allottee of a Co-operative Farming Society---Scope--- By-laws of a Co-operative Society---Review of order by Board of Revenue---Scope---Contention of plaintiffs was that they were entitled for their legal share out of the property (land in question) left by their predecessor-in-interest---Suit was dismissed concurrently---Validity---Suit land was allotted to the predecessor-in-interest of the parties by the Co-operative Farming Society---Defendant was only a nominee of the allottee---Inheritance of allottee of a Co-operative Society would be governed by Shariah Law and not through the by-laws---By-laws of a Co-operative Society or a practice or custom or usage could not override the express provisions of law---No gift had either been claimed or alleged to have been made in favour of defendant---Suit land was to be devolved upon all the legal heirs of the deceased---Member Board of Revenue had reviewed his earlier order without considering the scope and mandate of review while ignoring the grounds of the same---Both the courts below had non-suited the plaintiffs in derogation of law---Impugned judgments and decrees passed by both the courts below were set aside and suit was decreed with cost throughout--- Revision was allowed in circumstances.

Muhammad Tufail v. Yaqub and others PLD 1985 Rev. 158(1); Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Fazal Shah v. Muhammad Din and others 1990 SCMR 868; Manzoor Ahmad v. Mst. Salaman Bibi and others 1998 SCMR 388 and Muhammad Bakhsh v. Mst. Ghulam Fatima through L.Rs. and others 2007 SCMR 1227 rel.

(b) Punjab Board of Revenue Act (XI of 1957)---

----S. 8---Review of order---Grounds---Scope---Review petition could only be entertained when new and important grounds were advanced which could not be brought on record at the time of hearing at early stage or there was error apparent on the face of record---Error which did not require any extraneous matter to show its incorrectness could be treated as being apparent---Such errors were not demonstrated by any process of close reasoning---Any erroneous view of law on a controversial matter or a wrong exposition of law or a wrong application of law or failure to apply correct law could not be treated as a mistake or error apparent on the face of record---If court applied its mind to a particular fact or law and then came to a wrong conclusion then it could never be assumed that error was one apparent on the face of record---Scope of review was limited---Opportunity of review could not be availed of for re-agitating entire case---Review was not an appeal and same could not be allowed to be treated as an appeal.

----S. 115---Revisional jurisdiction of High Court---Scope---High Court had limited revisional jurisdiction to interfere with concurrent findings of facts but such findings could be interfered with if courts below had either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence which had direct bearing on the issue involved and there was violation of law apparent on the face of record.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Mushtari Khan v. Jehangir Khan 2006 SCMR 1238 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Mian Mohammad Akram for Petitioner.

Ch. Abdul Ghani for Respondent No.3.

YLR 2016 LAHORE HIGH COURT LAHORE 2355 #

2016 Y L R 2355

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

FAQIR MUHAMMAD and 6 others---Petitioners

Versus

FERHAT HUSSAIN and others---Respondents

Civil Revision No. 497 of 1998, heard on 11th May, 2015.

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

----S. 31---Suit for rectification of decree and sale deed---Maintainability---Limitation---Decree was passed on the basis of compromise of the parties---Suit was not competent on the ground that statement of defendant was not correct---Concurrent findings of facts were recorded by the courts below and had reached to a right conclusion---Suit was time barred---Court was bound to check whether a lis had been initiated within the prescribed period of limitation even if no evidence had been produced---When matter had been resolved through compromise then suit was not competent to set aside the same---Revision was dismissed in circumstances.

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

----S. 12(2)---Fraud and misrepre-sentation---Decree, setting aside of---Scope---Application under S. 12(2), C.P.C. would lie only when misrepresentation or fraud had been committed with the court by any of the parties or order of the court was without jurisdiction.

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Period of three years had been provided for filing a suit for declaration from the date of accrual of cause of action.

Muhammad Masood Bilal for Petitioners.

Ex parte for Respondents.

Date of hearing: 11th May, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2385 #

2016 Y L R 2385

[Lahore]

Before Abdul Sami Khan and Shehram Sarwar Ch. JJ

SHOAIB KHAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 561, 724 of 2010 and Capital Sentence Reference No.23-N of 2010, heard on 8th December, 2015.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Both the prosecution witnesses being government functionaries, were independent, as well as, unbiased---Both said witnesses gave detailed pen-picture of the process of recovery of huge quantity of narcotic substance from the possession of accused--Said prosecution witnesses were tested on the parameters of lengthy cross-examination, but they remained coherent on salient features and nothing could be brought on record in favour of accused---Neither the investigation carried out by the Investigating Officer was challenged, nor a single circumstance was brought on record to substantiate that the prosecution witnesses had previous ill-will against accused persons---Prosecution had successfully established its case against accused---Defence version, could not be substantiated through any independent circumstance---Trial Court, in view of overwhelming material brought on record was justified in recording conviction against accused persons under S.9(c) of the Control of Narcotic Substances Act, 1997---Contraband narcotic substance recovered from accused which consisted charas was not lethal as heroin---Accused was first offender and there was no previous record of the nature to his credit---Charas recovered being of lesser gravity and magnitude, as compared to heroin, infliction of sentence of imprisonment for life, would be sufficient to meet the dictates of justice---Death sentence awarded to accused, was converted into imprisonment for life---Benefit of S.382-B, Cr.P.C., was also extended to accused.

Rehmat Shah Afridi v. The State PLD 2004 Lah. 829 and Muhammad Tariq v. The State 2009 SCMR 1220 ref.

Muhammad Aamir and others v. The State 2012 PCr.LJ 1035 rel.

Abdul Latif Chaudhry for Appellants (in Criminal Appeal No.561 of 2010).

Major (Retd.) Aftab Ahmad Khan for Appellants (in Criminal Appeal No.724 of 2010).

Rana Abdul Majeed, Additional Prosecutor-General for the State.

Date of hearing: 8th December, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2405 #

2016 Y L R 2405

[Lahore]

Before Shujaat Ali Khan, J

ABDUL GHAFOOR and another---Petitioners

Versus

MEMBER (COLONIES) BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Writ Petition No. 21277 of 2009, heard on 7th March, 2016.

(a) Punjab Land Revenue Act (XVII of 1967)---

----S. 163---Transfer of Property Act (IV of 1882), S. 43---Sale of mortgaged property---Review of mutation by the revenue officer---Scope---Land pledged in favour of Bank was sold through mutation but said mutation was reviewed by the Revenue Officer--- Contention of petitioners was that property in question was transferred in their favour against valid consideration---Validity---Lien of Bank against pledged land would remain intact till the payment of outstanding amount but said lien could not be used to deprive a person to alienate his property during continuation of mortgage---Loanee was bound to repay the loan availed by him but said fact did not deprive him of his right to transfer his property according to his own wishes---Constitution ensured protection of a right of private owner to utilize his property according to his own wishes---Original owner was competent to transfer land in question in favour of petitioners even during the currency of mortgage---District Officer (Revenue) had no jurisdiction to adjudge the validity of mutation attested in favour of petitioners in exercise of powers under S. 163 of Punjab Land Revenue Act, 1967---High Court could take note of subsequent proceedings to arrive at a just conclusion---All possible care and caution was taken by the petitioners and no adverse inference could be drawn against them---Impugned orders passed by the revenue hierarchy were set aside subject to clearance of outstanding dues of the Bank within three months after rendition of account---Mutation attested in favour of petitioners would stand restored---Constitutional petition would be deemed to have been dismissed in case of failure of petitioners to deposit the outstanding due within specified time.

Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 and Nur Muhammad and another v. Imam Sain and 2 others 1985 CLC 2256 ref.

Chief Land Commissioner and another v. Maula Dad and others 1978 SCMR 264; Nazar Muhammad v. Deputy Commissioner, Bhakkar and others 1999 CLC 990 and Muhammad Shehzad Malik v. Muhammad Suhail and another 2010 SCMR 1825 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court--- Scope--- Constitutional jurisdiction of High Court could not be abridged when impugned orders were not tenable otherwise.

----Mere non-quoting or wrong quoting of a provision of law in the pleadings would not vitiate proceedings.

Mian Muhammad Hanif for Petitioners.

Ranal Shamshad Khan, Additional Advocate-General for Respondents Nos.1 to 3.

Ms. Aliya Ijaz for Respondent No.4.

Zahid Hussain Khan for Respondent No.5.

Date of hearing: 7th March, 2016.

YLR 2016 LAHORE HIGH COURT LAHORE 2418 #

2016 Y L R 2418

[Lahore (Multan Bench)]

Before Shahid Mubeen, J

KHAWAR JAHANGIR---Petitioner

Versus

AURANGZEB and 5 others---Respondents

C. R. No. 928 of 2015, decided on 17th August, 2015.

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

----O. XXXIX, Rr. 1, 2 & O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Application for grant of temporary injunction---Rejection of plaint while deciding application for interim injunction---Scope---Trial Court rejected the plaint while deciding application for grant of temporary injunction but Appellate Court remanded the case---Validity---While rejecting plaint only contents of the same should be considered---Plaint, in the present case, disclosed cause of action---Trial Court had passed impugned order in violation of its earlier order whereby same application under O. VII, R. 11, C.P.C. was dismissed---No fresh application for rejection of plaint had been moved---Order passed on the earlier application for rejection of plaint had attained finality---Trial Court only intended to dispose of application for grant of temporary injunction and arguments to that extent had been heard---Plaint could not be rejected while hearing arguments on application under O. XXXIX, Rr. 1 & 2, C.P.C.---Rejection of plaint, in the circumstances was not justified---No illegality or material irregularity had been pointed out in the impugned order passed by the Appellate Court---Revision was dismissed in limine.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826; Mushtaq Hussain v. Province of Punjab through Collector Jhelum District and 6 others 2003 MLD 109; Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335; Mst. Amina v. Muhammad Easa and 11 others 2008 YLR 1405 and Iftikharul Haq v. District Canal Officer and others 2005 CLC 1740 rel.

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

----O. VII, R. 11---Plaint, rejection of---While rejecting plaint only contents of the same had to be looked into.

Ch. Ihsan Ullah for Petitioner.

YLR 2016 LAHORE HIGH COURT LAHORE 2428 #

2016 Y L R 2428

[Lahore]

Before Ch. Muhammad Iqbal, J

SARDAR ALI---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector District Toba Tek Singh and 9 others---Respondents

Civil Revision No. 872 of 2015, decided on 18th May, 2016.

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

----S. 12---Suit for specific performance---Oral agreement to sell---Requirements---Evidence beyond pleadings---Effect---Plaintiff had not mentioned the exact date of execution of oral agreement to sell in the plaint---Names of witnesses in whose presence agreement was executed and consideration was paid had not been mentioned---Plaintiff had failed to lay down the foundation of his case in the plaint and he was not authorized to produce any evidence which was not mentioned in the plaint---Evidence produced by the plaintiff was out of pleadings and same could not be considered or discussed while deciding the lis---Proprietary rights had not been given to the defendants till today and Provincial Government was owner of suit property---Plaintiff had failed to prove his case through cogent evidence---Both the courts below had rightly passed the judgments and decrees and dismissed the suit of plaintiff---No illegality or irregularity had been pointed in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Muhammad Nawaz v. Haji Muhammad Baran Khan and others 2013 SCMR 1300; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Messrs Essa Engineering Company (Pvt.) Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922; Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582 and Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts could not be interfered with by the High Court in its revisional jurisdiction in absence of any illegality or any other error of jurisdiction.

Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488 and Zulfiqar Ali v. Judge, Family Court and 7 others 2007 MLD 1710 rel.

----Evidence beyond pleadings could not be considered or discussed and same should be ignored while deciding the lis.

Mian Tariq Hussain for Petitioner.

Ms. Asma Hamid, Additional Advocate-General for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 2435 #

2016 Y L R 2435

[Lahore]

Before Atir Mahmood, J

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and 2 others---Petitioners

Versus

MUHAMMAD UMAIR---Respondent

Civil Revision No. 3691 of 2011, heard on 19th January, 2016.

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

----S. 42---Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Ss. 29 & 31---Suit for declaration---Date of birth, correction of---Malice---Scope---Contention of plaintiff was that his correct date of birth was 14-11-1993 and not 07-11-1991---Suit was decreed concurrently---Validity---Malice on the part of defendants (Board of Secondary Education) had been asserted in the plaint---Plaintiff was not under any obligation to specify any person of the Education Board with an allegation of any enmity rather it was ridiculous to presume that there would be any enmity or personal grudge of the officials of Education Board against a student---Non-performance of duties in accordance with rules, regulations and principle of natural justice would amount to mala fide on the part of Board officials---Where rights of any one were infringed then civil court had ample jurisdiction to adjudicate upon the matter--Plaintiff had proved his case through cogent evidence---Actual date of birth of plaintiff was 14-11-1993---Revision was dismissed in circumstances.

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

----S. 9---Plenary jurisdiction of civil court---Scope---Civil courts were courts of plenary jurisdiction.

----'Mala fide'---Meaning.

Black's Law Dictionary Ninth Edn. rel.

(d) Words and phrases---

----'Bad faith'---Meaning.

Black's Law Dictionary Ninth Edn. rel.

Mahboob Azhar Sheikh for Petitioners.

Javed Sabir Malik and Ms. Lubna Butt for Respondent.

Date of hearing: 19th January, 2016.

YLR 2016 LAHORE HIGH COURT LAHORE 2444 #

2016 Y L R 2444

[Lahore]

Before Shahid Waheed, J

SHAH TARIQ and others---Petitioners

Versus

TARIQ USMAN and others---Respondents

W. P. No. 13135 of 2014, heard on 7th April, 2016.

Civil Procedure Code (V of 1908)---

----O. XIV, R. 5 & S. 11---Framing of additional issues--- Interim order--- Res judicata, principle of---Applicability---Application for framing of additional issues was moved which was accepted partially and an additional issue was framed---Another application was filed for framing of additional issues which was dismissed concurrently---Validity---Interim order could be altered or varied by subsequent applications for the same relief but only on proof of new facts or new situations which subsequently emerged---Principle of res judicata did not apply to the findings on which such orders were based---If applications were made for relief on the same basis after one had been disposed of then court would be justified in rejecting the same as an abuse of process of law--- Applicants knowing the controversy and issues had led their complete evidence---Second application by pleading the same facts and grounds which were urged in the first was moved---Issues proposed in the second application were also proposed in the first application---Question of facts and law raised in the first application were directly and subsequently involved in the second application---No new ground or fact was urged in the second application---Principle of res judicata was applicable to the second application for framing of additional issues---Second application was neither competent nor could be allowed---Constitutional petition was dismissed in circumstances.

Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and others AIR 1924 Privy Council 202; Satyadhan Ghosal v. Sm. Deorajin Debi AIR 1960 SC 941; Arjun Singh v. Mohindra Kumar and others AIR 1964 SC 993; Khialdas and another v. Mahraj Gopi Krishin and others PLD 1969 Kar. 646; Mst. Shahzad Bibi and another v. Gulzar Khan PLD 1973 Lah. 878; Muhammad Ajmal Khan v. Lt. Col. Muhammad Shafaat and 4 others PLD 1976 Lah. 396 and ICIC v. Mian Rafiq Saigol and others PLD 1996 Lah. 528 rel.

Maqbool Hussain Sheikh for Petitioners.

Atif Mohtasham Khan for Respondents Nos. 1 to 5.

Awais Tauseef and Kh. Tahir Ahmad for Respondents Nos.6(i) to 6(iii).

Date of hearing: 7th April, 2016.

YLR 2016 LAHORE HIGH COURT LAHORE 2455 #

2016 Y L R 2455

[Lahore]

Before Muhammad Yawar Ali and Aalia Neelum, JJ

NASIR KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 831 of 2008, heard on 11th March, 2015.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Fact that as to how the raiding party came to know about accused could not be established---Source of identification of accused, was totally missing---Prosecution could succeed only if it was able to prove that all three samples drawn from three packets of heroin said to have been possessed by accused, on analysis, were found to contain heroin---Three parcels were received in the office of Chemical Examiner, but at the back of the report of Chemical Examiner, only one sample was mentioned---Police constable, who had deposited the sealed parcels to the office of the Chemical Examiner, had deposed that "perhaps the parcels of another case were also handed over to me at the same time by the Moharrar; that I do not remember, if the said parcels were also of heroin or not"---Said deposition of Police constable, had created doubt about the sample analyzed---Unless the prosecution was able to show that the sample which was analyzed by the Chemical Examiner, was the very same sample which was drawn from the contraband heroin, could not be relied upon---Prosecution had failed to prove that the sample fetched from the contraband was the same sent to the Chemical Examiner for analysis---Report of Chemical Examiner could not be relied upon as material evidence against accused---Judgment passed by Special Court, was set aside---Accused who was on bail, his bail bonds were discharged, in circumstances.

Waqar Hassan Mir for Appellant.

Tariq Saleem Sheikh, Special Prosecutor for ANF.

Date of hearing: 11th March, 2015.

YLR 2016 LAHORE HIGH COURT LAHORE 2462 #

2016 Y L R 2462

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood and Shahid Mubeen, JJ

LAND ACQUISITION COLLECTOR (M-I) NATIONAL HIGHWAY AUTHORITY ISLAMABAD and 4 others---Appellants

Versus

ZAHIR SHAH and 5 others---Respondents

R.F.A. No. 141 of 2011, heard on 4th May, 2016.

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

----Ss. 18 & 31(2)---Reference to court---Maintainability---Receiving compensation without objection--- Effect--- If compensation was received without any protest on the part of the person interested then reference would not be maintainable---Land owners had received compensation without protest---Bar to file reference was applicable in the case---Impugned judgment and decree passed by the Referee Judge were set aside---Appeal was allowed in circumstances.

Wali Ahmad v. Collector Land Acquisition and others 1985 SCMR 224 distinguished.

Government of N.-W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408 rel.

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

----Art. 132--- Evidence--- Statement of witness which was not cross-examined by the other side would be accepted to be true.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

Akram Shaheen and Mesum Mehdi for Appellants.

Sh. Kamran Shahzad for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 2476 #

2016 Y L R 2476

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

AHMAD SHER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. No.362-J of 2012 and Capital Sentence Reference No.63-T of 2010, decided on 9th April, 2015.

Penal Code (XLV of 1860)-

---Ss. 302 (b) & 376---Anti-Terrorism Act (XXVIL of 1997), S. 7 (a)---Qatl-i-amd and rape--Appreciation of Evidence---Multiple murders-Sentence, reduction in-- Complainant filed private complaint against twenty accused persons of the occurrence in which five persons were murdered--Trial Court convicted the accused and sentenced him to death while acquitted the remaining nineteen co-accused persons--- Validity---Empties were taken into possession on 09-01-2007 whereas gun was taken into possession 16-01-2007 and both gun as well as empties were sent to Forensic Science Laboratory on 20-01-2007---Such dispatch to Forensic Science Laboratory reduced the evidentiary value of report of Forensic Science Laboratory and had become inconsequential---Trial Court had already given premium to a number of persons after thrashing the whole evidence and only the sentence of death of accused remained in field---Investigating Officer while appearing in witness box admitted that innocent persons were arrayed as accused--- Whole occurrence was the outcome of miscarriage of "Watta-Satta" marriages which was very common in the society although both the parties were closely related to each other---Accused acted under the impulse of love with a woman, if it was considered with such materials within the ambit of diminished liability and if such aspect was borrowed from the homicide---Provisions of Ss.302(b) & 376 P.P.C. and S. 7(a) of Anti-Terrorism Act, 1997 empowered the Court to pass a sentence upon an accused subject to proof of the case upto imprisonment for life---High Court maintained the conviction of the accused but the quantum of sentences inflicted upon the accused under all charges were reduced from death sentence to imprisonment for life---Appeal was dismissed accordingly.

Juma Khan v. The State PLD 2003 Lah. 60 rd.

Humaira Kaisar and Sheeba Kaisar for Appellants.

Ch. Nasir Ahmad Jaura for the Complainant.

Munir Ahmad Sail, Deputy Prosecutor General for the State.

YLR 2016 LAHORE HIGH COURT LAHORE 2528 #

2016 Y L R 2528

[Lahore]

Before Atir Mahmood and Shams Mehmood Mirza, JJ

BANK AL-FALAH LTD.---Appellant

Versus

Mrs. SHAHZADI ZARFASHAN SOHAIL---Respondent

R.F.A. No.669 of 2010, heard on 15th March, 2016.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of contract---Discretionary relief---Scope---Neither plaintiff made any effort to pay the remaining sale price to the vendor nor sent any notice to perform her part of agreement before expiry of target date---Nothing was on record to suggest that plaintiff was ready to perform its part of agreement and defendant avoided the same---Plaintiff having failed to make payment of balance sale price within the stipulated time, was not entitled to the decree of specific performance which was discretionary relief---Court even if case was proved could refuse to exercise its discretion---No illegality had been pointed out in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed in circumstances.

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334; Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900 and Zahid Rahman v. Muhammad Ali Asghar Rana 2007 CLC 1814 ref.

Abid Hussain Chatha for Appellant.

Agha Abul Hassan Arif for Respondent.

YLR 2016 LAHORE HIGH COURT LAHORE 2547 #

2016 Y L R 2547

[Lahore]

Before Mehmood Maqbool Bajwa and Mirza Viqas Rauf, JJ

MUHAMMAD IQBAL AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.317 of 2011 and Writ Petition No.6517 of 2015, heard on 27th April, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a)(iv) & 32---Criminal Procedure Code (V of 1898), S.342---Assets beyond known sources of income---Appreciation of evidence---Condemned unheard---Statement of accused---Failure to put incriminating evidence to accused---Accused was holder of public office and he was convicted and sentenced by Trial Court for ten years imprisonment and fine, for holding assets beyond his known sources of income---Plea raised by accused was that material pieces of evidence were not put to accused for seeking his reply under S. 342, Cr.P.C.---Effect---When accused was not confronted with allegations levelled against him and he was not put in a position to refute the same properly, he could not be saddled with criminal liability on the basis of such incriminating material---Such lapse on the part of prosecution was fatal and it had gone to the roots of the prosecution---Recording of statement under S. 342 Cr.P.C. was not a mere formality rather its primary object was to afford the accused opportunity of explaining the circumstances which were tending to incriminate and likely to influence the mind of Judge in arriving at a conclusion adverse to him---High Court set aside the conviction awarded to accused as there were material discrepancies and deficiencies in prosecution evidence---Even a single circumstance creating doubt regarding guilt of accused was sufficient to extend him the benefit of the same in shape of acquittal---High Court considered prosecution evidence insufficient and shaky and set aside the judgment resulting into acquittal of accused---Appeal was allowed in circumstances.

Khalid Aziz v. The State Criminal Appeal No.361 of 2001; The State v. Khalid Aziz Criminal Appeal No.362 of 2001, 2011 SCMR 136; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144; Syed Ali Nawaz Shah and 2 others v. The State and others PLD 2003 SC 837 and Hakim Ali Zardari v. The State 2007 MLD 910 ref.

Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and Muhammad Shah v. The State (Criminal Appeal No.48/Q of 2009) 2010 SCMR 1009 rel.

Muhammad Amjad Pervaiz for Appellant.

Naeem Raza Hashmi for Petitioner (in W.P. No.6517 of 2015).

Arif Mehmood Rana, Special Prosecutor for NAB for Respondent.

YLR 2016 LAHORE HIGH COURT LAHORE 2575 #

2016 Y L R 2575

[Lahore]

Before Shahid Bilal Hassan, J

ABDUL RASHEED KHAN through L.Rs. and others---Petitioners

Versus

SAFDAR ALI through L.Rs. and others---Respondents

Civil Revision No.1758 of 2006, decided on 11th March, 2016.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Punjab Land Revenue Act (XVII of 1967), S. 42---Suit for declaration---Limitation---Sale mutation---Proof---Procedure---Contention of plaintiff was that he was owner of suit property and alleged sale mutation was result of fraud---Suit was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Beneficiary of a document had to prove its valid execution after denial of the same by its executant---Defendants were bound to prove the valid execution of oral sale and mutation in question thereof---Written statement and evidence were silent with regard to entrance of actual transaction i.e. oral sale as no date, time and place of the same had been mentioned---Nothing was on record as to when and where the possession of suit property was delivered to the defendants---Mandatory provisions of S. 42 of Punjab Land Revenue Act, 1967 were not followed in stricto sensu which had vitiated whole proceedings with regard to attestation of impugned mutation---Impugned mutation was result of fraud, forgery, impersonation and without consideration and was void---Limitation did not run against a void order---Present suit was within time---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Meraj Din v. Mst. Sardar Bibi and 5 others 2010 MLD 843; Muhammad Yaqoob through legal heirs v. Feroze Khan and others 2003 SCMR 41; Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Murid Sakina 2004 SCMR 1043; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Bakht Baidar and another v. Naik Muhammad and another 2004 MLD 341; Mst. Hassan Bano v. Wali-ur-Rehman and 2 others 2007 SCMR 1344; Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137; Muhammad Luqman v. Bashir Ahmad PLD 1994 Kar. 492; Sh. Fateh Muhammad v. Muhammad Adil and others PLD 2007 SC 460; Major (Retd) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190 and Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 ref.

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 rel.

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

----Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation---Suit for declaration could be filed within six years from the date of knowledge.

----S. 115---Revision---Scope---When subordinate forum had committed jurisdictional error or misread evidence or ignored material aspects affecting root of case then judgment/order could be interfered while exercising revisional powers.

Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.W.F.P. Peshawar and others 2015 SCMR 799 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

(d) Limitation---

----Void order---Principle---Limitation did not run against a void order.

A.D. Nasim and Malik Amjad Pervaiz for Petitioners.

Ahmad Waheed Khan and Abdul Qayyum Bhatti for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 2589 #

2016 Y L R 2589

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

KHALID and others---Petitioners

Versus

The STATE---Respondent

Criminal Appeals Nos.312-J and 1520 of 2002, heard on 30th September, 2015.

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

----Ss. 365-A, 386, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping, extortion and rioting armed with deadly weapons---Appreciation of evidence---Benefit of doubt---Whole prosecution case hinged upon conjectures and surmises and it failed to lead incriminating, corroborative/independent evidence to bring home guilt of accused in case of capital charge---Trial Court was not justified in convicting accused while basing upon untrustworthy and un-corroborative evidence therefore, conviction passed by Trial Court was against all canons of law recognized for dispensation of criminal justice---Benefit of every doubt was to be extended in favour of accused---High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed in circumstances.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

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

----Ss. 365-A, 386, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Criminal Procedure Code (V of 1898), S. 417-A---Kidnapping, extortion and rioting armed with deadly weapons---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused persons were acquitted of the charge by Trial Court---Abductee and complainant did not state anything regarding role played by accused persons in the entire occurrence---Such statement of prosecution witnesses made case of prosecution doubtful---Acquittal of accused persons recorded by Trial Court was justified on proper evaluation of evidence and attending circumstances---High Court declined to interfere in the judgment passed by Trial Court---Appeal was dismissed in circumstances.

Rai Zamir ul Hassan for Appellants.

Humayoun Aslam, Deputy Prosecutor General for the State.

Ch. Sarfraz Ali Dyal for the Complainant.

YLR 2016 LAHORE HIGH COURT LAHORE 2601 #

2016 Y L R 2601

[Lahore]

Before Sardar Muhammad Shamim Khan, J

ASGHAR ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.695 of 2012, decided on 29th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 376, 365-B, 324, 334 & 336---Rape, kidnapping, abducting or inducing woman to compel for marriage etc.---Attempt to commit qatl-i-amd, Itlaf-i-Udw, Itlaf-i-Salahiyyat-i-Udw--- Appreciation of evidence---Defence Counsel was unable to shatter the evidence of victim in any manner, in her cross-examination---Ocular account furnished by the victim found corroboration from her medical examination---Medical evidence confirmed that victim was subjected to zina-bil-jabr---Statement of victim, corroborated by medical evidence, was sufficient to record conviction against accused---Report of Chemical Examiner was positive---Medical examination of the victim showed that offence under S.336, P.P.C., was made out against accused, his conviction under S.334, P.P.C., was converted into offence under S.336, P.P.C., and he was sentenced to ten years' R.I. as tazir along with Arsh Rs.5,06,340---Disfigurement was sufficient to attract the provisions of S.336, P.P.C.---Accused being husband of sister of the complainant, it could not be believed that the complainant and his daughter (victim) would falsely involve accused in the case without any serious enmity between the parties---Deposition of defence witness, that victim stated before Police that persons, other than accused had committed zina-bil-jabr with her and threw acid on her face, was not believable as no such statement of victim was available on record---Said defence witness being not an eye-witness of occurrence, his evidence, was hearsay, which was inadmissible in evidence---Prosecution had proved its case against accused beyond reasonable doubt---Trial Court having convicted accused after proper appraisal of evidence available on record, impugned judgment passed by the Trial Court, was upheld, and appeal having no force, stood dismissed, in circumstances.

Khadim Hussain v. The State 2011 PCr.LJ 1443 and Zafar Iqbal v. The State and another 2010 SCMR 401 rel.

Shahid Shoukat for Appellant.

Ali Hassan DPP for the State.

Muhammad Nauman Khan for the Complainant.

YLR 2016 LAHORE HIGH COURT LAHORE 2611 #

2016 Y L R 2611

[Lahore (Multan Bench)]

Before Aslam Javed Minhas, J

PERVAIZ MASEEH---Appellant

Versus

The STATE and others---Respondents

Crl. Appeal No.1119 of 2010, decided on 30th September, 2015.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Complainant was not the eye-witness of the occurrence, and he came to know the occurrence through telephone that his sister had been murdered---Two prosecution witnesses who were never produced by the prosecution during the trial, were given up as being won-over---Two other persons introduced as witnesses, were closely related inter se and were also close relatives of the deceased---Said introduced witnesses, who were permanent residents of a chak which was 30 Kilometers away from the place of occurrence, were chance witnesses, and they could not disclose any reason for their presence in the area where alleged occurrence had taken place---No person of the locality appeared before the Police, as well as the court of law to strengthen the story of the prosecution---Iron-blow pipe/alleged weapon of offence, was not stained with blood---Incident was an unseen occurrence---Contradictions existed with regard to time of death of the deceased and postmortem report---Motive was not established through any cogent and reasonable evidence---Delay of more than seven hours in registration of FIR, being unexplained, it could be inferred that case was registered with deliberation and consultation---Contradictions between the Investigating officer and postmortem examination report with regard to number of injuries on the person of the deceased were noticed---Occurrence took place at 3.00 am. at odd hours of the night; source of light was not taken into possession---Trial Court, in circumstances, was not justified to hold that the prosecution had succeeded in establishing the guilt of accused beyond reasonable doubt---Impugned judgment passed by the Trial Court was set aside, accused was acquitted of the charge, and he being on bail, his bail bonds were discharged, in circumstances.

Mst. Shazia Parveen v. The State 2014 SCMR 1197 and Mst. Shamshad v. The State 1998 SCMR 854 ref.

(b) Criminal trial---

----Benefit of doubt---If a single circumstance would create reasonable doubt in a prudent mind, about the guilt of an accused, then accused would be entitled to such benefit, not as a matter of grace or concession but as of right.

Tahir Mehmood for Appellant.

Complainant in person.

Ch. Muhammad Akbar, DPG for the State.

YLR 2016 LAHORE HIGH COURT LAHORE 2627 #

2016 Y L R 2627

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

Mst. RAMZANO---Petitioner

Versus

KHUSHI MUHAMMAD and others---Respondents

Civil Revision No.109-D of 2000, heard on 22nd April, 2015.

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

---Ss. 42 & 43---Civil Procedure Code (V of 1908), S. 12 (2)---Suit for declaration---Limitation---Inheritance---Previous decree/ proceedings wherein plaintiff was not party---Effect---Plaintiff filed suit in which she challenged previous decree passed by the civil court---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court on the ground that suit was not competent when there existed a decree---Validity---Plaintiff was not party to the previous proceedings or the decree which was a consent one---Plaintiff was not bound to challenge the previous decree through an application under S. 12(2), C.P.C.---No bar existed against the plaintiff for filing the suit even if said decree was challenged and application under S. 12(2), C.P.C. was dismissed---When before challenging a judgment and decree plaintiff was required to establish his right and locus standi to challenge the said decree then a party could file a suit for declaration of his title or interest in the subject matter of the decree which was previously passed and in that suit the decree could be challenged---Purpose of S.12(2), C.P.C. was to curtail litigation and not to enhance the same---After establishing right or interest and locus standi in a suit the previous decree could be challenged in that suit---Decree previously passed in the proceedings was not a hurdle in the way of plaintiff to file present suit---Plaintiff was not party in the previous proceeding and same was not binding upon her---Limitation was not hurdle in the way of plaintiff as her right had been admitted by the defendants---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was accepted in circumstances.

Ahmad Khan v. Mst. Irshad Begum and 8 others 2007 MLD 331 and Mst. Suban v. Allah Ditta and others 2007 SCMR. 635 rel.

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

----S.12(2)---Object of S.12(2), C.P.C. was to curtail litigation.

Ch. Mushtaq Ahmad Sindhu for Petitioners.

Ch. Abdul Ghani for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 2632 #

2016 Y L R 2632

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

HAMEED ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 62 of 2011 and Capital Sentence Reference No.1-T of 2011, heard on 1st February, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 435, 436, 120-B & 34---Explosive Substances Act (VI of 1908), Ss.4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd; attempt to commit qatl-i-amd; mischief by fire or explosive substance with intent to cause damage; mischief by fire or explosive substance with intent to destroy house; criminal conspiracy; attempt to cause explosion or for making or keeping explosive with intent to endanger life or property; making or possessing explosives under suspicious circumstances---Act of terrorism---Appreciation of evidence---FIR, having been lodged promptly, excluded the chances of any fabrication or consultation---Spot arrest of the accused along with explosive jacket, hand grenades and personal belongings had furnished solid proof of his guilt---Accused, who admittedly was resident of Waziristan, could not furnish any explanation as to his presence at the spot along with suicide jacket and grenade and why all the eye-witnesses had unilaterally nominated him in the case---Prosecution witnesses were natural witnesses and had specifically explained the reasons for being present at the spot---Prosecution witness from Bomb Disposal Squad, having examined and prepared report regarding the suicide jacket and the hand grenade, deposed that the grenade was alive and detonator was in working condition, which fully lent support to the prosecution case---Accused had led the police to the recovery of huge quantity of explosive material, detonators, explosive jackets, rocket launchers, grenades, etc., for which a separate case had been registered against him---Statements of the prosecution witnesses had corroborated with each other on all material particulars of the case, and the same were consistent, straightforward and confidence inspiring, which were sufficient enough to prove the case against the accused---Accused had not produced any evidence in his defence to substantiate his version---No mala fide against the prosecution witnesses could be brought on record---Accused had also failed to make statement under S. 340, Cr.P.C---Appeal against conviction/sentence was dismissed accordingly.

Mukhtar Ahmad Gondal for Appellant.

Mirza Muhammad Usman, DPG and Shehbaz Ahmed, ASI, P.S. Wah Cantt. for the State.

Nemo for the Complainant.

YLR 2016 LAHORE HIGH COURT LAHORE 2640 #

2016 Y L R 2640

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad, J

HAMMAD HAIDER---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.156 of 2006, heard on 20th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account furnished by eye-witnesses, was straightforward and confidence inspiring---Parties admitted the time and place of occurrence---Accused did not sustain any injury during the occurrence---Fatal injury to the deceased was attributed to accused---Plea of self-defence raised by accused, was not available to him in the peculiar circumstances of the case---Version put forth by accused that deceased and his companions were the assailants, was not correct as they went only to make complaint, but accused overpowered the deceased and stabbed him to death---Trial Court had correctly appreciated evidence, and findings recorded, were in line with the facts established on record---Conviction and sentence awarded to accused, did not call for interference in appeal---Conviction and sentence recorded by the Trial Court were upheld, in circumstances.

Sh. Muhammad Farooq, Muhammad Bilal Butt and Malik Muhammad Saleem for Appellant.

Muhammad Aslam Dhukkar for the Complainant.

Ch. Ahmad Raza, Additional Prosecutor General for the State.

YLR 2016 LAHORE HIGH COURT LAHORE 2651 #

2016 Y L R 2651

[Lahore (Rawalpindi Bench)]

Before Ibad-ur-Rehman Lodhi and Raja Shahid Mehmood Abbasi, JJ

IFTIKHAR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.824 of 2010 and Murder Reference No.93 of 2010, heard on 25th November, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Promptness in lodging FIR, had excluded impression of deliberation and consultation---Case of single accused, where real daughter, appeared as eye-witness against her father/accused---Parties to the case being known to each other, being relatives, mis-identification of accused, was out of question---Contradiction between the statement of the complainant and prosecution witnesses, regarding time of the arrival of the witnesses, at the spot, made their presence, and intrinsic value of their evidence, highly doubtful---Presence of the prosecution witness, who was real daughter of the deceased as well as accused, in the house of occurrence at the relevant time, was natural---Defence plea, that at relevant time, accused had gone to offer Fajar prayer and was present in the Mosque, when unknown person entered in the house of the deceased for purpose of dacoity; and on resistance murdered the deceased was not taken by accused while making statement under S.342, Cr.P.C.---Accused could not produce any one from the resident of the locality in support of his defence plea, which also was not corroborated by medical evidence---Real daughter of accused, was not expected to exonerate real culprit; and through substitution would involve accused, her real father---Evidence of said witness was coherent and confidence inspiring which was fully corroborated by medical evidence---Recovery of "Churri" on the pointation of accused, being not believable, was brushed aside---Motive in the case was shrouded in mystery---Prosecution by producing confidence inspiring, trustworthy and sure footed evidence, was able to discharge onus of commission of qatl-i-amd of deceased, beyond any shadow of doubt---Recovery of "Churri" was not corroborating piece of evidence in the case---As to what was the real cause of occurrence; and what happened immediately before occurrence; which resulted into the assassination of an innocent lady was not determinable--- Death sentence awarded to accused by the Trial Court was quite harsh---Accused was entitled to the benefit of doubt as an extenuating circumstance---Conviction of accused under S.302(b), P.P.C., was maintained, but his sentence was altered from death to imprisonment for life, in circumstances.

Muhamamd Mansha v. The State 2001 SCMR 199; Ali Sher and others v. The State 2008 SCMR 707 and Nawaz Khan v. Shabbir and the State 1999 SCMR 1007 ref.

Allah Ditta v. The State PLD 2002 SC 52 and Rehmat Ullah v. The State 2015 PCr.LJ 1163 rel.

Shaukat Ali Sajid for Appellant.

Mirza Usman, DPG for the State.

Muhammad Junaid Akhtar Khokhar for the Complainant.

YLR 2016 LAHORE HIGH COURT LAHORE 2662 #

2016 Y L R 2662

[Lahore (Rawalpindi Bench)]

Before Syed Shahbaz Ali Rizvi and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD FAROOQ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 342 and 509 and Murder Reference No.43 of 2010, heard on 20th October, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Matter was reported to the Police in natural course of events---Both, the complainant and prosecution witness who being residents of the same locality, were natural witnesses, had given plausible reason for being present at the scene of occurrence; they had consistently assigned to accused role of causing firearm injuries on the person of the deceased and despite lengthy cross-examination, no material and noticeable discrepancy could be found in their statements---Said witnesses remained consistent with each other---Both parties being previously acquainted with each other, no question of mis-identification existed---Mere relationship of witnesses with the deceased; or inimical background of the parties, was not sufficient to discredit their evidence, because evidence of said witnesses, was cogent, trustworthy, confidence inspiring, and of unimpeachable character---Non-production of minor injured girl aged about six years was not fatal for prosecution to the extent of accused---Case of accused was on different footings from that of his acquitted co-accused, as role of causing firearm injuries to the deceased, was consistently assigned to accused, which was duly corroborated by medical evidence, while no injury was attributed to acquitted co-accused---Prosecution case against accused found corroboration from medical evidence---Motive also stood proved---Pistol of .30 bore allegedly recovered at the instance of accused and six empties recovered from the place of occurrence, having been sent to Forensic Science Laboratory after about one month of the occurrence, positive report, had lost its evidentiary value---Prosecution having proved its case against accused through confidence inspiring ocular evidence, he was rightly convicted by the Trial Court---Recovery of crime weapon at the instance of accused, was doubtful and all three co-accused, had been acquitted---Alternative sentence of imprisonment for life to accused, would meet the ends of justice---Maintaining conviction of accused, his death sentence was altered to life imprisonment.

Raja Ghaneem Aabir Khan for Appellant.

Qaiser Mushtaq, Assistant District Public Prosecutor and Mukhtar, ASI for the State.

Basharat Ullah Khan for the Complainant.

YLR 2016 LAHORE HIGH COURT LAHORE 2683 #

2016 Y L R 2683

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

SECRETARY HOUSING PHYSICAL AND ENVIRONMENTAL PLANNING---Respondent

Writ Petition No.13623 of 2010, decided on 26th January, 2016.

(a) Allotment---

----Allotment of plot in a government Scheme on the basis of allottee being homeless---Plot was allotted to the petitioner on 07-12-1991 but he could not occupy the same due to litigation---Contention of petitioner was that he should not be penalized by charging the current market price from him---Validity---Pending lis had to be decided in accordance with the applicable law in vogue at the time of the initiation of the same lis---Authorities could not be allowed to reap the benefit of their own inaction---Authorities had admitted the right of petitioner and that he was not at default in compliance of the allotment order or any demand made thereunder---High Court burdened the private respondents with cost of Rs. 25,000/- which should be deposited in the "Bait-ul-Maal" within 120 days otherwise same would be recovered as arrears of land revenue---Authorities were directed to allot the suit plot to the petitioner in implementation of allotment order and to charge from him the market price which was prevalent at the time of passing of allotment order---Constitutional petition was allowed in circumstances.

M.C.B. Bank Ltd. Karachi v. Abdul Waheed Abro and others 2016 SCMR 108; Manzoor Ali and 39 others v. United Bank Ltd. through President 2005 SCMR 1785; Mubarak Hussain and others v. Government of Pakistan through Secretary, Rehabilitation and Works Division, Islamabad and others 1997 SCMR 190; Dad Muhammad and another v. Additional District Judge-I, Quetta and others 1996 SCMR 1688; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Abdul Rehman Chaudhry v. Deputy District Officer (Revenue), Lahore Cantt. and 2 others 2005 YLR 264 and Sharafat Ali v. Government of Punjab through Chief Secretary and 3 others 2005 YLR 1844 rel.

(b) General Clauses Act (X of 1897)---

----S. 6--Pending lis had to be decided in accordance with the applicable law.

M.C.B. Bank Ltd. Karachi v. Abdul Waheed Abro and others 2016 SCMR 108; Manzoor Ali and 39 others v. United Bank Ltd. through President 2005 SCMR 11785; Mubarak Hussain and others v. Government of Pakistan through Secretary, Rehabilitation and Works Division, Islamabad and others 1997 SCMR 190; Dad Muhammad and another v. Additional District Judge-I, Quetta and others 1996 SCMR 1688 and Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 ref.

----S. 11---Res judicata---Applicability---Scope---Decision of the court and not its reasoning was conclusive to attract S. 11, C.P.C.

Pir Bakhsh v. The Chairman Allotment Committee PLD 1987 SC 145 rel.

(d) Interpretation of statutes---

----Subordinate legislation could not be allowed to operate retrospectively.

M.C.B. Bank Ltd. Karachi v. Abdul Waheed Abro and others 2016 SCMR 108; Manzoor Ali and 39 others v. United Bank Ltd. through President 2005 SCMR 1785; Mubarak Hussain and others v. Government of Pakistan through Secretary, Rehabilitation and Works Division, Islamabad and others 1997 SCMR 190; Dad Muhammad and another v. Additional District Judge-I, Quetta and others 1996 SCMR 1688 and Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 rel.

Tafazzal H. Rizvi for Petitioner.

Ms. Asma Hamid, Additional Advocate General, Punjab and Muhammad Younas Mughal, Director PHATA, Sub-Region, Sahiwal for Respondents Nos. 1 to 3.

Respondent No.4 in person.

YLR 2016 LAHORE HIGH COURT LAHORE 2694 #

2016 Y L R 2694

[Lahore (Multan Bench)]

Before Ali Akbar Qureshi, J

ABDUL RAZZAQ---Petitioner

Versus

ADDL: DISTRICT JUDGE and others---Respondents

W.P. No.16148 of 2015, heard on 5th November, 2015.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. XXXII, R. 3---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Defendants being minors---Non-appointment of guardian-ad-litem of the minors---Fraud and misrepresentation---Decree, setting aside of---Scope---Plaintiff had not disclosed the age of minors and fraud had been committed by him---No guardian-ad-litem was appointed by the Trial Court nor any such prayer was made by the plaintiff---Brother and sister of minors had not sincerely and effectively safeguarded the interests of minors---Both the courts below had rightly accepted the application for setting aside impugned judgment and decree obtained by the plaintiff---No illegality had been pointed out in the impugned orders passed by the courts below---Constitutional petition was dismissed in circumstances.

Tanveer Mehboob and another v. Haroon and others 2003 SCMR 480; Mst. Fauzia Parveen alias Fauzia Tiwana v. Mst. Sahib Khatoon and others 1988 SCMR 552 and Mst. Muhammad and others v. Ghulam Nabi and others 2007 SCMR 761 rel.

Ch. Pervaiz Akhtar Gujjar for Petitioner.

YLR 2016 LAHORE HIGH COURT LAHORE 2702 #

2016 Y L R 2702

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

MUHAMMAD ABBAS---Petitioner

Versus

SPECIAL JUDGE ATC and 6 others---Respondents

Writ Petition No.14739 of 2013, decided on 23rd January, 2014.

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

----S. 6---"Terrorism" or "terrorist act", components of---'Purpose', 'motivation', 'actus reus' and 'mens rea', would constitute the components of "terrorism" or "an act of terrorism"---Action designed to coerce and intimidate or overawe the government or the public or section of public or community or sector, if such an action was designed to create a sense of fear or insecurity---Society in the backdrop of religious, sectarian or ethnic cause, would constitute an act of terrorism or terrorist act---Private crime resulting into fear or insecurity as a by-product, a fall-out or an unintended consequence of fright etc., could not be termed as an act of terrorism---Mere gravity, heinousness, gruesomeness or shocking nature of any offence, committed in pursuance of personal enmity or in settlement of personal vendetta, could not by itself sufficient to brand such a crime as a terrorist act or an act of terrorism.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Muhabbat Ali and another v. The State and another 2007 SCMR 142 and Ahmad Jan v. Nasrullah and others 2012 SCMR 59 rel.

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

----Ss. 6 & 23---"Act of terrorism"---Transfer of case to the court of ordinary/regular jurisdiction---Case of accused person, was far lesser in severity and grievousness than that of the terrorists or sectarian criminals, who killed the innocent persons for none of their fault, only to threaten; and defeat the writ of the State, or to cause damage to other sect---Miscreants, the saboteurs or the terrorists did not have any personal grudge or motive against those, whom they targeted either by exploding some device or by immolating themselves, or by any other means, so as to shatter the prevailing peace, and tranquility in the society or to render the masses insecure---Mind-set of such persons was only to do maximum damage to the society or to a section of the society, so as to weaken the State or over-awe the government---Offence alleged against accused was necessarily a fall-out of the motive alleged in the FIR, according to which previous squabbling as to the insult of the children, led to the said human loss---Present case looked to be of private motive and settlement of personal vengeance, having been committed without any intent to creating sense of fear or insecurity in the society, or a section of society, or to public at large, nor it was designed to coerce or intimidate, or overawe the government, or the public or section of a particular community, or sector fanning out religious, sectarian or ethnic ill-will or hatred---Nexus had to be shown between the act done and the objective or design by which said offence was committed; so as to formulate a finding, that said offence constituted an act of terrorism---Offence committed in the background of personal enmity, though having transmitted a wave of terror or fright was not necessarily an act of terrorism---Judge of Anti-Terrorism Court had rightly observed in the impugned order that the occurrence alleged against accused did not reflect any act of terrorism, as it was committed in the backdrop of previous animosity between the parties---Complainant himself had introduced the factum of previous heart-burning and rivalry between the parties in the FIR, which led to the unfortunate incident, which in circumstances could not be declared a "terrorist act"---Impugned order passed by Judge Anti-Terrorism Court, could not be interfered with, in circumstances.

Ahmad Jan's case 2012 SCMR 59; PLD 2009 SC 11; PLD 2004 Lah. 199; PLD 2001 SC 521 and PLD 2002 SC 841 ref.

Asghar Ali Gill for Petitioner.

Khurram Khan, Deputy Prosecutor General Punjab for the State.

Syed Zulfiqar Ali Bokhari for Respondent No.2.

YLR 2016 LAHORE HIGH COURT LAHORE 2711 #

2016 Y L R 2711

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ZAFAR HAYAT---Petitioner

Versus

Mst. JASEEMA YASMEEN---Respondent

C.R. No.455 of 2008, heard on 5th November, 2015.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Talb-i-Ishhad, performance of---Scope---Pre-emptor was not only bound to prove that he dispatched notice of Talb-i-Ishhad to the vendee but also to establish that the said notice was delivered to the addressee---Pre-emptor had committed negligence by drafting notice of Talb-i-Ishhad against a wrong name---Plaintiff had failed to prove that said notice was delivered to the vendee which was requirement of law---Findings recorded by the Appellate Court decreeing the suit were not sustainable---Impugned judgment and decree passed by the Appellate Court were set aside and suit was dismissed---Revision was allowed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Sultan Ali v. Ghulam Hussain 2012 YLR 2545; Rabia Bibi and another v. Jahana through L.Rs. 2013 YLR 2016; Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Zabiullah and others v. Awal Khan 2014 CLC 976 and Khan Afsar v. Afsar Khan and others 2015 SCMR 311 rel.

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

----O. XLI, R. 22---Non-filing of cross-objection or cross-appeal---Effect---Party while supporting impugned judgment could assail findings on the issues which were decided by the courts below against him without filing cross-appeal or cross-objections through his oral assertion.

Muhammad Yar and others v. Allah Wasaya and others 2013 YLR 1013; Suba and others v. Abdul Aziz and others 2008 SCMR 332 and Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119 rel.

----S. 17---Registered document---Scope---Registered document had presumption of truth over a private document.

(d) Registration Act (XVI of 1908)--

----S. 60---Certificate of registration---Scope---Presumption attached to the certificate of registration could not be rebutted by the beneficiary of document by production of agreement or sale receipt.

(e) Pleadings---

---Party had to first plead facts and pleas in the pleadings and then to prove the same through evidence---No one could be allowed to improve its case beyond what was originally set up in the pleadings---Evidence led by a party beyond its pleadings should be ignored.

Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965 and Haider Ali Bhimji v. Vth Additional District Judge, Karachi (Sourth) and another 2012 SCMR 254 rel.

(f) Pleadings---

----Plaint and written statement could not be treated as a piece of evidence.

Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others 2007 SCMR 870 and Muhammad Iqbal v. Ali Sher 2008 SCMR 1682 rel.

Ch. Khurseed Ahmad for Petitioner.

2016 Y L R 2792

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD AURANGZEB---Petitioner

Versus

NAVEED MOHSIN and others---Respondents

Civil Revision No.704 of 2016, decided on 11th May, 2016.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs, performance of---Requirements---Talb-i-Muwathibat was to be announced in a meeting/Majlis in presence of informant and two witnesses---Physical presence of informant and at least two witnesses together were necessary---In absence of such persons Talb-i-Muwathibat was not performed in "Majlis"---Important ingredients for performance of Talb-i-Muwathibat were missing in the present case---Pre-emptor, in order to prove Talb-i-Ishhad was bound to prove service of notices upon the vendees through registered cover acknowledgement-due---Pre-emptor sent notice of Talb-i-Ishhad to the father of vendees who was guardian of only one minor vendee---Service of notice of Talb-i-Ishhad upon other vendees who were major and were not residing with their father was not proved---Question of performance of talbs had been discussed in length by both the courts below---Requirements for performance of Talb-i-Muwathibat as well as Talb-i-Ishhad having not been fulfilled, revision was dismissed.

Abdul Hakeem v. Mst. Jannat Bibi 2005 SCMR 1228; Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Muhammad Afzal v. Ali Muhammad 2014 YLR 87; Muhammad Taj and others v. Muhammad Nawaz 2014 MLD 1300; Noor Muhammad Sultan v. Hafiz Allah Bakhsh 2014 YLR 1381; Muhammad Hayat v. Zafar Iqbal and others 2014 CLC 308; Khadim Hussain v. Ghulam Farid and others PLJ 2014 Lah. 921 and Ghulam Muhammad and another v. Mian Abdul Karim through L.Rs. 2014 YLR 774 ref.

Mutali v. Khizar Hayat and others PLD 2012 Lah. 1; Muhammad Rafique v. Muhammad Shafique and others 2013 MLD 31; Abdul Sattar v. Mian Muhammad Attique and others 2010 YLR 31 and Khan Afsar v. Afsar Khan and others 2015 SCMR 311 and Munawar Hussain v. Afaq Ahmed 2013 SCMR 721 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts recorded by the courts below could not be interfered with by the High Court unless same were perverse, patently against evidence or so improbable that acceptance thereof would tantamount to grave miscarriage of justice---Power to be exercised under S. 115, C.P.C. was not analogous to the powers exercised in appeal.

Hafiz Abdur Rehman Ansari for Petitioner.

YLR 2016 LAHORE HIGH COURT LAHORE 2808 #

2016 Y L R 2808

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD MUMTAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.1573 of 2010, heard on 15th December, 2015.

Penal Code (XLV of 1860)---

----Ss. 376 & 337-J----Rape, causing hurt by means of poison---Appreciation of evidence---FIR had not been produced during recording of statement of the complainant at trial---Scribe of the FIR/police official had not been produced during recording of the evidence, and the record did not show that he had been given up by the prosecution---Investigation Officer of the case had deposed nothing about recording of the FIR---FIR of the case had been lodged with delay of about twenty-four hours without any plausible explanation; however, the delay, in such like cases, might not be significant, as people generally hesitate and took time in reporting such matters involving their family name or dignity of their woman---Victim's clothes, which had been torn due to resistance shown by her, had not been produced during the course of investigation---Testimony of the victim and that of the eye-witnesses were full of contradictions and the same were permeated by an element of unnatural-ness---Victim's father and cousins had allegedly entered the house on hearing her hue and cries, who, being grown up persons, could have easily overpowered the accused, who was not armed at the time---Statement of the victim had not suggested that the accused had sex with her against her will---Victim's mother, who was allegedly sleeping at a close distance from the victim at the time of the occurrence, had not been produced at trial---Complainant, the father of the victim, being a person of hard/ impaired hearing, could not have possibly listened to the screaming of the victim---Victim could not explain as to how she had been intoxicated by the accused---Victim's brother had also been alleged to have been intoxicated along with the victim and medically examined for the same, but no medical evidence had been produced in that regard---Male doctor had although deposed that the accused a potent person in terms of performing sexual act, but the female doctor, after receiving the DNA report, had opined that the vaginal swabs of the victim did not generate any male DNA profile and that the victim had not been subjected to sexual intercourse by anyone; said doctors had not examined the victim and her brother regarding alleged administration of intoxication material---Medical evidence, therefore, had not lent any corroboration to the prosecution case---Abscondance of the accused for two years was of no significance after rejection of oral statements of the victim and eye-witness and medical evidence---Impugned conviction/sentences were, therefore, set aside---Appeal against conviction was allowed accordingly.

Mian Muhammad Ismail Thaheem for Appellant with Appellant (on bail).

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for Respondents.

YLR 2016 LAHORE HIGH COURT LAHORE 2833 #

2016 Y L R 2833

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD AZEEM alias KALU and another---Appellants

Versus

The STATE and others---Respondents

Crl. Appeal No.2771 of 2010 and Crl. Revision No.61 of 2011, heard on 13th February, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was doubtful---Crime was not reported to the Police at the time claimed in the FIR---Autospy on the dead body of the deceased was concluded after delay of nineteen hours---Possibility, could not be ruled out that the murder of the deceased remained un-witnessed, and time was consumed by Local Police in procuring and planting witnesses, and cooking up a story for the prosecution---Prosecution failed to prove the place of occurrence beyond reasonable doubt---Presence of witnesses of ocular account, was not free from doubt---Complainant, was sitting in front seat of car, with her deceased husband while son of the deceased was sitting on rear seat of the car---As many as seven firearm injuries were caused to deceased, but complainant as well as son of the deceased, did not receive a scratch during the occurrence---No specific purpose/ occasion of shopping for which five persons were going together, was disclosed, either in the FIR or before the Trial Court---Reason of mere shopping, without disclosing the eve thereof, did not inspire confidence---First Information Report showed that step son of deceased was also sitting in the same car, but there was no mention of his presence in the FIR that he was injured during the occurrence---According to visual site plan, step son of the deceased was also injured in the same incident---Prosecution, though had given-up step son of the deceased, being won over by accused persons, but suppression of injuries on him in the FIR, would create serious dents qua the credibility/veracity of the prosecution version---No weapon was recovered at the instance of co-accused, and he was found innocent during the successive investigations, whereas alleged recovery of a pistol at the instance of accused, did not advance the case of prosecution; as according to the report of Forensic Science Laboratory the empties, allegedly recovered from the place of occurrence, had not been fired through the pistol allegedly recovered at the instance of accused---Vehicle/car, wherein deceased was allegedly killed; and the witnesses of ocular account were boarding at the time of occurrence, which was an important piece of evidence, was not taken into possession by the Police during the course of investigation---Previous enmity existed between the parties---Motive was a double edged weapon in case of admitted enmity---Very strong and independent corroboration was required to believe the ocular account which was lacking in the case---Prosecution case being doubtful in nature, accused persons, were entitled to benefit of doubt, not as a matter of grace, but as of right---Conviction and sentence awarded to accused persons by the Trial Court, were set aside, and they were acquitted of the charge framed against them, and were set at liberty, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

Javed Iqbal Raja for Appellants.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Nemo for the Complainant.

Peshawar High Court

YLR 2016 PESHAWAR HIGH COURT 11 #

2016 Y L R 11

[Peshawar]

Before Waqar Ahmad Seth, J

RAHIM-UL-WAHAB and 3 others---Petitioners

Versus

Haji Mir GHALIB KHAN---Respondent

Civil Revision No.147-P of 2012, decided on 4th May, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13----Talbs, performance of---Place of making Talb-e-Muwathibat---Non-mentioning of such place in plaint---Effect---Suit for pre-emption---Defendant during recording of evidence filed application for dismissal of suit on ground that plaintiff had not mentioned place of making Talb-e-Muwathibat in plaint---Trial Court accepting the application dismissed the suit, but appellate court set aside decision of trial court and remanded the case for decision afresh---Validity---Plaintiff could not prove requisite demands in accordance with law as he failed to mention the place where he had been informed about the sale---Place of making immediate Talb was an essential particular, which was required to be mentioned in plaint to prove as to where pre-emptor had received the information---Plaint thus suffered from fatal defect---Failing to mention essential particulars about a fact in pleadings would result in depriving plaintiff opportunity to prove the same in evidence, as he could not go beyond his pleadings---High Court maintaining judgment and decree of trial court dismissed the suit---Revision petition was accepted in circumstances.

(b) Pleadings----

----Non-mentioning of essential particulars---Effect---Failure to mention essential particulars about a fact in pleadings will result in depriving plaintiff of opportunity to prove the same in evidence, as he cannot go beyond his pleadings.

Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Fazal-ur-Rehman v. Khurshid Ali and another 2012 SCMR 635 and Fazal Din v. Muhammad Inayat 2007 SCMR 1 rel.

Sher Wali Khan for Petitioners.

Muhammad Ali for Respondent.

Date of hearing: 4th May, 2015.

YLR 2016 PESHAWAR HIGH COURT 23 #

2016 Y L R 23

[Peshawar]

Before Waqar Ahmad Seth, J

RIAZ AHMAD and 5 others---Petitioners

Versus

FAQIR AHMAD KHAN---Respondent

Civil Revision No.311-P of 2014, decided on 5th June, 2015.

(a) Islamic law---

----Succession---Custom (Riwaj)---Scope---Riwaj (custom) of not giving inheritance to female---Inheritance mutation---Contention of defendant was that inheritance mutation was made according to such custom (Riwaj)---Validity---Riwaj (custom) claimed by defendant had no record and the area where property-in-dispute was located was totally Muslim inhabited area and there was no evidence on record that non-muslims were residing there and alleged Riwaj was enforced---Riwaj of not giving inheritance to female was contrary to Injunctions of Islam and could not be enforced or promulgated----In presence of Islamic Law of inheritance which was based on Quranic injunctions, it could not be presumed that un-Islamic Riwaj could be enforced---Under the law of inheritance, plaintiff would become co-owner in legacy of her deceased father to the extent of her share---Revision was allowed and suit stood decreed as prayed.

2004 SCMR 1391; 2010 CLC 631; Atta Muhammad v. Nasiruddin PLD 1993 Pesh. 127; Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Mirza Muhammad and others v. Muhammad Shfrin and others PLD 2011 Pesh. 41 and Abdur Rehman v. Mosam Khan and others 2012 YLR 2710 rel.

(b) Pardanashin lady---

----Pardanashin lady was a Hindu or Muslim woman of rank who lived in seclusion, shut in Zanana and had no communication except from behind the Parda or screen without any male person, save a few privilege relation or dependents.

Mst. Zainab Bibi and others v. Muhammad Yousaf and others 1995 SCMR 868 and Muhib Shah and 3 others v. Mst. Janat Bibi and others 1997 CLC 659 rel.

Noorul Hakam Khan for Petitioners.

Abdul Sattar Khan for Respondent.

Date of hearing: 5th June, 2015.

YLR 2016 PESHAWAR HIGH COURT 35 #

2016 Y L R 35

[Peshawar]

Before Nisar Hussain Khan and Muhammad Daud Khan, JJ

MUHAMMAD REHMAN ZAIB and 5 others---Petitioners

Versus

SARDAR KHAN and 6 others---Respondents

W.P. No.781-P of 2013, decided on 10th June, 2015.

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

----Ss. 135, 136, 142, 27, 7 & 20(3)---West Pakistan Land Revenue Rules, 1968, R.10---Punjab Land Record Manual, Ch. 18---Constitution of Pakistan, Art. 199---Constitutional petition---Partition of land---Partition proceedings conducted by patwari appointed as local commission by Deputy District Officer (Revenue)---Validity---Revenue Officer should decide the question as to the land to be partitioned or mode of partition by holding necessary inquiry and record his decision on the basis of sound and cogent reasons---Inquiries conducted under West Pakistan Land Revenue Act, 1967 were judicial proceedings---Deputy District Officer (Revenue), in the present case, did not make any inquiry by himself---Partition proceedings were conducted through Patwari by appointing him as local commission---Girdawar Circle or a Patwari could not be vested with the power of a Revenue Officer to conduct inquiry under West Pakistan Land Revenue Act, 1967---Power and authority to set in law was not transferable otherwise than provided in law---All orders made by the Revenue Officer as Trial Court, the inquiry conducted by Patwari and the appointment of Patwari as local commission were contrary to West Pakistan Land Revenue Act, 1967---Revenue Officer could appoint commission for proceeding under West Pakistan Land Revenue Act, 1967 but same was conditional with ranks that would fall within the ambit of Revenue Officer---Partition proceedings conducted by Patwari as local commission were without legal authority, null and void---Order passed by Member Board of Revenue putting at naught the order of Deputy District Officer (Revenue) was in accordance with law---High Court directed the Senior Member of Board of Revenue to issue directions to all the Revenue Officers especially to all the Collectors in the province that before issuance of any direction in partition suit, Trial Court shall make inquiry in judicial manner and further the procedure provided in Chapter-18 of the Land Record Manual; if necessary, appoint commission (Revenue Officer) not below the rank of Assistant Collector 2nd Grade to conduct the inquiry and proceedings.

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

----S. 20(3)---Power of Revenue Officer to refer case to another Revenue Officer---Scope---Revenue Officer had power to refer any case which he was competent to dispose of under West Pakistan Land Revenue Act, 1967 to any other Revenue Officer subordinate to him for investigation and report.

Muhammad Amin Khattak Lachi for Petitioners.

Haji Muhammad Zahir Shah for Respondents.

Date of hearing: 10th June, 2015.

YLR 2016 PESHAWAR HIGH COURT 43 #

2016 Y L R 43

[Peshawar]

Before Qalandar Ali Khan, J

BANARAS KHAN and others---Petitioners

Versus

MUHAMMAD RIASAT and others---Respondents

C.R. No.217-A of 2014, decided on 3rd 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 on the condition of deposit of amount equal to the amount in question---Contention of defendants was that disputed cheque was in their possession and impugned order was without jurisdiction---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 deemed fit---Leave to defend granted to the defendants by the Trial Court subject to condition of deposit of amount equal to amount in question was within the jurisdiction of court conferred through the provision of law which was unexceptionable---Revision against the exercise of such powers by the Trial Court was devoid of substance and was dismissed.

Yasir Zahoor Abbasi and S.M. Asif for Petitioners.

Nasrullah Khan Jadoon for Respondents.

Date of hearing: 3rd December, 2014.

YLR 2016 PESHAWAR HIGH COURT 53 #

2016 Y L R 53

[Peshawar]

Before Abdul Latif Khan, J

Mst. DILBAR JAN (widow) and 6 others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA (N.W.F.P.) through Secretary Board of Revenue and 7 others---Respondents

C. R. No. 116-P of 2013 with C. M. No.117-P of 2014, decided on 26th February, 2015.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----Ss. 4, 5, 3 & 83---Occupancy tenant---Compensation, payment of---Scope---Plea of plaintiffs was that they were entitled to the amount of compensation from the date of award---Validity---Occupancy tenants were given right to become owners of the property within prescribed parameters and a cut date was given for seeking declaration for the said purpose---Plaintiffs were occupancy tenants from the time of their forefathers but they remained unable to seek declaration---Person recorded as occupancy tenant would not automatically become owner nor could claim ownership unless declared as such by the competent court---Plaintiffs had failed to make any serious efforts to incorporate themselves in the revenue record as owners through declaration---Plaintiffs had been rightly refused for payment of compensation by the authority---Compensation for land acquired under Land Acquisition Act, 1894 could only be paid to the owners and occupancy tenants were not entitled to get compensation---Plaintiffs had failed to seek their remedy within the prescribed period of three years---Mere possession for a long term would not entitle any person to become owner of the property---Plaintiffs had failed to comply with the relevant provisions of law and they could not be given benefit of their own laxities---Occupancy tenants, after promulgation of Tenancy Act, 1950, could not claim to be occupancy tenants nor could claim the ownership if had not complied with the relevant provisions of the Act---Occupancy tenants neither could be protected nor claim ownership after the cut-off date---Occupancy tenants ceased to be occupancy tenants after the cut-off date and they were not entitled to any benefit due to their inaction towards compliance of relevant provisions of law---Possession of occupancy tenants over the property should not be considered as legal one in any capacity---Occupancy tenancy had been declared against Injunction of Islam and after the cut-off date they were no more entitled to claim ownership---Compensation with regard to disputed land could not be claimed by the plaintiffs---Plaintiffs had sought compensation with regard to land under reference from a civil court which was not permissible under the law---Plaintiffs could resort for remedy before proper forum---Impugned orders had been passed by the courts below with reasons---No jurisdictional or legal error was pointed out in the impugned judgments---Revision was dismissed in circumstances.

PLD 1991 SC 760 distinguished.

Abdul Zakir Tareen for Petitioners.

Riaz Painda Khel Asst. A.G. for Respondents.

Date of hearing: 26th February, 2015.

YLR 2016 PESHAWAR HIGH COURT 75 #

2016 Y L R 75

[Peshawar]

Before Muhammad Daud Khan, J

Haji SHAIZULLAH KHAN---Petitioner

Versus

Haji NAWAB through L.Rs. ---Respondent

C.R. No.200-B of 2013, decided on 22nd December, 2014.

Benami transaction---

----Proof---Burden of proof---Scope---Suit property was purchased by the plaintiff and he remained in possession since its purchase---Initial onus would lie on a person who had alleged transaction to be benami to prove the same---If he had proved the fact, onus might shift to the opposite party to disprove the same---Witnesses had corroborated the version of plaintiff in presence of documentary as well as oral evidence---Sale was of a benami nature---Heavy burden was on the defendant to disprove the admitted evidence in favour of plaintiff---Plaintiff had proved his claim through overwhelming, cogent and solid evidence and had successfully shifted the onus on the defendant to disprove the same---Defendant had failed to disprove the testimony of plaintiff---Appellate Court had minutely appreciated the entire evidence and had rightly set aside the judgment and decree of the Trial Court which decreed the suit---Impugned judgment and order passed by the Appellate Court did not suffer from any misreading or non-reading of evidence nor from any jurisdictional error or defect---Revision was dismissed in circumstances.

2003 MLD 319 and 2003 CLC 559 ref.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 rel.

Haji Riaz Muhammad Khan for Petitioner.

Abdur Rasheed Khan Marwat and Sardar Ali Khan for Respondents.

Date of hearing: 22nd December, 2014.

YLR 2016 PESHAWAR HIGH COURT 89 #

2015 Y L R 89

[Peshawar]

Before Malik Manzoor Hussain and Haider Ali, JJ

SHAH RASOOL and others---Petitioners

Versus

Maulana GHULAM RAHIM and others---Respondents

R.F.A. No.63 of 2006 with R.P. No. 53 of 2006, decided on 26th March, 2015.

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

----S. 11 & O. XXIII, R. 3---Withdrawal and adjustment of suit on basis of compromise---Consent decree, non-compliance of---Remedy---Res judicata principle of---Applicability---Suit filed by plaintiff---During pendency of suit defendant filed application for dismissal of the suit under O. XXIII, R. 3, C.P.C.---Trial Court accepting said application dismissed the suit on plea of res judicata---Contentions raised by plaintiff were that provision of Order XXIII, R. 3, C.P.C. were not applicable to the present suit as earlier suit had been withdrawn on basis of compromise and the same had not been decided on merit and that both suits were filed on different causes of action---Validity---Earlier suit was dismissed as withdrawn on basis of compromise effected between the parties---Decree was passed on basis of compromise, and non-compliance thereof, provided fresh cause of action to plaintiff to file fresh suit---Principle of res judicata was not attracted in circumstance of the present case---Withdrawal of earlier suit was not simple withdrawal, as the decree was passed on basis of duly executed compromise between parties, and in that eventuality fresh suit was not barred---Findings of Trial Court were not correct as the court had failed to appreciate legal perspective of the case---High Court accepting appeal set aside order of Trial Court---Appeal was allowed in circumstances.

Ramchandra Dec Garu v. Chaitana Sahu and others AIR 1920 PC 139; Chandoo v. Murlidhar and others AIR 1926 Oudh 311; Peer Dil and others v. Dad Muhammad 2009 SCMR 1268 and Muhammad Mazhar Iqbal and 8 others v. VIth Additional District Judge and 5 others 2010 MLD 439 rel.

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

----O.XXIII, R. 3 & S.11----Bar to file fresh suit---Consent decree---Effect---Compromise decree or order is a contract between parties to suit and its breach will give cause of action to them to approach the court to seek remedy---Where judgment is passed on basis of compromise, remedies available to aggrieved party is to file either review or fresh suit.

Amir Gulab Khan for Appellants.

Qazi Zakiuddin, Muhammad Yar Malazai and Syed Bad Shah for Respondents.

Date of hearing: 26th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 106 #

2016 Y L R 106

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

Eng: MUHAMMAD ILYAS KHATTAK---Petitioner

Versus

UNIVERSITY OF ENGINEERING AND TECHNOLOGY, PESHAWAR through VICE CHANCELOR and 4 others---Respondents

Writ Petition No.2752-P of 2013, decided on 5th March, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institutions---Admission in M. Sc. Electrical (Communication and Electronics Engineering)---Non-awarding of degree---Petitioner submitted application for awarding of final transcript on completion of research work which was refused on the ground that he had scored only 2.06 CGPA and had failed to achieve the required CGPA i.e. 2.67 which was minimum requirement for awarding of M. Sc. Degree---Contention of petitioner was that interim transcript had been issued in his favour after computing 24 Credit hours and thereafter respondent-university had no authority to alter and reduce the CGPA from 3.08 to 2.06---Validity---Petitioner changed courses without permission and prior approval of the Authority---Issuance of interim transcript would only indicate the existing academic status of the candidate---Any entry appearing in the interim transcript would not itself confer any right or privilege independently to the grant of proper certificate/diploma/degree which would be issued after completion of all the requirements for such an award by the candidates---Petitioner had been awarded grade "F" in six different courses and total quality points in all the courses would come to 74.01 which was equal to 2.06 CGPA---Candidate might be allowed to withdraw from courses within 6 weeks of commencement of classes in the relevant semester---Nothing was on record that petitioner applied for grade "W" well within time---Conversion of grade "W" had rightly not been entertained by the university at belated stage---Petitioner had received grade "F" for three times in a course while as per rules a candidate had only one chance to improve the grade by repeating the course---Petitioner had received grade "F" once and later on grade "W" once in the course---Petitioner had one chance to improve his grade in anyone of these three courses---Petitioner could not get the desired grade in some courses---University was the best judge in its internal affairs---University had power to frame regulation qua manner, mode, conduct, standard and regularization of examination from time to time---High Court, while exercising constitutional jurisdiction had to follow and implement the regulation adopted by the university and could not substitute its view with the opinion of those who were actively involved in the making of policies merely on the ground of sympathetic consideration---Petitioner could not substantiate that he had been treated differently from other candidates or against terms and conditions enumerated in the regulation of University---Petitioner had no vested right to claim the modification and alteration in the statute and regulation in a manner he liked---University had the power to make its own regulation in order to achieve the high standard of education which could not be castrated and changed for a particular candidate---Constitutional petition was dismissed, in circumstances.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 rel.

Asad Jan for Petitioner.

Waseem ud Din Khattak for Respondent.

Date of hearing: 5th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 127 #

2015 Y L R 127

[Peshawar]

Before Muhammad Daud Khan and Waqar Ahmad Seth, JJ

ARSHAD ALI and 3 others---Petitioners

Versus

SARTAJ and 8 others---Respondents

C.R. No.944-P of 2014, decided on 5th March, 2015.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. XXIII, R, 3 -Limitation Act (IX of 1908) Art. 183---Execution of consent decree-Scope---Plaintiff filed suit against defendants claiming that he was owner in possession of suit property on basis of gift deed dated 27-8-2002---Plaintiff alleged that sale deed dated 20-6-2002 executed by vendor/defendants in favour of vendee/defendants was illegal and that compromise made by defendants in suit filed earlier was result of fraud---Plaintiff filed an application under S.12(2) of C.P.C. in the earlier suit and sought for stay of proceedings in that suit till adjudication of the application---Application of plaintiff was dismissed by Trial Court against which appeal and revision were dismissed---Plaintiff filed an application for restoration of said suit---Vendee/Defendants filed application for rejection of plaint before Trial Court---Trial Court restored the suit and dismissed the same---Appeal against dismissal of suit was also dismissed---Revision was filed on grounds that compromise/consent decree in the earlier suit could have been put to execution within a period of three years, thus it had lost its effect and there was no subsisting decree in their favour; and consent decree in no circumstances could be equated with title decree conferring any title in favour of defendant since it had been passed to enforce agreement to sell through another registered deed---Further allegation was that no sale deed had been executed in pursuance to decree within prescribed time of six years, hence defendants could not be held owners of suit property---Validity---Consent decree passed in favour of vendee/defendants on basis of compromise had divested vendor/ defendants of all rights and liabilities and rights were transferred in favour of vendee/defendants---Ownership of vendee/ defendants remained intact even if decree was not put to execution---Limitation Act, 1908 merely barred remedy or assistance of court for execution but does not extinguish right or title based on decree---Trial Court and Appellate Court had rightly dismissed the suit---Revision was dismissed in circumstances.

Muhammad Latif v. Bashir Ahmad and 7 others 2004 CLC 1010; Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; Sher Muhammad through legal heirs v. Member (Judicial) Board of Revenue and 4 others 2010 MLD 187; Mst.Hussain Bibi v. Siraj Din PLD 1998 Lah. 548 and Ahmad Khan through Legal heirs and others v. Ghulam Hussain and others 2007 MLD 857 rel.

Mian Abdul Aziz Qureshi for Petitioners.

Nome for Respondents.

Date of hearing: 5th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 147 #

2016 Y L R 147

[Peshawar]

Before Ikramullah Khan, J

JAMIL AHMAD and 6 others---Appellants

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Collector and 4 others---Respondents

R.F.A. No.73-D of 2012, decided on 2nd March, 2015.

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

----Ss. 18 & 23----Civil Procedure Code (V of 1908), S. 96---Reference to court---Rate of compensation---Determining factors---Landowner filed reference petition under S.18 of Land Acquisition Act, 1894 for enhancement of compensation for the suit property acquired by respondents, which was referred to civil court---Trial Court, after recording evidence, accepted the reference and enhanced rate of compensation----Contention raised by landowner was that the compensation awarded and later enhanced was not according to fair market rate---Respondent took plea that acquired land was barren having no future potentiality---Validity---Acquired land, in the present case, had acquired status of village site---Not only the market value of land but also other factors, which by any means affected interest of petitioner, would be considered for determination of compensation which was to be awarded to petitioner in lieu of his property---Land, in question as per Local commission report, being useful for construction of houses and adjacent to main road, had great potentiality---Referee court failed to consider facts of the case in terms of S. 23 of Land Acquisition Act, 1894---High Court accepting appeal enhanced amount of compensation with acquisition charges and simple interest.

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

----S. 23---Rate of Compensation---Determining factors---Not only market value of land but also other factors, which by any means affected interest of petitioner, would be considered for determination of compensation which was to be awarded to landowner in lieu of his property.

Province of Punjab through Land Acquisition Collector v. Begum Aziza 2014 SCMR 75 and Askari Cement Limited (Formerly Associated Cement Limited) through Chief Executive v. Land Acquisition Collector (Industries) Punjab and others 2013 SCMR 1644 rel.

Abdullah Khan Gandapur for Appellants.

Sanaullah Shamim, A.A.-G. for Respondents.

Date of hearing: 2nd March, 2015.

YLR 2016 PESHAWAR HIGH COURT 172 #

2016 Y L R 172

[Peshawar]

Before Muhammad Daud Khan, J

Mst. RAZIA BEGUM---Petitioner

Versus

ADAM KHAN and another---Respondents

C.R. No.557 of 2005, decided on 11th May, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Suit for possession through pre-emption---Performance of talbs by agent---Scope---Notice of Talb-i-Ishhad did not bear signature of one marginal witness who was allegedly informer of the sale mutation---Notice of Talb-i-Ishhad should be attested by two truthful witnesses---Witness who had not signed the notice of Talb-i-Ishhad could not be treated as attesting witness---Neither the scribe of notice of Talb-i-Ishhad nor the postman of the area had been produced in witness box to record their statements for proof of said notice---Original acknowledgement-due card was neither annexed with the plaint nor submitted in the evidence---Factum of performance of notice of Talb-i-Ishhad had not been proved---Talb-i-Muwathibat and Talb-i-Ishhad were allegedly made by the pre-emptor herself but Talb-i-Khasumat was made by the attorney of plaintiff---Plaint was signed/verified and instituted by the attorney of the pre-emptor---Talb-i-Khasumat was equally important and required specific mode and manner to perform the same---Pre-emptor was required to perform two talbs by himself or through his/her attorney or agent---If pre-emptor was unable to make demands, he/she might appoint agent for such purpose---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---Suit of pre-emptor could be filed by a person who himself had performed the Talb-i-Muwathibat and Talb-i-Ishhad---Talb-i-Muwathibat and Talb-i-Ishhad were performed by the pre-emptor herself, in the present case, but suit was filed by the attorney---Talb-i-Khasumat having not been performed in accordance with law, suit was bad in law---No illegality or irregularity had been pointed out in the impugned order passed by the Appellate Court---Revision was dismissed in circumstances.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.14---Demands by guardian or agent---Scope---If pre-emptor was unable to make demands he/she might appoint agent for such purpose.

----Art. 79---Transfer of Property Act (IV of 1882), S. 3---Attesting witness and attestation in relation to instrument---Meaning and scope---Necessary conditions.

The attesting witness in terms of Art. 79 of Qanun-e-Shahadat Order, 1984 read with S. 3 of the Transfer of Property Act, 1882 is a person, who had witnessed the execution of an instrument by the executant and also signed the instrument for the purpose of attesting signature of the executant. Attesting witness is one who not only writes or sees a document being executed and appends his name at the end of document, but is a person who also signs it as a witness. Attestation in relation to instrument means attested by two or more witnesses each of whom has seen the executant, sign, or affix his mark to the instrument, or has seen other person sign the instrument in the presence and by the direction of the executant or has received from the executant a personal acknowledgement of his signature or mark or of the signatures of such other persons and each of whom has signed the instrument in presence of the executant.

The necessary conditions for a witness attesting the document are; firstly, that he has seen the executant; and secondly, he has signed the instrument in the presence of the executant. If these two conditions are fulfilled by the witness, there can be no doubt about his being attesting witness.

(d) Words and phrases---

----"Attest"---Meaning.

Black's Law Dictionary 9th Edition rel.

Muhammad Taif Khan for Petitioner.

Abdul Latif Afridi for Respondents.

Date of hearing: 11th May, 2015.

YLR 2016 PESHAWAR HIGH COURT 205 #

2016 Y L R 205

[Peshawar]

Before Waqar Ahmad Seth, J

The CHAIRMAN, WAPDA and 4 others---Petitioners

Versus

Messrs SITARA MARBLES INDUSTRY through Managing Director---Respondent

Civil Revision No.1510 of 2006, decided on 31 October, 2014.

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

----S. 42---Civil Procedure Code (V of 1908), S. 115---Suit for declaration---Revision---Requirements---Disconnection of electricity supply---Contention of plaintiff was that impugned bill of electricity was wrong and illegal---Suit was decreed concurrently---Validity---Defendants (petitioners) were bound to annex/accompany all the exhibited documents and record of the case with the revision petition---Revision application could not be entertained unless accompanied by copies of all the documents and record---Defendants would suffer for non producing such copies---Electric meter was installed outside the premises of plaintiff (consumer) and being an industrial connection was under the control of SDO concerned---Electric bill, in question for the month of November 1997 was prepared without detail of consumption from the month of January, 1997 to December, 1997---No solid and convincing proof existed with regard to alleged reversal of meter and its reading---No mis-reading or non-reading of evidence or jurisdictional defect was pointed out in the impugned judgments and decrees passed by the courts below---Both the courts below had rightly appreciated the evidence on record---Revision was dismissed in, circumstances.

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

----S. 115---Revision---Requirements---All exhibited documents and record to be annexed/accompanied with the revision petition.

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court to interfere in concurrent findings was limited---Concurrent findings recorded by competent courts on question of fact or law however erroneous the same might be, could not be interfered with by the High Court in its revisional jurisdiction unless said findings were suffering from jurisdictional defect, illegality or material irregularity.

(d) Administration of justice---

----Court to give effect to each and every provisions of law.

Gul Nazir Azam for Petitioners.

Nemo for Respondent.

Date of hearing: 31st October, 2014.

YLR 2016 PESHAWAR HIGH COURT 233 #

2016 Y L R 233

[Peshawar]

Before Syed Afsar Shah, J

PROVINCIAL GOVERNMENT through District Coordination Officer, Swabi

and 3 others---Petitioners

Versus

FAZAL RAHIM and 3 others---Respondents

C.R. No.247-P of 2013, decided on 17th November, 2014.

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

----Ss. 42 & 8---Suit for declaration and possession--- Limitation--- Permissive possession---Gift---Requirement---Effective and ancillary relief, grant of---Scope---Suit land was given to the Education Department whereafter school was constructed over there---Contention of plaintiffs was that they were owners of suit premises---Suit was decreed concurrently---Validity---Suit premises was in the ownership of plaintiffs---Writing was not essential to the validity of a gift either of movable or immovable property---Gift could not be implied which should be express and unequivocal---Intention of the donor should be demonstrated by his entire relinquishment of the thing given---Essential requirement to the validity of a gift was that the donor should divest himself completely of all ownership and dominion over the subject of gift---Gift would be null and void if donor continued to exercise any act of ownership over the subject matter of gift---No gift existed in the present case---Plaintiffs had not relinquished their control over the suit property or for that matter subject of the gift---No limitation would run on account of permissive possession---Plaintiffs had succeeded to prove their ownership with regard to suit land---Defendants had failed to prove the factum of oral gift in their favour---Both the courts below had rightly appreciated the case---Children of the area were getting their education in the suit premises and plaintiffs were entitled for compensation for which no prayer had been made---Court had power to grant an effective or ancillary relief even not prayed for---Court was not precluded to mould relief in view of the changed facts and circumstances of the case to shorten litigation between the parties---Education department was directed to go for amicable settlement with the plaintiffs and give them compensation in accordance with the market value of suit property or straightaway go for acquisition of land in question---Revision was dismissed in circumstances.

Ahmad Nawaz v. Muhammad Jaffar Khan and others 2010 SCMR 984; Amina Begum v. Ghulam Dastagir PLD 1978 SC 220 and Municipal Committee Chakwal v.. Chaudhry Fateh Khan, and others 2006 SCMR 688 rel.

(b) Islamic law---

----Gift---Requirements---Scope---Writing was not essential to the validity of a gift either of movable or immovable property---Gift could not be implied which should be express and unequivocal---Intention of the donor should be demonstrated by his entire relinquishment of the thing given---Essential requirement to the validity of a gift was that the donor should divest himself completely of all ownership and dominion over the subject of gift---Gift would be null and void if donor continued to exercise any act of ownership over the subject matter of gift.

----Court had power to grant an effective or ancillary relief even not prayed for---Court was not precluded to mould relief in view of the changed facts and circumstances of the case to shorten litigation between the parties.

Ahmad Nawaz v. Muhammad Jaffar Khan and others 2010 SCMR 984; Amina Begum v. Ghulam Dastagir PLD 1978 SC 220 and Municipal Committee Chakwal v. Chaudhry Fateh Khan and others 2006 SCMR 688 rel.

Mujahid Ali Khan, AAG for Petitioners.

Muhmamad Humayun Khan for Respondents.

Date of hearing: 17th November, 2014.

YLR 2016 PESHAWAR HIGH COURT 248 #

2016 Y L R 248

[Peshawar]

Before Abdul Latif Khan, J

MUHIB ULLAH---Appellant

Versus

ARJUMAND KHAN and 2 others---Respondents

Regular Second Appeal No.20-M of 2014, decided on 8th December, 2014.

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

---Ss. 13, 7 & Preamble---Ejectment of tenant--- Subletting--- Pagri/premium---Scope---Eviction petition was accepted on the ground of subletting the demised premises by the tenant---Validity---Burden was on the landlord to prove the assertion made by him---Version of subletting the demised premises had not been proved through confidence inspiring evidence---Tenant himself with the help of his son was running business in the demised premises---Demised premises had not been sublet by the tenant---Permission to use demised premises for any purpose temporarily would not amount to sub-let the same---Pagri (premium) received by landlord was something larger and more than rent amount, which ran counter to the Preamble of West Pakistan Inland Rent Restriction Ordinance, 1959 and landlord had willfully abandoned and relinquished most his rights to eject the tenant and could hardly take shelter for the purpose, under the provisions of the ordinance disregarded---Landlord had received pagri/premium---Ejectment of tenant could not be claimed merely on the whims of landlord when he had received premium(pagri)---Landlord had to prove his case and if no evidence was produced, it would amount to failure on his part---Landlord could not take benefit of the weakness of defence if any as he had to stand on his own legs---No case of ejectment had been made out by the landlord---Both the courts below had not decided the "lis" with conscious and application of independent mind---Impugned judgments were deficient of reasons and were not sustainable---Appeal was accepted and eviction petition was dismissed in circumstances.

Abdul Halim for Appellant.

M. Ikram Khan for Respondents.

Date of hearing: 8th December, 2014.

YLR 2016 PESHAWAR HIGH COURT 263 #

2016 Y L R 263

[Peshawar]

Before Muhammad Ghazanfer Khan, J

NAIMATULLAH and others---Petitioners

Versus

Haji MUHAMMAD MAHMOOD and others---Respondents

C.R. No.593-D of 2011, decided on 7th May, 2015.

Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----Ss. 2 & 3----West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962), S. 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Inheritance---Limitation---Right of cousins in legacy---Permissibility---Son inherited whole legacy of father under custom/Riwaj to the exclusion of his mother---Validity---Mother's right in legacy of her son who had died issueless and had no brother or sister---Determination---Application of Muslim personal law---Scope---Defendant had inherited suit property from her husband and his son, who had died issueless---Plaintiff filed suit claiming that he, being first cousin of said son, was also entitled to inherit from suit property under prevailing custom as Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 was not applicable at the time of opening of inheritance---Trial Court dismissed the suit, whereas, appellate court decreed the same holding that defendant was entitled to one sixth share in inheritance of her son and sale by her beyond the said share was invalid and remaining suit property was reverted to plaintiff as reversionary from legacy of the son---Validity---When present suit was filed West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 was in field---Under S. 2 of West Pakistan Muslim Personal Law (Shariat Application) Act, 1962, all questions regarding succession etc. would be decided under said law in cases where parties were Muslims---Under S. 3 of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, where question relating to succession upon death of Muslim arose in any court, and where such death took place before said law, rule of decision would be according to Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, as if said law was applicable at time of death---No limitation would run against co-sharer---Mother would get one third when there was no child from deceased son---Son haing died issueless and had no brother or sister, mother would get one third share out of his legacy instead of one sixth---After death of defendant's husband, his whole legacy had devolved upon his only son according to prevailing custom/Riwaj---Inheritance of defendant's husband would, therefore, reopen and she would also get one eighth share from legacy of her husband---Impugned judgment and decree of appellate court was modified to the extent of shares of defendant, widow of deceased and mother of deceased son---Revision petition was disposed of accordingly.

2008 SCMR 905 and 2000 CLC 1863 rel.

Muhammad Waheed Anjum, Malik Hidayatullah and Akbar Ali Khan for Petitioners.

Rustam Khan Kundi, Malik Ata Muhammad Sewag and Muhammad Saeed Amjad Awan for Respondents.

Date of hearing: 7th May, 2015.

YLR 2016 PESHAWAR HIGH COURT 279 #

2016 Y L R 279

[Peshawar]

Before Muhammad Younis Thaheem, J

SALAR KHAN through L.Rs.---Petitioners

Versus

UMER RIAZ through L.Rs.---Respondents

C.R. No.165-B of 2013, decided on 17th April, 2015.

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

----Ss. 8, 39, 42, 54 & 55---Qanun-e-Shahadat (10 of 1984), Arts. 100 & 126---Suit for declaration, perpetual and mandatory injunction, possession and cancellation---Ninety years old title document---Presumption of truth and limitation---Entries in revenue record---Presumption of truth---Plea of fraud---Requirement as to giving particulars of fraud and proof---Burden---Plaintiffs filed suit claiming that their grandfather was owner-in-possession of suit property, after whom their father became owner of same, but predecessor defendants in collusion with revenue officials had made wrong entries in revenue record on basis of forged and fraudulent sale deed---Both Trial Court and appellate court dismissed the suit---Contentions raised by plaintiffs were that their predecessor was illiterate person and was therefore not able to sign disputed sale deed---Plaintiffs, in support of their contentions, could not produce any evidence, particularly for proof of alleged fraud and misrepresentation and had only relied on oral testimony---Defendants produced title deed regarding suit property which contained Urdu signatures of predecessor of plaintiffs---Suit property had been transferred in revenue record in name of predecessor of defendants through sale deed, and they had been in continuous possession of suit property since their name in revenue record on basis of said sale deed---Defendants also produced revenue record to prove entries in their names, which had presumption of truth---Defendants, on basis of title deed and revenue record, being owners-in-possession of suit property, burden of proof was on plaintiffs to prove their ownership by proving allegations of fraud against defendants---Presumption of truth was attached to sale deed in dispute, as same was ninety years old document---Plaintiffs were legally bound to mention fraud in very express way by giving particulars of fraud in plaint stating as to by whom and when fraud had been committed---Plaintiffs were also bound to prove fraud through believable evidence---Plaintiffs could not produce single witness to prove allegations of fraud---Sale deed in dispute was ninety years old document, but no explanation had been given as to why predecessor of plaintiffs had not challenged said document during his life time---Suit was badly time barred---No infirmity had been pointed out in impugned judgments and decrees of courts below which might warrant interference by revisional court---Revision petition was dismissed in circumstances.

Muhammad Hussain and others v. Khuda Bakhsh 1989 SCMR 1563; Syed Tawakkal Hussain and others v. Mst. Shameem Fatima Rizvi and others 1999 MLD 1; Mst. Qaisar Khatoon and others v. Moulvi Abdul Khaliq and another PLD 1971 SC 334; Allah Dad and others v. Dhuman Khan and others 2005 SCMR 564; Noor Muhammad v. Jamal Din and others 2000 CLC 305; Ghulam Rasul v. Muhammad Akram 1988 SCMR 1080; Muhammad Ishfaq v. Chouhdri Muhammad Nawaz 2008 SCMR 1095; Haji Abdul Ghafoor through legal heirs v. Ghulam Sadiq through legal heirs PLD 2007 SC 43 and Muhammad Saleem v. Muhammad Tariq 2009 CLC 1295 rel.

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

----S. 115----Revision---Scope---Scope of revisional jurisdiction is very limited under which court cannot set aside concurrent findings of facts recorded by courts of competent jurisdiction nor can it upset the same, unless those findings are shown to be patently illegal, without jurisdiction, based on conjectural presumptions or erroneous assumption.

Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Gul Diaz Wazir for Petitioners.

Pir Hamid Ullah Shah for Respondents.

Date of hearing: 17th April, 2015.

YLR 2016 PESHAWAR HIGH COURT 293 #

2016 Y L R 293

[Peshawar]

Before Lal Jan Khattak, J

NAWAB ALI---Appellant

Versus

Dr. UMAIR IKRAM---Respondent

F.A.O. No.77-P of 2013, decided on 16th February, 2015.

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

----S. 17---Application for ejectment of tenant---Bona fide personal need of landlord---Scope---Contention of tenant was that landlady did not appear in person before the Rent Controller and attorney was not authorized to file ejectment petition---Eviction petition was accepted by the Rent Controller---Validity---Landlord might apply to the Rent Controller for an order directing the tenant to put him in possession of the rented building if he required it in good faith for his own occupation or for the occupation of any member of his family---Landlady had competently filed the ejectment petition being owner of suit shop---Landlady had sued the tenant through her attorney---No restriction existed that landlord must appear in person to prove his plea of personal bona fide use---Appearance through attorney was as good as that of the principal---Requiring the suit shop by the landlord for his own personal need was to be considered and taken as requirement of the owner---Respondent was real son of the owner of the suit shop and had a legitimate and lawful interest in the premises---Landlady had proved through cogent, convincing and confidence inspiring evidence that premises was required to her for her personal bona fide use---Rent Controller had properly appreciated and analyzed the case evidence in its true perspective---No illegality or irregularity had been committed by the Rent Controller while allowing the eviction petition---Appeal was dismissed in circum-stances.

2001 MLD 183; 2002 CLC 1391 and 2012 CLC 1282 ref.

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

----S. 2(g)---"Landlord"---Meaning---"Landlord" was any person for the time being entitled to receive rent with regard to any building whether on his own account or on behalf of or for the benefit of any other person.

Khalid Mehmood for Appellant.

Muhammad Tayyab for Respondent.

Date of hearing: 16th February, 2015.

YLR 2016 PESHAWAR HIGH COURT 302 #

2016 Y L R 302

[Peshawar]

Before Muhammad Ghazanfer Khan, J

CHAIRMAN, BISE, PESHAWAR and others---Petitioners

Versus

MUHAMMAD JAAR ULLAH---Respondent

C.R. No.122-D of 2015, decided on 3rd July, 2015.

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

----S 42---Suit for declaration---Correction of date of birth---Suit for correction date of birth in educational testimonials was decreed---Appeal filed by defendant was dismissed---Contention of plaintiff was that according to identity card and admission register of school his actual date of birth was 10-6-1957, but it was wrongly entered in his educational testimonials as 10-6-1955---Plaintiff had mainly relied on admission and discharge register pertaining to years 1964-1969 and record of NADRA, which showed that his actual date of birth was 10-6-1957---Revision petition having no substance was dismissed in limine.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings---Such jurisdiction was very limited and High Court would not interfere unless any irregularity, illegality, misreading, non-reading of evidence or jurisdictional defect in the concurrent findings of the Courts below was pointed out.

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Courts below being based on facts cannot be set at naught by revisional Court unless it is proved through evidence available on record that the same are either perverse, erroneous, fanciful or are the result of misreading and non-reading of material evidence.

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

----Art. 133---Facts not cross-examined---Effect---If a witness was not cross-examined on certain facts, his statement attains finality.

2002 SCMR 1114 and 2007 SCMR 368 rel.

Pir Amjad Ali Shah for Petitioners.

Nemo for Respondent.

Date of hearing: 3rd July, 2015.

YLR 2016 PESHAWAR HIGH COURT 305 #

2016 Y L R 305

[Peshawar]

Before Waqar Ahmad Seth and Qalandar Ali Khan, JJ

ARIF-UR-REHMAN---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.305-P of 2012, decided on 12th November, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---"Charas", weighing 16 Kgs., was recovered from rear seat and engine of the car driven by accused---Complainant, separated samples weighing 5 grams from each of the 16 recovered packets, which were sealed on the spot in the presence of marginal witnesses to the recovery memo, and remaining "charas" was also sealed separately on the spot in the same manner---Samples were dispatched to Forensic Science Laboratory, wherefrom report was received in the affirmative, thereby confirming recovery of "charas" from possession of accused and co-accused---Said facts were further re-inforced by complainant, marginal witnesses, Investigating Officer and formal witnesses in their statements before the court---Testimony of such witnesses could not be seriously challenged despite searching cross-examination by the defence---Special Court, had overwhelming evidence before it to hold accused guilty of the charge and convict and sentence him to imprisonment for life, and fine of Rs.50,000---Said judgment of Special Court was upheld.

Mohammad Ijaz Sabi for Appellant.

S. Sikandar Hayat Shah, A.A.-G. for the State.

Date of hearing: 12th November, 2014.

YLR 2016 PESHAWAR HIGH COURT 319 #

2016 Y L R 319

[Peshawar]

Before Waqar Ahmad Seth, J

MIRZA GUL and 2 others---Petitioners

Versus

MUHAMMAD AYUB and 18 others---Respondents

Review Petition No.71-P of 2012 in C.R. No.1092 of 2003, decided on 27th October, 2014.

Civil Procedure Code (V of 1908)---

----Ss. 114 & 151 & O. XLVII, R. 1---Suit for declaration---Order on the basis of compromise---Review---Estoppel---Scope---Judgment and decree based on compromise between the parties was announced and dictated in the open court in presence of both the parties---Consent order could not be set aside on a motion under S. 151, C.P.C. nor by invoking O. XLVII, R. 1, C.P.C.---Judgment by consent was as effective as estoppel between the parties as a judgment whereby court would apply its mind on a contested case---Well reasoned judgment had been passed which could not be re-opened or reviewed---Review was not competent in the present case which was dismissed.

Gul Sadbar Khan for Petitioners.

Asghar Ali for Respondents.

Date of hearing: 27th October, 2014.

YLR 2016 PESHAWAR HIGH COURT 355 #

2016 Y L R 355

[Peshawar]

Before Waqar Ahmad Seth, J

IMRAN YOUNAS---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. No.1563 of 2015, decided on 23rd September, 2015.

Criminal Procedure Code (V of 1898)---

----S.497---Emigration Ordinance (XVIII of 1979), Ss.18(b) & 22(b)---Fraudulently inducing a person to emigrate abroad for the purpose of securing employment---Bail, grant of---None of the offences with which accused was charged attracted prohibitory clause of S.497, Cr.P.C.----No reason existed to withhold the concession of bail; when grant of bail in such like cases, was a rule and refusal was an exception---Abscondance of accused was at the best a corroborative evidence and not a charge against accused---Accused was directed to be released on bail.

Arshad Hussain Yousaf Zai for Appellant.

Mussarat Ullah Khan, DAG for Respondents.

Date of hearing: 28th September, 2015.

YLR 2016 PESHAWAR HIGH COURT 361 #

2016 Y L R 361

[Peshawar]

Before Musarrat Hilali, J

AZMAT ULLAH---Petitioner

Versus

The STATE---Respondent

Cr. M.B.A. No.1548-P of 2015, decided on 7th September, 2015.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Foreign Exchange Regulation Act (VII of 1947), Ss.5 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Illegal business of Hundi/Hawala, money laundering---Bail, grant of---Further inquiry---Accused was found in possession of Pakistan Currency and Saudi Riyals---Whether keeping said amount, was a crime; whether amount so recovered was derived from some unlawful means, were questions, which could not be resolved on the basis of material available on record; and same needed further inquiry---Nothing was on record to slightly suggest that accused was exclusive owner of alleged business---Offence for which accused was charged, did not fall within the prohibitory clause of S.497, Cr.P.C.---Case of accused being arguable for the purpose of bail, accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Farhad Khan for the State.

Date of hearing: 7th September, 2015.

YLR 2016 PESHAWAR HIGH COURT 378 #

2016 Y L R 378

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

ALLA-UD-DIN and another---Respondents

C.R. No.381 of 2007, decided on 22nd May, 2012.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Demands of talbs---Proof---Pre-emptor represented through son as special attorney---Permissibility---Non-mentioning of date of notice of Talb-e-Ishhad in plaint---Effect---Receipt of notice of Talb-e-Ishhad---Proof---Plaintiff filed suit for pre-emption which was decreed by Trial Court, whereas another suit filed by rival pre-emptor was dismissed---Appellate court modified judgment and decree of Trial Court holding suit property to be equally distributed between both pre-emptors---Under S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987, right of pre-emption would be extinguished unless pre-emptor had made demands of pre-emption in the prescribed manner---Pre-emptor, in the present case, did not mention date of notice of Talb-e-Ishhad in plaint thereby causing irreparable damage to his suit---Pre-emptor had appeared before court through his son as special attorney, who did not state as to how he had come to knowledge of sale---Right of pre-emption was personal to pre-emptor and unless there was any disability pleaded on his part whereby he was unable to record his statement, his attorney could not give statement about performance of Talb-e-Muwathibat---Non-appearance of pre-emptor before Trial Court had caused death blow to his alleged performance of Talb-e-Muwathibat---Non-mentioning of date of notice of Talb-e-Ishhad in plaint was fatal to the case of pre-emptor and his suit could be dismissed on that score alone---Notice of Talb-e-Ishhad was allegedly sent but the same was not received by respondent, and postman was not produced before Trial Court to prove refusal of the notice by vendee---In absence of receipt of such notice, performance of Talb-e-Ishhad stood disproved---Rival pre-emptor had neither mentioned name of witnesses nor date of issuance of notice of Talb-e-Ishhad in plaint---Failure on part of rival pre-emptor to mention such particulars was fatal to his case of pre-emption---In rival pre-emptor's suit, witnesses were not confronted with alleged notice of Talb-e-Ishhad to verify that they had thumb impressed the same---Rival pre-emptor could not prove performance of Talbs in accordance with law---Impugned judgment and decree of courts below were set aside, suits of both pre-emptors were dismissed---Revision petitions filed by pre-emptors were dismissed while the one filed by vendee was accepted in circumstances.

Mst. Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193; Hakeem-ud-Din through legal heirs and others v. Faiz Bakhsh and others 2007 SCMR 870; Mian Pir Muhammad and another v. Faqir Muhammad through legal heirs and others and PLD 2007 SC 302 and Ghafoor Khan v. Israr Ahmad 2011 SCMR 1545 rel.

Mastam Ali Zaidi for Petitioner.

Rustam Khan Kundi and Muhammad Yousaf Khan for Respondents.

Date of hearing: 22nd May, 2012.

YLR 2016 PESHAWAR HIGH COURT 401 #

2016 Y L R 401

[Peshawar]

Before Malik Manzoor Hussain, J

IFTIKHAR AHMAD---Petitioner

Versus

Mst. SAIMA ZIA---Respondent

C.R. No.12 of 2012, decided on 2nd May, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 6---Suit for pre-emption---Co-ownership and contiguity---Principle and scope---Pre-emptor purchased a specific portion of the property in question from one of the legal heirs of the original owner who were retaining separate possession after family settlement---Boundaries mentioned in the sale deed in favour of plaintiff were admittedly different from boundaries given in the sale deed executed in favour of defendants---Where property was divided through private partition, such property would no more be joint property---Pre-emption of any (such) part of such property could not be allowed merely on the ground that such part originally formed part of the whole house (property)---Pre-emption was a right of substitution, once it was established that pre-emptor was no more co-owner and no contiguity existed, suit would not be maintainable---Judgments of courts below did not warrant interference---Revision was dismissed.

Genda Ram and another v. Ram Chand and another AIR 1924 Lah. 163 and Mumtaz Hussain and another v. Muhammad Achar and 2 others 1991 CLC 209 ref.

Iftikhar Ahmed v. Adnan Khan C.R. No.18 of 2012 rel.

Haji Ghulam Basit for Petitioner.

Khalid Rehman Qureshi for Respondent.

Date of hearing: 2nd May, 2014.

YLR 2016 PESHAWAR HIGH COURT 420 #

2016 Y L R 420

[Peshawar]

Before Muhammad Ghazanfar Khan, J

MIRAN BUKHSH---Petitioner

Versus

MUHAMMAD ISMAIL and others---Respondents

C.R. No.141-D of 2014, decided on 10th September, 2015.

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

----Arts. 17, 76 & 79----Civil Procedure Code (V of 1908), O. VII, R.2 & O.XXI, R.10---Registration Act (XVI of 1908), S.17---Suit for recovery of money---Execution of decree---Objection to execution---Proof of execution of document required by law to be attested---Competence and number of witnesses---Cases in which secondary evidence relating to document may be given---Death of marginal witnesses---Proof of document where marginal witnesses are dead---Procedure---Agreement to sell admitted in evidence by mere admission of party---Permissibility---Documents of which registration is compulsory---Both Executing court and appellate court allowed objection petition filed by objectors, who claimed that they had purchased the suit property from the defendant, judgment debtor---Plaintiff contended that agreement to sell and receipt of payment of consideration, produced by the objectors, being unregistered documents, were not admissible--- Validity--- Execution of document containing fiscal matters and future obligations was to be attested by two truthful witnesses, and to prove the execution of such document, the witnesses had to be produced before court---Marginal witnesses, in the present case, were reported to have died; mode of proving in such like cases was to lead secondary evidence like comparison of their signatures and thumb impressions with their admitted thumb impressions and signatures on other documents---Objectors were required to prove signatures of dead witnesses through identification of their signatures from anyone of their relatives like son, brother, etc.; whereas, signatures of attesting witnesses had not been properly identified---Document in dispute had been attested by Oath Commissioner, who had not been produced as witness---Transaction in question, being compulsorily registerable, had not been registered---High Court, setting aside orders of both courts below, remanded the case to the Executing court for decision afresh on the objection petition after reconsidering the proof of documents in question as per law---Revision petition was allowed in circumstances.

2005 SCMR 152 rel.

Abdul Qayum Qureshi for Petitioner.

Zian-ul-Abidin for Respondents.

Date of hearing: 10th September, 2015.

YLR 2016 PESHAWAR HIGH COURT 434 #

2016 Y L R 434

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J.

BACHA GUL---Petitioner

Versus

The STATE---Respondent

Cr. Misc. B.A. No.84-P of 2015, decided on 30th March, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Possessing and trafficking narcotics---Bail, refusal of---Principles---Accused was sitting in the Motorcar in question at the time of his arrest on the spot, and huge quantity of narcotics, were recovered from the rear doors, as well as trunk of the same---Samples separated from the lot, were sent to the Laboratory and report of Chemical Examiner, was positive---Punishment for the offence, fell within the prohibitory clause of S.497, Cr.P.C.---Section 51 of Control of Narcotic Substances Act, 1997, provided that bail would not be granted to an accused charged with an offence under that Act, or under any other law relating to narcotics, where the offence was punishable with death---When the quantity of narcotics would exceed one Kilogram, case would fall in clause (c) of S.9 of the Control of Narcotic Substances Act, 1997 for which death penalty or imprisonment for life had been provided---Discretion under S.497, Cr.P.C., could also not be exercised with regard to offences punishable with death or imprisonment for life, unless the court at the very outset was satisfied that such a charge appeared to be false and groundless---Larger interest of the public, and State demanded that in case of huge recovery of narcotics, the discretion under S.497, Cr.P.C., should not be exercised liberally---Deeper appreciation of the record at bail stage, could not be gone into, but only it was to be seen as to whether accused was prima facie connected with the commission of the offence or not.

Ali Asghar v. State Cr. Misc. No.1851 of 2014 and Imtiaz v. The State 2014 YLR 892 distinguished.

The State v. Javed Khan 2010 SCMR 1989; Mst. Rafaqat Bibi v. State 2011 MLD 1070 and Ayaz Pathan v. State 2013 YLR 2560 ref.

Noor Alam Khan for Petitioner.

Waqar Ahmed Khan A.A.-G. for the State.

Date of hearing: 16th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 475 #

2016 Y L R 475

[Peshawar]

Before Abdul Latif Khan, J

Syed SHAH MEERAN and another---Petitioners

Versus

PROVINCIAL GOVERNMENT OF KHYBER PAKHTUNKHWA through DOR Hangu and 13 others---Respondents

C.R. No.126-P of 2013, decided on 9th March, 2015.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----Ss. 3 & 4---Specific Relief Act (I of 1877) Ss. 9, 12, 42 & 54---Suit for declaration, permanent injunction, recovery of possession and specific performance of agreement to sell---Unregistered sale deed of state land---Rights of 'Tenant-at-will'---Status---Occupancy right---Delay in institution of suit---Effect---Plaintiff instituted suit for declaration, permanent injunction, recovery of possession and specific performance of agreements as an alternative claiming therein that he had purchased rights of tenant-at-will from defendant regarding state-land by dint of unregistered deed and was entitled to be incorporated as such---Suit was dismissed and appeal preferred against was also dismissed---Validity---Suit property was state land and 'tenant-at-will' had no right to sell the same---Defendant having been recorded as 'tenant-at-will' in Jamabandis had no right to transfer suit property in favour of plaintiff as title and rights of 'tenant-at-will' could not be sold under the law---Unregistered sale deed did not create any title---Marginal witness of sale deed produced by plaintiff showed his ignorance about description and measurement of suit property---Suit was also filed after a delay of more than twenty five years---State being legal owner of the land was not party to agreement and it was not bound by the same---Held, that no declaration could be sought from Trial Court regarding rights as 'tenant-at-will'---Despite contention of plaintiff that he had been in occupancy since long, benefit of ownership extended to 'occupancy tenant' under Ss. 3 & 4 of Khyber Pakhtunkhwa Tenancy Act, 1950 could not be extended to plaintiff for reasons, firstly, it had not been claimed by him and secondly, time of applicability of provisions regarding the extension of benefit as 'occupancy tenant' had elapsed---Right to become owner could be extended only in favour of person who was shown as 'occupancy tenant' and plaintiff had not been recorded as such, therefore, was barred to claim ownership---Revision was dismissed.

Government of N.-W.F.P. through Secretary, Malyat (Revenue) Peshawar v. Shamsher Ali and others PLD 1978 Pesh. 34 ref.

Javed Ali for Petitioners.

Riaz Khan Painda Khel, Addl: A.G. for Respondents.

Date of hearing: 9th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 513 #

2016 Y L R 513

[Peshawar]

Before Muhammad Daud Khan, J

LAL HABIB KHAN---Petitioner

Versus

The STATE---Respondent

J. Cr. Misc. No.64-B of 2013, decided on 31st March, 2014.

Penal Code (XLV of 1860)---

----Ss.324, 331(2), 337-A(v)(vi) & 337-X---Attempt to commit qatl-i-amd, causing Shajjah-i-Ammah liable to arsh, payment of arsh---Accused had sought payment of arsh, equal to one half of diyat, through instalments, and his release on bail, till payment of arsh, as he being destitute, had no source to pay or arrange its payment from inside the jail---Accused had served his substantive sentence of 5 years' R.I., but was still suffering from the rigors of prison by virtue of non-payment of arsh---After serving out substantive sentence of imprisonment, keeping accused in jail, for non-payment of diyat, arsh or daman, owing to his incapacity to pay or he was not in a position to furnish security for his bail, was a punishment and not only incommensurate with the additional compensatory punishment, but also offensive to human dignity---Human-being could not be allowed to rot in jail merely because for no fault of his---Taking into consideration the substantial justice, payment of arsh, through instalments, and release of accused on bail, would not only decrease the agonies of accused, but at the same time would be beneficial for the injured victim to get some thing in hand---In the case of release, accused would be able to earn, and pay to injured victim---Stay of accused in jail, without payment of arsh, would be meaningless for the victim---Petition of accused was allowed to the effect that bail application under S.331(2), P.P.C., was allowed and accused was granted bail for the period of five years subject to furnishing bail bond equivalent to full diyat amount on condition that accused would earn, and arrange for the payment of arsh amount in 60 equal monthly instalments to the injured---In case of failure of accused of any instalment, he would again be taken into custody and put to jail till making of full payment.

Shah Hussain, Salam Shah Mehsood and Syed Hameed ur Rehman for Appellant.

Saif-ur-Rehman Khattak, A.A.-G. for the State.

Abdul Jabbar Khattak and Shabir Hussain for the Complainant.

Date of hearing: 31st March, 2014.

YLR 2016 PESHAWAR HIGH COURT 525 #

2016 Y L R 525

[Peshawar]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

Dr. ZAHOOR UL HAQ---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government and 14 others---Respondents

Writ Petition No.2365-P of 2013, decided on 11th March, 2015, Khyber Pakhtunkhwa Local Government Ordinance (XXVIII of 2013)---

----Ss. 66, 71, Fourth Schedule, Serial Nos.5 & 12---Khyber Pakhtunkhwa Local Government Ordinance (IV of 1979), Ss.79 & 81---Khyber Pakhtunkhwa Building Regulations, 1985, Sched. B---Constitution of Pakistan, Art.199---Constitutional petition---Master plan, violation of---Petitioners were using residential buildings situated in residential areas for commercial purposes, therefore, authorities issued notices to petitioners directing them to stop such illegal use of buildings---Validity---Land specified for a particular purpose could not be used for any other purpose and specially in a circumstance when there was a specific bar even on competent authorities not to change original plan---Petitioners failed to justify the use of residential houses for commercial activities, besides conceding that they had no specific order in such respect by any of the authority, legal or otherwise, showing that they were permitted or authorized even for the time being to use premises under their occupation for any activity other than residence---No vested right was created in favour of petitioners as they were occupying premises for commercial activity other than residence, since long---Authorities had categorically stated that no owner/tenant had been granted permission to convert residential house into commercial enterprise, therefore, High Court could not issue directions to authorities to do what they were not required under the law/rules to do---High Court declined to interfere in the notices issued by authorities to petitioners---Petition was dismissed, in circumstances.

Writ Petition No.1690-P of 2014, decided on 5-6-2014; C.Ps. Nos.1167 to 1173 of 2014, decided on 30th October, 2014 and Dr. Abdur Rauf and others v. Sh. Muhammad Iqbal and others 1991 SCMR 483 rel.

Azhar Yousaf Khan for Appellant.

Sabauddin Khattak and Rab Nawaz Khan, A.A.-G. for Respondents.

Date of hearing: 10th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 548 #

2016 Y L R 548

[Peshawar]

Before Muhammad Ghazanfar Khan, J

RAJAB ALI SHAH and another---Petitioners

Versus

REVENUE OFFICER and others---Respondents

C.R. No.355-D of 2012, decided on 27th August, 2015.

Khyber Pakhtunkhwa Waqf Properties Ordinance (I of 1979)---

----Ss. 7 & 2 (e)----Mussalman Wakf Validating Act (VI of 1913), S. 3---'Wakf property'---Meaning---Chief Administrator (Auqaf) may take over control of Wakf property by notification---Power of Muslims to create certain Wakfs---Management of waqf property by private person---Permissibility---Plaintiffs filed suit for declaration against revenue authorities for substitution of entry in revenue record regarding suit property claiming that suit property, which was Wakf property and an established shrine, was in ownership of their predecessor, whose correct name was to be substituted with the existing name and that they, being his legal heirs, were entitled to inheritance in suit property---Both Trial Court and appellate court dismissed the suit---Issue before the courts was whether suit property was Wakf property or ownership of predecessor of plaintiffs---Validity---Revenue record was against plaintiff's claim---Record produced by plaintiffs also negated their version---Plaintiffs' witness had negated their claim that disputed names of shrine in question were of one and the same person, as the witness had deposed that both personalities were separate---Section 2(e), explanation (1) of Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979 categorically stated that if a property was used from time immemorial for any purpose recognized by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property would be deemed to be waqf property---Section 2 (e), explanation (5) of Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979 expressly provided that property, permanently dedicated for purposes of Mosque, Takia, Khanka, Dargah or other shrine, would be deemed to be 'Waqf property'---Under S. 7 of Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979, Chief Administrator was empowered to take over 'Waqf property' by way of notification---Chief Administrator had never taken any steps to takeover suit property under said provision of law---Defendant had proved that, since his forefathers, being Mutawali, he had been in possession of disputed Dargah---Defendant, in support of his plea, had produced Tax Exemption Certificates, which had been exhibited without any objection by plaintiffs---Defendant had been in possession of suit property as Mutawali from time immemorial and none, including, Auqaf Department, had ever objected to his possession---Judgments and decrees of both courts below were, therefore, correct, being based on proper appreciation of evidence and the law---However, observation of both courts below regarding management of suit property by Auqaf Department was erroneous and based on wrong assumption of law---No bar existed in any law that Waqf property could not be managed by private person---High Court, setting aside impugned judgments and decrees to the extent of decision of courts below regarding taking-over charge of suit property by Auqaf Department, upheld the same to the remaining effect---Revision petition was dismissed accordingly.

Rustam Khan Kundi for Petitioners.

Kamran Hayat Khan Miankhel for Respondents.

Date of hearing: 27th August, 2015.

YLR 2016 PESHAWAR HIGH COURT 561 #

2016 Y L R 561

[Peshawar]

Before Muhammad Daud Khan, J

ASAL JANAN and others---Petitioners

Versus

ZAREEF KHAN and others---Respondents

C.R. No.81-B of 2009, decided on 22nd December, 2014.

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

----S. 42---Suit for declaration---Impugned mutation was got entered by the vendor who had verified the same at the time of its attestation---Affixation of thumb impression on the mutation was not requirement of law at the relevant time---Plaintiffs had got no cause of action to challenge the mutation in question---Plaintiffs were bound to prove their claim through strength of cogent and reliable evidence---No benefit could be given to the plaintiffs of the weakness of the other party---Evidence of plaintiffs was neither inspiring nor competent to prove their claim---No decree could be passed on such like weak type of evidence produced by the plaintiffs---Both the courts below had rightly dismissed the suit by properly appreciating the evidence available on record---No infirmity, mis-reading or non-reading of evidence was pointed out in the impugned judgments---Revision was dismissed in circumstances.

Muhammad Rashid Ahmad v. Muhammad Saddique PLD 2002 SC 293 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

(b) Inheritance---

----Limitation---Law of limitation would apply even to claim inheritance.

Ahmad Din v. Muhammad Shafie and others PLD 1971 SC 762; Mst. Phaphan through L.Rs. and others v. Muhammad Bakhsh and others 2005 SCMR 1278; Luqman and others v. Gul Muhammad 1984 SCMR 63; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Laal Khan through L.Rs. v. Muhammad Yousuf through L.Rs. PLD 2011 SC 567; Muhammad Raza Khan v. Government of N.-W.F.P. and others PLD 1997 SC 393 and Mst. Grana through Legal heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 rel.

Mukhtiar Ali Khan Khattak for Petitioners.

Abdul Waheed Ayaz for Respondents.

Date of hearing: 22nd December, 2014.

YLR 2016 PESHAWAR HIGH COURT 610 #

2016 Y L R 610

[Peshawar]

Before Qalandar Ali Khan, J

MUHAMMAD FAYAZ and others---Petitioners

Versus

The STATE---Respondent

Cr. M. No.371-A of 2015, decided on 20th August, 2015.

Criminal Procedure Code (V of 1898)--

----S. 497----Penal Code (XLV of 1860), Ss. 302, 201, 109 & 34---Bail, grant of---Qatl-i-amd, abetment, causing dis-appearance of evidence of offence, or giving false information to screen offender, common intention---Rule of consistency--- Applicability--- Unseen occurrence---FIR based on mere suspicion---Accused persons were alleged to have killed son of complainant by strangulating and causing head injury---Co-accused had already been released on post arrest bail, and application for cancellation of same had been dismissed---Said co-accused had been charged with the exactly same role which had been attributed to the accused---Alleged occurrence was admittedly unseen---Complainant had not disclosed either his source of information or basis of his satisfaction about involvement of accused in commission of offence---Complainant had charged accused on mere suspicion---Nothing incriminating had been recovered from possession of accused---Accused had not made confessional statement despite remaining in police custody---Pointation of scene of occurrence by accused, which was already known to police, would hardly be valid reason for refusal of bail to accused, when they were even otherwise entitled to concession of bail under rule of consistency---Investigation of case was complete and complete Challan had been submitted---Accused had been behind bar since after their arrest and were no more required for purpose of investigation---Bail application was accepted accordingly.

Syed Yasir Shabbir Shah for Petitioners.

Muhammad Naeem Akhtar A.A.-G. for the State.

Qazi Muhammad Arshad for the Complainant.

Date of hearing: 20th August, 2015.

YLR 2016 PESHAWAR HIGH COURT 643 #

2016 Y L R 643

[Peshawar]

Before Waqar Ahmad Seth and Irshad Qaiser, JJ

GOVERNMENT OF PAKISTAN MINISTRY OF DEFENCE through Secretary---Appellant

Versus

MUHAMMAD JUNAID KHAN and others---Respondents

R.F.A. No.140 of 2011, decided on 18th June, 2015.

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

----Ss. 23, 11 & 4----Acquisition of land---Quantum of compensation---Matters to be considered in determining compensation---Publication of preliminary notification and powers of officers thereon---Enquiry and award by Collector---'Market value' and 'potential value' of land---Principles as to determination---Principle of 'willing buyer and seller'---Applicability---Average yearly value of land not to be taken as conclusive for determining compensation---Compulsory acquisition charges, limit of---Inordinate delay of twenty-two years in passing award after taking possession of acquired land---Effect---Nature and character of land---Effect on quantum of compensation---Referee Court, on basis of reports of Local Commissions as to actual market value of the acquired land, enhanced the amount of compensation along with awarding fifteen percent compulsory acquisition charges and fifteen percent simple interest---Objectors-land owners contended that the market value and potential value of the acquired land was still much higher than the compensation determined by the acquiring authority and enhanced by Referee Court, and that Referee Court could also consider the future prospects of similar lands---Authorities, on the other hand, contended that acquired land, being barren land comprising of ditches and hilly area, had no potential value, and that no evidence was available on record to justify the enhancement by Referee Court---Validity---Department had acquired subject land from twelve villages, and as some of the villages had no yearly average value, the value of the same was assessed on basis of yearly average of adjacent village without taking into consideration their potential value---Collector, while assessing compensation, had not only to consider market value for land in question but also its potential value---Market value, under principle of 'willing buyer and seller', was normally taken up as that existing at date of notification under S.4(1) of Land Acquisition Act, 1894---Potential value was the value to which similar land could be put to any use in future; and in determining quantum of compensation, the exercise might not be restricted to time of the notification, and future value of land might be taken into account---High Court observed that average sales of last one year was not conclusive for determination of market value of land, and while assessing the market value of land, its location and potentiality had to be considered---High Court further observed that market value, at time of issuance of Notification under S.4 of Land Acquisition Act, 1894, was merely one of the modes for ascertaining compensation, and the same was not absolute yardstick for assessing compensation, and that classification or nature of land might be taken as relevant consideration, but the same was not absolute---Land might be 'Banjar' or 'Barani', but its market value might be tremendously high because of its location, neighbourhood, potentiality or other benefits---Assessment of compensation on basis of one year average was not sole criteria in present trend of extraordinary hike in landed property---Objection had been filed by all the land owners for enhancement of compensation on ground their land was situated adjacent to industrial area, where all basic necessities were available, and the Department had not denied the assertions of the objectors---Award in question had been announced after twenty-two years of taking possession of subject land without any valid reasons for the delay---Due to the inordinate and unexplained delay by concerned authorities, not only the market value of the acquired land had increased, but its potential value had also enhanced many folds due to passage of time---Acquired land was situated at valuable places and had potential value; thus, future value of the land was required to have been assessed keeping in view of the time of determining compensation of acquired land---Market value or transaction, which had taken place in the beginning of acquisition process, was meaningless---Collector himself, through letter, in the past, had acknowledged that delay in award would cause damage and complications and suggested assessment of rate of compensation on basis of per year average of existing year; said letter itself justified the claim of land owners---High Court had already observed (during pre-remand proceedings) that neither the Patwari Halqa was fair and faithful in producing evidence (regarding one year average value of acquired land), nor were Referee Court, hearing the references, were discreet and discursive in examining the evidence thus produced---Value of acquired land, in such situation, could not be assessed only on basis of one year average---Factors for evaluating market value mentioned in S.23 of Land Acquisition Act, 1894 did not preclude courts from taking any other special circumstances into consideration, as requirement was always to arrive at reasonable correct value---Three Local Commission reports were in field, which had not been rejected by Referee courts---Once Referee Court had concluded that value of the acquired land had to be ascertained on basis of 'what a willing purchaser would pay to a willing seller', then the Referee Judges was bound to ascertain the actual price of the acquired land by taking into consideration said reports If Local Commissions and the one year average given by different Patwaries---Owners of subject land were entitled to compulsory charges at rate of twenty-five percent instead of fifteen percent---Department, while acquiring the subject land, had neither considered interest of land owners nor had assessed market value of the acquired land in accordance with settled principles under S.23 of Land Acquisition Act, 1894---High Court, on basis of one year average value given by Patwaries, reports of Local Commissions, potential value of location of the acquired land and the delay in passing of Award, further enhanced the rate of compensation along with enhancing compulsory acquisition charges to twenty-five percent and awarding six percent simple interest on the enhanced amount---Appeals filed by the authorities and the acquiring department were dismissed; whereas, appeals along with cross objections filed by the land owners were allowed in circumstance.

Land Acquisition Collector, Abbottabad and others v. Gohar ur Rehman Abbasi 2009 SCMR 771; Malik Aman and others v. Land Acquisition Collector PLD 1988 SC 32; Province of Punjab through Land Acquisition Collector and another v. Begum Aziz 2014 SCMR 75; Province of Sindh through Collector of District Dadu and others v. Ramazan and others PLD 2004 SC 512; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647; Premier Sugar Mills v. Qazi Hayat Ullah PLD 1956 (W.P) Peshawar 67; Land Acquisition Collector Rawalpindi v. Lieutenant General Wajid Ali Khan PLD 1960 (W.P) Lahore 469; Province of W.P v. Salimullah PLD 1966 SC 547; Pakistan v. Reham Dad 1980 CLC 574; Pakistan v. Din Muhammad 1983 CLC 1281; Khata v. Barrage Mukhtiar Kar Thatta PLD 1977 Kar. 203; Din Muhammad v. G.M. Communication PLD 1978 Lah. 1135; Province of Punjab v. Sher Muhammad PLD 1983 Lah. 578; Fazal ur Rahman v. G.M, S.I.D.B. PLD 1986 SC 158; Government of Pakistan v. Fakhar Alam 1985 CLC 2228; Raza Muhammad Abdullah v. Government of Pakistan 1986 MLD 252; Abdul Wahid v. D. Commission, Karachi 1986 MLD 381; PLD 1983 Lah. 1781; 2007 SCMR 974; 1993 SCMR 1700 and Land Acquisition Collector v. Mst. Muqesha Begum 2011 CLC 1488 rel.

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

----S. 11----Compensation---Matters to be considered for determination---Land is acquired in interest of general public at public expenses on basis of sacrifice of individuals, which required to be adequately compensated in extraordinary manner, and compensation should be fixed in the light of criteria of 'willing vendor and needy vendee'.

----S. 5----Land Acquisition Act (I of 1894), S. 54---Condonation of delay---Sufficient ground---Scope---Appeals in proceeding before Court---Extension of period in certain cases---Condonation of delay---Appeals and objection petitions of all parties were time barred---Parties filed applications for condonation of delay on ground that sufficient time had elapsed in the collection of relevant record, as record of all cases of court below had been damaged or misplaced due to natural calamity in the form of floods---Validity---Reasons given for the delay were genuine and unavoidable---Applications for condonation of delay were accepted.

Abdul Sattar Khan, Zia ur Rehman, Nasir Mehmood and Malik Muhammad Rehan Awan, Standing Counsel for Appellant.

Shaukat Ali for Respondents.

Date of hearing: 18th June, 2015.

YLR 2016 PESHAWAR HIGH COURT 685 #

2016 Y L R 685

[Peshawar]

Before Abdul Latif Khan, J

ABDUL MALIK---Petitioner

Versus

Mst. GUL REBAN---Respondent

Civil Revision Petition No.414-P with C.M. 623-P of 2013, decided on 16th February, 2015.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---No contradiction even of minor nature in the evidence of plaintiff was pointed out---Execution of notice of Talb-i-Ishhad stood proved as death certificate of one of the witness had been exhibited without objection on behalf of other party---Notice of Talb-i-Ishhad was prepared and mailed to the vendee in accordance with law---Non-mention of date and place of Talb-i-Ishhad in the plaint was not the requirement of law---Vendee had accepted the receipt of notice of Talb-i-Ishhad---Delivery of notice of Talb-i-Ishhad had been proved---Appellate Court had decided the lis with conscious and application of independent mind---Revision was dismissed in circumstances.

Daud Shah v. Waris Shah and others 2014 SCMR 852 rel.

Nasruminallah for Petitioner.

Aqil Mohmmad Khan for Respondent.

Date of hearing: 16th February, 2015.

YLR 2016 PESHAWAR HIGH COURT 704 #

2016 Y L R 704

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

ABDUL LATEEF---Appellant

Versus

The STATE and another---Respondents

Cr.A. No.30-A of 2012, decided on 27th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, common object---Appreciation of evidence---Inordinate, unexplained delay of 14 hours in lodging FIR, would cast serious doubts about credibility of the report and authenticity of the FIR---Neither, the complainant, nor the two eye-witnesses mentioned in the FIR, received a single injury or even a scratch in the occurrence, despite alleged indiscriminate firing which would give rise to serious doubts about the presence of the complainant and eye-witnesses at the spot---One of accused persons, also sustained axe blow injuries, and lodged his report under Ss.337-F(ii) & 34, P.P.C., against both the eye-witnesses, giving a different version about the occurrence---Crime empties, recovered during spot inspection, and the so-called weapon of offence, were received in the Forensic Science Laboratory for their examination by the Fire Arms Expert, with considerable delay of five days, with no cogent evidence with respect to their safe custody during intervening period, eroding the evidentiary value of the report of Fire Arms Expert---One of accused persons, had been acquitted of the charge under S.13 of Pakistan Arms Ordinance, 1965---Recovery of other weapon of offence i.e. axes, would be of no significance as same were not having blood stains, and their handles were found freshly cut---Contradictions/discrepancies, existed, in the statement of Investigating Officer in the court, with regard to date of arrest of accused persons---On account of said contradictions/discrepancies Trial Court was constrained to pass remarks against Investigating Officer, and approach DIG for action against him---Even then, the benefit of such discrepancies/doubts, was not extended to accused persons---Trial Court acquitted co-accused, who was specifically charged for qatl-i-amd of the deceased along with accused persons---Trial Court, took extra pain to explain that absence of post-mortem report would have no adverse effect on the prosecution case, but lost sight of the fact that in view of substantial delay in lodging the FIR, and fatal discrepancies in the ocular and circumstantial evidence of the prosecution, the absence of post-mortem report, could not be so easily overlooked---Impugned judgment of the Trial Court convicting and sentencing accused persons, was set aside, accused were acquitted, and were set free, in circumstances.

Ghulam Mustafa Khan Swati for Appellant.

Addl. A.G. for the State.

Shad Muhammad Khan for the Complainant.

Date of hearing: 27th May, 2015.

YLR 2016 PESHAWAR HIGH COURT 735 #

2016 Y L R 735

[Peshawar]

Before Muhammad Younis Thaheem, J

MUHAMMAD AMEER alias MERY---Appellant

Versus

QADEEM GUL and 2 others---Respondents

Cr.A. No.77-B of 2013, decided on 14th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(ii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing Badiah, common intention---Appreciation of evidence---Ocular account of injured complainant and other prosecution witness, had fully supported each other in respect of date, time of incident, place of occurrence and the narration of incident---Accused along with absconding co-accused had been charged directly for committing qatl-i-amd of the deceased, causing injuries to the complainant; and ineffective firing on other prosecution witness---Presence of accused persons at the time and place of occurrence, could not be doubted---No allegation existed of any incorrect identification of accused, as parties were known to each other---Accused could not succeed in causing a grave dent in prosecution case, with regard to his innocence, despite lengthy and taxing cross-examination---Sufficient evidence being available against accused, Trial Court had not committed any illegality in believing the ocular account---Complainant and prosecution witness being real brothers of the deceased, it could not be believed that blood relations would direct their fingers at innocent, leaving actual culprits, because such was a rare phenomenon; and in normal circumstances that theory of substitution by blood relations at the cost of real culprit was ruled out---Mere relationship was no ground at all to disbelieve the evidence, unless and until it was established by defence that those witnesses had such enmity or other consideration which could justify the witnesses to be not of truth---Defence counsel failed to pinpoint as to what was the material dent in prosecution case, which was sufficient to bring the principle of benefit of doubt into operation regarding the case of accused---Contradictions, not grave in nature, could be ignored safely, as minor contradictions, do creep in with passage of time---Both witnesses of ocular account, were in confirmatory with each other in respect of incident, its time, narration of incident, and even allegations against accused---Ocular account fully supported the medical evidence; and despite lengthy cross-examination of Medical Officer, could not create any doubt---Motive was proved by the prosecution---Abscondence of accused soon after the occurrence for more than two years was another significant incriminating piece of evidence against him---Accused, against whom case had fully been proved, was aged about 27/28 years; and role of firing had also been attributed to him, along with absconding co-accused, having common intention---No record existed to the effect that as to how many shots caused fatal to deceased as well as injured---Present case was not preplanned murder, rather the occurrence took place at the spur of moment---Mitigating circumstances existed in the case due to which normal penalty of death was not awarded---Sentence of life imprisonment, as awarded to accused by the Trial Court, would be sufficient in the interest of justice, which was in accordance with law and no exception could be taken---Trial Court had rightly appreciated the evidence in its true perspective---No illegality or irregularity was found which could warrant interference in the well reasoned findings of the Trial Court---Revision filed by the complainant for enhancement of sentence having become infructuous was dismissed, in circumstances.

Shamshad Ali v. The State 2011 SCMR 1394; Pervaiz Ahmad alias Peeja v. The State 2010 SCMR 1733; Zahoor Ahmad v. The State 2007 SCMR 1519; Muhammad Ilyas and others v. The State 2011 SCMR 460 and 2008 SCMR 1106 ref.

Noor Zada Khan Ahmad Zai for Appellant.

Saifur Rehman Khattak, Addl. A.-G. for the State

Shaukat Ali Khan for Respondents.

Date of hearing: 14th May, 2015.

YLR 2016 PESHAWAR HIGH COURT 758 #

2016 Y L R 758

[Peshawar]

Before Muhammad Younis Thaheem, J

MASEED KHAN and another---Petitioners

Versus

GUL ZAR AHMED KHATTAK and 19 others---Respondents

Civil Revision Petition No.300-B of 2011, decided on 1st July, 2015.

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

----Ss. 42, 39 & 8----Civil Procedure Code (V of 1908), O. VII, R. 1(e)---Suit for declaration, cancellation and possession---Fraud and collusion, allegations of---Proof---Plaint lacking particulars of fraud---Effect---Plaintiff challenged sale mutation on grounds of fraud and collusion---Trial Court dismissed the suit, but appellate court remanded the same for decision afresh---Validity---Plaintiff had not mentioned all particulars of fraud either in his plaint or in his statement to prove the same---Burden to prove fraud was on party alleging the same---Plaintiff had not produced any witness to prove allegations of fraud except himself---Predecessor of plaintiffs was present at the time when mutation in question was attested---Impugned judgment and decree of appellate court was not based on correct legal footings, and same therefore, required to be interfered with in exercise of revisional jurisdiction under S. 115, C.P.C.---Findings of appellate court that mutation was based on fraud and collusion were result of misreading and non-reading of available evidence---High Court, setting aside judgment and decree of appellate court, restored that of Trial Court---Revision petition was accepted in circumstances.

Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2 Karachi and others 2013 SCMR 1419 rel.

(b) Pleadings----

----Fraud and collusion, allegations of---He who alleges fraud has to expressly mention all particulars of fraud in his plaint stating as to when, how and where fraud has been committed.

Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2 Karachi and others 2013 SCMR 1419 rel.

Aman Ullah Khan Khattak for Petitioners.

Baghdad Khan and Khush Amir Khan, for Respondents.

Date of hearing: 1st July, 2015.

YLR 2016 PESHAWAR HIGH COURT 787 #

2016 Y L R 787

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

QUDRAT SHER and another---Appellants

Versus

Mst. MUMTAZA and another---Respondents

Cr. A. No.348-P of 2014 and C. M. No.148-P of 2015, decided on 20th October, 2015.

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

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Defence evidence---Scope---Both the accused were convicted by Trial Court for committing Qatl-i-amd, one was sentenced to death while the other was awarded imprisonment for life---Validity---Though shopkeepers around venue of occurrence were present at the time of occurrence but none of them was examined---Statement of complainant was not corroborated by any independent impartial witness---None of the persons present at the place of occurrence supported prosecution version---All such deficiencies and infirmities cast serious aspiration on prosecution version---In view of tainted ocular account, mere recovery of weapon of offence on pointing of accused was doubtful in its character and could not be accepted as a corroborative piece of evidence because one tainted piece of evidence could not be used for corroboration of tainted ocular account---Even if defence evidence was not found to be trust worthy, prosecution was still under obligation to prove its case through natural, straightforward, trustworthy and confidence inspiring evidence of unimpeachable character---Prosecution could not earn benefits from weaknesses of defence evidence---Prosecution was bound to prove its case beyond any shadow of doubt and if any reasonable doubt had arisen from prosecution case, which pricked the judicial mind, benefit of the same was to be extended to accused not as a matter of grace or concession but as a matter of right---Existence of so many doubts in prosecution case were not needed, rather single reasonable doubt arising from it could crumble the whole edifice of prosecution case---High Court set aside the conviction and sentence awarded to accused persons by Trial Court and they were acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Ashraf v. The State 2012 SCMR 419; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Rafique and another v. The State and others 1994 SCMR 1179; Qalab Ali through L.Rs. and others v. SIPAHIA and others 2005 SCMR 1857; Rahab v. Muhammad Ismail and 2 others 2001 SCMR 1745; Rahab v. Muhammad Ismail and 2 others 2002 SCMR 233 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.

(b) Criminal trial---

----Motive---Principle---Prosecution is not required to establish motive but once the same is set up it is bounden duty of prosecution to substantiate the same which prompted assailants to commit such a callous act---If prosecution fails to prove motive, it would adversely affect the veracity of prosecution version.

Noor Muhammad v. The State and another 2010 SCMR 97 rel.

Sahibzada Asadullah for Appellant.

Rab Nawaz Khan A.A.-G. and Muhammad Ismail Mohmand for the State.

Date of hearing: 20th October, 2015.

YLR 2016 PESHAWAR HIGH COURT 811 #

2016 Y L R 811

[Peshawar ]

Before Muhammad Younis Thaheem, J

FEROZ KHAN---Petitioner

Versus

Mst. MALIK ZARO---Respondent

Civil Revision No.3-B of 2012, decided on 18th August, 2015.

(a) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----S. 13----Qanun-e-Shahadat (10 of 1984), Arts. 85 & 92---Talbs, performance of---Proof---Date of notice of Talb-e-Ishhad not mentioned in plaint---Effect---Plaintiff filed suit for possession through pre-emption which was dismissed by Trial Court; whereas, appellate court decreed the same---Validity---Plaintiff although had mentioned details of date, time and place of performance of Talb-e-Muwathibat in her plaint, but she had not disclosed date of notice of Talb-e-Ishhad---Plaintiff, while deposing, had not disclosed date, year and place of performance of Talb-e-Muwathibat and date of sending notice of Talb-e-Ishhad---Plaintiff witnesses, including the informer, had also failed to mention date of performance of Talb-e-Muwathibat and date of notice of Talb-e-Ishhad in their statements---Delivery clerk, who appeared as plaintiff witness to prove delivery of notice of Talb-e-Ishhad, had deposed that when he visited spot for delivery of envelop, he was told that defendant-vendee had left for Japan, so original envelop along with Acknowledgement Due was returned to plaintiff---Defendant-vendee at relevant date and time was out of country as per record produced during trial without any objection as to its admissibility or otherwise---Plaintiff and her witnesses alleged that defendant-vendee had refused to accept plaintiff's claim; whereas defendant-vendee was not present in the country at that time and date---Plaintiff and her witnesses were, therefore, not truthful---Plaintiff's assertions as to performance of Talb-e-Muwathibat was made up story---Two mutations had been attested and plaintiff had made Talb-e-Muwathibat regarding both mutations---Plaintiff had not mentioned in each suit as to for which of said two sale mutations she had made Talb-e-Muwathibat---Plaintiff was also legally bound to prove performance of Talbs through cogent and trustworthy evidence---Plaintiff had failed to prove performance of Talb-e-Muwathibat and Talb-e-Ishhad in accordance with S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Appellate court had not reappraised evidence available on file in its true perspective---Impugned judgment and decree of appellate court were result of misreading and non-reading of evidence---High Court maintained judgment and decree of Trial Court and set aside that of appellate court---Revision petition was allowed in circumstance.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. PLD 2007 SC 302; Dilbar Khan v. Muhammad Ashraf PLD 2013 SC 171 and Ahmad Hassan v. Muhammad Aslm 2007 SCMR 962 rel.

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

----Arts. 85 & 92---Public document---Presumption as to genuineness of any document kept under any law---Pakistan passport admitted in evidence without any objection--- Presumption--- Pakistan passport is public document and presumption of truth is attached to it, and same can be believed if produced without any objection.

----S. 13----Right of pre-emption---Essentials---For successful exercise of right of pre-emption, performance of Talb-e-Muwathibat, Talb-e-Ishhad and then (existence of) superior right of pre-emption, in their respective chronological order is essential---Any deficiency in said legal requirements will render pre-emption suit liable to outright dismissal.

(d) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----S. 13----Performance of Talbs---Essential particulars to be mentioned in plaint---Principles---All details, with full particulars that were name of informer, date, time and place of performance of Talb-e-Muwathibat as well as date of Talb-e-Ishhad are mandatory requirements to be mentioned in plaint, so that plaintiff may prove the same during trial---Reasons for said requirements were that plaintiff may not improve her case during trial or may not make any departure from pleadings---Law required that plaintiff should come forward with all details about performance of Talbs in plaint, which if missing will be fatal to very foundation of case.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. PLD 2007 SC 302 and Dilbar Khan v. Muhammad Ashraf PLD 2013 SC 171 rel.

H. Riaz Muhammad Khan and Bashir-ur-Rehman Burki for Petitioner.

H.M. Hanif for Respondent.

Date of hearing: 18th August, 2015.

YLR 2016 PESHAWAR HIGH COURT 828 #

2016 Y L R 828

[Peshawar]

Before Qaiser Rashid Khan, J

INAM ULLAH KHAN---Petitioner

Versus

The STATE---Respondent

Cr.M. (BA) No.611-P of 2015, decided on 14th April, 2015.

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

----S. 497(2)----Pakistan Arms Ordinance (XX of 1965), Ss. 15-AA & 16-AA---Bail, refusal of---Principles---Possession of unlicensed arms---Large quantity of arms and ammunition was alleged to have been recovered from accused---Contention of accused was that alleged charges did not attract prohibitory clause of S. 497, Cr.P.C.---Validity---High Court observed that grant of bail in cases not falling within domain of prohibition clause of proviso to S. 497, Cr.P.C. was not a rule of universal application and each case had to be seen through its own facts and circumstances---Accused could not offer any proper explanation, nor produced valid permit for carrying huge quantity of arms of various bores along with thousands of cartridges recovered from him---Accused was prima facie linked with commission of alleged offence---Bail petition was dismissed accordingly.

(b) Administration of justice---

----Each case has to be decided on basis of its own set of facts and circumstances.

Shameel Ahmad v. The State 2009 SCMR 174 rel.

Matiullah Khan Marwat for Petitioner.

Raheem Shah, A.A.-G. for the State.

Date of hearing: 14th April, 2015.

YLR 2016 PESHAWAR HIGH COURT 851 #

2016 Y L R 851

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

The STATE through Advocate General, N.-W.F.P.---Appellant

Versus

KHALIL---Respondent

Cr.A. No.182-P of 2015, decided on 22nd April, 2015.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, enhancement of, petition for---Three kilograms heroin, was recovered from the possession of accused---When three prosecution witnesses had been examined, accused recorded his statement wherein he pleaded guilty to the charge, and left himself at the mercy of the Trial Court requesting for taking lenient view against him---Trial Court, after recording the plea of guilt of accused, while taking lenient view, convicted and sentenced accused under S.9 of Control of Narcotic Substances Act, 1997 to undergo imprisonment for ten months; and to pay a fine of Rs.5000, only with benefit of S.382-B, Cr.P.C.---According to subsection (c) of S.9 of the Control of Narcotic Substances Act, 1997, if the quantity of narcotic drug, would exceed one kilogram, then accused could be awarded sentence of death or imprisonment for life; or imprisonment for term which could extend to fourteen years and would also be liable to fine, which could be up to one million rupees---Said sentence had been squarely left at the discretion of the court, but main point was the judicious exercise of discretion in quantum of sentence---Once, a person, involved in a criminal case, would plead guilty, and placed himself at the mercy of the court, in that eventuality he would become a friend of the court, and the court always took lenient view in respect of his sentence---Extent of such leniency in awarding sentence considering accused as friend of the court, should not be such so as to frustrate the ends of justice and affect the society---Such leniency should be based on judicious scale, keeping in view over all impacts of the crime; because any extraordinary leniency towards accused in the offences, particularly, affecting the society at large could increase the ratio of crimes tremendously---In the present case, huge quantity of 3 kilograms heroin had been recovered---Heroin had not been separated from other narcotics, in Control of Narcotic Substances Act, 1997, keeping in view its severe impact on human body, as it caused many short term and long term affects on the human body---Addicts of heroin lying in streets and footpaths adding more to the agonies of their poor parents, who were already grinding in poverty---Impact of heroin, was more serious as compared to other narcotics---Offenders dealing in the despicable business of heroin, who were enemies of the entire nation, were required to be dealt with an iron hand---Trial Court, while awarding less sentence to accused taking lenient view, had not exercised its discretion judiciously, keeping in view the perilous effect of heroin over the society, and had extended undue leniency to accused---If exercise of such extraordinary leniency shown by the Trial Court was allowed to prevail, it would increase the smuggling of narcotics; and every accused after arrest would try to become friend of the court; and after getting leniency, would again indulge in the shameful business, which would frustrate the ends of justice and shatter the future of the nation---Sentence awarded to accused by the Trial Court, was enhanced from ten months' S.I. to 20 months' R.I., and fine from Rs.5000 to 10,000---Benefit of S. 382-B, Cr.P.C. was also extended to accused.

The State through Regional Director ANF v. Ikramullah and others PLD 2013 Pesh. 35 ref.

Mian Arshad Jan, A.A.-G. for Appellant.

Waqas Ahmad Khan Chamkani for Respondent.

Date of hearing: 26th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 865 #

2016 Y L R 865

[Peshawar]

Before Qaiser Rashid Khan, J

NAIK AMAL---Petitioner

Versus

The STATE and another---Respondents

Bail Application No.1189-P of 2015, decided on 13th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)----Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Bail, grant of---Principles---Further inquiry---False implication---Recovery of crime empties, absence of---Injuries on non-vital parts of body---Effect---Accused were alleged to have caused injuries on body of complainant through firing---Despite indiscriminate firing by five persons, not a single crime empty could be retrieved from spot---Complainant had been hit on non-vital parts of his body, which raised question as to whether or not accused had intention to kill complainant and his brother---Probability of false implication could not be ruled out as five accused who had been charged with alleged offence were all brothers---Case of accused was one of further inquiry---Bail petition was accepted accordingly.

Hussain Ali and Gul Daraz Khan for Petitioner.

Muhammad Riaz Khan Paindakhel, A.A.-G. for the State.

Syed Abdul Fayaz for the Complainant.

Date of hearing: 13th July, 2015.

YLR 2016 PESHAWAR HIGH COURT 875 #

2016 Y L R 875

[Peshawar]

Before Muhammad Ghazanfar Khan, J

S. REHMAT KHAN and others---Petitioners

Versus

MALIK ASHIQ---Respondent

C.R. No.15-D of 2014, decided on 8th September, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Talbs, performance of---Proof---Trial Court decreed the suit, and appellate court, partially accepted appeal to the extent of payment of taxes paid by defendant, maintained judgment and decree for the rest---Validity---Both courts below concurrently found that plaintiff had successfully proved performance of Talb-e-Muwathibat and Talb-e-Ishhad in accordance with S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Courts below, however, failed to observe that notice of Talb-e-Ishhad had been scribed on printed form and blank places thereof had been filled up with particulars of present case, which was against the mandate of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Khyber Pakhtunkhwa Pre-emption Act, 1987 provided special procedure for making of Talb-e-Muwathibat and Talb-e-Ishhad---Talb-e-Ishhad was to be made by sending notice in writing attested by two truthful witnesses declaring intention to exercise right of pre-emption---Said notice was cyclostyled and not in writing; therefore, the same could not be considered as confirmation of Talb-e-Muwathibat---Plaintiff had not been able to prove performance of Talb-e-Ishhad in accord with law---Trial Court had wrongly decreed the suit---Judgments and decrees of both courts below were result of misreading and non-reading of evidence and misinterpretation of law on the subject, and the same were, therefore, set aside---Revision petition was allowed in circumstances.

2014 MLD 114 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), S. 75 (b) & O. XXVI, R. 9----Suit for pre-emption---Appointment of local commission---Not permissible prior to proving demands of pre-emption---Defendant contended that Trial Court had not disposed of application for appointment of local commission, which was necessary for determination of improvements made in pre-empted property---Validity---Prior to proving improvements on suit property, that whether the same had been made prior to issuance of notice of Talb-e-Ishhad or afterwards, defendants had to prove factum as to performance of Talbs, which had not been proved---Appointment of local commission, being unnecessary, would not serve any useful purpose.

Salah-ud-Din Khan Gandapur for Appellant.

Muhammad Wahid Anjum for Respondent.

Date of hearing: 8th September, 2015.

YLR 2016 PESHAWAR HIGH COURT 905 #

2016 Y L R 905

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

MUSTAQEEM---Appellant

Versus

NAWAB KHAN and another---Respondents

Crl. Appeal No.584-P with Murder Reference No.16-P of 2014, decided on 6th October, 2015.

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

----Ss. 302, 324 & 34----Qatl-i-amd; attempt to commit qatl-i-amd; common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon, absence of---Delay in dispatching crime empties to Laboratory---Abscondence alone not sufficient to award conviction---Eye-witness held to be chance witness/ suspect evidence---Motive not proved---Corroborative evidence, admissibility of---Principles---Accused, along with two others, were alleged to have attacked the complainant, while he was on his way with his son and grandson, with firearms and killed the son and injured the others with the butts of firearms over a money dispute---Trial Court convicted accused under Ss. 302(b) & 324, P.P.C. and sentenced him to death and imprisonment for seven years along with payment of fine and compensation; while the two co-accused were acquitted---Complainant and the grandson, being closer to the accused in their front, were not hit---Prosecution witnesses deposed that they had been fired at from a distance of four paces by the accused, but none of them had sustained any firearm injury; whereas, the deceased, who was at a distance of fourteen paces, got hit---Deceased and the accused had been shown in one and the same level at the crime spot, but according to the postmortem report, the entry wound on the person of the deceased was at higher level than its exit wound, which meant that at time of firing, the accused was on higher position and the deceased on down level---Medical evidence had, therefore, negated the ocular account---Escape of the prosecution witnesses and their being let off by the accused, who were armed with automatic weapons ejecting number of shots in seconds, created serious doubts about the mode and manner of the incident as alleged by the complainant---Complainant, in his initial report, had not stated as to how and by what means the deceased had been shifted to the hospital, and prosecution witnesses had given contradictory modes as to the shifting---Eye-witness, who was son-in-law of the complainant and allegedly a dispenser, alleged that, at time of occurrence, he came out of his clinic and witnessed the whole incident; whereas, no clinic of the doctor existed in the surrounding of the crime venue in the site plan---Doctor had never been produced to support said version---Eye-witness ordinarily resided at a distance of 4/5 kilometer from the crime venue, thus, the same fell within the definition of a chance witness, and the evidence of such witness, therefore, could not be accepted without a pinch of salt---Said eye-witness also deposed that the complainant had been beaten by the accused for ten minutes before the firing started, but he did not try to separate/rescue the complainant from the accused---Said conduct of the eye-witness, as of a silent spectator, was unnatural and beyond understanding---Said eye-witness had thus failed to establish his presence at the spot at the time of incident, and the same was, therefore, procured witness---Complainant alleged an altercation over a money dispute to be the motive behind the incident, but neither any report regarding the altercation had been lodged, nor any details as to place of the altercation had been mentioned---Motive was of no help to the prosecution for lack of proof and the meagre amount---Ten empties were allegedly recovered from the spot; whereas, in case of firing with three Kalashnikovs, much more damage should have been caused to the deceased and the eye-witnesses and much more empties should have been recovered---Recovered empties had neither been exhibited during trial, nor had the same been attributed to the accused---In absence of recovery of the crime weapon from the accused and comparison of the crime empties with the same by the Forensic Science Laboratory, the empties could not be attributed to the accused---Recovered empties had been sent to the Forensic Science Laboratory with delay of eleven days, without any explanation as to where those empties remained for that long period and whether the same had been in the safe hands till their dispatch to the Laboratory---Positive Forensic Science Report, in such circumstances, would loose its authenticity---Such like recoveries were always considered as corroborative pieces of evidence, which could not be a substitute of direct evidence---Direct evidence having been disbelieved, corroborative pieces of evidence would not be sufficient to bring home the guilt of the accused---Abscondence by itself would be of no avail to the prosecution in absence of any other evidence against the absconding accused---Trial Court had failed to appreciate the available evidence in its true perspective and thus had reached an erroneous conclusion by holding the accused guilty---Prosecution evidence was full of doubts, the benefit of which was to be extended to the accused, not as a matter of grace or concession, but as of right---High Court, extending benefit of doubt, acquitted the accused---Appeal was allowed accordingly.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Pathan v. The State 2015 SCMR 315; Riaz Ahmed's case 2010 SCMR 846; Ijaz Ahmed's case 1997 SCMR 1279; Asadullah's case PLD 1971 SC 541; Saifullah v. The State 1985 SCMR 410; Riaz Masih v. The State 1995 SCMR 1730; Siraj v. Crown PLD 1956 Federal Court 123; Farman Ali and others' case PLD 1980 SC 201; Muhammad v. Pesham Khan 1986 SCMR 823; Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Ikram v. The State 2009 SCMR 230 rel.

(b) Criminal trial---

----Abscondence---- Principles--- Mere abscondence would not be sufficient to maintain the conviction.

Farman Ali and others' case PLD 1980 SC 201 and Muhammad v. Peshan Khan 1986 SCMR 823 ref.

----Medical evidence---Serologist report/ autopsy report----Scope---Serologist Report qua bloodstained articles as well as autopsy report of the deceased, can only prove the unnatural death of the deceased with firearm on a particular place, but not by whom.

(d) Criminal trial---

----Evidence--- Corroboration--- Admissi-bility---Corroborative pieces of evidence are always taken into consideration along with direct evidence.

(e) Criminal trial---

----Benefit of doubt----Principles---One substantial doubt would be enough for acquittal of the accused---Rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of accused---Said rule was based on the maxim 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', which occupied a pivotal place in the Islamic Law and the same is enforced strictly in view of the saying of the Holy Prophet (PBUH).

Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Ikram v. The State 2009 SCMR 230 rel.

(f) Criminal trial---

----Witness----Related/interested witnesses, evidence of----Admissibility---Conviction can be recorded on the testimony of eye-witnesses having close relations with the deceased as well as on the testimony of a solitary witness, provided the same is trustworthy, confidence inspiring and corroborated by strong circumstances.

(g) Criminal trial---

----Witness--- Chance witness----Admissibility of testimony---Scope---Chance witness, in legal parlance, is a witness, who claims his presence on the spot at the relevant time; although, his presence on the spot is a sheer chance, as in the ordinary course of business, place of residence and normal course of events, he is not supposed to present on the spot, but at the place where he resides, carries on business or runs day to day affairs---Testimony of the chance witness, in such context, is ordinarily not accepted, unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time, as in normal course, the presumption under the law would be that such witness was absent from the crime spot.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 ref.

(h) Criminal trial---

----Witness--- Chance witness----Admissibility of testimony---Testimony of chance witness can be relied upon in rare case, provided some convincing explanation appealing to a prudent mind of his presence on the crime venue when the occurrence took place, is put forth; otherwise, his/her testimony would fall within the category of suspect evidence and the same cannot be accepted without a pinch of salt.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 ref.

Muhammad Ayaz Khan for Appellant.

Naveed Maqsood Sethi for Respondents.

Syed Sikandar Hayat Shah, A.A.-G. for the State.

Date of hearing: 6th October, 2015.

YLR 2016 PESHAWAR HIGH COURT 965 #

2016 Y L R 965

[Peshawar]

Before Qalandar Ali Khan, J

Messrs TELEPHONE INDUSTRIES OF PAKISTAN and another---Petitioners

Versus

GHULAM ZAREENA and others---Respondents

Civil Revision No.233-A of 2010, decided on 9th March, 2015.

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

----O.VII, R.11(d)---Land Acquisition Act (I of 1894), Ss. 4 & 11---Suit for declaration---Maintainability---Limitation---Rejection of plaint---Scope---Suit barred under Land Acquisition Act, 1894---Enquiry and award by Collector under Land Acquisition Act, 1894---Status---Plaintiff filed suit for declaration claiming ownership and possession of suit property challenging award under which defendant had acquired the suit property---Trial Court dismissed the suit under O.VII, R. 11(d), C.P.C. on ground that the same was barred under Land Acquisition Act, 1894--Appellate court setting aside judgment and decree of Trial Court remanded the case for decision afresh---Validity---Award under Land Acquisition Act, 1894 had acquired status of judgment and decree---Trial Court could examine other record while deciding application under O. VII, R. 11, C.P.C.---Suit was also barred by limitation as the same had been filed after twenty-five years of transfer of suit property in name of defendant through mutation---Appellate court's order of remand directing Trial Court to record evidence was not sustainable---High Court, setting aside impugned order of appellate court, maintained judgment and decree of Trial Court---Revision petition was accepted in circumstance.

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

----Ss. 4 & 11----Enquiry and award by Collector---Status---Award under Land Acquisition Act, 1894 had acquired status of judgment and decree.

PLD 1993 Kar. 578; 2010 CLC 610; PLD 2012 SC 247; 1994 MLD 2007; 1994 MLD 2345; 2000 CLC 1633 and 2002 SCMR 338 rel.

Abdur Rehman Qadir for Petitioners.

Shah Sultan Tahirkheli for Respondents.

Date of hearing: 9th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 974 #

2016 Y L R 974

[Peshawar]

Before Assadullah Khan Chamkani, J

Mst. KAINAT and 2 others---Petitioners

Versus

The STATE---Respondent

Cr. Misc. B.A. No.2260-P of 2015, decided on 7th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.371-A & 371-B---Selling and buying person for purpose of prostitution---Bail, grant of---Further inquiry---No written complaint from the public or statement of any individual of the locality, or the surrounding houses to support the version of the complainant was available on record---No medical evidence was available to justify the allegation of sexual intercourse against (female) accused---No evidence had been collected in support of allegation of buying and selling persons for the purpose of prostitution by (male) accused persons---Application of Ss.371-A & 371-B, P.P.C., in circumstances, was a matter which required further probe, because provisions of said sections, would only apply to person who sell or purchase any person with the intent that such person would be used for the purpose of prostitution or illicit intercourse---No such evidence had been collected---In absence of any such warrant and association of the notable of the area, alleged raid could not be termed any better than an intrusion of the privacy of the citizens; which was an act prohibited by the Constitution, law and the Holy Quran---Legislature in their wisdom, having regard to the existing norms of the society, were conscious of the fact that, if cases under such offences were permitted to be registered on spy information; or on the complaints lodged by anonymous person, such practice would have encouraged reports involving innocent men or women for ill designs---Accused persons had no previous history in such like offences---Case of accused persons being arguable for the purpose of bail, they were admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Mujahid Ali Khan A.A.-G. for Respondent.

Date of hearing: 7th January, 2016.

YLR 2016 PESHAWAR HIGH COURT 1000 #

2016 Y L R 1000

[Peshawar]

Before Yahya Afridi and Qaiser Rashid Khan, JJ

ABDUL KHALIQ---Petitioner

Versus

The STATE---Respondent

Cr.A. No.654-P of 2014, decided on 22nd October, 2015.

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

----Ss. 8, 32 & 33---Trafficking of narcotic drugs---Confiscation of vehicle---Release of vehicle---Locus standi---Appellant claimed to be owner of vehicle in question which was used in commission of offence and Trial Court ordered for its confiscation---Validity---Appellant was stranger to proceedings before Trial Court as the vehicle was not registered in his name and he was merely brandishing some bargain receipt in his hand on the basis of which he was lying claim over the vehicle---Plea of want of knowledge about trial proceedings in respect of vehicle in question was only available to registered owner of vehicle who did not surfaced till then---Appellant did not challenge confiscation order before High Court till the acquittal of accused and thereafter thought it fit to express his grievance against confiscation order by filing his time-barred appeal---High Court declined to interfere in confiscation order passed by Trial Court---Appeal was dismissed in circumstances.

Ms. Farhana Marwat for Appellant.

Waqar Ahmad Khan A.A.-G. for the State.

Date of hearing: 22nd October, 2015.

YLR 2016 PESHAWAR HIGH COURT 1007 #

2016 Y L R 1007

[Peshawar]

Before Haider Ali Khan, J

MUHAMMAD IRSHAD and another---Petitioners

Versus

The STATE and another---Respondents

Cr. Misc (B.A.) No.390-M of 2015, decided on 26th October, 2015.

Criminal Procedure Code (V of 1898)---

----Ss.497 & 345---Penal Code (XLV of 1860), Ss. 380, 411 & 457---Offences Against Property (Enforcement of Hudood) Ordinance (VII of 1979), S.14---Theft, recovery of stolen articles, trespass and Harrabah---Bail, refusal of---Conditional order---Accused sought bail on the ground that compromise had arrived at between the parties---Validity---Court could not turn its ears deaf on the interests of society and granting or refusing bail by Courts must reflect perfect balance between conflicting interests viz, sanctity of individual's liberty and interest of society---Accused was not entitled to concession of bail and dismissed the same---High Court directed the Trial Court to conclude trial within a period of four months and if the Trial Court failed to conclude trial within the stipulated period, in that eventuality petitioners would be deemed to have been released on bail---Petition was disposed of accordingly.

2014 PCr.LJ 178 rel.

Abdul Halim Naimatkhel for Petitioners.

Faheem Naeem State Counsel for Respondents.

Date of hearing: 26th October, 2015.

YLR 2016 PESHAWAR HIGH COURT 1013 #

2016 Y L R 1013

[Peshawar]

Before Assadullah Khan Chamkani, Qaiser Rashid Khan and Nisar Hussain Khan, JJ

NABI GUL---Appellant

Versus

The STATE and another---Respondents

Cr. A. No.646-P of 2012, decided on 11th June, 2015.

Per Assadullah Khan Chamkani, J---[Minority view]

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

----Ss. 302(b) & 203---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, giving false information respecting an offence committed, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Trial Court, while taking into consideration the initial report of the complainant, in contrast with medical evidence; recovery of 2 crime empties of 30 bore from the crime venue and recovery of 30 bore pistol on the pointation of accused; coupled with positive Forensic Science Laboratory's report, as circumstantial piece of evidence, recorded conviction and sentence of accused---Deceased sustained three entry wounds on back of her chest, with two exits on the upper and medial quadrant of left breast---In view of the location of exit wounds on the person of the deceased, appellant/accused, should have also sustained injury with the bullets causing exits in the body of the deceased, as she was sitting behind him on a motorbike, but accused had not received a single scrach, muchless any firearm injury---Medical evidence, in circumstances, had negated the version of accused---Last worn blood stained clothes of the deceased, having cut marks, and blackening, also negated the version of accused; and had shown that the deceased, was not fired at from a distance as alleged by accused in the site plan; rather from a very close range---Accused in such eventualities, was supposed to furnish a justifiable explanation about the murder of the deceased, because the deceased was in his company at the time of incident, but no explanation, muchless tangible had been furnished by him---Such circumstances, were against the accused---Accused disclosed about use of 30 bore pistol in commission of offence, and its delivery to his friend---If pistol, was handed over by accused to his friend, why said friend did not disclose about its availability with him in his statement recorded by Investigating Officer at first instance; why said friend of accused, was not made as a witness to said recovery---No explanation had been furnished by the prosecution in respect of all those circumstances which had created serious doubts about the mode and manner of the recovery as alleged by the Investigating Officer---Empties had not been sent to Forensic Science Laboratory on the same day of its recovery for examination---Pistol in question had not been recovered on the pointation of accused, rather same had been planted against him, just to make a strong circumstance in favour of the prosecution case---Exclusion of said piece of circumstantial evidence, broke the chain of circumstances---Stance of father of the deceased about the motive, that accused had illicit relation with a girl, as a result, he used to quarrel with his deceased wife, and had threatened her of dire consequences, did not appeal to mind---Had it been so, father of the deceased, on the very first day of the incident would have advanced that motive before the Investigating Officer, but he did not do so---Peculiar facts and circumstances of the case, suggested that accused had cordial relations with the deceased wife; he had taken her on motorcycle to city for the purpose of her checkup---Accused after the incident, did not abscond, rather took the dead body to the hospital and reported the incident, and participated in her funeral ceremony---Conduct of accused after the incident, was a circumstance which went in his favour---Deceased had minor daughter, who had already lost her mother; and if the conviction of accused, recorded by the Trial Court on shaky and scanty circumstantial evidence, was maintained she would also be deprived of her father---Prosecution had failed to bring home the guilt of accused through cogent and confidence inspiring ocular or circumstantial evidence, beyond shadow of reasonable doubt---One substantial doubt, would be enough for acquittal of accused---Trial Court had not evaluated the evidence in its true pers-pective, and had reached to an erroneous conclusion by holding accused guilty of the offence---Conviction and sentence awarded to accused by the Trial Court, were set aside, and he was acquitted of the charge levelled against him and he was set at liberty, in circumstances.

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

----Ss. 302(b) & 203---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, giving false information respecting an offence committed, possessing un-licensed arms---Circumstantial evidence---Scope and appreciation of---Conviction, could be recorded on the basis of circumstantial evidence; and even death sentence could be awarded to an accused on circumstantial evidence, provided the circumstances constituted a continuous chain without missing any link, combined effect of which would establish the guilt of accused beyond any shadow of doubt---Fundamental principle of universal application in cases dependant on circumstantial evidence, was that in order to justify inference of guilt of accused, incriminating fact must be incompatible with innocence of accused or guilt of any other person; and incapable of explanation for any other reason, hypothesis than that of his guilt---Imperative for the prosecution, in such cases, to prove the alleged circumstances as of conclusive nature to exclude every hypothesis, but the one proposed to be proved---Circumstances from which an inference adverse to accused was sought to be drawn, must be proved beyond all reasonable doubts and must be clearly connected with the fact to be inferred therefrom---In order to justify an inference of guilt, circumstances from which such an inference was sought to be drawn, must be incompatible with the innocence of accused; and incompatible of explanation upon anyother reasonable hypothesis than that of his guilt---All the links of circumstances, should be so interconnected with each other as to form a continuous chain, one end of which should touch the dead body, and the other end should touch the neck of accused---One single link missing in the chain, would entitle accused to benefit of doubt---If the evidence, would not establish a strong chain of circumstances, which could not be explained on any hypothesis other than the guilt of accused, conviction in such eventualities, would not be legal, because circumstantial evidence, should point inevitably to the conclusion, that accused and accused only, was the perpetratory of the offence; and such evidence should be incompatible with innocence of accused, which was lacking in the present case.

----Benefit of doubt---Scope and rule of---Rule of benefit of doubt was essentially a rule of prudence, which could not be ignored while dispensing justice in accordance with law---Conviction must be based on unimpeachable evidence; and certainty of guilt, and any doubt arising in the prosecution case, must be resolved in favour of accused---Said rule was based on the maxim "it was better ten guilty persons be acquitted, rather than one innocent person be convicted", which occupied a pivotal place in the Islamic Law, and was enforced strictly in view of the saying of the Holy Prophet (PBUH) that "mistake of Qazi (Judge) in releasing a criminal, was better than his mistake in punishing an innocent".

Muhammad Hussain v. The State 2011 SCMR 1127 and Muhammad Shah v. The State 2010 SCMR 1009 ref.

Per Qaiser Rashid Khan, J.---[Majority view]

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

----Ss. 302(b) & 203---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, giving false information respecting an offence committed, possessing unlicensed arms---Appreciation of evidence---.30 bore pistol along with two crime empties recovered from the spot, were sent to the Forensic Science Laboratory, which confirmed that the crime empties were fired from the same very pistol---Accused, though denied the recovery of the pistol at his pointation, but he appeared to be on a weak wicket in that regard---Had the recovery been effected from house of accused, then he could have pleaded that the same was planted against him, but in the present case, it was recovered on his pointation from the house of his friend---Recovery of the crime weapon, as well as its ownership, stood abundantly proved against accused beyond any shadow of doubt---No ocular account was pointing towards the guilt of accused---Circumstances and circumstantial evidence, had to be weighed and judged, while assessing the guilt or otherwise of an accused in such situation---According to FIR, the deceased lady while riding the motorcycle with accused/her husband and travelling, was hit with the fire shots of the assailant and died on the spot---Natural consequence of such event, could be that the deceased must have fallen down from the motorcycle---Postmortem report did not show any bruises or injury caused to the deceased on account of falling down from a moving motorbike---According to site plan prepared at the instance of accused, accused could have been the first target of the assailant, rather than the deceased lady---Injuries caused "at the back of the chest" could not be caused by unknown assailant---As per postmortem report, three firearm injuries had two exit wounds as well---Where the deceased lady was close to her husband/accused, both riding a motorcycle, then certainty on the exit of the bullets from the body of the deceased lady, accused should have received serious injuries, but he came out unscathed during such firing---Since the story forwarded by accused, did not appeal to prudent mind, accusing finger certainly would turn towards accused---Fact that accused escaped unhurt from firing when he was also in the firing range as per site plan, coupled with the fact that nothing was snatched from accused, nor he had shown any resistance to justify the firing by the unknown accused was surprising---Site plan revealed that the medical report, recovery of two crime empties from the spot, the recovery of the crime weapon at the pointation of accused, the positive Forensic Science Laboratory report regarding crime empties, and the crime weapon, certainly pointed towards the guilt of accused---After the commission of the offence, accused craftily tried to build up a story---All circumstances were so closely interlinked, interconnected and intertwined that they form a continuous chain, with its one end touching the dead body, and the other the neck of accused---Villainous role and act of accused for killing his wife was cold blooded, stood proved beyond any shadow of doubt---Conviction and sentence awarded to accused by the Trial Court, were maintained, in circumstances.

Per Nisar Hussain Khan, J --- agreeing with Qaiser Rashid Khan, J [Majority view]

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

----Ss. 302(b) & 203---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, giving false information regarding an offence committed, possessing un-licensed arms---Appreciation of evidence---Case hinged on the circumstantial evidence, because there was no eye-witness account against accused---Accused himself was witness of the occurrence, who reported the matter initially against unknown assailant, but during investigation, he was relegated as an accused and was arrested---Different pieces of circumstantial evidence, which go against accused were; his company with the deceased at the time of murder; Postmortem report, which was incompatible with the site of alleged assailant, inter se distance, and recovery of crime weapon on his pointation, followed by positive Forensic Science Laboratory report; an infant female baby in the lap of the deceased, who remained unscathed, which factum had escaped the notice of the Trial Court---When version put forth by accused was found unreasonable, unsatisfactory and incompatible with circumstances leading to the murder of the deceased, it would lead to strong inference of his culpability for the crime---Entry wound bore charring marks---Blackening or charring, could not be caused from a long distance, that too with a fire-shot of pistol---Occurrence took place in front of house of one person, but none of the inmates of the house had been called upon for help by accused---When the deceased was hit on moving motorbike, she apart from firearm injuries, must have received some bruises, abrasions or scratches due to her sudden fall on the ground, but there was no such injury; which suggested that she was still either sitting or standing when hit---Deceased and accused were having a female baby aged about 1-1/2 years in their company at the time of occurrence, but there was no reference of any injury to the baby---Sugar cane field, wherefrom alleged assailant called to accused to stop, was lying on the left side of road, when accused was riding motorcycle, while empties of crime pistol had been recovered from the right side of the road---When deceased was last seen in the company of accused, and thereafter the death occurred, he was bound to explain time, place and mode of departure or separation of the deceased from accused---If he would fail to explain, it was inferred that he was involved in the murder---All pieces of circumstantial evidence, connected accused with the commission of crime---Circumstances had suggested that motorcycle was stopped, baby was taken from the lap of the deceased; and she was fired at from a close range from behind---Since accused, himself was the eliminator, he did not call for any help of house-mates of nearby house so that his intrigue could not be exposed---Pistol, sent to Forensic Science Laboratory, matched with crime empties recovered from the venue of occurrence---No inordinate delay took place in dispatching the empties and crime weapon, which could create any doubt in the report of Forensic Science Laboratory---Appellant/ accused, being responsible for the murder of the deceased, had rightly been convicted by the Trial Court---Accused had already been leniently treated in awarding of sentence of life imprisonment---Same was maintained, and appeals were dismissed, in circumstances.

Muhammad Hussain v. The State 2011 SCMR 1127; Muhammad Shah v. The State 2010 SCMR 1009; Rahat Ali v. The State 2010 SCMR 584; Muhammadullah v. The State PLD 2001 Pesh. 132; Mir Muhammad v. The State 1995 SCMR 614; Muhammad Arshad v. The State 1992 SCMR 1187; Muhammad Ishaq v. The State 2009 SCMR 135; Gul Muhammad v. The State 2011 SCMR 670; Allah Ditta v. The Crown 1969 SCMR 558; Allah Dittoo v. The State 1968 SCMR 378; Bilmoria alias Muhammad Hussain v. The State PLD 1958 SC 313; Khurshid v. The State PLD 1996 SC 305; The State v. Manzoor Ahmad PLD 1966 SC 664; Muhammad Amin v. The State 2000 SCMR 1784; Binyamin alias Khari and others v. The State 2007 SCMR 778; Muhammad Akhtar v. The State 2007 SCMR 876; Jafar Ali v. The State 1998 SCMR 2669; Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 SC 416 ref.

(f) Criminal trial---

----Circumstantial evidence---Scope---One piece of circumstantial evidence, must be corroborated by the other, forming a chain, one end of which must touch the dead body of the deceased, and the other end around the neck of accused which was a rule of prudence for safe administration of criminal justice---In case of circumstantial evidence, before inferring guilt of accused, court must be satisfied that inculpatory circumstances were incompatible with his innocence, and incapable of explanation upon any other reasonable hypothesis than that of his guilt, because, inference and deduction, was a very delicate process, seriously affecting liberty and life of a person---Before making inference of guilt of an accused, the court must be satisfied that all attending circumstances of the case, or explanation advanced by accused were incompatible on any hypothesis to his innocence---Prosecution evidence must be of such character having no dent or stain of doubt---Doubt must be reasonable one---Every pre-conceived or conjured doubt, could not shatter the prosecution case because minor discrepancies not affecting the very fabric of prosecution case, would not furnish a ground for acquittal of accused.

(g) Criminal trial---

----Motive---Mere absence of motive, or lack of its proof, once it was set up by the prosecution, would hardly be a ground for acquittal, if prosecution evidence, otherwise rang true and established the guilt of accused through evidence of unimpeachable character.

Jalal ud Din Akbar-e-Azam Gar for Appellant.

Mian Arshad Jan, A.A.-G. for the State.

Ghulam Mohyuddin Malik for the Complainant.

Date of hearing: 22nd April, 2015.

YLR 2016 PESHAWAR HIGH COURT 1069 #

2016 Y L R 1069

[Peshawar]

Before Rooh-ul-Amin Khan and Muhammad Younis Thaheem, JJ

MUHAMMAD KHALID QURESHI and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Environment Department and others---Respondents

W.P. No.446-A of 2014, decided on 23rd December, 2014.

Forest Act (XVI of 1927)---

----Ss. 80 & 33(2)---Constitution of Pakistan, Art. 199---Notification No. SO (TECH)/ENVT/V-401/2002/886, dated 30.11.2002---Constitutional petition---Maintainability---Management of private un-demarcated wood lots in Hazara---Factual controversy---Principles---Breach of agreement, determination of---Forest department, under an agreement, allowed petitioner to harvest and transport certain quantity of timber and issued a transport pass for transportation of the same---Petitioner was challaned for transporting excess quantity of timber than allowed under the agreement and fine amounting to five times of the value of permissible quantity of timber was imposed---Chief Conservator of Forests, as arbitrator, reduced amount of fine to one time---Validity---Controversy between parties involved intricate questions of facts, which needed recording of evidence from both sides---High Court observed that controversial question of facts requiring adjudication on basis of evidence could not be undertaken by High Court under its Constitutional jurisdiction---Parties were bound by terms and conditions of agree-ment---Under the agreement, every dispute, difference or question, which might arise between parties, would be referred to arbitrator and that decision, order or award of arbitrator would be final and binding on parties---Chief Conservator, as arbitrator, had already reduced amount of fine---Order of arbitrator, being final in nature, was binding upon petitioner, and same could not be challenged under Constitutional jurisdiction---No discrimination had, therefore, been caused---Constitutional petition was dismissed in circumstances.

Ghulam Nabi's case PLD 2001 SC 415 and Shamim Khan's case PLD 2005 SC 792 rel.

Muhammad Arshad Khan Tanoli for Petitioners.

Muhammad Naeem Abbasi, A.A.-G. for Respondents.

Date of hearing: 23rd December, 2014.

YLR 2016 PESHAWAR HIGH COURT 1087 #

2016 Y L R 1087

[Peshawar]

Before Muhammad Ghazanfer Khan, J

FIDA HUSSAIN and others---Petitioners

Versus

D.O.R./COLLECTOR, D.I. KHAN and others---Respondents

C.R. No.358-D of 2012, decided on 12th March, 2015.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 53 & 172----Suit for declaratory decree by persons aggrieved by any entry in record---Maintainability---Exclusion of jurisdiction of civil court in matters within jurisdiction of revenue officers---Determination---Plaintiff filed suit for declaration and injunction for restoration of entries in record of rights, which was dismissed by both courts below for want of jurisdiction---Validity---Sections 53 & 172(6) of Khyber Pakhtunkhwa Land Revenue Act, 1967 related to different situations---Section 172(6) of Khyber Pakhtunkhwa Land Revenue Act, 1967 dealt with correction of entry in record of rights, periodical record or register of mutations---Section 172(6) of Khyber Pakhtunkhwa Land Revenue Act, 1967 came into play when there was correction of entry in revenue record, but S. 53 of the Act, dealt with right of party---Party would have to invoke jurisdiction of civil court to get his title declared if it felt himself aggrieved of an order as to entry in record of rights or periodical record of which he was in possession---Plaintiff, as per statement of Patwari Halqa and relevant record produced by him, was shown to have been tenant-at-will for decades---Said entry, however, had been removed abruptly without any order from revenue hierarchy or any civil court in the relevant year---Both courts below had ignored the long standing entries in name of plaintiff---Both courts below had also skipped over the jurisdiction vested in them under the law---High Court, setting aside judgments and decrees, remanded the case for decision afresh---Revision petition was accepted in circumstances.

Zainul Aabidin for Appellants.

Adnan Ali Assistant Advocate General and Malik Muhammad Bashir for Respondents.

Date of hearing: 12th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 1103 #

2016 Y L R 1103

[Peshawar]

Before Muhammad Daud Khan and Muhammad Ghazanfar Khan, JJ

ISRAFEEL---Petitioner

Versus

NEKAM ZADA and 2 others---Respondents

Writ Petition No.213-B of 2013, decided on 23rd December, 2014.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(iii)(a)(f)---Suit for dissolution of marriage, recovery of dower and maintenance allowance---Discovery of first-wife of husband after second marriage with plaintiff---Wife-plaintiff had not taken ground that husband-defendant did not treat her equally---Marriage had wrongly and illegally been dissolved by the Appellate Court on the said ground---Trial Court had passed a decree for restitution of conjugal rights in favour of husband-defendant---Wife-plaintiff was not entitled to the decree for dissolution of marriage on the ground of inequality---Judgment and decree of Appellate Court was without substance, against law and norms of justice---Proper way for the Appellate Court was to pass a decree for dissolution of marriage on the basis of Khula---Decree passed in favour of wife-plaintiff was maintained but on the basis of Khula---Wife-plaintiff had to relinquish dower decreed in her favour---Dower had not been paid, so husband-defendant was exonerated from payment of dower decreed against him---Decrees of both the courts below to that extent were set aside---Refractory wife was not entitled to maintenance allowance unless she returned to her conjugal abode and had obeyed the lawful demands of husband---Husband-defendant was ready to maintain his wife-plaintiff but she refused to restart her marital life with him---Wife-plaintiff had failed to prove any sort of cruelty---Decrees passed by both the courts below with regard to maintenance to the wife-plaintiff were against law and Shariah which were set aside---Wife-plaintiff was entitled to receive maintenance allowance at the rate of Rs.2,000/- per month only for the period of Iddat---Constitutional petition was disposed of in circumstances.

Ismail Rizwanullah Wazir for Petitioner.

Saadullah Khan Wazir for Respondents.

Date of hearing: 23rd December, 2014.

YLR 2016 PESHAWAR HIGH COURT 1111 #

2016 Y L R 1111

[Peshawar]

Before Lal Jan Khattak and Abdul Latif Khan, JJ

MUHAMMAD NADIR SHAH alias KOTAY KHAN---Petitioner

Versus

SHAKIRULLAH and 8 others---Respondents

W.P. No.1803-P of 2009, decided on 17th September, 2014.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----Ss. 70 & 71---Constitution of Pakistan, Art. 199---Constitutional petition---Landlord and tenant---Ejectment through Revenue Officer---Relationship of landlord and tenant existed between the parties---Petitioner was not owner of land in question and Revenue Court had jurisdiction to entertain ejectment petition---Ejectment order had been passed by the Revenue Court with reasons which had been upheld up to the apex court of revenue hierarchy---Revenue Court had rightly assumed the jurisdiction and proceeded with the matter in accordance with law---Revenue Court had decided the lis with conscious and application of independent mind---No infirmity or illegality had been pointed out in the impugned orders passed by the revenue hierarchy---Constitutional petition was dismissed in circumstances.

Sher Muhammad Khan for Petitioner.

Asghar Ali for Respondents.

Date of hearing: 17th September, 2014.

YLR 2016 PESHAWAR HIGH COURT 1120 #

2016 Y L R 1120

[Peshawar]

Before Lal Jan Khattak, J

MOHABAT KHAN---Petitioner

Versus

ABDUL HAMEED---Respondent

C.R. No.120-A of 2013, decided on 4th December, 2015.

(a) Khyber Pakhtunkwa Land Revenue Act (XVII of 1967)---

----Ss. 172 (2) (xviii) & 147----Specific Relief Act (I of 1877), S. 42 & 39---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration and cancellation---Rejection of plaint---Exclusive jurisdiction of civil courts in matters within the jurisdiction of revenue officer---Affirmation of private partition, requirement of---Principles---Question of title, determination of---Plaintiffs filed suit claiming that suit land had been in their possession under private partition by the predecessors of the parties, however, in the revenue record, the suit land remained in the joint ownership of the parties, and that the defendant, taking advantage of said entries in revenue record, applied for partition and got partition mutation attested on basis of an ex parte order from revenue court---Defendants filed application for rejection of the plaint, which was declined by the Trial Court, but appellate court, accepting the same, remanded the case for decision on merits---Validity---Question of title was involved in the suit, thus, civil court was the only forum, which could resolve the controversy after recording pro and contra evidence---According to S. 172(2) (xviii) of Khyber Pakhtunkhwa Land Revenue Act, 1967, civil court would not exercise jurisdiction over a claim for partition of an estate or holding or any question connected with or arising out of proceedings of partition, not being a question of title in any of the property of which partition was sought, but, when a question of title was raised in a suit, then the provisions of said section would not come in the way of the civil court to decide the issue thus raised by the plaintiffs--Plaintiffs' suit challenging the partition proceedings and the partition mutation, squarely fell within the domain of civil court, because, private partition had created title and interest for the plaintiffs in the disputed land, which fact had not been denied by the defendants---Seeking affirmation of the private partition under S.147 of Khyber Pakhtunkhwa Land Revenue Act, 1967, was optional, as said section provided that in a case in which a partition had been made without the intervention of Revenue Officer, any party thereto might apply to the Revenue Officer for an order affirming the partition---Provision of S. 147 nowhere postulated that in case no resort was made to the Revenue Officer for affirmation of the private partition, then, the private partition would be of no legal effect---No prejudice would be caused to a party, who did not avail the benefits of S. 147 of Khyber Pakhtunkhwa Land Revenue Act, 1967, as resort to the Revenue Officer under said section was discretionary, and not mandatory---Revision petition was dismissed in circumstances.

(b) Khyber Pakhtunkwa Land Revenue Act (XVII of 1967)----

----S.172(2)(xviii)----Exclusive jurisdiction of civil courts in matters within the jurisdiction of revenue officer---'Question of title'---Meaning and Scope---Question of title is the claim of a person as to his ownership in some property, and it will arise when someone denies his right or interest in his property---'Question of title' may include when due right of a person is jeopardized by any mode of partition or order of a Revenue Officer.

Haji Ghulam Basit for Petitioner.

Nasrullah Khan Jadoon for Respondent.

Date of hearing: 4th December, 2015.

YLR 2016 PESHAWAR HIGH COURT 1141 #

2016 Y L R 1141

[Peshawar]

Before Muhammad Daud Khan, J

RAHIM DIN---Petitioner

Versus

SHER KHAN and others---Respondents

C.R. No.48-B of 2009, decided on 14th July, 2015.

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

----S. 60---Suit for redemption of mortgage---Acknowledgment of payment of debt---Effect---Limitation---Contention of plaintiffs was that they were owners and mortgagors of suit property---Suit was decreed concurrently---Validity---Mortgagee rights were being sold out from time to time---Mortgagee had changed hands acknowledging the mortgage and accepting the liability and right of redemption of mortgagor to redeem the mortgage in fresh period of limitation after acknowledgment---When mortgagee had called himself as mortgagee then he had impliedly acknowledged the mortgagor right---Where mortgagee was in possession of the mortgaged property and was in receipt of usufruct then such receipt would be considered acknowledgment of mortgage---Defendants were in possession over the suit land using its usufruct as its owner as well as mortgagee---Defendants had acknowledged the payment of debt---Time would be computed from the date of such acknowledgment---Receipt of produce on every harvest would be deemed as an acknowledgment giving fresh start to the period of limitation---Revision was dismissed in circumstances.

PLD 1986 SC 35; Faqir Gul and others v. Abdur Rehman and others 1999 CLC 346; Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129; Nawaz Ali Khan and antoher v. Nawabzada and others PLD 2003 SC 425; Muhammad Iqbal and others v. Ghaunsullah and others 2002 CLC 1533; Hashim Khan and others v. Muhammad Jamil and others 2011 YLR 1300; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Khatamir and others v. Mst. Sho Begum and others 2003 SCMR 589 and Hayat Mir v. Govt. of Khyber Pakhtunkhwa PLJ 2015 Pesh. 170 rel.

Arif-ullah Awan for Petitioner.

H. Zafar Iqbal for Respondents.

Date of hearing: 14th July, 2015.

YLR 2016 PESHAWAR HIGH COURT 1166 #

2016 Y L R 1166

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

SHER AZAM KHAN---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.98-B of 2012, decided on 1st April, 2014.

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

----S. 302(b)--- Qatl-i-amd--- Single accused---Substitution of a single accused in a murder charge though was a rare phenomenon, but to put the rope around the neck of accused charged singularly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by other material circumstantial evidence.

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

----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Complainant was real brother of the deceased, while other prosecution witness was his cousin---Illicit relation of the deceased with the wife of accused had been alleged as motive---Both said witnesses, were not only closely related to the deceased, but also inimical towards him---Complainant and other prosecution witness made improvements in their statements---Both prosecution witnesses had totally negated the earlier version and had introduced some new story which amounted to dishonest improvements in order to fill up lacunae---To rely upon such statements for maintaining the conviction and sentences was not safe---Presence of complainant and other prosecution witness with the deceased at the relevant time of the occurrence, was doubtful and not reliable in view of serious contradictions in their statements and dishonest improvements, and their complete departure from the contents of FIR---Despite presence of people at the spot at the time of occurrence and presence of shopkeepers, none from the shopkeepers or the people present in the bazaar had been examined to testify about the occurrence---Prosecution witness had stated that he had not seen the incident with his own eyes---No one from the people of locality had been cited as marginal witness to the recovery memo regarding recovery of crime pistol---Recovery of alleged crime weapon was highly doubtful which was planted one---Absence of any independent witness, and when the direct evidence of the alleged eye-witnesses had been disbelieved, it would not be safe to base conviction on recovery of pistol, which was corroborative piece of evidence---Prosecution having failed to establish the guilt of accused through cogent and confidence inspiring evidence of unimpeachable character, appeal against conviction and sentence was allowed, in circumstances.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 ref.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Testimony of close relative of deceased---Conviction could be recorded on the testimony of close relative of the deceased, provided the same was true, straightforward, confidence inspiring, and corroborated by other material pieces of circumstantial evidence, as well as medical evidence---Court, in such like case was duty bound to assess and evaluate the evidence of witnesses with care and caution---If a witness would make dishonest improvements in his statement, he could not be relied upon to maintain conviction of accused on capital charge---Once a witness was found telling lie on one material aspect of the case, then he could not be believed with regard to the other aspect of the case, unless the testimony given was fully corroborated by strong independent corroboration.

Farhan Ahmad v. Muhammad Inayat and others 2007 SCMR 1825; Ibrahim Hussain and others v. State and another 2007 SCMR 605 and Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt would arise in the prosecution case, the benefit of the same must be extended to accused, not as a grace or concession, but as a matter of right---So many doubts were 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---Better to acquit hundred culprits than convicting an innocent soul---Acquitting by error would be better than convicting by error.

Anwar ul Haq and Ahmad Farooq for Appellant.

Aqal Shah Noor for Respondents.

Qudrat Ullah Gandapur, A.A.-G. for the State.

Date of hearing: 1st April, 2014.

YLR 2016 PESHAWAR HIGH COURT 1189 #

2016 Y L R 1189

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MUHAMMAD AKBAR---Appellant

Versus

The STATE---Respondent

Cr.A. No.84-A of 2015, decided on 29th October, 2015.

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

----S. 9(c)---Recovery of narcotic substance---Appreciation of evidence---Benefit of doubt---Small quantity of sample---Evidence of police officials---Old age of accused---Charas weighing 1010 grams and heroine weighing 215 grams was allegedly recovered from the possession of accused who was an old man of 74-75 years---Accused was convicted by Trial Court and sentenced to imprisonment for six months---Plea raised by accused was that 1 gram of heroine and 5.5 grams of Charas were sent for chemical examination which quantity did not represent exact nature of recovered narcotic substances---Validity---Conviction of a 74-75 years old person could not be sustained merely on the basis of testimony of police officers, who were found to have unleashed onslaught of cases of such like nature against the accused, invariably ending in his acquittal---Accused was not convicted even in a single case---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Malik Waheed Akhtar for Appellant.

Muhammad Naeem Abbasi A.A.G. for the State.

Date of hearing: 29th October, 2015.

YLR 2016 PESHAWAR HIGH COURT 1202 #

2016 Y L R 1202

[Peshawar]

Before Qaiser Rashid Khan, J

SUBA and 2 others---Petitioners

Versus

Malik FALAKSHER---Respondent

Civil Revision Petition No.359 of 2007, decided on 27th July, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Conditions---Majlis for performance of Talb-i-Muwathibat---Scope---Pre-emptor had not mentioned the presence of any other person except the informer at the time of information---Talb-i-Muwathibat must be performed in a Majlis after receiving information with regard to sale transaction---Sans Majlis there would be no concept of performance of Talb-i-Muwathibat---Neither constitution of Majlis at the time of performance of Talb-i-Muwathibat nor alleged jumping demand had been proved by the pre-emptor on the relevant date, time and place---Pre-emptor had failed to prove notice of Talb-i-Ishhad in accordance with law---Both Talb-i-Muwathibat and Talb-i-Ishhad which were sine qua non for the success of a pre-emption suit stood disproved---Suit of plaintiff was bound to fail---Both the courts had committed illegality and material irregularity while decreeing the suit---Impugned judgments and decrees passed by both the courts below were set aside---Suit filed by the plaintiff was dismissed---Revision was accepted in circumstances.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Muwathibat, performance of---Conditions---Talb-i-Muwathibat must be performed in a Majlis after receiving information with regard to sale transaction.

S. Mastan Ali Zaidi for Appellants.

Mohsin Ali for Respondent.

Date of hearing: 27th July, 2015.

YLR 2016 PESHAWAR HIGH COURT 1229 #

2016 Y L R 1229

[Peshawar]

Before Ikramullah Khan, J

GUL RASHEED KHAN and 3 others---Petitioners

Versus

ISRAR KHAN and 3 others---Respondents

C.R. No.98-B of 2011, decided on 12th November, 2015.

Specific Relief Act (I of 1877) ---

---S. 12---Contract Act (IX of 1872), S.55---Transfer of Property Act (IV of 1882), Ss. 53-A & 60---Suit for specific performance of agreement to sell and redemption of mortgage---Time as essence of contract---Condition that on failure to pay balance amount within stipulated time the contract would be converted into a mortgage deed---Scope---Plaintiffs filed suit for specific performance of contract whereas defendants instituted suit for redemption of mortgage---Trial Court decreed suit of plaintiffs whereas that of defendants was dismissed but Appellate Court dismissed the suit of plaintiffs and decreed that of defendants---Validity---Plaintiffs were required to give notice to the defendants for payment of balance sale consideration---No such notice was given by the plaintiffs nor they demanded agreed rent form the defendants---Time would not be essence of contract with regard to immovable property on failure to perform a part of said contract by the date fixed in the agreement to sell---Where time was fixed in agreement to sell for its performance and any penalty clause was envisaged therein then time would be considered as its essence unless same was extended by active conduct or acquiescence---Vendor after entering into agreement to sell and delivery of possession to the vendee had no other right to enforce except the right expressly provided by the terms of the contract---Condition that on default of payment of balance amount the contract would be converted into a mortgage deed had become redundant as time was not essence of contract in the present case---Defendants were directed to deposit in the Trial Court not only the outstanding amount but also the rent due within specified time---Suit of defendants on depositing the said amount should be deemed to be decreed otherwise same would be deemed to have been dismissed---Revisions were disposed of accordingly.

Seth Essabhoy v. Saboor Ahmad PLD 1972 SC 39; Kaniz Fatima and another v. Sh. Muhammad Sohail and 7 others 2003 CLC 923 and Anjuman-e-Islamia, Sialkot v. Haji Muhammad Younas and 3 others PLD 1997 Lah. 153 rel.

Rustam Khan Kundi for Appellant.

Sardar Naeem Khan for Respondent.

Date of hearing: 12th November, 2015.

YLR 2016 PESHAWAR HIGH COURT 1248 #

2016 Y L R 1248

[Peshawar]

Before Abdul Latif Khan, J

FARIDULLAH SHAH and 3 others---Petitioners

Versus

Syed INAMULLAH SHAH BACHA and 4 others---Respondents

C.R. No.728-P of 2012, decided on 24th February, 2015.

(a) Islamic Law---

----Inheritance---Gift---Proof---Ingredients of gift---Acceptance of gift had not been proved as none of the plaintiffs was present at the time of execution of gift deed---Delivery of possession of disputed property being factual ingredient of valid gift had to be proved through cogent and confidence-inspiring evidence which lacked in the present case---Gift would be complete even if there was no writing, however it was subject to fulfilment of three ingredients i.e. declaration of gift by the donor, acceptance of gift expressly or impliedly by or on behalf of donee and delivery of possession to the donee by the donor---Register (PTI) maintained by Excise and Taxation Department was not a title document---Plaintiffs could not claim to be the owners of property on the basis of said document---Beneficiary of document was bound to prove the same by producing evidence in terms of Art. 79 of Qanun-e-Shahadat, 1984---Nothing was on record with regard to delivery of possession of suit land by the donor to the donee in the present case---Delivery of possession of suit property had not been proved by the donees---Plaintiffs had failed to discharge the burden of proof with regard to gift as genuine and not suffering from any legal and factual defect---No person could be deprived of his inheritance to be devolved upon him in legacy of predecessor merely on the basis of un-registered document---Unregistered document did not create title in favour of its beneficiary.

(b) Islamic Law---

----Gift---Ingredients---Ingredients of valid gift were declaration of gift by the donor, acceptance of gift expressly or impliedly by or on behalf of donee and delivery of possession to the donee by the donor.

----Art.79----Document, proof of---Scope---Beneficiary of document (gift in the present case) was bound to prove the same by producing evidence in terms of Art. 79 of Qanun-e-Shahadat, 1984.

Nazir Ahmad for Petitioners.

Muhammad Faheem Wali for Respondents.

Date of hearing: 24th February, 2015.

YLR 2016 PESHAWAR HIGH COURT 1261 #

2016 Y L R 1261

[Peshawar]

Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ

SADIA SAJJAD---Petitioner

Versus

KHYBER MEDICAL UNIVERSITY ---Respondent

W.P. No.434-A of 2012, decided on 13th June, 2013.

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

----S. 11---Khyber Medical University Act, 2006 (I of 2007), S. 30(1) (a) (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Educational institution---Getting medical education from the college not affiliated with the medical university---Effect---Petitioners being medical students of such Medical College sought regularization of their studies and registration with medical university as well as participation in the examination---Validity---No medical institution or university could train or grant a medical or dental qualification or train or grant both, unless said qualification, degree or diploma had been accorded recognition---Khyber Medical University Act, 2006 was enforced for the purposes of control and smooth running of all Medical and Dental Colleges in the Province---Affiliation or registration, if any, of the college wherein petitioners were students with the University had become functus officio---Institution wherein petitioners were students was a private medical college which had not been affiliated with the Medical University---All Medical and Dental Colleges were required to get affiliation with Medical University---Medical College wherein petitioners were studying was functioning without its proper affiliation or registration with the Khyber Medical University in violation of Pakistan Medical and Dental Council Ordinance, 1962---No student should have been admitted before recognition of the institution---Institution at the time of application for recognition should certify that it had not admitted students---Medical College wherein petitioners were students had been recommended by Pakistan Medical and Dental Council to be closed---Administration of the said college was still admitting the students and running the business and no action had been taken against by the concerned authorities---Proper action should be taken against the said institution by the competent authorities---Petitioners having no fault on their part be adjusted in the private sector Medical Colleges under the supervision of Pakistan Medical and Dental Council and all the dues should be returned by the said institution---Petitioners were students in the medical college which had not been recognized and the institution had no teacher/professor for the subject of ophthalmology---No provision existed "for provisional or in anticipation of pending approval"---High Court issued directions for proper action against the said institu-tion---Constitutional petition was disposed of in circumstances.

Imran Younas Tanoli for Petitioner.

Asad Tanveer Qureshi for Respondents Nos. 1 and 2.

Fawad Saleh and Sara Nasir for Respondent No.1 and A.A.G. for Official Respondent.

Date of hearing: 13th June, 2013.

YLR 2016 PESHAWAR HIGH COURT 1279 #

2016 Y L R 1279

[Peshawar]

Before Roohul Amin Khan and Syed Afsar Shah, JJ

SABZ ALI KHAN and 2 others---Petitioners

Versus

INSPECTOR GENERAL OF POLICE, KPK and 3 others---Respondents

Writ Petition No.1014-P of 2014, decided on 28th October, 2014.

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

----Ss. 154, 155, 156, 4(f) & 4(n)---"Cognizable" and "non-cognizable" offence---Distinction---Cognizable offence was, where the Police was empowered to arrest accused without any warrant issued by the Magistrate---Non-cognizable offence was wherein the Police Officer had no power to arrest the offender without warrant from a Magistrate---In a cognizable offence, the Police had legal obligation to register a case under S.154, Cr.P.C., but if it was non-cognizable case, the substance of information provided to the S.H.O. concerned, would be entered in the register maintained under S.155, Cr.P.C.---Information with respect to the commission of cognizable offence was regulated by S.154, Cr.P.C.; whereas the information regarding commission of a non-cognizable offence was regulated by S.155, Cr.P.C.---Section 154, Cr.P.C. cast a statutory duty upon the S.H.O. to enter the information regarding commission of those offences which fell in the categories of "cognizable offences" in a register provided by Provincial Government, which in ordinary parlance was known as FIR.

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

----Ss. 154 & 200---Lodging of FIR, and filing of complaint---In order to set the criminal law into motion, two modes were provided one by way of lodging of a report with the Police under S.154, Cr.P.C. in respect of commission of a cognizable offence; the other by filing a complaint as provided by S.200, Cr.P.C.---Condition that necessitated the recording of an information, and setting the criminal law into motion under S.154, Cr.P.C. fairly were: firstly, that it must be an information; and secondly, it must be on the face of it relating to a cognizable offence.

----Ss. 324, 34, 167 & 193---Criminal Procedure Code (V of 1898), Ss.154 & 155---Constitution of Pakistan, Art.199---Attempt to commit qatl-i-amd, common intention---Framing of an incorrect document by public servant with intent to cause injury, giving false evidence---Appreciation of evidence---Non-cognizable offence---Direction of Inspector General Police, to SHO to register case---Complaint under S.324/34, P.P.C. against accused persons---Police Officials having been found negligent in the performance of their duties, on the report of Additional Inspector General, Inspector General of Police placed the officials under suspension; and directed S.H.O. concerned to register a criminal case against them, which case was registered accordingly---Direction issued to the S.H.O., coupled with provisions of Ss.167 & 193, P.P.C., prima facie disclosed commission of a non-cognizable offence---SHO, in circumstances, had no authority to incorporate the given information in the register provided for registration of FIR---SHO had transgressed his power while making recourse straight away for registration of case; and had deviated from the legal course available to him---On receipt of information about commission of a non-cognizable offence, SHO ought to have made entries in the book maintained for the purpose (Roznamcha); and without any investigation, should have referred the case to concerned Magistrate---Police, in non-cognizable case, was not competent to investigate an offence under S.155(2), Cr.P.C. without prior permission of concerned Judicial Magistrate.

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

----Ss. 155(1) & 200---Non-cognizable case---Proceedings---Scope---Only course open for the Police by virtue of S.155(1), Cr.P.C., was to enter the received information in a book and refer it to the Judicial Magistrate, or at the most the complainant could redress his grievance under S.200, Cr.P.C.---In the present case, both the remedies available to the complainant, were not adhered to; and recourse had been made to a line of action contrary to the provisions of law---If a Police Officer would investigate a case of non-cognizable offence, without permission of a Magistrate, his act would amount to blatant violation of the mandatory direction of law; and its continuation would be an abuse of process of law.

Mst.Malka Jan v. IGP NWFP Peshawar and 2 others 2000 PCr.LJ 320; Haji Rehman SHO and 3 others v. Provincial Police Officer, Government of KPK Peshawar and 3 others 2012 PCr.LJ 1526 and Muhammad Shafi v. SHO and others 2012 YLR 828 ref.

(e) Constitution of Pakistan---

----Arts. 4 & 199---Protection of law and treatment in accordance with law---Constitutional jurisdiction of High Court---Scope---Mandate of Art. 4 of the Constitution was that it was the inalienable right of every citizen to enjoy the protection of law, and to be treated in accordance with law---Where an order had been passed or action taken against a person by any forum, judicial or executive, which was patently illegal or against the mandate of law on the subject, specially the express provisions and the spirit of statute, which if allowed to stay intact, would tantamount to and would cause serious breach of the legal right of the citizen, High Court under its constitutional jurisdiction, could come for his rescue.

(f) Administration of justice---

----When law required anything to be done in a particular manner, it should be done in that manner, or not at all.

Muhamamd Anwar and others v. Muhammad Ilyas Begum and others PLD 2013 SC 255 ref.

(g) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss.154, 155 & 200---Penal Code (XLV of 1860), Ss.167 & 193---Constitutional jurisdiction of High Court---Scope---Quashing of FIR---High Court exercises jurisdiction to review those proceedings, decisions or actions of Police Officials, which suffered from defects of jurisdiction---FIR, in the present case, had shown that prosecution had built the entire case on erroneous, and wrong foundation---Accused must be presumed to be innocent, unless proved guilty---Main consideration to be kept in view would be whether the continuance of proceedings before the Trial Court would be sufficient to bring home guilt to accused on the basis of facts admitted and patent on record---Prosecution, in the present case, had made departure from the mandatory provisions of Criminal Procedure Code; and the FIR registered against the accused, was the result of colourful exercise of the powers by the Police---Continuance of proceedings would amount to confer jurisdiction upon the Police for registration of the criminal cases against accused of non-cognizable offence, which was against the scheme of criminal justice, and not maintainable---Petition was allowed, FIR, registered against the petitioners under Ss.167 & 193, P.P.C., was quashed, in circumstances.

Ishtiaq Ibrahim for Petitioners.

Rab Nawaz Khan A.A.G. for Respondents.

Date of hearing: 28th October, 2014.

YLR 2016 PESHAWAR HIGH COURT 1291 #

2016 Y L R 1291

[Peshawar]

Before Irshad Qaiser and Rooh-ul-Amin Khan, JJ

KABIR SHAH---Petitioner

Versus

The STATE through Advocate General, Khyber Pakhtunkhwa and another---Respondents

Criminal Appeal No.57-P of 2013, decided on 9th April, 2014.

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

----S. 302(b)--- Circumstantial evidence Qatl-i-amd---Scope---If the case was based on circumstantial evidence, prosecution must ensure that the circumstances from which the inference of guilt was sought to be drawn, must be cogently and firmly established---Circumstances must unerringly point towards the guilt of accused; and when taken cumulatively, should form a chain so complete, that it must demonstrate in all probabilities that the crime was committed by accused---Where the evidence was of a circumstantial nature, the circumstances should in the first instance be fully established; and all the facts so established should be consistent only with the hypothesis of the guilt of accused---Circumstances should be of a conclusive nature and tendency; and they should be such as to exclude every hypothesis, but the one proposed to be proved---Chain of evidence must be so complete as not to leave any reasonable ground for conclusion consistent with the innocence of accused and it must be such to show that within all human probability, the act must have been done by accused---All pieces of circumstantial evidence must be so inter-connected that one end of it be at the dead body of deceased, and other round the neck of accused.

Sheikh Muhammad Amjad v. State PLD 2003 SC 704 ref.

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

----Ss.302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6(c) & 7---Act of terrorism, qatl-i-amd, rape, common intention---Appreciation of evidence---Benefit of doubt---Complainant was not the eye-witness of the occurrence, but he charged accused person on the second day of the report after due satisfaction---Complainant had not disclosed the source of information---Many people were present on the spot, when the dead body was recovered, but none of them had been cited as witness, nor produced in support of recovery of corpus---No body from the neighbour or any relative had come forward to record his statement to support the story advanced by prosecution---Facts narrated by the complainant were based on hearsay; and that too from undisclosed sources, which could hardly be based for capital punishment---Occurrence had not taken place in the mode and manner as described by the prosecution---Both accused persons in their confessional statements had contradicted each other regarding timings of occurrence---confessional statement of accused persons, had been recorded on a printed form/questionnaire---Same would be mere formality---Only 30 minutes time had been given to accused for thinking over and making confession, which was too short---Confessional statement was also retracted by accused during the trial, which could not be based as a ground for conviction of accused, unless same was corroborated by strong corroborative piece of evidence---Medical evidence also did not support the prosecution story---Place of occurrence had already been visited by the Investigating Officer, in presence of complainant; and after alleged pointing nothing incriminating had been recovered from the said place---Trial Court had convicted accused on the basis of circumstantial evidence, but all pieces of said evidence were so weak and scattered that no piece could be connected with the other---Case was based on no legal evidence, or evidence of no legal consequence---Genesis and origin of the occurrence appeared to be shrouded in deep mystery---In view of the inherent improbabilities, serious omissions and infirmities, prosecution had failed to prove the guilt of accused---Impugned judgment of conviction and sentence passed by the Trial Court, was set aside, accused was acquitted of the charges against them and were released, in circumstances.

----Withholding of best evidence---Effect---Best piece of evidence available with prosecution, if not produced without any plausible explanation, and was withheld, it would be fair to presume that had the said witness been produced in the case; it would have not supported the prosecution case---Requirement of "best evidence rule" required that the best evidence of which the case in its nature was susceptible, should always be presented.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Last seen evidence---Scope---For believing the last seen evidence, it was required that deceased should be seen in the company of accused by the prosecution witnesses for some short time before happening of the incident---Last seen evidence was a weakest type of evidence, unless corroborated by other strong piece of evidence---Punishment could not be awarded on capital charge, only on the basis of evidence of last seen, unless the last sighting of the deceased with an accused had a close proximity with the death of the deceased, so as to rule out any probability of intervention of any other person during intervening period.

(e) Criminal trial---

----Benefit of doubt---Scope---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, otherwise the golden rule of benefit of doubt would be reduced to naught---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 entitle 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 judicial mind was sufficient for acquittal of accused.

Tariq Pervaz v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Sahibzada Riazatul Haq for Petitioner.

Daniyal Khan Chamkani for Respondents.

Miss Sabeeha Iqbal for the State.

Date of hearing: 9th April, 2014.

YLR 2016 PESHAWAR HIGH COURT 1314 #

2016 Y L R 1314

[Peshawar]

Before Muhammad Ghazanfar Khan, J

ASHIQ HUSSAIN---Petitioner

Versus

SHAH NAWAZ and others---Respondents

C.R. No.94-D of 2014, decided on 7th September, 2015.

Specific Relief Act (I of 1877)---

----Ss. 12 & 39---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell, recovery of sale consideration and cancellation of mutation--- Revision--- Trial Court dismissed the suit; whereas, appellate court partially granted the relief claimed by plaintiff---Validity---Appellate court had neither discussed nor adjudged the points as to limitation, proof of execution of deed in question, competency of attorney to receive payment after cancellation of power of attorney and use of admission by defendant in his written statement---Appellate court had dealt with the matter in cursory manner---Judgment and decree passed by appellate court was without lawful authority and against norms of law and justice---High Court, setting aside the impugned judgment and decree, remanded the case to appellate court for decision afresh---Revision petition was accepted.

Malik Muhammad Bashir for Appellant.

Zain-ul-Abideen and Muhammad Iqbal Dhap for Respondents.

Date of hearing: 7th September, 2015.

YLR 2016 PESHAWAR HIGH COURT 1326 #

2016 Y L R 1326

[Peshawar]

Before Waqar Ahmed Seth and Muhammad Younis Thaheem, JJ

IMRAN ALI---Appellant

Versus

The STATE---Respondent

Cr.A. No.483-P of 2015, decided on 19th November, 2015.

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

----Ss. 32, 33, 74 & 48---Criminal Procedure Code (V of 1898), S.517---Articles connected with narcotics---Superdari---Confiscation of vehicle used for trafficking narcotics---Scope---Material collected by Investigating Officer did not show slightest kind of suspicion brought on record that accused was in knowledge that vehicle was used for commission of alleged offence and documents annexed with the petition showed that accused was owner of said vehicle and there was no rival claimant of vehicle in question---Vehicle in question was to be returned to applicant on 'superdari'---Appeal was allowed, accordingly.

Askari Leasing Ltd. through Manager v. The State 2007 PCr.LJ 755 and Abdul Salam v. The State 2003 SCMR 246 rel.

Amjid Noor for Appellant.

Syed Sikandar Hayat Shah, A.A.G. for Respondent.

Date of hearing: 19th November, 2015.

YLR 2016 PESHAWAR HIGH COURT 1349 #

2016 Y L R 1349

[Peshawar]

Before Abdul Latif Khan, J

SHER WALI---Petitioner

Versus

Haji SAID MAHMOOD KHAN---Respondent

C.R. No.521 of 2006, decided on 5th March, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Suit for recovery of amount by plaintiff being owner of the property and claiming defendant to be tenant---Defendant denied relationship of landlord and tenant but had not claimed ownership of suit property---Plaintiff had established fact of tenancy with defendant's predecessor and defendant's occupation was held to be continuation of that possession---Courts below, while decreeing the suit of plaintiff had neither misdirected, nor misread the evidence and had arrived to the conclusion entirely in consonance with law and facts of the case---Revision was dismissed.

Haji M. Zahir Shah for Petitioner.

Younas Khan for Respondent.

Date of hearing: 5th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 1359 #

2016 Y L R 1359

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD GULZAR and others---Petitioners

Versus

Qazi MUHAMMAD AYAZ through L.Rs. and others---Respondents

C.R. No.115-A of 2007, decided on 30th March, 2015.

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

----S. 60---Suit for redemption of mortgage---Right of mortgagor to redeem---Ownership of mortgaged property---Burden of proof---Transfer of ownership only by some of legal heirs---Permissibility---Plaintiffs filed suit for redemption of mortgaged property, which was dismissed by Trial Court, and appellate court accepting appeal set aside judgment and decree of Trial Court---Validity---Burden of proving that whether predecessor-in-interest of plaintiffs was owner of mortgaged property was upon plaintiffs---Vendors had no authority to transfer entire property in favour of predecessor of plaintiffs, as there were other legal heirs of deceased---Vendor could not transfer better and larger title regarding suit property to vendee except that he himself had owned---Sale-deed executed and attested on behalf of some of legal heirs in favour of predecessor of plaintiffs could be termed as valid only to extent of their shares and not more than that---Transfer of entire property by only some of legal heirs to the exclusion of others was not permissible under law---Co-sharers could not alienate or retain possession under garb of Hissadari beyond his share in joint holding and could not transfer bigger share in any eventuality without consent of others---Trial Court had properly evaluated evidence available on record and arrived at correct conclusion while dismissing suit---Impugned judgment and decree of appellate court was set aside and that of Trial Court was restored whereby suit had been dismissed---Revision petition was accepted in circumstances.

Haji Ghulam Basit for Petitioners.

M. Ayub for Respondents.

Date of hearing: 30th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 1439 #

2016 Y L R 1439

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

FAZAL-UR-REHMAN---Appellant

Versus

The STATE---Respondent

Cr.A. No.406-P of 2014, decided on 8th October, 2015.

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

----Ss. 9, 32 & 33---Criminal Procedure Code (V of 1898), Ss.516-A & 517---Confiscation of vehicle used in smuggling of narcotics---Application for superdari of vehicle---Trial Court after holding a full dressed trial, convicted and sentenced accused; and confiscated bus allegedly used in smuggling of narcotics---Applicant/appellant, who filed application for superdari of bus in question, claimed that he was owner of the bus; and that there was no rival claimant for the same---Applicant, contended that he was unaware regarding use of the bus in commission of the offence and alleged that the Trial Court had committed serous illegality by not complying with the provisions of Ss.32 & 33 of the Control of Narcotic Substances Act, 1997---Validity---Applicant, made no effort to associate himself with the trial proceedings, so as to prove his title of the bus; which was registered not in the name of the applicant, but in the name of another person---Applicant derived his title from said other person on the basis of affidavit, which was not produced by the applicant during trial of the case---Applicant claimed that he had sold the bus to accused persons on instalments---Applicant was only brandishing an affidavit in his name by registered owner of the bus; and onward sale of the bus through alleged Iqrarnama---Manner through which applicant had proceeded all along spoke volumes of his conduct---Trial Court, had rightly dismissed application of the applicant for superdari, and rightly denied his claim in respect of bus, which was confiscated to the State.

Ms. Farhana Marwat for Appellant.

Muhammad Iqbal Mohmand, SPP for ANF for the State.

Date of hearing: 8th October, 2015.

YLR 2016 PESHAWAR HIGH COURT 1489 #

2016 Y L R 1489

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

Syed AZHAR HUSSAIN SHAH---Petitioner

Versus

MEMBER BOARD OF REVENUE KHYBER PAKHTUNKHWA PROVINCE PESHAWAR and 9 others---Respondents

W.P. No.480-A of 2014, decided on 7th April, 2015.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 42---Shamilat deh land, sale of---Hissadar owner---Revenue Officer, responsibility of---Column of cultivation---Column of ownership---Shart Wajib-ul-Arz---Scope---Owners recorded in column of cultivation as "Hissadar in Shamilat deh" could only transfer property to the extent of their share and not more than that---All the owners of the revenue estate had right in Shamilat deh---Vendor could not transfer a better title than that he possessed at the time of transfer---No restriction could be imposed on the sale of Shamilat land or share in the same---Revenue Officer had to ensure that the sale had not exceeded vendor's share---Purchasers who had acquired land in column of cultivation as "Hissadar" could not be treated as owners in partition proceedings and they could not be paid compensation amount in acquisition process---Wajib-ul-Arz had presumption of truth---Shamilat land could be partitioned if majority of original owners Khewatdar had sought partition of the property owned by them on the basis of 'Maliya' paid by them---Name of such ownership would automatically be removed from the column of ownership---High Court issued directions to be followed by Provincial Government/ Senior Member Board of Revenue in their letter and spirit with immediate effect and submit the compliance report to the High Court.

Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC 9; Kala Khan v. Shah Hussain 1983 CLC 684 and PLD 1993 SC (AJ&K) 4 rel.

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

----S. 4---Partial partition---Scope---Partial partition not to be allowed and entire properties be included in the application irrespective of possession of properties---Partition proceedings were an application simple to get the property partitioned and same could not be treated as "suit".

----'Ownership'---Meaning.

Salmond on jurisprudence; Austin and Holland rel.

(d) Words and phrases---

----'Shamilat land'---Meaning

(e) Words and phrases---

----'Ala Malik'---Meaning.

(f) Words and phrases---

----'Adna Malik'---Meaning.

(g) Words and phrases---

----'Malik Qabza'---Meaning

(h) Words and phrases---

----'Khewat'---Meaning.

(i) Words and phrases---

----'Khewatdar'---Meaning.

(j) Words and phrases---

----'Wajib-ul-Arz'---Meaning.

(k) Words and phrases---

----'Malkan deh'---Meaning.

Haji Ghulam Basit and Yasir Zahoor Abbasi for Appellant.

Fida Muhammad Khan, Sultan Ahmad Jamshed for Respondents.

Malik Masoodur Rehman, Amicus Curiae.

Date of hearing: 7th April, 2015.

YLR 2016 PESHAWAR HIGH COURT 1532 #

2016 Y L R 1532

[Peshawar]

Before Haider Ali Khan, J

ZAHIR SHAH and others---Petitioners

Versus

SHTAMAND and others---Respondents

C.R. No.56-P of 2009, decided on 6th October, 2015.

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

----S. 42---Suit for declaration---Limitation---Inheritance---Predecessor of the parties was owner of suit land---Plaintiffs were co-sharers and were entitled to their share in the suit property---Defendants had tried to deprive the plaintiffs from their share in the joint property---Entries made in the revenue record could not be held as conclusive proof of ownership---Law of limitation could not be brushed aside at all in inheritance cases---Dismissal of suit of plaintiffs on the point of limitation did not seem to be a fair decision in the circumstances of present case---Judgment of Appellate Court was based on sound reasons---No illegality had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Misri v. Muhammad Sharif 1997 SCMR 338; Madan Gopal and others v. Maran Bepari and others PLD 1969 SC 617 and Muhammad Shafi and others v. Sultan Mahmood and others 2010 SCMR 827 rel.

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

----S. 115---Revision before High Court---Variance between judgment of Appellate Court and Trial Court regarding findings of fact---Preference---Preference should be given to the findings of lower appellate court in the matter of conflicting views of the courts below.

----Law was to help the helpless and safeguard the rights of the poor against the tyrant and powerful.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 rel.

(d) Words and phrases---

----'Pakhtoon'---Meaning.

Zia-ur-Rehman for Petitioners.

Amir Gulab Khan for Respondents.

Date of hearing: 7th September, 2015.

YLR 2016 PESHAWAR HIGH COURT 1567 #

2016 Y L R 1567

[Peshawar]

Before Abdul Latif Khan, J

AGHA RAZA and another---Petitioners

Versus

Mst. TAMSEELA FAZIL and 2 others---Respondents

C.R. No.472-P of 2013, decided on 23rd January, 2015.

Specific Relief Act (I of 1877) ---

----S. 42---Suit for declaration---General power-of-attorney---Mortgage deed---Proof---Procedure---Witnesses of power-of-attorney who allegedly identified the executant of the same were neither relatives nor executant was known to them prior to attestation of document---Beneficiary of document had to prove its contents---Beneficiary of document was bound to produce evidence to the effect that document had validly been scribed and attested---Sub-Registrar who made endorsement on the document ought to have been produced by the defendants---Mere production of Registry Moharrir who was only custodian of record would not be sufficient to prove that executant had put her appearance before the Sub-Registrar and had given consent for execution and attestation of document---General power-of-attorney had not properly been attested, any act done on the basis of such general power-of-attorney would be of no legal effect---Time given in the mortgage deed was one month for payment of mortgaged money and on failure of return, defendant would become exclusive owner which was against the spirit of law---No suit for foreclosure had been filed by the mortgagee---Mortgagee, in circumstances, had no right to claim the ownership of suit property---Payment of consideration had not been proved nor purpose of execution of alleged mortgage-deed had been mentioned---Transaction was collusively made in order to deprive the legal heirs of principal/owner from getting their shares out of her legacy---Alleged attorney had to take special permission from the principal for mortgage/transfer of property in favour of his wife as there existed fiduciary relation between them---No such transfer could be effected without permission from principal---Both general power-of-attorney and mortgage-deed were executed on one and the same day---If foundation was baseless then superstructure, if any raised thereupon, would crumble down---Findings recorded by the Appellate Court were modified and both the general power-of-attorney and mortgage-deed were annulled in toto---Legal heirs of the executant of said documents would be entitled to get their shares out of legacy as per their respective shares---Revision was dismissed in circumstances.

Muhammad Taj v. Arshad Mehmood and others 2009 SCMR 114; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 and PLD 1996 Pesh. 1 rel.

Abdur Rahim Khan Jadoon for Petitioners.

Akhtar Naveed and Muhammad Tariq Yousafzai for Respondents.

Date of hearing: 23rd January, 2015.

YLR 2016 PESHAWAR HIGH COURT 1590 #

2016 Y L R 1590

[Peshawar]

Before Qaiser Rashid Khan and Syed Afsar Shah, JJ

AGRITECH LTD., through Works Manager of SSP Plant and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of National Food Security and Research and 2 others---Respondents

W.P. No.3982-P of 2015, decided on 23rd December, 2015.

Constitution of Pakistan---

----Art. 25--- Discrimination--- Subsidy, entitlement of---Petitioner was fertilizer company manufacturing Single Super Phosphate (SSP) from local raw material---Grievance of petitioner was that authorities allowed subsidy only to those companies who were manufacturing SSP fertilizer from imported rock with 18% Phosphate content--- Validity--- Phrase 'imported rock' from some unspecified destination was unexplained by the authorities, as per notification in question, it was the 18% P-Content in SSP fertilizers which should be the litmus test or the sine qua non for qualifying for the subsidy announced by Federal Government through the notification on SSP fertilizers---Whether a manufacturer of fertilizer used imported rock or domestic rock, it was the end product which was to be examined and analyzed in order to meet the requisite of 18% P-Content---Manufacturing plants using imported rock could not be granted subsidy without any laboratory analysis of quality of their end product---Classification made between fertilizer made from imported rock and fertilizer made from domestic rock did constitute intelligible differentia having rational nexus to the very object of subsidy scheme announced by government---18% P-Content was in the end product or so to say SSP fertilizer which was relevant and not the source of raw material---In order to evaluate and analyze desired 18% P-Content in SSP fertilizer, the product should be subjected to undergo the requisite test by a statutory body i.e. Pakistan Standards and Quality Control Authority Standards Development Center (Chemical Division) and if a product or a fertilizer would meet the standards of the authorities and possessed 18% P-Content, then there should be no legal justification to deny the manufacturer subsidy as per notification in question---Constitutional petition was allowed accordingly.

I.A Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041; Miss Shazia Batool v. Government of Balochistan and others 2007 SCMR 410; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 01; Secretary Economic Affairs Division Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 01 and Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 ref.

Salman Akram Raja and Malik Ghulam Sabir for Petitioners.

S. M. Attique Shah, Addl: Deputy Attorney General for Federation and Mian Arshad Jan, AAG for the Provincial Government along with Messrs Imtiaz Ali Gopal Deputy Food Security Commission and Muhammad Riaz Director Law Managing Officer National Food Security and Research, Islamabad for Respondents.

Date of hearing: 8th and 17th December, 2015.

YLR 2016 PESHAWAR HIGH COURT 1622 #

2016 Y L R 1622

[Peshawar]

Before Mian Fasihul Mulk and Qaiser Rashid Khan, JJ

AL-RAZI MEDICAL COLLEGE---Petitioner

Versus

KHYBER MEDICAL UNIVERSITY and others---Respondents

Review Petition No.7-P of 2014 in W.P. No.2283-P of 2013, decided on 23rd January, 2014.

Educational institution---

----Audi alteram partem, principle of---Applicability---Scope---College filed civil petition for leave to appeal to the Supreme Court which was remitted to the High Court with the direction to treat the same as a review petition---Contention of the college before High Court was that no notice was issued to it and college was condemned unheard while passing impugned order--- Validity--- Impugned order was passed in absence of the college in the constitutional petition---Grievance of students was against the college which was directed to pay back the amount of students---College having been condemned unheard, review petition was accepted and observations made against the college authorities to pay amount so received were recalled.

Syed Iftikhar Hussain Gilani for Petitioner.

Waseemuddin Khattak, Taskeenud-din Khattak, Ziaur Rehman Khan and Nasir Mehmood for Respondents.

Dates of hearing: 21st, 22nd and 23rd January, 2014.

YLR 2016 PESHAWAR HIGH COURT 1631 #

2016 Y L R 1631

[Peshawar]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

TOYOTA FRONTIER MOTORS (PVT.) LTD.---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, KPK Peshawar and 2 others---Respondents

Writ Petition No.2868-P of 2015, decided on 9th December, 2015.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Contractual liability--- Petitioner company was aggrieved of termination of contract by the authorities pertaining to supply of vehicles---Proper agreement was executed with specifications of vehicles to be supplied and there was a clause provided regarding any dispute and arbitration proceedings---No allegation was levelled of any mala fide of government department nor petitioner disputed flaws so pointed out by Technical Committee/Inspection Teams, in their presence--- Such contractual rights and obligations were to be enforced through courts of ordinary jurisdiction--- High Court in exercising its Constitutional jurisdiction loathed to interfere in matters arising out of contractual obligations--- Normal remedy under law was a suit for enforcement of contractual rights and obligations specially in the circumstances when there was a report of technical mechanical nature--- High Court, in such situation, could not substitute its finding with that of technical/mechanical report of expert--- Routine contractual disputes between private parties and public functionaries were not open to scrutiny under Constitutional jurisdiction specially under circumstances when there was no allegation of ill-will or mala fide of public functionaries--- Only contracts carrying element of public interest, concluded by functionaries of State had to be just, fair, transparent, reasonable---Contracts tainted with mala fide were to be in certain cases, could be adjudicated and entertained in Constitutional jurisdiction--- If in every contractual matter, giving rise to enforcement of contractual obligations or a dispute which could be redressed through remedy available under the law, Constitutional petitions were entertained, then the same would defeat the very purpose of law under which competent courts were established and vested with jurisdiction under the law---Petition was dismissed in circumstances.

Messrs Arshad and Company v. Capital Development Authority Islamabad through Chairman 2000 SCMR 1557; Fida Hussain and another v. Mst. Saiqa others 2011 SCMR 1990; Packcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 and Sheikh Wajahat Ali v. Government of Khyber Pakhtunkhwa, through Secretary Industries and 3 others 2013 YLR 2132 rel.

Syed Arshad Ali for Petitioner.

Waqar Ahmad Khan, AAG for Respondents.

Date of hearing: 9th December, 2015.

YLR 2016 PESHAWAR HIGH COURT 1646 #

2016 Y L R 1646

[Peshawar]

Before Ikramullah Khan, J

MUHAMMAD ISMAIL and 3 others---Petitioners

Versus

Mst. WAHEEDAN and 16 others---Respondents

C.R. No.158-D of 2014, decided on 17th September, 2015.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Art. 164---Ex-parte decree, setting aside of---Limitation---Defendants after filing of their written statement did not participate in the proceedings and ex-parte decree was passed on 29-10-2010---Application for setting aside ex-parte decree was moved on 03-06-2011 which was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---If summon were served upon the defendant then period to set aside ex-parte decree would be governed under Art. 164, Limitation Act, 1908 which would be reckoned from the date of decree otherwise same would be reckoned from the date of knowledge of ex-parte decree---Period of thirty (30) days would be in both such cases---Defendants were having knowledge of suit pending before the Trial Court but they remained dormant for unreasonable time to defend the same---Article 164 of Limitation Act, 1908 being attracted to such eventuality, application filed by the defendants for setting aside ex-parte decree was time-barred---Judgment passed by the Appellate Court was based on correct appreciation of law---Revision was dismissed in circumstances.

Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631; Secretary Education Department, Government of NWFP, Peshawar and others v. Asfandyar Khan 2008 SCMR 287 and Khayal Badshah v. Afzal Khan and 4 others PLD 2015 Pesh. 59 rel.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Art. 164---Ex-parte decree, setting aside of---Limitation---If summons were served upon the defendant then period to set aside ex-parte decree would be governed under Art. 164 of Limitation Act, 1908 which would be reckoned from the date of decree otherwise same would be reckoned from the date of knowledge of ex-parte decree which would be thirty days in both the cases.

Sajid Nawaz Khan Sadozai for Petitioners.

Abdul Qayyum Qureshi for Respondents.

Date of hearing: 17th September, 2015.

YLR 2016 PESHAWAR HIGH COURT 1667 #

2016 Y L R 1667

[Peshawar]

Before Muhammad Daud Khan, J

AQLEEM KHAN and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Civil Revisions Nos.31-B and 43-B of 2007, decided on 13th August, 2014.

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

----Ss. 5 & 12---Constitution of Pakistan, Art. 4---Condonation of delay---Sufficient cause---Exclusion of time in legal proceedings---Scope---Plea of appellants was that after excluding the time of obtaining copy 30 days would expire on 16-02-2007 on Friday and when they reached the office/court at 12.15 noon, on the said date the court business had been closed by then because of Friday/half working day and such delay was inadvertent, not deliberate, bona fide and due to half working day---Delay, in circumstances, was beyond the control of appellants---If it was held that appellants' appeal was time-barred, it was actually barred by one day only and prescribed time was expired on Friday---Such delay could have been condoned under S.5 of Limitation Act, 1908---Day of announcement of judgment and the time required for obtaining copy was to be excluded for filing the appeal---Said exemption had been provided by the statute which could not be snatched---Fundamental right that "to enjoy the protection of law and to be treated in accordance with law was inalienable right of every citizen"---Said right had to be enforced by the court in the discharge of judicial function---Impugned judgment was not only against the statutory provisions of law provided in the Limitation Act, 1908 but also against fundamental right guaranteed in the Constitution---Appellate Court was not supposed to disbelieve the explanation given by the appellants for delay without examining record of the copying department when such question for determining the crucial time for limitation had been set out---Office of the court could not be equated with court if copying office remained opened---Notification for working of office could not be equated with statutory right which had been conferred by Art. 4 of the Constitution---Delay of one day had been explained and sufficient cause had been mentioned through affidavit by the appellants---No counter-affidavit was on record to be considered by the court---Word "sufficient cause" must receive liberal construction so as to advance the cause of substantial justice in absence of negligence, inaction or want of bona fide---Findings recorded by the Appellate Court were result of misconception of law and facts which were not sustainable---Impugned order passed by the Appellate Court was set aside---Revisions were remanded to the Appellate Court for hearing the parties and for decision of the case according to law.

Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Muhammad Hussain v. Fateh Muhammad and others 1991 CLC 704; Fazal Karim and another v. Ghulam Jilani and others 1975 SCMR 452; Muhammad Amir v. Khan Bahadar and another PLD 1996 SC 267; Sana Ullah v. Rashid Ahmad Khokhar and 3 others 2000 SCMR 937; Ram Lal and others v. Rewa Ltd. AIR 1962 SC 361 and Mst. Begum and others v. Mst. Begum Kaneez Fatima Hayat and others 1989 SCMR 883 rel.

(b) Constitution of Pakistan---

----Art. 4---Protection of law---Scope---Fundamental right that "to enjoy the protection of law and to be treated in accordance with law was inalienable right of every citizen".

Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 rel.

----Exceptions provided in the law were to be construed liberally to advance the cause of substantial justice.

(d) Discretion---

----Exercise of---Principle---Discretion had to be exercised judicially and not in arbitrary or capricious manner.

Syed Abid Hussain Bukhari for Petitioners.

Saifur Rehman Khattak Addl. A.G. for the State.

Abdur Rasheed Khan Marwat for Respondents.

Date of hearing: 13th August, 2014.

YLR 2016 PESHAWAR HIGH COURT 1687 #

2016 Y L R 1687

[Peshawar]

Before Abdul Latif Khan, J

Messrs DIR WOOD WORKS through Proprietor---Appellant

Versus

SECRETARY, WORKS AND COMMUNICATION DEPARTMENT GOVERNMENT OF NWFP and 3 others---Respondents

R.F.A. No.17-P of 2005, decided on 8th December, 2014.

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

---O. VII, R. 2 & O.VIII, R.4---Limitation Act (IX of 1908), S. 19---Money suit---Acknowledgement---Limitation---Contract for construction---Evasive denial---Effect---Plaintiff filed suit for recovery of amount on account of work done but same was dismissed--- Validity--- Defendants had admitted the award of contract and completion of work done by the contractor---Written statement was based on evasive denial which would amount to an admission on the part of defendants---Trial Court had not decided the "lis" with conscious and application of independent mind---Impugned judgment was deficient of reasons---Defendants were not willing to pay the amount without any justification---Defendants had nothing to say in their defence about the claim made by the plaintiff---Award had been issued in favour of plaintiff whereby he was declared entitled to get the outstanding amount---Defendants had not disputed the award or the claim of plaintiff outstanding against them---Plaintiff kept on requesting for payment---Limitation had to be reckoned from the request of plaintiff and correspondence but not from the date of award---Such correspondence and asking for arrangement of the funds would amount to acknowledgement which would give rise to the fresh starting point to the plaintiff---Claim of plaintiff could not be refused on the ground of limitation---Plaintiff had to be awarded the amount with regard to the work done for construction which had not been denied by the defendants---Impugned judgment was set aside and decree was passed to the tune of Rs.16,91,025.22 along with interest/profit at the prevailing market rate which should be recovered from the delinquent officers who were responsible for the unnecessary delay in payment of the outstanding amount to the plaintiff---Appeal was accepted in circumstances.

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

----O.VIII, R.4---Evasive denial---Effect---Evasive denial would amount to an admission.

Mukaram Shah for Appellant.

Sabir Shah for Respondents.

Date of hearing: 8th December, 2014.

YLR 2016 PESHAWAR HIGH COURT 1704 #

2016 Y L R 1704

[Peshawar]

Before Yahya Afridi, J

NOOR REHMAN and another---Petitioners

Versus

AKRAM KHAN and others---Respondents

Civil Revision No.7-P with C.M. No.14-P of 2015, decided on 22nd February, 2016.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Transfer of Property Act (IV of 1882), S. 53-A---Qanun-e-Shahadat (10 of 1984), Art. 100---Evidence Act (I of 1872), S. 66---Suit for specific performance of contract---Limitation---Agreement to sell---Proof of---Preponderance of evidence---Non-registration of agreement to sell---Effect---No date had been fixed in the agreement to sell to perform part of obligation in transferring possession of suit property to plaintiffs---Evidence produced by the plaintiffs did not support their pleadings---Suit of plaintiffs was barred by time---Alleged agreement to sell was executed on 24-12-1962 before the enactment of Qanun-e-Shahadat, 1984---Provision of S. 66 of Evidence Act, 1872 did not require two witnesses to be produced to prove the execution of deed which was applicable in the present case---Evidence produced by the plaintiffs was sufficient to substantiate their claim---Plaintiff who claimed a fact had to prove the same through cogent and reliable evidence and could not seek refuge behind the weakness of other side---Court had to weigh the evidence produced by the rival parties and to see on whose side the "preponderance of evidence" would rest---When evidence produced by the parties was equally balanced and Court was unable to decide the matter on the available evidence only then principle of burden of proof would come into play---Fact asserted in the examination-in-chief which was not challenged during cross-examination would be deemed to be admitted---Presumption of correctness attached to the document more than 30 years old had not been rebutted by the defendants by producing clear evidence---Fact that possession of part of suit property was transferred to the plaintiffs under agreement to sell had to be proved through evidence---Non-registration of agreement to sell was not fatal to the rights accruing to the plaintiffs---Written agreement to sell existed with regard to suit property in pursuance of which possession had been transferred to the plaintiffs---Ingredients of S. 53-A of Transfer of Property Act, 1882 had been fulfilled by the plaintiffs---Plaintiffs were not entitled to claim title over the possessed suit property but they were entitled to claim possession of the same---Suit of plaintiffs was rightly declared to be time barred by the courts below---Plaintiffs were entitled to retain possession of suit property in circumstances---Revision was dismissed in circumstances.

Muhammad Akram's case 1977 SCMR 433; Muhammad Younus's case 1989 CLC 837; Arshad Khan's case 2005 SCMR 1859; Mst. Ghulam Fatima's case 2006 YLR 1290; Aurangzeb's case 2007 SCMR 236; Sheraz Tufail's case 2007 SCMR 518; Sikandar's case 2007 SCMR 1802; Hafiz Tassaduq Hussain's case PLD 2011 SC 296; Bashir Ahmad Khan's case 2012 CLC 699; Allah Dad's case 1989 CLC 1571; Muhammad Noor's case 1989 CLC 1575; Muhammad Ismail's case 2001 CLC 252; Messrs Syed Tasnim Hussain Naqvi's case 2001 CLC 256; Noor Salam's case PLD 2002 SC 622; Mehandia's case 2011 MLD 1081; Khalil-ur -Rehman's case 2011 MLD 1088; Haji Abdul Karim 's case PLD 2012 SC 247; Pir Wali Khan's case 2013 MLD 1106; Mazhar's case 2013 MLD 1115 and Noorun-Nisa's case 2015 SCMR 380 ref.

Manzoor Ahmad's case 2002 SCMR 1391; Noor Muhammad's case 2002 SCMR 1301; Muhammad Ameen's case PLD 2006 SC 318; Mst. Qaiser Khatoon v. Molvi Khaliq PLD 1971 SC 334; Mst. Murad Begum's case PLD 1974 SC 322; Muhammad Ameen's case PLD 2006 SC 318; Aurangzeb's case 2007 SCMR 236; Muhammad Akram's case 1977 SCMR 433; Sikandar's case 2007 SCMR 1802; Arshad Khan's case 2005 SCMR 1859 and Fazla's case 1997 SCMR 837 rel.

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

---Ss. 12 & 42---Agreement to sell---Suit for declaration---Maintainability---Beneficiary of agreement to sell had to first seek specific performance of the same and suit for declaration and consequential relief would follow the specific performance of contract and be competent only thereafter.

----Art. 100---Document more than 30 years old---Presumption---Presumption of correctness would be attached to the document which was 30 years old and had been produced by the proper party.

(d) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 52---Revenue record---Evidentiary value---Presumption attached to Jamabandi was rebutable.

Arshad Khan's case 2005 SCMR 1859 rel.

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

----S.53-A---Part performance of contract---Conditions.

The conditions precedent for a person to seek protection under the section 53-A of the Act of 1882, are essentially as follows:--

i) That written contract of sale of immovable property for consideration;

ii) Steps taken in pursuance of the said written contract;

iii) The possession is with the transferee and it is continuous.

(f) Islamic law---

----Inheritance---Attestation of inheritance mutation was a public information.

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

----Art. 132---Fact asserted in the examination in chief which was not challenged during cross-examination would be deemed to be admitted.

(h) Pleadings---

----Evidence produced contrary to pleadings had to be discarded.

Abdul Sattar Khan for Petitioners.

Zia-ur-Rehman Khan for Respondents.

Date of hearing: 22nd February, 2016.

YLR 2016 PESHAWAR HIGH COURT 1766 #

2016 Y L R 1766

[Peshawar]

Before Qaiser Rashid Khan, J

SADDIQUE---Petitioner

Versus

FAZAL RAHMAN and another---Respondents

Cr. M. B.A. No.379-P of 2016, decided on 17th March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, refusal of---Complainant had attributed specific role of firing to accused along with his acquitted co-accused at his son, with which he was hit and died on the spot---Plea of accused was that since his co-accused had been acquitted, he was also entitled to bail---Acquitted co-accused had duly faced trial; and complainant had also recorded his statement, but complainant, did not charge the acquitted co-accused for the commission of offence---Such was not the case of accused---Accused after being directly charged by the complainant for the murder of his son along with his co-accused, preferred abscondance, rather than surrender himself to face trial---Grant of bail to accused, would amount to giving him premium for his long abscondence; and would lay a ground for accused charged in like manner cases to remain absconder, and fugitive from law; and only surrender, when their co-accused were acquitted of the charge; and then straightaway apply for the concession of bail---After the acquittal of co-accused; the prosecution was in no manner estopped to bring home the charge of guilt against other accused directly charged for murder---Accused being directly charged, recovery of empties from the spot, medical evidence and long abscondence of accused, prima facie linked the accused with the commission of the offence falling within the prohibitory clause of S.497, Cr.P.C. and thus disentitled him to be enlarged on bail.

Ibrahim v. Hayat Gul and others 1985 SCMR 382 ref.

Shahibzada Assadullah for Petitioner.

Saeed Khan for the State.

M. Arif Khan for the Complainant.

Date of hearing: 17th March, 2016.

YLR 2016 PESHAWAR HIGH COURT 1786 #

2016 Y L R 1786

[Peshawar (D.I. Khan Bench)]

Before Muhammad Younis Thaheem, J

GHULAM YAHYA and others---Appellants

Versus

WAPDA through CHAIRMAN WAPDA and others---Respondents

R.F.A. No.56-D of 2013, decided on 6th February, 2016.

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

----Ss. 18 & 23---Reference to court---Enhancement of compensation---Factors to be considered for determination of compensation---Market value---Scope---Local commission, appointment of---Referee Judge enhanced compensation amount from Rs. 3,859.20/- per kanal to Rs. 25,000/- per kanal along with 15% compulsory acquisition charges and 6% simple interest as per report of local commission---Validity---Local commission was appointed with consent of both the parties---No exception could be taken by the parties against the very appointment of local commission and determination of market value or compensation suggested by the local commission---Referee Judge had determined the market value of acquired land keeping in view all the aspects of the case i.e. the nature of land, its market value, its proximity to the road, building sites and future potentiality---Market value was only one of such matter to be considered by the Collector or Referee Court and would mean that a willing purchaser would have paid for acquired land---Compensation of acquired land was a wide term indicating that landowner was to be compensated and not merely paid the price of the acquired land determined through interaction of twin forces of supply and demand or fixed between a willing buyer and a willing seller---Mere classification or nature of land could not be taken as a single relevant factor for determination of market value or compensation---Local commission had considered all the legal and factual aspects of the case and had furnished a comprehensive and detailed report while proposing the market value as Rs. 25,000/- per kanal---No vital deficiency had been pointed out in the report of local commission---Nothing was on record that market value of suit property was more than 30,000/- per kanal---Report of local commission was rightly taken into consideration and relied upon by the Referee Judge---Appeals were dismissed in circumstances.

Bahi Khan and others v. Shakeel and others 2009 SCMR 594; PLD 2004 SC 512 and PLD 2010 SC 719 rel.

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

----S. 23---Land acquisition---Factors to be considered for determination of compensation were the nature of land, its market value, its proximity to the road, building sites and future potentiality.

Malik Muhammad Bilal for Appellants.

Arif Rahim Ustrana for Respondents.

Date of hearing: 6th February, 2015.

YLR 2016 PESHAWAR HIGH COURT 1810 #

2016 Y L R 1810

[Peshawar (D.I. Khan Bench)]

Before Lal Jan Khattak and Muhammad Ghazanfar Khan, JJ

MUHAMMAD BILAWAL and another---Appellants

Versus

The STATE and another---Respondents

Cr. A. No. 30-D of 2014, decided on 29th March, 2016.

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

----Ss. 7, 5 & 2 (b)----Penal Code (XLV of 1860), S. 302 (b)---Qatl-i-amd---No joint trial of a child and adult person---Age, determination of---'Child'---Definition---State counsel contended that the objection that the accused, being juvenile, could not be tried by the ordinary court, was not sustainable before the appellate court, as the same had not been raised before the Trial Court---Said objection, being a legal ground, could be agitated any time---Accused, as per the card of his arrest and formal charge sheet, was of 16/17 years of age---Section 2 (b) of Juvenile Justice System Ordinance, 2000 defined a "child" as a person, who, at the time of commission of an offence, had not attained the age of eighteen years, and S. 7 of the Ordinance dealt with the determination of age---Trial Court, in such circumstances, was required to first determine the exact age of the accused before proceeding with the case, and in terms of S. 5 of Juvenile Justice System Ordinance, 2000, the accused, if found below the age of eighteen years, could not be tried together with his adult co-accused---High Court, setting aside the impugned judgment, remanded the case with the direction that the Trial Court would first determine the age of the accused and then proceed with the case de-novo.

Sana Ullah Khan Gandapur, Rab Nawaz Awan and Saif ur Rehman for Appellants.

Kamran Hayat Miankhel Add: AG for the State.

Saleemullah Khan Ranazai for the Complainant.

Date of hearing: 29th March, 2014.

YLR 2016 PESHAWAR HIGH COURT 1822 #

2016 Y L R 1822

[Peshawar (Mingora Bench)]

Before Abdul Latif Khan, J

MOHD ILYAS---Appellant

Versus

NAEEMULLAH---Respondent

R.S.A. No.4-M of 2013, decided on 16th September, 2014.

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

----S. 13---Ejectment of tenant---Personal bona fide need of landlord---Denial of relationship of landlord and tenant by the tenant---Rent Controller, jurisdiction of---Scope---Relationship of landlord and tenant was denied on the ground that wife of the tenant being real sister of landlord was co-owner in the demised premises---Eviction petition was accepted concurrently---Validity---Nothing was on record that landlord was exclusive owner of the demised premises---Landlord was bound to prove rent deed by producing marginal witnesses and a scribe of the same---Neither ownership nor the relation as landlord and tenant existed between the parties---Landlord had failed to prove his personal bona fide need as required under the law---Question of relationship between the parties as landlord and tenant would relate to their legal status---Nature of relationship inter se was mixed question which had to be decided in the light of evidence---Bona fide need of landlord of the premises in good faith had to be assessed in the light of available evidence which was lacking in the present case---Rent Controller was bound to frame preliminary issue with regard to relationship between the parties as landlord and tenant and decide the same---Ejectment of tenant had been permitted only on the specified grounds---Rent Controller being persona designata was required to decide the issue after applying judicial mind---Mere assertion of landlord was not to be considered and without clarity no order could be passed for ejectment in favour of landlord---Ownership/title could not be decided by the Rent Controller who had limited jurisdiction in the proceedings---Findings recorded by the Appellate Court were alien to law---Both the courts below had not decided the "lis" with conscious and application of independent mind---Impugned orders passed by both the courts below were not sustainable which were set aside and ejectment petition was dismissed---Appeal was accepted in circumstances.

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

----Preamble---Object of West Pakistan Urban Rent Restriction Ordinance 1959---West Pakistan Urban Rent Restriction Ordinance, 1959 was meant to safeguard the rights of both the landlord and tenant and to provide them remedy for resolution of any dispute arising between them.

Hazrat Rehman for Appellant.

Syed Abdul Haq for Respondents.

Date of hearing: 16th September, 2014.

YLR 2016 PESHAWAR HIGH COURT 1832 #

2016 Y L R 1832

[Peshawar (Mingora/Darul Qaza, Swat Bench)]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

JEHANZEB KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 14 others---Respondents

W.P. No.353-M of 2015, decided on 10th December, 2015.

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

----O. VII, R. 10 & S. 9---Specific Relief Act (I of 1877), S. 54---Land Acquisition Act (I of 1894), Ss. 4, 18 & 30---Suit for permanent injunction---Land acquisition---Award---Plaint, return of---Scope---Plaintiff had simply sought permanent injunction against the authorities (defendants) for restraining them not to encroach upon the private property of plaintiff---Plaintiff had not challenged the award or its proceedings in land acquisition matter---Provisions contained in the statute ousting the court of general jurisdiction was to be construed strictly and unless case fell within the letter and spirit of the barring provisions it should not be given effect to---When a special forum had been created by a statute and a special remedy had been provided then that forum should have exclusive jurisdiction to adjudicate upon such matters---Plaintiff was not aggrieved by the award and he was not required to raise any objection to that award---Civil court being court of general and ultimate jurisdiction was to try all suits of civil nature unless expressly or impliedly barred by law---Impugned judgment/order passed by the Appellate Court was set aside and case was remitted to the Trial Court with the direction to appoint local commission who in presence of the parties would determine the boundaries of the acquired area of the plaintiff if any and then to decide the case on merits within specified period---Constitutional petition was allowed in circumstances.

Saifur Rehman v. Fazlur Rehman PLD 1984 Pesh. 219 and Messrs Bambino v. Govt. of Sindh 2002 MLD 1673 rel.

(b) Jurisdiction---

----Ouster of jurisdiction could be claimed when impugned order/action was found to be within the four corners of the statute barring jurisdiction.

----"Ubi jus ibi remedium"---Meaning.

Abdul Halim Khan and Khwaja Salahuddin for Petitioner.

Sabir Shah, AAG for the State.

Date of hearing: 10th December, 2015.

YLR 2016 PESHAWAR HIGH COURT 1858 #

2016 Y L R 1858

[Peshawar (Bannu Bench)]

Before Muhammad Daud Khan, J

NIAZ MUHAMMAD and 8 others---Petitioners

Versus

MARWAT KHEL and others---Respondents

Civil Revision No.9-B of 2005, decided on 22nd September, 2014.

Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)-

----S. 3---Deceased dying issueless---Inheritance right of deceased's brothers---Custom--- Limitation--- Scope--- Deceased was owner of suit property and he died issueless and upon his death his property was mutated in favour of his four widows according to prevailing custom---Plaintiffs being descendants of brothers of deceased challenged mutation in favour of widows of deceased on grounds that widows of deceased were jointly entitled to 1/4th share of suit property and remaining 3/4th share was to be devolved upon them---Trial Court decreed the suit and appeal against was accepted---Plaintiffs contended that by virtue of provisions of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, share of predecessor of plaintiffs could not be extinguished, since Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 had been given retrospective effect---Defendant contested suit on ground that impugned mutation was attested in 1935 and at that time Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 had not been promulgated---Validity---Entire legacy of deceased devolved to four widows of deceased according to custom but in accordance with Islamic Law of Inheritance widows were entitled only to the extent of 1/4th share and remaining share had to be devolved on other legal heirs---Law clearly stated that when question of succession of a Muslim arose before any court it would be resolved in accordance with Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 deeming it to be applicable at the time of such death even though deceased might have died prior to promulgation of the Act by giving it retrospective effect---Dispute of inheritance would not attract question of limitation---Plaintiffs were to be treated as co-sharers in suit property left by deceased---Revision was accepted accordingly.

Muzaffar Khan v. Mst. Roshan and others PLD 1984 SC 394; Habibullah Khan and others v. Muhammad Hassan Khan and 6 others PLD 1991 SC 93; Mst. Farida and others v. Rehmatallah and others PLD 1991 SC 213; Muhammad Anwar and others v. Khudayar and others 2008 MR 905; Abdur Rehman v. Mosam Khan 2012 YLR 2710; Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others 1991 SCMR 515 rel.

Abdul Mabood Khan Khattak for Petitioners.

Mehboob Khan Khattak for Respondents.

Date of hearing: 22nd September, 2014.

YLR 2016 PESHAWAR HIGH COURT 1873 #

2016 Y L R 1873

[Peshawar]

Before Mazhar Alam Khan Miankhel, C J and Syed Afsar Shah, J

AIZAZ ULLAH and another---Petitioners

Versus

PROVINCIAL GOVERNMENT (KPK) through Secretary Education and others---Respondents

W.P. No.468-P of 2013, decided on 3rd December, 2014.

Civil Procedure Code (V of 1908)---

----S. 11--- Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---Res judicata, principle of---Applicability---Every cause once tried and finally adjudicated upon by a competent forum should be deemed to be conclusive and binding on the litigants and the parties deriving title from them---Rule of res judicata was a mixed question of law and facts and its application would depend upon the proof with regard to identical nature of the subsequent matter---Courts below had not provided opportunity of producing pro and contra evidence to the parties for establishing their claim to resolve controversy in issue---Courts below should have given an opportunity to the parties to produce evidence---Impugned orders were set aside and case was remanded to the Trial Court to frame issue and record pro and contra evidence and decide the application in accordance with law---Constitutional petition was accepted in circumstances.

Lal Zamin alias Lalono Zargar and others v. Asfandyar Khan and 2 others PLD 2012 Pesh. 75 and Khalil Ahmad and others v. Mst.Azmat Ara (widow) and others 2014 YLR 1782 rel.

Mukhtar Ahmad Khan for Petitioners.

Mujahid Ali Khan, A.A.G. for Respondents.

Muhammad Humayun Khan for Private Respondents.

Date of hearing: 3rd December, 2014.

YLR 2016 PESHAWAR HIGH COURT 1883 #

2016 Y L R 1883

[Peshawar]

Before Nisar Hussain Khan, J

Mst. TAJRIAN---Petitioner

Versus

ZARSHAID KHAN and another---Respondents

C.R. No.204 of 2006, decided on 19th October, 2015.

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

----S. 42---Contract Act (IX of 1872), Ss. 214 & 215---Suit for declaration---Power of attorney---Pardanasheen lady---Execution of document---Burden of proof---Mala fide---Proof of---Limitation---Transfer of property by the attorney in favour of his relative---Effect---Contention of plaintiff was that she was owner in possession of suit property and impugned mutation in favour of defendant was fake and fictitious---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Suit mutation was entered and attested by the attorney in favour of his wife without taking the vendor lady into confidence---Vendor lady was confided by her brother for obtaining power of attorney that her property would be managed by him under the said authority---Entry with regard to sale, mortgage, exchange, or gift was a cyclostyle one which in normal course was mentioned as a routine matter---Had it been intended to alienate her property in favour of wife of the defendant then registered deed at the same time could have conveniently been attested---Principal might repudiate the sale if agent had bought the estate for himself in the name of someone else and sale was disadvantageous to the principal---Defendant had transferred the plaintiff's property in favour of his wife without acquainting principal who was a pardanasheen lady---Rights of pardanasheen ladies should be protected when it was established that same had been usurped by male members of the family---Burden of proof with regard to documents purported to have been executed by pardanasheen lady affecting her right or interest in the immovable property would be on the person claiming the right or interest under the deed---Beneficiary of said document was required to prove that contents of deed were understood by the lady and it was her free and intelligent act---If executant of said document was illiterate then same must have been read over to her---Mere efflux of time would not sanctify the action based on fraud and misrepresentation---Time would run from the date when right to sue would accrue and fraud and misrepresentation came in the knowledge---When mutation was challenged on the basis of fraud and misrepresentation then beneficiary would be bound to prove original transaction through cogent and trustworthy evidence---Beneficiary would have to face the consequences on failure to prove the genuineness of the transaction---Mere entry of mutation did not create any right as same was not a document of title---Revenue record would be maintained only for fiscal purposes which did not create nor extinguish right of a party unless proved to the satisfaction of court that same was genuinely entered into and attested after payment of consideration with free consent of vendor---Beneficiary of mutation had failed to prove genuineness of the transaction---Impugned mutation was not sustainable in circumstances---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored---Revision was allowed in circumstances.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Mst. Suban v Allah Ditta and others 2007 SCMR 635; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Abdul Hameed through L.Rs. and others v. Shamsuddin and others PLD 2008 SC 140; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855 and Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370 ref.

Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618; Muhammad Yousaf Siddiqui v. Haji Sharif Khan through L.Rs. and others PLD 2005 SC 705; Fateh Khan (deceased) through L.Rs. and another v. Surriya Begum 2006 SCMR 930; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Fida Muhammad Khan v. Pir Muhammad Khan through legal heirs PLD 1985 SC 341; Khawas Khan's case 2004 SCMR 1259; Ramanamma v. Marina Virania AIR 1931 Privy Council 100; Faridunnisa v. Mukhtar Ahmad AIR 1925 PC 204; Chainta Dasya v. Bhalku Das AIR 1930 Cal. 591; Shrimati Saratkumari Dasi v. Amullyadhan Kundu and others AIR 1923 PC 13; Mst. Faridunnisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204; Taleh Bibi and others v. Mst. Maqsooda Bibi and another 1997 SCMR 459; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Badshah Begum v. Ghulam Rasul and 4 others PLD 1991 SC 1140; Samar Parvaiz v. B.I.S.C.E. PLD 1971 SC 838; Fatahuddin v. Zarshad 1973 SCMR 248 and Bakhsha and others v. Ghugatta 2002 SCMR 1353 rel.

(b) Mutation---

----Mutation did not create any right as same was not a document of title.

Ihsanullah for Petitioner.

Atta-ur-Rehman Mandukhel for Respondents.

Date of hearing: 19th October, 2015.

YLR 2016 PESHAWAR HIGH COURT 1901 #

2016 Y L R 1901

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

GHULAM SARWAR---Petitioner

Versus

MUHAMMAD JAVED and others---Respondents

W.P. No.887-A of 2012, decided on 25th March, 2015.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 47----Specific Relief Act (I of 1877), Ss. 42 & 55---Constitution of Pakistan, Art. 199---Constitutional petition---Application under S. 12(2), C.P.C.---Essentials---Maintainability---No specific plea of fraud and misrepresentation---Effect---Plaintiff filed suit for declaration and mandatory injunction on basis of pro note and agreement under which defendant was alleged to have borrowed money from him---Defendant took plea that said pro note and agreement had been procured by use of arms and harassment---Defendant after filing written statement was proceeded ex parte for his absence---Trial Court decreed the suit ex parte---Defendant filed objection petition in execution of ex parte decree, which was dismissed---Defendant challenged ex parte decree under S. 12(2), C.P.C., which the court accepted, and revisional court declined interference in order of acceptance---Validity---Execution of pro note and agreement had not been denied by defendant---Defendant having participated in the proceedings of suit and having knowledge as to pendency of the same, instead of contesting the suit, opted absence from trial proceedings ---Defendant failed to follow legal course by applying for setting aside the ex parte decree, and instead filed objection petition under S. 47, C.P.C., which was dismissed both by executing court and appellate court---Objections raised in application filed under S. 12(2), C.P.C. were not sustainable as the same objections had been raised in objection petition filed under S. 47, C.P.C.---No justification existed for filing application under S. 12(2), C.P.C. after the objection petition under S. 47, C.P.C. had been dismissed---Application filed under S. 12(2), C.P.C. did not contain any reference to fraud which was pre-requisite for maintainability thereof---No justification to entertain and proceed with application under S. 12(2), C.P.C. existed as the same did not fulfil essential requirement of disclosing fraud and misrepresentation in the impugned decree---Orders of courts below being on wrong premise were set aside and application under S. 12(2), C.P.C. was dismissed---Constitutional petition was allowed.

Sadiq Mehmood for Petitioner.

Sultan Ahmad Jamshed for Respondents.

Date of hearing: 25th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 1936 #

2016 Y L R 1936

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

RUSTAM and others---Petitioners

Versus

Mst. SIKANDAR JAN and others---Respondents

C.R. No.504-A of 2011, decided on 24th November, 2014.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1 (2)---Withdrawal of suit with permission to file fresh suit---Formal defect--- Scope--- Suit was dismissed against which appeal was filed wherein plaintiffs moved an application for withdrawal of suit with permission to file fresh one which was accepted by the Appellate Court on payment of cost of Rs. 10,000/---Validity---Suit could be withdrawn if there was formal defect in the same---Application for withdrawal of suit, in the present case, was moved at belated stage when suit had already been dismissed by the Trial Court---Plaintiffs had failed to disclose the formal defect and their suit was dismissed on the ground of their failure to prove the same---When defect pointed out was substantial and latent in nature touching merits of the case, the same could not be considered as formal defect in the plaint to make out a ground for the withdrawal of suit---Impugned order passed by the Appellate Court suffered from illegality and material irregularity which was not sustainable which was set aside and matter was remanded to the Appellate Court for decision on merits---Revision was accepted in circum-stances.

2001 SCMR 148 and PLD 1981 Pesh. 72 rel.

Malik Hashim Ghani for Petitioners.

Muhammad Saleem Awan for Respondents.

Date of hearing: 24th November, 2014.

YLR 2016 PESHAWAR HIGH COURT 1974 #

2016 Y L R 1974

[Peshawar]

Before Assadullah Khan Chamkani, J

ASLAM---Appellant

Versus

The STATE and another---Respondents

Cr. A. No.201-P of 2013, decided on 24th November, 2014.

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

----Ss. 324, 337-F(v) & 452---Attempt to commit qatl-i-amd, causing Hashimah, house-trespass after preparation for hurt, assault, or wrongful restraint---Appreciation of evidence---Benefit of doubt---Incident took place at odd hours of the night, at 2.20 a.m.---Blood feud with accused had been alleged by complainant as motive behind the occurrence---Complainant had neither stated anything about the mode and manner of entry of accused persons, and their exit after commission of the incident and had not mentioned the height of boundary walls of his house, nor did the Investigating Officer gave the same in the site plan---Such omission on the part of the Investigating Officer, seemed to be deliberate, so as to keep in dark the court from possibility or impossibility of entry of accused---Serious doubts existed about the presence of prosecution witnesses on the spot---Despite close proximity, none of the eye-witnesses, had sustained any injury, which seemed highly improbable in case of indiscriminate firing of three accused with automatic weapons like Kalashnikovs from close proximity of 8 to 10 paces as alleged by the complainant---No bullet marks, had been observed on the wall of the room---No blood had been recovered from the bed of the complainant---Beds/cots of the complainant party, had neither been shown in the site plan, nor taken into possession in support of version of the complainant---Both prosecution witnesses had contradicted each other on material aspects of the incident---No weapon of offence had been recovered from direct or indirect possession of accused, nor had he confessed his guilt before any competent court of law---Prosecution had failed to bring home the guilt of accused through cogent and confidence inspiring evidence---Prosecution evidence was doubtfull which went to the very roots of the case; benefit of which was to be extended to none else, but accused---Trial Court, by not properly appreciating the evidence, reached to the erroneous conclusion by holding accused guilty of the offence---Impugned judgment of the Trial Court, was liable to be set aside, in circumstances---Conviction and sentence of accused recorded by the Trial Court, were set aside and accused was acquitted of the charge levelled against him---Accused being on bail, his bail bonds stood cancelled, and sureties were absolved from the liability, in circumstances.

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

----Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd, causing Hashimah---Statement of injured witness---Scope---In hurt cases, statement of injured witness, supported by medical evidence, no doubt; was sufficient for recording conviction, provided the same rang true; and was trustworthy in view of its intrinsic worth---Mere stamp of injuries on the person of a witness, would not be a proof of the fact, whatever he deposed, would be the truthful account of the events---Veracity of said witness was to be tested from the circumstances of the case; and his own statement.

Muhammad Pervez and others v. The State and others 2007 SCMR 670; Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795 and Muhammad Hayat v. The State 2007 MLD 1543 ref.

----Benefit of doubt---Scope---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, otherwise, the rule of benefit of doubt, would be reduced to naught---Absolute certainty, was seldom found 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 other party---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt would arise in the prosecution case, the benefit of the same must be extended to accused, not as a grace or concession but as a matter of right---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 acquittal of accused.

Javed A. Khan for Appellant.

Nemo for the Complainant.

Rab Nawaz Khan, A.A.G. for the State.

Date of hearing: 24th November, 2014.

YLR 2016 PESHAWAR HIGH COURT 2020 #

2016 Y L R 2020

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Muhammad Younis Thaheem, JJ

INAYATULLAH and another---Appellants

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.145-B of 2012, decided on 19th February, 2015.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about one hour and fifteen minutes in lodging FIR, had not been explained---Occurrence had not taken place in the mode and manner as alleged by the complainant---Both the star witnesses had been abandoned, which led to the inference that, if they were produced, they were not to support the prosecution case---Motive behind the occurrence, remained shrouded in mystery, which had created serious doubt in the prosecution case---Prosecution witness had made improvements in his statement recorded under S.161, Cr.P.C.---Testimony of the eye-witnesses, were not only pregnant with discrepancies, but also inconsistent with the medical evidence and other circumstances of the case---Prosecution case against accused persons, had not been proved beyond reasonable doubt---Conviction and sentence awarded to accused persons were set aside, they were acquitted of the charge and were released, in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Medical evidence---Scope---Medical evidence could establish the cause of death, but it would not identify the assailants.

----Benefit of doubt---For recording conviction in a case of capital charge, there must be an evidence of unimpeachable character, having no shadow of doubt---Prosecution, was bound to prove its case beyond any shadow of doubt---If any reasonable doubt, would arise in the prosecution case the benefit of the same must be extended to accused not as a grace or concession, but as a matter of right---So many doubts were not required in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind, was sufficient for acquittal of accused---Acquittal by error, was better than conviction by error---No innocent could be punished.

Mohammad Akram v. The State 2009 SCMR 230; Tariq Parvez v. The State 1995 SCMR 1345 and Mohammad Luqman v. The State PLD 1970 SC 10 ref.

(d) Criminal trial---

----Absconsion---Scope---Absconsion was not substantive piece of evidence; it was a corroborative piece of evidence---Where direct evidence failed, corroborative piece of evidence, was of no avail---Abscondence, could neither cure the inherent defect of the ocular account, nor by itself was sufficient to sustain conviction.

Islam Badshah and 2 others v. The State PLD 1993 Pesh. 7 rel.

Pir Liaqat Ali Shah, Yaqoob Marwat and Masood Iqbal for Appellants.

Qudratullah Khan Gandapur, Asstt. A.G. for the State.

Anwarul Haq and Mirzali Khan for Respondents.

Date of hearing: 19th February, 2015.

YLR 2016 PESHAWAR HIGH COURT 2047 #

2016 Y L R 2047

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

FALAK NIAZ---Plaintiff

Versus

AMAL DIN and another---Respondents

C.R. No.120-B of 2012, decided on 12th December, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Witnesses being not truthful---Effect---Variations in pleadings and proof---Pre-emptor was bound to prove the time, place and declaration of his intention to pre-empt the suit land by producing truthful witnesses---Witnesses of pre-emptor were not truthful---Findings of both the courts below with regard to performance of Talb-i-Muwathibat were perverse and against law---Pre-emptor had failed to prove the factum of Talb-i-Muwathibat---Pre-emptor was bound to prove the sending of notice of Talb-i-Ishhad---Pre-emptor had failed to produce and exhibit the acknowledgement-due which was mandatory in view of the provision of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Such non-compliance thereof was fatal to the claim of pre-emptor---Registered envelopes were not delivered to the vendees and no notice had been served upon them---Pre-emptor had failed to prove Talb-i-Muwathibat as well as Talb-i-Ishhad in circumstances.

Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488 ref.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488; Dr. Nosheen Latif's case 2010 YLR 1190; Muhammad Hussain v. Manzoor Hussain 2004 SCMR 737; Binyameen and 3 others v. Ch. Hakim and another 1996 SCMR 336 and Ghafoor Khan (deceased) through L.Rs. v. Israr Ahmad 2011 SCMR 1545 rel.

(b) Pleadings---

---Variation in pleadings and proof was not permissible under the law.

----If law required a particular thing to be done in a particular manner then it should be done in the same way otherwise it would be considered non-compliance of the legislative intent.

Asghar Ali Khan for Appellant.

Zahid-ul-Haq for Respondents.

Date of hearing: 12th December, 2014.

YLR 2016 PESHAWAR HIGH COURT 2081 #

2016 Y L R 2081

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD IQBAL---Appellant

Versus

MUHAMMAD ANWAR and 4 others---Respondents

Cr.A. No.200-P of 2008, decided on 21st December, 2015.

Penal Code (XLV of 1860)---

----Ss. 337-A(ii) & 34---Criminal Procedure Code (V of 1898), Ss.417(2-A), 249-A & 345(2)---Causing Shajjah-i-Mudihah, common intention---Compromise at bail stage---Appeal against acquittal---Compromise, effected between the parties at bail stage, could not be made basis for acquittal of accused during trial; as under S.345(2), Cr.P.C., it would be the Trial Court which had to satisfy itself; and grant permission in respect of compounding the offence---Under S.345(2), Cr.P.C., pendency of prosecution of the offence before the Trial Court at the time of compromise, was a condition precedent, but in the interest of justice, keeping in view the traditions, customs and the way of earning livelihood of the people, Trial Court could consider the compromise arrived at between the parties at bail stage (during trial), if the compromise was still intact, and victims or the legal heirs of the deceased, had no objection over the compromise produced at bail stage---If the Trial Court, was not satisfied with the compromise arrived at between the parties at bail stage, it could proceed with the compromise afresh---In the present case, injured though had effected compromise with accused at bail stage, but during prosecution of the offence, before the Trial Court, they resiled---Trial Court being not satisfied with the compromise, was justified by not considering the compromise for acquittal of accused---Revisional Court, reached to erroneous conclusion by acquitting accused under S.249-A, Cr.P.C., on the basis of compromise---Impugned judgment of the revisional court, was set aside, and order/judgments of the Trial Court below was restored; and case was remanded to the Trial Court for proceeding with the same on merits.

Muhammad Rustam Khan for Appellant.

Mian Arshad Jan A.A.G. for the State.

Mohammad Ajmal Lateef for Respondents.

Date of hearing: 30th November, 2015.

YLR 2016 PESHAWAR HIGH COURT 2099 #

2016 Y L R 2099

[Peshawar]

Before Qaiser Rashid Khan, J

AZIZ-UR-REHMAN---Petitioner

Versus

SARFRAZ and another---Respondents

B.A. No.91-P of 2016, decided on 22nd March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage, common intention---Bail, grant of---Further inquiry---Injured person, in his statement under S.161, Cr.P.C., had though charged three unnamed armed persons to have fired at them, but did not charge the accused for the same---Said person had also filed his affidavit duly attested to that effect---Complainant, also filed separate application before the High Court, accompanied by his sworn affidavit, stating therein to have nominated accused party in a state of fear and disturbance on account of previous blood feud and further to have satisfied himself that the firing was made by unknown persons---Such affidavits of star witnesses would have a direct bearing on the ultimate trial of accused and would make the case of accused one of further inquiry---Accused was granted bail, in circumstances.

Muhammad Nawaz alias Najja v. The State 1991 SCMR 111 and Muhammad Najeeb v. The State 2009 SCMR 448 ref.

Shabbir Hussain Gigyani for Petitioner.

Rahim Shah Asst: A.G. for the State.

Muhammad Amin Khattak Lachi for the Complainant.

Date of hearing: 22nd March, 2016.

YLR 2016 PESHAWAR HIGH COURT 2116 #

2016 Y L R 2116

[Peshawar (Abbottabad Bench)]

Before Abdul Latif Khan, J

WALI DAD KHAN---Petitioner

Versus

Mst. BILQUEES---Respondent

C.R. No.312 of 2009, decided on 30th March, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 10, 11 & S. 9---Specific Relief Act (I of 1877) Ss. 42 & 54---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S.172---Suit for declaration with permanent injunction---"Rejection of plaint on ground of jurisdiction"---Principles---Jurisdiction of civil court---Rejection and "return" of plaint, distinguished---Plaintiff filed suit for declaration to the effect that they were owners in possession of suit property and mutation on basis of partition proceedings in another suit was wrong, illegal and ineffective upon their rights---Defendants filed application for rejection of plaint---Plaint was rejected with observation that jurisdiction of court was completely excluded in terms of S. 172 of West Pakistan Land Revenue Act, 1967---Appeal against was also rejected---Validity---Partition proceedings were decided on basis of compromise whereupon mutation was attested, however, grievance of plaintiff was that Tatima was carved against their rights---Serious allegations levelled in plaint were to be looked into by court which was not possible without recording evidence---No other forum was available for plaintiffs for redressal of their grievance as order passed on basis of compromise was not assailable before higher forum in revenue hierarchy---Plaintiff was to approach civil court as they had been allegedly defrauded and in case they failed to prove, the matter would meet logical end---Contents of plaint were to be looked into on face of it without any reference to defence---Whenever jurisdiction of civil court was ousted by a particular statute, only plaint could be returned but plaint could not be rejected on the ground of lack of jurisdiction---Revision was accepted in circumstances.

Haji Sabir Hassan Tanoli for Petitioners.

Malik Waseem Fazal for Respondent.

Date of hearing: 30th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 2143 #

2016 Y L R 2143

[Peshawar]

Before Abdul Latif Khan, J

Syed MUKARAM SHAH---Petitioner

Versus

FAZAL QADOOS---Respondent

Civil Revision No.180 of 2014, decided on 12th January, 2015.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 9 & 20---Talbs, performance of---Parties were co-sharers of property in question---Plaintiff was non-suited on the ground that his son, daughters and wife were present at the time of performing of Talb-i-Muwathibat who were not cited as witnesses and best evidence had been withheld---Effect---Pre-emptor had fully corroborated the stance taken in the plaint---Plaintiff had not deposed that his son, daughters and wife were present in the 'Majlis'---Pre-emptor could not be non-suited merely on the ground that his wife, daughters and son were present in other parts of the house---None of the said persons/inmates of the house were present at the time of performing of Talb-i-Muwathibat---Discrepancies and minor contradictions arising out of the evidence recorded after considerable time were natural---Witness could not be expected to give stereotype evidence after lapse of considerable time---Both the courts below had misread the evidence available on record---Minor discrepancies in the statements of witnesses could be ignored and only grave contradictions and dishonest improvements were to be taken into consideration---Findings of both the courts below on the point of Talb-i-Muwathibat were not immune from corrective process by the High Court---Notice of Talb-i-Ishhad was properly sent through registered post which was received by the defendant---Sale consideration of Rs. 1,50,000/- was paid in good faith as market value of suit land---Both the parties being co-sharers in the suit property, were equally entitled to the right of pre-emption---Suit property was directed to be distributed among both the parties equally in share---Pre-emptor, in circumstances, was directed to deposit amount of sale consideration to the extent of half of the sale consideration to the tune of 75,000/- as per his equal share in the suit land within 30 days of order failing which the suit should stand dismissed---Impugned judgments and decrees passed by both the courts below were set aside and suit was partially decreed to the extent of half share of suit land on payment of half of the sale consideration---Revision was accepted accordingly.

Noor-ul-Hakam Khan for Petitioner.

Zaib Alam Khan for Respondent.

Date of hearing: 12th January, 2015.

YLR 2016 PESHAWAR HIGH COURT 2189 #

2016 Y L R 2189

[Peshawar]

Before Qalandar Ali Khan, J

ZALIB KHAN---Petitioner

Versus

NADIR KHAN and 2 others---Respondents

Civil Revision No.571/P of 2014, decided on 8th December, 2014.

Allotment----

----Allotment of flat as employee of company, cancellation of---Validity---Petitioner's allotment of subject flat was cancelled after the electric supply company had been bifurcated/reorganized into two companies and the petitioner had been transferred to the other electric supply company, and the flat in question was allotted to the defendant---Petitioner filed suit claiming that he was entitled to retain possession of the flat as he was part of the same organization and that the other employees of other electric supply company were still occupying the flats in the colony---Defendant also filed suit claiming possession of the flat---Both Trial Court and appellate court dismissed suit of the plaintiff and decreed the suit filed by the defendant---Validity---Plaintiff, having been transferred to the other company, had no right whatsoever in the bifurcated company---Allotment of the plaintiff had been cancelled after his transfer to the other company---Plaintiff, having been served with notice to vacate the flat, had undertaken to vacate the same, which he had failed to honour---Flat belonged to the bifurcated company which was authorized to allot and cancel the unauthorized allotment---Revision petition was dismissed in circumstances.

Syed Shahid Shah for Petitioner.

Haji M. Zahir Shah for Respondents.

Date of hearing: 8th December, 2014.

YLR 2016 PESHAWAR HIGH COURT 2195 #

2016 Y L R 2195

[Peshawar (Abbottabad Bench)]

Before Abdul Latif Khan, J

Mst. AKHTAR BIBI---Petitioner

Versus

ABDUL RASHEED---Respondent

Civil Revision No.217-A of 2008, decided on 1st January, 2015.

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

----S. 54---Civil Procedure Code (V of 1908), O. XLI, R. 31---Suit for permanent injunction---Co-sharer---Scope---Plaintiff/ Petitioner was in possession of the suit property---Both the courts below had not properly evaluated the evidence available on record---Defendant had no right to raise construction on the suit property without legal partition---Co-owners had the right in each and every inch of the property jointly owned by them irrespective of the quantum of their entitlement for possession over the same---Appellate Court had passed the judgment in disregard with O.XLI, R.31, C.P.C. in a manner alien to law---Appeal being continuation of original suit, appellate court was the last court of facts and had ample powers to thrash out and evaluate the entire evidence---Appellate Court should not have simply agreed with the findings of Trial Court---Appellate Court had failed to perform its duty in line with the law and had chosen easy path of least resistance inslead of applying its independent mind---Proper course for the joint owner was to approach the revenue hierarchy for partition of a particular share---Civil court had ample power to redress the grievances of the owner in possession of the property seeking relief to restrain the other owner of his/her dispossession from the joint property till the legal partition---Courts below were bound to consider the case of the plaintiff with regard to her dispossession from the property---Both the courts below had not decided the lis with conscious and independent application of mind---Impugned judgments and decrees passed by the courts below were not sustainable in the eye of law---Impugned judgments and decrees of both the Courts below were set aside and case was remanded to the Trial Court for decision afresh in accordance with law within a specified period---Revision was accepted, in circumstances.

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

----S. 115---Revision---Scope---Revisional court had ample power to reverse the findings which were result of mis-reading and non-reading of evidence and non-exercise of jurisdiction vested in the courts below.

Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700; Ghulam Muhammad v. Ghulam Ali 2004 SCMR 1001; Abdul Mateen v. Mustakhia 2006 SCMR 50 and Muhammad Khaqan v. Trustees of the Port of Karachi 2008 SCMR 428 rel.

----Co-owners had the right in each and every inch of the property jointly owned by them irrespective of the quantum of their entitlement for possession over the same.

Sultan Ahmad Jamshed for Petitioner.

Ali Zaman Tareen for Respondent.

Date of hearing: 1st January, 2015.

YLR 2016 PESHAWAR HIGH COURT 2204 #

2016 Y L R 2204

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

NAZIM-UD-DIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.70-A of 2013, decided on 19th January, 2016.

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

----Ss. 302(b), 324, 337-A(ii) & 427---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Mudihah, mischief---Appreciation of evidence---Sentence, reduction in---Accused persons, were directly charged in the promptly lodged FIR---Role of qatl-i-amd of the deceased was specifically assigned to one of accused persons---Complainant, also specifically charged co-accused for hammer blows on his head---External postmortem reports of the deceased confirmed fire-arm injuries on specific parts of deceased---Confirmation of hammer blows on the complainant, fully supported version given by the complainant in the FIR---Recovery of crime empties from the places assigned to accused in the site plan, together with positive report of Forensic Science Laboratory with regard to the blood stained pebbles, earth; blood stained garments of the deceased; recovery of two hammers used in the commission of offence by accused persons connected accused persons with the commission of offence---Unexplained absconsion of accused persons, further augmented case of the prosecution against accused persons---Overwhelming evidence, adduced by the prosecution, left no room for doubting version of the prosecution---Non-reporting of the occurrence at the Police Station, omission on the part of Medical Officer to conduct internal postmortem of the deceased etc., did not tend to dislodge case of prosecution against accused persons---Ocular account was furnished by the complainant and the eye-witnesses who though closely related to the deceased, had no motive---Nothing had been alleged on account of the defence, to either falsely implicate accused persons, or substitute them for the actual culprits---Ocular account furnished by the complainant and eye-witnesses also got corroboration from the circumstantial evidence---Accused were rightly convicted, in circumstances---Offence of qatl-i-amd of the deceased, though was proved against accused, but nature of motive cited for the offence and facts of case did not warrant the imposition of death penalty on him---Punishment of death awarded to accused, was committed to imprisonment for life as tazir under S.302(b), P.P.C.

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

----Ss.324 & 427---Attempt to commit qatl-i-amd---Co-accused was convicted under S.324, P.P.C., and imprisonment of seven years R.I. with compensation, was awarded to him---Allegation of attempt at the life of the complainant was not proved against co-accused---Hammer blows allegedly caused by said co-accused on the head of the complainant resulted in wounds without bleeding---Sentence awarded to said co-accused under S.324, P.P.C., was set aside---Other two co-accused, were convicted and sentenced under S.427, P.P.C., for pelting stones and causing damage to the complainant; their sentence of one year R.I. with fine, was not sustainable as they were not charged for the said offence in the FIR---Conviction and sentences of said co-accused were set aside and they were acquitted of the charges.

Haji Muhammad Pervaiz Khan Swati for Appellants.

M. Naeem Abbasi, A.A.G. for the State.

Ghulam Mustafa Khan Swati for the Complainant.

Date of hearing: 19th January, 2016.

YLR 2016 PESHAWAR HIGH COURT 2212 #

2016 Y L R 2212

[Peshawar (Abbotabad Bench)]

Before Mrs. Irshad Qaiser and Qalandar Ali Khan, JJ

ADEEL and another---Appellants

Versus

The STATE---Respondent

Cr. A. No. 107-A of 2013, decided on 10th March, 2015.

(a) Criminal trial---

----Benefit of doubt--- Prosecution, primarily, was bound to establish guilt against accused without shadow of reasonable doubt by producing trust-worthy, convincing and coherent evidence enabling the court to draw conclusion as to whether the prosecution had succeeded in establishing accusation against accused; or otherwise---If the court would come to the conclusion that charges so imputed against accused had not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt and in such a situation, the court had no jurisdiction to abridge such right---To ascertain as to whether accused were involved in the case, or they were entitled to the benefit of doubt, the court could conclude on considering agglomerated effect of the evidence available on record---For giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubt---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.

Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Luqman v. The State PLD 1970 SC 10 and Muhammad Akram v. State 2009 SCMR 230 ref.

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

----Ss. 365-A, 120-B & 109---Anti-Terrorism Act (XXVII of 1997), S.21-J---Kidnapping or abduction for ransom, criminal conspiracy, abetment---Appreciation of evidence--- Benefit of doubt---Case of two versions---Court was obliged to put both the versions in juxtaposition, and then ascertain which one was true---Story narrated by alleged abductee, did not appeal to the prudent mind and contradictions existed in the statements of prosecution witnesses---Prosecution having withheld the material piece of evidence, adverse inference could fairly be drawn that had said witness been produced, her evidence could have been unfavourable to the prosecution---Statement of alleged abductee, either under S.161, Cr.P.C., or under S.164, Cr.P.C., was not recorded soon after her recovery---No proper explanation had been given for non-recording her statement at proper time---Alleged abductee had made certain improvements--- Guest house, where alleged abductee was kept, was situate at a thickly populated area and if she had been kidnapped, she could easily attract the people by raising hue and cry---Facts had supported the narration of accused that alleged abductee had gone with accused with her own free will---Prosecution had not been able to prove its case through direct evidence---Accused remained in Police custody for two days, but he did not confess his guilt---Judicial Magistrate had not followed the legal procedure for recording confessional statement of accused---Story narrated by accused recorded under S.342, Cr.P.C., was correct and he had never confessed his guilt before Judicial Magistrate---Confessional statement, which was recorded after long delay of more than 15/16 days from the date of arrest, could not be used as substantive evidence of fact---Identification parade, which had not been conducted in accordance with the prescribed procedure, had no value for determining the case of accused---Narration of defence appeared to be more truthful, convincing and correct than the contention of prosecution---In absence of truthful, trustworthy, reliable and confidence inspiring evidence, Trial Court had not wrongly extended the benefit of doubt to accused--- Conviction and sentence recorded by the Trial Court against accused were set aside and they were acquitted of all the charges, extending them benefit of doubt, and they were released, in circumstances.

Muhammad Yousaf and others v. Tariq Mehmood PLD 2008 SC(AJ&K) 6; Ala-ud-Din v. State 2008 PCr.LJ 424; Farid v. The State PLD 2002 SC 553; Ibrar Hussain and others v. State 2007 SCMR 605; Zafar Abbas v. State 2010 SCMR 939; Lal Khan v. State 2006 SCMR 1846; Rahat Ali v. The State 2010 SCMR 584; Imran Ashraf v. The State 2001 SCMR 424; 2008 PCr.LJ 928; 1996 SCMR 473; Amanullah Shah v. State PLD 1996 SC 241; Muhammad Aslam v. State 1999 SCMR 2147; Muhammad Rafique v. State 2010 SCMR 385; Farman Ahmed v. Muhammad Inayat 2007 SCMR 1825; Akhtar Ali v. State 2008 SCMR 6; Saeed Muhammad Shah v. State 1993 SCMR 550; Qasim Ali Malik v. The State and 2 others 2012 PCr.LJ 124; 2002 PCr.LJ 2021; Kachkol and others v. The State 2009 PCr.LJ 596; 2007 PCr.LJ 448; Muhammad Ali v. State 2008 PCr.LJ 87; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Naqeebullah's case PLD 1978 SC 21; 2012 SCMR 524; 2005 SCMR 515; Anwar v. State 1975 PCr.LJ 750; Alamgir Khalid Chughtai v. State PLD 2009 Lah. 254; Muhammad Azeem v. Muhammad Iqbal PLD 1984 SC 95 and PLD 1993 W.P. Baghdad Jadeed 14 ref.

----S. 365-A---Kidnapping or abduction for ransom--- Conviction could be awarded on basis of solitary statement of abductee, if it rang true and inspired confidence.

Rahim Shah v. The State and others 2004 PCr.LJ 1129 and Arab Gul v. Mir Shah Baz and others 2004 PCr.LJ 1138 ref.

(d) Criminal trial---

----Two interpretations of evidence---When there were two interpretations of evidence, one favouring accused, and the other prosecution, one favourable to accused, was required to be taken into consideration.

Muhammad Akhtar v. State 2010 YLR 2025 ref.

(e) Criminal trial---

----Circumstantial evidence--- Scope---Circumstantial evidence could only form basis for conviction, when it was compatible with the innocence of accused, or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypothesis, except that of the guilt of accused---Every link and circumstantial evidence, should be proved by cogent evidence, and if not, then conviction could not be maintained or awarded to an accused.

Muhammad Basharat Shah v. Syed Saqib 2013 PCr.LJ 619; Muhammad Iqbal v. State 2013 PCr.LJ 1683; Akbar Ali Shah v. State 2014 YLR 782 and Shamshad Khan and another v. Arif Ashraf Khan and 2 others 2008 SCMR 6 ref.

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

----Ss. 61, 167 & 344---Remand and successive remand---Once an accused was sent to judicial lock-up, he could not be handed over to Police subsequently and successive remand could not be given, except in extraordinary circumstances---If remand was required in exceptional cases, then it must be on the basis of detail given in the application for remand; and the reasons given by the Magistrate concerned---Superior courts had repeatedly issued direction to Magistrates and Police for grant of remand and for compliance of the mandatory requirements as required in the provisions contained in Ss.61, 167 & 344, Cr.P.C.

Haseeba Taimor Afridi v. State 2013 SCMR 1326; PLD 1996 Kar. 517 and 1995 SCMR 429 ref.

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

----S. 164---Confession---Court was to be careful in ascertaining the true character of the confession for conviction and must consider the reason given for retraction of the confession to find out the truth in such reason before making use of the confession for conviction--- Retracted confession, if found truthful and confidence inspiring; and also qualified the test of voluntariness, could be used for conviction without looking for any other corroboration.

Manjeet Singh v. State PLD 2006 SC 30 and 2005 SCMR 515 ref.

Raja Muhammad Shafat Khan and Nauman Malik for Appellants.

Mushtaq Ali Tahir Kheli for the Complainant.

Muhammad Naeem Abbasi, A.A.-G. for the State.

Dates of hearing: 4th, 5th and 10th March, 2015.

YLR 2016 PESHAWAR HIGH COURT 2269 #

2016 Y L R 2269

[Peshawar]

Before Yahya Afridi, J

AAMIR MASOOD KHAN---Appellant

Versus

ELLAHI BAKHSH and another---Respondents

F.A.O. No. 75-P of 2012 and R.F.A. No.18-P of 2013, decided on 6th May, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R. 2(3)---Status quo order, violation of---Contempt proceedings, initiation of---Scope---Suit for possession of house was decreed and decree holder applied for disconnection of natural gas and electricity connections and for demolition of disputed house for construction thereon---Appellate Court passed status quo order and appeal was accepted finally---Petition was moved for initiation of contempt proceedings against decree holder---Contention of contemner (decree holder) was that no contempt proceedings could be initiated against him---Validity---Role of decree holder was only to the extent of filing of application for demolition etc.---Decree holder could not be held responsible for the actions taken by the Cantonment Board, Electricity and Gas Companies in disconnecting connections and etc.---No contempt of court was committed by the decree holder by filing application which led to the demolition of disputed house---Order of competent court, interim or final, when communicated to any person would be binding on him---Status quo order passed by the Appellate Court did not qualify the test for requiring the government official to refrain from proceeding in a particular matter---Case of contempt could have been made out against Executive Officer Cantonment Board if subsequent suit against demolition of disputed house was not filed---Impugned orders passed by the Appellate Court were set aside---Appeal was allowed accordingly.

Abubakar's case 1984 CLC 2110; Abdul Majid's case 1988 CLC 1370; Dr. A.N.M. Mahmood's case PLD 1967 Dacca 67; Emitrates Bank International Limited's case 1993 CLC 489; Naveed Nawazish Malik's case 1997 SCMR 193; Muhammad Mukhtar's case 2006 YLR 2758 and Baz Muhammad Kakar's case PLD 2012 SC 923 ref.

Gaman's case PLD 1995 SC 572 and Muhammad Khalid's case 2004 YLR 2050 rel.

Syed Hamad Ali Shah for Appellant.

Respondent No.1 in person.

Date of hearing: 6th May, 2016

YLR 2016 PESHAWAR HIGH COURT 2293 #

2016 Y L R 2293

[Peshawar]

Before Waqar Ahmed Seth and Muhammad Younis Thaheem, JJ

ZAKIR ULLAH---Appellant

Versus

The STATE---Respondent

Cr. A. No. 639-P of 2013, decided on 17th November, 2015.

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

----Ss. 9(c) & 25--- Possession of narcotics--- Appreciation of evidence---Conscious knowledge of recovered stuff---Effect--- Testimony of prosecution witnesses could not be shaken---Nothing was on record that accused was involved falsely or matter was prompted by his enemies to foist such a huge quantity of narcotics on him---Stuff recovered from the vehicle of accused was in fact charas---Accused was present at the driving seat of the vehicle which was in his possession and from its secret cavities huge quantity of narcotics was recovered---Recovered stuff was in the ownership of accused and he was having its conscious knowledge---Accused had failed to prove that he did not have conscious knowledge of recovered stuff---Police officials were as good witnesses as private persons unless any animosity was brought on record---Nothing was on record that accused had any ill will or grudge with the prosecution witnesses---Charge against accused had been proved beyond any shadow of doubt---Accused had been rightly convicted in circumstances--- No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgment and sentence awarded to the accused---Trial Court had rightly appreciated the evidence and held guilty the accused for the offence---Appeal was dismissed in circumstances.

Bilal v. The State 2007 YLR 3096 and Tariq Mehmood v. The State PLD 2009 SC 39 rel.

Mst. Farhana Marwat for Appellant.

Mian Arshad Jan, A.A.-G. for the State.

Date of hearing: 17th November, 2015.

YLR 2016 PESHAWAR HIGH COURT 2308 #

2016 Y L R 2308

[Peshawar (Abbottabad Bench)]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

TOUQIR---Petitioner

Versus

MUHAMMAD AFZAL and 2 others---Respondents

W. P. No. 128-A of 2015, decided on 8th April, 2015.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 24 & 28--- Constitution of Pakistan, Art. 199--- Constitutional petition---Pre-emption suit--- Maxim: actus curiae neminem--- Applicability--- Sale price assessed by pre-emptor in the suit, relevancy of---Deposit of sale price---Plaintiff (petitioner) filed suit for possession through pre-emption to pre-empt sale in his favour claiming that sale consideration mentioned in mutation was inflated as compared to actual sale price as assessed by plaintiff---Trial Court inadvertently allowed plaintiff to deposit one third of sale price, not as mentioned in mutation, but as assessed by plaintiff, within thirty days, which he deposited with delay of one day---Defendant/vendee filed application before Trial Court for dismissal of suit of plaintiff on ground of default in payment of pre-emption amount within the given time, which the Trial Court dismissed holding that plaintiff had complied with the direction having deposited one third of sale price as required; and revisional court affirmed said order of dismissal on ground that party should not have suffered by act of court---Validity---Findings of Trial Court were misconceived and view taken by revisional court was misplaced---Courts below had wrongly interpreted act of court and had not evaluated available record in true perspective---Sale price assessed by plaintiff would not be relevant in any eventuality for deposit of one third amount of pre-emption--- Sale con-sideration mentioned in instrument had to be considered for said purpose in terms of S. 24 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Court Moharrir, while making report on said application of plaintiff, was required to see instrument on basis of which suit had been filed---Plaintiff was also responsible for negligence and non-compliance of the direction and he had to stand on his own legs to pursue his case and later on to prove through evidence---Maxim "Actus curiae neminem gravabit" was not applicable to the present case---Courts below also ignored the fact that plaintiff had deposited the amount with delay of one day---Period of one month once given was not extendable---Plaintiff had failed to deposit the amount within given time and his suit was liable to be dismissed---Findings of courts below were not sustainable---High Court setting aside impugned judgments of courts below dismissed the suit in terms of S. 24(2) of Khyber Pakhtunkhwa Pre-emption Act, 1987.

Zahir Ali Khan for Petitioner.

Sardar Basharat Khan for Respondents.

Date of hearing: 8th April, 2015.

YLR 2016 PESHAWAR HIGH COURT 2337 #

2016 Y L R 2337

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

BAKHT ZADA---Petitioner

Versus

SHAH TAMASH KHAN and 5 others---Respondents

Writ Petition No. 185-M of 2011, decided on 19th November, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for possession through pre-emption on the basis of Pre-empted title---Compromise between the parties---Plaint, rejection of---Scope---Suit for possession through pre-emption was filed and compromise decree was passed which was further pre-empted---Application for rejection of plaint was dismissed by the Trial Court but same was allowed by the Appellate Court---Validity---Present plaintiff was also defendant in the suit in which compromise was effected and decree was passed---Suit property had been pre-empted on the basis of compromise and not by any kind of sale---Plaintiff could not file any further pre-emption suit on the basis of pre-empted title---Present suit was barred by law and plaint was liable to be rejected---Courts should take effective measures against the obstinate litigant and their counsel who indulged in abuse of process of law---Constitutional petition was dismissed in circumstances.

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

----O. VII, R. 11---Plaint, rejection of---Scope---Incompetent plaint should be rejected at initial stage---Such power could be exercised by the court at any stage suo motu even at the stage of deciding an interlocutory matters.

1998 CLC 382; PLD 2002 Kar. 502; 2004 CLC 1312; PLD 1984 Lah. 59 and 1992 CLC 2282 rel.

----Courts should dispense justice in accordance with law and discourage repetitive litigation.

Gauhar Ali Khan for Petitioner.

Razaullah Khan for Respondents.

Date of hearing: 19th November, 2015.

YLR 2016 PESHAWAR HIGH COURT 2352 #

2016 Y L R 2352

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar---Appellant

Versus

NAZAKAT---Respondent

Cr. A. No. 119-A of 2015, decided on 17th May, 2016.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Qatl-i-amd---Appeal against acquittal---Appreciation of evidence---Prosecution had abandoned the only eye-witness of the occurrence, when he was found to be not mature enough to understand the question and give rational replies thereto, which cast doubt about the contents of the FIR---Prosecution witness, the younger brother of the deceased, had not identified the dead body of the deceased both before the police and the Medical Officer and had simply deposed that he had accompanied the complainant at the time of lodging of the FIR---Prosecution case, in absence of eye-witness, had solely rested on circumstantial evidence, which too had received setback after the marginal witness to the recovery memos relating to the blood stained earth, crime empty and weapon of offence had resiled from his earlier statement made to the Investigation Officer and denied his signatures on the recovery memo---Other marginal witnesses to the recovery had been abandoned by the prosecution for having been won over by the defence---No cogent evidence in circumstances, was left to connect the accused with the commission of the offence---Motive alleged in the FIR had not been established from the record---None of the inmates of the house, where the complainant and the deceased were jointly residing, had come forward in support of the prosecution---Medical Officer had furnished the Postmortem report to the police with delay---Statement of the Medical Officer admitting firing from different directions had also created irreparable dent in the prosecution case (showing firing by the accused only from the back side of the deceased)---Impugned judgment of acquittal was, therefore, unexceptional---Appeal against acquittal was dismissed accordingly.

Muhammad Naeem Abbasi for Appellant.

Respondent in person.

Date of hearing: 17th May, 2016.

YLR 2016 PESHAWAR HIGH COURT 2367 #

2016 Y L R 2367

[Peshawar]

Before Waqar Ahmed Seth and Muhammad Younas Thaheem, JJ

YOUSAF KHAN---Petitioner

Versus

RADAT KHAN alias TORAY and 2 others---Respondents

W.P. No. 169-P of 2016, decided on 31st March, 2016.

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

----Ss. 3 & 4---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 135---Prevention of illegal possession of property etc.---Property falling under Shamilat---Dispute over possession subject to ordinary law---Court below dismissed the complaint holding that the provision of Illegal Dispossession Act, 2005 did not attract, as the dispute over possession of the subject land fell under ordinary law---Validity---Naqsha Tesweri transpired that the area of land was common property and all the owners in the estate were also common owners therein---No one could claim the village common property (Shamilat) as exclusively possessed property---Complainant had purchased the shares in the village common property/Shamilat; therefore, if any member of proprietary body wanted to separate his share of ownership, he could file partition application under Wajib-ul-Arz of the village read with Khyber Pakhtunkhwa Land Revenue Act, 1967 by impleading all the members of the proprietary body in an application for partition under S. 135 of the Act---Claim or the relief asked for in present petition pertained to deep factual controversy, which could be resolved by adopting legal course by invoking jurisdiction of proper and competent court of law---No exception could be taken against the impugned judgment, particularly relating to Shamilat---Constitutional petition was dismissed in circumstances.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)----

----S. 135----Partition, application for---Complainant had purchased the shares in the village common property/Shamilat; therefore, if any member of proprietary body wanted to separate his share of ownership, he could file partition application under Wajib-ul-Arz of the village read with Khyber Pakhtunkhwa Land Revenue Act, 1967 by impleading all the members of the proprietary body in an application for partition under S. 135 of the Act.

Muhammad Alam Zeb Khan for Petitioner.

In Motion.

Date of hearing: 31st March, 2016.

YLR 2016 PESHAWAR HIGH COURT 2391 #

2016 Y L R 2391

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

MUHAMMAD SHAKIL---Petitioner

Versus

CHANZEB and 2 others---Respondents

Cr. Misc. (BCA) No. 355-A of 2014, decided on 5th May, 2016.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Petition for cancellation of bail---No one had witnessed the occurrence, which had taken place at odd hours of the night---Weapon of offence found at the place of occurrence, was not in working condition---Complainant party did not come to search their son, though the whole night had passed, while the deceased was lying at open and visible place---No empty had been found at the place of occurrence---Charring and blackening marks on the sole entry wound resulted into death of the deceased, had made the case against accused that of further inquiry---No finger print on the weapon of offence was detected to be either of the deceased or accused---Investigation had already been completed and petition for cancellation of bail was pending before the court for the last more than two years, without any progress; for such reason, the regular trial had not commenced, which otherwise, had crossed the statutory period, prescribed for conclusion of trial---Case against accused was that of further inquiry; while no evidence was on record suggesting that accused had either misused the concession of bail; or they had made any attempt to tamper with the prosecution evidence---Counsel for the complainant as well as the State Counsel did not point out any illegality in the bail granting order---Bail granted to accused by competent court of law could not be cancelled.

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

----S. 497(5)---Bail, cancellation of---Principles---Considerations for grant of bail by a court of competent jurisdiction on reasonable grounds and its cancellation were altogether different---Provisions of S.497(5), Cr.P.C., were not punitive in nature and there was no compulsion for cancelling bail, unless bail granting order was patently illegal, erroneous, factually incorrect and had resulted into miscarriage of justice; or where accused was found to be making efforts to misuse the concession of bail, by either extending threats or likelihood of tampering with prosecution evidence---Bail was never to be withheld as a punishment---If the bail granting order on the face of the available record was found to be perverse, erroneous, factually incorrect, resulting into gross miscarriage of justice or had been extended in violation of established principle for grant of bail, the court could recall or cancel the same to fulfil the ends of justice.

Ghulam Mustafa Swati for Petitioner.

A.A.-G. and Muhammad Arshad Awan for Respondents.

Date of hearing: 5th May, 2016.

2016 Y L R 2443

[Peshawar]

Before Assadullah Khan Chamkani, J

IKHTIAR and 2 others---Petitioners

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No. 2152-P of 2015, decided on 4th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, grant of---Further inquiry---Role of firing at the deceased, had been specifically attributed to absconding co-accused---Only role attributed to accused persons was that they while aiming their weapons at the complainant, warned him not to move; and later on when the complainant tried to apprehend absconding co-accused after murder of his son, accused persons opened fire at the complainant which proved ineffective---Accused persons, having not actively participated in the murder of the deceased, their common intention with the principal absconding co-accused; as well as their intention to kill the complainant, who was at their mercy, was yet to be determined during trial after recording evidence, which had made the case of accused persons arguable for the purpose of bail---Bail, could not be refused merely on the ground that accused was directly charged in the FIR for a heinous offence; otherwise, accused were found entitled to the concession of bail; because mistaken relief of bail, could be repaired by convicting accused, if proved guilty at the trial, but no proper reparation could be offered for their unjustified incarceration, albeit, their acquittal in the long run---Case of bail having been made out on merits, mere absconsion of accused persons, could not be a ground for refusal of bail---Accused, were admitted to bail, in circumstances.

Mitho Pitafi v. The State 2009 SCMR 299 rel.

Sahibzada Riazatul Haq for Petitioners.

Muhammad Saeed Khan for Respondents.

Waqar Ahmad, A.A.-G. for the State.

Date of hearing: 4th December, 2015.

YLR 2016 PESHAWAR HIGH COURT 2454 #

2016 Y L R 2454

[Peshawar]

Before Qaiser Rashid Khan, J

ALIF ALI---Petitioner

Versus

The STATE and another---Respondents

B. A. No.732-P of 2016, decided on 20th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.381-A & 411---Theft of a car or other motor vehicles, dishonestly receiving stolen property--Bail, grant of--Further inquiry---Recovery of the stolen vehicle, having been effected on the joint pointation of accused and his co-accused, its evidentiary value was yet to be determined by the Trial Court after recording evidence---Complainant, appeared to have laid off his hands from the trial of accused through his affidavit, whereby he had expressed his "no objection" over the release of accused---Offence for which accused was charged, did not attract the prohibitory limb of S.497, Cr.P.C.---All said circumstances, qualified the case of accused for further probe into the matter, entitling him to bail---Accused was granted bail, in circumstances.

Shabbir Hussain Gigyani for Petitioner.

Syed Sikandar Hayat Shah, A.A.-G. for the State.

Complainant in person.

Date of hearing: 20th May, 2016.

YLR 2016 PESHAWAR HIGH COURT 2460 #

2016 Y L R 2460

[Peshawar (Bannu Bench)]

Before Haider Ali Khan, J

Qazi FIDA-UR-REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 123-B of 2016, decided on 20th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.409 & 420---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, embezzlement---Accused was alleged to be instrumental in purchasing substandard wheat thereby causing loss of Rs.1,46,25,000 to the Government Exchequer---Accused was also charged for embezzlement---Case against accused fell within the ambit of further inquiry and, it would be seen at the trial as to whether accused was responsible for the wrong doings attributed to him in the auditor's report--- Accused being government official, there was no likelihood of his abscondance---Accused was released on bail, in circumstances.

M. Anwar Khan Maidadkhel for Petitioner.

Bashir-ur-Rehman Burki State Counsel.

YLR 2016 PESHAWAR HIGH COURT 2492 #

2016 Y L R 2492

[Peshawar]

Before Yahya Afridi, Haji MUHAMMAD YAQOOB KHAN and another---Petitioners

Versus

MUHAMMAD RIAZ KHAN and 28 others---Respondents

Civil Revision No.779 of 2008, decided on 6th May, 2016.

(a) Islamic law---

----Gift in lieu of dower---Conditions contained in Kabinnama---Effect---If corpus of property was gifted then any condition attached to such a gift would be illegal while gift itself would be valid---If corpus of gifted property was not transferred then any condition limiting the authority of donee over the gifted property could validly be restricted or time bound--- Property transferred in lieu of dower and or marriage would be "hiba bil ewaz" and transfer of its possession would not be necessary---Any condition on a gift to a bride or a wife would be against a public policy and injunctions of Islam---Mere fact that gift was for life time or till Nikah would not be sufficient by itself to hold that gift was only of the usufruct and not of the corpus---Once the gift, in cases to the family members, was proved to be officially recorded in the revenue record or with the registering authority, it would be presumed that donor's subsequent act with regard to gifted property was done on behalf of donee and not on his own behalf---Intention of donor would be relevant to determine whether corpus or usufruct of gifted property had been transferred to the donee which could be determined by title of document; terms .elated in the instrument; incorporation of gift in the revenue record; entries bowing the transfer as reflected in the rnenue record; acts and inactions of Amor and donee and authority exercised seer the gifted property---Property, in the pre sent case, had been gifted in lieu of &wet-Transfer of said property was for entire corpus and not restricted to its usufruct---If there was any restricting condition in the kabin Nama, same would be void---Donee, in circumstances, was fill owner of the property and her title had not been challenged by donor during his life time---Donee had transferred part of gifted property during her life time without say protest or challenge by any one :including donor and his legal heirs---Donee had been recorded as owner in possession in the revenue record---Revision was dismissed in circumstances.

Case-law referred.

(b) Islamic law---

----Gift---'Corpus'--Concept.

Corpus in relation to a gift of an immoveable property would be constituted, on the delivery of the entire body of the I gifted property to the donee and on him having complete authority thereon and that too, to the exclusion of any other person including the donor. However, it would also be important to note that delivery of possession, being the essential ingredient of gift, has been viewed rather liberally in favour of a donee-wife.

Case-law Referred.

--Arts. 227 & 2-A---Existing laws should be brought in conformity with the Injunctions of Islam.

Abdul Sattar Khan for Petitioners.

Muhammad Taif Khan for Respondents.

YLR 2016 PESHAWAR HIGH COURT 2511 #

2016 Y L R 2511

[Peshawar (Bannu Bench)]

Before Muhammad Ghazanfar Khan and Haider Ali Khan, JJ

MUHAMMAD ASIF---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Pakistan and Natural Resources and 4 others---Respondents

W.P. No.226-B of 2013, decided on 19th April, 2016.

General Clauses Act (X of 1897)---

----S. 21---Locus poenitentiae, principle of---Applicability---Petitioner was not allowed to operate his Compressed Natural Gas station which was shifted from place 'P' to place 'B'---Validity---When order of approval regarding shifting of Compressed Natural Gas station from place 'P' to place 'B' was issued and acted upon by spending huge amount by acquiring land, construction of building, shifting of machinery, installation of transformer, completing of entire structure except gas connection, such order could not be withdrawn to sheer detriment of petitioner and such an act would invoke principle of locus poenitentiae---When order had not be acted upon, authorities could exercise such power and withdraw the same under S. 21 of General Clauses Act, 1897---High Court directed authorities to allow petitioner to run/function Compressed Natural Gas station at proposed/changed site at place 'B'---High Court also directed authorities to provide gas connection to petitioner---Constitutional petition was allowed in circumstances.

Muhammad Anwar Khan Maidad Khel and Muhammad Usman Khan for Petitioners.

Bahlol Khattak Deputy Attorney General for Federation.

Waseem Khan for Respondents Nos. 2 and 3.

Ikram Ullah Khan Marwat for Respondent No.4.

YLR 2016 PESHAWAR HIGH COURT 2565 #

2016 Y L R 2565

[Peshawar]

Before Roohul Amin Khan and Muhammad Younis Thaheem, JJ

DOST MUHAMMAD---Petitioner

Versus

CHAIRMAN NAB and 3 others---Respondents

W.P. No.3782-P of 2015, decided on 6th November, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5-A & 17---Accountability Court, powers of---Summoning of investigating officer for seeking explanation by Accountability Court---Scope---Petitioner was facing investigation before National Accountability Bureau and he was aggrieved of the explanation sought by Accountability Court from Investigating Officer for non-arresting other accused persons and summoning of petitioner---Validity---Accountability Court committed no illegality and orders in question were lawful---High Court declined to interfere in the orders passed by Accountability Court---Constitutional petition was dismissed in circumstances.

Danial Khan Chamkani for Petitioner.

Nemo for Respondents.

YLR 2016 PESHAWAR HIGH COURT 2573 #

2016 Y L R 2573

[Peshawar]

Before Assadullah Khan Chamkani, J

Mst. SHAKEELA---Petitioner

Versus

TAJ MUHAMMAD and another---Respondents

Cr. Misc. B.A. No.1385-P of 2015, decided on 11th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-A---Kidnapping or abduction for extorting property, valuable security etc.---Bail, grant of---Accused lady, had 9 months old suckling girl in her laps, and two minor kids were with her in the jail and were innocent---Children were kept in jail with their mother/accused for their welfare, as their father was also accused in the case and was absconding---Concept of welfare of minors, was incompatible with jail life---High Court observed that instead of detaining the innocent infant and other children of accused in the jail for crime allegedly committed by their mother it would be in the interest of justice as well as welfare of the minor, if the mother was released from the jail---Holy Prophet Muhammad (S.A.W.) had suspended the sentence on pregnant woman, not only till delivery of her child, but also posted it till suckling period, i.e. two years, for the welfare of her kid; which indicated towards paramount importance and significance of the right of a suckling child in Islam---Accused was released on the sole ground of she being the mother of a suckling baby.

Holy Prophet Muhammad (S.A.W.) and Mst. Nusrat v. The State 1996 SCMR 973 ref.

Naik Azam for Petitioner.

Mujahid Ali Khan A.A.G. for the State.

Abdul Sattar Khan for the Complainant.

YLR 2016 PESHAWAR HIGH COURT 2584 #

2016 Y L R 2584

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

GUL ALAM ZAR KHAN and 27 others---Petitioners

Versus

HAIDER ALI and 29 others---Respondents

C.R. No.53-B of 2014, decided on 17th August, 2015.

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

----S. 60---Limitation Act (IX of 1908), S. 20 (2)---Suit for possession through redemption---Novation of contract---Effect---Limitation, commencement of---Usufructuary mortgage---Scope---Suit land was mortgaged for 60 years but before the expiry of limitation subsequent mutation was attested showing novation of contract---Mortgagee rights were further transferred prior to expiry of period fixed in the mortgage deed and fresh period for next 60 years would start from the date of subsequent mutation of mortgage---Defendant acquired mortgagee rights with the knowledge that previous mortgagees were not owner of the property which would amount the acknowledgment of facts that a fresh contract had been executed---Time for filing suit for redemption of mortgage would start from the date of attestation of subsequent mutation---Time for initiating proceedings for redemption would be deemed to have extended automatically for onward next 60 years---Present suit was within time---No question of attaining title by mortgagees on prescription on expiry of 60 years would arise---Mortgagee in question was usufructuary in nature who had been enjoying and receiving the usufructs ever since creation of mortgage---Where mortgagee were in possession and were receiving the usufructs of suit land then such receiving of usufructs would be considered as an "acknowledgment" of mortgage---Every receipt of usufruct would give rise to a fresh period of limitation---Question of novation, usufructuary mortgage and limitation had correctly been appreciated by the courts below---Findings recorded by the courts below were based on proper appreciation of evidence---Revision was dismissed in circumstances.

Nawaz Ali Khan v. Nawab Zada PLD 2003 SC 425; 2009 SCMR 191; PLD 1989 SC 688 and 2007 SCMR 805 ref.

PLD 2003 SC 412; 2003 MLD 1537 and 2003 SCMR 299 distinguished.

Muhammad Maqbool v. Federal Government 1991 SCMR 2063; and Muhammad Iqbal v. Ghousuallah Khan and others 2002 CLC 1533 and Abdul Haq v. Ali Akbar and others 1999 SCMR 2531 rel.

Zahir Shah and Masood Iqbal for Petitioners.

Ahmed Jan and Khosh Ameer Khattak for Respondents.

YLR 2016 PESHAWAR HIGH COURT 2618 #

2016 Y L R 2618

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Muhammad Younis Thaheem, JJ

AZAM KHAN DURRANI---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary K.P.K. and 15 others---Respondents

W.P. No.329-B of 2013, decided on 11th March, 2015.

Khyber Pakhtunkhwa Establishment of District Development Advisory Committees Act (IV of 1989)---

----S. 5---District local fund---Utilization of---Scope---Funds utilized was district local fund which could not be included in the purview of District Development Advisory Committee---Disbursement of funds was carried out by the persons having no authority when by election was in progress---Policies against the public interest could not be legalized being carried out by the previous government in the garb of policy---Illegality had been committed by the authorities in disbursement and approval of development schemes---Respondent who contested the tender and same was awarded to him should not be penalized for the work in which he had shared no mala fide---Deputy Commissioner was directed to appoint a committee to carry out inquiry to determine how much development work had already been completed by the contractor prior to order of Court---Contractor would be entitled to receive and collect amount according to work he had already completed---Constitutional petition was allowed in circumstances.

Syed Fakhr-ud-Din Shah, Anwarul Haq and Iftikhar Durrani for Petitioner.

Saifur Rehman Khattak Addl. A.G. for the Government.

Sher Muhammad Khan, Zafar Nawaz Sikandri, Zahid-ul-Haq and Umar Qayyum Khan for Respondents.

YLR 2016 PESHAWAR HIGH COURT 2643 #

2016 Y L R 2643

[Peshawar Abbottabad (Bench)]

Before Lal Jan Khattak and Qalander Ali Khan, JJ

HASSAN RAHIM---Appellant

Versus

The STATE---Respondent

Cr. A. No.159-A of 2012, decided on 3rd February, 2016.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-i-amd, common intention---Appreciation of evidence---No ocular account was furnished by the complainant in the FIR---Complainant or his deceased son had no previous enmity to raise suspicion of commission of offence by any one---After the arrest of accused/wife of the deceased she stated that she had relations with co-accused prior to her marriage with the deceased; and refusal of the deceased to divorce her to enable her to get married with co-accused was motive for the offence---Accused lady, nowhere either in her confessional statement, or during trial, ever stated as to whether co-accused was present and took active part in the commission of offence; or the crime was committed by her at the instigation/behest or with the help of co-accused---Accused had clearly stated that it was only she who planned the murder of her deceased husband and executed the plan---Weapon of offence i.e. double barrel shotgun, which belonged to the deceased was also recovered by the Police on her pointation---No material was available to warrant conviction of co-accused in the case---Co-accused was acquitted of the charge---Role of accused in the commission of offence of qatl-i-amd of her husband, was abundantly proved from her voluntary confessional statement before the Judicial Magistrate on the very day of her arrest in the case---Confessional statement of accused was corroborated by recovery of the weapon of offence---No motive existed for complainant to falsely implicate accused in the case as he proved to be a honest witness---Appeal was dismissed, and impugned judgment of the Trial Court to her extent was upheld/maintained---No ground existed to interfere with the finding of the Trial Court with regard to the quantum of sentence i.e. life imprisonment awarded to her on the basis of her confessional statement and other circumstantial evidence---Complainant having been unable to show ground for enhancement of the sentence to death in the facts and circumstances of the case, revision petition of the complainant was dismissed, in circumstances.

Shah Muhammad Khan for Appellant.

Muhammad Naeem Abbasi, AAG for the State.

Ghulam Mustafa Khan Swati for the Complainant.

YLR 2016 PESHAWAR HIGH COURT 2739 #

2016 Y L R 2739

[Peshawar]

Before Ikramullah Khan and Muhammad Younis Thaheem, JJ

NAZAR MUHAMMAD---Appellant

Versus

The STATE and 3 others---Respondents

Crl. Appeal No.166-B and Murder Reference No.5-B of 2012, decided on 11th March, 2015.

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

----S. 302----Qatl-i-amd---Appreciation of evidence---Accused was alleged to have murdered father of the complainant and two passersby by inflicting fire shots---One of the eye-witnesses, although, had been abandoned, but the same would not affect either the intrinsic value of evidence or be treated as fatal to the prosecution case---Quality, not the quantity, of the evidence would be judged---Complainant's statement and the site plan had fully corroborated with the statement of medical witness---Eye-witness, who was present on the spot in such horrible and terrible situation, could not be expected to narrate the occurrence in the manner like video film in his evidence, because fluctuation or slight variation in the deposition of the eye-witness might have occurred after lapse of time, which was natural conduct of human being---Minor discrepancies, even if occurred in statements of any prosecution witness, which would not affect the intrinsic value of evidence, would not be given any worth---Evidence of interested and inimical witness, although, would be analyzed with great care and caution, but that was not inflexible rule of dispensation of criminal justice---Mere relationship or enmity of the witness would not always be enough to declare him as an interested witness in order to turn him as untruthful witness---Testimony of sole eye-witness, in the circumstances of the case, was reliable, truthful and the same could be believed without any further corroboration, which was not necessary in each and every case---Substitution is rare phenomenon in case where single accused had been charged by a close relative and real son of the deceased would not get free the real culprits and charge an innocent person without showing any false motive---No evidence existed to the effect that the eye-witness was inimical or that he had concocted a false case, for any similar motive to involve an innocent person in murder of his real father---Legal heirs of the two deceased/passerby had not contested the case against the accused, as they had claimed to have entered into compromise with the accused, but no formal compromise had been brought on record either before the trial court or High Court however, the same had made said case of said accused one of mitigating circumstance for reduction of sentence---High Court, maintaining conviction, converted death sentence into life imprisonment---Appeal was dismissed accordingly.

Muhammad Akhtar Ali v. The State 2000 SCMR 727; Mazhar Ali v. The State 2005 SCMR 523; Abdur Rauf v. The State 2003 SCMR 522; Muhamad Ilyas and others v. The State 2011 SCMR 460; Allah Bakhsh v. The State 2002 SCMR 1260 and Muhammad Akhtar v. The State 2007 SCMR 876 rel.

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

----Art. 17----Competency of witness---Quantity/quality of evidence in criminal cases---Principles---Evidence of number of witnesses shall not stamp the genuineness of an occurrence nor evidence of single witness in criminal case be discarded only on the ground that the same had been not corroborated by other witness.

Muhammad Rasheed Khan Dirma Khel for Appellant.

Saifur Rehman Khattak, Addl. A.G. for the State.

Sultan Mehmood for Respondents.

YLR 2016 PESHAWAR HIGH COURT 2754 #

2016 Y L R 2754

[Peshawar]

Before Assadullah Khan Chamkani, J

ASGHAR---Petitioner

Versus

The STATE---Respondent

Cr. Misc. B.A. No.2004-P of 2015, decided on 12th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.399, 400 & 401---Khyber Pakhtunkhwa Arms Act, (XXIII of 2013), S.15---Dacoity---Accused belonging to a gang of dacoits and thieves---Bail, grant of---Further inquiry---Contention of prosecution was that on receipt of spy information qua presence of some persons for purpose of dacoity/snatching money from passers-by, Police Official rushed to the place and apprehended accused and his companion and on search of accused, a live hand grenade was recovered from his possession---Held, that S.399, P.P.C., dealt with preparation for committing dacoity while Ss.400 & 401, P.P.C., dealt with persons belonging to a gang of dacoits and thieves and not an iota of evidence was on record to show previous involvement of accused in any case of dacoity or theft, therefore, applicability of Ss.399, 400 & 401, P.P.C., was yet to be determined during trial---Punishment of S.15 of Khyber Pakhtunkhwa Arms Act, 2013 did not fall within restrictive limb of S.497, Cr.P.C., while in absence of any previous history of accused in any case of terrorism or other anti-state activities, it was yet to be proved by prosecution that hand grenade in possession of accused was for some subversive purpose---Accused was entitled to concession of bail by furnishing bail bonds to the tune of Rs.3,00,000, accordingly.

Tariq Kakar for Petitioner.

Mohammad Husnain for Respondent.

YLR 2016 PESHAWAR HIGH COURT 2764 #

2016 Y L R 2764

[Peshawar]

Before Abdul Latif Khan, J

JAMSHED and 13 others---Petitioners

Versus

Mst. SHUJAAT BEGUM and 4 others---Respondents

C.R. No.296 of 2011, decided on 9th March, 2015.

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

----O. XXIII, Rr.1 & 2---Withdrawal of suit with permission of court---Limitation, determination of---Compensation for construction of suit property---Sale of property during pendency of lis---plaintiffs filed suit in 1980 and withdrew the same in 1993 with permission of court to file fresh one, which they filed in 1998---Plea taken by defendants on ground of limitation was that fresh suit had been filed with delay of 18 years and the same was time barred under O. XXIII, R. 1(2), C.P.C.---Trial Court decreed the suit, but appellate court dismissed the same---Validity---No doubt plaintiff shall be bound by law of limitation in same manner as if suit had not been instituted, however, it was subject to condition for permission to withdraw and if plaintiff succeeded to comply with such condition then would not hit by mischief of limitation---Party complying with the condition would not be hit by the mischief of limitation---Defendants were precluded to raise objection of limitation as Trial Court, with consent of both parties, had allowed withdrawal of the previous suit with permission to file fresh one---If withdrawal had not been granted by court then it would be simple withdrawal and provisions relating to grant of permission would become redundant---Neither defendants had proved that they had constructed the property nor had respondents proved that they had not consented to such construction, however Trial Court on basis of valuation report of local commissioner allowed compensation to defendants for construction which plaintiffs were entitled to receive---Sale of suit property during pendency of lis was alleged but no proof or documents were produced to substantiate the assertion nor had purchaser made any effort to get himself impleaded in the lis---No determination could be made in absence of any proof/record regarding sale of property during pendency of lis---No jurisdictional or legal error existed in the impugned orders of courts below nor had they misdirected/misled the evidence---Findings of courts below were in consonance with law and facts of case not warranting any interference---High Court dismissed petition being devoid of any merit.

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

----S. 9---Possession of immovable property---Joint ownership, claim based on---Remedy---Defendants contended that as parties were joint owners, decree for possession could not be passed and plaintiff had to file either suit for partition or suit under S. 9 of Specific Relief Act, 1877---Validity---Defendants failed to prove their joint ownership in suit property---Partition could only be sought against co-owners---Suit for possession under S. 9 of Specific Relief Act, 1877 had different parameters, which was not the case of defendants.

Abdul Sattar Khan for Petitioner.

Tariq Khan Hoti and Qamar Zaman for Respondent.

YLR 2016 PESHAWAR HIGH COURT 2801 #

2016 Y L R 2801

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

IMRAN SAJID---Petitioner

Versus

Mst. SANIA and 4 others---Respondents

W.P. No.4176-P of 2015, decided on 18th January, 2016.

Family Courts Act (XXXV of 1964)---

----Ss. 17-A & 14----Interim order for maintenance of minors---Appeal against interim order of Family Court---Maintainability---Family Court, allowing application under S. 17-A of Family Courts Act, 1964, fixed interim maintenance of rupees three thousands per month for three minors each---Validity---Impugned interim order was not appealable in terms of S. 14 of Family Courts Act, 1964---Said order was interlocutory/interim one and the final judgment was yet to be passed by the Trial Court after recording evidence of the parties---Petitioner, being father of the minors, was under legal and moral duty to provide the bare minimum maintenance amount for them---Interim maintenance in question for each minor could not be termed as exorbitant---Family Court had not committed any illegality or jurisdictional error, which could call for interference by the High Court through Constitutional petition---Constitutional petition was, therefore, dismissed in circumstances.

----S. 5----Civil Procedure Code (V of 1908), S. 96 & O. XLI----Appeal from original decree---Extension in period of limitation in certain cases---Condonation of delay in filing first appeal against decree---'Sufficient cause'----Meaning---Principles---Defendants filed application for condonation of delay in filing of appeal before appellate court on ground that they had been prevented from filing appeal for certain unexplainable circumstance---Appellate court condoned the delay---Validity---Condonation of delay in filing appeal required sufficient reasons---Term "sufficient cause" meant adequate reasons---Party should have shown that beside acting bona fide, he had taken all possible steps within its power and control and approached court without any unnecessary delay---Once a valuable right had accrued in favour of one party, as result of failure of other party to explain delay by showing sufficient cause and its own conduct, that would be unreasonable to take away that right, particularly when delay was direct result of negligence, default or inaction of that party---Law of limitation was substantive law and has definite consequence on rights and obligations of parties---Appellate court had accepted the application for condonation of delay without assigning any cogent reasons---Defendants could not made out a case for condonation of the delay---Revision of plaintiff was allowed.

----'Sufficient cause'---Meaning---Term 'sufficient cause' means adequate reasons.

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

----S. 52----Presumption in favour of entries in record of rights and periodical records---Presumption of truth attached to revenue record in terms of S. 52 of West Pakistan Land Revenue Act, 1976, is rebuttable---Mere verbal assertions of party cannot be taken as rebuttal to the mutation entry.

Hakim Khan v. Nazir Ahmed Rogmani 1992 SCMR 1832; Mazloom Hussain v. Abid Hussain PLD 2008 SC 571 and Nawab Khan v. Said Karim Khan 1997 SCMR 1840 rel.

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

----Art. 129 (g)----Court may presume existence of certain facts---Best evidence, which could be produced by defendants, had not been produced and had been intentionally withheld, for which adverse inference was to be taken against them under Art. 129 (g), Qanun-e-Shahadat, 1984.

Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106 rel.

Gul Hassan for Petitioner.

Mujeeb Ahmed Hashmi and Khushal Khan Kasi for Respondents.

Date of hearing: 4th September, 2015.

YLR 2016 QUETTA HIGH COURT BALOCHISTAN 721 #

2016 Y L R 721

[Balochistan]

Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ

SHAH FAISAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.238 of 2014 and Criminal Jail Appeal No.32 of 2015, decided on 1st December, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Related witnesses---Phenomenon of substitution---Murder on duty---Accused persons were police officials who committed murder of deceased during their duty time---Trial Court convicted both the accused persons and sentenced them to imprisonment for life---Plea raised by accused persons was that prosecution witnesses were related to deceased who were planted by complainant party and deceased was a notorious person---Validity---Evidence of related witnesses who were not found inimical and were confidence inspiring did not require any corroboration---Complainant was real uncle of deceased and he could not substitute accused persons for the real culprits who had committed murder of his nephew, as substitution was a rare phenomenon---Neither police could be allowed to murder innocent people nor general public could be left at the mercy of greedy and cruel police officials in the garb of their official duties---Even if deceased was a notorious criminal and he was wanted in many criminal cases or criminal cases were pending against him, still it was open to no one to take his life in the manner and fashion it had been taken by accused police officials---Trial Court after proper appraisal of evidence available on record had rightly awarded conviction and sentence to accused persons, who failed to point out any mala fide on the part of complainant party for their false implication---Accused persons could not point out any material contradiction and discrepancy which could benefit defence version and there was no error of law, misreading or non-reading of evidence in judgment passed by Trial Court calling for interference---Appeal was dismissed in circumstances.

Muhammad Akram v. The State 2015 YLR 116; Allah Ditta's v. The State PLD 2002 SC 52; Haji Ali Shan v. The State 2001 PCr.LJ 1320 and Allahwasayo v. State 2011 YLR 2194 rel.

Sardar Ahmed Halimi and Jawad Hassan for Appellants.

Muhammad Dawood Kasi for the Complainant.

Miss Sarwat Hina, Additional, Prosecutor General for the State.

Date of hearing: 28th October, 2015.

YLR 2016 QUETTA HIGH COURT BALOCHISTAN 1385 #

2016 Y L R 1385

[Balochistan]

Before Muhammad Noor Meskanzai, C.J.

INAYATULLAH and 2 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Senior M.B.R. and 3 others---Respondents

Civil Revision No.339 of 2005, decided on 25th January, 2016.

(a) Balochistan Cancellation of Illegal Allotments of State Land Act (V of 1996)---

----Ss. 3, 4 & 5 (2)---Balochistan Land Lease Policy, 1988, Cls. 5, 7 & 12---Transfer of Property Act (IV of 1882), S. 41---Allotment of land---Cancellation of---Plea of bona fide purchaser---Scope---Contention of plaintiffs was that they had purchased the suit land from the original allottees---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Allotment or lease by itself did not create ownership rights---Allottee or lessee was required to remain in possession for 45 year to acquire right of ownership and fulfilled the requirement as determined by Balochistan Land Lease Policy, 1988---Plaintiffs could not claim ownership rights on the basis of such transfer as it could not create ownership/title in favour of so called transferee and subsequent purchaser---Lessee/allottee could not sublet, mortgage and transfer in any manner the leased land---Allotments/transfers in question were in violation of Balochistan Land Lease Policy, 1988 which stood automatically cancelled---Seller could not transfer a title better than that he himself had---Original allottees were neither owner nor could have transferred any ownership and title to the plaintiffs---Plaintiffs could not claim to be bona fide purchasers when illegal allotment/lease stood refundable---Plaintiffs had got no locus standi to call in question the orders passed by the competent authority with regard to terms and conditions of an allotment/lease---Revision was dismissed with costs throughout in circumstances.

(b) Balochistan Land Lease Policy, 1988---

----Cl. 13(4)---Allotment of property situated on Highway---Any property situated on Highway could not be allotted or leased out.

Mujeeb Ahmed Hashmi and Kushal Khan Kasi for Petitioners.

Zahoor Ahmed Baloch, A.A.G. for Respondents.

Date of hearing: 27th November, 2015.

YLR 2016 QUETTA HIGH COURT BALOCHISTAN 1418 #

2016 Y L R 1418

[Balochistan]

Before Naeem Akhtar Afghan and Muhammad Kamran Khan Mulakhail, JJ

ABDUL HALEEM---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.127 and Criminal Revision Petition No.13 of 2013, decided on 4th January, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-i-amd and attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Eye-witnesses did not receive any firearm injury despite their alleged presence at the place of occurrence and firing by the accused---Site plan did not mention the presence of alleged eye-witnesses and complainant nor it mentioned the points/place where accused were standing---Site plan was not a substantive piece of evidence but it had evidentiary value with regard to the matters which were result of the observation of the investigating officer and were not entered therein at the instance of eye-witnesses---Omission to indicate the position of eye-witnesses in the site plan at the time of occurrence would reflect on the possibility of witnesses not being present at the time of occurrence---Injury report did not mention the presence or arrival of the accused---Delay in dispatching/handing over the weapon of offence and crime empties to Forensic Science Laboratory would destroy the evidentiary value of the report of Firearm Expert---Such report could not be used to corroborate the ocular testimony of witnesses nor it could be considered for conviction of accused---Statement of prosecution witness under S.161, Cr.P.C. was recorded on 28-08-2005 whereas occurrence took place on 26-08-2005---Such statement of witness recorded with delay had shaken the credibility of his testimony---Prosecution evidence was suffered from infirmities---Ocular testimony lacked independent corroboration which was not confidence inspiring---Plea of alibi had been proved through oral as well as documentary evidence---False implication of accused could not be ruled out of consideration---Impugned judgment was set aside while extending the benefit of doubt---Accused was acquitted of the charge and he was ordered to be released forthwith if not required in any other case---Appeal was allowed in circumstances.

Abdul Sattar v. State 2008 PCr.LJ 869 and Ali Sher v. State 2008 SCMR 707 rel.

Mohammad Dawood Kasi for Appellant (in Criminal Appeal No.127 of 2013).

Rehmatullah Barrech for the Complainant (in Criminal Appeal No.127 of 2013).

Atiq Ahmed Khan, Deputy Prosecutor General for the State (in Criminal Appeal No.127 of 2013).

Rehmatullah Barrech for Petitioner (in Criminal Revision No.13 of 2013).

Mohammad Dawood Kasi for Respondent No.1 (in Criminal Revision No.13 of 2013).

Atiq Ahmed Khan, Deputy Prosecutor General for the State (in Criminal Revision No.13 of 2013).

Date of hearing: 21st December, 2015.

YLR 2016 QUETTA HIGH COURT BALOCHISTAN 1842 #

2016 Y L R 1842

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ

MUHAMMAD AZHAR AWAN---Petitioner

Versus

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

C.P. No.544 of 2013, decided on 28th April, 2016.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Constitutional petition was not maintainable in presence of alternate remedy.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy could not be determined in constitutional jurisdiction of High Court.

Manzoor Ahmed Rehmani for Petitioner.

Zahoor Ahmed Baloch for Respondents Nos. 1 to 9 and Zahoor Baloch, Additional Advocate General for Official Respondents.

Date of hearing: 17th March, 2016.

YLR 2016 QUETTA HIGH COURT BALOCHISTAN 2536 #

2016 Y L R 2536

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ

BAKHTIAR ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 148 of 2013, decided on 2nd December, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 304 & 34---Criminal Procedure Code (V of 1898), S.367(5)---Qanun-e-Shahadat (10 of 1984), Arts.3 & 17---Qatl-i-amd, qatl-i-amd liable to qisas, common intention---Appreciation of evidence---Sentence, quantum of---Discretion of court---Scope---Prosecution having successfully established its case against accused persons beyond any shadow of doubt, Trial Court convicted and sentenced accused persons to suffer life imprisonment with fine---Trial Court, while deciding the question of quantum of sentence, drew a misconception of relevant law and by adopting the misconstrued interpretation thereof observed that since the requirement of S.304, P.P.C., were available, qisas could not be enforced---Under S.302(b), P.P.C., though punishment of Tazir was provided as death or imprisonment for life for qatl-i-amd, but it would not follow that the court had absolute discretion to award, either of the two sentences---Normal sentence for qatl-i-amd as Tazir was death, but the court had the discretion to award the lesser sentence of life imprisonment in a case there were mitigating circumstances---Such discretion was neither uncontrolled, nor it was to be exercised arbitrarily, but judiciously---Court, after reaching the conclusion that accused was guilty of qatl-i-amd, could award lesser sentence of life imprisonment, provided the court would record reasons for awarding such lesser sentence i.e. mitigating circumstances or basis whereof case was boiled down for not awarding sentence of death---Once the Trial Court drew the conclusion that accused persons had committed qatl-i-amd, within the meaning of S.302(b), P.P.C., it was bounden duty of the Trial Court to have recorded the reasons for awarding the sentence of life imprisonment, instead of penalty of death; which course would ultimately meet the ends of justice subject to the provisions of S.367(5), Cr.P.C.---Trial Court had to judiciously exercise the discretion, but, in the present case, said exercise was not carried out in letter and spirit---Conditions enumerated in S.304, P.P.C., would be required only in a case where the penalty of death as qisas was awarded as envisaged under S.302(a), P.P.C., but in case, if penalty of death or imprisonment for life as Tazir was going to be awarded, said condition would not be required---Conclusion drawn by the Trial Court being not sustainable, High Court observed that it would be appropriate that the case be remanded to the Trial Court for re-writing of judgment in accordance with the relevant provisions of law---Impugned judgment passed by the Trial Court was set aside accordingly.

Federation of Pakistan through Secretary, Ministry of Law v. Gul Hassan Khan PLD 1989 SC 633; Federation of Pakistan v. N.W. F. P Government PLD 1990 SC 1172; Muhammad Ashraf v. The State PLD 1991 Lah. 347; Sanaullah v. The State PLD 1991 FSC 186; State v. Punnu Khan PLD 1984 SC (AJ& K) 1; State v. Nazir PLD 1986 Sh.C. (AJ& K) 143; Ghulam Ali v. The State PLD 1986 SC 741; Nadir Khan v. The State PLD 1992 FSC 390; Arshad Ali v. The State 1993 PCr.LJ 2540; Mumtaz Ahmad and another v. The State PLD 1990 FSC 38; Danial Boyd (Muslim name Saifullah) v. State 1992 SCMR 196; Hassan Muhammad v. State PLD 1989 SC (AJ& K) 5; Masood Aziz v. The State 1989 PCr.LJ 1462; Abdul Razaq and another v. The State PLD 1988 SC (AJ& K) 190; Niaz Khan v. State PLD (sic) Sh.C. (AJ& K) 9; Naseer Hussain v. The State PLD 1984 Lah.67; Home Secretary N.-W.F.P. v. Muhammad Ayaz Khan and others PLD 1996 Pesh. 76; Manzoor and others v. The State 1992 SCMR 2037; Abdus Salam v. The State 2000 SCMR 338; Sarfaraz alias Sappi v. The State 2000 SCMR 1758 and Muhammad Aslam v. The State PLD 2009 SC 777 ref.

Ali Hassan Bugti for Appellant.

2016 Y L R 2781

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ

FATEH DIN alias FATOO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(S) 57 and Murder Reference No.(S) 14 of 2007, decided on 18th March, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(a)(b)(c), 304, 307, 308, 310, 331 & 338-E---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd, qisas and diyat---Appreciation of evidence---Sentence, reduction in---Compromise was arrived at between the parties to the effect that the major legal heirs of the deceased, had pardoned accused in the name of Almighty Allah---Report of Trial Judge confirmed that the compromise had been arrived for mutual harmony and without any coercion, duress, pressure, compulsion, deception or threat and was entered according to the settled principles of law---Compromise with legal heirs of the deceased in case of death as Tazir, could be considered as a mitigating factor for altering the conviction and awarding the lesser punishment of life imprisonment instead of death---Sentence of death awarded to accused under S.302(b), P.P.C., as Tazir, was altered, and accused was convicted and sentenced to suffer life imprisonment with fine of Rs.50,000---High Court, following the rule of prudence and principle of equity, left the question of payment of Diyat to the minor legal heirs of the deceased for determination by the Trial Court---Accused, could approach the Trial Court as contemplated under S.338-E, P.P.C., or could seek indulgence of the Trial Court for payment of Diyat amount to minor legal heirs through instalments.

Ghulam Hussain v. The State NLR 1993 Criminal 203 and Mst. Khanum Jee v. The State PLD 2005 Pesh. 62 rel.

Anwar-ul-Haq Chaudhry for Appellant.

Jameel Akhtar for the State.

Shariat Court Azad Kashmir

YLR 2016 SHARIAT COURT AZAD KASHMIR 440 #

2016 Y L R 440

[Shariat Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

TAHIR HANIF---Appellant

Versus

SAIRA KOSAR---Respondent

Family Appeal No.28 of 2014, decided on 15th October, 2015.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched---Dower---Payment of---Classification of dower---Scope---Contention of husband was that dower was deferred and same was payable in case of dissolution of marriage on his death or on divorce---Suit was decreed by the Family Court---Validity---No misreading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Family Court---Amount of dower was to be paid within the period fixed in the Nikah Nama---Classification of dower as prompt or deferred had no sanction behind it except for convenience of the parties---Payment of dower was an obligation of husband and failure thereto would tantamount to injustice and inequity---Dower was demanded by the wife at the time of Rukhsati and same was agreed to be paid within one year---Family Court had rightly passed impugned judgment and decree in favour of wife---Appeal was dismissed in circumstances.

2009 SCMR 1458 distingiushed.

2007 SCR 187; Dr. Sabira Sultana v. Maqsood Sulari and others 2000 CLC 1384 and 2000 CLC 1384 rel.

(b) Islamic law---

----Dower---Payment of---Limitation---If period was fixed for payment of Muajjal dower then it would become payable on the completion of stipulated period.

----Dower---'Deferred/delayed dower'---Meaning---Deferred/delayed dower was payable on demand or on the eve of dissolution of marriage by Talaq or death if no condition was specified in the Nikah Nama.

(d) Islamic law---

---Dower---'Mehr Ghair Muwajjal'---Meaning---Mehr Ghair Muwajjal meant deferred dower which would become prompt on demand of wife at any time after consummation of marriage and husband would be bound to pay balance amount of dower to the wife immediately.

(e) Islamic law---

---"Dower"---Classifications.

Sardar Imtiaz Akbar for Appellant.

Sardar Manshad Sarwar for Respondent.

YLR 2016 SHARIAT COURT AZAD KASHMIR 793 #

2016 Y L R 793

[Shariat Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

NAVEED ILYAS and another---Appellants

Versus

AJID NAWAZ and another---Respondents

Family Appeal No.61 of 2015, decided on 15th September, 2015.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.14---Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R.3---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for dissolution of marriage or revocation of Nikahnama---Plaintiffs, who were brother and father of defendant lady, had alleged in the suit that Nikahnama, was fraudulently executed between the defendants---Under S.2 of the Dissolution of Muslim Marriages Act, 1939 and R.3 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, the suit for dissolution of marriage, on any ground, could be filed by lady---Pro forma defendant who was real sister and daughter of plaintiffs, had never filed any suit for dissolution of her marriage on any ground whatsoever---When husband and wife admitted Nikah, then production of two witnesses, would not be essential---Counsel for plaintiffs, had admitted at the Bar that defendants, were living happily as husband and wife, and none of them had got any grouse against disputed Nikahnama---Findings recorded by the Trial Court that the plaintiffs had no locus standi to file suit for dissolution of marriage, were in accordance with law, which needed no interference in appeal before Shariat Court.

Arif Hussain and another v. The State PLD 1982 FSC 42 ref.

Sardar Mushtaq Hussain Khan for Appellants.

Raja Jahangir Akram for Respondents.

YLR 2016 SHARIAT COURT AZAD KASHMIR 1128 #

2016 Y L R 1128

[Shariat Court (AJ&K)]

Before Sardar Abdul Hameed Khan and Mohammad Sheraz Kiani, JJ

MUHAMMAD SHARIF and others---Appellants

Versus

HUSSNAIN ABBAS alias NASIR and others---Respondents

Crim. Appeals Nos. 21, 22, 19 and 48 of 2006, decided on 4th December, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(c), 392 & 396---Qatl-i-amd, robbery, dacoity and murder---Appreciation of evidence---Accused was acquitted of the charge, while his co-accused was convicted and sentenced to life imprisonment under S.396, P.P.C., along with fine of Rs.20,000---Allegations against convicted accused, stood proved by initial report, statement of complainant, as well as other corroborative and circumstantial evidence---Weapons Expert verified that bullets were fired from the pistol recovered from the accused---Minor discrepancies in the statements of complainant and prosecution witness did not constitute any sufficient cause to discard the whole evidence---FIR, was lodged, well in time---Identification of accused was not doubtful---Complainant narrated the truth---Prosecution version was three persons, who killed the deceased, and also snatched his SMG; whereas S.396, P.P.C., would attract in case of the offence committed by five or more than five persons---Section 396, P.P.C., was not attracted in the present case; and instead offence fell within the ambit of S.392, P.P.C., as well as S.302(c), P.P.C.---Sentence awarded merited modification---Accused was awarded 14 years imprisonment for the offence under S.302(c), P.P.C. and 10 years' R.I. under S.392, P.P.C.---Both the sentences, would run concurrently with the benefit of S.382-B, Cr.P.C.

Jamal Khan and another v. The State PLD 2003 Kar. 195; Muhammad Shafi and another v. The State PLD 1959 (W.P.) Kar. 468 and Raman Menon v. Madhavan AIR 1927 Madras 243 ref.

Raja Muhammad Shafique for accused/Respondents/Appellants.

Abdul Hameed for Complainant/ Respondents/Appellants.

Additional Advocate General for the State.

YLR 2016 SHARIAT COURT AZAD KASHMIR 1155 #

2016 Y L R 1155

[Shariat Court (AJ&K)]

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

Mst. KHURSHEED BEGUM---Appellant

Versus

Mst. SHABNAM NIAZ---Respondent

Civil Appeal No.95 of 2015, decided on 22nd December, 2015.

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

----S. 25---Custody of minor---Welfare of minor---Compromise between the parties---Effect---Mother moved application for custody of minor which was accepted and during appeal compromise was effected between grandfather and mother of the minor---Appeal was dismissed and grandfather died thereafter---Mother filed fresh petition for custody of minor which was accepted---Contention was that present application was hit by principle of res judicata---Validity---Alleged compromise deed was executed between the grandfather and mother of the minor---Custody of minor was not handed over to the grandfather for life time---Mother had sought custody of minor by filing fresh application which was not prohibited under the law---Neither a consent order or a compromise nor an agreement between the parties would absolve the Guardian Court from safeguarding and protecting the interest and welfare of the minor---Guardian court could re-examine the welfare of the minor even if a compromise, agreement or consent order was already in the field---Mother could look after the minor in a befitting manner as compared to grandfather---Welfare of the minor was to be given paramount consideration for disposal of such like cases---Grandmother or grandfather could not be appointed custodian of minor grandson in presence of real parents---Guardian Judge had correctly recorded the impugned judgment for custody of minor---Minor was handed over to the mother in the Court and police was directed to provide escort to the mother up to her destination---Appeal was dismissed in circumstances.

1995 SCR 136; 1996 SCR 33; 1998 SCR 140; 2005 YLR 547 and 2007 CLC 474 ref.

1981 SCMR 635; PLD 1992 Lah. 441; 1994 MLD 796; PLD 1996 Kar. 174; 2003 YLR 3245; 2003 CLC 771; 2005 CLC 894 and 2006 CLC 730 distinguished.

Ayesha Tahir Shafiq v. Saad Amanullah Khan and 2 others PLD 2001 Kar. 371; Mst. Farah Mehnaz and others v. Safeer Hussain Jaffar and others 2013 CLC 235 and Sughran Bibi v. Akhtar Hussain 2007 CLC 474 rel.

Muhammad Irshad Khan and Sheraz Hussain Awan for Appellant.

Kh. Ataullah Chak for Respondent.

YLR 2016 SHARIAT COURT AZAD KASHMIR 1674 #

2016 Y L R 1674

[Shariat Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

ABDUL HAFEEZ KHAN---Appellant

Versus

The STATE through Advocate General AJ&K---Respondent

Criminal Appeal No. 60 and Criminal Reference No.61 of 2014, decided on 22nd December, 2015.

Azad Jammu and Kashmir Prohibition (Enforcement of Hadd) Act, 1985---

----Ss. 3 & 4---Pakistan Arms Ordinance (XX of 1965), S.13---Manufacturing, owning or possessing intoxicant; possessing unlicensed arms---Appreciation of evidence---Neither the allegation was levelled in FIR/challan, nor any proof of import, export, transfer, manufacturing or processing of any intoxicant; or bottles of any intoxicant; or sale or serve any intoxicant was established on record; which could affirm that accused committed any crime falling under S.3 of Azad Jammu and Kashmir Prohibition (Enforcement of Hadd) Act, 1985---Record further revealed that only the intoxicant and other material was found and recovered from his possession---Only S.4 of the Azad Jammu and Kashmir Prohibition (Enforcement of Hadd) Act, 1985, was attracted in his case, through which accused had been awarded sentence by the court below---Raid was conducted early in the morning at 5:15 a.m. in winter and at that time it was hard to associate the private person in recovery process---Mere fact that the recovery of incriminating material was effected from accused in presence of Police witnesses, was no ground for disbelieving such a recovery, particularly so when the presence of any independent witness at the place of recovery, had not been even suggested to the prosecution witnesses by the defence---No enmity of the prosecution witnesses had been brought on record by the defence---Accused had failed to bring on record any evidence to prove his plea of false implication on account of enmity---Conviction order concurrently passed by both the courts below, did not warrant any interference by the Shariat Court---By reducing the sentence, as well as running the sentence concurrently, first Appellate Court had met ends of justice in a legal fashion; which merited no further reduction in sentences passed by first Appellate Court---Sentence passed under S.3 of Azad Jammu and Kashmir Prohibition (Enforcement of Hadd) Order, 1985, was set aside whereas conviction and sentence passed under S.4 of said Act, were upheld, with the benefit of S.382-B, Cr.P.C.

2004 PCr.LJ 890; 1998 PCr.LJ 1293 and 2000 PCr.LJ 374 ref.

Muhammad Asif v. The State 2004 PCr.LJ 890 rel.

Khawaja Attaullah Chak for Appellant.

Muhammad Tariq Alam, A.A.G. for the State.

YLR 2016 SHARIAT COURT AZAD KASHMIR 2788 #

2016 Y L R 2788

[Shariat Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD IRSHAD---Applicant

Versus

MUHAMMAD MEHTAB and another---Respondents

Applications Nos.68 and 59 of 2016, decided on 27th June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, Ss.10(4) & 16---Penal Code (XLV of 1860), Ss.341, 342, 354, 384 & 109---Zina-bil-jabr, enticing or taking away or detaining with criminal intent a woman, wrongful restraint, wrongful confinement, assault or criminal force to woman with intent to outrage her modesty, extortion, abetment---Bail, cancellation of---Bail application of accused on plea of ailment had already been declined by the Trial Court---No fresh ground was available to accused for bail---Subsequent bail application could be moved only on a fresh ground---Accused failed to point out any reason as to why he did not produce any proof/report along with his previous bail application pertaining to his ailment---Concerned Medical Officer never reported that kidney disease of accused was not curable in any other hospital of the country---After examining naked videos and photographs of victim, it appeared that alleged offence of zina was prima facie committed by accused and his co-accused with victim, while removing her from vehicle, along with her husband on gunpoint---Tentative assessment of prosecution evidence had connected accused with the alleged offence---Statement of husband of victim also supported prosecution story---Material collected by Police and evidence produced by the prosecution, had sufficiently connected accused with the alleged offence---Accused was not entitled for post arrest bail, in circumstances---Concession of bail granted to accused through the impugned order of District Criminal Court was recalled, in circumstances.

Qazi Zubair-ud-Din v. Qazi Imtiaz Ahmed and another 2003 YLR 102; Sono Khan v. Sikander and others 2000 PCr.LJ 614; Ali Sheharyar v. The State 2008 SCMR 1448 and Amir Masih v. The State and another 2013 SCMR 1524 ref.

Sardar Javed Nisar for Applicant.

Nemo for Respondents.

Supreme Court Azad Kashmir

YLR 2016 SUPREME COURT AZAD KASHMIR 371 #

2016 Y L R 371

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Civil Appeal No.214 of 2014

AZHAR BASHIR---Appellant

Versus

SADIA SHAFIQUE---Respondent

(On appeal from the judgment of the Shariat Court, dated 14-3-2014 in Civil Appeal No.81 of 2013)

Civil Appeal No.215 of 2014

SADIA SHAFIQUE---Appellant

Versus

AZHAR BASHIR---Respondent

(On appeal from the judgment of the Shariat Court, dated 14.3.2014 in Civil Appeal No.82 of 2013).

Civil Appeal No.216 of 2014

SADIA SHAFIQUE---Appellant

Versus

AZHAR BASHIR---Respondent

(On appeal from the judgment of the Shariat Court, dated 14.3.2014 in Civil Appeal No.84 of 2013)

Civil Appeal No.217 of 2014

SADIA SHAFIQUE---Appellant

Versus

AZHAR BASHIR---Respondent

(On appeal from the judgment of the Shariat Court, dated 14.3.2014 in Civil Appeal No.84 of 2013)

Civil Appeals Nos. 214 to 217 of 2014, decided on 14th March, 2015.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched---Suit for dissolution of marriage, recovery of maintenance charges and dower---Cruelty---Scope---Cruel attitude was not confined only to the extent of physical violence but it would include mental torture, hateful attitude of husband or other inmates of the house and also included the circumstances in presence of which wife was forced to abandon the house of her husband---Wife had failed to prove cruelty in the present case---Family Court had correctly passed decree on the ground of 'khula'---Husband was bound to pay maintenance charges to the wife till she was faithful to him and lived with him and if she had voluntarily left the house of her husband then she was not entitled to maintenance charges---Wife had voluntarily left the house of her husband and she was not entitled to maintenance charges---Dower once paid could not be demanded for second time---Appeal filed by the wife was partly accepted to the extent of maintenance charges---Decree of maintenance charges passed by the Shariat Court was set aside.

Syed Shujahat Hussain Kazmi v. Mst. Nazish Kazmi 2007 CLC 1771; Zohra Bi v. Muhammad Saleem and others 2005 YLR 896; Boota and another v. Muhammad Sadiq and 4 others 2001 MLD 265; Mst. Sabia Naz and another v. Mir Rustam and 2 others 1999 MLD 1763; Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another 2006 SCMR 100; Abdul Hafeez v. Shamaila Bibi and 2 others 2013 MLD 1148; Muhammad Sabil Khan and another v. Saima Inshad 2014 SCR 718; Abdul Khailq v. Sidra Khaliq and 3 others 2014 SCR 280; Mst. Amreen v. Muhammad Kabir 2014 SCR 504; Muhammad Ashfaq v. Mst. Aqsa and 3 others 2009 SCR 167; Muhammad Ramzan v. Umran Khan 1995 CLC 1947; Muhammad Ajaib v. Tasleem Wakeel 2013 MLD 305 and Firdos Bakhat v. Javed Khan through Attorney and another 2005 PCr.LJ 988 ref.

Mst. Amreen v. Muhammad Kabir 2014 SCR 504 rel.

Sardar Karam Dad Khan and Ch. Muhammad Manzoor for Appellant (in Civil Appeal No.214 of 2014).

Abdul Rasheed Abbasi for Respondent (in Civil Appeal No.214 of 2014).

Abdul Rasheed Abbasi for Appellant (in Civil Appeals Nos.215 to 217 of 2014).

Sardar Karam Dad Khan and Ch. Muhammad Manzoor for Respondent (in Civil Appeals Nos.215 to 217 of 2014).

Dates of hearing: 6th January and 12th February, 2015.

YLR 2016 SUPREME COURT AZAD KASHMIR 612 #

2016 Y L R 612

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD SIDDIQUE and 6 others---Appellants

Versus

ABDUL AZIZ RATALVI and 7 others---Respondents

Civil Appeal No.47 of 2013, decided on 23rd April, 2015.

(On appeal from the judgment and decree of the High Court dated 21.1.2013 in Civil Appeal No.53 of 2007)

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

----S.54---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Condition for receiving an amount double of the earnest money---Effect---No condition existed in the agreement to sell that in case of failure of the vendor the vendee would be entitled for decree of specific performance---Had there been a condition in the agreement to sell then vendee would have been entitled to file a suit for specific performance---Vendee was only entitled for receiving an amount double of the earnest money which was paid to the vendor---No cause of action for filing suit for specific per-formance was available to the plaintiff---Agreement to sell did not confer a right in a party in the property---Such document could only be utilized for procuring another document---Impugned judgments and decrees passed by the Courts below were set aside and suit filed by the plaintiff was dismissed---Appeal was accepted in circumstances.

Sardar Muhammad Sarwar Khan and 2 others v. Muhammad Nawaz Khan 2012 MLD 1440 rel.

Muhammad Ayub Sabir, Advocate for Appellants.

Respondent No.1 in person.

Date of hearing: 21st April, 2015.

YLR 2016 SUPREME COURT AZAD KASHMIR 691 #

2016 Y L R 691

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Masood A. Sheikh, JJ

MUHAMMAD AZEEM KHAN---Appellant

Versus

MUHAMMAD AKRAM KHAN through L.Rs. and 2 others---Respondents

Civil Appeal No.339 of 2014, decided on 8th December, 2015.

(On appeal from the judgment and decree of the High Court dated 2.04.2014 in Civil Appeal No.1401/2011)

(a) Azad Jammu and Kashmir Courts and Laws Code Act, 1949---

----S. 36 (2) (a)---Appeal, forum of---Determination---Procedure---Value of suit would be the basic consideration and not the value of subject matter while determining the forum of appeal against the judgment of Trial Court (Sub Judge/Civil Judge)---Appeal before the District Judge was competently filed---Judgment by the High Court was set aside by Supreme Court and case was remanded for decision afresh on merits after hearing the parties.

Muhammad Din and others v. Nusrat Begum and another 1995 CLC 1558 distinguished.

Muhammad Hussain v. Muhammad Afsar and 5 others 2001 YLR 3280; Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1995 SC 393; Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284 and Muhammad Khan and another v. Muhammad Sharif and another 1999 YLR 1308 rel.

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

----S. 42-B---Only principle of law enunciated by the Supreme Court would be having binding force.

Abdul Rashid Abbasi Advocate for Appellant.

Muhammad Yaqoob Khan Mughal and Raja Muhammad Arif Rathore Advocates for Respondents.

Date of hearing: 2nd December, 2015.

YLR 2016 SUPREME COURT AZAD KASHMIR 1073 #

2016 Y L R 1073

[Supreme Court of (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

HABIB-UR-REHMAN---Petitioner

Versus

Sardar ADNAN KHURSHID, COLLECTOR DISTRICT BHIMBER and 4 others---Respondents

(Application for initiating of Contempt of Court Proceedings).

Criminal Original No.15 of 2014, decided on 24th June, 2015.

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLVII----Suit for rectification of instruments/gift-deed---Proceedings in relation to the contempt of Court---Second application, maintainability of---Costs awarded for filing baseless application---Plaintiff, along with his brother, filed suit for correction of a gift deed, which had been decreed by the Trial Court and the decree had been upheld up to the Supreme Court---Plaintiff filed present petition for initiation of contempt proceedings against the respondents, revenue officials, on ground that they had sanctioned the mutation in violation of the judgment and decree of the Supreme Court---Validity---Supreme Court, condemning conduct of the plaintiff, had dismissed the first contempt application filed by him on the identical grounds, while observing that the respondents had sanctioned the mutation in question quite in accordance with the spirit of said Judgment of the Supreme Court---Plaintiff was habitual litigant, who filed baseless cases without any legal or factual justification, which conduct amounted to misleading the Court---Plaintiff failed to justify filing of present contempt application---Supreme Court imposed costs of Rs.10,000/- on the plaintiff for his said conduct---Contempt application was dismissed accordingly.

Petitioner in person.

Raja Khalid Mehmod Khan for Respondents.

Date of hearing: 17th June, 2015.

YLR 2016 SUPREME COURT AZAD KASHMIR 2102 #

2016 Y L R 2102

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Raja MUHAMMAD ALTAF KHAN---Appellant

Versus

SOBIA TABASSUM and 6 others---Respondents

Civil Appeal No.30 of 2015, decided on 10th December, 2015.

(On appeal from the judgment and decree of the Shariat Court dated 05.11.2014 in Civil Appeal No.55 of 2013).

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S.5, Sched---Contract Act (IX of 1872), Ss. 16, 10 & 11---Suit for jactitation of marriage---Undue influence---Effect---Defendant could not succeed in establishing that any valid marriage was contracted by the plaintiff or she was legally capable of contracting such marriage---Element of undue influence could not be ruled out in the present case---Alleged contract of marriage was result of undue influence---If alleged contract of marriage stood proved even then it was not "valid" and would be deemed to be result of undue influence as plaintiff had denied the same---Shariat Court had rightly decreed the suit of plaintiff while declaring the contract of Nikah as ineffective and inoperative---Appeal was dismissed in circumstances.

Zahida Parveen v. Masood Khan 2008 SCR 159; Aftab Ali v. The State and 2 others PLD 1978 Kar. 374 and Mst. Aziz Mai v. SHO Police Station Jalapur and others PLD 1977 Lah. 432 ref.

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

---S. 14---"Free consent"---Meaning.

----S. 16---"Undue influence"---Meaning.

Sardar Karam Dad Khan, Advocate for Appellant.

Sadaqat Hussain Raja and Kh. Muhammad Maqbool War, Advocates for Respondents.

Date of hearing: 2nd December, 2015.

YLR 2016 SUPREME COURT AZAD KASHMIR 2465 #

2016 Y L R 2465

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Masood Ahmed Sheikh, J

KHADIM HUSSAIN and 5 others---Appellants

Versus

COLLECTOR LAND ACQUISITION, MANGLA DAM and another---

Respondents

Civil Appeal No.37 of 2014, decided on 16th Noyember, 2015.

(On appeal from the judgment and decree of the High Court dated 9.12.2013 in Civil Appeals Nos. 453 and 463 of 2009).

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

----Ss.18, 4 & 23---Acquisition of land---Reference to Court---Enhancement of compensation--- Market value--Determination---Scope---Best evidence for determination of market value might be the sale deeds executed prior to the issuance of notification under S.4 of Land Acquisition Act, 1894 and the ones executed thereafter within 12 months period in the vicinity---If sale deeds of the land situated in the same village were not available then sale-deeds executed in the adjoining village could be considered while determining the market value of the land---Compensation of awarded land should be determined while taking into consideration the average value of land prescribed in the sale deeds---Compensation amount was based on average value of sale deeds and not land along witi, 15% compulsory acquisition charges---Impugned judgment was set aside and appeal was allowed in circumstances.

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

----S. 23--- `Maket value'--- Meaning.

Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, Zone-1, Mirpur and 2 others 2013 SCR 1224 rel.

Raja Hassan Akhtar, Advocate for Appellants.

Javed Najam-us-Saqib, Advocate for Respondents.

YLR 2016 SUPREME COURT AZAD KASHMIR 2706 #

2016 Y L R 2706

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

COLLECTOR LAND ACQUISITION MANGLA DAM RAISING PROJECT, MIRPUR---Appellant

Versus

QAMAR ABBAS RIZVI and 4 others---Respondents

Civil Appeal No.51 of 2012, decided on 24th November, 2015.

(On appeal from the judgment of the High Court dated 03.01.2012 in Civil Appeal No. 119/2011).

Land Acquisition Act (I of 1894)---

----S. 18---Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985, R. 7---Azad Jammu and Kashmir Supreme Court Rules, 1978, O. XLIII, Rr. 5 & 6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42-A---Lease of land---Cancellation---Land acquisition---Reference to court---Order without summoning of necessary party---Effect---Inherent powers of Supreme Court, exercise of---Scope---Lease of suit land was sanctioned in favour of applicant-lease-holder which was later on acquired for public purpose---Applicant-lease-holder moved application for referring the matter to the Referee Judge whereby he requested for payment and enhancement of compensation which was partly accepted---Validity---Lease holder was not owner of suit land and he had no right to claim compensation---Findings recorded by Referee Judge were against the statutory provisions---No notice was served upon the government who was owner of land in question---Judgment was passed against the government without affording an opportunity of hearing---Referee Judge had conducted proceedings against law---Referee Judge was bound to serve a notice upon government who was party in the line of respondents---Decree in favour of lease holder was nullity in the eye of law---Supreme Court could exercise inherent powers for doing complete justice without appeal by the government in the present circumstances---Lease holder had filed an undertaking that he would surrender the suit land in favour of government if it was required for a "public purpose"---Applicant-lease holder was not an aggrieved person to maintain a reference application---Reference application was not competent and decision/decree passed by the Referee Judge was nullity in the eye of law---Appeal was disposed of in circumstances.

Mujahid Hussain Naqvi v. Director/Deputy Director Anti-Corruption and 4 others 2001 YLR 2642 and Ehtesab Bureau v. Rashid Ahmed Katal and 4 others 2011 SCR 512 ref.

Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government through Chief Secretary PLD 1990 SC AJ&K 23 rel.

Mansoor Pervaiz Khan for Appellant.

Raja Hassan Akhtar for Respondent No.1.

YLR 2016 SUPREME COURT AZAD KASHMIR 2851 #

2016 Y L R 2851

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J., Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

SALEEM AKBAR KAYANI---Appellant

Versus

Dr. REHANA MANSHA KAYANI and 4 others---Respondents

Civil Appeal No.78 of 2012, decided on 23rd November, 2015.

(On appeal from the judgment of the Shariat Court dated 18.04.2012 in Family Appeal No.52 of 2011)

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched & 14---Azad Jammu and Kashmir Family Courts (Procedure) Rules, 1998, R. 22---Suit for recovery of maintenance allowance---Ex-parte proceedings---Amendment in plaint without notice to the defendant---Effect---Appeal---Limitation---Condonation of delay---Defendant was proceeded against ex-parte and evidence was recorded---Application for amendment in the plaint was moved which was accepted---Contention of defendant was that Family Court was bound to issue notice to him while allowing amendment in the plaint---Appeal filed by the defendant was dismissed being time barred---Validity---Cause shown by the defendant for filing appeal beyond the period of limitation had sufficiently been explained---Defendant was entitled for condonation of delay---Appeal was filed in Shariat Court after condonation of delay---Right of hearing was a constitutionally guaranteed fundamental right of every citizen---No order or decree could be passed against a person without providing an opportunity of hearing to him---Family Court was bound to serve notice upon the defendant after allowing application for amendment in plaint---Defendant should have been provided opportunity to file written statement---Decree for maintenance claimed in the amended plaint could not be passed without issuance of notice to the defendant and seeking his written statement---Impugned judgment and decree passed by the Family Court were not sustainable which were set aside---Case was remanded to the Family Court for decision afresh after seeking written statement from the defendant and recording evidence in accordance with law---Family Court was directed to decide the matter within a period of two months from the receipt of record---Appeal was allowed in circumstances.

Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473; Dr. Zafer Ahmed v. Mst. Shamsa and others PLD 2002 Kar. 524; Ghulam Rasool v. Additional District Judge Sahiwal and another 2006 YLR 549; Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and others 1998 SCMR 2306; Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others PLD 2010 SC 878; Tauqeer Ahmed Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760; Naveed Farid v. Raheela Razzaq 2012 CLC 1131; Muhammad Waseem alias Khushi Muhammad v. Ali Ahmed and others 2004 SCMR 858; Manzoor Ahmed v. Hamad Raza and others 2003 SCMR 1836 and Muhammad Arshad Khan v. Muhammad Kaleem Khan and 7 others PLD 2007 SC (AJ&K) 114 ref.

Fozia Javed Qureshi v. Zulfiqar Ali and another 2011 SCR 371; Wajid Hussain v. Senior Civil Judge Mirpur, AJ&K and another 2012 MLD 1697 and Naveed Farid v. Raheela Razzaq 2012 CLC 1131 rel.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 14---Azad Jammu and Kashmir Family Courts (Procedure) Rules, 1998, R.22---Decision of Family Court---Appeal---Limitation---Appeal in the Shariat Court to be preferred within a period of 30 days of passing of decree or decision excluding the time requisite for obtaining the copies.

----S. 17---Provisions of Qanun-e-Shahadat (10 of 1984) and Civil Procedure Code (V of 1908)---Applicability---Provisions of Qanun-e-Shahadat and Civil Procedure Code were not applicable to the proceedings before any Family Court---Purpose of exclusion of Qanun-e-Shahadat and Civil Procedure Code was that the family matters be disposed of expeditiously---When no specific procedure for proceedings before the Family Court having been laid down in Azad Jammu and Kashmir Family Courts Act, 1993, guidance might be had from Civil Procedure Code in such like proceedings to meet the ends of justice.

(d) Azad Jammu and Kashmir Family Courts (Procedure) Rules, 1998---

----R. 22---Limitation---Condonation of delay--- 'Sufficient cause'--- Scope---Sufficient cause was such a cause which was beyond the control of a party.

Muhammad Sharif v. Muhammad Zaman and others PLD 2015 SC (AJ&K) 1; Muhammad Kabir Khan v. Mst. Anees Begum 2005 SCR 23; Muhammad Habib Khan v. Nasiri Khatoon and 11 others 2006 SCR 22 and Superintendent of Police v. Mallick Hussain Shah 2008 SCR 401 rel.

(e) Administration of justice---

----Courts were governed under law and there was no concept of arbitrariness in the law.

Raja Muhammad Hanif Khan for Appellant.

Sardar Karam Dad Khan for Respondents.